Update, 1 July.
MPs voted against the time limit amendment(s)

The Immigration Bill returns to Parliament on Tuesday. An amendment has been tabled that would bring a time limit on how long people can be detained under immigration rules. The amendment has been tabled by Conservative MP David Davis, and support is building amongst MPs of all parties. This all sounds positive, but there are some points that need clearing up. This note should help you to understand what’s going on.

What is the amendment?

Actually, that’s where the difficulty starts: there are two alternative amendments for MPs to decide on. These are each made up of four new clauses to be inserted into the Bill. The clauses of each amendment are almost identical, but with one important difference: one amendment applies only to nationals of countries in the European Economic Area and Switzerland ( EEA: all EU countries plus Iceland, Liechtenstein and Norway). The other amendment seeks to include all people in the rules (although not automatically).

The four clauses can be summarised as follows:

An initial 96 hour time limit

After this period, the Home Office would have to apply to the courts and demonstrate that the person’s removal/deportation was imminent and that detention was necessary to effect removal. If it is not, the person must be released.

A 28 day time limit

If detention is allowed after 96 hours, there would be a maximum time limit of 28 days. If a person is not removed/deported after this time, they must be released.

Bail hearings

In the initial 96 hour period, a bail hearing must be arranged. The court (Immigration Tribunal) must grant bail unless the Home Office shows that removal/deportation is arranged for 14 days or sooner, that travel documents are in place, and that there is no outstanding legal barrier to removal/deportation.

Commencement of the new rules

The time limit rules for EEA nationals and their dependents would come into force 6 months after the bill becomes law. The time limit rules for non-EEA nationals would be implemented if and when a Home Secretary decides to implement it.

So, who will these rules apply to?

That depends. Both amendments would apply to all EEA nationals and their dependents. One amendment also includes a power for the Home Secretary to extend the time limit rules to all people at some point in the future, if they want to. But why is this even an issue? If MPs believe detention should have a time limit, why would they only want it to apply to European citizens, who only make up about 15% of the numbers of people detained each year? The clue is in the name of the Bill.

The full title of the legislation is the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The Bill is part of “making Brexit happen”, by removing from UK law the civil rights of European citizens that come from EU membership.

A Bill to make provision to end rights to free movement of persons under retained EU law and to repeal other retained EU law relating to immigration.

Summary description on the Parliament website

This means that the legislation is aimed at removing laws which relate to the rights of citizens of the European Economic Area and Switzerland only . There are rules about adding amendments which are seen to be “outside the scope” of the Bill. It is possible that the clause to include “any other person” will not make it to the vote. On the other hand, it could be included, and MPs could be faced with the choice of voting to include all people, or just European citizens.

Clause NC3, with “any other person” in addition to EEA citizens
Clause NC6. The rules start in 6 months time. But if “any other person” (non-European) is included in the rules, it is up to the Home Secretary to decide if/when they will apply

Can they really discriminate like that?

Maybe. Organisations like Detention Action have been pressing for a time limit for many years, working with parliamentarians. They are of the opinion that, should the amendment succeed but only apply to Europeans, there would a strong case to legally challenge the legislation as discriminatory on the basis of nationality, and so have it extended to all people.

Is it likely to become law?

It is very positive that the amendments have been tabled by a Conservative MP, and have support from across the political parties. However, the Conservatives have a large majority in parliament, and the government does not support any furthering of the rights of migrants in Britain. In order to pass and become law, a LOT of Conservative MPs will have to vote against their party.

Find out more

Read the full Bill, and find information about the process of passing through Parliament, at the UK Parliament website.

Read the amendments document here.

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