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I also thank the Minister for the very interesting figures which he sent me on the number of allegations of torture reported in Rule 35 letters between January and September 2007. There were 968 in total, of which 335 came from Oakington and 288 from Yarl’s Wood—the two establishments from which the largest number of allegations of torture arose. The table does not tell us the number of cases in which it was ordered that the person should be released because the allegations were credible or whether in any cases there were further investigations by independent medical officers to verify or confute the claims that were made.

I expect that the Minister will say in reply to my amendment that this matter belongs in the Operational Enforcement Manual rather than on the statute book, but is that a real answer when the chief inspector’s recommendations have been so persistently ignored? As your Lordships are aware, the chief inspector has drawn attention to the failure in all immigration and removal centres to respond radically to the Rule 35 letters. It must be extremely exasperating for her to get no action from the BIA on a matter as sensitive as this. It is certainly disturbing to us as well.

As for other categories of vulnerable people, the list in the noble Lord’s amendment is not exclusive. Mothers with small children are not well looked after in Yarl’s Wood, where the staff have no special training and they do not keep stocks of the requirements of these mothers. The right answer seems to be to consider in every case whether there is a valid reason for detention and always to weigh that against the personal circumstances of the applicant.

Baroness Hanham: My Lords, although my noble friend Lady Anelay said in Committee that she had some sympathy with these amendments, I think she also drew attention to the difficulties they could raise. It is clear that no one expects anything but the best possible care of people in detention and that they should receive medical advice and help should they need it, but there has been a hint from those who are perhaps more cynically inclined that such measures could be used against the proper concerns that people have. While we have sympathy with this amendment, it would be helpful to hear the Minister’s response on how he feels the matter can be dealt with. We have concerns about the amendments and the way in which they are drafted.

Lord Hylton: My Lords, before the noble Baroness sits down, does she accept that Amendments Nos. 13 and 26 are new ones tabled since Committee?

Baroness Hanham: My Lords, I think I shall have to accept that.


The Earl of Sandwich: My Lords, I support my noble friend on this amendment, but first I should like to put a question to the Minister: are the Government over-reliant on evidence from the voluntary organisations? I shall quote from a statement that he will remember

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was made by Michael Fisher, the former manager of the asylum screening unit in Croydon, dated 10 March 2006:

I wonder if the noble Lord could update the House on the extent to which we are dependent on single evidence organisations, and to what extent do the Government make their own investigations?

Baroness Carnegy of Lour: My Lords, there can be few people in this country who are not 100 per cent sympathetic with what the noble Lord, Lord Hylton, has said in moving this amendment. The problem, of course, is how to get there. As we go through the Bill, it seems that what the noble Lord, Lord Judd, has called the gap between policy and practice is the basic problem that arises over and over again—and here I am talking about detention centres. When the Minister replies, I hope that he will be able to tell us how the Government are trying to narrow that gap because this should not be allowed to continue without trying to resolve it.

I cannot see how Amendment No. 13 would work because the Secretary of State first has a duty to prevent detention and then to seek prompt release. The second subsection should apply if he has failed to secure prompt release. We should be discussing not the wording of the amendment but what the noble Lord is trying to achieve, and that is something that I most certainly support.

Lord Bassam of Brighton: My Lords, I am grateful to all the contributors to this debate. These discussions are always enlivened when the contributors include the right reverend Prelate the Bishop of Winchester, my noble friend Lord Judd, the noble Lord, Lord Hylton, and the noble Earl, Lord Sandwich, because they bring a wealth of concern, knowledge and experience to the issue. I was impressed by a point made by my noble friend Lord Judd and repeated by the noble Baroness, Lady Carnegy of Lour, that the nub of the issue is the gap between policy and practice. In other words, that to which we aspire and what on occasion takes place in one of the institutions, which can fall far short of our policy objective. Our role as a Government, of course, is to focus our attention on and narrow that gap. I am grateful to all those whose care and concern keep us up to the high aspiration that we have set out in terms of policy, and translating that policy into effective, humane and sensitive practice, because this is a very difficult area.

Having said that, I do not see a need to depart from the position we adopted in Grand Committee. This amendment seeks to create a blanket exemption from immigration detention for vulnerable adults who must include torture victims, pregnant women and those with serious physical or mental health conditions. The noble Baroness, Lady Hanham, also said that this is a difficult area, one in which we aspire to provide the best of care, but we have to have firm and clear rules in position and ensure that there can be no abuses of the system. That, in essence, is our position as a Government. I shall go through some of

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the issues raised in the debate because I believe that they demand to be dealt with seriously.

The noble Lord, Lord Hylton, made it clear that he had tabled a similar amendment in Committee covering just torture victims. At that stage I set out at length why we could not accept such a blanket exemption from detention. That position has not changed, and we cannot accept this new amendment, which it could fairly be argued goes even further. As I said during the debate in Committee, our stated policy and published guidance makes it clear that a history of torture is one of the factors that must be taken into account in deciding whether to detain a person and would normally render the person concerned unsuitable for detention other than in exceptional circumstances. Independent evidence of torture will weigh heavily against detaining an individual.

In Committee I set out examples of the sort of circumstances in which a person who may be a victim of torture, or at least claims to be, might be detained. It is worth repeating them. Detention may be appropriate for reasons of public protection in the case of convicted criminals. The person concerned might be a persistent absconder. Detention might be appropriate in the case of a person who is to be returned to a third country for consideration of their asylum claim. Most commonly, it is likely to be appropriate in the case of persons who have no lawful basis to remain in the United Kingdom and whose removal is to be enforced. Amendment No. 13 would remove completely our ability to detain in these or other appropriate cases. That is not something that sensible immigration control can accept.

Stated policy and published guidance makes it clear that pregnant women should not normally be detained. The exception to that general rule is where there is a clear prospect of early removal and medical advice does not suggest confinement before then. In addition, pregnant women of 24 weeks and above are excluded from detention as part of the fast-track asylum process. In the case of women detained during the latter stages of their pregnancy we are always guided by medical advice on the issue of fitness to fly, which would be a key factor in deciding whether removal could proceed and thus whether detention should be maintained. Pregnant women who are detained have access to the normal range of healthcare services, including visiting midwives and health visitors. This is a perfectly sensible and reasonable approach to the detention of pregnant women. It would be nonsense if women were barred totally from being detained at any point during the entire period of a pregnancy, as the amendment would require.

In the case of people with serious physical or mental health conditions, we already make it clear that a history of physical or mental ill health will be a factor arguing against detention. Individuals with a particularly serious physical or mental health condition are excluded from the detained fast track and would not normally be considered suitable for detention in any other circumstances. Detained individuals who suffer from physical or mental health conditions have access to good-quality primary healthcare services within removal centres, including in-patient facilities in some centres, and access to secondary healthcare including mental health services.

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More generally, all cases are considered on their individual merits, and factors arguing either for or against detention must be taken into account in deciding whether to authorise that detention. That covers those who claim to have been the victims of torture, pregnant women and people with physical or mental health difficulties. This is a sensible position to adopt, allowing for a flexible and appropriate response to individual cases. The amendment would remove that degree of necessary flexibility and create a potentially significant gap in our ability to ensure and enforce compliance with immigration laws. It would also be likely to provide a fruitful ground for costly legal challenges designed further to frustrate or delay removal from the United Kingdom. Furthermore, the amendment would be a serious obstacle to the quite proper use of detention in appropriate cases and would therefore weaken our ability to maintain an effective immigration control system.

I turn to Amendment No. 26, moved by the noble Lord, Lord Avebury. I appreciate the concerns that he and others have expressed over issues of this kind, but the amendment is not necessary. As I have made clear, it is already the case that a history of torture is one of the factors that must be taken into account in deciding whether to authorise or maintain an individual’s detention. The system under Rule 35 of the Detention Centre Rules of reporting claims or concerns about a person having been a victim of torture is intended in effect as a safety measure to ensure that such issues, where they are not previously known, can be taken into account in deciding whether to maintain detention. In the vast majority of cases, the individuals concerned will either be at the end of the process facing removal and claims to have been tortured will already have been considered, or they will be in the fast-track asylum process and can be expected to make their claim to have been tortured as part of that process.

Existing guidance to agency staff requires them to acknowledge receipt of an allegation of torture report from a removal centre doctor. It is important that the doctor should know that the report has been received by the relevant agency staff and I agree that this should be done promptly. It may be that the response to the doctor should go beyond a simple acknowledgement. The agency will look at the current guidance to see what more could be said, subject to any issue of confidentiality. For example, the response could indicate to the doctor whether the information about the claim of torture is already known to the BIA and has been considered or whether it is being considered as part of the individual’s asylum application. The guidance should also make clear the need for a prompt response to the doctor’s report. I have explained why we cannot accept Amendment No. 13 and I hope that the commitment to review the relevant guidance to staff will meet, at least in part, the concerns that lie behind Amendment No. 26.

Some specific questions were asked during this debate and I shall try to respond to them. The noble Lord, Lord Avebury, drew attention to some statistics that I released during an earlier discussion. I think that he wanted some idea of how many of those who are detained are subsequently released for a referral to the Medical Foundation. From 1 April 2006 to

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31 March of this year, we detained through DFT and NSA processes 4,295 individuals, of whom 156, or 3.63 per cent, were released for a Medical Foundation referral. That gives some data in response to the noble Lord’s question. I am not sure whether it adds much, but I thought that I should put it into the public domain, because it underlines the point that the referral process is made use of.

The right reverend Prelate the Bishop of Winchester made a couple of valid and valuable points about CRB checks and the impact of foreign national prisoners on this part of our detention estate. I understand why he raised those points and, like everyone else, I share his concerns. All removal centre staff have to be CRB checked to an enhanced level—the very highest level of checking. That is absolutely appropriate, as we would not want any potential for abuse in the centres. The checks are very thorough and go a long way towards eliminating potential problems. High numbers of ex-foreign national prisoners have of course had an impact on the immigration detention estate in terms of additional challenges for the security and control of establishments. However, the individuals concerned are risk-assessed to ensure that they are allocated to appropriate centres, and centre staff are alert to the additional risks and the impact on other detainees. I recently visited Tinsley House at Gatwick, where I asked the very question that the right reverend Prelate raised. In that establishment, there were not, as I understood it, any problems presenting, although staff rightly have to be sensitive to the issues that may arise.

The noble Lord, Lord Avebury, asked whether staff have any particular training to deal with mothers with young children. Staff at centres that may hold mothers with young children are trained to deal with the issues that may arise. The healthcare staff, including visiting midwives and health visitors, are particularly alert to the relevant issues.

12.15 pm

Lord Avebury: My Lords, in the case of Janipher Maseko, staff were not properly trained. They did not have breast pumps, for example, which enable lactating mothers to express milk from their breasts. That was a serious omission, considering that it causes considerable pain, as the Minister may be aware.

Lord Bassam of Brighton: My Lords, I am aware of that; personal experience is a great teacher. I understand the noble Lord’s point.

The noble Baroness, Lady Carnegy, reminded us of the gap between policy and practice. Staff are intensively trained. Border and Immigration Agency workers who handle cases in this field receive instructions on dealing sensitively with asylum applicants who claim to have been tortured or raped. It is an element of the interview skills module of caseworkers who deal with cases under the new asylum model procedures. The case-owner foundation training programme is 55 days long and encompasses training on all aspects of considering an asylum claim, including five days of interviewing skills training and three days of advocacy training. During the workbook element of the course, where case owners

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receive the greater part of the legal knowledge that they require, medical and torture issues are considered, and case owners are made aware of asylum policy and other process instructions. Case owners receive instructions relating to torture and medical issues. The Medical Foundation features in several workbooks as an important element of that training process, which is reinforced during the five-day interview training.

The noble Earl, Lord Sandwich, asked whether the Government are over-reliant on evidence from NGOs and the extent to which they carry out their own investigations. All detainees are health-screened on arrival at medical centres. Removal centre doctors are required to report to the BIA on any case where concern is felt that the person concerned may have been tortured. We are not over-reliant on NGOs; there is an appropriate level of involvement. We seek to ensure that any allegations of mistreatment, torture and abuse are independently verified wherever possible.

I recognise that this is a difficult and sensitive area. I acknowledge, too, that we aspire to do more, but we have made much progress in that general direction. It is right that we be held to account and that we focus attention on these issues in important debates such as this. However, a lot of progress is being made. I am most grateful to noble Lords for the care and concern with which they have approached the issue.

Lord Hylton: My Lords, I thank all noble Lords who have spoken on the amendments. I was encouraged by the general tone of the remarks. I express my particular gratitude to the right reverend Prelate the Bishop of Winchester, first, for adding his name to my amendment and, secondly, for mentioning the urgent question of the foreign prisoners currently in detention centres. The introduction of a category of people who have never been held in those centres before has caused very considerable problems for detention and removal centres. I very much hope that we shall not continue for very long to hold foreign prisoners whose normal prison sentences have finished. I know that a great deal of work is going on to remove them promptly at the end of their sentences. I have heard that the number of staff working in this area has been increased by a factor of 20. That shows what can be done sometimes when there is sufficient governmental will.

I was encouraged, too, by the Minister saying that the intention is to narrow the gap between policy and practice. I should like that gap to be completely closed—and I make a couple of suggestions on how that might be done. First, much more use might be made of reporting conditions and even tagging of people who might otherwise be detained. Secondly, verification of allegations of torture and rape is fundamental to this issue. I was grateful to my noble friend Lord Sandwich for emphasising that. It is the case holder who really needs to act, and noble Lords will appreciate that the case holder is not normally at the detention centre—he is somewhere else, such as Croydon or Glasgow. Therefore there is a remoteness between the centres and the case holders. I hope that the Government are aware of that.

The situation has been most unsatisfactory for many years, which is why we need the gap between policy and practice completely closed. In this relatively thinly

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populated House and without the support of either of the main opposition parties, I do not intend to press this amendment to a Division, but I reserve the right to return to it at Third Reading and shall take advice on whether a new amendment could be devised that might get underneath the radar. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Support for failed asylum-seekers]:

The Lord Bishop of Ripon and Leeds moved Amendment No. 14:

(a) who is at least 18 years old,(b) who has made a claim for asylum at a place designated by the Secretary of State,(c) whose claim has been recorded by the Secretary of State,(d) who remains in the United Kingdom following the making of that claim for asylum, and(e) who is subject to immigration control but does not currently have leave to enter or remain;”.(a) who is at least 18 years old,(b) who has made a claim for asylum at a place designated by the Secretary of State,(c) whose claim has been recorded by the Secretary of State,(d) who remains in the United Kingdom following the making of that claim for asylum, and(e) who is subject to immigration control but does not currently have leave to enter or remain,”.(a) subsections (2) to (4) of section 4 of the Immigration and Asylum Act 1999;(b) subsections (3) to (6), (8) and (9) of section 94 of the Immigration and Asylum Act 1999;(c) paragraphs 6, 7A and sub-paragraphs (2) and (3) of paragraph 17 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002; and(d) section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (failed asylum seekers: withdrawal of support).”

The right reverend Prelate said: My Lords, I seek to persuade noble Lords of the immense benefit that the Bill could provide for all those involved in the asylum system, were Clause 17 to be extended in its scope. We come to the issue of destitution, which is dealt with also by Amendments Nos. 15 and 17. I welcome the proposals in the clause providing for support during the period of appeal for an asylum seeker, but much more needs to be done. The amendment would fulfil the recommendations of the Joint Committee on Human Rights in paragraph 1.36 of its report of 14 May to provide support for all recorded and detailed asylum seekers who have not yet been removed. If we were to go down this line, it would at a stroke remove much of the scandal of destitution which so mars this area of concern. We

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are grateful to the Refugee Council and the Still Human Still Here coalition of groups and bodies for their persistence in seeking to persuade us to move in this direction.

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