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Baroness Seear: Could the Minister name any other circumstance in which someone in this country is deprived of his liberty without going to a court in any shape or form, or being handled by the police? Can she

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give an example of where a person's liberty is taken from them by an official and not someone in the judicial system?

Baroness Blatch: If the system did not allow people an appeal. Context is important in replying to the noble Baroness and others who have raised these points. First, detention is used extremely sparingly. We are talking about possibly one case per week. Out of 80,000 cases which are awaiting decision or appeal, we are talking at the most of about 700 cases. The great majority of detained asylum seekers have already had their claims refused by the Asylum Directorate. We are not talking about the first stage; we are talking mostly about people who have already had their cases considered substantively and had their claims refused.

The noble Lord, Lord Dubs, used the Prevention of Terrorism Act as an analogy. The difference between this and the Prevention of Terrorism Act is that this provision is about people whose right to be here has not been established--that is important--whereas the Prevention of Terrorism Act powers relate in general to people who are entitled to be here. There is a very real difference in that. We have extended the right to seek bail and that should be welcomed. There is a system for releasing people from detention if that is thought appropriate. I believe that that is as far as we should go. To add yet another bureaucratic system is not consistent with what we are trying to do in the Bill.

Earl Russell: I believe that there is a drafting error in the Bill. I have been looking at the repealing schedule. It should have included the Habeas Corpus Act 1679, the Petition of Right Act 1627 and Magna Carta.

The Lord Bishop of Liverpool: I tried to listen to the Minister most carefully. She said that the provision would greatly increase bureaucracy but she then told us that there was only one case a week. Are we to believe that justice is such a cheap or difficult thing that one case a week is something that this country cannot afford?

Baroness Seear: The Minister has not answered my question. Can she give any other case in which someone can be deprived of his liberty without any kind of judicial process? The fact that that is done by a bureaucratic or an administrator--let us not use the word "bureaucrat", which has unfortunate connotations--is extraordinary and quite contrary to the principles of justice in this country.

Lord Hylton: A small matter may have been overlooked. It is that an adjudicator is a quasi-judicial person appointed by the Lord Chancellor.

Lord Dubs: It is true that some 700 people are detained at any one time. Some are detained for only a few weeks but some are detained for much longer. The net effect is that several thousand people a year are detained under these powers by the processes that have been described.

The Minister said that the present system is simple and fair and that the alternative that I have proposed in the amendment would be more bureaucratic. Those are

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trivial arguments when set against the rights and liberties of an individual. I do not believe that we can dismiss the concept which is fundamental to what this country is or ought to be about simply by saying, "It's a bit complicated. It's a bit difficult for us".

Over the years I had meetings with Home Office Ministers on this issue and I was given assurances that there was a thorough internal scrutiny of people detained by Home Office officials. I suggest that that internal scrutiny would take at least as long as it would take to go before an adjudicator and establish the point made in the amendment.

The Minister said that the point about the Prevention of Terrorism Act is different because it relates to people whose status in this country is not in doubt. After all our arguments about the Prevention of Terrorism Act, is the Minister really saying that asylum seekers who are accused of nothing, who have no charges against them, are somehow to have less liberty than people who are detained under that Act? Surely that makes a nonsense of our whole system. I am talking about innocent people and I say to the Minister that it would take just a little trouble to protect the liberty of individuals. Will the Minister please think again now?

Baroness Seear: Perhaps I may add that I was appalled to hear the Minister say that only one person a week was detained. Justice is justice, whether it is one person or 1,000 people.

Baroness Blatch: I do not believe that we are talking about something that is unjust. We are talking about people who have not established a right to stay here. Most have had their cases for staying considered and they have not been proven. They are waiting for appeals and a judgment has been made that they ought to be detained because, rightly, someone has considered that there may be a risk of disappearance. We have extended the right to apply for bail, which will be a consideration for all people subject to the 1971 Act. I should correct myself. It is not one asylum seeker per week but 1 per cent. of asylum seekers. However, I am sure that the noble Baroness would still wish to make the same point. All asylum seekers, whether on the fast track or the normal track, are given rights of appeal. Therefore, they are not being denied rights of appeal in relation to their particular case for asylum.

I have already made the point in relation to the Prevention of Terrorism Act that under that Act we are talking about people who have a right to be here. In this case we are talking about people whose right to be here has not been established. Therefore, they are still in the asylum application system and their right to appeal is already established under this Act. I believe that noble Lords are rather labouring their point. I have made the point very carefully that people who are detained are usually detained for very good reasons indeed.

Earl Russell: If I repeat myself, it will be only briefly. Throughout this Bill I have been asking the noble Baroness to explain the priority which she gives to keeping asylum seekers away from this country. It seems to us altogether disproportionate and unintelligible. I do not understand why this country is

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thought to be in such great danger from a few weak, helpless asylum seekers. Is our fabric really so weak that they can tear it all down? I genuinely do not understand.

Baroness Blatch: In the course of this debate the noble Earl has asked us more than once not to be repetitive. I should like not to be repetitive. But the noble Earl constantly poses questions in a very repetitive manner. I say just once more that there is a fundamental difference between those of us on this side of the House--I exclude from that right reverend Prelates who are at one with Members of the Committee opposite on this issue--and Members of the Committee opposite. There are 84,000 cases awaiting the conclusion of their consideration. The number of those applying is about 40,000 per year. That is more than the number of cases which we can process. Even with an eight-fold increase in staff and a massive increase in the amount of funds made available for that processing, we are not keeping pace with the number of applicants.

The final point that I wish to make, which is the rationale for the Bill, is that the number of people who turn out to be genuine asylum seekers is very small indeed. Those given exceptional leave to remain outnumber those who qualify under the 1951 convention. For those reasons, we wish to have a fair system--a system which is fairer and quicker, so that we can process more efficiently those genuine asylum seekers who we believe are disadvantaged by the present clogging-up of the system.

Lord Dubs: I am very sad to hear what the Minister said--that people are detained for only very good reasons. The only thing that this amendment asks for is that those reasons should be stated to a special adjudicator. Special adjudicators are judicial appointments by the Lord Chancellor in the same way as judges. They are independent of the Home Office. Surely those people could consider whether the reasons are good. If the reasons are good, they will allow the detention to continue. It is a simple proposition.

I am sorry that the Minister is not prepared to agree to what I believe is a significant point of principle. I shall beg leave to withdraw the amendment, but I reserve the right to return to this matter on Report because I believe that the Minister is speaking without the support of the majority of people on her Benches. I have looked at their faces. If people are honest, I do not believe that there is that level of support for what she says. I may well wish to return to this matter on Report.

Amendment, by leave, withdrawn.

Baroness O'Cathain moved Amendment No. 135:

Page 10, line 25, at end insert--

("Liability for the expenses of the first seventy-two hours of detention

7A. In sub-paragraph (1) of paragraph 19 of Schedule 2 to the 1971 Act (liability for the expenses of detention) for the words "at any time after his arrival" there shall be substituted the words "for the first seventy-two hours after his arrival.").

The noble Baroness said: Amendments Nos. 135 and 136 deal with what I have referred to already in Committee; namely, injustice and unfairness. In this

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case, they relate to an aspect of the Immigration Act 1971 which airlines and ferry companies have long felt was unjust. Again, I declare an interest as a director of British Airways. The issue that I am addressing is the fact that carriers are expected to bear the detention costs of any passenger stopped and detained by the Immigration Service when he or she arrives in the United Kingdom, irrespective of how long such detention lasts. In other words, there is an issue of indefinite liability. Amendment No. 135 seeks to impose a cut-off point at which carriers cease to pay detention costs and Amendment No. 136 seeks to exempt carriers completely when the circumstances are patently beyond the carrier's control.

As I stated in Committee on 30th April (col. 1616 of Hansard), carriers accept responsibility, albeit a trifle reluctantly, when they make a mistake and transport passengers who have invalid documentation. They are fined. But they happen to spend significant sums of money trying to ensure that mistakes do not occur; but, if they do, they accept the penalty. However, passengers can arrive with completely valid documentation and still be detained. Actual cases that have occurred are, for example, someone clutching a return ticket who arouses suspicion because he or she is carrying very little cash; someone who fails to give a convincing reply when questioned about how long he or she intends to stay; someone who behaves in what could be described as a shifty manner, thereby arousing the suspicion of the immigration officer; or, indeed, someone who simply triggers off what one would call the sixth sense of the immigration official.

As an aside, what I am about to say is not a criticism of the Immigration Service. Indeed, I should like to pay tribute to the immigration staff because they have a horrendously difficult job to do. I have in mind all the responsibilities that legislation puts upon them, with the need to be, in effect, trained sleuths or psychologists, with their unenviable task of dealing with huge numbers of people who are tired after travelling--we all know about the red-eye as a result of overnight flights--and with situations which must tug on their heartstrings, reminiscent in fact of the words on the Statue of Liberty in New York Harbour:

    "Your tired, your poor, your huddled masses yearning to break free".
Yet those people are always conscious, as, of course, they have to be, of the responsibility placed upon them by legislation. It is not an easy job; it is not an easy job for anyone, be they trained immigration officials or untrained check-in staff or ferry staff dealing with passengers who wish to travel to the United Kingdom.

If a passenger arrives at a port or an airport in the United Kingdom having disposed of his or her documents between the time of boarding the ferry or the aircraft and arriving in the UK--sadly, this is quite a common occurrence--the carrier is liable to a fine of £2,000. I am not questioning that for the moment because that has been dealt with under a previous amendment. The issue is the fine plus the costs of detention which can last indefinitely. The passenger may be detained for three hours, three days, three weeks,

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three months or even longer. It is entirely up to the Immigration Service. That is patently an unsatisfactory loophole in the 1971 Act. It provides little incentive for speedy resolution of the case and is to the detriment of the passenger, who is left in a state of insecurity about what is going to happen; and that also applies to the carrier.

I submit that there must be a point where the responsibility for such a situation is transferred from the carrier to the Immigration Service. A cut-off point has never been agreed, but the organisation called the Board of Airline Representatives, which represents some 90 airlines operating into the United Kingdom, believes that three days is a reasonable period for carriers to pay detention costs. That is the reason for the 72-hour limit on liability included in Amendment No. 135. However, there are many circumstances where, I submit, carriers should not be expected to pay any detention costs whatsoever, and where indeed it is quite unjust to expect them to do so. I have previously referred to cases where passengers have all the correct documentation but are still detained. Most interestingly, in these circumstances the immigration service refuses to tell the carrier why the passenger is detained; in effect stating that it has nothing to do with the carrier. If it has nothing at all to do with the carrier, it seems to me a prima facie case of the detention costs having nothing to do with the carrier either.

Carriers have guidance from UK immigration. I quote from a letter which I have received:

    "It is our normal practice to say to carriers ... that it remains a matter for them to decide whether or not to carry passengers who appear to have genuine documents, but who nevertheless arouse the suspicions of check-in staff".
As I described in Committee on 30th April at col. 1617 of the Official Report, six seconds per passenger does not give much time to check the validity of tickets and passports, to allocate seats, to check in bags and to accommodate the relatively new requirement of asking questions relevant to security--for example, "Did you pack this bag yourself? Has it been left anywhere since you packed it? Is there anything electronic in this bag?", and other questions. The letter from which I have just quoted suggests that in addition to all of that the check-in staff should take into account,

    "unusual levels of nervousness or anxiety on the part of the passenger, or an amount of luggage not commensurate with the proposed length of journey".

There is a classic example of this, of which I was made aware when I went to Frankfurt recently to observe the workings of the check-in staff attempting to comply with UK immigration requirements. There were 40 Indians who came on a shopping trip to Frankfurt. They flew from Bombay to London to Frankfurt. At London they only transitted and so they did not go through the immigration procedures. When they arrived at Frankfurt the German immigration officials let them in and there were no questions asked. One week later, having completed their "shopping trip"--note the word "shopping"--they checked in late at the British Airways desk at Frankfurt to commence their return journey Frankfurt/London/Bombay. Between the 40 of them there were eight pieces of luggage. I repeat that they

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were supposed to have been on a shopping trip. This did not look right to the eagle-eyed check-in staff. Alerted to a possible problem, they phoned immigration at Heathrow and sent by fax copies of the Indians' passports. In response to the question, "Do we allow these people to travel? they were told, "It is up to you". As the staff at Frankfurt were still concerned, they contacted the British Airways staff at Heathrow. We must remember that this was all carried out within minutes of the scheduled departure time of the aircraft. The British Airways staff at Heathrow, mindful of their obligations to transport passengers who had paid for their tickets--in effect, a contractual obligation--took the decision to agree to their transportation.

Obviously all these shenanigans had alerted the prospective travellers that they were being scrutinised and suddenly they decided not to travel. That was rather strange. The following day the British Airways staff at Frankfurt contacted the local police to inquire what had transpired. They were told that, mysteriously, tickets and passports for all but six of the 40 passengers had been lost. The point of this story is that if the passengers had travelled it seems quite likely that they would have tried to claim asylum as they transitted London and the carrier, having received no guidance from immigration, would have been liable to unlimited detention costs for the UK immigration's 40 Indian guests. Those costs would probably have totalled more than £5,000 per night.

The proposal that carriers should not pay detention costs when passengers are carrying correct documentation is supported by the International Air Transport Association. The international civil aviation organisation is currently considering adding a recommended practice to its code of conduct, based on IATA's suggestions, stating that operators should not be held directly responsible for any costs related to official detention of passengers where admittance is denied for reasons beyond the control of the carrier.

There is no opportunity for a carrier to avoid paying detention costs or to appeal against them. There is no incentive for UK immigration to provide proper guidance on whether or not individual passengers will prove acceptable once they land in the United Kingdom. There is no incentive for UK immigration to process detainees quickly, as it does not have to finance the costs of such detention out of its budgets.

I submit that there are good reasons to support my amendments. I am unaware of many good reasons against them. I beg to move.

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