My Lords, before I begin, I declare my interest: I am supported by the RAMP project. I thank the noble Baroness, Lady Lister, for raising this important issue, which will set the agenda for the new Government as they move forward. On behalf of the Liberal Democrats, I say that we support the timely and accurate processing of asylum cases as well as swift and humane removal for those who do not meet the criteria for protection. To do that, we should front-load the asylum application process with decision-making expertise and legal aid provisions so that accurate decisions are made without the need for many appeals.
I will address the issue of legal versus illegal—we have had this discussion in the Chamber already. The thing you have to tell yourself is: you do not know whether people are fleeing persecution, torture or other things in the treaties, whether or not they are legal asylum seekers. That is why any asylum seeker is a legal, not an illegal, person. We do not know how many of the 52 people who have died in the channel in the past year would have made a justifiable claim for protection in this country and, therefore, would have been legal by definition. We must be very careful, when we use these words, that we do not misuse them. Certainly, with the way in which the legislation is being altered, that becomes the case even more.
The key aim of the original 2016 regulations, amendments to which we are discussing today, was to improve protection for particularly vulnerable people in detention. However, the changes that we are debating are of the previous Government. The present Government will make changes to this legislation, I hope, now that they have got control of matters. That is the first and most important thing we need to hear from the Minister today.
This is particularly relevant given that the regulations before us had an inadequate consultation exercise: it lasted only five weeks when, normally, at least 10 would be expected—there was also no equality impact assessment—and this was published before the Government responded to the Brook House inquiry. In the absence of the SLSC’s chair making a contribution, I wonder whether he would mind me quoting one of the conclusions that the committee reached. As I understand it, it said that the Home Office agrees that it will “logically follow” that these changes will mean
“detaining more of those considered vulnerable, despite a ‘presumption against’ such detention”.
The Minister will, I am sure, be able to confirm what the SLSC report states.
The inference from the current regulations is that people who were not really vulnerable were getting released, and that that is the reason why these regulations were put in place. They also bring into force changes to the statutory guidance on adults at risk in immigration detention, which sets out the process for making decisions on immigration detention where an individual may be vulnerable to harm if detained. So, the question to be addressed today is: will the changes weaken the protective purpose of the “adults at risk” policy and risk exposing more vulnerable people to harm in immigration detention? If so, will this Government make the necessary changes in order to decrease the damage being done by these regulations?
The submission that we received from Medical Justice states that the changes weaken:
“the protective purpose of the Adults At Risk policy and risks exposing more vulnerable people to harm in immigration detention”.
It quotes, by way of example, the change in the wording from a
“clear presumption … that detention will not be appropriate if a person is considered to be ‘at risk’”
to a “general presumption of liberty” that
“is strengthened for those considered vulnerable under this guidance”.
Those are two crucial sentences, but clearly one is stronger than the other. The key concern in that submission was whether the overall increase in the number of people detained will also lead to a greater number of vulnerable people being detained, with the possible adverse effects that detention might have on these people.
My noble friend Lady Hamwee and the noble Baroness, Lady Lister, both talked about the second opinion issue of getting a second MLR. The Home Office provided data to the Secondary Legislation Scrutiny Committee. It is worth looking at that data: over a period of approximately 19 months, 199 MLRs were received for migrants in detention, of which 47 were referred for a second opinion report. Of those, 30 second opinion reports were received. As a result of those 30 reports, 14 cases were released and 16 remained in detention, although all but two of those 16 were later released following a further review. In total, therefore, 28 of the 30 cases with a second opinion still resulted in a release. Do the Government agree with the SLSC report that this data does not provide compelling evidence, as outlined by the report and by the noble Baroness, Lady Lister, in her opening? What steps will the Government take to closely monitor its effects, particularly the number of release and detention decisions that are changed because of the second opinion, and the impact on those whose detention is extended to obtain a second opinion? Crucially, will these results be published?
The Brook House inquiry has already been raised by a number of noble Lords in this debate. That substantial report—three volumes—exposed the dehumanising abuse of vulnerable people held in immigration detention by the Home Office. It was not a case of a few bad apples but systemic failure. The inquiry made, as we heard, 33 recommendations, of which only one has been taken up in full. Adopting those recommendations is the only meaningful way of
ensuring that the mistreatment and abuse, including the breaches of Article 3 of the ECHR, do not happen again.
Supplemented by that, we now have the report by the independent monitoring board on the Gatwick PDA. It is worth while reading this into the record here today. That report says, in its recommendations to the Minister, that:
“Given the evident suffering and distress for parents involved and the unknown impact of the experience on their children, the PDA should be closed”.
There are, then, plenty of examples of where everything is not in fact happening in a good state. It is important that the fundamental mistake of reducing detention safeguards without properly considering the implications of a public inquiry is acknowledged, and that the public inquiry is considered as a route to making sure that we change more for the future.
I want to address some questions to the Minister because this is our first opportunity to ask the new Government about these matters. I do not necessarily expect an answer to all of them today, but I ask that the Minister writes to me if this becomes too tricky.
If the aim is to facilitate more removals of people with no right to remain in the United Kingdom, which must be the case from the evidence we have just been talking about from the SLSC and the facts provided to us, what assessment has there been to establish what barriers there are to increasing the numbers of people removed from the UK, who after due process do not qualify for leave to remain? What are the barriers that the Government see are still in place?
What impact have the recommendations and learning from the Brook House inquiry had on the proposed government review? Will those things be part of the terms of reference for that inquiry and review? It would be very helpful to know whether a timescale can be provided for that review so that we can judge the speed with which the Government are going to move on this process.
What progress has been made by the cross-governmental working group that was established to monitor progress against the Brook House inquiry recommendations and to drive forward implementation? Can we have more details about this group and its work?
Given the findings of failings of detention, will the Minister commit to re-engaging with the alternatives to detention that were piloted by the Government between 2019 and 2022? Finally, what evaluation and monitoring report is in place for this policy change that we are seeing before us today? If it is not in place now, when will it be in place?
The standards by which we treat people in our society should be constant; whoever they are, human rights are human rights. However, the processes are set out in guidance by the Home Office, and the evidence is that they are not happening. The Brook House inquiry shows that processes by which vulnerabilities are identified and acted upon are not working. Where we are removing someone’s liberty, protections have to be significant. On current evidence, that balance has
not been struck, and the treatment and safeguards for everyone in detention, particularly those with additional vulnerabilities, are just not sufficient.