Immigration and Social Security Co-ordination (EU Withdrawal) Bill: Bishop of Durham supports amendments on detention, refugee family reunion and unaccompanied children

On 14th September 2020 the House of Lords considered amendments to the Government’s Immigration and Social Security Co-ordination (EU Withdrawal) Bill, during its third day in Committee.

The Bishop of Durham, Rt Revd Paul Butler,  supported amendments to the Bill, on:

  •  Limiting the time a specified person can be detained for immigration purposes, and defining those purposes.
  • Family reunion for those seeking refugee status, and unaccompanied children

As is usual in Committee, the amendments were not pressed to a vote after debate, though some issues may be returned to again at a later stage. A transcript of the Bishop’s speeches is below, with extracts from the speeches of the Minister responding. The text of amendments 39, 40 and 48 supported by the Bishop are reproduced at the bottom.

The Lord Bishop of Durham [V]: My Lords, I speak in favour of this group of amendments and, in particular, address my comments to Amendments 39 and 40. I concur with the excellent points made by the noble Baroness, Lady Hamwee, in the introduction to this debate, as well as those made by the noble Lord, Lord Ramsbotham, and others who have spoken since.​

I would like to further emphasise the human and moral cost of our current and proposed detention system. The effect of indefinite detention, which lasts in some cases for months or even years on end, is devastating on the mental and physical health of detainees. Hopelessness promoted by a lack of knowledge over what comes next and flashbacks to past trauma are common experiences.

I offer an illustrative example, collected by the Jesuit Refugee Service, of the impact of our present system. Oliver was conscripted into the army at 17. He had no choice—he was taken off the street one day on his way home from school. He managed to escape after eight years but was captured, imprisoned underground and tortured. He was the victim of human trafficking twice, once being sold into slavery and once when he was taken to Europe. He arrived in the UK in July 2015, immediately made himself known to the authorities and claimed asylum. He was taken into immigration detention at Dover and moved to Harmondsworth IRC.

Oliver spoke no English. He had committed no crime. The incarceration triggered flashbacks to his imprisonment underground in his home country. He was examined by doctors and found to be suffering from PTSD. He had clear injuries on his body, which were ratified by a medical examination as being signs of torture conducive with his experience. After three months in detention, he was released to Section 4 accommodation in Cardiff. A year later, he was suddenly detained again and taken by taxi from Cardiff to Dorset. This time he was released after 18 days and finally granted indefinite leave to remain in 2019.

I could have filled a much longer speech with many other examples, including those of children, victims of trafficking, slavery and sexual abuse, and of people repeatedly detained in a highly traumatic environment that served no purpose in protecting the wider public. These amendments do not dispute that detention can serve a valuable, even critical, purpose, including—in a small number of cases—the protection of the public. What these amendments would do, however, is demand that the purpose of detention is clear and justifiable in each case, and cannot be of unlimited duration or used repeatedly in ways which have been shown to be immensely harmful to detainees. Unlike the noble Lord, Lord Green of Deddington, I believe that the public recognise that detention for long periods is not the way that we treat human beings in our country. We all want a better, respected asylum system, but detention detracts from that. I hope that the concerns in these amendments can be addressed.

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The Minister of State, Home Office (Baroness Williams of Trafford) (Con) [extract]: We take protection of the vulnerable extremely seriously. The right reverend Prelate the Bishop of Durham outlined a really moving story to us, and we take this terribly seriously. The adults at risk in immigration detention policy has strengthened the presumption against the detention of vulnerable people, ensuring that people are detained only where evidence of their vulnerability is outweighed by immigration considerations.


The Lord Bishop of Durham [V]: My Lords, I declare my interests as laid out in the register as receiving support from the RAMP project on immigration policy and as a trustee of Reset. It is a real honour to follow the noble Lords, Lord Dubs and Lord Kerr, with whose comments I fully agree, particularly the final points from the noble Lord, Lord Kerr, on pull and push factors.

In our churches, we tell a story about a man who was attacked by robbers on the road. As he lay wounded, people passed him and hurried on their way. Who helped him? It was not those from his own community. Instead, a stranger saw the man’s plight, chose to stop, carried him to safety and took care of his needs. This man, Jesus observed, was truly a good neighbour. In the light of this, who is our neighbour in a global age?

Throughout its history, the people of this country have faced choices about whether to offer sanctuary to those fleeing violence and persecution. We are rightly proud of the occasions when we have done so. The legacy of the Kindertransport in the Second World War, which saved Jewish children’s lives, and about which many of us have heard our noble friend Lord Dubs speak so movingly on occasions, still motivates many of us to support this cause.

Sadly, there is another history too, in which we in this nation have chosen a different path: of rejecting those in need and shutting our eyes to the plight of those afflicted by conflict and persecution, and of the racist exclusion of those who have come here to rebuild their lives. In a world of conflict, disaster and persecution, we face this choice again and again. Will we offer welcome or will we turn away? Which path will we take as a nation? For those least able to help themselves—unaccompanied children—what will we choose to do?

This week, as we have heard of and seen reports on the fire at the Moria camp in Greece, we are pressed to make a choice whether to help or to stand by, as both the noble Lords, Lord Dubs and Lord Kerr, have said. In that camp, there were thousands of children, including more than 407 unaccompanied minors, some of whom are reported as having family members in the UK but are still waiting to be transferred here, months after ​being accepted for family reunion under the Dublin III law. In response to this debate, I hope that the Minister will address what is being done for them. Those of us who support this amendment are concerned that while Germany, France and other countries have already offered assistance to those affected by this fire, the UK appears yet to have done so. I am worried that in their actions this week, the Government have already chosen between the two paths with which we are faced.

Christians often remind themselves of these words of Jesus:

“Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.”

We are called to treat every child—and every person fleeing persecution and war, for it is within our power to help—with dignity and hospitality, as if they were the son of God himself. Many of us will share a conviction, whatever values or beliefs it is based on, that human life is precious, and that each person carries a unique, incalculable value. How do we choose to recognise that in the question before us of children separated from their families?

I acknowledge the argument made on previous occasions that primary legislation is not necessary to facilitate family reunion. I do not doubt the sincerity of the reassurances that I and others have received repeatedly over recent months from Ministers that they take our humanitarian obligations seriously. Yet I note with regret that the UK’s refugee resettlement scheme appears still to be paused while other countries have restarted theirs. I also note that the Dublin arrangements will soon lapse and that, in any case, there are precious few safe and legal routes for those seeking sanctuary to arrive here.

In the light of that, I must support this amendment, that we might bind ourselves to making the choice to offer sanctuary to those in need of it. I encourage everyone in this House to support it too.

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The Minister of State, Home Office (Baroness Williams of Trafford) (Con) [extract]: ..The right reverend Prelate the Bishop of Durham asked what we have done during the pandemic. It is absolutely fair to say that it has been very difficult to resettle children for all the reasons that the pandemic has brought; however, the UK has remained open to receiving Dublin transfers. I remember that, very early on in the pandemic crisis, Minister Philp was in talks with Greece. Three group flights have taken place from Greece in recent months, on 11 May, 28 July and 6 August. We continue to make arrangements with Greek officials to facilitate transfers of people we have accepted under the regulation. I must make it clear that all arrangements to complete the transfer are the responsibility of the sending state.


Amendments text:

After Clause 4

BARONESS HAMWEE

BARONESS LUDFORD

LORD ROSSER

LORD KENNEDY OF SOUTHWARK

39) Insert the following new Clause—

“Time limit on immigration detention for EEA and Swiss nationals

(1) For the purpose of this section, a person (“P”) is defined as any person who, immediately before the commencement of Schedule 1, was—

(a) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052);

(b) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments which is repealed by Schedule 1;

or

(c) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, by virtue of section 4 of the European Union (Withdrawal) Act 2018 (saving for rights etc. under section 2(1) of the ECA), to be recognised and available in domestic law after exit day.

(2) The Secretary of State may not detain P under a relevant detention power for a period of more than 28 days from the relevant time.

(3) If P remains detained under a relevant detention power at the expiry of the period of 28 days then—

(a) the Secretary of State must release P forthwith; and

(b) the Secretary of State may not re-detain P under a relevant detention power thereafter, unless the Secretary of State is satisfied that there has been a material change of circumstances since P’s release and that the criteria in section (Initial detention: criteria and duration) are met.

(4) In this Act, “relevant detention power” means a power to detain under—

(a) paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);

(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);

(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal); or

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

(5) In this Act, “relevant time” means the time at which P is first detained under a relevant detention power.

(6) This section does not apply to a person in respect of whom the Secretary of State has certified that the decision to detain is or was taken in the interests of national security.”

Member’s explanatory statement: This new Clause places a limit on the length of time EEA or Swiss nationals may be held in immigration detention of 28 days.


40) Insert the following new Clause—

“Initial detention: criteria and duration

(1) The Secretary of State may not detain any person (“P”) to whom section (Time limit on immigration detention for EEA and Swiss nationals) applies under a relevant detention power, other than for the purposes of examination, unless the Secretary of State is satisfied that—

(a) P can be shortly removed from the United Kingdom;

(b) detention is strictly necessary to effect P’s deportation or removal from the United Kingdom; and

(c) the detention of P is in all circumstances proportionate.

(2) The Secretary of State may not detain P under a relevant detention power for a period of more than 96 hours from the relevant time, unless—

(a) P has been refused bail at an initial bail hearing in accordance with subsection (5)(b) of section (Bail hearings); or

(b) the Secretary of State has arranged a reference to the Tribunal for consideration of whether to grant immigration bail to P in accordance with subsection (2)(c) of section (Bail hearings) and that hearing has not yet taken place.

(3) Nothing in subsection (2) authorises the Secretary of State to detain P under a relevant detention power if such detention would, apart from this section, be unlawful.

(4) In this section, “Tribunal” means the First-Tier Tribunal.

(5) In this section, “relevant detention power” has the meaning given in section (Time limit on immigration detention for EEA and Swiss nationals).”

Member’s explanatory statement: This new Clause is linked to new Clause “Time limit on immigration detention for EEA and Swiss nationals” by specifying certain criteria that must be met during the initial detention and that the initial detention period should be no longer than 96 hours.


LORD DUBS

BARONESS HAMWEE

LORD KERR OF KINLOCHARD

THE LORD BISHOP OF DURHAM

48) Insert the following new Clause—

“Leave to enter: family unity and claims for asylum

(1) For at least such time as a relevant agreement has not been concluded and implemented, a person to whom this section applies shall be granted leave to enter the United Kingdom for the purpose of making a claim for asylum.

(2) This section applies to a person who—

(a) is on the territory of any relevant Member State; and

(b) makes an application for leave to enter for the purpose of making a claim for asylum; and

(c) would, had that person made an application for international protection in that Member State, have been eligible for transfer to the United Kingdom under Regulation (EU) No. 604/2013 by reason of a relevant provision if the United Kingdom remained a party to that Regulation.

(3) An application for leave to enter under subsection (2)(c) shall be made in such manner as the Secretary of State may prescribe save that—

(a) there shall be no fee for the making of such an application and no requirements may be prescribed that are unreasonable having regard to the purposes of this section and the circumstances of persons to whom it applies;

(b) in relation to such applications, the Secretary of State shall make arrangements to ensure that applicants receive a decision regarding their application no later than two months from the date of submission of the application.

(4) A claim for asylum made under subsection (2)(b) must remain pending throughout such time as no decision has been made on it or during which an appeal could be brought within such time as may be prescribed for the bringing of any appeal against a decision made on a claim or during which any such appeal remains pending for the purposes of section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeal); and a claim for asylum remains one on which no decision has been made during such time as the claim has been made to the Secretary of State and has not been granted, refused, abandoned or withdrawn.

(5) The Secretary of State must, within six months of the day on which this Act is passed, lay before both Houses of Parliament a strategy for ensuring that unaccompanied children on the territory of a relevant Member State continue to be relocated to the United Kingdom, if it is in the child’s best interests.

(6) For the purposes of this section—

“applicant” means a person who makes an application for leave to enter under this section;

“claim for asylum” means a claim for leave to enter or remain as a refugee or as a person eligible for a grant of humanitarian protection;

“Regulation (EU) No. 604/2013” means Regulation (EU) No. 604/2013 of the European Parliament and of the Council including the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast);

“relevant agreement” means an agreement negotiated by a Minister of the Crown, on behalf of the United Kingdom, with the European Union in accordance with which there is provision for the transfer of a person who has made an application for asylum in a Member State of the European Union to the United Kingdom and that provision is no less extensive than Regulation (EU) No. 604/2013 insofar as that regulation operated to enable the transfer of a person to join a child, sibling, parent or other family member or relative in the United Kingdom before exit day;

“relevant Member State” means a Member State for the purposes of Regulation (EU) No. 604/2013;

“relevant provision” means any of the following articles of Regulation

(EU) No. 604/2013—

(a) Article 8,

(b) Article 9,

(c) Article 10,

(d) Article 16,

(e) Article 17.