The Government have said that guidance will be issued and that there will be public consultation but I, too, ask whether there will be any debate in Parliament on the guidance. What will be the Government’s reaction if the public consultation shows clear concern about the potential impact of the new offence? Will the Government then decide not to bring it into force? If the new offence does come into force, what regular checks and reviews will be put in place to ensure that the concerns that have been raised about its potential adverse impact on community relations and discrimination are not materialising? What ongoing liaison, consultation and discussion will there be between the Government, the police and those in our diverse community who feel strongly that this new offence could do more harm than good? They say that, among other reasons, in the light of the evidence, you are more likely to be stopped and searched if you are black or from a minority-ethnic group.

As has already been said, this is about what might happen in practice as opposed to what should happen, as set out in the letter to which reference has already been made of 1 March, which I accept also made reference to the pilot over the use of the search power in Clause 41 in one or two police areas before proceeding with a national rollout. I very much hope that the Minister will address the specific points that I have raised on what might be the outcome of the public consultation, and on the issue about the regular checks and reviews that will be put in place to ensure that if the offence does come into being what happens is what should happen, as opposed to the very real fears that have been voiced today that it will potentially cause damage to community relations and increase discrimination.

Lord Bates: My Lords, I will come to the points raised in this debate shortly but first I shall speak to the two government amendments in this group, standing in my name.

Amendments 75 and 76 would introduce a mens rea to the offence of driving while being unlawfully present in the UK. As currently drafted, the driving offence contained in Clause 42 is one of strict liability, on

15 Mar 2016 : Column 1770

which the noble Lord, Lord Rosser, raised some significant concerns in Committee. Following that exchange, we agreed to reflect further on the issue. I believe that we are of one mind in our intention to ensure that migrants are not prosecuted for this offence where they hold a genuine and reasonable belief that they are in the UK legally. The Government have been persuaded that it would be appropriate to place further safeguards on the face of the statute. These amendments introduce a mens rea element so that an illegal migrant will only commit the offence of driving while illegally present if they knew or had reasonable cause to believe they were in the UK illegally.

This will protect those who genuinely and reasonably believed they were here in the UK lawfully, while ensuring that other migrants cannot seek to avoid prosecution by avoiding contact with the Home Office and/or their legal representatives, in order to establish the necessary doubt as to whether they could reasonably be expected to have known they were required to leave the UK. I invite noble Lords to support these amendments.

I am grateful to the noble Lord, Lord Paddick, for moving his amendment. I fully accept that he is very sincere, but he also has a professional track record as he has worked in these very complex areas of community cohesion here in the capital, and has done so with great distinction over a long career. Of course, the work of the noble Baroness, Lady Lawrence, for victims and improving community cohesion is well recognised. For that reason, it was very important that we had that meeting on 22 February where we sat down with officials to discuss the implications and workings of this clause. I am sure that they will testify to the fact that it was not necessarily an easy or cosy gathering. There were some strong feelings and concerns on all sides which were expressed at that time. One of the things that your Lordships’ House does repeatedly in many areas that is immensely valuable—officials may not have appreciated it fully at the time, but they have come to—is to bring great understanding, background and perspective to these very complex areas to pose the key questions that need to be addressed.

That said, I turn to the amendments, because they stem directly from that meeting. We went back afterwards and asked how we do this. As the noble Lord rightly pointed out, the Home Secretary is acknowledged to have made significant steps in improving community cohesion, in particular in tackling abuse of stop-and-search powers. That is why numbers have fallen. Part of the reason why that happens is that the number of incidents is now recorded so we can see what is happening on the ground. I set out in my letter—more like an epistle, as the noble Lord, Lord Alton, might say—to noble Lords over some three or four pages on 1 March how that operated in practice and the effect it was having.

We have brought forward two things: to recognise that we are making significant progress to improve community relations, and to maintain the confidence of all communities in the police to act fairly and justly, as my noble friend Lord Deben and the noble Lord, Lord Green, said. Nothing must be done to put any of that at risk. That is why we are proceeding cautiously in this area by introducing a pilot scheme, as mentioned.

15 Mar 2016 : Column 1771

On the concerns that focused on police use of these powers with particular groups, these clauses are important and necessary. We do not issue driving licences to illegal migrants and we revoke driving licences held by them. So far we have revoked some 16,000 UK driving licences held by illegal migrants, but less than 1,000 have been returned, even though it is a criminal offence to retain them. As these licences hold a value as a form of identification that can help an illegal migrant settle in the UK, it is important that they are removed from circulation. Clause 41 provides the best opportunity for us to do this when a person is apprehended as an illegal migrant.

The Government cannot, however, revoke foreign-issued driving licences. Without Clause 42, illegal migrants would be able to drive on valid, foreign-issued licences without consequence. This, in turn, facilitates their ability to stay unlawfully in the UK, to look for work and to work illegally. Illegal immigrants should not be driving on our roads. They have shown a disregard for the laws of this country—that is the very point that my noble friend Lord Deben raised. Therefore, it is absolutely right that we legislate to ensure that they are unable to do so.

I re-emphasise the following points. First, these clauses do not create new powers to stop persons or vehicles. Secondly, we intend the police to use these powers reactively after they have already stopped a vehicle for an objective reason—I will come back to that particular use of words, as the noble Lord, Lord Alton, asked me to—such as a driving offence. I emphasise that these powers will not be used by the police to stop vehicles simply to check the immigration status of the driver. That is an important distinction between the roles and responsibilities of the police and of immigration enforcement. It is one that we recognise should be maintained. Thirdly, these powers must be used proportionately. To that end, we have put in place safeguards against misuse.

Finally, I reiterate that the Government are absolutely clear that no one should be stopped, under existing police powers, on the basis of their race or ethnicity. This would be unlawful. The Government also remain absolutely clear in their commitment to reform the use of police stop-and-search powers so that they are applied in a way that genuinely protects our communities. We would not bring forward any proposal that we believe might undermine this work.

We have listened carefully to the concerns raised about these clauses. In response, the Home Office will go further. We will issue guidance to police and immigration officers on the operation of these powers and we will consult publicly on that draft guidance. This consultation will take place before implementation. It will raise awareness and provide an important gateway through which communities will be able to consider and comment on, among other things, appropriate safeguards.

5.45 pm

The Home Office will also pilot use of the search power contained in Clause 41 in one or two police areas before we proceed with a national rollout. This will allow us to test the operational details so that any impacts can be identified by the pilot scheme and addressed. This approach is consistent with that taken

15 Mar 2016 : Column 1772

to implement similar police and immigration search and seizure powers for nationality documents to identify foreign nationals when they are arrested for criminal offences contained in Sections 44 to 46 of the UK Borders Act 2007.

Turning to some of the points raised, my noble friend Lord Deben asked about training for the police. In 2014, the Home Secretary commissioned the College of Policing to conduct a comprehensive review, at all levels in the police force, of the use of stop-and-search powers. It is intended that the training will focus on effective and fair searches. It will include awareness and the ability of the police to stop and search if they fail their stop-and-search assessments. Unconscious bias training in particular will impact on these search powers.

On the particular meaning of the words “reasonable grounds”, this can never be supported on the basis of personal factors. In practice, this means that, unless the police have specific information or intelligence that provides a description of the person believed to be carrying a UK driving licence and that person is in the UK illegally, the following cannot be used alone, in combination with each other or with any other factor as the reason for searching any individual. This is set out in Police and Criminal Evidence Act Code A, which will be reflected in specific guidance issued to the police and other enforcement officers in the operation of Clause 41.

On parliamentary scrutiny, I will ensure that a copy of the draft guidance is placed in the House Library when the consultation is launched. I will ensure that a report detailing the outcome of the consultation is also put in the Library. I will go a little further, because I do not think that that response quite addresses the point we were getting at. We have some particular expertise in this House. I would certainly like to make sure, when the consultation document is published, that we reconvene—with the permission of the Opposition Front Bench—in particular with the noble Lord, Lord Paddick, and the noble Baroness, Lady Lawrence, to meet with officials again when we have that draft consultation to get the noble Lord’s and the noble Baroness’s perspective on that. How the pilot scheme will be framed will also be looked at. Again, we would value the noble Lord’s and the noble Baroness’s perspective. We will make sure that that happens before they are brought forward and placed in the Library, and before the pilot commences.

The noble Lord, Lord Rosser, asked a perfectly reasonable question on what will happen after the consultation and the pilot have taken place. Because the consultation will be published and the pilot will have taken place, we will have an opportunity to discuss again how the guidance ought to be implemented. Of course, that means that all options are open following such a trial, otherwise it would be pretty pointless having a consultation. The consultation is a genuine one, because this is an area where progress has been made. We are dedicated to the fact that we will not see anything happen that could possibly be a regressive step in this very important area of social cohesion, while at the same time ensuring that the Government can implement their right in the manifesto to introduce these offences for people who are illegally here in the UK.

15 Mar 2016 : Column 1773

Lord Paddick: My Lords, I am very grateful to the Minister for addressing the concerns that we have. I had already challenged his script on safeguards when I moved my amendment. When he went off-script, he was more reassuring as far as I am concerned.

I am also grateful to all noble Lords who participated in this debate. To reply to the noble Lords, Lord Deben and Lord Green of Deddington, I was a police officer for more than 30 years and considered long and hard what I would say this afternoon. It is a significant thing for me to say it but at the end of the day my real concern with these measures is the fundamental issue that they are likely to bring the police more into conflict with black and ethnic minority communities, and the consequences there could be from that.

However, it does not really matter what my opinion is, despite my police experience. The issues are complex. Very few if any police officers are deliberately racist but, as the Minister said, the training that the Home Secretary asked the College of Policing to look into is to address what he described as “unconscious bias”. At the end of the day, what is the explanation for the fact that, according to the HMIC survey, you are twice as likely to be stopped as a driver if you are black compared with if you are white? What is the explanation that you are four times more likely to be stopped and searched by the police if you are black than if you are white? If those are the facts do we really want to take the risk of giving the police these additional powers in the absence of any credible explanation for the facts as we know them? Those concerns remain but I beg leave to withdraw the amendment.

Amendment 74 withdrawn.

Clause 42: Offence of driving when unlawfully in the United Kingdom

Amendments 75 and 76

Moved by Lord Bates

75: Clause 42, page 35, line 3, after “if” insert “—(a)”

76: Clause 42, page 35, line 5, at end insert “, and

(b) at that time the person knows or has reasonable cause to believe that the person is not lawfully resident in the United Kingdom.”

Amendments 75 and 76 agreed.

Amendments 77 and 78 not moved.

Amendment 79

Moved by Baroness Doocey

79: After Clause 43, insert the following new Clause—

“Ability to pay the immigration health surcharge incrementally

In section 38 of the Immigration Act 2014 (immigration health charge), in subsection (3)(c), after “State” insert “, including allowing the surcharge to be paid in multiple payments”.”

Baroness Doocey: My Lords, I will also speak to Amendment 80 in my name. Amendment 79 provides for health surcharges levied on non-European Economic Area migrants to be payable in instalments. The annual

15 Mar 2016 : Column 1774

£200 charge for every adult and child came into effect last April and is payable upfront for the whole period of a visa whenever one is renewed. Since leave to remain, if granted, is normally for two and a half years, the upfront fee payable is £500 per person. The health surcharge comes on top of breath-taking application fees that will rise this Friday from £649 to £811 per person—a huge increase of 25%. To illustrate this, a mother of three will need to find £3,244 for the application fee plus a further £2,000 for the upfront health charge for the period of the visa. Families unable to pay these eye-watering sums cannot renew their visa and are faced with a stark, heartbreaking choice: find the money or face destitution or deportation. That is some choice.

In Committee, the Minister had three reservations about my simple, humane plan to avoid vulnerable people placing themselves in debt or poverty to pay the Home Office. He said:

“Upfront payment of the full amount … is … far simpler than requiring migrants to make multiple payments”.

Yet the provisions of the amendment need apply to only a small number of cases where the migrant simply does not have the resources to pay upfront. These cases could be the exception rather than the rule. The Minister also said:

“It would be difficult, complex and costly … to enforce payment of the charge once the visa had been issued”.

I simply do not accept that because the Home Office could make the granting of the migrant’s leave to remain subject to and conditional upon the fees for the previous leave to remain having been paid in full according to any agreed payment schedule. The Minister’s third concern was that:

“If you offered interest free credit in the commercial world … most people would take advantage of it”.—[Official Report, 1/2/16; cols. 1613-14.]

Could the Minister name any other service for which he or anyone else would expect to pay fees two and a half years in advance? He cannot justify driving people into the arms of loan sharks and payday lenders just to make the Government’s life simpler. He must surely see the case for at the very least annualising these payments.

Amendment 80 seeks to extend the categories of migrant exempted from the health charge to include those who have fled domestic violence, and dependent children. The Minister recently visited the Cardinal Hume Centre and saw first-hand the outstanding work it does with migrants with little money who are trying to navigate the law. He heard about one client the centre helped: a mother of four children who works for the NHS. She did not have the £5,700 to pay the admin and health fees for herself, her husband and her four children, so first she got an overdraft and then she borrowed the remainder of the money. She now faces crippling debt and is saddled with not just that debt but also the stress of knowing that in 30 months she must find even more money because the fees will have increased when the family need to reapply for their visas. Her case demonstrates that the fee-waiver system available for migrants unable to pay is simply not working. The Minister saw for himself a number of examples of this on his visit.

15 Mar 2016 : Column 1775

Of course, the position of these people who have fled domestic violence is even worse. They face an invidious choice between borrowing the money to pay the fees or returning to their abuser. The existing exemption for victims of domestic abuse is far too narrow as it protects only people with British spouses. I hope that the Government can prove their compassion this afternoon by making a positive response to both these amendments, including giving an assurance that they will at least review the operation of the fee-waiver system. I beg to move.

Lord Alton of Liverpool: My Lords, I support the noble Baroness, Lady Doocey, who introduced Amendments 79 and 80 with her customary conviction and compassion. She made an extremely eloquent case in their favour but also illustrated them with a poignant and vivid example from her visit to the Cardinal Hume Centre. Having spoken in Committee to urge the Minister to visit that centre with the noble Baroness, I pay tribute to him for going there and seeing it first-hand. I know how much the centre appreciated that.

Incremental payments would be a huge step forward for families that find themselves trapped—the sorts of families that the noble Baroness described in her remarks. Migrants such as those at the Cardinal Hume Centre are not trying to cheat the system or avoid paying the fees to remain. They recognise that there are rules they must adhere to and that they must pay the charges. In fact, those who can will indeed save for the visa application fee. However, the burden of having to source the necessary funds to pay upfront the application fee and the health surcharge—which many are still unaware exists—is unsurmountable for many of those involved, especially families.

6 pm

I reinforce what the noble Baroness, Lady Doocey, said about the extraordinary increase in the cost of these fees from £649 to £811. The noble Baroness referred to these as “eye-watering” sums. How on earth can we justify a 25% increase in costs? Imagine if a high street bank, a petrol filling station, a supermarket chain or a railway company announced that it was to hike up its prices by 25%. There would rightly be public indignation. This group of people, of course, are not in a position to express public indignation, and so we think that it is perfectly all right to increase the cost by this sort of level. Instead of explaining why that is necessary, they are simply told that this cost will be imposed on them. Will there be a 25% increase in value for money or in personnel in the Home Office dealing with visa applications? How will this money be used and why is it necessary to put up the price by this amount? Instead of softening the blow with incremental increases, the Government will do precisely the opposite unless the noble Baroness’s amendment is accepted. Allowing these migrants to pay the charge incrementally would ease the burden while allowing them to continue to work and contribute to our economy and society, without causing unnecessary hardship.

On Amendment 80 and domestic violence, to which the noble Baroness referred, the current protections and exemptions for victims of domestic abuse are far too narrowly defined. In the experience of Women at

15 Mar 2016 : Column 1776

the Well, a drop-in centre specialising in supporting women with a complex range of needs, including those affected by domestic abuse, the fear of losing status or incurring great cost can deter women from escaping abusive relationships. The free access to emergency care for victims of domestic abuse is commendable, but with the fear of being deported or left destitute many women will continue to feel that they cannot escape their abusive relationship. The current exemption protects only those women who are here as partners of British citizens. Legislation should protect all women who are victims of domestic violence, not just those with British spouses. I press the Minister to explain why that inconsistency, as it seems to me, is in the law.

The Government have spoken frequently of their track record of supporting women who are victims of domestic abuse. The noble Baroness, Lady Anelay of St Johns, does a superb job in that area and has pushed forward this policy on behalf of the Government, to which I pay tribute. This sensible change that the noble Baroness, Lady Doocey, proposes would surely add to that record and not in any way detract from it. The extension of this exemption would not be disproportionately expensive, nor would it be too difficult to administer, but it would make an enormous difference to the lives of women affected by abuse and trauma. We are indebted to the noble Baroness, Lady Doocey, for retabling these amendments on Report. I hope that the Minister will give them a favourable response.

Baroness Kennedy of The Shaws (Lab): I rise to speak to Amendment 81 standing in my name. I also support the amendments just spoken to which concern the ways in which these charges are having a serious impact on women’s lives.

The House will remember that on a previous occasion I raised the issue of access to higher education for young people leaving care who have leave to enter and remain in the United Kingdom. I was deeply concerned about the way in which these opportunities would be unavailable to certain categories of people. In response to my previous amendment, the noble Lord, Lord Bates, very kindly agreed to set out the position in relation to home tuition fees. I was concerned that people who have leave to remain and have been in care are expected to pay the fees as if they were overseas students—as if they were Americans choosing to come to study in Britain. That, of course, is not the case. The fees are very much higher and cause serious detriment to those who want to have the opportunity to undertake education.

I am grateful to the Minister for setting out his rationale and that of the Government. I should make it clear to the House that the Government consider that there is already generous provision for those who have been granted refugee status. So those who have gone through the process and obtained refugee status can get home fees and access the student support regulations, which means that they can get a loan. That is also available to those granted humanitarian protection, if they can demonstrate that they have been lawfully in residence—ordinarily resident—in the country for three years.

15 Mar 2016 : Column 1777

But what came through in the reply to my concerns was that local authorities would be prevented from paying the higher education tuition fees of adult migrant care leavers who are not refugees and do not meet the humanitarian criteria. I ask the Government to think again on this, and I shall explain why. By preventing this discretion—which is used very sparsely by local authorities—to provide assistance in the few cases where this situation arises, we are blighting the lives of many talented young people.

I have mentioned before that I am the president of a foundation bearing my name which provides bursaries to very disadvantaged people, including young refugees, young people who have fled humanitarian crises and those who have leave to stay. One such person is a young man, Ade, a Nigerian, who was trafficked to the United Kingdom when he was a child of 14 or 15 for the purposes of exploitation. He managed to escape but was on the streets and was homeless. He was taken into care at the age of 16 and classified as a looked-after child by Salford local authority. He subsequently claimed asylum and was granted limited leave to remain.

As a looked-after child, Ade received full financial support from Salford. He was recognised as being a very clever high achiever and was offered a place at the University of Salford, where he successfully negotiated a full tuition waiver. He was not eligible for student finance due to his immigration status but he got the waiver. Salford local authority covered the additional costs of studying by providing his accommodation and living costs. If he had not had that support, this young man would have been unable to complete his education at university. He graduated with a 2:1 and went on to do a master’s degree. He received his master’s with a merit just last summer. He is now seeking employment. If he had not had that support from Salford local authority and the Article 26 campaign group, which has also supported him, we would not have this young graduate, who will contribute to life here in Britain. He is now applying for British citizenship, as I said.

I ask the Government to think again because there should be exceptional circumstances in which the very able are given the kind of support that Ade has had. If it had not been available, at the very best he would be seeking to embark on his journey at this stage of his life rather than when he was able to. As I said, he is an incredible young man.

I want to impress on the Government that care leavers who have had leave to remain, and whose future lies in the United Kingdom, should be able to access student finance and home fees, and should not be expected to pay overseas fees as they are now. We could, for example, apply the three years’ ordinary residence in their cases, too—because Ade had been here for three years. I really want to impress on the Government that by having a blanket rule that local authorities cannot do this we are going to visit hardship on deserving cases.

Baroness Lister of Burtersett: My Lords, I will speak briefly in support of Amendments 79 and 80, to which I have added my name. The noble Baroness,

15 Mar 2016 : Column 1778

Lady Doocey, has already made a very powerful case, as has the noble Lord, Lord Alton. While I appreciate the care taken by the Minister in his letter of 3 February, I am disappointed that the Government were not willing to budge an inch on what I—perhaps naively—thought was a rather small, albeit important, couple of amendments.

In Committee, the noble Baroness was rightly dismissive of the administrative arguments to justify refusal. Will the Minister give the House some idea of what the exact administrative costs are likely to be and what assumptions the Government made in deciding that it would be too administratively costly? Will he also give some idea of how many people in a year meet what he himself has described as the “narrowly defined” test to qualify for exemption on destitution grounds? While I prefer clear, legal entitlements, in the spirit of what the noble Baroness, Lady Doocey, suggested, I wonder whether there is room for building on the destitution exemption.

For example, if an applicant could demonstrate the difficulties that an up-front payment would cause, short of meeting the destitution test, they should be allowed to pay in a limited number of instalments. This would be clearly circumscribed. In some cases, we are talking about really large sums, but even where it is just the most basic payments, it is still a lot for someone with very limited means to pay as a one-off. That point has not been adequately taken on board.

What I am suggesting would get round the fear, expressed by the Minister, of people being able to use payment by instalments as an interest-free loan, regardless of their capacity to pay up front. We are not suggesting that anybody can come along and say they would like to pay in instalments—just those who may not fail the destitution test but who would clearly face real problems.

On the domestic violence exclusion, how many people have been exempted under the rule—brought in, according to the Minister’s letter, in April 2015—that exempts treatment needed as a consequence of domestic violence? Would it not be simpler just to exempt all those who have been a victim of domestic violence, rather than making applicants prove that any physical or mental health needs are a direct consequence of it? We know, from other contexts, how difficult it is to prove these impacts—particularly on mental health—in a way that satisfies authorities. It can also be very distressing to have to provide that proof.

I have received an email expressing support from the Royal College of Nursing, which is very concerned about the workings of the health surcharge. One of its concerns is to know what mechanisms exist, and what assurance the Government can offer, that the revenue generated is redirected back into the NHS.

Finally, I support Amendment 81, tabled by my noble friend Lady Kennedy of The Shaws. I quote from the conclusions of a study carried out by the UN High Commissioner for Refugees and the Council of Europe, which adds to the strong case already made and states:

“Access to education should be better supported, including, where necessary, after young unaccompanied and separated asylum seekers and beneficiaries of international protection have reached the age of majority, as it plays a critical role in their transition”.

15 Mar 2016 : Column 1779

We had an example of that from my noble friend. It is important that we support these young people in such a difficult transition period.

Lord Roberts of Llandudno: My Lords, I support the amendment tabled by the noble Baroness, Lady Kennedy. It was such a help to those such as me who have been involved in church education for people from overseas. I hope that the House will support it.

6.15 pm

Lord Bates: Noble Lords will be aware of the background to the immigration health surcharge, which I set out in the debate on these amendments in Committee.

There are significant practical difficulties in introducing the incremental payments, proposed by Amendment 79, which would place additional burdens on the Home Office and the NHS. It is not simply a question of changing Home Office IT, but of introducing a mechanism through which the Home Office could monitor payments, chase those who had missed them and take action against those who refused to pay. Around 560,000 migrants are expected to pay the surcharge each year, and many of these may take the opportunity to pay in instalments. The resource implications for the Home Office of administering an instalment system could, therefore, be significant. If we were unable to recover unpaid instalments from some migrants, the NHS would suffer a loss of income. An instalment system might also be open to abuse from those seeking to come to the UK in order to receive NHS care, as they could simply stop making their payments once treatment had been received.

Amendment 80 would exempt all children under the age of 18 from paying the charge, together with those who are victims of domestic violence. I do not think it unreasonable for parents or guardians of a migrant child to bear the responsibility of paying the charge for their child. Further, and as set out during our previous debate, exemptions are already in place, in certain circumstances, for children and victims of domestic violence.

I have also reflected carefully on the points raised in Committee. At the invitation of the noble Lord, Lord Alton, the noble Baroness, Lady Doocey, and I had a very productive morning at the Cardinal Hume Centre. I know that a number of noble Lords are involved there in different ways—I was talking to the noble Lord, Lord Touhig, today and he said that he was involved. The noble Lord, Lord Alton, does a huge amount of good work in connection with the centre. I was amazingly impressed by the quality of the staff who undertake the cases there.

When we were there, we talked with officials and wondered whether there was a way we could engage more structurally with organisations like the Cardinal Hume Centre. The centre gave us a list of cases relating to the visa waiver and made the point that it used to be possible to secure the waiver but that, following some change, it was now more difficult. We took those cases away but, for reasons which I totally understand, the Cardinal Hume Centre was not able to give us the individuals’ names and contact details, which made it difficult for us to check. However, we have been in

15 Mar 2016 : Column 1780

contact with the centre again this morning to see if we can set up a meeting to explore how the relationship might work. There would be benefits for both parties—from the Home Office point of view we would have another external validation system. The centre staff are deeply caring but not overly sentimental about it: they just want to provide practical help to people. Partnering with organisations like that can be immensely helpful and I am grateful to noble Lords for setting that up

To clarify the situation, applicants will qualify for a fee waiver if they provide evidence to show that they are destitute or would be rendered destitute by payment of the fee, or there are exceptional circumstances relating to their financial situation. Where an applicant is in receipt of local authority support and has their accommodation and other essential living needs met, they will not be destitute. To qualify for a fee waiver, they must show that they would be rendered destitute by payment of the fee or that there are exceptional circumstances. As they are unlikely to have additional disposable income and there may be no prospective change in their financial circumstances that would enable them to pay the fee, we need to ensure that they are required to provide evidence that they meet the fee waiver policy in as straightforward a manner as possible.

It is important that the Home Office is able correctly to establish whether an applicant qualifies for a fee waiver. It will not surprise the House to learn that some applicants seek not to pay the fee that is properly applicable in their case. From 6 April 2015 to 28 February 2016, there were around 11,130 applications for a fee waiver. Of the fee waiver applications considered in that period—around 11,140, including some predating that period—around 84% were refused. This underlines the importance of the work the Home Office is doing to protect an important revenue for the NHS of around £100 million per year. It also underlines the importance of ensuring that those applicants who are able to show that they qualify for a fee waiver are enabled to do so as effectively as possible.

If the applicant qualifies for a fee waiver, the health charge is also waived, so there is no need for an exemption or for payment by instalments. There are also exemptions in place, as I have described, for vulnerable children, such as asylum seekers or victims of trafficking, and for victims of domestic violence who apply for limited leave under the destitute domestic violence concession.

Amendment 81, in the name of the noble Baroness, Lady Kennedy of The Shaws, on student support for care leavers, would give student loan access to care leavers with limited leave to enter or remain who have been ordinarily resident in the UK since they were granted that leave. It would also require that such cases, as well as care leavers with an outstanding asylum claim or immigration application, be charged home rather than international student fees.

The Government are currently considering their response to the public consultation by the Department for Business, Innovation and Skills on the terms on which those without settled status and who are not otherwise able to access student support by virtue of our international obligations should be eligible for

15 Mar 2016 : Column 1781

student support. The consultation followed the Supreme Court ruling in July 2015 in the case of Ms Tigere that the policy of refusing access to a student loan solely on the grounds that the person did not have settled status in the UK was not compatible with the European Convention on Human Rights. The Supreme Court left it to the Government to consider the options for a revised policy. The Supreme Court judgment also upheld the Government’s policy of requiring all persons—with the exception of refugees, who are given immediate access to support—to be lawfully resident in the UK for at least three years immediately prior to starting their course.

We think it is appropriate that there should be some distinction between a person who is a British citizen or who has long residence here or an immigration status of the sort that means they now have a solid connection with the UK—for example, refugee leave, humanitarian protection status or indefinite leave to remain—and a migrant with limited immigration status, or none at all but with an outstanding asylum claim or immigration application, who has not yet established a solid connection of that sort with the UK.

Turning to the questions that were raised, the noble Baroness, Lady Lister, asked about domestic violence exemptions. Those who pay the charge will be eligible to use the NHS free of charge for the duration of their stay without any further treatment charges being imposed. However, a person who applies for limited leave under the Home Office destitute domestic violence concession is exempt from the charge and will receive free NHS care for the period of that leave, during which they will make an application for permanent status in the UK. Those are the circumstances in which a victim of domestic violence gets free healthcare. The noble Baroness asked whether it would be possible to simplify the process by exempting all children and victims of domestic violence. We think that sufficient safeguards are in place for ensuring that vulnerable children and victims of domestic violence are able to use the NHS without charge, and a blanket exception is therefore unnecessary.

I was asked whether the Home Office could not make an exception from collecting all the charges upfront. Any move to an instalment approach, including setting up separate systems for exceptional cases, would be costly and administratively difficult. But it is not just that. The Home Office would also need to ensure that payments were made when due and would need to chase payments if they were not made and take enforcement action which could involve curtailing the person’s leave.

I was asked how much had been collected. In the first six months since its introduction, the immigration health surcharge collected more than £100 million—I correct my previous comment that it had produced £100 million in a year. That was in the first six months so, annualised, it is going to be much more than that.

The noble Baroness, Lady Doocey, and the noble Lord, Lord Alton, asked how charge payers access the NHS. Those who pay the charge and are subsequently granted entry clearance or leave to remain receive NHS care in the same way as a permanent resident. I was asked why the charge cannot be paid in multiple payments. I have addressed that point.

15 Mar 2016 : Column 1782

The noble Baroness, Lady Kennedy, said that the numbers of those requiring support by local authorities for tuition fees are very low. We disagree with that. Even one or two cases create a significant burden for local authorities. International fees range on average from £12,000 to £15,000 per year. These costs are also a significant disincentive to local authorities participating in the voluntary transfer of unaccompanied asylum-seeking children.

I was asked what the criteria were to qualify for the fee waiver. The qualification is that an applicant is destitute or would be rendered destitute by payment of the fee because they are unable to pay the fee now or to save the required amount within a reasonable period—which is 12 months, as determined by the rules—and they have no ability to borrow the required amount from friends or family, or that there is no basis for concluding that their financial circumstances are likely to change within that reasonable period, or there are exceptional circumstances relating to their finances.

In relation to the visa fees, I totally understand the point made by the noble Baroness, Lady Doocey, about the very significant increases. We changed the policy here and introduced a policy based on the belief that the user should pay; in other words, that the resident taxpayer should not be picking up the bill for people who are getting the benefit of coming to this country to study, visit or secure their citizenship. Therefore, the view was that that should be self-financing and the increases in the fees reflect that imperative.

I was asked how migrant families could be expected to pay the upfront amount. Migrant families entering the UK will be aware that they need to pay the health charge if they are here for more than six months in a temporary capacity, and will therefore need to plan their finances accordingly.

There is another letter to add to the many, which is the letter I sent to the noble Baroness, Lady Kennedy, on 8 March. I notice that that was not shared with other Members. I can place a copy in the Library, but if other Members are interested in seeing a copy of that and the reasons set out for student support for care leavers, I am very happy to make that available. I have written to the noble Baroness on these issues and have asked if she would be willing to meet Ministers at the Department for Business, Innovation and Skills to discuss her concerns. It is important that we frame the eligibility criteria for student loan access in a way which takes proper account of immigration status and is fair across all categories, including to the resident population.

While I might not have gone all the way in addressing all the concerns raised by noble Lords, I hope that with these explanations we have at least moved a little further down the road to addressing some of them and explaining the reasons why we cannot move further in other areas.

6.30 pm

Baroness Doocey: My Lords, first, I thank all noble Lords who have spoken on this amendment. Much as I admire and respect the Minister, I certainly do not think that he has moved very far, let alone come some way. However, perhaps I could deal with the various bits in the amendments.

15 Mar 2016 : Column 1783

On Amendment 79, I am very disappointed that the Government are unable or unwilling to introduce a system whereby some migrants could be allowed to pay in instalments. I am totally unconvinced by the argument that it would be difficult to set up and monitor a system. Almost every company in every country in the world has such a system. It is simple IT, not rocket science, so I simply do not buy that argument at all.

The Minister’s explanation of why the Government will not extend the exemptions for domestic violence is, to me, probably the most awful thing that I have heard today. I have absolutely no doubt that this provision will force some people either to use loan-sharks or back into the arms of their abusers. This is certainly not what either of us wants and it is dreadful.

The Minister made a point on the fee waiver about people needing to be destitute. He will remember that, when we were at the Cardinal Hume Centre, one of the cases mentioned was that of a man who had been homeless for two years, but the Home Office would not accept that somebody who had been homeless for two years and was living on the streets was destitute. If that is not destitution, I do not know what is. As the Minister so rightly said, the Cardinal Hume Centre does not have stars in its eyes when people come in; it makes checks and is very careful to make sure of the facts. I am speaking from memory, but I think that it had letters from two separate charities, confirming that this man was destitute. Yet despite giving that evidence to the Home Office, he was not accepted as destitute.

I am concerned that, although the Minister has seen evidence of the current operational problems with the fee waiver system, he has been disappointingly unclear as to what the Government are going to do to improve that system. I would really like to discuss this further with the Minister between now and Third Reading but, for now, I seek leave to withdraw the amendment.

Amendment 79 withdrawn.

Amendment 80 not moved.

Amendment 81

Tabled by Baroness Kennedy of The Shaws

81: After Clause 43, insert the following new Clause—

“Access to higher education for young people leaving care who have leave to enter or remain

(1) The Secretary of State for Business, Innovation and Skills shall make regulations identifying as eligible for student support a person who—

(a) has leave to enter or remain;

(b) is a person to whom a duty is owed by a local authority under section 20, 21, 22, 23A, 23C, 23CA, 24A or 24B of the Children Act 1989;

(c) is ordinarily resident in the UK and has not ceased to be so resident since the person was granted leave to enter or remain; and

(d) is ordinarily resident in the UK on the first day of the first academic year of the course.

(2) The Secretary of State for Education and Skills shall make regulations providing that tuition fees may not be charged at a higher rate for a person who—

15 Mar 2016 : Column 1784

(a) has leave to enter or remain in the UK;

(b) is an asylum seeker; or

(c) has made an application for leave to enter or remain in the UK which has not been finally determined;

and to whom a duty is owed by a local authority under section 20, 21, 22, 23A, 23C, 23CA, 24A or 24B of the Children Act 1989.

(3) For the purposes of this section, a duty owed to a person by a local authority shall be interpreted as if Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support) did not apply.

(4) “Student support” means financial support by way of grant or loan made by the Secretary of State pursuant to regulations under section 22 of the Teaching and Higher Education Act 1998 (new arrangements for giving financial support to students).

(5) “Tuition fees” means fees payable for a course of a description mentioned in Schedule 6 to the Education Reform Act 1988 (courses of higher education).”

Baroness Kennedy of The Shaws: Before I indicate my position, I say that I am grateful that a promise has been made that I might have the opportunity of meeting the Department for Business, Innovation and Skills because, in drafting Amendment 81, I did not mention that it would be possible to reach a compromise. That compromise would be to create the same basis as we do for those who are here having fled from a humanitarian crisis. In those circumstances, we provide the special assistance of home fees and access to loans only if people have been here for three years. This usually means that they have been given leave to remain a number of times and had to make an application more than once. In the same way, and in offering a compromise, I suggest that for those people who have been domiciled for three years there might be some movement on the position currently taken by the Government.

This is obviously an expression of disappointment but I emphasise that while it is costly if a local authority has to pay overseas fees for such students, that is precisely what it should not be expected to do. The fees should be the home fees. If we have taken people in and provided them with care—as though we are their parents—then in moving on to the next stage of their lives, if they are still here because they have been trafficked and are still living in fear we should provide home fees. That would take things within a more reasonable remit for local authorities. However, I am grateful for the Minister’s offer that I might have the opportunity of meeting the department, which I would really like to take up, so I will not move my amendment.

Amendment 81 not moved.

Clause 49: Search for nationality documents by detainee custody officers etc

Amendment 82

Moved by Lord Keen of Elie

82: Clause 49, page 46, line 6, leave out “, or intends to make,”

The Advocate-General for Scotland (Lord Keen of Elie) (Con): My Lords, I propose to address a range of amendments relating to Part 3 of the Bill. I shall turn first to government Amendments 82 and 83. During

15 Mar 2016 : Column 1785

Committee the noble Lord, Lord Paddick, raised concerns that the Secretary of State’s ability to direct prison and prisoner custody officers to search persons in respect of whom she “intends to make” a deportation order was too wide. While the noble Lord accepted our assurance that it was the Government’s intention to capture those foreign national offenders who are liable to deportation and who have been given a notice of a decision to make a deportation order against them, he asked us to reflect on why such clarity could not appear in the Bill. We have taken on board this point and have therefore tabled Amendments 82 and 83, so that the power is expressed by reference to a person being given a notice rather than simply the intention of the Secretary of State. I trust that this allays the noble Lord’s concerns.

I turn to the matter of bail conditions and, in particular, to the government amendments between Amendments 88 and 112. This is a somewhat lengthy set of amendments to Schedule 9, in response to the concerns raised by Peers about the Secretary of State having the ability to impose an electronic monitoring or residence condition where the tribunal decided not to do so. As I said in Committee, having recognised the constitutional concerns that were raised, the Government have thought again about this. I will try not to take up too much of your Lordships’ time but it may help if I describe the effect of these amendments in a bit more detail, in addition to responding to the probing amendments laid by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick.

Amendments 88, 89, 90 and 91 would replace the current approach with a statutory duty on both the Secretary of State and the tribunal to impose an electronic monitoring condition when granting bail to an individual being deported. This would limit the provision to foreign national offenders or those whose deportation has otherwise been deemed conducive to the public good, such as on national security grounds. This duty would not apply if the Secretary of State considered that imposing electronic monitoring would be impractical or contrary to a person’s convention rights. Just as the Secretary of State or the tribunal must impose an electronic monitoring condition where the duty applies, they must not impose such a condition where the duty is disapplied. If a person wishes to challenge the Secretary of State’s decision that the duty should not be disapplied, they can do so by way of judicial review. Separately from the duty to impose electronic monitoring, the amendments make it clear that the tribunal may not vary an electronic monitoring condition. This is simply a matter of clarification as, in paragraph 4 of Schedule 9, the arrangements for electronic monitoring are a matter for the Secretary of State.

Amendment 89A would mean that any individual granted bail must be subject to an electronic monitoring condition save in exceptional circumstances, including where monitoring would breach the individual’s human rights. This amendment would therefore significantly expand the application of the duty to impose electronic monitoring, which is limited to individuals in the process of being deported. We do not consider this amendment necessary. In non-deportation cases, electronic

15 Mar 2016 : Column 1786

monitoring should remain a discretionary condition that the Secretary of State or the tribunal can impose having weighed the individual’s circumstances, as they are not as intrinsically high risk as the deportation cases. In reaching that decision, the tribunal and the Secretary of State will continue to be bound by Section 6(1) of the Human Rights Act, which makes it unlawful for a public authority to act in a way which is incompatible with a convention right.

Amendment 91A would mean that the Secretary of State could have regard to obstacles which are insurmountable only when considering whether electronic monitoring would be impractical. This would set the bar far too high. Even tremendous difficulties in making arrangements for electronic monitoring would not fall within this, so the Secretary of State could in such circumstances be precluded from deeming monitoring to be impractical because the difficulties she faces are not, technically, insurmountable. For example, the Secretary of State could spend millions of pounds putting in place new infrastructure to overcome an obstacle.

Amendment 91B would prevent the Secretary of State from considering matters such as a person’s risk of absconding or reoffending when prioritising the limited resources available for electronic monitoring. I make it clear that where the duty to impose an electronic monitoring condition on a deportee is disapplied because of impracticality or the individual’s human rights, this does not mean that the individual may not be released on immigration bail. All the relevant factors must be taken into account by the tribunal or the Secretary of State when considering whether it is appropriate to grant immigration bail, and other conditions could be tailored to ensure that risk is managed in lieu of electronic monitoring.

Amendments 92 to 97 make provisions for the circumstances in which an electronic monitoring condition on an individual being deported must be removed, and if a deportee is not currently subject to monitoring, then the circumstances in which it must be imposed. Amendments 98 to 100 expand the circumstances in which the Secretary of State may provide accommodation support to an individual on bail to include where it is the tribunal that imposes a residence condition. Amendments 101 to 103 apply the duty to impose monitoring to grants of immigration bail to deportees who have been arrested for breach of bail.

Amendments 104 to 106 amend paragraph 10 on the transitional provisions to prevent the electronic monitoring duty from automatically applying to those persons who routinely transition on to new immigration bail. The amendments also provide that regulations made in accordance with paragraph 10 may allow the Secretary of State to determine how the duty is to apply to transitional cases.

Amendment 106A seeks to amend proposed new sub-paragraph (2A) to remove the ability of transitional regulations made under Clause 86(1) to modify proposed new paragraphs 6A or 6B in how they apply to the transitional cohort. Proposed new sub-paragraph (2A) was drafted to allow the Secretary of State flexibility to manage this cohort so that she can prioritise in deciding when to apply the electronic monitoring duty to those deportees who are subject to immigration

15 Mar 2016 : Column 1787

bail before commencement. Finally, Amendments 107 to 112 simply ensure that, as a result of the above amendments, the Special Immigration Appeals Commission can be substituted for references to the First-tier Tribunal where appropriate.

I hope that these amendments allay the concerns expressed by your Lordships and therefore ask that Amendments 89A, 91A, 91B and 106A be not moved. I beg to move Amendment 82 and ask your Lordships to support Amendment 83 and the government amendments between Amendments 88 and 112.

6.45 pm

Baroness Hamwee: My Lords, I will confine myself to one question and to thanking the noble and learned Lord for that remarkably succinct explanation of several pages of amendments. I am sure it will bear reading and rereading. I think that he has answered my question, but I just want to be sure. What happens if electronic monitoring cannot be imposed, for instance because of mental health concerns or some other human rights issue? I think that he said that bail could—or indeed would—still be granted. That is the central question.

Lord Keen of Elie: I am obliged to the noble Baroness. The answer is that, in those circumstances, bail could still be granted. It will be dependent on the individual conditions that arise in a particular case. But I make it absolutely clear that it would still be possible for bail to be granted in such circumstances.

Lord Mackay of Clashfern (Con): My Lords, I was one of those who expressed concern at the possibility of the Secretary of State being able to overrule a judicial determination by the tribunal. I am very grateful for the very quick response I had to that concern, which was shared by a number of my noble and learned friends.

Amendment 82 agreed.

Amendment 83

Moved by Lord Bates

83: Clause 49, page 46, line 7, after “Act,” insert—

“( ) to whom a notice has been given in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against that person,”

Amendment 83 agreed.

Amendment 84

Moved by Lord Ramsbotham

84: After Clause 55, insert the following new Clause—

“Immigration detention: time limit and judicial oversight

(1) Subject to the provisions of this section, a person may not be detained under any of the relevant powers—

(a) for a period longer than 28 days; or

(b) for periods of longer than 28 days in aggregate.

(2) The First-tier Tribunal may—

15 Mar 2016 : Column 1788

(a) extend a period of detention; or

(b) further extend a period of detention,

for such a period as is determined, on application made by the Secretary of State, on the basis that the exceptional circumstances of the case require extended detention.

(3) The First-tier Tribunal has the power to review an extended period of detention without requiring the Secretary of State to make a new application.

(4) This section does not apply to a person who—

(a) has been sentenced to a term of imprisonment for a term of 12 months or longer; or

(b) the Secretary of State has determined shall be deported.

(5) Rules of procedure for the purposes of this section may be made by the Lord Chancellor.

(6) In this section—

“First-tier Tribunal” means—

(a) in the case of an appeal against a decision on an asylum application which has not been determined, the chamber of the First-tier Tribunal dealing with the appeal; or

(b) in any other case, such chamber of the First-tier Tribunal as the Secretary of State considers appropriate;

“relevant powers” means powers to detain pursuant to—

(a) paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971,

(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act,

(c) section 62 of the Nationality, Immigration and Asylum Act 2002, and

(d) section 36(1) of the UK Borders Act 2007.

(7) In the case of a person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 applies (detention on grounds of national security), the Commission established under that Act shall be substituted for the First-tier Tribunal.”

Lord Ramsbotham (CB): My Lords, I will speak to my Amendments 84 and 85, and comment on government Amendment 86. Since I proposed to the Minister in Committee that the Bill should be temporarily withdrawn so that it could be redrafted to reflect the Government’s countless changes of mind during its passage and the recommendations of the reports and review they had commissioned, a further 59 government amendments have been added to the 250 that I mentioned at that time, and what was Clause 34 only three weeks ago is now Clause 59 in what has become a monster. I beg the Minister and his colleagues to consider their poor front-line officials, who have to interpret and administer this mass of micromanagement, on top of all the other legislation that is being introduced, and ask themselves whether they would like to be in their position.

Looking through the proceedings of the cross-party committee on immigration detention, of which I and the noble Baronesses, Lady Hamwee and Lady Lister of Burtersett, were members, and the evidence given that influenced our recommendation that it should be subject to a 28-day limit, I well remember my noble and learned friend Lord Lloyd of Berwick—sadly now retired from the House—pointing out that such detention was administrative, not legal, since it was imposed by Home Office officials and not in a court of law. In addition, the United Kingdom was an outlier, both within the European Union and elsewhere, in not having a limit on the length of time that a potential immigrant could be detained. It was also pointed out

15 Mar 2016 : Column 1789

to us that there was no correlation between the length of detention and the likelihood of the Government being able to effect removal. Indeed, the opposite was true. Our recommendation was endorsed by the House of Commons in a detailed debate on our report of 10 September 2015.

Passionate cross-party opposition to limitless detention was displayed at all stages of the passage of the Bill through the other place. Indeed, the shadow Immigration Minister, Sir Keir Starmer MP, quoting the all-party report, said that,

“the United Kingdom has a proud tradition of upholding justice and the right to liberty. However, the continued use of indefinite detention puts this proud tradition at risk”.—[

Official Report

, Commons, 1/12/15; col. 186.]

However, all attempts to pass an amendment failed, thanks to the Committee system in the other place, which has a built-in government majority of nine to seven in a Committee of 16. I therefore tabled my amendment in the spirit of trying to restore some national pride.

As far as Amendment 84 is concerned, I thank the Minister for, and refer him to, his 11-page letter of 1 March to the noble Lord, Lord Rosser, which he copied to others, and his two-pager to me of 11 March. In the former, he states that individuals can challenge Home Office decisions by way of judicial review, and that legal advice is available to those contained in immigration removal centres. That is rather like the Home Office’s invariable assurance that although conditions in immigration centres may have been as bad as those reported by inspectors, all is now sweetness and light—until disproved at the next inspection. Whatever is wishfully thought by officials simply is not so in practice.

Of course, detainees can in theory challenge Home Office decisions, but new arrivals must wait for a week before they are allowed to apply for bail, and concerns have frequently been expressed about failures of centre staff adequately to explain the existence of and procedure for accessing the necessary procedures to detainees. In recent years, the Home Office has repeatedly been found to have unlawfully detained individuals for protracted periods. For example, in 2014, the High Court found the 11-month detention of a Zimbabwean woman seeking to join her husband in the United Kingdom under refugee family reunion rules to be in violation of both Articles 3 and 5 of the Human Rights Act. Between 2011 and 2014, £15 million was paid out in compensation for unlawful detention.

While on the subject of the Home Office, I repeat to the Minister what I have said many times before. The culture of disbelief that pervades the Home Office, allied to the appalling standard of its casework over the years—witnessed by the staggeringly high number of successful appeals against its decisions—and the appalling quality of its communication with applicants, gives me no confidence that it is capable of carrying out what the Government apparently wish. Nothing has been done to improve the situation for years.

The Minister now tells us—again in his letter of 1 March—that the Government propose to implement new approaches to case management and, by the summer, to appoint a separate gatekeeper team which will approve decisions about who enters immigration

15 Mar 2016 : Column 1790

detention, scrutinise prospects and speed of removal and assess vulnerability. Furthermore, by the autumn, a new team will build greater expertise on making detention decisions and ensuring that appropriate safeguards are in place so that, by the end of the year, caseworkers will focus on progression towards a person’s return and those detained will have both better access to information about their case and greater interaction with casework staff in immigration removal centres. Furthermore, after 14 years of inaction, the short-term holding facility rules are to be referred to an eight-week consultation.

Familiarity is said to breed contempt. I have to say to the House that, based on almost 20 years of familiarity with the current immigration system, I regard all that as largely a figment of Home Office imagination.

Amendment 84 is designed to ensure that there is legal oversight of the detention of anyone detained by administrative rather than legal process. I acknowledge the thoughts of my noble and learned friend Lord Brown of Eaton-under-Heywood about whether 28 days is long enough and fears that the First-tier Tribunal might be swamped with appeals. I also understand his concern about new subsection (4) in the amendment, but if the Home Office is working as the Minister sets out in his 1 March letter, there should be little need to detain anyone for longer than 28 days. Should my amendment be agreed, such technical issues can be corrected by the Government at Third Reading.

Amendment 85 expands on the list of those considered to be vulnerable in the Minister’s letter of 1 March and those who qualify for the guidance that the Secretary of State is required to lay before Parliament under government Amendment 86. On this issue, a six-month study by the Helen Bamber Foundation carried out between 3 July last year and 3 January this year showed that, out of 371 people referred to it, 84% had significant indicators of vulnerability, including torture and human trafficking, that had been routinely ignored by the Home Office. I suggest that the fact that such an unacceptable rate of failure to identify vulnerability continues, despite the suspension of the detained fast-track process in July 2015, demonstrates that, in the Home Office-run system, the culture of disbelief that I mentioned earlier still overrides significant indicators.

This all adds up to my firm belief, arrived at after many salutary experiences over almost 20 years, that the way in which immigration detention is managed and conducted is in urgent need of improvement. Judging by the Minister’s letter, the Government seem to have reached that conclusion as well. The Bill should present an ideal opportunity for such improvement to be codified, and I suggest that that process should start with legal oversight of administratively awarded detention, but with my wider consideration in mind. I beg to move.

Lord Brown of Eaton-under-Heywood (CB): My Lords, I shall speak only to Amendment 84, not Amendments 85 and 86, which concern the detention of vulnerable persons. Far and away the most striking feature of Amendment 84 is proposed new subsection (4), which would disapply the time limit in any case where the detainee has been sentenced to imprisonment for 12 months or more, or whom it is proposed to deport.

15 Mar 2016 : Column 1791

The fact is that those are the vast majority of cases involving prolonged detention. Frankly, that provision emasculates the whole idea of a time limit.

None of the previous campaigns or arguments in favour of a time limit has suggested such a striking restriction on its scope; no such suggestion was advanced in Committee; and no other country has gone down this road. Small wonder that in its briefing on the amendment, the Equality and Human Rights Commission does not support subsection (4); nor does the organisation Bail for Immigration Detainees, to which I spoke for some length on the telephone this morning. It says that, with this restriction, it would regard the amendment as essentially pointless.

I suggest that subsection (4) is inconsistent with the definition of “relevant powers” in subsection (6), because those powers as identified in paragraphs (b) and (d) refer to detention pending deportation powers: detention which, under subsection (4), would not be subject to the limit anyway. I therefore propose to address the amendment for all the world as if subsection (4) was not part of it. Let me make plain at this stage that, even then, I shall conclude by offering limited support for the imposition of a time limit—certainly less opposition than I have expressed hitherto.

At Second Reading, I spoke against the introduction of fixed time limits for immigration detention. I pointed to the very real difficulties of such limits in the case of those whom we are trying to remove, who exercise remarkable persistence and ingenuity in their efforts to remain here. As the Minister made plain in answer to a Question a fortnight ago arising from the Chief Inspector of Prisons’ report on the immigration removal centre at Harmondsworth, the overwhelming majority of the 2,700 detainees there have committed immigration offences, 40% being foreign national offenders. Those figures are higher still if you consider those detainees who have been there for more than four months—or, indeed, more than 28 days. They are, as the Minister said, working very hard to avoid their removal, and trying to frustrate the system.

7 pm

The problems of removing those intent on thwarting the system are, of course, legion and notorious; they include the destruction of documents and non-co-operation with getting fresh documents, repeated asylum claims and so forth. Far too few are successfully removed. I concluded at Second Reading by saying that while I was no supporter of what is called indefinite administrative detention, nor would I support releasing back on to our streets foreign national criminals who have managed to stretch their fight against deportation beyond some arbitrary time limit. I had already explained how the apparently unlimited statutory power of administrative detention is, in fact, subject to a long-established line of authorities, starting with the decision of Mr Justice Woolf, as he then was, in the Hardial Singh case, some 30 years ago, in 1984, which dictates that detainees can be held for only as long as is reasonable in all the circumstances, and while there remains a realistic prospect of their removal within a reasonable period—the sort of considerations that are, of course, in play and now listed in paragraph 3(2) of Schedule 9 to the Bill, such as the risks of the

15 Mar 2016 : Column 1792

detainee offending or reoffending or absconding. These established legal principles, and the Home Office’s own published policy guidance, which says notably that detention should be used only sparingly and only for so long as is strictly necessary, have been policed in years past by the courts exercising their judicial review jurisdiction. Indeed, I and others here, including the noble and learned Lord, Lord Hope, have been engaged in a number of such cases.

So it can be argued that the present system is workable and sustainable, particularly when allied to the detailed scheme for immigration bail now prescribed comprehensively under Schedule 9. But all that said, I have come round to the view that something broadly along the lines of this amendment would be better—namely, to have some time limit, together with express provision for extension by the tribunals or, as the case may be, by SIAC, on application by the Home Secretary. I have been persuaded by the great weight of informed criticism generally levelled at the existing system: from the APPG’s inquiry and report last year into the use of immigration detention and the subsequent debate in this House, as mentioned by the noble Lord, Lord Ramsbotham—Lord Lloyd of Berwick’s valedictory debate; the recent report from the Chief Inspector of Prisons on Harmondsworth; and my own recognition of the basic principle that administrative detention ought ordinarily to be subject to close scrutiny and control and not left as presently it is merely to bail applications and the courts’ general supervisory jurisdiction, with all the increasing problems that we know about of obtaining legal aid, and so forth, for such challenges.

The problem with the present scheme is that detainees must take the initiative and prove their case for release whereas, more properly, the burden should shift to the Home Secretary to prove good reason to extend a period. However, I cannot support a 28-day time limit—a limit, one notes, substantially shorter even than in many of the countries subject to the EU returns directive, with its maximum time limit of 18 months, which of course we opted out of. A summary published by Detention Action a year ago states that France limits detention to 45 days but still enforces 31% more removals of irregular migrants and asylum seekers than we do. One suspects that they may be more ruthless in combating attempts to frustrate their system. Italy’s time limit is three months, Belgium’s is eight months and Sweden’s is 12 months. The imposition of a time limit would no doubt tend to improve the way in which the Home Office processes removal proceedings —for example, in the case of foreign national offenders—starting the process earlier than at present they do, during the prison sentence rather than waiting for the transfer to immigration detention. There would still be some scope for frustrating the system, though rather less than used to be the case, given the increasing provision for appeals to be heard only from abroad. In any event, the Home Office will need time to streamline, accelerate and improve its processes, if the tribunals are not to be overwhelmed with applications for extensions, whatever the time limit decided on. I would accordingly favour initially a substantially longer time limit than 28 days—perhaps, say, nine months, with the possibility that on a later review that may be able to be shortened.

15 Mar 2016 : Column 1793

I am conscious of having spoken rather longer than I should have done, but I wanted to explain why I have come to a rather different conclusion from that earlier expressed. I cannot support the particular proposal here, but if the House were to divide I should not vote against it.

Baroness Lister of Burtersett: My Lords, I support Amendments 84 and 85 as a member of the all-party inquiry, which I came away from convinced of the case for a time limit, based on the experience of other countries and on the evidence that we have received from professionals and those with experience of detention about the impact of indefinite detention in particular on mental health. I am going to apply a self-imposed time limit on my own comments, and I am going to scrap what I was going to say about that. However, given the very broad all-party support, which we have heard about already, whatever the rights and wrongs of this particular amendment, when Liberty tells us that this is one of the greatest stains on this country’s human rights record in recent decades, surely we should do something to remove that stain.

I move to Amendment 85 and government Amendment 86. While I welcome the decision to publish statutory guidance on the new adults-at-risk decision-making procedures, I have some concerns, particularly with regard to pregnant women. Although it is welcome that they will automatically be treated at the highest level of risk, it is still not clear why the Government have refused Shaw’s recommendation of an absolute exclusion from detention. I note that the Home Affairs Select Committee has asked for an explanation of this in its recent report, and I would appreciate one, too.

Women for Refugee Women has raised a number of concerns with me and, if it is easier, I shall be quite happy for the Minister to respond to these in writing later. First, can he give some indication of how the new gate- keeper team will operate and explain why it was decided not to include an independent element in decision-making, as suggested by Shaw in recommendation 61? Secondly, it is worried as to how “imminence of removal” will be interpreted under the new adults-at-risk approach, given that this is the wording already used in the current policy. Under this policy, it says that nearly one-third of the 99 pregnant women detained in 2014 were held for between one and three months and four for between three and six months, which suggests a rather loose interpretation of imminence in the context of pregnancy. It is also worried about what is meant when the draft implementation approach states that the level of risk/vulnerability for which someone has been assessed will depend on the type and quality of the evidence available. In the experience of Women for Refugee Women and of Helen Bamber, what is understood as constituting independent or good evidence is often a real problem for survivors of sexual violence. Under rule 35, for instance, evidence such as a doctor’s report on mental symptoms has been dismissed because there is no physical evidence. Will self-disclosure be accepted as evidence, as it is by many other agencies?

I was pleased to read of there being new guidance on care and management of women in detention. That sounds like a positive step. Would the Minister undertake

15 Mar 2016 : Column 1794

for the Home Office to consult organisations such as Women for Refugee Women, on its contents?

It appears that the Government have also rejected Shaw’s recommendation that the words,

“which cannot be satisfactorily managed in detention”,

should be removed from references to individuals suffering from serious mental illness. Shaw states that,

“it is perfectly clear … that people with serious mental illness continue to be held in detention and that their treatment and care does not and cannot equate to good psychiatric practice (whether or not it is ‘satisfactorily managed’)”.

He concludes:

“Such a situation is an affront to civilised values”.

Can the Minister say whether the recommendation has been rejected; and, if so, why? Finally, can he explain why the statutory instrument giving effect to the statutory guidance will be subject to the negative resolution procedure rather than the affirmative, given the importance of these details? Will he commit to independent monitoring of the new regime, with regular reports to both Houses? In this way, we can assess whether the new adults-at-risk policy proves to be the generally transformative approach that has been promised.

Lord Green of Deddington: My Lords, I share the doubts expressed about Amendment 84 by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. We need to be clear on what is at stake here. It is not simply the number of weeks that someone is held in detention, important though that is. The capability to remove those who have no right to be in this country is absolutely fundamental to the credibility of the entire immigration system; and, indeed, the power of detention is essential to effective removal. This is fundamental in a number of respects, not just to the human rights aspects. It is fundamental to the whole immigration system.

Broadly speaking, I would argue that the system is working, although obviously it can be improved. I remind the House that in 2014 nearly 30,000 people were detained in immigration detention centres. But here is the point: two-thirds of them were there for less than 28 days. If you are going to set a limit of 28 days, what you are saying is that there are going to be 10,000 cases a year of people appealing to the immigration tribunal for release—10,000 cases, at a time when the tribunals are struggling to deal with 20,000 or 30,000, an increasing number of asylum cases. Throughout this debate, I think everyone has recognised that we need a faster and more effective system, and it seems to me that to introduce an amendment of this kind would do it very considerable damage. There may be scope for a much longer timescale of 90 days or whatever. That could be considered, perhaps, by the Government. But to set it at 28 days is, I think, quite wrong. As was mentioned in earlier debates on this Bill, it would encourage people to spin things out to get to the 28 days, they could then apply for their bail, and then—who knows?—they might disappear.

This amendment can only help such people. We need a much faster asylum system if public support for the whole system is to be maintained. This amendment would slow it up, and it should be resisted.

15 Mar 2016 : Column 1795

Lord Roberts of Llandudno: My Lords, I suggest to those who say, “Yes, let us penalise people in this way”, that these are people. They are people with families, with abilities and with various stresses, as the noble Baroness, Lady Lister, has told us, including mental stresses that are often not taken into consideration. There are the conditions in which they are held. There was a report only three weeks ago on the conditions in Harmondsworth, with 660 detainees, which stated that it just was not fit for purpose. There were bugs, the toilets did not work and the showers were dirty.

We are looking at people and at what they are like when they leave there. Will they feel that British justice was fair and that Britain was handling them in a fair way, or will they feel resentment? What we do not need in the world at the present time are people who are resentful and ready to act in a violent way. They should know that there is light at the end of the tunnel, and I would support a period of 28 days. There was one detainee in the report on Harmondsworth who had been there for more than five years. Others had been there for more than 12 months. This is an opportunity for us to say to the Government that the conditions are not acceptable as they are. Let us go for an exact limit. It can be 28 days if the majority agree on that. Otherwise, we should be treating people as people. They are not criminals; they are people—people with lives, with dreams, with a culture. So I very much support this amendment.

7.15 pm

Baroness Redfern (Con): My Lords, I will speak briefly and to the point to Amendment 84. It would significantly undermine the Government’s ability to enforce immigration controls and maintain public safety, which is paramount. In the current climate of high migration and growing security threats, I am sure that noble Lords would agree that we need to consider very carefully any measure that could undermine public safety. While the amendment would not apply to the time limit for certain foreign national criminals, who have knowingly broken immigration laws, these individuals would be able to rely on being released by continuing to obstruct removal.

It is important to note that, based on current behaviours, a large majority of those currently detained would be likely to take advantage of the time limit. This would seriously undermine the legitimate operation controls and pose an unnecessary threat to the public. It would add a further strain on resources, create more bureaucracy and waste time and taxpayers’ money on unnecessary paperwork and legalities. It is in everyone’s best interests to have an asylum system where decisions are taken quickly and effectively, but not because it is rushed.

When we deprive someone of their liberty, that decision should never be undertaken lightly. As a country, we should be proud that we take our duty of care very seriously when individuals are detained.

Lord Hope of Craighead: My Lords, I shall make a very short point about proposed new subsection (2) in Amendment 84, and in particular the word “exceptional”. This is simply a power in the tribunal to extend the

15 Mar 2016 : Column 1796

period. To introduce the word “exceptional” is, I would have thought, unnecessary and perhaps unduly restrictive. The phrase,

“on the basis that the … circumstances of the case require extended detention”,

I would have thought, sets a sufficiently high standard for the tribunal to work to. Of course, the shorter the period—if the Government are minded to introduce a fixed period—the more important it is that the word “exceptional” should not be there, for the reasons that other people have mentioned. So I suggest that that word requires very careful thought. I would rather it was not included in the proposed subsection.

Lord Hylton: My Lords, having spoken on this subject at Second Reading, and having visited two removal or detention centres more than once, I support what the noble Baroness, Lady Lister of Burtersett, was saying about the categories of people who should never be detained. If I may draw particular attention to those with serious mental health issues or post-traumatic stress, surely, if they are at risk of injuring either themselves or other people, they should not be in these detention centres. They should be in secure psychiatric wards. So I hope that the Government will take very seriously what the noble Baroness was saying.

Baroness Hamwee: My Lords, my name is to the amendment. I made a lot of notes as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, was speaking, but I do not think that I have been given his conclusion. I needed him to deal with all of them. I am well aware that there is opposition to the clause from a number of organisations which do not want to see any exceptions at all. That seems to me to have been the burden of their concerns.

The short point is that the system is not working. We do not live in a perfect world. If we were to create other rules that one might say would support the system as we now have it, I do not believe that they could be made to work. The then Chief Inspector of Prisons commented on how many of the detainees were released back into the community, which poses the question: if they are suitable to be released back into the community, why do they need to be detained in the first place?

The Government’s position is a presumption that an “adult at risk” will not be detained. Our presumption is against detention for more than 28 days, so we start at the other end. It is unambitious to say—as the Government do—that they expect to see a reduction in the number of those who are at risk in detention and for reduced periods. The Written Ministerial Statement which the Government published in January categorises the issues in a way which worries me, separating risk and vulnerability from healthcare. Care and assessment are very closely allied, and I suggest, for instance, that a victim of sexual violence may not be able to explain to a healthcare worker that this is her experience until after quite a long period of treatment. Therefore, looking at the Government’s approach to this, I am concerned.

We already have Rule 35 of the Detention Centre Rules, whose purpose is,

15 Mar 2016 : Column 1797

“to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention”.

It is not working. We have that now and there are a great range of problems—in view of the time I will not go through them but I hope that noble Lords will understand that the all-party group, of which I was a member, heard a good deal of evidence from medical professionals about the problems with Rule 35. Therefore if that rule does not achieve what is needed, will guidance—the Government’s Amendment 86—achieve it? I fear that it will not.

Amendment 85 aims to flush out the Government’s view of the conditions of vulnerability listed by Stephen Shaw in his report. It says that a vulnerable person should not be detained unless there are exceptional circumstances, as determined by the tribunal. The Government’s answer will, no doubt, be in Amendment 86, which talks about particular vulnerability—someone being particularly vulnerable to harm if they are detained. We start from the premise that vulnerability is vulnerability, full stop.

There is so much more one could say; I wish I could but I will not. I support the amendment.

Lord Rosser: The noble Lord, Lord Ramsbotham, has made a powerful case in support of Amendment 84, to which my name is also attached, and I do not intend to repeat all the points again. The amendment is intended to provide for judicial oversight if a person is to be detained for a period longer than 28 days. If the noble Lord, having heard the Government’s response to Amendment 84, decides to test the opinion of the House, we will vote in support.

Immigration detention is a matter of concern. For the person detained it is detention for an indefinite period, since they are not given a date when it will end. Their life is in limbo. A recent all-party group inquiry into immigration detention heard evidence that detention was in some ways worse than being in prison, since at least people in prison know when they will get out. There is medical evidence that it causes anxiety and distress, not least among the more vulnerable groups. The all-party inquiry to which I have referred heard from medical people with knowledge in this field that the sense of being in limbo and the hopelessness and despair it generates leads to deteriorating mental health. One such witness said that those who are detained for more than 30 days have significantly greater mental health problems.

For his report for the Home Office into the welfare in detention of vulnerable persons, Stephen Shaw commissioned a review by Professor Mary Bosworth of the evidence linking detention with adverse mental health outcomes. Mr Shaw said that he regarded her view as a study of the greatest significance. Two of Professor Bosworth’s key findings were: first, that there is a consistent finding from all the studies carried out across the globe, which were from different academic viewpoints, that immigration detention has a negative impact upon detainees’ mental health and, secondly, that the impact on mental health increases the longer detention continues.

15 Mar 2016 : Column 1798

In his conclusions, Mr Shaw stated:

“Most of those who have looked dispassionately at immigration detention have come to similar conclusions: there is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform”.

He ended by saying:

“Immigration detention has increased, is increasing, and—whether by better screening, more effective reviews, or formal time limit—it ought to be reduced”.

In the first three-quarters of 2014, 37% of those detained were detained for longer than 28 days. Home Office guidelines are that detention should be for the shortest possible time and should be used only as a genuine last resort to effect removal. Yet despite centres being called “immigration removal centres”, most people who leave detention do so for other reasons than being removed from the United Kingdom. According to government statistics, more than half the detainees are released back into this country.

There could surely be some scope for a wider range of community-based alternatives to detention, enabling more people to remain in their communities while their cases are being resolved or when making arrangements for them to leave the country. The family returns process, which is designed to reduce the number of children detained, has resulted, according to the Home Office’s own evaluation, in most families being compliant with the process and no increase in absconding.

I note the views expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and his reason for not supporting but also, as I understand it, for not opposing this amendment if it is put to a vote. If Amendment 84 is passed by this House, the Government also have the option, if they choose to take it up, of putting an amended proposition as the Bill goes through its remaining parliamentary stages.

Amendment 84 does not of course put a time limit on immigration detention but it would ensure that a decision to continue to detain after 28 days was a judicial decision dependent on the Secretary of State having to make the argument that the circumstances of the case concerned required extended detention. The amendment does not preclude or prevent detention going beyond 28 days but it means, in a country where we uphold justice and the right to liberty, that at least after a period of time the decision to continue to detain has to be a judicial one, not an administrative one. Surely this House can support that.

Lord Keen of Elie: I am obliged to noble Lords for their contributions to this debate. The diversity of views expressed perhaps underlines the issues that have to be wrestled with in such a difficult area.

The Government take the issue of deprivation of liberty very seriously. Our current published policy in respect of immigration detention is quite clear: there is a presumption of liberty. There is a well-established principle that for an individual to be detained pending removal there must be a realistic prospect of removal within a reasonable time, and that is carried out by virtue of judicial oversight. Depriving someone of their liberty is always subject to careful consideration and account is invariably taken of individual circumstances.

15 Mar 2016 : Column 1799

Amendment 84 would significantly impact on our ability to enforce immigration controls and maintain public safety, particularly at a time when the Government have set out a commitment to ensure effective use of detention, complemented by a renewed focus on facilitating an increased number of voluntary returns without detention, which safeguards the most vulnerable while helping to reduce levels of immigration abuse.

It might be helpful to remind noble Lords that most people detained under immigration powers spend only relatively short periods in detention. According to published statistics for the year ending September 2015, more than 32,000 people left detention. Of these, 62% had been in detention for fewer than 28 days. The overwhelming majority of detainees—93%—left detention within four months. Of those, approximately 40% were subject to deportation action, having been previously convicted of criminal offences in the United Kingdom or the EU and having refused to leave the UK on a voluntary basis.

7.30 pm

I appreciate that persons subject to deportation would be excluded from the amendment. But the majority of the remainder had committed an immigration offence in the United Kingdom and had again refused to depart on a voluntary basis, even though they had no basis to remain in the United Kingdom and had been required to leave. Well over half of those who had claimed asylum had already had their asylum claim rejected, and most of those who had claimed asylum in the UK had done so only after a criminal conviction, after a significant immigration offence or after having done so previously elsewhere in the EU. The time limit created by the amendment—namely, 28 days—would give any non-compliant illegal migrant whose wish is to frustrate removal an easy target to aim for in order to secure their release from detention.

It should be borne in mind that an individual’s compliance history and the likelihood of them absconding form part of the consideration of whether detention is necessary in the first place. I myself have recently noted the case of an individual who lied about his date of entry to the United Kingdom on more than one occasion—each lie being about six years apart—in order to promote his Article 8 claim. He submitted numerous unsuccessful immigration applications and human rights claims over a number of years, with all appeals being rejected by tribunals. He absconded at the point at which he became removable and subsequently claimed asylum after being apprehended and served with removal directions. After having his asylum claim rejected, he submitted a claim that he had been tortured. This new claim emerged only after he had been in the United Kingdom for 16 years.

In circumstances such as those, an asylum claim will take longer than 28 days to conclude. Added to that, the average time to conclude a judicial review is three months, even when expedited from the date it is lodged with the court. This could lead to meritless asylum claims being made, and judicial reviews being lodged, simply to get out of detention.

We detain a significant number of undocumented cases with poor immigration histories who would abscond if not detained. That is largely the purpose of detention

15 Mar 2016 : Column 1800

in this context. The refusal of individuals to co-operate with the documentation process can also lead to significant delays in obtaining travel documentation. To put it bluntly, if we cannot detain these persons, we cannot get them documented, and if we cannot get them documented, we can never remove them from the United Kingdom, even though they have absolutely no right to be here.

Even if an individual were to co-operate with the documentation process, the 28-day time limit would make it difficult to obtain documents in the time available. Some countries require interviews to satisfy themselves of the nationality of the detainee, and the lead-in and turnaround time can mean that the time taken is well in excess of 28 days. It would also mean releasing an illegal migrant if a replacement travel document was delayed.

In addition, it is proposed in the amendment that the 28-day period should be aggregated. The aggregate limit of 28 days would make it difficult if, for example, we were required to redetain a person when their travel document subsequently arrived, or where a person disrupted their removal at the point of getting on to a flight and they needed to be taken back into detention until new removal arrangements had been put in place. I heard of a recent example of an individual who eventually had to be taken to the airport escorted by three personnel, having disrupted previous attempts to remove him from the United Kingdom—again, when he had absolutely no right to be here in the first place. Due to the timescales involved in arranging that sort of removal, one could easily require much in excess of 28 days to effect it.

In addition, such a time limit would reduce the incentive for individuals to comply with the conditions of immigration bail if they knew that the Home Office could not redetain them because they had already accumulated 28 days in detention.

Although the amendment allows for the detention period to be extended, the situations I have just described are all common occurrences. They are not “exceptional” circumstances, as would be required by the amendment. So, although the Secretary of State could, and indeed would, apply for an extension, because the tribunal would be required to find exceptional circumstances, it might be unable to do so and thus be unable to extend the period of detention, even in the face of such an application.

The reality is this: the vast majority of those detained are either foreign criminals or individuals who, as in the case to which I referred earlier, have broken immigration laws. Not being able to effect enforced removals would make it less likely that others would depart voluntarily from the United Kingdom and would mean more immigration rule-breakers in the community at large.

Furthermore, we can, and do, regularly remove foreign criminals sentenced to short periods in prison or because of their criminal history overseas. Because we are using administrative removal powers rather than deporting them, those who would not fall under the exemptions set out in the amendment could not be removed. It is important for public safety to remove these types of offenders before their criminality escalates —as, unfortunately, so often happens.

15 Mar 2016 : Column 1801

In requiring the Secretary of State to apply to the tribunal for an extension, or further extension, to the period of detention at a set time, the amendment would bring about a fundamental shift in, and extension from, the tribunal’s current role of deciding on questions of bail to deciding on the quite distinct question of whether bail should be granted and the length of detention.

Approximately 30,000 people are in immigration detention in any one year. So, saving foreign national offenders and other deportees, they would need to be brought into this detention review process. At the moment, the tribunal receives about 12,000 bail applications per annum, so the amendment would generate a significantly increased workload for the tribunal, consequently diverting significant resources away from consideration of asylum and human rights appeals and leading to delays in other areas of the immigration system. It would also increase complexity and require new infrastructure to provide an ongoing review process. The impact on the resources of the Special Immigration Appeals Commission would also be significant, particularly as that is a higher-level court and uses High Court judges.

It is not clear how a free-standing power for the tribunal to review a period of extended detention without the need for an application from the Secretary of State can be made workable, as the tribunal does not have access to the relevant information on which to make such a decision. The tribunal already plays an important role in the oversight of detention decisions by considering applications for bail at a time of the detainee’s own choosing. It is not clear how the limits on detention are intended even to fit with the availability of bail.

While I understand the motives behind the amendment, as I have just set out, the tribunal can already consider whether detention is appropriate when a person applies to be released on immigration bail, which they can do at any time during their period of detention. This proposal would significantly undermine our immigration controls by enabling illegal migrants to manufacture their release from detention through various forms of non-compliance. I underline that last point. Let us remember that those who find themselves in detention for long periods are, generally speaking, those who have disposed of their passport, destroyed their travel documentation, lied about their nationality and lied about their arrival in the United Kingdom. It is they who often have to be detained until their nationality and origins can be identified and the appropriate travel documentation is secured for their removal from the United Kingdom.

I turn to Amendment 85, which was tabled by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Hamwee, on the matter of vulnerable individuals. Again, this would have the effect of making it disproportionately difficult for the Government to remove individuals who have no right to remain in the United Kingdom. The effect would be that an individual regarded as being vulnerable who refused to leave the UK voluntarily could not be removed through the use of detention unless the Home Office applied to a tribunal on the basis that exceptional circumstances

15 Mar 2016 : Column 1802

pertained. In the case of those subject to a deportation order, the Home Office would be able to detain only if removal were to happen immediately and the individual had not appealed against the deportation order. Again, I venture that this amendment is, in any event, unnecessary. As set out in the Written Ministerial Statement of 14 January, and in my noble friend Lord Bates’s letter of 1 March, the Government have a significant programme of work under way to deliver reforms against the key themes identified by Stephen Shaw in his review of the welfare of vulnerable people in detention.

Amendment 85 would mean that an individual regarded as vulnerable who refused to leave the United Kingdom voluntarily could not be removed unless very narrow conditions applied. In addition, it would make it impossible for the immigration authorities to detain an individual for even a short period of time to check their identity or to establish that they have a legitimate immigration claim, if there were any indication that they were vulnerable in some way. Furthermore, the requirement to apply to the tribunal would, as with Amendment 84, place an unreasonable burden on both the courts and the Home Office.

In the case of those subject to a deportation order, being able to detain only when removal was to happen immediately would mean never being able to otherwise detain under immigration powers a vulnerable person whose presence in the United Kingdom was deemed as not conducive to the public good, who was a risk to the public and who had a high risk of absconding, unless the tribunal process was invoked.

We also believe that the amendment is based on the false assumption that serious criminals are the only individuals with vulnerabilities who should be detained for the purposes of removal. The amendment ignores the fact that there is a large cohort of individuals who may not be subject to a deportation order but who have histories of low-level criminality or who have persistently failed to comply with immigration law and who could simply not be removed without the use of detention. By virtue of this amendment, there would be little to stop such individuals claiming a vulnerability in order to further frustrate the system. This situation would not be in the interests of public protection or in the general public good. In addition, excluding such individuals who had appealed against a deportation order would be likely to mean that all individuals subject to a deportation order would be likely to make such an appeal in order to frustrate removal, and that would simply place further burdens on the court system.

The overall effect of the amendments tabled by the noble Lords would be to have a major impact on the Government’s ability to enforce removals, significantly undermining legitimate immigration controls and the maintenance of public protection at a time of high levels of migration and real and growing security threats. They are also unnecessary and unhelpful, as they cut across the plan that the Government are putting in place for the significant reform of detention in response to Stephen Shaw’s review.

That brings me to the adults at risk policy, which was announced in a Written Ministerial Statement on 14 January as part of the response to the recommendations

15 Mar 2016 : Column 1803

in Stephen Shaw’s report of his review into the welfare of vulnerable detainees. It will be an evidence-based process that overcomes some of the intractable issues around determining whether an individual falls into a particular category. It will remove much of the legal uncertainty and provide a logical and transparent way of ensuring that adults at risk are considered generally unsuitable for detention, while maintaining the integrity of the immigration system. Amendment 85 would simply not strike that balance, but government Amendment 86, which I shall come on to now, would provide both that balance and parliamentary oversight of this area of government policy.

The effect of amendment 86 would be to place a requirement on the Secretary of State to issue guidance to those making decisions on the detention of individuals for the purpose of immigration control where issues of vulnerability are raised. The guidance would inform decision-makers of the matters that they should take into account in deciding whether individuals would be particularly vulnerable to harm if they were detained or were to remain in detention. These provisions relate directly to the adults at risk policy. The purpose of Amendment 86 is to put this new guidance on a statutory footing.

7.45 pm

On 1 February, during the debate on this Bill in Committee, noble Lords expressed strong views about the level of detail in the Government’s response to Mr Shaw’s report. It is in response to that that the Government have reflected and decided to put forward Amendment 86. Your Lordships will be aware of the letter of 1 March from my noble friend Lord Bates, in which he set out further detail on the framework for the emerging adults at risk policy. It is a complex area of policy that is still under development, but I hope that the information provided in the letter will confirm the Government’s commitment to dealing with the issues raised by Mr Shaw. Indeed, I notice that Mr Shaw himself, in his evidence to the Home Affairs Committee in another place on 9 February, referred to the “considered and serious” approach that the Government are taking to this issue.

By virtue of Amendment 86, the Government wish to go further than people, I believe, suspected, by making provision for parliamentary scrutiny of the matters to be considered in the context of guidance for the adults at risk policy. It is, of course, possible for the Government to put the policy in place without requiring it to be in statute. However, the Government wish to ensure that Parliament is aware of this important policy and, if it sees fit, able to debate its principles. We consider that that can be adequately done in circumstances where it will be subject to the negative procedure—I say that just to respond to the point made by the noble Baroness, Lady Hamwee.

I pause now, if I may, to refer back to one or two of the points that were raised by—

Noble Lords: Oh!

Lord Keen of Elie: With that encouragement, perhaps I may take just a little longer, knowing that I have noble Lords’ ears if not their best wishes.

15 Mar 2016 : Column 1804

The noble Baroness, Lady Lister, raised a number of questions. I would be perfectly content to respond to them in writing, albeit that no commitment can be given. Putting the matter shortly—yes, the Scottish Law Officer is somewhat verbose, I am afraid—it is the intention of the Government to reflect on the matter of the detention of pregnant women. They do not consider that it would be appropriate for there to be an absolute rule. To give one very short and simple example, if an illegal immigrant arrives at an airport and it is possible to return them almost immediately, it may be necessary for there to be detention even for a very short period. However, the Government will reflect on this and will have considered the matter by Third Reading. I hope that that will reassure the noble Baroness, Lady Lister, at this stage.

In these circumstances, and with your Lordships’ benign encouragement, I ask that Amendments 84 and 85 be not pressed and that Amendment 86 be agreed.

Lord Ramsbotham: My Lords, I am very grateful to all those who have spoken and to the Minister for that careful but rather depressing exposition. I shall be brief.

Noble Lords: Hear, hear!

Lord Ramsbotham: I admit that I had a feeling of hope having read the Minister’s letter of 1 March, which set out that the Government recognised that all was not well with the immigration system and that improvements needed to be made. Far from being unnecessary and unhelpful, as the noble and learned Lord, Lord Keen, suggested we were being in tabling this amendment, we intend to be helpful. Having watched the system for 20 years, I know that it is not right. I know that this suggestion that administrative detention should not be subject to legal oversight has got to stop. Therefore, without mincing any words, I wish to test the opinion of the House.

7.49 pm

Division on Amendment 84

Contents 187; Not-Contents 170.

Amendment 84 agreed.

Division No.  1


Aberdare, L.

Addington, L.

Adonis, L.

Alton of Liverpool, L.

Andrews, B.

Armstrong of Hill Top, B.

Ashdown of Norton-sub-Hamdon, L.

Bakewell of Hardington Mandeville, B.

Barker, B.

Bassam of Brighton, L.

Beecham, L.

Beith, L.

Best, L.

Billingham, B.

Blood, B.

Boateng, L.

Brooke of Alverthorpe, L.

Brookman, L.

Burnett, L.

Burt of Solihull, B.

Campbell of Pittenweem, L.

Campbell-Savours, L.

Cashman, L.

Chandos, V.

15 Mar 2016 : Column 1805

Clark of Windermere, L.

Clement-Jones, L.

Corston, B.

Cotter, L.

Craig of Radley, L.

Crawley, B.

Darling of Roulanish, L.

Davies of Oldham, L.

Dholakia, L.

Donaghy, B.

Doocey, B.

Drake, B.

Dubs, L.

Elder, L.

Falkner of Margravine, B.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Featherstone, B.

Finlay of Llandaff, B.

Foster of Bath, L.

Foster of Bishop Auckland, L.

Gale, B.

Garden of Frognal, B.

German, L.

Glasman, L.

Golding, B.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Grantchester, L.

Greaves, L.

Grender, B.

Grey-Thompson, B.

Griffiths of Burry Port, L.

Grocott, L.

Hamwee, B. [Teller]

Harris of Haringey, L.

Hart of Chilton, L.

Haskel, L.

Haughey, L.

Haworth, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Hollis of Heigham, B.

Howarth of Newport, L.

Howells of St Davids, B.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Humphreys, B.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hussain, L.

Hylton, L.

Irvine of Lairg, L.

Janke, B.

Jones, L.

Jones of Cheltenham, L.

Jones of Whitchurch, B.

Judd, L.

Kennedy of Southwark, L.

Kerr of Kinlochard, L.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Kinnoull, E.

Kirkhill, L.

Knight of Weymouth, L.

Kramer, B.

Lawrence of Clarendon, B.

Lennie, L.

Lester of Herne Hill, L.

Lipsey, L.

Lister of Burtersett, B.

Listowel, E.

Loomba, L.

Ludford, B.

McAvoy, L.

Macdonald of Tradeston, L.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Maddock, B.

Manzoor, B.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Miller of Chilthorne Domer, B.

Moonie, L.

Morris of Handsworth, L.

Murphy of Torfaen, L.

Newby, L.

Nicholson of Winterbourne, B.

Norwich, Bp.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

Paddick, L.

Palmer of Childs Hill, L.

Parminter, B.

Patel of Bradford, L.

Pendry, L.

Pinnock, B.

Pitkeathley, B.

Primarolo, B.

Purvis of Tweed, L.

Ramsbotham, L. [Teller]

Randerson, B.

Razzall, L.

Reid of Cardowan, L.

Rennard, L.

Roberts of Llandudno, L.

Rosser, L.

Rowlands, L.

Sawyer, L.

Scotland of Asthal, B.

Scott of Needham Market, B.

Scriven, L.

Sharkey, L.

Sharp of Guildford, B.

Sheehan, B.

Sherlock, B.

Shipley, L.

Shutt of Greetland, L.

Simon, V.

Smith of Newnham, B.

Snape, L.

Soley, L.

Steel of Aikwood, L.

Stephen, L.

Stern, B.

Stone of Blackheath, L.

Stoneham of Droxford, L.

Storey, L.

Strasburger, L.

Stunell, L.

Suttie, B.

Taverne, L.

Taylor of Bolton, B.

Taylor of Goss Moor, L.

Temple-Morris, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Thornton, B.

Tomlinson, L.

Tonge, B.

Tope, L.

Trees, L.

Tyler, L.

Tyler of Enfield, B.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walpole, L.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

15 Mar 2016 : Column 1806

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Williams of Baglan, L.

Willis of Knaresborough, L.

Woolmer of Leeds, L.

Young of Norwood Green, L.

Young of Old Scone, B.


Ahmad of Wimbledon, L.

Altmann, B.

Arbuthnot of Edrom, L.

Ashton of Hyde, L.

Astor of Hever, L.

Baker of Dorking, L.

Balfe, L.

Bates, L.

Berridge, B.

Blencathra, L.

Bottomley of Nettlestone, B.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Brady, B.

Bridgeman, V.

Bridges of Headley, L.

Browne of Belmont, L.

Browning, B.

Buscombe, B.

Byford, B.

Caithness, E.

Cameron of Dillington, L.

Carrington of Fulham, L.

Cathcart, E.

Cavendish of Furness, L.

Chadlington, L.

Chisholm of Owlpen, B.

Colwyn, L.

Cooper of Windrush, L.

Cope of Berkeley, L.

Cormack, L.

Courtown, E.

Craigavon, V.

Crathorne, L.

Crickhowell, L.

Cumberlege, B.

Curry of Kirkharle, L.

Denham, L.

Dixon-Smith, L.

Dobbs, L.

Dunlop, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Empey, L.

Evans of Bowes Park, B.

Fairfax of Cameron, L.

Fall, B.

Farmer, L.

Faulks, L.

Feldman of Elstree, L.

Fellowes of West Stafford, L.

Finn, B.

Fookes, B.

Fowler, L.

Freeman, L.

Freud, L.

Gardiner of Kimble, L. [Teller]

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

Gilbert of Panteg, L.

Glenarthur, L.

Gold, L.

Goodlad, L.

Goschen, V.

Green of Deddington, L.

Green of Hurstpierpoint, L.

Greenway, L.

Griffiths of Fforestfach, L.

Hague of Richmond, L.

Hailsham, V.

Hay of Ballyore, L.

Hayward, L.

Henley, L.

Higgins, L.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Hooper, B.

Hope of Craighead, L.

Horam, L.

Howard of Rising, L.

Howe, E.

Hunt of Wirral, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jopling, L.

Keen of Elie, L.

Kirkham, L.

Knight of Collingtree, B.

Lansley, L.

Lawson of Blaby, L.

Leigh of Hurley, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Lothian, M.

Lupton, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

McIntosh of Pickering, B.

Mackay of Clashfern, L.

Mancroft, L.

Marlesford, L.

Mawson, L.

Mobarik, B.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

Nash, L.

Neville-Rolfe, B.

Newlove, B.

Noakes, B.

Norton of Louth, L.

O'Cathain, B.

O'Neill of Gatley, L.

Oppenheim-Barnes, B.

O'Shaughnessy, L.

Patel, L.

Perry of Southwark, B.

Pidding, B.

Popat, L.

Porter of Spalding, L.

Prior of Brampton, L.

Redfern, B.

Renfrew of Kaimsthorn, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Robathan, L.

Rock, B.

Rowe-Beddoe, L.

Ryder of Wensum, L.

St John of Bletso, L.

15 Mar 2016 : Column 1807

Sanderson of Bowden, L.

Scott of Bybrook, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Sheikh, L.

Sherbourne of Didsbury, L.

Shinkwin, L.

Skelmersdale, L.

Smith of Hindhead, L.

Somerset, D.

Spicer, L.

Stedman-Scott, B.

Stowell of Beeston, B.

Strathclyde, L.

Stroud, B.

Suri, L.

Taylor of Holbeach, L. [Teller]

Thurlow, L.

Trefgarne, L.

Trimble, L.

True, L.

Ullswater, V.

Wakeham, L.

Warsi, B.

Watkins of Tavistock, B.

Wei, L.

Whitby, L.

Willetts, L.

Williams of Trafford, B.

Young of Cookham, L.

Younger of Leckie, V.

Amendment 85 not moved.

Amendment 86

Moved by Lord Bates

86: After Clause 56, insert the following new Clause—

“Guidance on detention of vulnerable persons

(1) The Secretary of State must issue guidance specifying matters to be taken into account by a person to whom the guidance is addressed in determining—

(a) whether a person (“P”) would be particularly vulnerable to harm if P were to be detained or to remain in detention, and

(b) if P is identified as being particularly vulnerable to harm in those circumstances, whether P should be detained or remain in detention.

(2) In subsection (1) “detained” means detained under—

(a) the Immigration Act 1971,

(b) section 62 of the Nationality, Immigration and Asylum Act 2002, or

(c) section 36 of the UK Borders Act 2007,

and “detention” is to be construed accordingly.

(3) A person to whom guidance under this section is addressed must take the guidance into account.

(4) Before issuing guidance under this section the Secretary of State must lay a draft of the guidance before Parliament.

(5) Guidance under this section comes into force in accordance with regulations made by the Secretary of State.

(6) The Secretary of State may from time to time review guidance under this section and may revise and re-issue it.

(7) References in this section to guidance under this section include revised guidance.”

Amendment 86 agreed.

Schedule 9: Immigration bail

Amendment 87 had been withdrawn from the Marshalled List.

Amendments 88 and 89

Moved by Lord Bates

88: Schedule 9, page 148, line 24, at beginning insert “Subject to sub-paragraph (1A),”

89: Schedule 9, page 148, line 35, at end insert—

15 Mar 2016 : Column 1808

“(1A) Sub-paragraph (1B) applies in place of sub-paragraph (1) in relation to a person who is being detained under a provision mentioned in paragraph 1(1)(b) or (d) or who is liable to detention under such a provision.

(1B) If immigration bail is granted to such a person—

(a) subject to sub-paragraphs (2A) to (2E), it must be granted subject to an electronic monitoring condition,

(b) if, by virtue of sub-paragraph (2A) or (2C), it is not granted subject to an electronic monitoring condition, it must be granted subject to one or more of the other conditions mentioned in sub-paragraph (1), and

(c) if it is granted subject to an electronic monitoring condition, it may be granted subject to one or more of those other conditions.”

Amendments 88 and 89 agreed.

Amendment 89A not moved.

Amendment 90

Moved by Lord Bates

90: Schedule 9, page 148, line 36, after “bail” insert “granted in accordance with sub-paragraph (1) or (1B)”

Amendment 90 agreed.

Amendment 91

Moved by Lord Bates

91: Schedule 9, page 148, line 38, leave out sub-paragraphs (3) to (5) and insert—

“(2A) Sub-paragraph (1B)(a) does not apply to a person who is granted immigration bail by the Secretary of State if the Secretary of State considers that to impose an electronic monitoring condition on the person would be—

(a) impractical, or

(b) contrary to the person’s Convention rights.

(2B) Where sub-paragraph (2A) applies, the Secretary of State must not grant immigration bail to the person subject to an electronic monitoring condition.

(2C) Sub-paragraph (1B)(a) does not apply to a person who is granted immigration bail by the First-tier Tribunal if the Secretary of State informs the Tribunal that the Secretary of State considers that to impose an electronic monitoring condition on the person would be—

(a) impractical, or

(b) contrary to the person’s Convention rights.

(2D) Where sub-paragraph (2C) applies, the First-tier Tribunal must not grant immigration bail to the person subject to an electronic monitoring condition.

(2E) In considering for the purposes of this Schedule whether it would be impractical to impose an electronic monitoring condition on a person, or would be impractical for a person to continue to be subject to such a condition, the Secretary of State may in particular have regard to—

(a) any obstacles to making arrangements of the kind mentioned in paragraph 4 in relation to the person,

(b) the resources that are available for imposing electronic monitoring conditions on persons to whom sub-paragraph (1A) applies and for managing the operation of such conditions in relation to such persons,

(c) the need to give priority to the use of those resources in relation to particular categories of persons to whom that sub-paragraph applies, and

(d) the matters listed in paragraph 3(2) as they apply to the person.

15 Mar 2016 : Column 1809

(2F) In this Schedule “Convention rights” is to be construed in accordance with section 1 of the Human Rights Act 1998.”

Amendments 91A and 91B, as amendments to Amendment 91, not moved.

Amendment 91 agreed.

Amendments 92 to 105

Moved by Lord Bates

92: Schedule 9, page 151, line 26, leave out “Where” and insert “Subject to this paragraph and to paragraphs 6A and 6B, where a”

93: Schedule 9, page 151, line 38, at end insert—

“(4A) The First-tier Tribunal may not exercise the power in sub-paragraph (1)(a) so as to amend an electronic monitoring condition.”

94: Schedule 9, page 151, line 39, leave out sub-paragraph (5)

95: Schedule 9, page 151, line 42, leave out “decides to exercise, or to refuse” and insert “exercises, or refuses”

96: Schedule 9, page 152, line 3, leave out sub-paragraphs (8) to (10)

97: Schedule 9, page 152, line 11, at end insert—

“Removal etc of electronic monitoring condition: bail managed by Secretary of State

“6A (1) This paragraph applies to a person who—

(a) is on immigration bail—

(i) pursuant to a grant by the Secretary of State, or

(ii) pursuant to a grant by the First-tier Tribunal in a case where the Tribunal has directed that the power in paragraph 6(1) is exercisable by the Secretary of State, and

(b) before the grant of immigration bail, was detained or liable to detention under a provision mentioned in paragraph 1(1)(b) or (d).

(2) Where the person is subject to an electronic monitoring condition, the Secretary of State—

(a) must not exercise the power in paragraph 6(1) so as to remove the condition unless sub-paragraph (3) applies, but

(b) if that sub-paragraph applies, must exercise that power so as to remove the condition.

(3) This sub-paragraph applies if the Secretary of State considers that—

(a) it would be impractical for the person to continue to be subject to the condition, or

(b) it would be contrary to that person’s Convention rights for the person to continue to be subject to the condition.

(4) If, by virtue of paragraph 2(2A) or (2C) or this paragraph, the person is not subject to an electronic monitoring condition, the Secretary of State—

(a) must not exercise the power in paragraph 6(1) so as to impose such a condition on the person unless sub-paragraph (5) applies, but

(b) if that sub-paragraph applies, must exercise that power so as to impose such a condition on the person.

(5) This sub-paragraph applies if, having considered whether it would be impractical or contrary to the person’s Convention rights to impose such a condition on the person, the Secretary of State—

(a) does not consider that it would be impractical to do so, and

(b) does not consider that it would be contrary to the person’s Convention rights to do so.

15 Mar 2016 : Column 1810

Amendment etc of electronic monitoring condition: bail managed by First-tier Tribunal

6B (1) This paragraph applies to a person who—

(a) is on immigration bail pursuant to a grant by the First-tier Tribunal in a case where the Tribunal has not directed that the power in paragraph 6(1) is exercisable by the Secretary of State, and

(b) before the person was granted immigration bail, was detained or liable to detention under a provision mentioned in paragraph 1(1)(b) or (d).

(2) Where the person is subject to an electronic monitoring condition, the First-tier Tribunal—

(a) must not exercise the power in paragraph 6(1) so as to remove the condition unless sub-paragraph (3) applies, but

(b) if that sub-paragraph applies, must exercise that power so as to remove the condition.

(3) This sub-paragraph applies if the Secretary of State notifies the First-tier Tribunal that the Secretary of State considers that—

(a) it would be impractical for the person to continue to be subject to the condition, or

(b) it would be contrary to that person’s Convention rights for the person to continue to be subject to the condition.

(4) If, by virtue of paragraph 2(2C) or this paragraph, the person is not subject to an electronic monitoring condition, the First-tier Tribunal—

(a) must not exercise the power in paragraph 6(1) so as to impose such a condition on the person unless sub-paragraph (5) applies, but

(b) if that sub-paragraph applies, must exercise that power so as to impose such a condition on the person.

(5) This sub-paragraph applies if the Secretary of State notifies the First-tier Tribunal that the Secretary of State—

(a) does not consider that it would be impractical to impose such a condition on the person, and

(b) does not consider that it would be contrary to the person’s Convention rights to impose such a condition on the person.”

98: Schedule 9, page 152, line 13, after “where” insert “—(a)”

99: Schedule 9, page 152, line 14, leave out “imposed by the Secretary of State”

100: Schedule 9, page 152, leave out lines 16 and 17

101: Schedule 9, page 153, line 41, at end insert “, subject to sub-paragraph (13A)”

102: Schedule 9, page 153, line 44, after “this” insert “is subject to sub-paragraph (13A), and”

103: Schedule 9, page 153, line 45, at end insert—

“(13A) The power in sub-paragraph (12) to grant bail subject to the same conditions and the duty in sub-paragraph (13) to do so do not affect the requirement for the grant of bail to comply with paragraph 2.”

104: Schedule 9, page 154, line 30, leave out “sub-paragraph (2)” and insert “this sub-paragraph”

105: Schedule 9, page 154, line 33, leave out “This sub-paragraph” and insert “Sub-paragraph (1)”

Amendments 92 to 105 agreed.

Amendment 106

Moved by Lord Bates

106: Schedule 9, page 154, line 46, at end insert—

“(2A) Regulations under section 86(1) may, in particular—

(a) make provision about the circumstances in which the power in paragraph 6(1) may or must be exercised so as to impose an electronic monitoring condition on a person to whom this sub-paragraph applies;

15 Mar 2016 : Column 1811

(b) enable the Secretary of State to exercise a discretion in determining whether an electronic monitoring condition should be imposed on such a person,

and may, in particular, do so by providing for paragraph 6A or 6B to have effect with modifications in relation to such a person.

(2B) Sub-paragraph (2A) applies to a person who—

(a) by virtue of regulations under section 86(1) is treated as having been granted immigration bail as a result of falling within—

(i) sub-paragraph (2)(c), (d) or (e), or

(ii) sub-paragraph (2)(f) on the basis that the person had been released on bail from detention under paragraph 2 of Schedule 3 to the Immigration Act 1971,

(b) is not treated as being subject to an electronic monitoring condition, and

(c) is not otherwise subject to an electronic monitoring condition.

(2C) Sub-paragraph (2A) applies to a person who—

(a) is on immigration bail pursuant to a grant before the coming into force of paragraph 2(1A) and (1B), or the coming into force of those provisions in relation to grants of that kind,

(b) before the grant of immigration bail, was detained or liable to detention under a provision mentioned in paragraph 1(1)(b) or (d), and

(c) is not subject to an electronic monitoring condition.”

Amendment 106A, as an amendment to Amendment 106, not moved.

Amendment 106 agreed.

Amendments 107 to 112

Moved by Lord Bates

107: Schedule 9, page 157, line 35, leave out “(3) and (5)” and insert “(2C) and (2D)”

108: Schedule 9, page 157, line 38, leave out “(5)” and insert “(2C)”

109: Schedule 9, page 158, line 13, leave out “, (7), (8) and (9)” and insert “and (7)”

110: Schedule 9, page 158, line 15, after “Commission”,” insert—

“( ) in sub-paragraph (4A) for “The First-tier Tribunal” there were substituted “The Special Immigration Appeals Commission,”.”

111: Schedule 9, page 158, line 16, leave out “, (6) and (10)” and insert “and (6)”

112: Schedule 9, page 158, line 17, at end insert—

“Paragraph 6A(1)(a)(ii) (removal etc of electronic monitoring condition: bail managed by Secretary of State) has effect as if—

(a) for “the First-tier Tribunal” there were substituted “the Special Immigration Appeals Commission”, and

(b) for “the Tribunal” there were substituted “the Commission”.

Paragraph 6B (amendment etc of electronic monitoring condition: bail managed by First-tier Tribunal) has effect as if—

(a) in sub-paragraphs (1)(a), (2), (3), (4) and (5) for “the First-tier Tribunal” there were substituted “the Special Immigration Appeals Commission”, and

(b) in sub-paragraph (1)(a) for “the Tribunal” there were substituted “the Commission”.”

Amendments 107 to 112 agreed.

15 Mar 2016 : Column 1812

8.05 pm

Further consideration on Report adjourned until not before 9.05 pm.

Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) Order 2016

Motion to Approve

8.06 pm

Moved by Lord Faulks

To move that the draft Order laid before the House on 17 December 2015 be approved.

Relevant document: 20th Report from the Secondary Legislation Scrutiny Committee

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, the purpose of this draft order is to introduce enhanced fees for certain types of civil and family proceedings. Specifically, the order will increase the fee to issue a possession claim in the county court to £355 from £280 and there will be a 10% fee discount for possession claims made online. It will also increase the fees for a general application made in civil proceedings to £100 for an application made by consent or without notice and to £255 for a contested application. These changes will also apply to general applications made in judicial review proceedings heard in the Immigration and Asylum Chamber of the Upper Tribunal.

There are, however, general applications relating to certain proceedings for which, given the particular sensitivities involved, we feel that it would be inappropriate to charge a fee above cost. These are applications in insolvency proceedings, applications in relation to an injunction for protection from harassment, and applications for payment to be made out of funds held in court. The order will also make small changes to the fees charged for copy documents in immigration judicial review proceedings heard in the Immigration and Asylum Chamber of the Upper Tribunal. Finally, the order increases the fee to make an application for a divorce or dissolution of a civil partnership. This will be increased to £550.

Where users are charged a fee to access public services, it is normally the case that the fee should be set at a level to cover the full cost of delivering those services. For many years the civil and family courts have operated on that basis. Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 provides the Lord Chancellor with a power to prescribe fees above cost on the basis that these fees are used to finance an efficient and effective system of courts and tribunals. This power was used for the first time in March last year to increase the fees for money claims.

Noble Lords will be aware of the difficult economic situation that we face. The Government were elected to continue our work to fix the economy, and that is indeed what we are doing. It is clearly right that we continue to look for opportunities to reduce public spending. That includes the courts and tribunals and those who use them. In the current financial climate, it is right that we look again at the balance between what

15 Mar 2016 : Column 1813

users pay towards the overall cost of the Courts and Tribunals Service as compared with the financial burden that falls on the taxpayer. All of the increases in the draft order have been subject to consultation, and our decision to take them forward has been announced in subsequent published government responses.

Why are the Government taking this action and why is it necessary? The reason we are introducing these fee increases is to make sure that the courts and tribunals are funded in the long term. The courts and tribunals fulfil a vital function in our society. They make sure that access to justice is available to those who need it. Access to justice is critical to the maintenance of an effective and functioning democracy, helping to maintain social order, underpinning an effective economy, and upholding the rule of law. It is crucial that these principles are preserved so that people who need it have ready access to the courts and tribunals.

Equally, a strong economy is a prerequisite for effective and affordable public services. Noble Lords will be aware that the Government inherited a growing budget deficit, increasing public sector debt, and an economy in recession. We made economic recovery our first priority, and this has required some difficult decisions to be made. The action we have taken is working and the recovery is now well under way, but further reductions in spending are essential if we are to eliminate the deficit.

We have secured more than £700 million-worth of funding to invest in our courts and tribunals, and we have been working closely with the senior judiciary to develop a plan for investing this in reforming the courts and tribunals so that they can deliver swifter, fairer justice for everyone in England and Wales at a lower cost.

There is, however, only so much that can be done through cost-efficiency measures alone. If we are to secure the sustainable funding of the courts and tribunals, we must also look to those who use the system to contribute more, where they can afford to do so. We consulted on all these proposals and have carefully considered all the responses that were received. The consultations produced some very strong views, particularly on the proposed increase to the fee for a divorce or dissolution of a civil partnership. We have listened to what people had to say and have decided to limit the increase in this fee to £550—from £410—rather than £750, as originally proposed.

The measures set out in this order, we estimate, will generate around £60 million per annum in additional income, with every £1 collected spent on providing an efficient and effective system of courts and tribunals. We recognise that fee increases are not popular, but they are necessary if we want to deliver our promise to fix the economy while protecting access to justice. It is in those circumstances that I therefore commend this draft order to the House, and I beg to move.

Amendment to the Motion

Moved by Lord Beecham

At the end to insert “but this House regrets that the draft Order further increases enhanced fees in certain proceedings that will be detrimental to

15 Mar 2016 : Column 1814

victims of domestic violence and disproportionately discriminate against women; is concerned that the Government have acted against the advice of the Lord Chief Justice, Master of the Rolls, and the President of the Family Division, among others; and notes the Secondary Legislation Scrutiny Committee’s disappointment that despite strong concern expressed by respondents to the public consultation the Government give no policy justification other than the generation of income”.

Lord Beecham (Lab): My Lords, yesterday the House spent a good deal of time on the infamous pay-to-stay provisions of the Housing and Planning Bill. Today it is pay to sue that this order makes the subject of debate.

The Government have already ratcheted up fees for court and tribunal proceedings with a devastating effect in relation to employment tribunals, where applications have fallen by 70%. Now they seek to extract significantly higher fees in the civil and divorce courts, not only for the issue of proceedings but even for filing applications and consent orders in the course of those proceedings.

The report of the Secondary Legislation Scrutiny Committee reminds us, as the noble Lord has just done, that the Anti-social Behaviour, Crime and Policing Act 2014 permits a Lord Chancellor to,

“prescribe a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged”—

in other words, to make a profit out of the parties to litigation over and above the actual cost to the system of those proceedings. It is as if people paying for a prescription had to pay more than their treatment costs to help fund the NHS or some other element of government funding. I hope that the Secretary of State for Health does not read Hansard tomorrow; it might give him ideas.

The court system costs £1 billion a year to run. The order is estimated to realise £64 million by increasing the fees for a range of proceedings. In possession claims for goods or land the fees rise from £280 to £355—an increase of 27%, or in respect of online claims from £250 to £325. Consent applications in the course of proceedings, which by definition involve a minimum of court time, see a doubling in the fee from £50 to £100. The fee for contested applications in the course of proceedings rises from £155 to £255—a 60% increase. Uncontested applications in, of all places, immigration judicial review proceedings and the Upper Tribunal more than double from £45 to £100, while contested applications more than treble, from £175 to £550—I think that figure may not be accurate, but nevertheless they are increased substantially. Controversially, as the noble Lord has indicated, the cost of divorce proceedings rises from £410 to £550, and this is represented as a generous concession from the £750 originally proposed.

8.15 pm

No explanation is offered for these widely different increases. As the Secondary Legislation Scrutiny Committee points out, the Ministry of Justice acknowledges that the actual cost of dealing with uncontested applications

15 Mar 2016 : Column 1815

for divorce is only £270. Thus the increased fee is over 100% more costly—oddly, the committee says 200% more costly. This a particularly sensitive area, given that, in effect, the Ministry of Justice is seeking to profit from a situation where the parties are in an inherently unhappy position. Women constitute two-thirds of those initiating divorce proceedings.

Others will also suffer. It might be thought that a landlord seeking a possession order should shoulder the cost but of course ultimately, if the proceedings are successful, either by way of a consent order or a judgment, the tenant will pay. In its reply to the Ministry of Justice consultation document, Thompsons Solicitors pointed out that 90% of money claims are for less than £10,000. A case settling for £1,500 would incur issue and consent order fees of £215, and if there was a contested application en route this would be another £255, so court fees alone would be a third of the value of the claim.

It is true that there is a remission scheme, but this requires a separate application for remission, with fresh income details for each fee incurred during the course of the proceedings. The guidance is a handy 31 pages long. Dealing with these applications—especially if they are made by unrepresented parties, as many will be given the non-availability of legal aid—will place extra burdens on the Courts Service. In any case, the income threshold is very low, at £245 a week or £1,085 a month—barely more than the national minimum wage or what the living wage would be. It is particularly reprehensible in the context of divorce and immigration cases. There is a risk that divorce petitioners, especially women, will not seek to recoup the costs from respondents to avoid tensions that might impact on the conduct of proceedings, or on the relationships in the family following divorce.

The Law Society points out that it is only a year since the last increase—smuggled in, one might recall, on the eve of the general election. It rightly points to particular difficulties in immigration cases, where there are already problems with costs, an application for indefinite leave to stay having gone up from £1,093 to £1,500, and where there is an additional NHS charge of £500. There is a concern about the burden of such fees in a sensitive area involving human rights and a risk that some potential applicants will resort to overstaying illegally because they will be unable to raise the necessary money to proceed with an application.

The society cites a recent case in which a couple in their 60s, the husband British, his wife American, returned to the UK to care for the husband’s elderly mother. The wife has been refused a long-term visa and cannot afford the cost of fees for an appeal. The potential outcome is that the couple may have to return to the US and the mother cared for by the local authority, at public expense.

The society gives another potential example of unintended consequences. Landlords will often resort to possession proceedings where a tenant is unwilling to leave, even if in arrears, and tenants may not leave precisely because if they do so without being the subject of an order they are deemed to be voluntarily homeless and may not be rehoused. Hence, landlords may seek to insure against these risks by increasing the size of the deposit required at the time of the letting.

15 Mar 2016 : Column 1816

This in turn would increase the pressure on people struggling to find the wherewithal for a deposit in the first place.

It is not surprising that, in the light of these and other difficulties, the Government’s actions have been roundly criticised by leading members of the judiciary past and present. Indeed, the noble and learned Lord, Lord Woolf, told me that he would be speaking about this issue this very morning, and that he regrets that he is unable to speak again tonight, when he would have liked to have contributed to the debate, because he is giving another speech in another place—not the House of Commons.