5.30 pm

Clause 2: Enforcement powers

Amendment 12

Moved by Lord Rosser

12: Clause 2, page 2, line 35, at end insert—

“(2) The enforcement powers provided for in Schedule 1 are subject to oversight by—

(a) the Chief Inspector of Borders and Immigration,

(b) the Independent Police Complaints Commission, and

(c) HM Inspector of Prisons.”

Lord Rosser: My Lords, Amendment 12 provides for the enforcement powers provided for in Schedule 1 to be subject to oversight by the Chief Inspector of Borders and Immigration, the Independent Police Complaints Commission and Her Majesty’s Inspector of Prisons. The powers introduced by Schedule 1 include escorting and searching detained persons and entering and searching premises. There is also provision for a wider interpretation of the general power to use reasonable force compared with that in previous immigration Acts, and the schedule increases the powers of immigration officers, including with regard to the power to use reasonable force.

This is an important issue, not least in the light of the inquest into death of Jimmy Mubenga in late 2010, following the restraint used as part of his deportation undertaken by a private sector company. In that case, the coroner determined that the cause of Mr Mubenga’s death was an unlawful killing under existing provisions of immigration law. The coroner highlighted several areas of concern, including lack of training in scenario planning in relation to the use of force by private sector companies, dangerous restraint techniques being used at that time and a lack of accreditation of particular officers.

As Schedule 1 now extends the powers regarding the use of reasonable force to previous immigration Acts and gives additional powers to immigration officers on escort, search and entry, we need at the very least some assurances that immigration officials will receive or are now receiving training on the use of restraint and reasonable force that is on a par with that given to police officers. We also need assurances that these increased enforcement powers will be subject to proper

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oversight, and by whom, and that that oversight will also apply to the private sector. Is it the Government’s intention to issue guidance on how the provisions of Schedule 1 should be enacted, not least the power to use reasonable force, or will it be left to each company and organisation involved to interpret as they see fit how and when to use the considerably enhanced powers that they are being given? Will it be left to each organisation affected to produce its own definition of reasonable force and the circumstances in which it can be used? I hope that that is not the case.

I hope that the Minister will recognise the concerns on this issue, already expressed earlier today, and that, in the light of the discussions that he has had with the noble Lord, Lord Ramsbotham, on a possible code of practice, he will feel able to offer more than a belief—although genuine, I am sure—that everything will be all right on the night. I beg to move.

The Archbishop of York: My Lords, Amendment 12 provides what I believe to be a necessary safeguard to reassure the public that those responsible for enforcement are fully accountable. Accountability is at the heart of all of this. This is surely an improvement as it ensures independent oversight by Her Majesty’s Inspector of Prisons, the Independent Police Complaints Commission and the Chief Inspector of Borders and Immigration of enforcement powers, such as searching persons and premises as well as the general power to use reasonable force. If we are confident that such powers are always fairly and humanely exercised, there is nothing to fear from this amendment. If we are not, then this amendment is absolutely necessary.

Baroness Williams of Crosby (LD): My Lords, I will speak briefly on Amendment 12. I congratulate the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith, on bringing it forward.

It is very striking that the positions of the people mentioned who should be involved in oversight are intended to be independent. That is clear with regard to the IPCC, but is also the case with the Inspector of Prisons, as is exemplified by the remarkable record of the noble Lord, Lord Ramsbotham, when he was Inspector of Prisons, and calls on an old tradition that rules will be enforced and kept in respect of the Prison Service, with a long and remarkable record among prison officers in terms of these expectations. I was a Minister of State in charge of prisons for a while and I was impressed by the level of responsibility shown, particularly by prison officers who had worked in prisons for a period of time. They often had a strong sense of responsibility for those with whom they worked, who were held in prisons in the ordinary criminal justice system. There has been nothing like the same level of expectation regarding rules or ethics within the immigration estate as we had in the Prison Service at its best.

Amendments 9 and 10 have already been discussed and I will not return to them, but I will say very loudly that they show how remarkably a concerned and responsible Minister can alter the culture and attitudes of those for whom he or she is responsible and over whom he or she has oversight. The problem, quite

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simply, is that the Home Office has not had that oversight, particularly in respect of the outsourcing of responsibility for people who are detained or who are held under the immigration provisions of many earlier Acts. That is only too clear in the complaints and concerns that arise over the handling and management of that estate. We are grateful for Amendments 9 and 10. They are very detailed and have been carefully worked out. However, I repeat the question of the noble Lord, Lord Rosser, about whether there is any training for immigration officers who now have the responsibility for enforcement. I will go further and ask whether the Home Office writes into its contracts with the private companies to which it extends the right to run these establishments a specific requirement that the practices that we hope to be embodied in the code will be upheld. Does it hold them responsible for reporting on any breaches of those rules and codes of practice? Does it hold them responsible for any accidents, injuries or deaths that occur in the establishments for which they are responsible? If the number of those is seen to be unusually high or if they are inexplicable, will real consideration be given to withdrawing the contracts as soon as possible? The contracts should clearly indicate that they are conditional on the proper running of those establishments.

Lord Ramsbotham: I will speak to Amendment 13, in my name and that of the noble Lord, Lord Roberts.

I am very grateful to the noble Baroness, Lady Williams, for highlighting some of the points that were in the code of practice that I gave to the Minister, as I mentioned earlier. I did not read out all the points but I did mention that there were three codes that I had produced. One concerns the use of restraint. I will mention the three elements in that, which say that the Home Office must:

“Confirm the Independent Advisory Panel on Non-Compliance Management … as a permanent establishment”,

and that one member must have,

“experience of both the design and use of restraint techniques in a wide variety of settings, both custodial and non-custodial”.

The Home Office must also:

“Lay down precisely what safe and pain-free restraint techniques are acceptable in various situations such as vehicles transporting returnee to airport, transfer from vehicle to aircraft including in crowded airports, and in economy class on board commercial, passenger-carrying aircraft”.

Finally, the Home Office must “specify compulsory training requirements” for detainee custody officers,

“and other escorts, including compulsory continuation training”.

I repeat that because the amendment in the name of the noble Lord, Lord Roberts, and myself, refers particularly to the use of the word “reasonableness”. I am sure that the Minister will agree that it was not reasonable force that caused the unlawful killing of Jimmy Mubenga in an airport, and the 78 other cases that I presented to the Home Office, along with numerous others. I suggest that the problem is that the Home Office has delegated all use of force to the contracting companies without overseeing it or insisting that anyone do so. I suggest to the Minister that it would be a very good thing if the Home Office thought through and tried to define what “reasonable” is.

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It seems to me that there is a mnemonic, “JPLANS”, which provides the circumstances that must be honoured in using force. The letters stand for six phrases. The first: is the force “justifiable”? It might be lawful, but that does not make it justifiable. All other options must be considered before it is used. Secondly, it must be “proportionate” to the behaviour and consequence it was intended to prevent. Any force used should always be the minimum necessary to achieve a lawful objective.

Thirdly, it must be “lawful” in all circumstances and, provided the person has done what he honestly or instinctively thought was necessary in all the circumstances, and no more, that would be good evidence that he has acted reasonably and lawfully. Force must never be used as a punishment to intentionally cause pain, injury or humiliation. Fourthly, use of force must also be “accountable”; one must always be prepared to account for any force used. Force should be used only as a last resort, and one must be able to demonstrate that this was the case.

Fifthly, force must be “necessary” in all circumstances, and consideration should be given to any other reasonable alternatives: could the situation have been resolved without the use of force? Were risk assessments properly carried out before the removal to reduce tension and any consequent need to use force? Could this have included a planned meeting between the escort and the person they were escorting in order to try to build up a relationship that might remove the tension?

Finally, was the force used “safe and supportive”? Techniques and procedures must be applied correctly and safely, and the person on whom they are applied must be monitored to ensure their safety. There are some techniques and facilities that are known to give rise to a foreseeable risk of injuries. They are permitted only in extreme circumstances and will have to be justified by the member of staff who uses them.

I do not think that anyone writing “reasonable” without thinking it through can have applied the JPLANS test. I therefore suggest that the Minister considers a definition of “reasonable” whereby any use of force must be necessary, reasonable and proportionate, and applied for the minimum period necessary to achieve the lawful objective. If that definition were in the Bill, rather than just the word “reasonable”, I would find it a great deal easier to accept. I suspect that it would be much more supportive of the regime that I hope the independent advisory panel will impose, which should not consist merely of repeating techniques designed for use in custody that are wholly inappropriate when removing a detainee.

Lord Avebury: My Lords, I wish to say a word or two in support of the amendment. Currently, the use of force by an immigration officer is licensed under the Immigration Act 1971 and the Immigration and Asylum Act 1999. Paragraph 5 of Schedule 1 amends this to license the use of force under eight other Acts passed since 1971, and any future legislation that may be included in the definition of “the Immigration Acts”. The Explanatory Notes wrongly claim that this “clarifies” that the power is not limited to the exercise of powers under the 1971 and 1999 Acts, which would

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mean that the power already exists. In fact, the use of force under any of the eight Acts not already covered would be unlawful until the Bill is passed, as I hope my noble friend will concede.

No justification is given for this extension of the power to use force. On the contrary, there have been huge concerns about the use of existing powers, as in the case of Jimmy Mubenga, and in the report of the chief inspector on the use of force to remove a pregnant woman and her child via Cedars. The former Immigration Minister gave an assurance that the power to use force was confined to immigration officers as distinct from workers employed by private contractors on detention and removal activities. However, private contractors do use force, as has been mentioned and as the noble Baroness, Lady O’Loan, found in her report of March 2010.

In the chief inspector’s report on an unannounced inspection of Harmondsworth in August last year, it was found that a wheelchair-bound, low-risk detainee who had suffered a stroke was handcuffed on a hospital visit, and other cases were noted in which the use of handcuffs was “grossly excessive”, including one case in which the individual was sedated and undergoing angioplasty, and another in which an 84 year-old man suffering from dementia died while still in handcuffs. It is clear that some immigration officers have no idea whatever about proportionality in the use of force—a matter that was referred to by the noble Lord Ramsbotham—and each and every extension of this power should be separately justified.

5.45 pm

Lord Roberts of Llandudno: My Lords, I repeat what I said earlier about the need for proper training and assessment of those who are legally able to use force. I do not have a great deal of confidence in some of these private companies, which have already failed in different ways. The Home Secretary should take very much to heart the suggestion that we need people who are able to exercise their duties in a way that is humane and within the Act because, as the report of the Chief Inspector of Prisons regarding the use of force against pregnant women and children said, it must not be contemplated. We need a review of the whole procedure, which we can come out of with a feeling that at least the best that can be done is being done.

The Archbishop of York: My Lords, I will speak to Amendment 13 of the noble Lords, Lord Roberts of Llandudno and Lord Ramsbotham. The trouble is that paragraph 5 of Schedule 1 widens the authorisation under which immigration officers can use “reasonable force” to cover all their powers in all immigration Acts, rather than just the specific powers of arrest, search and entry given in the 1971 and 1999 Acts. Such blanket permission for something as indefinable as “reasonable force”, as the noble Lord, Lord Ramsbotham, illustrated, is pretty unwise.

Surely it is important that any extension of use of force by agents of the state is justified in detail, rather than in this sweeping manner. For example, the use of force against pregnant women or children in a variety

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of contexts is problematic. I support Amendment 13 and hope that it will go in the direction of the definition given by the noble Lord, Lord Ramsbotham, of what could be included in the Bill about what we mean by the rather blanket word, “reasonable”. What is reasonable to me may be completely unreasonable to another person, unless it is defined.

Lord Mawhinney (Con): My Lords, I will not take up much of your Lordships’ time because what I had wanted to say was said much better by the noble Lord, Lord Ramsbotham. In my reading of Schedule 1, I noted the words:

“The power to search … may be exercised only to the extent reasonably required”.

I do not know what “reasonably required” means; I do not know what “reasonably” means, and I do not know what “required” means. By whom is the power to be used and against what standard? I say to my noble friend on the Front Bench, who knows that I am supportive of this legislation, that the noble Lord, Lord Rosser, has done your Lordships’ House a favour by enabling this short debate to take place. I hope that my noble friend will listen to the variety of views that reflect a similar theme on all sides of the House, and perhaps at a later stage come back with something that is slightly more definitive in relation to “reasonably required”.

Baroness Benjamin: My Lords, many noble Lords have mentioned training for immigration officers. What training do they have on understanding the medical conditions such as sickle cell disorder that those with African and Caribbean heritage may have, which can occur under stressful circumstances and may require immediate attention because they can lead to fatal strokes and even death?

Lord Hope of Craighead (CB): My Lords, it may be proper now to raise a point of detail on Amendment 12 in case the matter is taken any further. Noble Lords will know that the Bill applies to Scotland and Northern Ireland as well as to England and Wales. We see that in Clause 69, which applies to Schedule 1 as it does to most other provisions in the Bill. The problem with the amendment is that it refers to two people who have oversight of matters in England and Wales, but does not include their equivalents in Scotland and Northern Ireland. Certainly, so far as Scotland is concerned, there is a separate police complaints commissioner and there is a Scottish inspector of prisons. I am not sure of the details in Northern Ireland but they could no doubt be checked as well. My point is that if the oversight provisions are to be carried across all the jurisdictions, we should be careful to include and mention them in this particular clause.

There was a related point, which the Minister might like to confirm. I take it that the codes that have been referred to apply to Scotland and Northern Ireland as well as to England and Wales. It is very important that there should be uniform standards throughout the entire country in these important matters.

Lord Taylor of Holbeach: My Lords, this has been a useful debate because it has enabled me to address a number of issues, some of which are the subject of the

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Bill's provisions and some of which go a little broader to address the role of contractors. The Bill itself and the amendments address only the powers vested in immigration officers. I would like to reassure the noble Lord, Lord Rosser, that effective regulatory oversight of the way in which the new enforcement powers in Schedule 1—and indeed other immigration powers—will be exercised, is already in place.

In England and Wales, the Independent Police Complaints Commission, as the noble and learned Lord, Lord Hope of Craighead, pointed out, provides oversight of serious complaints, matters of conduct, and incidents involving immigration officers and officials of the Secretary of State exercising immigration and asylum enforcement powers. The IPCC’s remit also includes those officials exercising relevant customs and customs revenue functions within the UK Border Force. We should remember that this is UK-wide—there is no devolved power here. This is a reserved power for UK borders.

In relation to Scotland, the noble and learned Lord, Lord Hope of Craighead, is quite right to point out that the Crown Office and Procurator Fiscal Service has the remit to investigate deaths and allegations of criminality in respect of immigration and customs matters. In addition, all complaints about immigration officers and officials of the Secretary of State who are exercising immigration and asylum enforcement powers in Scotland may be investigated by the Police Investigations and Review Commissioner. That does not change under these provisions.

To ensure that this scrutiny is truly nationwide, we have included a provision in Clause 59, following agreement with the Northern Ireland Executive, to enable the Police Ombudsman for Northern Ireland to provide oversight of serious incidents, complaints and conduct matters in Northern Ireland where immigration and customs enforcement powers are exercised. Her Majesty’s Inspectorate of Prisons has a statutory responsibility to report on the conditions and treatment in all places of immigration detention in the United Kingdom. Furthermore, the UK’s border and immigration functions as a whole, including the use of enforcement powers such as those in Schedule 1, are subject to the independent scrutiny of the Chief Inspector of Borders and Immigration, Mr John Vine.

My noble friend Lord Mawhinney asked what was meant by “reasonably required” because that seemed to exercise a number of noble Lords. It means to the extent of finding the object of the search and no further. Indeed, noble Lords might be surprised to know that immigration officers have powers to search people who are being examined in ports for passports and other relevant documents, but they are not permitted to search those in detention for weapons or other dangerous articles that might cause harm to themselves or others. A protective search power is currently only available in respect of people who have actually been arrested. Immigration officers have a number of powers to enter and search premises for the purposes of finding material that would facilitate the investigation of current immigration offences. But the powers do not apply to illegal immigrants in immigration detention who have been arrested by immigration criminal investigators rather than the police.

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A further example is that officers can search for relevant documents in the home of an arrested person or the premises at which they were arrested. They are not permitted to search the premises of a third party—for example, those of a relative or partner. The Government, quite rightly, are seeking to ensure that immigration officers have the powers that are currently available to contractors but not to immigration officers themselves.

Lord Mawhinney: I hope that my noble friend will excuse me because I readily acknowledge that he knows much more about this subject in detail than I do, but is he telling us that the words “reasonably required” relate only to the object of the search rather than to the way in which the search is carried out?

Lord Taylor of Holbeach:The use of force has to be reasonably exercised. In the case of search, that has to be reasonable too. The answer is that it is not an either/or. Reasonableness is at the heart of the process. I hope that that satisfies my noble friend.

Lord Mawhinney: I assume from what my noble friend said that he will go on to define, as other noble Lords have asked, who sets the standard of reasonableness and who monitors it in this context.

Lord Taylor of Holbeach: I set out earlier detail on those people who are responsible for oversight in this matter. Indeed, the training procedures and codes that apply in this area are designed especially to ensure that the people exercising these functions are properly aware of what is considered to be proportionate. I do not think that it is an unusual situation for anyone carrying out activity on behalf of a government agency. Reasonableness is perfectly well understood, which I think most noble Lords will know. I hope that I am being reasonable in the way in which I am answering my noble friend's question.

A number of noble Lords questioned the role of private contractors in this area. As I have explained, the amendments do not address private contractors. But detention staff are subject to a number of oversight and monitoring bodies. All complaints concerning the use of control and restraint are referred to the UKBA Professional Standards Unit, which passes all such allegations to the appropriate bodies such as the police or other oversight bodies where appropriate, and I have explained who they are.

In addition, independent monitoring boards, Her Majesty’s Inspectorate of Prisons and the Parliamentary and Health Service Ombudsman can conduct unannounced inspections of detention premises. Independent observers from Her Majesty's Inspectorate of Prisons and from independent monitoring boards also monitor a number of removal flights from the UK and I am intending to go on one such flight in a few weeks’ time.

Baroness Williams of Crosby: Before the Minister concludes his extremely reasonable remarks, may I press him on one point? Those companies to whom the conduct of these issues is outsourced need more than simple reference on to the Chief Inspector of

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Prisons or the IPCC. Could I therefore press him, before he concludes, about whether we can build in serious incentives to the companies to which these activities are outsourced so that they recognise that their contracts will be at risk if they fail to carry out the expectations of the conduct and behaviour that we are laying upon them in this very sensitive area?

6 pm

Lord Taylor of Holbeach: My noble friend Lady Williams of Crosby and the most reverend Primate the Archbishop of York joined the noble Lord, Lord Ramsbotham, in raising the question of the effectiveness of quality control in terms of outcomes, how we enforce contracts, and whether we hold contractors responsible. We do exactly that. We have contract monitoring teams at each detention facility and individual detention and escort contractors are certified by the Secretary of State, and this certification can be withdrawn. As the noble Lord, Lord Ramsbotham, will know, a new training programme is being undertaken by the Home Office in this area. I have invited him to come along and look at the programme and perhaps contribute to its development because we feel it is very important that at the heart of good practice in this area lies oversight on the one hand, good management on the other and, at the bottom of all of that, good training for the operatives. I think it would be the wish of the House and, indeed, the Home Office that that is provided for. My noble friend Lady Benjamin asked if there was particular training given to officers on medical conditions. I am not in a position to give that answer on the spot but I am happy to write to her.

I turn to Amendment 13. We should make it clear that the provision to extend the use of force affects only immigration officers and does not make any change to the powers of contractors, those detainee custody officers and escorts, who have separate statutory powers to use reasonable force in their functions. We believe that immigration officers should be able to use their powers to the fullest extent, where it is necessary. If paragraph 5 were to be removed, it would not affect the majority of immigration powers of examination, arrest, entry, search, detention and fingerprinting, where officers are able to use reasonable force if necessary, as most of these are contained within the Immigration Act 1971 and the Immigration and Asylum Act 1999, as my noble friend Lord Avebury pointed out.

However, there are a small number of coercive powers, which sit in later legislation, where there is no specific reference to the use of reasonable force. Although the use of force is currently implied, we intend that this should be set out explicitly in statute to ensure greater transparency. The use of force in these situations may be necessary for immigration officers to carry out their role effectively and safely, and I have given illustrations of that earlier in my response. I am sure noble Lords will agree that it would be hard to see, for example, how immigration officers could safely arrest a person for the offence of assaulting an immigration officer if they were unable to use reasonable force to restrain that person. It should be noted that the new enforcement powers proposed in the Bill make amendments to either the Immigration Act 1971 or

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the Immigration and Asylum Act 1999, so will already be covered by the existing provision for immigration officers to use reasonable force where necessary.

I can assure noble Lords that only immigration officers who are fully trained and accredited may use force. Arrest training is currently provided by the College of Policing, and training on the use of force, including control and restraint techniques, is in line with ACPO standards. Published guidance explains that the use of force must be proportionate, lawful, necessary, and age appropriate. It also sets out that force should be used for the shortest possible period, should be the minimum needed, should be used only when all other avenues of securing co-operation have been exhausted, and should be de-escalated as soon as possible.

Every instance where force is used is recorded in a comprehensive incident report. Out of 14,598 enforcement visits in the financial year 2012-13, force against the person was used in a little over 2% of cases. The issue of whether that use of force was reasonable must be justified on a case-by-case basis, as I have been explaining to my noble friend Lord Mawhinney. The extension of the power to use reasonable force will ensure that existing powers are able to be operated effectively, that they are in step with other law enforcement bodies’ powers, and that current enforcement practices are not at any risk of legal challenge on the grounds that the ability to use force is not explicitly set out in statute. Now I hope that I have been able to explain the context in which these provisions of the Bill are being proposed. In the light of these points, I hope that noble Lords will be reassured and feel able not to press their amendments.

Lord Rosser: Is the Minister still looking at what I understand is a code of practice—which the noble Lord, Lord Ramsbotham, has discussed with him—or are we to take it that the answer he has just given means that he does not see the need for a code of practice?

Lord Taylor of Holbeach: I think I can reassure the noble Lord, Lord Rosser, by the actions I took following the meeting that I had with the noble Lord, Lord Ramsbotham. He gave me a copy of the code of practice that he had produced following his review and I was pleased to take it back to the Home Office and feed it into the department. I would like to believe that the points that the noble Lord, Lord Ramsbotham, has made are being reflected in the approach that the Home Office is taking at the moment. There is naturally great interest in what he is suggesting. As I said, we are looking forward to the opportunity to allow him engagement with us on the development of the training programme.

Lord Rosser: I am not entirely sure whether that means the code of practice will see the light of day in any schedule to the Bill or whether it simply—I do not use the word “simply” in a derogatory way—means that the Minister intends that the Home Office may take account of what is in that code of practice in the practices that the Home Office seeks to ensure are adopted. I think the answer I have had is the latter rather than the former. That is what the Minister’s

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response indicates. As I understand it, the Minister said in his reply that the oversight powers throughout the United Kingdom are already there through the relevant postholder or commission. I think he has said that the extension of powers under Schedule 1 apply only to immigration officers and not to private contractors, and that appropriate training is or will be given in relation to the extension of the powers on reasonable force. That is what I have understood from the replies the Minister has given.

I shall obviously want to read in Hansard the words the Minister has actually used since it is easy to gain an impression when it is not the correct one. However, I thank him for his detailed response and, if noble Lords will forgive me for not naming them all, I thank them for taking part in the debate on these amendments. I was particularly impressed by the noble Baroness, Lady Williams of Crosby, who indicated that my amendment should have gone further than it did. I am not often told that, but there we are. I have to say that the points she made were extremely relevant. In the light of what the Minister has said, and on the basis that I intend to read his words carefully in Hansard to make sure that I have understood them fully, I beg leave to withdraw the amendment.

Lord Roberts of Llandudno: Before my noble friend the Minister sits down, can he tell me how many employees of these companies have been dismissed for this sort of heavy-handed behaviour?

Lord Taylor of Holbeach: I did feel rather comfortable until the noble Lord suggested that I had not yet sat down. I cannot give him the answer to that question, but if it is possible to do so, I will write to him.

Amendment 12 withdrawn.

Clause 2 agreed.

Schedule 1: Enforcement powers

Amendment 13 not moved.

Schedule 1 agreed.

Amendments 14 and 15

Moved by Lord Taylor of Holbeach

14: Before Clause 3, insert the following new Clause—

“Restrictions on detention of unaccompanied children

(1) Schedule 2 to the Immigration Act 1971 (administrative provisions as to control on entry etc) is amended as follows.

(2) In paragraph 16, after paragraph (2) insert—

“(2A) But the detention of an unaccompanied child under sub-paragraph (2) is subject to paragraph 18B.”

(3) In paragraph 18, after sub-paragraph (1) insert—

“(1A) But the detention of an unaccompanied child under paragraph 16(2) is subject to paragraph 18B.”

(4) After paragraph 18A (as inserted by paragraph 2 of Schedule 1) insert—

“18B (1) Where a person detained under paragraph 16(2) is an unaccompanied child, the only place where the child may be detained is a short-term holding facility, except where—

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(a) the child is being transferred to or from a short-term holding facility, or

(b) sub-paragraph (3) of paragraph 18 applies.

(2) An unaccompanied child may be detained under paragraph 16(2) in a short-term holding facility for a maximum period of 24 hours, and only for so long as the following two conditions are met.

(3) The first condition is that—

(a) directions are in force that require the child to be removed from the short-term holding facility within the relevant 24 hour period, or

(b) a decision on whether or not to give directions is likely to result in such directions.

(4) The second condition is that the immigration officer under whose authority the child is being detained reasonably believes that the child will be removed from the short-term holding facility within the relevant 24 hour period in accordance with those directions.

(5) An unaccompanied child detained under paragraph 16(2) who has been removed from a short-term holding facility and detained elsewhere may be detained again in a short-term holding facility but only if, and for as long as, the relevant 24 hour period has not ended.

(6) An unaccompanied child who has been released following detention under paragraph 16(2) may be detained again in a short-term holding facility in accordance with this paragraph.

“(7) In this paragraph—

“relevant 24 hour period”, in relation to the detention of a child in a short-term holding facility, means the period of 24 hours starting when the child was detained (or, in a case falling within sub-paragraph (5), first detained) in a short-term holding facility;

“short-term holding facility” has the same meaning as in Part 8 of the Immigration and Asylum Act 1999;

“unaccompanied child” means a person—

(a) who is under the age of 18, and

(b) who is not accompanied (whilst in detention) by his or her parent or another individual who has care of him or her.”.”

15: Before Clause 3, insert the following new Clause—

“Pre-departure accommodation for families

(1) Part 8 of the Immigration and Asylum Act 1999 (removal centres and detained persons) is amended as follows.

(2) In section 147 (interpretation)—

(a) after the definition of “custodial functions” insert—

““detained children” means detained persons who are under the age of 18;”;

(b) after the definition of “escort monitor” insert—

““pre-departure accommodation” means a place used solely for the detention of detained children and their families for a period of—

(a) not more than 72 hours, or

(b) not more than seven days in cases where the longer period of detention is authorised personally by a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975);”;

(c) in the definition of “removal centre”, after “facility,” insert “pre-departure accommodation,”;

(d) in the definition of “short-term holding facility”, at the end insert—

“but which is not pre-departure accommodation.”

(3) In section 155 (custodial functions and discipline), in subsection (2), at the end insert “and in pre-departure accommodation”.

(4) After section 157 insert—

“157A Pre-departure accommodation

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(1) The following provisions of this Part apply to pre-departure accommodation as they apply to removal centres—

(a) section 149 (contracting out of certain removal centres);

(b) section 150 (contracting out functions at directly managed removal centres);

(c) section 151 (intervention by Secretary of State).

(2) In the application of those provisions to pre-departure accommodation—

(a) references to a removal centre contract are to be read as a contract made under section 149(1) for the provision or running of pre-departure accommodation;

(b) references to a contracted out removal centre are to be read as references to pre-departure accommodation in relation to which a contract under section 149(1) is in force;

(c) references to a directly managed removal centre are to be read as references to pre-departure accommodation in relation to which there is no contract under section 149(1) in force;

(d) references to removal centre rules are to be read as references to rules made under subsection (4).

(3) The Secretary of State may by regulations extend to pre-departure accommodation any other provision made by or under this Part in relation to removal centres.

(4) The Secretary of State may make rules for the regulation and management of pre-departure accommodation.”.”

Amendments 14 and 15 agreed.

Amendment 16

Moved by Baroness Hamwee

16: Before Clause 3, insert the following new Clause—

“Presumption of liberty

(1) In the event of an application for bail from detention, an immigration office or the First-tier Tribunal must release the detained person on bail unless the First-tier Tribunal is satisfied that there are substantial grounds for belief that if released the person would—

(a) fail to comply with one or more of the conditions of bail or of any recognisance or bond, or

(b) while on bail commit an offence which is punishable by imprisonment.

(2) In subsection (1), “detention” has the same meaning as in Schedules 2 and 3 to the Immigration Act 1971.”

Baroness Hamwee: In moving Amendment 16 I shall speak also to Amendments 20 and 21, and included in this group are Amendments 17, 18 and 19. The first of the amendments sets out a new clause headed, “Presumption of liberty”, which covers exactly what it says. I find the term “bail” quite difficult in this context, with its connotations of the criminal justice system. Detention—or imprisonment, to be blunt about it—should require a positive decision: the rebuttal of a presumption, if you like.

The amendment may read as if I am introducing a philosophical debate, which I suppose I am, but in a rather less high-minded way I am seeking to put into the legislation what is set out in chapter 55.1.1 of the Home Office manual, Enforcement Instructions and Guidance, which states:

“The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used”.

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I hope that the Minister will not argue that this is invariably followed because, like other noble Lords, I am sure, I have been given a number of examples of detention where it would be hard to argue that that is so. We are told that the UK detains people for longer than any other European country. As of July last year, 27 people had been detained for between 18 and 24 months, 11 for between 24 and 36 months and one person for up to 48 months. In December last year, some 220 people had been detained for more than six months. Many people are now detained in prisons where detention tends to go on for longer periods.

There are also a number of examples of inappropriate detention. Here I turn to my second amendment, which concerns the detention of people with mental illness. I say “inappropriate detention” as being what might be called a commensurate judicial criticism of their treatment and findings that the detention of people who are mentally ill is unlawful and breaches their Article 3 rights. I do not doubt that there will have been cases we do not know about which were settled before a full hearing, as happens a good deal in this area.

6.15 pm

Amendment 20 would remove the statutory provision in the 1971 Act which allows a tribunal to refuse to release on the grounds that the detainee is,

“suffering from mental disorder and continued detention is needed in his interests or for the protection of others”.

Detention can be continued solely because of mental illness. No doubt when the provision was designed it was about protection, but it now seems to assume a rather rosy view of the benefits of detention that is very far from the reality. While hindsight is a great thing, of course, I see no justification for keeping someone in detention on the grounds of their mental health where, were it not for mental illness, the applicant would be released. This is a matter which has been considered from time to time by the courts, and there is a framework for the detention of mentally ill people in the Mental Health Act 1983, where it is necessary in their interests or for the protection of others. This surely must apply to those who are under immigration control just as much as it does to other people. Detention, as I have indicated, does not provide the therapeutic environment that the drafters of the provision presumably envisaged.

One learns so much about new subjects when one starts on a Bill. There is in addition a lacuna in the legislation. Currently there is no power to make a transfer direction using Section 48 of the 1983 Act for immigration detainees held under the UK Borders Act 2007. The power compulsorily to admit such detainees to hospital exists only under Sections 2 or 3 of the 1983 Act. There is a power under Section 48 of that Act to transfer people detained under immigration powers other than Section 36 of the UK Borders Act 2007. The power arises where there is an urgent need for treatment. The lacuna which I have mentioned in Section 48 of the 1983 Act has been raised with the border agency by various NGOs, and the agency’s position is that in its view the lacuna, which it admits to and acknowledges, cannot be fixed quickly as it would require primary legislation. Here we have primary

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legislation and I hope that the Minister will consider addressing the matter as we have the opportunity to do so.

Amendment 21 would retain the status quo with regard to the Tribunal Procedure Rules, securing that where the First-tier Tribunal has decided not to release a person on bail, the decision is made during the 28-day period; in other words, to maintain the status quo unless there has been a material change in the circumstances, and it is about that that I would like to ask the Minister some questions. The decision would be taken under the new provision without a hearing. Does that mean that there would be a consideration of the issue on the papers, so that “without a hearing” does not mean that there would be no consideration? I think that is the position but I should like to hear it from the Dispatch Box.

What is a “material change in circumstances”? Does it mean that there is no new evidence, which I understand is the current guidance? I also understand that the Tribunal Procedure Committee does not find it a problem in being able to exercise discretion, although it would be wrong of me to try to put words into its mouth. So what is a “material change in circumstances” and how is it dealt with in this situation?

Finally, with regard to the efficiency of the provision, we are told—I have no doubt that we shall also be told on other points later in this Bill—that an application for judicial review to the High Court is not excluded. That would be more complicated and costly. Is it really the way to go about things, given that the Government are seeking to reduce the use of judicial review, which has grown enormously over the years?

There are other amendments in this group but I shall not attempt to deal with any of them now—it would be impertinent. I beg to move.

Baroness Smith of Basildon (Lab): My Lords, although there are other speakers in this debate, I am rising early because I have a number of questions and I thought it would be helpful to give the noble Lord time to seek inspiration to respond to them.

As we have heard, Clause 3 amends the Immigration Act 1971 to ensure that in certain circumstances, that is, where removal is scheduled for the next 14 days, the Home Secretary must consent before a person is released on bail. It also amends the tribunal procedural rules to prevent repeat bail applications in the absence of a material change in circumstances, as we heard from the noble Baroness, Lady Hamwee. Our Amendment 18 is very specific. It specifies:

“In deciding whether to give consent to bail, the Home Secretary will consider whether the applicant is pregnant”.

Matters have not been very clear so this is a probing amendment. We chose the issue of pregnancy but we could have chosen anything else. The reason for tabling this amendment is more general. We are seeking clarification as to when the Home Secretary will approve bail, and what additional considerations will be taken into account.

Reading the clause and reading the debates that took place in the other place, it seems that there is a lack of clarity about what is intended by this clause. We understand that shortly before a person is due to

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be removed, there is a higher risk of absconding, and that it is right that in those circumstances bail should not be granted when the risk of absconding is high, unless—as the Government state at present and in the Bill—there are exceptional circumstances. The government statement of intent says:

“If the immigration judge considers that there are exceptional circumstances that mean an individual should be granted bail, despite removal being imminent, the Secretary of State will give serious consideration to release”.

Then it cites possible examples, including persons who are recently bereaved or have complex medical requirements.

It would be interesting to know what other circumstances the Government envisage here and to hear other examples of issues that should be considered by the Secretary of State when bail is being granted. We have proposed that one of them is being pregnant but I assume that the Government have other issues in mind. We have heard about mental health examples. That is one that came to mind, as well as primary care givers for young children or where somebody is dying. I appreciate that the pregnancy one is a narrow example. I am trying to understand how the government proposal works in practice and whether it will be effective or make any difference at all. For example, I should have thought that the risk of somebody absconding is something that the tribunal would take into account at the moment, as with bereavement and complex medical needs. What additional factors would then be taken into account by the Secretary of State that are not currently taken into account by the tribunal? If there are matters that should be taken into account by the tribunal but are currently ignored, should not the tribunal rules or the guidance be amended?

Under the Bill, the final decision would rest with the Secretary of State, so it is important to understand how and according to what factors and processes she—or perhaps in future, he—will make her decision. I found the debate in the other place in Committee quite helpful. The Minister there, when asked on the above point what other considerations would the Secretary of State take into account, said:

“The Secretary of State will consider the same factors as a tribunal, but she has ultimate responsibility for enforcing immigration action”.—[Official Report,Commons, Immigration Bill Committee, 5/11/13; col. 165.]

If no new factors are to be considered, why not leave the decision with the tribunal? It would be helpful to hear and understand the evidence showing that this measure is necessary, and showing how it would make a difference. Will the Home Secretary re-examine the evidence put before the tribunal, or will she exercise her power on other grounds even though that is not what the Minister, Norman Baker, said in the other place? It would also be helpful to understand the cost implications of any challenge to the Secretary of State’s decision. Again, the Government’s statement of intent says:

“Legality of detention will still be challengeable by way of judicial review or habeas corpus applications”.

However, given that the Secretary of State will exercise the power in this clause only when the immigration judge has said that there are exceptional circumstances that mean that an individual should be granted bail, if

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there is no clarity about the grounds on which the Home Secretary is making her decision, does that make a legal challenge more likely?

Further, given that a case of unlawful detention, if it were brought, would be heard in the High Court, is there not a danger of it becoming more expensive and more time-consuming, and causing more delays and imposing more costs to the taxpayer, than the fairly simple decision of whether to grant bail? The Government say that the current system costs money. That is one of the reasons for introducing the new measure. What consideration has been given to the possible costs of challenges under this system? My colleague Helen Jones asked this point in the Commons and the Minister, Norman Baker, did not really address the point, so it would be helpful if the Minister was able to respond today.

Leaving costs aside, what about those who cannot afford a judicial review claim? What will their recourse be if they believe a decision is wrong and the Home Secretary has overruled the immigration judge? Let us be clear: this matter goes to the Home Secretary to refuse an application for bail only if the immigration judge has said that there are exceptional circumstances in which bail should be granted. Therefore, I am still somewhat confused about whether the Home Secretary will take into account matters other than those considered by the tribunal and the immigration judge. Norman Baker says that she will not, but that raises the question about the evidence base for this change. From the response of Norman Baker in Committee in the other place, it appears that the Home Secretary could be making a political decision in overruling the immigration judge. There must be a concern that the decision-making process is therefore open to greater and more expensive legal challenge.

In trying to understand the clause, it would be helpful to clarify whether, when a bail applicant is told of a bail decision, they will be told whether the decision has been taken by an immigration judge or the Home Secretary. If they are not granted bail, will they know that in some circumstances that may have been a decision where the Home Secretary has overruled the immigration judge who has said that there are exceptional circumstances? Will the applicant know what the process is in that case? If, as Norman Baker has said, no new factors will be taken into account, the question will be whether the decision has been taken on the facts, or whether it has been taken on political grounds. Unless it is absolutely clear what criteria the Home Secretary has used, surely that could make it far more likely that those decisions will be legally challenged.

I am genuinely trying to fully understand why the Government are bringing forward the change. What difference will it make, if there is no difference in the criteria looked at, and what are the cost implications of what could be an increase in the number of judicial reviews? I have read the debate in the other place and the material that the Minister and the Government have provided, and these questions remain outstanding. It would be helpful if the Minister could provide some clarity on these points and the reason for this clause.

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6.30 pm

Lord Roberts of Llandudno: My Lords, I will speak to Amendments 17 and 19 about bail. The provisions in our amendments are modelled on Part 3 of the Immigration and Asylum Act 1999, which was never brought into force and repealed in 2002. We ask, first, what has changed since 1999 that the sense of gravity about the shortcomings of the system of immigration detention and the urgency of addressing them has gone so entirely? One thing is certain: they have not gone because things have got better. Things have got very much worse.

In these amendments, we propose automatic bail hearings after eight and 36 days. How long have we debated the need to provide for an effective automatic review of detention? Detention under Immigration Act powers is a matter, I am told, mainly of administrative convenience and, in the UK, is not subject to a maximum period. A detained person is not brought before a tribunal judge or a court unless he or she instigates this. The lack of any maximum period of detention, combined with the lack of regular and independent review of detention, may render this detention arbitrary. Amnesty International is one of those organisations that has powerfully advocated that every immigration detention decision should be automatically checked to see whether it is lawful, necessary and appropriate. Why should we do this? Because, at present, there are greater safeguards for criminal subjects than there are for immigration detainees and because people sometimes need reminding that those detained for immigration purposes are not criminals and have not committed any crime.

The group Bail for Immigration Detainees found that 23% of detainees surveyed had never had a solicitor while in detention. Of those who had, only one-third had ever had an application for release on bail made for them during their time in detention. When this is considered alongside the general length of immigration detention in the UK, and the possible indefinite nature of that detention, adequate bail provision is an absolute necessity. Automatic hearings would benefit all detainees but especially vulnerable and isolated detainees. Very recently, we heard the case here of Isa Muazu. I can speak to his pain as I went to see him. He was one among many who should not have been locked up with all the problems he had.

We must protect the rights of vulnerable groups such as the mentally ill, torture victims, victims of sexual violence and victims of trafficking. Currently, almost one in four detainees is held in the prison estate, where they face many practical and procedural barriers to accessing immigration advice and the immigration tribunals where they can try to obtain bail. They are not able to instigate applications in any meaningful way—it is a dreadful situation. Will, finally, this Bill include a provision that will remedy such a sorry situation?

Lord Harries of Pentregarth (CB): I, too, will speak to Amendment 17. When I was the Bishop of Oxford, I had something to do with Campsfield House. What really concerned us at that time was the length of time for which people were held in detention. It is not at all encouraging that, some years later, this is still a major

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concern. As we know, around 220 people last year were held in detention for more than six months, without even taking into account the 936 who are held in prison. Why is this country so different from the rest of Europe in having no limit on the length of time that people can spend in detention? It is obvious, from so many of the facts and figures that are put before us, that a time limit helps you to achieve your purpose of removing people who have no legal right to be in the country. France, for example, has a time limit of 45 days for people in detention and it enforces 31% more removals of irregular immigrants and asylum seekers than the United Kingdom. We all know that if you do not have a deadline, things can slip and slip. Those of us who write are grateful that there is always a deadline, otherwise we would never get it done. If that applies with simple things such as writing, how much more are things liable to slip when trying to deal with a person’s case?

To reiterate the point, it has also been shown that the longer people are held in detention, the less chance they will be removed. Only 37% of those who were detained for more than a year were eventually removed, compared with 57% of those who were there for less than 28 days. Again, so many facts show that having a limit, such as 28 days, allows you to achieve what you want far more efficiently. That is, of course, without even taking into account the expense. It has been estimated that this amendment would save something like £87 million if it were accepted, because it is very expensive to keep people in detention.

There are alternatives. In Australia, for example, where there is an alternative based on case management, there is a compliance rate of something like 93%, of which 60% are voluntary removals. This is even without taking into account the human factor and the distress and extra suffering caused by allowing people to be detained. From the point of view of financial efficiency, and every other consideration, it is surely right that other alternatives should be looked at much more seriously than they are at the moment.

Lord Hope of Craighead: My Lords, I support these amendments. I should explain that at an earlier stage in my judicial career it was necessary for me to visit prisons so that I could see the conditions under which people were being held and understand the regimes that were being operated in these establishments. I recall very clearly visiting one of these places, where I came across people of the kind we are discussing this evening—detainees awaiting decisions about their immigration status. It struck me at the time that it was quite extraordinary to meet these individuals—who, after all, had either committed no offence or, if they had, had served their sentences—being held in prison conditions along with other prisoners. It is fair to say that a separate wing was set aside for them; nevertheless, the conditions in which they were being held were prison conditions. The noble Lord, Lord Roberts, said that it was a dreadful situation. I must say that I found it quite offensive to meet these people there when I spoke to them and discovered why they were there and what their problems were.

It seems that there is a great deal of force in Amendment 16, tabled by the noble Baroness, about

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the presumption of liberty, which takes us right back to the beginning of the exercise we are discussing. The points that are built into that amendment are those that would occur to any judge considering an application for bail in this situation. Most judges would, I think, see that the question to ask oneself is whether the individual would fail to comply with conditions or was likely to commit an offence. The value of having that set out in the Bill is that it will achieve some uniform standard throughout the system. The difficulty is that you have immigration officers and First-tier Tribunals up and down the country, and there will not be the same attention, uniformity of practice, application of presumptions and so on that one gets if the matter is set out in terms in the Bill. I would have thought that the matter was sufficiently important to do that, so that it would carry itself through the various steps that have been discussed by other noble Lords, with everybody knowing where they stand.

We are dealing here with people, many of whom will be held in prison conditions, who have either not committed an offence, or who have served their sentence and are being detained because time needs to go by for decisions about their status to be taken—that is all. It seems right that they should be given the benefit of the presumption of liberty.

Baroness Lister of Burtersett: My Lords, I cannot claim first-hand experience like other noble Lords, but I went to a meeting chaired by the noble Lord, Lord Roberts of Llandudno, where we heard from organisations that work with immigrants in detention. I thought that a powerful case was made—and has been made by other noble Lords—for the principles behind Amendments 16 and 17 in particular.

I will quote from a recent report by the Bingham Centre for the Rule of Law that emphasised as its cardinal principle the assumption of liberty. It stated another principle:

“The duration of detention must be within a prescribed applicable maximum duration, only invoked where justified”.

The report quotes a number of statements from the United Nations, in particular UNHCR detention guidelines that state:

“To guard against arbitrariness, maximum periods of detention should be set in national legislation. Without maximum periods, detention can become prolonged, and in some cases indefinite”.

It also quotes from a UNHCR global round table on alternatives to detention for asylum seekers, refugees, migrants and stateless persons, which states:

“Maximum time limits on ... administrative immigration detention in national legislation are an important step to avoiding prolonged or indefinite detention. Lack of knowledge about the end date of detention is seen as one of the most stressful aspects of immigration detention, in particular for stateless persons and migrants who cannot be removed for legal or practical reasons”.

I am sure that I do not have remind noble Lords that we will probably have rather more people in that position as a result of Clause 60 of the Bill.

Let us put ourselves in the shoes of people who are detained. What would it feel like not knowing how long you are going to be detained? I am not surprised that it is one of the most stressful things. I think that not having that knowledge could drive people over the edge, particularly when I hear about the conditions in which some people are being kept.

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The UN Committee Against Torture urged the UK to introduce,

“a limit for immigration detention and take all necessary steps to prevent cases of de facto indefinite detention”.

We have already heard from other noble Lords that we are out of step with many other European countries and that there is no justification for it, not only on grounds of humanity but also of effectiveness. I hope that the Minister will listen to what is being said across the House and take it away to consider a possible amendment on Report.

Lord Ramsbotham: My Lords, I will speak briefly on Amendments 17 and 19 in my name and that of the noble Lord, Lord Roberts. I agree with every word that my noble and right reverend friend Lord Harries said. Following my inspection of Campsfield after a riot there, I raised for the first time my concern about one group of people who were being held in prisons: they were to be deported at the end of their sentence.

We have been talking about enforced removals and people sentenced to be deported are enforced removals. It seems to be absolute nonsense not to process that deportation while those people are serving their prison sentences, so that at the end of their sentence they go straight to the airport and out. Instead, what happens at the moment is that they go from prison into a detention centre and then the deportation process starts. That is causing an intense clogging in the detention centres. Having disaffected prisoners awaiting deportation in a detention centre also causes unrest in the centre, which was the case at Campsfield.

6.45 pm

I absolutely agree with my noble and right reverend friend that there must be a time limit, not least in order to give a deadline by which time officials must complete the case. We talked earlier today about case owners and the need to have direction for them. What further direction could they need other than a time by which they have to complete the case? With nothing there, it is small wonder that on 11 September 2013, in addition to the 220 people that my noble and right reverend friend mentioned who had been there for six months or more, 27 had been there for 18 to 24 months, 11 for 24 to 36 months and one from 36 to 48 months. For heaven’s sake, four years without anything happening is totally unacceptable anywhere, let alone in this country. We really should be ashamed of those figures.

Taking from Amendment 16 the new clause on the presumption of liberty, I recommend that there is a great deal that could be done to tighten up the way in which this is legislated and conducted. These two amendments, designed to put time limits on procedures that must be carried through, would play a great part in achieving that.

Lord Judd: My Lords, last Thursday in the Moses Room we were debating terrorism. In the context of that debate some of us were raising the issues of immigration. This is a specific and good example of the danger that some of us foresee. Forgive me if I repeat a bit of what I said on Thursday. Extremists

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operate best in a climate of ambivalence, one in which a significant number of people—particularly young people but not only young people—are pursued by doubt. They may not like what the extremists do. They may actually abhor the actions themselves, but they sometimes wonder whether those extremists are perhaps acting on their side.

This does not create a climate in which everyone is busting a gut to co-operate with the security services. There are anxieties and doubts. Ruthless recruiters for extremism play on that kind of ambivalence. I can think of no area such as the one that we are debating that illustrates better the point that I am making. If it can be said that we have double standards of justice and that we do not live up to the ideals that we like to proclaim to the world as essential, and if it seems that freedom is not a complete but a relative principle—something that you like to apply when you can and when it is inconvenient you do not apply it—sometimes very intelligent people begin to raise queries. It does not take many people to be in such a state of anxiety and doubt for the extremists to make more recruits. It takes only a very few people in the age in which we live to do terrible things in the context of terrorist action. If we are going to win the cause of wooing people away from terrorism and extremism, it is a battle for hearts and minds. That kernel of toughness should be in all that we do. The battle for hearts and minds means that we should live up to the principles we proclaim and make them transparently clear in all the practice of policy throughout the penal system and, particularly because of the complications of international terrorism, in the sphere of migration.

I hope that when the Government consider their response to these issues they do some connective thinking and ensure that at the very time when we are desperately anxious about, for example, the implications of Syria in terms of accentuated terrorist activity, we are doing nothing that inadvertently even marginally plays into the hands of extremists.

Baroness Williams of Crosby: My Lords, I very much agree with what has just been said by the noble Lord, Lord Judd, and what was said by the noble and right reverend Lord, Lord Harries of Pentregarth.

I will be very quick because the debate is going on. It is worth remembering that in 2008 the European Commission produced a directive which said that the maximum period for detention was normally six months and that in exceptional cases 12 months could be added to that, with an absolute limit of 18 months in every single case. It is not to the great credit of our dear country that the United Kingdom and the Republic of Ireland both decided to opt out of that directive. Consequently, we, as one of the world’s oldest and most stable democracies, have to our discredit the shame of having people detained in prison conditions month after month, as the noble and right reverend Lord, Lord Harries, pointed out. We should say that the time is well over when we can continue to try to justify this kind of thing.

We could have a limited period; for example, the Federal Republic of Germany has a maximum period of two months as normal practice. We have already heard that France has 45 days. Spain has a serious

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terrorism problem—as serious as ours, possibly more so—yet retains two months as its normal limit. It is beyond my understanding and belief how this country has continued to leave this issue without seriously addressing it and saying that the time has come for us to opt back in to the directive and ensure that we never exceed 18 months for any case at all.

Lord Taylor of Holbeach: My Lords, the contribution of my noble friend Lady Williams of Crosby is probably a good place to start. The deprivation of liberty is a very serious matter so I will first set out the safeguards that are currently in place to ensure that detention powers are used appropriately. Although there is a power to detain, the Home Office has a policy presumption in favour of temporary admission or release. Wherever possible, alternatives to detention are used. Detention must be used sparingly and for the shortest period necessary. I hope that that reassures the noble and learned Lord, Lord Hope of Craighead, and my noble friends Lady Hamwee and Lady Williams.

The noble and right reverend Lord, Lord Harries, asked why we do not have a time limit on detention. That was echoed by a number of subsequent speakers. The current system is derived from case law, specifically a case called Hardial Singh. The system works well, is understood by the tribunal and other judges, and has been authoritatively restated by the Supreme Court in a case called Lumba. The system affords appropriate protections to individuals and flexibility to the Government. It is not indefinite detention: every case is carefully and regularly considered to see whether detention continues to remain appropriate. Regular reviews of detention are required to be undertaken to ensure that detention remains lawful and proportionate, and individuals can apply for bail and challenge the legality of detention by judicial review, as has been stated.

I reassure noble Lords that these safeguards are also built into the provision already included in the Bill. Clause 3 will not prevent an individual from applying for bail immediately after being placed in immigration detention. Likewise, an individual can challenge the legality of their detention at any point by way of judicial review, and legal aid will remain in place for this. The existing internal formal reviews of detention will also remain. I reassure noble Lords that detainees will have full access to legal advice.

My noble friend Lady Hamwee wanted to know more about the requirement to decide on the papers. She asked what qualified as a “material change in circumstances”. It will vary on a case-to-case basis and the tribunal will decide whether that test is met. An example could be a significant deterioration in someone’s health over a short period. The provision will not apply where there are genuine reasons to seek a further hearing because there are materially different grounds to consider. If the tribunal concludes on the papers that there are material changes that need to be considered, it will proceed to a hearing and can grant bail if it thinks it right to do so.

Noble Lords should also be aware that the Tribunal Procedure Committee has consulted on placing a time limit on repeat bail applications. The committee may have proposed implementing the requirement through

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the Tribunal Rules rather than in primary legislation, as here, but it is clear that repeat applications on the same facts are a concern to the Tribunal Procedure Committee.

I want to highlight to noble Lords the context of the requirement for the Secretary of State to consent to the grant of bail where removal is 14 days or fewer away. Rather than introducing a new power, the Government are clarifying existing legislation to block immigration bail granted by the tribunal, defining an existing power. Under paragraph 30 of Schedule 2 to the Immigration Act 1971, the Secretary of State can prevent bail being granted while someone is pursuing their appeal at any stage,

“if directions for the removal of the appellant from the UK are for the time being in force or the power to give such directions is for the time being exercisable”.

The Government consider that the proposal in the Bill requiring the Secretary of State’s consent to release on bail 14 days prior to removal is a proportionate approach. As I have explained, this proposal actually represents a reduction in the powers available to prevent the grant of bail. In that context, I hope that noble Lords will not feel unduly concerned about this condition.

My noble friend Lady Hamwee asked whether exercising this veto would not just cause people to seek judicial review, thereby delaying removal and creating an expense. A judicial review would not have to be pursued in-country. Removal would therefore not need to be postponed. There are obvious savings from proceeding with removal and not allowing anyone to remain in the country either in detention or on bail with conditions.

We should try to get some of these figures in proportion. Admittedly some individuals have been detained for considerable periods of time but 62% have been in detention for fewer than 29 days, and the total number of people who have been in detention for more than a year is 199. In terms of proportion, this system is therefore dealing effectively with the vast majority of detainees.

7 pm

The new clause proposed in Amendment 16 would introduce a statutory presumption of liberty which would direct a judge to release those held in immigration detention when a bail application had been made unless the judge had “substantial” grounds for believing that an applicant would fail to comply with one or more of their bail conditions or while on bail commit an offence that is punishable by imprisonment. I understand why noble Lords seek to include this safeguard. However, the Government consider that it is not necessary to legislate because their own published policy is for a presumption of liberty in immigration detention, that alternatives to detention should be used wherever possible, and that a person’s circumstances, including their mental health, are taken into account during the detention and removal process. There is no need to place the presumption of liberty on the statute book and bind judges in the way that the amendment would.

The proposed new clause would set the threshold for displacing the presumption in favour of liberty far too high. It would mean that bail should be granted even when a judge had substantial reasons for believing

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that the person concerned would offend on release, provided the offence being contemplated would not lead to a custodial sentence. It would mean that a perfectly lawful detention might have to be terminated even if the judge believed that the person concerned would go on to commit further criminal offences. I hope that noble Lords will agree that this cannot be right.

Amendment 17 would introduce mandatory release of any individual in immigration detention after 28 days of detention no matter how imminent removal was or the abscond risk that they posed. As I have said, the Government have a presumption of liberty. A majority of people leaving detention in 2013, 62%, had been in detention for fewer than 29 days. During the same period, less than 1% of individuals in the immigration detention estate had been detained for a year or more.

The immigration detention power is used proportionately and safeguards are in place. However, I am sure noble Lords will agree with me that detention under immigration powers is an important tool to ensure compliance from those who may otherwise abscond pending removal. Requiring release 28 days after initial detention is inflexible and would have unintended consequences. For example, if an illegal entrant did not have a passport and refused to co-operate with the redocumentation process, the Secretary of State would be required to release despite the fact that the reason that removal was not achieved was the non-compliance of the foreign national. The amendment may have the unintended consequence of causing an increase in non-compliance with the removal process.

Amendment 18 would include a new subsection in the provision whereby a person will not be released on bail without the consent of the Secretary of State if there are removal directions in place for within 14 days of the date of the decision to grant bail. The new subsection makes provision for the Secretary of State to consider whether the applicant was pregnant. The noble Baroness, Lady Smith, used this as an example in a number of questions that she went on subsequently to raise. I understand why noble Lords seek to include this safeguard. However, the Government consider that it is not necessary to legislate for it, because a person’s circumstances, including pregnancy and health, are taken into account during the detention and removal process, including when a bail application is received. I can assure the Committee that where a woman reaches the later stages of pregnancy and cannot travel to the country of return, imminent removal would not be considered and detention would normally not be appropriate, so the provision would not be relevant. I hope that this reassures the noble Baroness and other noble Lords on this point.

Baroness Smith of Basildon: I am grateful to the Minister for addressing the amendment, but he will know that that was not the substance of the questions that I asked. It was used as an example to raise two issues, the first being the criteria that the Home Secretary would use and the second, significantly, whether an individual who had had bail denied would be told

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whether the Secretary of State had overruled the tribunal judge. The amendment was just probing. If the Minister could address the questions that I asked, I would be grateful.

Lord Taylor of Holbeach: I was about to go on to develop the theme based on the noble Baroness’s example. I cannot give an exhaustive list of the circumstances where the Secretary of State might consider it right to intervene, but examples which we have already given in the statement of intent are good ones. Mental health and family bereavement are examples of such circumstances which I hope the noble Baroness will understand. We expect the power to be exercised in a relatively small number of cases.

Baroness Smith of Basildon: I think the Minister has missed the point that I made. I was probing not what the exact examples would be but the criteria that the Secretary of State would use given that she will have the ability to overturn a decision by a tribunal judge. In the other place, Norman Baker said that there were no other grounds that she would look at, yet that begs the question about it being a political decision. What grounds will the Secretary of State use if she decides to overturn the decision of a tribunal judge?

Lord Taylor of Holbeach: I hope that the examples I have given show that these are not trifling matters. Deterioration in a person’s mental health or a family bereavement are changes in the circumstances of the applicant which would mean that the Secretary of State was able to make an immediate decision without it having to go back to the tribunal for a bail hearing. This is the Secretary of State using her executive power to ensure that in circumstances where people are significantly disadvantaged by a change in their conditions the matter can be resolved. If the noble Baroness wishes me to elaborate further, I shall do my best to explain it to her in writing so that she has something more positive than just a few scattered notes from which I am addressing her.

Amendment 19 would have the effect of creating many unnecessary bail hearings in the tribunal, increasing the inefficiency and complexity of the system. An individual can still apply for immigration bail at any time or challenge the legality of their detention by way of judicial review. A significant number of individuals are released on bail by the Home Office without the need for a bail hearing—we have just heard examples of why that is so—and so to mandate a requirement in primary legislation to require bail hearings to take place will unnecessarily increase the number of hearings and will slow the system and add complexity.

Amendments 20 and 21 would make two changes. First, they would limit judicial discretion to maintain detention of those who are suffering from mental health concerns or of those who are under 17 where the judge considers immigration detention remains appropriate for their own or, in the case of those with mental health concerns, others’ protection. Secondly, the amendments would remove the requirement for repeat applications made within 28 days of a previous application where there has not been a material change

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in circumstances, made under the bail provisions in Schedule 2 to the Immigration Act 1971, to be decided without a hearing.

Published guidance provides that certain categories of people are considered unsuitable for detention in the first place unless there are very exceptional circumstances in play. Unaccompanied young people under the age of 18 and those suffering from serious mental illness which cannot be satisfactorily managed within detention are specifically listed as case types that should be detained only in very exceptional circumstances. However, there will always be cases with very exceptional circumstances which mean that detention is appropriate. An example may be when it is necessary for detention to continue while an individual is being or waiting to be assessed or awaiting transfer under the Mental Health Act. We may also need to hold unaccompanied children where, for example, it is in the public interest because of a risk of reoffending or a risk to national security. They may also be held for a very short period either on arrival pending collection by social services or when we are trying to remove them. In any decision to hold an unaccompanied child, we will consider our duty to safeguard and protect the welfare of children.

The noble Lords’ amendment would prevent a judge in a bail hearing from considering if very exceptional circumstances are in play and would require judges to release individuals even where there is the real possibility that this will put them into a more vulnerable situation or where they clearly pose a threat to themselves or others. Amendment 21 seeks to remove the requirement for the Tribunal Procedure Committee to change the rules to require repeat applications to be disposed of without a hearing, thus undermining the Government’s proposals. It would also allow the current inefficient bail processes to remain in place.

However, I have listened to the points made by noble Lords in this debate. It has been a good debate about a very important aspect of the provisions of the Bill. I will consider those points before we return on Report. In the mean time, I ask noble Lords not to press their amendments.

Baroness Hamwee: My Lords, other noble Lords have spoken very effectively about the impact of detention. I will just mention again the first of the amendments in this group, which is on the presumption of liberty. As we heard, a presumption of liberty is already something that judges would consider almost automatically as a matter of instinct. Of course, the drafting of the amendment could be tweaked but we are only at Committee stage. However, subject to reading Hansard and the Minister’s confirmation that the Government will consider the points before the next stage—I know he made no commitment and I would expect no less of him than that he would consider what has been said—I think that a presumption of liberty is so important that is should be in statute. Guidance can be changed. I would like to see the matter put absolutely beyond doubt. I appreciate that the amendment might have elephant traps in it—amateur amendments sometimes do. Of course, at this moment, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

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Clause 3: Immigration bail: repeat applications and effect of removal directions

Amendments 17 to 21 not moved.

Clause 3 agreed.

Clause 4 agreed.

Clause 5: Identifying persons liable to detention

Debate on whether Clause 5 should stand part of the Bill.

Lord Rosser: Clause 5 amends Schedule 2 to the Immigration Act 1971 to include persons who are “liable to be detained” as being persons in respect of whom steps can be taken for the purposes of identification, such as fingerprinting and photographing. We put down this question on whether the clause should stand part and Amendments 22 and 25 to raise some questions about how this clause will be implemented and why it is considered necessary, not because we are opposed to the use of biometric information or its provision by various people.

It would be helpful if the Minister could indicate what individuals, circumstances or situations would be covered by the words “liable to be detained” that are not currently covered by the existing legislation, including the Immigration Act 1971. It is perfectly reasonable to verify the identity of someone who is detained. The law provides for that to enable us to address the issue of, for example, dealing with people suspected of being in this country illegally. In that situation, the immigration officer can, for example, check the person’s fingerprints either with that person’s consent or following their arrest.

7.15 pm

When this Bill was considered in the other place, the Minister there said that the problem for an immigration officer was that when faced with somebody whom they did not want to arrest but whose information they wanted to check—either to ascertain that they were that person or to check the information suggesting that they might be an illegal immigrant—that officer would have either to let the person go if they did not consent or to arrest them. The Minister went on to say that the objective was to ensure that the immigration officer would be able to check the information and fingerprints to ascertain whether the person was who they thought or suspected they were. That, the Minister said, was the current gap in the legislation.

Frankly, I am still not sure what the gap is. If immigration officers have doubts about the status and identity of someone, they can ask them to have their fingerprints taken. If that person refuses, can they not be arrested and detained so that their fingerprints can be taken? Does that not also apply in the scenario referred to by the Minister in the Commons debate to which I just referred? Who are the people who immigration officers would not want to arrest if they declined to allow their fingerprints to be taken? Presumably the immigration officers would not just let them go, or is that what the Government say would happen? In which

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case, who or what comprise this select band and how does Clause 5 enable their fingerprints to be taken if they refuse?

It would also be helpful if the Minister could indicate what steps would be taken to ensure that Clause 5 and its definition “liable to be detained” will not be abused so that people are deemed to come under the terms of the clause who neither the Government nor Parliament intended. What is the definition of “liable to be detained”? How many cases have there been in the last 12 months of people who would have had their fingerprints taken if the “liable to be detained” provision in the Bill had been in force but who could not have their fingerprints taken under the current wording in the Immigration Act 1971? In other words, how significant a problem is this, even though I am not entirely sure what the problem is, and what is the evidence to support the change in legislation that the Government seek to introduce? “Liable to be detained” could potentially include a very wide range of people, including those who are perfectly innocent. The Government need to say what steps will be taken to ensure that this clause is used in only a very limited number of circumstances that will be clearly defined and set out, bearing in mind that the Minister in the Commons said that the gap in legislation was very small.

I turn to Amendments 22 and 25. Amendment 22 relates to Clause 6 and would provide for a photograph to be returned after three years. It is a probing amendment to question the length of time that a photograph can be retained. Clause 6 enables regulations to be made to require those applying to become British citizens to provide biometric information as part of their application. The Government’s fact sheet states:

“If British Citizenship is granted, the biometric record will be deleted”.

Nevertheless, new subsection (1ZD) provides for the person’s photograph to be retained even after they become a citizen and until that person acquires a passport. The Government’s fact sheet further states:

“This will ensure that biometric information is retained where it is likely to be of continued use for immigration or nationality purposes”.

As I said, our amendment is a probing amendment. It would provide that a photograph could not be retained longer than three years. The intention is to give the Government the opportunity to clarify their intention in retaining information for what appears to be an indefinite amount of time. When this was discussed in the Commons, the Minister concerned did not provide an answer. What happens, for example, when someone does not apply for a passport? The Government say, in their statement of intent, that 90% of those who apply for citizenship do, but what about the other 10%? I hope that the Minister when he replies will be able to clarify what the Government’s intentions are and why they have produced this new subsection (1ZD), which does not appear to provide any time limit for the retention of the photograph.

Amendment 25 relates to Clause 10, which provides a single regulation-making power to ensure consistency

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in how biometric information is used and retained by the Secretary of State. However, subsection (3) of the new section states that,

“the regulations may include provision permitting biometric information retained by virtue of subsection (2) also to be used … for such other purposes … as the regulations may specify”.

That is an all-embracing power. What kind of circumstances would this all-embracing subsection cover? Has it been put in with any “such other purposes” in mind? If so, what? Or has it just been included because it would avoid having to revise the regulations if another currently unknown “other purpose” arose? I hope that the Minister will be able to clarify the Government’s intentions on these issues.

Baroness Hamwee: My Lords, when I looked at Clause 5—“detained” or “liable to be detained”—the question that arose in my mind was, “How do you know someone’s liable to be detained unless all the processes including any appeal rights have actually been pursued?”. I have two amendments in this group. Amendment 23 would leave out the second part of the new subsection (1A) introduced by Clause 8. The provision in Clause 8 is that biometric information means,

“information about external characteristics (including in particular … )”.

Paragraph (b) then refers to,

“any other information about a person’s physical characteristics”.

Well, what could those be if they are not the external physical characteristics in subsection (1A)(a)? I cannot imagine that they are internal physical characteristics. I am quite confused about what subsection (1A)(b) might mean when read with subsection (1A)(a). That is quite apart from the fact that I have a rather natural and automatic dislike for not spelling out on the face of the Bill anything that could be spelled out.

Amendment 24 would take out of new Section 8(3)(c) introduced by Clause 10 the reference to “injury”. We are told in subsection (3) that the regulations may include provision to be used for certain purposes, of which paragraph (c) is,

“in connection with identifying persons who have died, or are suffering from illness or injury”.

I assume, and I hope the Minister can confirm this, that the reference to death or illness is because of public health considerations. Why then is it necessary to refer to injury? I would be interested to know what purpose this is to serve.

Earl Attlee: My Lords, Clause 5 amends paragraph 18 of Schedule 2 to the Immigration Act 1971 to include persons who are liable to be detained. This will allow immigration officers to check the fingerprints of persons they suspect to be illegal immigrants where there is a question about their identity. The existing power allows for fingerprints to be taken only from persons who have been detained under immigration powers.

The ability to establish an identity is an essential requirement for immigration officers when undertaking immigration enforcement operations. Unless identity is established it is not possible to remove or deport illegal immigrants. At present, where immigration officers

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encounter people whom they suspect to be illegal immigrants and have doubts about their identity, they can check the person’s fingerprints only with their consent or following the person’s arrest. In some instances this can lead to unnecessary arrests or result in illegal immigrants not being detected. In answer to the noble Lord, Lord Rosser, surely the Committee does not want innocent people going about their lawful business to be arrested. Secondly, if the suspect does not appear to understand English, how can they give informed consent to have their fingerprints taken?

This power is intended to reflect the conditions under which the police operate. Prior to the changes made to the Police and Criminal Evidence Act 1984 in 2005, the police also needed consent to check fingerprints where a person had not been arrested. The amendment has enabled the police to make fingerprint checks without the need to arrest individuals who are suspected of committing a criminal offence and whose identity might otherwise not be readily ascertained or verified.

This clause will bring immigration officers’ administrative enforcement powers more into line with police powers. The power to check fingerprints will be limited to the purpose of verifying identity as part of an immigration enforcement investigation. The fingerprints will not be retained but rather immediately electronically checked against the immigration biometric database. If there is an existing record, this will confirm the person’s identity and potentially assist the immigration officer to ascertain the person’s immigration status. This will help avoid unnecessary arrests, allowing those legitimately in the UK to go about their business, while quickly identifying illegal immigrants.

I want to assure noble Lords that this power does not mean that immigration officers will be able to stop anyone they encounter. The person required to provide fingerprints for checking must be liable to detention under the immigration Acts. In practice this means that the immigration officer must have reasonable grounds for suspecting that they might be liable for removal from the UK. There will not be any blanket testing of people just because they look foreign. I hope that answers the question from my noble friend Baroness Hamwee about the term “liable to detention”. As I understand it, it is not a new term.

Clause 6 is intended to improve the levels of assurance about persons naturalising or registering as British citizens and to ensure that the identity of British citizens who apply for their first UK passport can be properly identified. Amendment 22 would weaken these proposals.

The power is intended to protect new British citizens from having their identity stolen by impostors by enabling a photograph submitted as part of a passport application to be checked against the new citizen’s record. If we destroy new citizens’ photographs before they obtain a passport, HM Passport Office would be less capable of confirming their identity. It would also expose HM Passport Office to fraudulent applications for British passports.

As observed by the noble Lord, Lord Rosser, over 90% of new British citizens make a passport application within one year, so very few new citizens will have their photograph retained for more than a year. I accept

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that this will result in a small minority of new British citizens who decide against applying for a British passport having their photograph retained for a longer period as a consequence of these provisions. However, retaining the photograph will be useful to them in protecting their identities. In particular, new British citizens who retain their other nationalities may opt to have a certificate of entitlement affixed to their non-British passport instead of obtaining a British passport.

This document is a right of abode vignette—passport sticker—that can be issued to, in addition to British citizens, certain other categories of Commonwealth citizens who have a right of abode if they have not ceased to be Commonwealth citizens. It contains a photograph of the holder, which needs to be checked against the photographs that the person may have previously submitted as part of an immigration or nationality application. Holders of valid certificates of entitlement are not allowed to hold a British passport at the same time.

7.30 pm

Other possible reasons for a new citizen not applying for a passport include the person not planning to travel outside the UK, or not wanting confirmation of their UK citizenship status through the naturalisation process. However, it may remain open to them to apply for a passport at some time in the future.

I turn to Amendment 23. Clause 8 is designed to standardise the definition of biometric information so that there is a consistent definition across the various immigration legislation provisions. It makes it clear that external features such as fingerprints, faces and features of the eye’s irises are forms of biometric information that can be taken from persons for immigration identification purposes.

The proposed amendment seeks to remove an order-making power to enable the Secretary of State to prescribe new types of biometric information. This would mean that the Secretary of State was not able to take advantage of new technologies that allowed for identifying information about a person to be taken from an external examination. However, the amendment as currently drafted does not work as there are further lines in the clause that the amendment would leave untouched that refer to the order-making power that the amendment seeks to remove.

I make it clear to the Committee that any such order to include a new biometric definition will require the authority of both Houses of Parliament before it can come into force. Furthermore, this provision specifically excludes DNA from being biometric information, either now or in the future. To do that would therefore require primary legislation. The order-making power will allow new types of biometric information to be included only where such information can be obtained from an external examination of the person. This will ensure that our powers to take biometric information from people for immigration identification purposes do not result in intrusive checks being carried out.

An example of the sort of information that could be prescribed by order in future would be information obtained from an examination of the sub-dermal layers

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of a person’s skin, or vein scans. Although this technology has not yet been adopted by the Home Office, we recognise its potential to be very useful when seeking to identify persons whose fingerprints cannot be easily recorded, such as elderly people and those with damaged fingerprints.

Amendments 24 and 25 to Clause 10 would reduce the flexibility of the Secretary of State to use the biometric information that she holds to protect the public. The clause provides a single regulation-making power to ensure consistency in the way that biometric information is used and retained by the Secretary of State. Clause 10 refines Section 8 of the UK Borders Act 2007, which was brought in by the previous Government, by including additional safeguards about how the biometric information held by the Secretary of State may be retained and used.

Amendment 24 would mean that the Secretary of State could not use biometric information to identify an injured person. This clause replicates a provision that is contained in Regulation 9(f) of the Immigration (Biometric Registration) Regulations 2008, made in November 2008. It was introduced using Section 8(2)(f) of the UK Borders Act 2007, which allows the Secretary of State to put into regulations additional purposes for which biometric information might be used. This provision was introduced by the previous Government. We have placed that measure in the Bill because it covers an important purpose for which biometric information is currently used. The measure is intended not to deny people medical treatment but to identify them so that families may be contacted, and to help ascertain facts about their medical records. We would anticipate that biometrics will be used only when it is not possible to identify the person through other means.

Amendment 25 would remove the existing flexibility that the Secretary of State has to prescribe in regulations new circumstances in relation to which biometric information could be used. It would mean that the Secretary of State could not readily respond to new situations that might not have been foreseen. This power is not new but replicates a provision already contained in Section 8 of the UK Borders Act, which has proved useful. As I mentioned, the Secretary of State has already made regulations to allow the use of biometric information that she holds in connection with identifying victims of an event or a situation that has caused loss of human life, or human illness or injury.

In addition, the Secretary of State has also made regulations for the purpose of ascertaining whether any person has failed to comply with the law or has gained, or sought to gain, a benefit or service, or has asserted an entitlement, to which they are not by law entitled. As with the existing provisions, any regulations introduced would in any event require the approval of both Houses of Parliament, and debate, before they came into force. I therefore hope that noble Lords will feel able not to press their amendments and will agree that Clause 5 should stand part of the Bill.

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Baroness Hamwee: My Lords, with regard to Amendment 23, the Minister is of course right that there is a reference further on in the new subsection that refers back to what I was seeking to take out, so my amendment is not complete. However, by mentioning that, he has drawn my attention to something else that I would like to pursue. New subsection (1B) says that an order under paragraph (b), which is about other information subject to an order by the Secretary of State,

“may specify only information that can be obtained or recorded by … external examination”.

That raises the question of whether only external examination can be used for new subsection (1A)(a), concerning,

“information about a person’s external physical characteristics”.

Perhaps he can confirm that there can be only an external examination to obtain information about the first limb in (1A).

The Minister talked about new technology, which I assume comes within the word “information”. My concern was to understand what physical characteristics there might be that were not included in (1A)(a). I accept that technology will advance, but it is what the technology is being used to identify and gain information on that concerns me. This may sound tedious but it is actually quite important. I do not know whether he is able to take the matter any further tonight; if not, I would be glad to pursue it after this stage.

Lord Rosser: Perhaps I could add one or two comments. I thank the Minister for his reply and for the amount of information contained in it. I think that I recall him saying that “liable to be detained” was not a new phrase, but I am not sure how extensively it has been used before in immigration law.

I listened carefully to what he had to say about the situation of those whom immigration officers would not want to arrest. I will read his response carefully in Hansard, but at the moment I am not entirely clear what happens when someone whom they do not want to arrest declines to enable their fingerprints to be checked. I am not sure whether they will just be allowed to go or if in fact they will be arrested, which raises the question of why the existing powers are not adequate and why this new terminology is needed. As I say, I will read very carefully what he had to say.

Finally, I asked how many cases there have been in the past 12 months of people who would have had their fingerprints taken and checked if the “liable to be detained” provision in the Bill had been in force who could not have their fingerprints taken under the current wording in the Immigration Act 1971. I was not particularly expecting the Minister to come up with an instant response, but since that calculation is presumably the justification, at least in part, for this change in legislation that we are considering, I hope he will be able to provide me with an answer to that question later on.

Earl Attlee: My Lords, the main justification for Clause 5 is to avoid unnecessarily arresting people and to make it easier to carry out immigration checks. I described a situation where someone cannot speak

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English or pretends not to speak English. The noble Lord, Lord Rosser, asked what the definition of “liable to be detained” is and how many cases it will affect. If I have any information about how many cases, I will write to him. A person is liable to be detained if there are reasonable grounds for suspecting that removal directions may be given—that is, that the person requires leave to enter or remain but does not have it.

The noble Lord, Lord Rosser, also asked whether a person who refuses to give their prints can be arrested. They cannot be arrested solely for refusing to give fingerprints, as they can be taken only by consent. This may not give enough reasonable suspicion that a person may be an immigration offender.

The noble Baroness, Lady Hamwee, asked about the external examination. The whole point of these provisions is that the checks can be external examinations only.

Lord Rosser: Presumably immigration officers would not want to check a person’s fingerprints unless they had some suspicions in the first place or some doubts.

Earl Attlee: My Lords, they would not be able to check fingerprints unless they had some good reason to do so.

Lord Rosser: I thought the Minister said that you cannot arrest someone who refuses unless there is some suspicion. To do the check in the first place must mean that you have some suspicion and, therefore, if they refuse, you could arrest them.

Earl Attlee: My Lords, there would indeed be an element of suspicion if someone declined to give their fingerprints to be checked, but I suspect there would have to be other evidence as well. I will write to noble Lords to clarify these points.

Baroness Hamwee: Will the Minister include an explanation of the statutory basis on which new subsection (1A)(a) can be obtained by external examination only? I do not doubt what he says, but the way the provision is worded raises the question.

Earl Attlee: I will be delighted to write to the noble Baroness.

Clause 5 agreed.

Clause 6: Provision of biometric information with citizenship applications

Amendment 22 not moved.

Clause 6 agreed.

Clause 7 agreed.

Clause 8: Meaning of “biometric information”

Amendment 23 not moved.

Clause 8 agreed.

Schedule 2 agreed.

Clause 9 agreed.

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Clause 10: Use and retention of biometric information

Amendments 24 and 25 not moved.

Clause 10 agreed.

7.45 pm

Clause 11: Right of appeal to First-tier Tribunal

Amendment 26

Moved by Lord Hannay of Chiswick

26: Clause 11, page 8, line 30, at end insert—

“(d) P is registered in full time undergraduate or postgraduate study at a recognised higher education institution”

Lord Hannay of Chiswick (CB): My Lords, Amendment 26 covers ground similar to that covered by an amendment much later in the proceedings, Amendment 49, which we will not be dealing with tonight. Amendment 26 is about appeals and seeks to remove from the scope of the Bill appeals by undergraduate or postgraduate students in full-time study at a recognised higher education institution.

Why am I moving this amendment? There is much common ground with the Government about the important role that the higher education sector plays in our economy and, above all, that our universities play in our economy. It is a massive benefit to this country. It accounted for £10.1 billion of invisible exports at the last time of asking, and that figure is rising and should continue to rise. It is also common ground with the Government and with those in the university sector—I declare an interest as I sit on the council of the University of Kent—that we want to see those student numbers increasing. Last July, the Government published a strategy for international students, and in it they foresaw a steady increase in the years ahead. They hoped for some 15% in the next few years.

There is also the less tangible aspect of the benefits to this country from postgraduate and undergraduate students, which is called “soft power”. When they have qualified, these students very frequently go back to their countries and retain very strong links with this country, often doing much business with our exporters, and are thus generally very positive. That is the good news.

The bad news is that the Government’s immigration policy is cumulatively hamstringing this vital invisible export industry. That is before the measures in the Bill, several of which are likely to be quite damaging, have taken effect. This cumulative effect is now under way, and if you ask me whether these concerns are well founded, the most recent figures produced by the Higher Education Statistics Agency in January 2014, which cover the last academic year for which there are figures—2012-13—are disturbing indeed. Those figures are before the cumulative effect that would come from this Bill because, of course, it is not yet in force.

I shall not go into too much detail on the figures, because there was a good deal of coverage of them at Second Reading, but some really stand out. The main one is that in the year 2012-13 overall numbers dropped for the first time since figures were produced in the early 1990s. They dropped by 1%. More seriously,

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perhaps, the figures for postgraduates—and postgraduates from countries outside the EU are extremely important for the future of our universities—dropped by 4%. Some of the figures for the countries of origin of large numbers of students coming to this country are really terrifying. The figure for India dropped by 49% in two years, and there are very substantial drops in the figures for those from Pakistan and other countries of the Indian subcontinent, Nigeria and so on. That is in a period when the figures for our main competitors—the United States and Australia—were going up, by 7% for the United States and 6.9% for Australia. The market is growing, we are losing market share, and that is not good news for this country.

In addition, I suggest that Ministers look at a recent study conducted by the National Union of Students, which it made available to those of us who are interested in this matter, and which was based on 3,000 students from outside the EU currently studying in this country. They were asked in January of this year about their reaction to certain matters. That, too, was not very comforting. The chilling effect that the Government’s immigration policies are having and are likely to have was very clear: 51% of those non-EU students found the UK Government’s attitude towards them “unwelcoming”. Has the Minister studied this survey by the National Union of Students? These people have no particular interest in the matter, because they are here already. However, they said in much larger numbers than that 51% that if they had been asked to undertake some of the burdens in the Bill, they probably would not have come; they would have gone somewhere else.

The question is: why not carve students out of the Bill? There is no requirement for the Government to include students in the Bill for public policy purposes. I accept that the Government have to make a return on economic migration to the UN, which has to include students as well as those who are more properly regarded as economic migrants. However, there is no need whatever for the Government to apply their immigration policy, these new measures, to students because they are economic migrants; of course, they are really not. These people bring to this country very large resources, to which I have already referred: £10.1 billion net in the course of the most recent year. They bring jobs to this country because they are creating employment in our universities. The study by the University of Sheffield, of which I am sure Ministers are well aware, shows just how much of a contribution they make to the economies of many of our university cities and towns.

Why are the Government not therefore prepared to listen to the views of four or five—I cannot remember the exact number now; it goes up all the time—Select Committees which have all said, “Please do not treat students, for public policy purposes, as economic migrants, because you are damaging a resource vital to this country”? I hope that the Government will reflect further on this and will see the advantages to them and to the whole country of simply removing them from the Bill. I hope we will then all be able to work together, which is what universities want to do. Those of us who work for universities want to see a buoyant,

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increasing number of students, undergraduates and postgraduates in full-time education, coming to this country and bringing huge benefits to us.

Baroness Lister of Burtersett: My Lords, as a member of the Joint Committee on Human Rights, I speak in particular to Amendment 27. At Second Reading, the Minister included in his list of myths surrounding the Bill that it undermines access to justice. The Joint Committee therefore looked again at this question. As the Minister may be aware, we published a second scrutiny report today. We write:

“We have considered carefully the Government’s argument that the right of effective access to a court or tribunal in immigration and asylum cases will be preserved by a combination of the continued availability of full appeals in cases concerning fundamental rights, the new system of administrative review, and the availability of judicial review, and its argument that the practical effectiveness of judicial review will not be affected by the proposed reforms to legal aid and judicial review itself. We do not share the Government’s confidence”.

We go on to say:

“We have already reported our concerns about the implications of the proposed residence test on effective access to justice. We have also inquired into the Government’s proposed reforms to judicial review and we will be reporting our conclusions in due course. For present purposes it is sufficient to say that, while we accept that it is a perfectly legitimate objective for the Government to seek to reduce the risk of unmeritorious claims being brought, we do have serious concerns about the effect of some of the Government’s proposed judicial review reforms on the practical ability to bring meritorious challenges to decisions, including in the immigration and asylum context … We also draw to Parliament’s attention the paradoxical fact that after years of seeking to reduce the number of immigration and asylum judicial review cases that have been causing backlogs in the High Court, including by transferring such cases from the High Court’s jurisdiction to the Upper Tribunal, the Government is now seeking to justify a significant reduction in appeal rights by reference to the continued availability of judicial review … In light of our concerns, we recommend that the removal of appeal rights for which the Bill provides should not be brought into force until Parliament is satisfied that the quality of first instance decision-making has improved sufficiently to remove the risk that meritorious appeals will be prevented from being brought”.

In other words, we express the spirit of Amendment 27.

Going beyond that, and speaking in a personal capacity, I also support my noble friends in their opposition to the question that Clause 11 should stand part of the Bill.

Baroness Smith of Basildon: My Lords, I speak to our Amendments 27 to 29, and to the question that the clause stand part of the Bill. We have heard examples from the noble Lord, Lord Hannay, and my noble friend Lady Lister of why we consider this clause one of the most controversial in the Bill.

The Government have made it clear that the clause reduces the number of immigration decisions that can be appealed from the current 17 to just four. Only three types of decision will remain appealable: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information could not be challenged before a tribunal. Instead, the Government’s

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plans are that an administrative review system be set up to, according the Government’s fact sheet on the clause,

“provide a proportionate and less costly mechanism for resolving case working errors”.

We can all sign up to a process that gives timely, accurate decisions with a swift process to address any errors. However, taken in context, that is not what this clause does. We have therefore tabled a number of amendments, and have given notice of our opposition to the clause standing part of the Bill. Often, clause stand part debates are used as a kind of probing amendment, a technical way of ensuring discussion on the principle of the clause or an attempt to tease out the detail and address questions. We will be doing that with this clause. However, I also say to your Lordships’ Committee that removing the clause entirely would be our preference given the current position. Failing that, our Amendment 27 would ensure that appeal rights could not be abolished until the quality of Home Office decision-making for managed migration is deemed by the Independent Chief Inspector of Borders and Immigration and the Secretary of State to be efficient, effective and fair. That would require that the provision be introduced by order subject to affirmative procedure; that is also the position of the Joint Committee on Human Rights.

We have also tabled Amendments 28 and 29 to introduce two new clauses. Amendment 28 would require the Secretary of State to undertake an impact assessment before being able to commence the clause. The issue of students, as raised by the noble Lord, Lord Hannay, would be relevant to Amendment 28. Amendment 29 would require the Secretary of State to undertake a review of the number of people successfully deported within a calendar year of a decision under Clauses 11 to 14.

We have tabled those amendments because of deep concerns about the clause. Our country has one of the most highly respected judicial systems in the world, and the right to appeal is a fundamental principle of British law. There can be few decisions more important, or which have a greater impact on an individual or community, than who is able to live here. These are decisions of life and livelihood which affect families, communities and, potentially, businesses and employers.

The noble Lord, Lord Hannay, has highlighted the situation with students. Other noble Lords are concerned about the position of families and children. However, we are looking at the wider concerns and principles raised by the Bill. The evidence, and the impact on businesses and the economy, make it very important that we get these decisions right. It is right that such a decision should be challengeable and that recourse should be available.

8 pm

A system that provides for appeals is even more essential given that we know how flawed the current system is. It is well documented, and we have heard today, that the department is already struggling to deliver a high-quality service, and that there are huge casework backlogs. Recent figures show that of the 4,102 ex-foreign national offenders living in the community while awaiting deportation, 65% of cases are more

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than two years old; the number of foreign national ex-offenders living in the community rose by 122; and there are 12,816 asylum cases awaiting an initial decision—a 17% increase on the previous quarter. Evidence placed before the Home Affairs Select Committee revealed a previously undisclosed new backlog in permanent and temporary migration decisions of 190,000, and the total immigration backlog at the end of 2012 stood at more than half a million—502,467.

These are very sobering figures, but more important than that is the quality of decision-making. The latest statistics reveal that 32% of deportation decisions, 49% of managed migration appeals—that is, work and student appeals—and 49% of entry clearance applications were successfully appealed last year. Shockingly, the Government acknowledged in a recent letter to me from the Minister that,

“neither the Home Office nor the Ministry of Justice collect data on why appeals are allowed”.

I find that surprising given that this is such a significant clause in the Bill. However, what the department did have was a sample exercise of, I understand, around 2% of cases, which showed that 60% of the volume of appeals allowed are due to casework errors. That would mean that almost 30% of all appeals—that is, 60% of the 49%—are allowed due to casework errors. When so many decisions are found to be flawed, should we really be trying to remove the current routes of appeal and replacing them with administrative reviews? It would be helpful if the Minister could tell me today—or write to me—when that sample exercise was undertaken and what period it relates to. That would be very useful information to have. However, should we not be focusing on improving the efficiency of these initial decisions and making sure that there is little need for appeals in the first place? It really cannot be right that the Home Office’s response to its own inefficiency is simply to stop people being able to challenge that inefficiency.

I am sure that the Minister will point to administrative reviews as the recourse. The Government have already made it clear that, as evidence of the appropriateness of this new system, they rely on the fact that it is already used overseas when people are refused entry clearance. I am sure the Minister will also tell me that, under this process, 21% of original decisions are overturned. I appreciate that we are not comparing exact like for like, but it has to be recognised that these are two very different figures—50% of appeals granted under the current system compared with 21% of administrative reviews overturning original decisions. Even accounting for appeals overturned on the basis of new evidence or Article 8 claims, this still leaves roughly 10% difference between appeals and administrative reviews.

The Government have said time and again that the person reviewing the decision will not be the person making the original decision, but it will still be a cohort of immigration staff drawn from those who already make the decisions, so there is a conflict. Given the very high proportion of appeals that are allowed, and given the reasons for those appeals, it is clear that there is a serious problem in the quality of decision-making. Therefore, should not any administrative review be completely independent so that there is confidence in the administrative process?

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As we have heard from my noble friend Lady Lister, the Government have again relied on the availability of judicial review as a recourse. We have pointed out on previous amendments that reliance on judicial review is likely to be more costly for the taxpayer. In their impact assessment on appeals, the Government said that the displacement on to judicial review could not be quantified, and therefore could not be costed. However, the “sensitivity analysis” in the assessment models the effects of an extra 5,600 reviews being started, and of up to 1,000 being granted permission. That would be an extraordinary increase in the number of judicial reviews. In 2011, there were 8,711 immigration and asylum reviews and only 4,630 reached the stage of a decision on permission. Judicial reviews cost more than appeals, costs can be sought from the other party—and, of course, the Government will do that—and damages may be claimed.

As we heard from the noble Baroness, Lady Lister, the Joint Committee on Human Rights has criticised the Government’s reliance on the availability of judicial review as an effective remedy, pointing points out that it does not consider how it is,

“affected by the Government’s other proposals to reform both legal aid and judicial review itself”.

We have not seen the evidence for this clause. We do not believe that the evidence is there. It could leave a number of people with a right to be here without recourse against a wrong decision. It could also end up costing more if more people go down the judicial review route. It is ill thought out and unfair. I hope that the Minister will listen to what is said today and reconsider this proposal.

Lord Maclennan of Rogart (LD): My Lords, I wish to support the arguments put forward by the noble Lord, Lord Hannay, by recalling two anecdotes. He very forcefully and persuasively deployed the arguments about students from abroad, external to the European Union, coming to this country. One anecdote is about when I visited Tanzania with the late George Thomson and met Julius Nyerere. He had studied in a university in Britain and had translated Shakespeare’s plays into Swahili. The ties with Tanzania were greatly fostered by that personal encounter at a particularly difficult time when we faced apartheid in South Africa.

The second anecdote relates to a visit I paid to Hong Kong some years later when I met the director of development and housing, who had also been to a British university. When I inquired about who were the construction engineers developing various important developments in Hong Kong, virtually every single one of them was British. I think that reflects the truth of the general principle that we should encourage people from overseas to come to this country as students not only because of the money they pump into our education system, but also because of the long-standing ties that they foster when they go back to their own countries.

Lord Lea of Crondall (Lab): My Lords, I support the first amendment in this group, in the name of the noble Lord, Lord Hannay, for the following reasons. Each Bill introduced into Parliament has an impact

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assessment. I have considered the methodology of the impact assessment for this Bill. It refers to costs and benefits, but I think there is a fallacy built into the methodology. The section on employment and monetised benefits states:

“There may be additional employment opportunities for UK residents”.

This must be based on an extraordinarily narrow focus, even if it is not economic sense, to say that employment opportunities will be opened up for UK residents. It sounds like a bit of UKIP propaganda to me; I cannot see how the rationale for it works.

Why is this important? It is important because it is a long way from the sort of impact assessment to which the noble Lord, Lord Hannay and others, including the noble Lord, Lord Maclennan, have alluded. If, for example, we were to see a catastrophic fall in the subcontinent, are we seriously suggesting that the impact assessment on UK plc national income over the next generation would be zero? Of course it would not be zero; it would be negative. It is unacceptable that the impact assessment can be framed as narrowly as this.

In this regard, I ask the Minister to do two things. One is to revisit the impact assessment and to at least have a go at the wider context. The analogy that crosses my mind is that 10 or 15 years ago we could have said that we did not need to spend any money on Heathrow Airport because aeroplanes could land there and if there were a few more in the next year that would be fine, failing to see that our market share in Europe, compared with Charles de Gaulle, Frankfurt and Schiphol, would now be in a state of crisis, unable to serve all the places in China, for example, that can be served by these other airports.

Secondly, I ask the Minister to do a survey, and to put it in the Library, of the situation in other EU countries. We are talking about a distinct group, non-EU students coming into the EU, and although we control our own borders, at least to some extent—obviously not with the EU—we are not covered by a common external immigration policy. I am not suggesting that we should be. I am suggesting that we do a benchmark study. Australia, the United States and possibly Canada are the only countries that have been mentioned so far: the “white Commonwealth”, as it was once called. However, it is important to know what the practice is on this question of students in the other EU countries. Do they have to deal with the fearful rigmarole that we are confronted with here? Is the damage to Britain’s reputation part of the cost-benefit analysis? Of course it is not. I have great sympathy for the civil servants trying to do these cost-benefit analyses in so many fields nowadays. With HS2, can you actually look at the cluster effect on Manchester and Leeds and so on in the north of England? Possibly not, because it is very hard to do. It is very hard to quantify the cost benefits for that, and civil servants would get no extra brownie points for introducing, alongside key monetised benefits, things where it is difficult to monetise their value.

In conclusion, will the Minister agree with me, and with the spirit of what has been said by many noble Lords, that one cannot look at an impact assessment

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in the narrow terms on this rather thin piece of paper that I have here, which it is probably obligatory on Whitehall to use? Will he agree to look into the two matters that I have specifically asked about? This involves our world market share in so many areas, and that concerns the future of our country. Some might say that this is missing the point and that the point is to reduce the number of overseas students. I ask the Minister if it is outrageous to suggest that the policy is to reduce the number of overseas students, the rationale being that statistically they pose more potential danger to the country. We must spell this out. Before Report, there is scope for these matters to be teased out a lot more than they have been so far.

8.15 pm

Baroness Hamwee: My Lords, I have Amendment 80 in this group. I was prompted to table it following the discussions to which I have been party about the importance of students to this country.

While entirely agreeing with the thrust of what has been said so far, I have concerns about Amendment 26. It would have the effect of excluding—or including—a particular group that would retain a right of appeal. The new Section 82(1) would allow appeals by individuals in certain circumstances, but the noble Lord’s amendment would allow all those to whom he has referred—essentially all students—to retain the right of appeal. Students and universities are an obvious, vocal and important cohort. They have a voice that others affected by Clause 11 do not have. There will be individuals who are substantially affected as individuals, over a range of circumstances and issues. I would be concerned about picking out a single group for whom to retain a right, without considering carefully what that would say to all those other people who will be affected by this clause. There may also be practicalities which I shall not go into.

The noble Lord, Lord Hannay, said that many of our committees have said: “Please treat students not as economic migrants”. I do not doubt what he said but wonder whether we are being asked not to treat them as economic migrants or not to regard them as economic migrants. They may have slightly different meanings. However, I am absolutely convinced of the importance of the international links to which my noble friend Lord Maclennan referred. I am concerned about all the reputational issues for the UK that would flow from perceptions—we may be told that they are only perceptions but they are important—if we were thought not simply to accept students but to welcome them and seek for them to come here.

I am also concerned about what seems to be a lack of good marketing. We are told by the Government that students are welcome, but there is a problem in terms of promotion. Therefore, given that so much of the debate is actually about the number of immigrants and including students in total immigration figures, it would be right to pursue the issue regarding the number of students. We should seek not just to disaggregate the numbers, because I understand that that is done at the moment. However, that issue gets no coverage. We should be taking positive steps to make sure that it is understood how the numbers break down and that we

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do not prejudice ourselves by including student numbers in the total numbers and then finding that for whatever political reasons there is a target for reducing the total numbers, and the students get swept up in them.

I appreciate that there is the UN obligation and that the numbers are dealt with by the ONS and it is, in a sense, not up to the Government to publish separate figures. I know that those figures are there but they take a little seeking out and certainly do not get the promotion and exposure that they would if we were to have a debate based properly on numbers, rather than a debate that is based to a large extent on prejudices.

My Amendment 80, to which my noble friends Lord Clement-Jones, Lady Brinton and Lady Benjamin have put their names, would provide for an annual report by the Secretary of State on study-related immigration. I am sure that the amendment, which very much has amateur drafting, is riddled with technical flaws but its thrust is that we should be able to see annually,

“the number of applications to enter the United Kingdom on student visas”,

the number of applicants who actually come in on those visas, the number rejected, and an estimate of the number of people who have held a student visa who have left. We will, of course, be considering the issue of embarkation checks at the end of the Bill but one of the big holes in all the consideration of these issues is that we do not know who has gone. We also need comparative figures for other managed migration. We need this information in order to thoroughly understand what is going on. The lack of understanding is feeding a position that is entirely unhelpful.

The noble Baroness, Lady Smith, spoke to amendments regarding appeals and mentioned the proposal for an administrative review. I have an amendment on administrative reviews but it is not in this group and we will come to it on Wednesday.

Lord Tugendhat (Con): My Lords, I very much agree with everything that the noble Lord, Lord Hannay, said and I am delighted that my name should be attached to his amendment. I shall not therefore repeat his powerful arguments but should like to add just one further thought.

As everyone in this House knows, the United Kingdom is second only to the United States in terms of the number of universities that it has in the top group of the world’s universities, not just in absolute terms but in all kinds of important subject areas such as engineering; figures last week showed that Cambridge, Imperial College and Oxford were still in the very top group. That was as much as the rest of Europe put together was able to provide.

There are many reasons why British universities are in the top group of world universities but one is that there is a free market in talent that enables them to attract it from all over the world, not only in the students but in the teaching staff. To some extent, there is a chicken and egg factor here. They are great universities partly because they can attract talent from all over the world, and because they can attract that talent they remain very good universities.

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There is a similarity between the university world and financial markets. Neither of them is purely national. Both are totally international with seamless connections across the world. Therefore, if you try to turn us into an island and cut us off from this stream of talent that is crossing the world, you will do great damage to British universities. It will not show up in the short term, as the noble Lord, Lord Lea of Crondall, just pointed out. These things take a long time to show through. But it will very seriously damage over the long term the ability of the greatest British universities to remain in the top group—and not only them. For 15 years, I was chancellor of the University of Bath, a university that was founded less than 50 years ago. This has nothing to do with me because the outstanding vice-chancellors that it has had deserve the credit, but in the past 20 years the University of Bath has moved from obscurity not only into the top group in the United Kingdom but now into a number of world league tables as well. That is because it has both a student body and a faculty that are drawn from all over the world. In fact the previous vice-chancellor was American. It has had people from the Far East, North America, South America and all kinds of places.

I beg Ministers to consider the fact that clauses such as this one that we are seeking to amend have a deleterious effect on the ability of British universities to perform adequately on the world stage. We do not have so many institutions, so many industries and so many spheres of our national life that are indubitably regarded as absolutely among the best in the world. Universities are one and it would be extraordinary to kick them in the shins.

Lord Hope of Craighead: My Lords, I endorse what the noble Lord, Lord Tugendhat, just said and what the noble Lord, Lord Hannay, said earlier. My background is that I was for 17 years chancellor of the University of Strathclyde in Glasgow. Our experience has been that we are operating in a global market not only for teachers but for students—those coming to the university and those going out from the university to other countries to take on part-time study or study together with employment experience.

There are a number of aspects that I might very quickly mention one after the other. The first is the point that the noble Lord, Lord Hannay, made about the cumulative effect of policies that have been building up over the years. One of the most injurious in our experience has been the inability of foreign students to stay on after they have completed their degree courses. I know that there is strong feeling in government that we have a policy about people who stay on who should not do so. These are people who in the previous system were able to remain here for a given period. They used that time to gain work experience in some of our leading companies. Together with their academic work, they took that back to their own countries, developed their own expertise and thereby maintained a continuing link not only with the universities but with the companies with which they worked. That has gone. We are not talking about that in this Bill, but it is against that background that this has become a much more serious issue. The noble Baroness made the same

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point. We have reached a point where we are losing contact and the competitive edge that we must maintain if our universities are to remain as competitive as they are in the world.

The second point is about revenue, which the noble Lord, Lord Maclennan, made. Certainly, our experience when we were getting students from India and China was that they were paying substantial sums to come to the university, and we are losing that. I am told that there has been a 25% fall in students from these countries coming to Strathclyde for postgraduate degrees. That is a drop in numbers that is difficult to make up for in the market in which we work.

The other aspect is the exchange process whereby our students go away in the course of their studies for a year out. Because we are driving away international students from elsewhere, it is more difficult for us to get places for our students to go to.

The final point is that one of the essences of university is the ability of students to mix with each other, gain experience from what other people have done and make friends across the faculties and across the nations throughout the world. The opportunities for doing that will be diminished if we do not sustain our effort of attracting students from other countries from outside the EU who have so much to contribute. Therefore, I warmly endorse the amendment moved by the noble Lord, Lord Hannay.

I should add, in response to a point made by the noble Baroness, that I believe it is a very carefully crafted amendment because it is seeking to direct attention to a very particular category. Those are the categories described very precisely in the amendment, which is the point that I and, I suspect, the noble Lord, Lord Tugendhat, have addressed. It is a very particular category. It does not include language schools and all the other fringe elements, which might give rise to abuse. These are people who would be here for very good reasons, carefully monitored, and would take enormous benefits back to their own country if they were allowed to continue to come here.

8.30 pm

The Lord Bishop of St Albans: My Lords, if I may, I will just add a brief comment on precisely that amendment. Some years ago I spent time in Malaysia and found myself meeting a number of barristers, all of whom had trained in this country. They spoke of how, when they had particular legal problems or needed advice, they would immediately turn to the people they had studied with back in this country. However, they were lamenting the fact that in recent years the next generation were all being trained in Australia and America and, of course, the place that they immediately contacted when they wanted help was their friends in those countries. They thought it was the most extraordinarily short-sighted approach compared with the way things had formerly been done.

I will add one other thing. Just three or four weeks ago, I paid a visit to one of the universities in my diocese, the University of Bedfordshire, and I met Bill Rammell, who had recently come there as the vice-chancellor. Immediately when we got talking, he lamented the very serious problem they have now of finding

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perfectly good students who want to come but are simply already unable to come. He was saying that this is something that is materially affecting Bedfordshire as one of our dynamic, thriving universities, which wants to be right at the forefront of forming, developing and, indeed, celebrating an international academic community, but it is finding that already it is difficult. Therefore, I want to add my support for the amendment.

Baroness Benjamin: My Lords, I rise to speak to Amendment 80, to which I have put my name, as I believe we need to find a sensible way forward to deal with the international student figures. International students make up less than 1% of the UK population, yet their spending power supports £80 billion-worth of UK economic output. International students support over 830,000 UK jobs across the country, including in Wales and Scotland. Interestingly, they are the most heavily regulated and monitored and are subject to strict visa controls. Yet there are proposed processes being considered here in this House that will deter many potential international students from choosing the UK as the place to study. This worries me greatly, as I speak as chancellor of the University of Exeter—I declare an interest.

This is why I support Amendment 80, which my noble friend Baroness Hamwee has spoken so eloquently on. I believe this is a common-sense way forward that deals with this important issue, and highlights international student numbers in a coherent and sensible way to show them that they are not perceived as the enemy and that they are wanted and welcome. It will ensure that the Government will know that, if there are any concerns detrimental to our country, they will know exactly where the problems are if there are any. Therefore, I hope that my noble friend the Minister will give careful consideration to Amendment 80. I look forward to his reply and will accept nothing less than a compromise.

Baroness Williams of Crosby: My Lords, the hour is late and there is much to say, but I will be brief in my remarks. Let me begin by declaring an interest as a member of the court of the University of Hertfordshire, which is very like what the right reverend Prelate had to say about the University of Bedfordshire—a very young, growing but exciting and expanding university in a part of the world which, rather surprisingly, has not got as many universities as exist around Oxford and Cambridge and London.

Let me be quick and say the following. I would like first to add one other distinguished name to the list given by my noble friend Lord Maclennan. It is a name worth thinking about for a moment, and it is of course that of the new President of Iran. He holds a postgraduate degree from Glasgow Caledonian University, and one has to ask oneself whether his much more enlightened view of global relationships has nothing whatever to do with the fact that he is one of the very few senior figures in Iranian society who has spent substantial time outside his own country, speaks good English and is interested in what is happening elsewhere. That is the kind of benefit, one which cannot be listed economically, that a country like ours gets from the very wide spread of its students from all over the world who, over the last generation, have attended

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universities in this country. Out of that has grown an abiding affection both for their university and for the country in which it happens to be located.

Let us be honest: there is a profound division of opinion within the Government on this issue. We all know that the department for business enthusiastically supports the idea of a substantially greater expansion of British universities. That department includes some able Ministers with considerable knowledge of higher education, and it knows one important thing. The important thing that it knows is that you can grow out of a university relationship a whole range of relationships with other businesses, public services and so forth across the front. The noble Lord, Lord Tugendhat, pointed to the effect of this kind of relationship on global attitudes. It allows us to extend our acquaintances and friendships all over the world.

I shall put this very particularly because the noble Lord, Lord Hannay, said something less dramatic than I am about to say. He pointed out quite rightly that the National Union of Students study, based on a careful poll conducted at the end of last year of more than 3,000 students in this country, is the best figure that he could get; it is a figure showing what undergraduates think. Some 51% of undergraduates have said that they think that this country is not welcoming to overseas students. The more drastic figure—more drastic for the reasons given by my noble friends Lady Hamwee and Lady Benjamin—shows that 66% of postgraduate students, people who have spent some time studying here, take the view that this country is unwelcoming to overseas students. These are the very men and women to whom the noble Lord, Lord Tugendhat, was referring when he talked about relationships with scientific, medical and cultural groups in this country. They have a valuable contribution to make, but increasingly they are being somewhat frozen out.