My Lords, in the absence of the noble Baroness, Lady Jones of Moulsecoomb, who is not in her place, I will move Amendment 102A and will speak to the consequential amendments, because I was planning to speak in support of this amendment.
I had assumed that the noble Baroness would be here to explain it, so I will briefly quote from briefings that some of us have received from ILPA, BID and Detention Action. The briefing says:
“Section 12 IMA, since 28 September 2023, has sought to enable the Executive to (a) decide the reasonableness of the length of all forms of immigration detention, intending to overturn an established common law principle which provides for judicial oversight over the length of detention as an important safeguard against arbitrary detention, and (b) continue to detain persons after the reason for their detention (pending examination, removal, or deportation order/decision being made within a reasonable period of time) falls away”.
I probably will not be quite as helpful to my noble friend the Minister as I was on the previous group, but I will start by welcoming the repeal of most of the Illegal Migration Act; needless to say, I do not support the other amendments in this group. However, the omission of Section 12—one of the very few sections to survive—is worrying, because I fear it may reflect an attitude towards detention that I had hoped we had seen the back of with a change in government.
We will be returning to the question of detention and the case for a time limit at a later date but, as I will probably be away then, I hope the Committee will bear with me for raising some more general points about detention. In justification, I cite the UNHCR’s observations on the Bill. It emphasises:
“Detention of asylum-seekers and refugees should be a measure of last resort and both necessary and proportionate in each individual case”.
It therefore recommends the repeal of Section 12 of the Illegal Migration Act, which it fears could mean in some cases detention for periods inconsistent with standards in international refugee and human rights law. Previously, it had pointed to the policy of indefinite detention as a key point of concern. This concern has to be the greater so long as Section 12 remains on the statute book.
It has been a full decade since the inquiry into the use of immigration detention on which I served, established by the APPGs on refugees and migration, called for a 28-day time limit on detention. It argued that detention should be an absolute last resort, with a presumption in favour of community-based solutions. It is depressing that, despite countless reports, including that of the official Brook House inquiry, making the same case in the intervening 10 years, here we are again.
One of those reports was by the Home Affairs Committee in 2019, chaired by the now Home Secretary. It pointed out that the UK is the only country in Europe without a limit on the length of time someone can be held in immigration detention. Having reviewed the evidence, it concluded:
“There is a rapidly growing consensus among medical professionals, independent inspectorate bodies, people with lived experience and other key stakeholders on the urgent need for a maximum time limit”.
The committee called on the then Government to
“bring an end to indefinite immigration detention and to implement a maximum 28-day time limit with immediate effect”.
That was in 2019. Of course, nothing happened. One has to ask: what has changed the Home Secretary’s mind?
The consensus is still very much there. Indeed, the evidence of the harmful effects on health, particularly mental health, has mounted, including last year from the Royal College of Psychiatrists. Moreover, as Refugee Tales, which met with some of us the other day, found during its walking inquiry into immigration detention, the damaging impacts last long after release. It notes that:
“For those with lived experience, ‘detention never leaves you’”.
A series of reports by Women for Refugee Women over the past decade have underlined the particularly damaging impact of detention generally on women, the majority of whom are survivors of rape and other forms of gender-based violence. Their most recent report warns:
“Locking up women who have already survived serious violence and abuse retraumatises them, causing profound and longlasting damage to their mental health”.
Shockingly, its latest research found that despite the Home Office banning such practices, male detention centre staff still subjected women in intimate situations to constant supervision.
For a brief period, the previous Government flirted with alternatives to detention with two pilot schemes. In an assessment of these pilots, the UNHCR wrote that:
“Alternatives to Detention provide a people centered approach to supporting asylum seekers whilst waiting for case resolution without any evidence of a reduction in compliance with UK Home Office directives”.
The evidence from the pilot shows significant improvement in the mental health and well-being of participants and that alternatives to detention are cheaper and offer better value for money compared with the cost of detaining asylum seekers. One would have thought that would appeal to Governments of any persuasion.
It was thus disappointing that, when we debated the guidance on the detention of vulnerable persons last October, my noble friend the Minister told us it was the new Government’s policy to “expand the detention estate”. Apropos of that, I understand that the review of that guidance is still ongoing. Can my noble friend the Minister give me an assurance that any changes it proposes will strengthen, and not weaken further, the safeguards for vulnerable people in detention?
Just about finally, returning to the question of indefinite detention, whenever I raised the issue with Ministers in the previous Government, I was met with the semantic response that detention is not indefinite because it comes to an end. We all know that, in this context, “indefinite” means without a specified end or time limit. I hope this semantic distinction did not lie behind Minister Eagle’s recent response to an Oral Question, when she stated:
“Immigration centres are not used for indefinite detention”,—[Official Report, Commons, 2/6/25; col. 18.]
because, if there is no reasonable prospect of removal, the person has to be released. Yet in the year ending 31 March 2025, just over a third of those leaving detention had been held for 29 days or more, and as many as 533 for six months or more.
I trust that my noble friend will accept that we do apply indefinite detention, with important, limited exceptions, in this country. I hope he will acknowledge the harm that this does to those affected. Will Members of your Lordships’ House still have to be making the case for a time limit and minimal use of detention a decade on from now?
In conclusion, repeal of Section 12 of the IMA is the absolute minimum needed to even begin to meet the UNHCR’s concerns, echoed by the JCHR, which, like the UNHCR, also called for its repeal:
“to restore certainty and ensure compliance with Article 5”
of the ECHR. This point is underlined by the Bar Council, which, along with numerous other bodies, argues for repeal with reference to the rule of law and access to justice.
I hope that my noble friend will give serious thought to this, and also to the case that will be made in later amendments for a clear time limit and the development of alternatives to detention. I beg to move.