Medical Justice is extremely concerned by the current government’s Illegal Migration Bill 2023. Once passed, the Bill will effectively amount to a ban on claiming asylum in the UK by most asylum seekers.
We have been supporting parliamentarians with their efforts to oppose the Bill and to highlight its damaging effects. Most recently this has included working with Peers in the House of Lords to table amendments on key detention-related issues.
The amendments were debated on 7 and 14 June 2023.
Amendment 62 – Places of detention
Under current legislation, the Home Secretary may only detain people for immigration purpose in those places specified by her in law. Detention in places not specified by her in this way will be unlawful.
The Illegal Migration Bill however contains a provision that will grant the Home Secretary the power to detain people “in any place she considers appropriate”.
As such it was not clear whether the Bill intends to authorise detention in places not specified in law, and therefore where minimum standards regarding the treatment of detained person may not necessarily be met.
Amendment 62 would prevent the Home Secretary from detaining people other than in places currently specified in law and where minimum standards must be met. It would also place the Home Secretary under a duty to consult local residents before authorising the use of any new detention facility.
The amendment was tabled by Lord German (Liberal Democrat) and the Lord Bishop of Durham. You can listen to their debate speeches below.
“Removing someone’s liberty is a deeply serious issue and we are extremely concerned about the consequences of (the Bill’s detention provisions) for the most vulnerable in our society, particularly children, torture victims, pregnant women and victims of modern slavery. It seems to us that the Home Secretary is moving far beyond the sorts of powers necessary to detain people in an appropriate manner…
“The lives, liberty and well-being of fellow human beings should not be put on the line as collateral damage for a policy which most of us know will never achieve its stated aims but is being used for political appeasement.”
“The power to deprive a person of their liberty, and how and where someone is detained, should be constrained by law and not the discretion of a Minister of the Crown, or anyone else…
The Government will understand the potential impact of wide discretionary powers to detain people anywhere, without adherence to particular standards, given the events at Manston in 2022. With a maximum capacity of 1,600, Manston became overcrowded, with the number of people detained there nearing 4,000 towards the end of 2022, and there are concerns that the conditions are likely to have amounted to inhuman and degrading treatment. We cannot allow another humanitarian crisis such as this to occur…
It is therefore of the utmost importance that we understand the legal framework that will be put in place to ensure that detention and safeguarding standards are established, and that detention sites are designated by law, not by expedient, as suitable.”
The Lord Bishop of Southwark (representing the Lord Bishop of Durham)
Amendment 70 – Use of force against pregnant women and children
Current government policy does not allow force to be used against detained pregnant women and children for any purpose except to prevent harm (either to the woman or child in question, or to others).
This position only exists in government policy, however – not in primary legislation – meaning it can quite easily be withdrawn or changed.
Amendment 70 sought to address this by inserting into the Bill a prohibition on the use of force against pregnant women and children to effect their removal or detention.
The amendment was tabled by Baroness Lister of Burtersett (Labour), Baroness Gohir (crossbencher), the Lord Bishop of Gloucester, and Baroness Chakrabarti (Labour). It was debated along with an amendment that attempted to re-establish a time-limit on the detention of pregnant women. Similar amendments on retaining time-limits for the detention of both unaccompanied and accompanied children were discussed elsewhere in the debate.
You can listen to the peers’ speeches in the debate below.
“(T)he rationale for this amendment is the harm that the use of force can do to particularly vulnerable groups, the numbers of whom are likely to increase as the Bill’s removal of detention restrictions becomes law…
I fear that the Government’s obsession with deterrence, such that they intend to make life as grim as possible for all those who seek asylum in the UK through irregular means—not just small boats—regardless of vulnerability, means that they have lost all sight of humanity.”
Baroness Lister of Burtersett
“The suggestion of the use of force against either group is unspeakable.”
The Lord Bishop of Southwark (representing the Lord Bishop of Gloucester)
“Given the vulnerability of pregnant women and children, I support Amendment 70. Force should never be used to effect detention or for removal. Any use of force, even if it is considered mild, will risk harm to the mother and unborn child because each pregnancy is unique, and there may be pregnancy complications that are not apparent. The use of force risks miscarriage, waters breaking and the risk of infection, premature labour, stillbirth and trauma. It goes without saying that to safeguard and protect children from harm, force should also not be used on them…
The Government have a duty to safeguard the most vulnerable in society, so I hope they carefully listen to our concerns today.”
“It would seem that there is the edge of depravity, and then there is the abyss. In the last group, we talked about detention. We now take it to its further conclusion, because in the end, a consequence of detention will sometimes be force. It is as well that we confront that, and confront it in the case of both children and, in this example, pregnant women…
Surely, whatever is said about deterrents and so on, there can be some concession to humanity, please, in relation to children and pregnant women… We cannot go on like this… we cannot go on degrading ourselves and our values by suggesting that there is no difference between a child or a pregnant woman and an adult, and that everybody is illegal. We need to make some restraints, just for decency, for our own sake.”
Amendment 78 – Exception from detention ouster clause for people with medical evidence of vulnerability
Clause 12 of the Bill stipulates that the High Court cannot review the lawfulness of the decision to detain a person under immigration powers, for the first 28 days of their detention. This type of provision is known as an “ouster clause” because it “ousts” the jurisdiction of the Court in the circumstances in question.
Clause 12 has very serious implications for vulnerable people in detention. For example, the Home Office may decide to continue the detention of a survivor torture with post-traumatic stress disorder, despite a Rule 35 DCR 2001 or a Rule 32 STHF 2018 report. However, this decision may be in breach of the Home Office’s own guidance, for example if the medical evidence was not given sufficient weight compared to immigration factors under the Adults at Risk policy. At present, this individual can judicially review the decision to maintain their detention. However, under the proposed legislation, whilst they could ask the Home Office to exercise their discretion to release them, for instance, based on medical evidence, if this is refused, there could potentially be nothing they can do to challenge that situation for the first 28 days of detention. They would be entirely at the whim of the official making that decision.
Amendment 78 therefore sought to create an exemption from the detention ouster clause for people who have medical evidence of their vulnerability – including, for example, a Rule 35 or Rule 32 report or a medico-legal report from a Medical Justice doctor or another external independent clinician.
The amendment was tabled by the Lord Bishop of Durham, Baroness Lister of Burtersett, and Baroness Neuberger (crossbencher). You can listen to some of their speeches in the debate below.
“Amendment 78 would make an exception to the general ouster of judicial review during the first 28 days of detention where a person has been the subject of a report from a medical practitioner. To be clear, this is where the Home Office has evidence that a person’s health is likely to be injuriously affected by continued detention, they have suicidal intentions or there is concern that they may have been a victim of torture. It is hard to conceive of a more vulnerable grouping, where the stakes are higher, when considering detention.
I fear that preventing any means of legal challenge for those in a very dangerous and precarious medical state could be a disaster waiting to happen.”
The Lord Bishop of Southwark (representing the Lord Bishop of Durham)
“If someone has been the victim of torture and medical professionals make a report to the Home Secretary to that fact, that person ought to be able to appeal against detention in those first 28 days. The reason for that—for those who have not spent time with those who have been victims of torture—is the very considerable terror that many of those people experience if detained in any way. If they experience that form of terror, they are then very likely to be suicidal and in a situation within detention where the sort of holistic treatment they would need is simply not available.”
Amendment 139B – Placing duty on Home Secretary to implement recommendations of HMIP
This amendment sought to place a statutory duty on the Secretary of State a statutory duty to implement all recommendations of HM Inspectorate of Prisons (HMIP) in relation to immigration detention within six months, strengthening its independent external monitoring role.
Strengthening HMIP’s role is particularly important given that the Illegal Migration Bill is set to significantly increase the numbers of people who are held in immigration detention, including vulnerable people.
The amendment was tabled by the Lord Bishop of Durham, Baroness Lister of Burtersett and Lord Scriven (Liberal Democrat). You can listen to their speeches in the debate below.
“The Bill establishes a comprehensive detention regime that many of us expected to have been consigned to history….
(I)t would be unfathomable to proceed with these provisions without a detention inspection regime on a statutory footing…
The expansive duties and powers provided to the Home Office by the Bill demand they be matched by statutory and mandatory accountability.”
Lord Bishop of Durham
“(T)his Bill would dramatically increase the detention estate, with many vulnerable asylum seekers including children, pregnant women, and survivors of torture and trafficking experiencing the devastating harm that detention is known to inflict, particularly indefinite detention.
It is therefore imperative, as this amendment recommends, that the Home Secretary implements any relevant recommendations made by the Chief Inspector of Prisons.”
Baroness Lister of Burtersett
“I put my name to the amendment because I have a long history since I came into this place of asking questions about and taking a keen interest in vulnerable people who have been put in detention, particularly LGBT individuals. That goes back to 2014, when the then Independent Chief Inspector of Borders and Immigration, John Vine, investigated the Home Office’s handling of asylum claims with people on the grounds of sexual orientation. Since then, every time an independent inspection has been carried out, issues concerning LGBT individuals being held in detention and experiencing homophobia or physical violence, affecting their mental health, have been documented…
Despite nearly 10 years of me and other noble lords putting questions to the Home Office, it repeatedly says that action plans have been put in place based on recommendations made by these independent inspections. However, they turn out to be more plan than action. That is the reality of the evidence to date, so (this) amendment is intended to ensure that the action plans are indeed action plans based on the recommendations of the Chief Inspector of Prisons.”
Amendment 142 – Brook House Inquiry
The Brook House Inquiry is the first public inquiry into immigration detention in the UK. Instituted in 2019, the Inquiry has offered a unique opportunity for public scrutiny of, and accountability for, detention practices and culture. It has heard extensive evidence of continuing systemic and institutional failings within the detention system leading to abuse of those people held there.
Amendment 142 sought to delay the implementation of the Illegal Migration Bill until such time as the Inquiry Chair, Kate Eves, has issued her final report and the government has explained how it will put into practice her recommendations.
The amendment was tabled by Lord German (Liberal Democrat). You can watch his speech in the debate below:
“The evidence that has emerged in what has already been given to the (Brook House Inquiry)… has uncovered the misuse of force, systemic failures in the operation of clinical safeguards, prison-like practices and policies, dehumanisation, racism and a lack of accountability…
“The chair is due to publish the (Brook House Inquiry) report, with its findings and recommendations, in late summer. My concern is that the Government are proposing a dramatic expansion of the powers to detain without knowing what this inquiry will recommend.”