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The amendment also removes the worrying doubt about whether the assurances given by Ministers in both Houses over a long period have any meaning at all. We have all been repeatedly told that vulnerable people would not be detained, other than in the most exceptional circumstances. In practice, we find that it happens all too often without the least apology, let alone compensation.
Finally, my amendment removes doubt as to whether this country is complying with the relevant EU directive. Noble Lords will note that the directive lays down minimum European standards for the decent treatment of vulnerable people. My advice is that Britain has not opted out or derogated from this directive. I concede that it is likely that this amendment does not cover asylum applicants who have been rejected, or who have exhausted all rights to appeal. I am happy, however, that it protects bona fide applicants and those in the process of determination. We all agree that vulnerable people should not be detained, and that debatable cases should be verified at the earliest possible moment.
My amendment would do much to enhance the reputation of the Government and the credibility of Ministers. I urge the Government and the House to put it in the Bill. I have spoken to my amendment as concisely as I could, and I hope that subsequent speakers will amplify the case for it. I beg to move.
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Baroness Finlay of Llandaff: My Lords, I support my noble friend in his striving to improve standards for those seeking asylum. Sadly, we know that some economic migrants claim torture, but the tragic reality is that there are people who have undergone the most terrible types of torture, have suffered things that the rest of us are unable to imagine are possible, have suffered rape, are left extremely vulnerable and are broken. Many do not even make it to our country; they die in their place of origin or en route.
This country has a long history of taking in those who have been broken elsewhere by the cruelty and inhumanity of others. The amendment would impose a minimum standard of how we manage people who have already been broken, so that we do not break them further and break the last bit of humanity left in them. For that reason, I support my noble friend’s amendment. The European Community has made a stand, and we should reinforce it in the Bill.
Lord Avebury: My Lords, I am very glad that the noble Lord, Lord Hylton, has returned to the subject of the detention of torture victims and other vulnerable people. Apart from other considerations, it enables me to clarify the purpose of Amendment No. 26, which we debated on Report. I hope that the
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I concede, as the noble Baroness, Lady Finlay, has just done, that not everyone who claims to be a torture victim or to have some other vulnerable characteristic, such as pregnancy, should be released solely on the basis of that claim. In the case of torture victims, there is a recognised procedure for notifying the caseholder of an allegation by letter under Rule 35 of the Detention Centre Rules. I have already expressed our thanks to the Minister for his letter of 9 October, in which he said that a central log of those letters has to be kept at every IRC, and that BIA staff have been reminded to acknowledge the letters and to take them into account in deciding whether detention should be maintained.
On Report, the Minister referred to “agency staff”, but it would be preferable for the duty to be laid on a specific individual who is responsible for that asylum seeker all the way through the process. I would be grateful for the Minister’s comments on that point—that we do not lay the duty on the BIA as a whole but on the specific caseholder. On Report, the Minister said that the caseholder was required to acknowledge receipt of the Rule 35 letter and to do so promptly. He then added:
“It may be that the response to the doctor should go beyond a simple acknowledgement. The agency will look at the current guidance to see what more could be said, subject to any issue of confidentiality. For example, the response could indicate to the doctor whether the information about the claim of torture is already known to the BIA and has been considered or whether it is being considered as part of the individual’s asylum application”.—[Official Report, 11/10/07; col. 358.]
Of course, it ought not to be considered solely as part of the asylum application, because there is a specific duty to consider whether continued detention is justified in the case of torture victims, quite apart from the examination of the asylum claim itself.
The caseholder is the official who will recommend whether the person is to be released or is to continue to be detained; alternatively, he may decide that there is insufficient information in the Rule 35 letter to enable him to reach a decision. The Medical Foundation comment on the Yarl’s Wood inquiry report at the beginning of the month accused the Home Office of failing to act when told that a detainee had a history of torture, and it is with that in mind that I asked the BIA to go further than a simple acknowledgement. Perhaps the solution would be to invite an independent person such as Stephen Shaw to carry out a quick audit of the procedures, to see whether the review mentioned by the Minister had adequately addressed the criticism made by the chief inspector, who gets to examine particular IRCs only every few years. Her most recent report on Yarl’s Wood was over 18 months ago, so the situation may well have improved; I hope that it has.
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However, the fact that, apart from torture survivors, other vulnerable people such as mothers with small babies are still being detained there is a cause for concern. The Rule 35 procedure should be extended to other categories of vulnerable people mentioned in Article 17, and responses should be similarly required from the caseholder. Since the doctor has to examine every person who comes into the IRC, it should not create much of an additional burden for either the doctor or the caseholder, particularly if, as we assume, the individual’s vulnerability has already been considered by the caseholder before the decision to detain was made.
The inquiry into procedures at Yarl’s Wood highlighted the IND’s failure to act when told of allegations of torture, a criticism that the Medical Foundation had been levelling at the Home Office for many months. The last report by the chief inspector, who had been the first to draw attention to the problem, related to February 2006. I would be grateful if the review that the noble Lord mentioned following that report could be placed in the Library of the House. I personally have not seen it, although maybe I have not done my homework properly.
Unfortunately, many vulnerable people are still being detained, such as mothers with small children, for whom Yarl’s Wood is a totally unsuitable environment. If the Minister wants first-hand evidence of that statement, from the Black Women’s Rape Action Project and other women’s organisations that gave stark evidence at a packed meeting in Committee Room 13 a few weeks ago, I would be ready to let him have it. My suggestion is that the Rule 35 procedure be extended from torture survivors to all other categories of vulnerable people. I hope that the Minister will consider that.
Baroness Hanham: My Lords, we cannot let the efforts of the noble Lord, Lord Hylton, to get vulnerable people considered in this Bill go unremarked. Clearly, he has pursued this with great diligence all the way through our consideration of the Bill.
I hope that the Minister will be able to reassure us on the Immigration Service’s proper compliance with Article 17. There are clearly a number of things to do with that article, one being how it defines “vulnerable people”. Perhaps the Minister can elaborate on that. Although people who have suffered torture certainly form one aspect, and pregnant people are another, a whole host of people could be described as vulnerable. It would be interesting to know how many categories fall under that definition.
Could the Minister also give us just a little more information on which reporting mechanisms are in place to ensure compliance with the directive? The noble Lord, Lord Avebury, has just suggested that there be a reporting mechanism to the agency, but how do the Government and the Home Office pick up on the details there?
Lord Roberts of Llandudno: My Lords, I support the noble Lord, Lord Hylton. I do not see any grounds whatever for objecting to the inclusion of
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“Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care”.
- “shall apply only to persons found to have special needs after an individual evaluation of their situation”.
I suggest that the Minister should be only too happy to accept the amendment, because it reinforces the general principle already stated in Article 17.
The Lord Bishop of Winchester: My Lords, that reading of Article 17 underlines a matter that we have discussed during earlier stages of the Bill. On the one hand, under the procedures laid down it is necessary that people coming into the asylum system—in particular, those coming into detention—should have the opportunity for the most careful medical examination, if they are vulnerable in any way; on the other hand, there is the experience that that is not happening in a significant number of cases. From what the noble Lord, Lord Roberts, has read out, my understanding is that the amendment of the noble Lord, Lord Hylton, would contribute at that point.
Lord Bassam of Brighton: My Lords, I thank the noble Lord, Lord Hylton, for tabling an amendment on this issue. He has been indefatigable in following up this matter and he made a brave effort to tempt me to accept the amendment; I congratulate him on that. Sadly, I think that I will ultimately frustrate him, although I hope that on the journey to that point he will be persuaded by what I have to say. He was right to remind your Lordships’ House that, as I said earlier, we are trying to ensure that we close the gap between our stated policy objectives and where we end up in practice, because it is practice that we are trying to affect. The noble Baroness, Lady Hanham, was right to remind us of the need to raise standards, because that is what we strive for—it is a noble objective—and we should have in the forefront of our minds at all times the need to do exactly that.
The noble Lord, Lord Hylton, tabled amendments on this subject in Grand Committee and on Report, when, he will accept, he widened his proposal to include pregnant women and those with serious health problems. I set out in detail during the debates on those earlier amendments why they were not acceptable to the Government. I intend to elaborate a little more, because I can see that there is a thirst in your Lordships’ House for more information.
The amendment would require the Secretary of State to take account of and comply with Article 17 of the 2003 European Council directive on minimum standards for the reception of asylum seekers and the Asylum Seekers (Reception Conditions) Regulations 2005 when considering whether to detain an asylum seeker who is a vulnerable person. Both Article 17 and the 2005 regulations are primarily concerned with
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Regulation 4 of the Asylum Seekers (Reception Conditions) Regulations 2005 requires the Secretary of State to have regard to Article 17 when providing support or considering whether to provide support. Article 17 applies only to those persons found to have special needs after an individual evaluation of their case has been completed. The relevant regulation does not require the Secretary of State to carry out, or arrange for, an evaluation of a vulnerable person to determine his special needs.
To return to the specific question of detention, it is already the case that those persons defined as “vulnerable” by the reception directive and the 2005 regulations are subject to particular guidance in relation to whether or not they should be detained. They are already subject to that guidance, which makes it clear either that such persons should not be detained—unaccompanied minors, for example—or that the reason for their inclusion among those defined as “vulnerable” should be a factor arguing against detention, with a requirement that all factors arguing both for and against detention are considered. The latter position would, for example, apply to individuals with a history of torture.
Where it is decided that such individuals should be detained, their special needs are identified at the point of initial detention—or as soon as they become known thereafter—and are communicated to those responsible for their custody so that appropriate arrangements for their care may be put in place. For example, in the case of pregnant women, this would include access to midwives and health visitors or, in the case of a person with a disability, ensuring that appropriate facilities were available. Where information on an allegation of torture or some other factor that might argue against detention comes to light only after detention has been authorised, it will be passed to the agency so that consideration can be given to whether the person’s detention should continue.
I explained at some length during the earlier debates why we could not accept a blanket ban on the detention of individuals who are or who claim to be torture victims, or on other individuals such as pregnant women and those with physical or mental health problems. I will not repeat those arguments today, not least as the noble Lord appears to have changed his own approach to that issue. However, I reassure noble Lords that we already comply with Article 17 of the reception directive, as we are legally obliged to do. Furthermore, the 2005 regulations on reception conditions are concerned with the provision
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The noble Lord, Lord Avebury, asked who was to respond to Rule 35 letters, on allegations of torture, from removal centre doctors. Case owners are clearly responsible for considering Rule 35 letters. The noble Lord also made a point about HMCIP criticism and asked whether there should be an independent review. HMCIP regularly inspects all removal centres and short-term holding facilities and therefore has ample opportunity to look at issues such as Rule 35 letters—and it does so often. He also asked whether we would publish the review into Rule 35 and the Detention Centre Rules. I can tell the House that the review will be a quick, informal exercise to see whether changes can be made to the existing content of responses to Rule 35 letters. The results, and any changes that might be made, will be included in published guidance.
The noble Baroness, Lady Hanham, asked for further elucidation, too, and asked whether the Government will ensure compliance with the 2003 directive. We are already required to comply with that directive, which is implemented through the Asylum Seekers (Reception Conditions) Regulations 2005; so we are complying with it.
I think that that concludes consideration of most of the questions that were asked. I make the further point that cases are very carefully audited and we seek to ensure compliance through that audit process. That is another very important check, because the quality of decisions taken in the asylum process is very important. Senior caseworkers, who are embedded in the original asylum teams, currently order some 20 per cent of interviews and decisions with their teams, using a decision-quality assessment form jointly designed with the UNHCR, so there is a good deal of audit and quality processing. Those forms are collated by BIA, which looks for trends across the region. We believe that that form of monitoring provides us with valuable intelligence about the quality of caseworker decisions. Noble Lords who are concerned about this issue should take some comfort from that.
Baroness Hanham: My Lords, I asked a second question, which was about how the Home Office itself monitors compliance with Article 17 of the directive. I do not think that the Minister gave me a response.
Lord Bassam of Brighton: My Lords, I am not sure whether I did give the noble Baroness a response. The auditing process should pick up those issues. I will provide more information later, because setting this out this afternoon in the way in which the noble Baroness suggests involves quite a lot of detail. I would quite like to share that process with all noble Lords who have taken part in the debate.
Lord Avebury: My Lords, is it ultimately a task for the chief inspector, to be appointed by the BIA?
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Lord Bassam of Brighton: My Lords, that may well be the case. That may be an avenue that we seek to use. It is certainly one of the avenues.
Baroness Finlay of Llandaff: My Lords, may I press the Minister a little further about ensuring compliance and about the audits that he has described? Do these take account of reports coming in from other agencies, such as the Medical Foundation for the Care of Victims of Torture? Are they considered in these audits and audit reports?
Lord Bassam of Brighton: My Lords, the Medical Foundation’s services are available to asylum seekers, and are very valuable. The foundation also provides medico-legal reports to support asylum seekers making asylum-seeking claims. It works on instruction from an applicant’s legal representative. Clearly, the sorts of things that the Medical Foundation provides to the BIA and so on help us to get a better feel for how the system is working and what its perfections and imperfections are. That provides us with very valuable intelligence to ensure that we are properly compliant.
Lord Hylton: My Lords, I thank all those who have either spoken in support of my amendment or commented on it. My noble friend Lady Finlay speaks with enormous authority, drawn from her distinguished medical experience. The noble Lord, Lord Avebury, has an unrivalled knowledge in your Lordships’ House of immigration and asylum matters. I particularly welcomed his suggestion that there should be an audit of the current procedures, particularly under Rule 35, of the detention and removal centres. That, of course, will affect matters only once a person has been detained. I suggest that it would be very much better to prevent them being detained in the first place. That, I think, was the intention of the right reverend Prelate the Bishop of Winchester, to whom I am grateful for that point.
The noble Lord, Lord Bassam, has just about satisfied me that the Government and the BIA are complying with the EU directive. Perhaps he will write to me subsequently to tell me whether I am right in thinking that the directive applies after an asylum decision has been taken. I agree with the noble Lord that it is vital to raise standards to ensure that official policy and actual practice are the same things. Having made those points, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Points-based applications: no new evidence on appeal]:
Lord Avebury moved Amendment No. 3:
“(aa) was submitted no later than the notice of appeal was lodged in order to correct a mistake or misunderstanding at the time the application was made,”The noble Lord said: My Lords, when the Minister confirmed in answer to my question on Report that a 28-day grace period would be provided in the Immigration Rules, thus allowing applications for
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As the Minister will recall, we are concerned about the person who submits an application in time which, through some mistake or misunderstanding either by that person or by his legal representatives, does not include an essential piece of evidence that is necessary to grant the extension sought. I thought that the Minister was saying that in those cases, after being refused because of an error or a missing piece of information, the person would be allowed to lodge a new application within the 28-day period that we were discussing.
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