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UK Borders Bill

Lord Bassam of Brighton: My Lords, I beg to move that the Bill be now further considered on Report.

Moved accordingly, and, on Question, Motion agreed to.

Clause 34 [Timing]:

Lord Judd moved Amendment No. 32:

The noble Lord said: My Lords, in Grand Committee I drew attention to the dangers of prolonged post-sentence immigration detention, which is potentially in breach of the right to liberty as laid down in Article 5 of the European Convention on Human Rights. My concern, reflecting that of the

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Joint Committee on Human Rights and Her Majesty’s Chief Inspector of Prisons, is that a number of foreign nationals have been held in prison and immigration removal centres at taxpayers’ not inconsiderable expense for periods of time far past their sentence expiry date, awaiting a decision on whether they will be deported. In Grand Committee my noble friend said that he was,

I hope that my noble friend will forgive me for putting it this way, but he then went on with his characteristic Home Office brief, rationalising why the amendment was itself unacceptable. In responding to that debate, I challenged my noble friend: if he really agreed with the intention of the amendment, he should use all the expertise of the Home Office at his disposal to find a better formula for fulfilling it than the amendment I had proposed. By resubmitting my proposal, I am giving my noble friend the opportunity to meet that challenge.

To say that the numbers are small is never a satisfactory position. A human rights abuse can be a 100 per cent injustice for the individual concerned. That is obviously not acceptable, and a 100 per cent injustice for one person can be fomented into a useful political tool by extremist manipulators of the impressionable. I beg to move.

Lord Avebury: My Lords, the noble Lord, Lord Judd, is absolutely right to raise this matter yet again because there is evidence coming to light that the foreign prisoners who are being held in detention following the expiry of their sentences are clogging up the system and creating at least the possibility of serious unrest in detention centres. This matter was referred to in the Sunday Telegraph a couple of days ago under the headline “Asylum crisis getting worse, say officials”. This is the opinion not of the Opposition or of Back-Benchers such as the noble Lord, Lord Judd, who is always assiduous in raising any matters to do with immigration and detention, but comes from within the department itself, as I am sure the noble Lord, Lord Bassam, is aware.

In one paragraph, the writer of the article states:

Can the Minister tell the House the proportion of foreign prisoners to other kinds of detainees, and whether that has increased since the crisis of last year as the Sunday Telegraph alleges? It is important that we have these figures and know whether the Government have any plans for dealing with the matter. As we have said before—we will come on to the issue again, no doubt—there is great anxiety about the numbers of former criminals kept in some kind of detention well after the expiry of the sentence awarded by the court. If, as the article states, one of the consequences of that is to clog up the places needed for the effective administration of the ordinary asylum system, then your Lordships should know about it before it is too late to deal with the matter in the Bill.

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Lord Plant of Highfield: My Lords, my name is on the amendment and I should like to say a word or two in support of it. I agree with the points made by my noble friend Lord Judd. I, too, am a member of the JCHR and support the position of that committee on this issue.

There are two or three other reasons that I would like to mention briefly. First, I am not in favour of extending the discretionary powers of Secretaries of State when they can perfectly easily be constrained, as they should be in this case. Secondly, the Home Office is not known for its expedition in dealing with these types of cases, and some kind of statutory requirement to move quickly in the terms set out in our amendment is a good incentive from within the administration of these processes. Thirdly, from the point of view of the person to be deported, surely it must be better if you are in that position to have some sense of the time limit on the kind of limbo that you are in, so that you can at least make some adjustment to the new situation that you are going to face.

For those additional reasons, as well as the ones spelt out with great power by my noble friend Lord Judd—I agree also with the noble Lord, Lord Avebury—I fully support the amendment.

3.30 pm

Lord Hylton: My Lords, I support the amendment of the noble Lord, Lord Judd, the purpose of which is to prevent injustices to those who have already served their full sentence, and to avoid prisons and detention centres being clogged up by these people while the Secretary of State considers their cases and goes through the other motions connected with deportation. I can see, however, that the Government may object to the last line of the amendment, which says,

Their objection may be founded on the fact that a minority of such prisoners will have appeals still pending against either conviction or sentence, but surely the way to deal with that situation is to provide that those prisoners shall be released unless there is an appeal of the kind I have described. Even then it should be possible for most of them to be granted bail.

Baroness Hanham: My Lords, my noble friend Lady Anelay supported this amendment in Committee and I am glad to continue to do so. One has to ask the Minister what possible reason there can be for delay. There is clearly nothing automatic about the Government’s proposals for automatic deportation in this situation. In Committee the Minister was in agreement on principle, but had objections that the amendment would create a loophole where criminals would not be able to leave as soon as possible due to outstanding asylum claims and so would escape the provisions. He might like to comment on that again today, as well as on the other matters that have been raised by noble Lords relating to the speed at which deportation seems not to happen.

Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Judd, for raising the issue again. He will be somewhat disappointed at my

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response, but I feel I ought to go through some of our reasoning behind this. As I did in Committee, I sympathise with some of the intent behind the amendment.

In essence the amendment would take away the Secretary of State’s discretion to make a deportation order at the time of her choosing; instead, she would be obliged to make it within three months of the foreign national’s prison sentence commencing. It has to be understood that this would create some straitjacketing difficulties, though I understand the intention behind the amendment. There are many reasons why the Government should make a decision on deportation at the earliest point legally and practically possible, such as fairness to the individual and the need to minimise the use of the prison and detention estates, as well as the need to ensure that foreign criminals who qualify are deported as quickly as possible. However, making a deportation order just three months into every offender’s sentence would be inappropriate in practice.

If the offender was to be sentenced for a lengthy period of imprisonment, their circumstances could change significantly between the start and the end of the sentence. Where a foreign criminal has been sentenced to a long period of imprisonment, it is highly likely that their personal circumstances—or even the political situation in that prisoner’s home country—could change over time. Where that is the case, the Government could find themselves in a position where they have made a deportation order only to have to withdraw it at a later date. That practical reason militates against some of the logic of the amendment.

As a matter of routine, any deportation decision would have to be reviewed at the end of the offender’s sentence to ensure that it remained compatible with our international obligations. That places another constraint on our flexibility. As that review would need to take full account of personal circumstances many years on from the original decision, it would be a completely new decision, rendering the original decision completely irrelevant. For those reasons, although the amendment seems on the face of it to be practical and to apply pressure on authorities to consider how best to deal with the situation, it presents operational difficulties.

I understand the points made by the noble Lord, Lord Plant. The pressure point exists and it is understood. However, flexibility is important.

Some other questions were asked during this short debate. The noble Lord, Lord Hylton, said that it must be possible for foreign national prisoners to be granted bail. Bail may be granted in appropriate cases where foreign national prisoners are not to be removed imminently, and where there are no risks to the public and no risk that the person would abscond. In those circumstances, bail would make a lot of sense, because it would mean less pressure on the detention estate.

The noble Lord, Lord Avebury, asked what proportion of detainees is made up of foreign prisoners. The answer is approximately 50 per cent across the detention estate. There has been an increase because it is necessary

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to move former prisoners into immigration detention to ensure that prison places are not taken up while proper consideration is given to whether to deport foreign national prisoners in the public interest.

I think that I have answered most of the points that have been raised, but if I have missed some, I have no doubt that noble Lords will press me further on them. We need flexibility; practical problems militate against our adopting the understandable approach proposed by the amendment. For those reasons, we cannot find agreement with it.

Lord Judd: My Lords, I thank my noble friend for his observations. I thank also noble Lords in all parts of the House who have contributed to this short but important debate. I ask my noble friend to reflect carefully on what he said and, when he lies in bed tonight, thinking about the wisdom that he shared with the House, to consider whether he really produced a convincing argument to refute the proposal that, on the one hand, liberty is being thwarted and, on the other, ammunition is being given to extremists, who will say, “There you are. Society claims to be based on human rights and all the rest, and see what they do”. I see my noble friend screw up his face.

Lord Bassam of Brighton: My Lords, I was simply thinking of the question and responding to the noble Lord.

Lord Judd: My Lords, then my noble friend has my full sympathy.

As I have said on previous amendments, we are living in volatile times. Disaffection leads to alienation; alienation can be exploited. It is an accumulation of small experiences that are very real for the people and families involved which leads to the spread of a feeling of being aggrieved. It is in the smaller things that we really could do something to make sure that things are happening as they should and make a substantial contribution, in aggregate, to the battle for hearts and minds. I am always very despondent about the negation of human rights, for instance, but I find that as I deal with these issues I personally become more frustrated by what I see as the rule of bureaucratic counter-productivity—of inertia and refusing to act—which is in danger of accentuating the problems that we confront.

I am very disappointed that the Government have not moved on this so far, not least because of what my noble friend so encouragingly said in Grand Committee. However, I never give up my hope that not least my noble friend, and others who have sense, will prevail—and, as the noble Lord, Lord Avebury, suggested, there is an argument going on within the Home Office itself. In the hope that the voices of sanity will prevail in the Home Office at the right time, at this juncture I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 [Detention]:

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Lord Avebury moved Amendment No. 33:

The noble Lord said: My Lords, before coming to the amendment, I shall briefly and I hope not too irregularly put to the Minister a question of which I have given him prior notice relating to one of the amendments that we dealt with last week on the points-based appeal system. The concern was that a person such as a student or work permit holder who was advised to make a fresh application when there had been an error on the form submitted in the first instance would be out of time and therefore ineligible for lodging the appeal. I am informed by the Minister’s department since our debate that there is an extra-statutory concession under which such a person may continue to submit an application for renewal of leave within 28 days. I would be most grateful if the Minister would put that on the record because those that we have consulted were unaware of it. It would be very useful to practitioners to know that their clients can do that and will not be prevented from continuing their studies or work in the United Kingdom.

As for Amendment No. 33, we discussed the clause on 23 July and, because we had some further doubts on consideration of the Minister’s reply on that occasion we seek this further opportunity for clarification. The clause gives the Secretary of State power to detain a person while she considers whether the automatic deportation provisions in Clause 32 apply. It may add to the concerns that the noble Lord, Lord Judd, has just expressed that we are giving the Secretary of State additional powers, contrary to the advice that we were given just now by the noble Lord, Lord Plant, which will increase the size of the detention estate, with all the consequences that that implies.

First, we seek confirmation that subsections (4) and (5) allow for electronic monitoring as an alternative to detention, by virtue of Section 36 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The Minister said so in the letter that he wrote to us after the fifth sitting on 26 July, but again it would be helpful to have that in the Official Report, where it would be accessible to immigration practitioners. If the decision to apply electronic monitoring is nominally that of the Secretary of State, who will make the decision on her behalf and will there be published guidance on how the decision is to be made?

The Minister quite properly observed, in col. 150, that a deportation order should not be made before an assessment of the safety of return could be made, but it does not follow that consideration of automatic deportation needs to be deferred until right at the end of the sentence. The BIA should identify as soon as possible—that is, when the person is charged—whether the offence is covered by the second condition in Clause 31 or would potentially attract a sentence of 12 months or more so that the offender can be put on notice to get legal advice on whether he qualifies under one or other of the exceptions before the case is heard. As soon as the person is convicted, he becomes a ‘foreign criminal’, and is liable to

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automatic deportation, although an order cannot be made at least until after any appeal is heard or the person has notified the Secretary of State that he does not intend to appeal under Clause 34(2) and (3). In cases where an appeal is to be heard, or the time available for an appeal to be lodged has not been exhausted, existing powers have to be used to continue the detention. Meanwhile, the Secretary of State could reconsider whether it is safe to return him and prepare the deportation order, which could be served on the offender in court immediately if he loses the appeal, or in custody if he signs a Clause 34(3)(b) statement.

The Minister gave as an example where it was likely to be impossible to consider the safety of automatic deportation, the person who is given a long sentence during which his circumstances or the political situation in his country of origin would have changed. The answer to that is that the person is a “foreign criminal” within the meaning of Clause 32 immediately he is convicted, and the Secretary of State should make arrangements to remind himself—say, three months before the end of the sentence—whether any of the exceptions in Clause 33 apply. Since there are now personal case-holders keeping track of offenders all the way through the criminal justice system, they should be responsible for keeping up-to-date records of any changes in the situations of offenders to whom the exceptions may apply, and could be instructed to give the current entries to the Secretary of State, as I say, three months before the release date, and to inform her of any changes which may occur in the last three months. The Secretary of State could issue a “minded to decide” notice at that point. If the sentence is a long one it is extremely unlikely that there would be unexpected last-minute changes in the offender’s personal circumstances under one of the exceptions, and it would be rare for the situation in the country of origin to change so radically in those last few weeks as to justify reversing the decision by the Secretary of State on the safety of return. But during the few weeks that remain she still has power to revoke a deportation order if, out of the blue, a Clause 33 exception arises, or if there is a technical error in the decision to make the order, or the decision that Clause 32(5) applies. If no such change occurs, the notice of automatic deportation could be issued immediately the appeal rights have been exhausted.

Where the offender’s nationality or country of origin are in doubt, nothing in the exceptions or elsewhere in the Bill prevents the Secretary of State making the deportation order, although obviously implementation would have to be delayed, as it is now, and as now, detention would be under existing powers, pending deportation, and not in consequence of the provisions of this Bill.

In the case of a last minute asylum application, in the unlikely event that it is accepted, the consequence would be that the Secretary of State finds it unsafe to return the person and, by virtue of Clause 33(2), she refrains from making an order. But where the application is considered to be unfounded, as it generally would be, again there is nothing in the Bill

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to stop the deportation order being made, though obviously it would be held in abeyance until any appeal was disposed of.

Therefore, having considered the scenarios presented by the Minister in Grand Committee, we are still not convinced that Clause 36 is necessary. We are concerned, moreover, that it may not be compliant with Article 5(1) of the ECHR, which allows for detention,

whereas detention under Clause 36 is for the purpose of deciding whether the person is liable to be deported—a matter which has to be settled before the actual decision to deport can be taken. I beg to move.

Lord Hylton: My Lords, earlier on Report, the right reverend Prelate the Bishop of Winchester reminded us that a high proportion of former foreign criminals are being held in detention and removal centres. The result is that people with convictions have been mixed in with people who are completely innocent of any crime. This has caused serious problems for the staff of the centres, and has generated considerable fears among the innocent detainees. The Home Office appears to have generally disregarded the advice that was offered to concentrate the former criminals in one or two particular centres, which might have avoided quite a lot of problems.

Therefore, I am asking the Minister to tell us what progress has been made on the subject since last summer. I know—because I read it—that there is a letter from a Minister in the Library, which sets out some positive news. Can the Minister go a little further and tell us what impact the very large increase of staff devoted to the question of who should be detained, whether they are due for deportation and related subjects is having on the situation?

Lord Bassam of Brighton: My Lords, before I respond to the amendment, since the noble Lord, Lord Avebury, had the great courtesy to advise me in advance of his point about the points-based appeal system, I ought to respond to that. It was a very helpful question, which enables me to provide further elucidation.

A 28-day grace period will be included in the Immigration Rules as part of the tier 1 process in March 2008. I am sure that the noble Lord will welcome that. This will allow those who send their applications within 28 days of their leave expiring to continue with their application. That is a very helpful approach on our part, which will probably be welcomed, not least by immigration law practitioners.

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