Immigration Bill
(10 years, 8 months ago)
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“( ) Any power of the Secretary of State to make regulations under this section is exercisable by statutory instrument, not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Baroness Smith of Basildon (Lab)
My Lords, I hope it is nothing I am about to say that is encouraging a mass exodus from the Chamber at this point.
We now come to a group of amendments that deal mainly with the transitional and consequential provisions. Our amendments come from some of the recommendations of the 22nd report of the Delegated Powers and Regulatory Reform Committee, and I turn to them first. Amendment 79F comes from a recommendation of the committee. Clause 62 deals with fees to be charged in connection with immigration and nationality. This would provide for any order made under this clause to be subject to the affirmative procedure. It is a probing amendment to draw the House’s attention to the committee’s remarks and seek information from the Minister.
The provisions in the clause replace the existing provisions in Section 51 of the Immigration, Asylum and Nationality Act 2006. However, as the committee points out, the structure of the new provisions is different. For absolute clarity, I shall quote from the committee, which states:
“Under section 51, the matters in respect of which fees may be charged are required to be set out in an affirmative order with the amount of a fee to be specified in regulations. Fees regulations under section 51 are subject to the negative procedure unless the amount specified exceeds the cost of the service to which it relates, in which case it is subject to the affirmative procedure. Under clause 62, the matters in respect of which fees are to be charged must still be specified in an order subject to the affirmative procedure and the amount or rate of the fee would also still be specified in regulations. But, those regulations would in all cases be subject to the negative procedure even where the amount or rate of the fee exceeds the costs of provision. However there is a significant difference in that under clause 62 the affirmative order is required to specify how the fee is to be calculated and the maximum amount or rate of the fee that may be specified in the regulations”.
The report continues:
“The Home Office argues in its memorandum that it is appropriate for fees regulations under clause 62 to be subject to the negative procedure where the amount or rate exceeds that required to meet the cost of provision, because the upper limit for the fee will have been specified in the affirmative order under clause 62”.
Although the committee agreed with the Government’s reasoning, it wanted to,
“draw these provisions to the attention of the House because … this represents a reduction in the level of the parliamentary scrutiny applied to immigration and nationality fees where the amount of the fee exceeds the cost of provision”.
Can the Minister put the Government’s reason for this clause on the record, and expand on it, because I am not 100% clear on the reason? The Minister has been very clear when he has spoken in debates about his commitment to scrutiny, so I am sure that he will understand the concerns about any reduction in scrutiny on such issues.
Clause 66 deals with transitional and consequential provisions. Subsection (2) confers power on the Secretary of State by order to,
“make such provision as the Secretary of State considers appropriate in consequence of”,
the Bill, while subsection (3) provides,
“an order under subsection (2) includes provision amending, repealing or revoking any enactment”.
Our Amendment 81B would leave out subsection (3). Once again, it is a probing amendment and emanates from the report of the Delegated Powers and Regulatory Reform Committee report, which said—and I share its concerns—that the wording of subsection (3) is very wide. It said that it is,
“not explicit as to whether it is limited to a power to amend an enactment passed or made before or in the same Session as that in which the Bill is enacted, whether it includes a power to amend an enactment passed or made after that, or indeed whether it includes a power to amend an enactment contained in the Bill itself”.
The Government responded to the committee saying that it was,
“not intended to extend to a power to amend future legislation”,
and that the reference to any enactment cannot be read as applying to the Bill itself. I seek clarity on that, because the Minister said that the Government were considering amending subsection (3) to extend the power to amend the provision of the enactment passed after the Bill but in the same Session.
I am grateful to the Minister for sharing that letter with us. Our reason for tabling the amendment is to get the Government’s rationale on record. Has he considered the committee’s recommendation that this be made explicit in the Bill? Is he intending to bring anything forward? The Government said that they thought that it was clear and the committee said that it did not think that it was. If the Government are considering an amendment, surely now would be the time to bring it forward, given that the issue has been raised already. I am curious as to whether the Minister thinks that an amendment should be brought forward and if he is considering doing so at a later date. It is clarity that I am seeking there.
Lord Avebury (LD)
My Lords, my noble friend Lady Hamwee and I have several amendments in this group, the first of which is Amendment 82A. I am not quite sure why that provision appears in Schedule 9 at all as it does not appear to be consequential on anything elsewhere in the Bill, and nor is it transitional.
We would also like to know why the Secretary of State thinks it necessary to have this sweeping power to revoke a person’s indefinite leave to remain, if it was obtained by deception, without considering the proportionality of the action. Section 76 of the British Nationality Act, which it is sought to amend, already contains a power to revoke a person’s ILR if it was obtained by deception, and if the person concerned would be liable to deportation because of the deception but cannot be removed. It is these latter qualifications that we seek to delete since otherwise the power would apply to any ILR obtained by deception whatever the circumstances. The qualifications mean that the deception has to be of a nature serious enough to justify deportation, and we think that provision ought to be retained. This means, for example, that the person must have known that deception was used to obtain his ILR and that consideration must be given to the length of time that he has been in the UK and to any family ties that he may have in this country.
Amendment 87ZG would retain Section 87 of the Nationality, Immigration and Asylum Act 2002, which allows a tribunal judge to give directions following a successful appeal. Again, it is a mystery to us as to how this provision finds itself in a part of the Bill headed, “Transitional and consequential provision”, when neither of those adjectives apply. I should like the Minister to say that all the paragraphs of Schedule 9 referring to other Acts will be repositioned before Report.
As long as there are successful appeals—as there will be, however much the Government try to minimise them by removing legal aid and tightening up the Immigration Rules—judges ought to have these powers. Directions commonly require the Home Office to do something within a particular time or take specific steps—for example, to bring a person back within the jurisdiction. There is a special place for directions when a successful appeal is brought against deprivation of nationality. When a person wins such an appeal, it surely ought not to be within the Secretary of State’s discretion as to whether that person’s citizenship is restored. Yet that would be the position if this amendment is not accepted. As the law stands, the judge could order the Secretary of State not only to restore the person’s citizenship but to backdate the restoration to the date of the unlawful deprivation. This could be important, for example, when a child is born to the person during the period of their deprivation and the child forfeits their own British citizenship as a result.
Amendment 87ZH retains the definition in Section 113 on interpretation in the Nationality, Immigration and Asylum Act 2002. There is a reference to varying leave to enter or remain but it does not include a reference to adding, varying or revoking a condition of leave. This amendment is designed to give the Minister an opportunity to explain to the Committee why it was considered necessary or appropriate to widen the scope of these definitions.
Finally, Amendment 87ZJ deals with the notice that the Secretary of State may serve on a person, P, who has made a protection of human rights claim or an application to enter or remain in the UK, or in respect of whom a decision to deport him has been or may be taken. In addition to the specified information that the notice may require P to provide, we proposed to add the words in the amendment, which would deal with any change in his circumstances to which new subsection (5) would apply. The requirement of that new subsection, whereby if P’s circumstances have changed he must immediately spell out those changes to the Secretary of State and inform her of the additional reasons or grounds on which he should be permitted to enter or remain in the UK, or should not be moved from or required to leave the UK, is unreasonably onerous. It should be borne in mind that P will probably be unrepresented, given the removal of legal aid for immigration cases, other than asylum. How on earth is P supposed to know that such a statement is required? If he does know because it was explained and given in writing to him when the first notice was served, or even because notice is given and received in accordance with this amendment, will the Minister not concede that it is terribly unrealistic to expect P to identify and articulate those grounds, there being no properly resourced system of advice and representation for the person who is subject to immigration control? There will inevitably be requirements that he is unable to comply with, and this is certainly one of them.
By virtue of the test for legal aid, an applicant, including a child, must have been lawfully resident in the UK for 12 months. Persons who are accepted as having been trafficked are eligible for legal aid for their immigration case but not for judicial review. The same applies to victims of domestic violence. Does my noble friend really consider that people in these situations will be able to provide the supplementary statement required in new Section 120(5), or will he concede that it is nothing but a trap to be used against them?
Baroness Hamwee (LD)
My Lords, first, I think that my noble friend has informed the Minister that we will not be speaking to Amendment 87ZD. We realise that we have made an error in it, for which I apologise to the Committee.
The last amendment in this group, Amendment 87ZJ, is also an amendment to Schedule 9—the part dealing with the grounds for an application. P—the person to whom my noble friend referred—is required to provide a supplementary statement to the Secretary of State or immigration officer setting out new circumstances and additional reasons or grounds, where there are any, as soon as practicable. My amendment would add to an earlier paragraph a requirement for P to inform the Secretary of State of the change in circumstances in order that he is made aware of the need to do so. As my noble friend said, he will probably have no assistance in this, so we are suggesting that the Secretary of State should include this in the notice served on P.
The first of the amendments in the name of the noble Baroness had me looking at Clause 62 this morning. On Monday, the Minister said that he believed in scrutiny. I do, too. I also believe in getting answers to questions on the record. I will whip through my questions quickly and hope that he will be able to whip through his answers quickly, but they are points about which, when fees are being set, I think practitioners as well as parliamentarians will be concerned.
I read the term “specified fee”—which is used, among other places, in Clause 62(7)—as meaning that the Secretary of State will make an order specifying categories of fees which will then be set by regulations. If that is so, can my noble friend indicate the criteria for making some categories subject to an order and some to regulations?
I went on to see in Clause 62(2) that there seems to be a requirement for a fees order for all fees—or are fees to be chargeable outside the functions within subsection (2)? Does “any specified fee” in Clause 62(4) mean each fee specified by a fees order? In that subsection and in subsection (6), which deal with the factors that might apply in setting fees, what factors might there be other than an hourly rate? The drafting suggests that they might be something similar to an hourly rate, but it would be helpful to understand what they might be.
Can the Minister confirm that in Clause 62(6) the rate is in fact an hourly rate? Can he tell the Committee whether—this is perhaps less technical but it is of considerable interest—a calculation that involves an hourly rate will give the position or grade of the officers for whom the rate is charged? Where a fee is intended to exceed the cost, because that is allowed for, will this be made clear in the Explanatory Memorandum to the regulations?
Clause 62(10) provides for exceptions. Can the Minister tell the Committee whether the exceptions might allow for an increase in a particular class of cases or individuals and how exceptions will be determined? I am interested in how Clause 62(10)(b) will work with Clause 62(8). I assume that subsection (10)(b) overrides subsection (8), which requires that a fee should not be less than a prescribed minimum. Why is Clause 62(10)(c), concerning failure to pay, needed? There is a provision relating to this in the next clause. The subsection refers to,
“the consequences of failure to pay a fee”.
What might those be in addition to enforcement of the debt? Might this refer, for instance, to refusing a visa when a future application is made?
Clause 62(12) defines costs. Perhaps we could have an example of the costs that will be covered by a fee that is,
“not funded from public money”.
My imagination did not stretch that far. Finally, Clause 62(13) refers to “particular arrangements” and “particular ways”. Are these terms intended to cover services such as the premium fast-track service? I am grateful to the Committee for its indulgence and particularly grateful to the Minister for dealing with these issues.
Lord Pannick (CB)
My Lords, I share the concerns expressed by the noble Baroness, Lady Hamwee, in relation to Clause 62. In particular, will the Minister give the Committee an assurance that there will be transparency as to what proportion of the fees will relate to,
“the costs of exercising the function”,
and what proportion will address other matters? It is very important that the public and both Houses of Parliament know the breakdown of the fees in that respect.
I am concerned also about Clause 66(3), which is the subject of the probing amendment in the name of the noble Baroness, Lady Smith of Basildon, and relates to “Transitional and consequential provision”. I agree with the comments of the Delegated Powers Committee that it would be highly desirable to make clear in the Bill that this power is intended to cover only existing legislation and not to give a power to amend, repeal or revoke future enactments. I am sure that that cannot have been the intention but it is highly desirable that this should be clarified.
I do not think that there is any risk, which the Delegated Powers Committee was concerned about, that Clause 66(3) could be interpreted to allow for amendment of this legislation. As I understand it, it is linked to Clause 66(2). It allows an amendment to repeal or revoke,
“in consequence of this Act”.
It seems to me that to amend this legislation could not be in consequence of this Act. But if it is the Government’s intention to confer a power by Clause 66(3) to amend this legislation, please will the Minister say so.
Lord Ramsbotham (CB)
My Lords, I beg the indulgence of the Committee if I raise a matter which may appear to be more relevant to an earlier part of the Immigration Bill that the House has already taken. I should like to ask the Minister at what stage either the Secretary of State or any other Minister in the Home Office became involved in the case of Alois Dvorzac, an 84 year-old Canadian who died in handcuffs at Harmondsworth detention centre? He was born in Slovenia and was on his way from Canada to Slovenia, in transit through Gatwick, when he was taken from Gatwick and put into Harmondsworth, where he died. He neither claimed United Kingdom nationality nor had it removed. Therefore, this seems to be something of which the United Kingdom should fairly be ashamed. At what stage did Home Office Ministers become involved in this tragic affair?
Baroness Neville-Rolfe (Con)
I rise to probe the Government’s intentions on fees following the questions that have been put by the noble Baroness, Lady Smith of Basildon, on Amendment 79F and in the other points raised. This is a useful consolidation of the rules and the powers on fees, but I have two questions that I hope my noble friend will be able to comment on. First, what are the Government’s plans for immigration and visa fees following the passage of this Bill? Secondly, will fees and future changes to fees be set out clearly on the government website which I hope the Government will establish so that, following the passage of this important Bill, everyone clearly understands the prevailing immigration and visa arrangements? Those are points about intention and about transparency.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, noble Lords have asked me quite a number of questions and I will do my best to show a techie side to my nature. Where I slip up, perhaps noble Lords will allow me to write. I am aware of the case mentioned by the noble Lord, Lord Ramsbotham. I will have to write to him because I cannot give him an authoritative answer on a point that is not directly to do with the amendments that we are considering today. In any event, I will make sure that I get a letter to him on that issue.
I will speak to Amendments 79F, 81B, 82A, 87ZG, 87ZH and 87ZJ, which have been grouped together. I will not mention Amendment 87ZD because that has not been spoken to.
Amendment 79F concerns fees. It fits slightly uneasily in this grouping, but I am sure that it is something that we want to address. The current legislative framework for setting and amending visa fees is slow and inflexible, and we are experiencing that at the moment. We had a statutory instrument in January, and later on next week we will debate the actual fee levels. This two-part process is not necessarily the most informative. It makes it difficult for the Home Office to respond to identified issues—and opportunities, because this is an important area of income generation for the Government.
For example, it does not allow us to introduce new premium services or amend fees up or down within a particular period. It has also been criticised in this House because the “menu” of immigration and visa services is debated separately from the prices of the things on the menu. As I have said, that seems a funny way of doing things. The fees measures in the Bill are meant to address both of those issues.
I say to the noble Lord, Lord Pannick—who queried transparency on this issue, as did my noble friend Lady Neville-Rolfe—that the whole point of this is to be more transparent and provide information on fees. The mandate to provide fees is an important thing to secure in Parliament. As I said, they are an important factor for the Home Office.
My noble friend Lady Hamwee made a number of technical points and I would like to thank her for advising me of them. The fees order will set out in relatively general terms the types of categories of fees that will be charged for. It will set the maximum and in some cases—although not all—the minimum levels for the fees that fall within each category. The order will be subject to the affirmative procedure. The regulations will then specify the precise fee for each product, which could stretch to several hundred different fees. This mirrors the current arrangements. For example, the current fees order states that we can charge for,
“a sponsor licence or renewal of such a licence”,
and the fees regulations specify all the different fees for each type of sponsor licence payable by the different categories of sponsor. Thus the detail included in the order and the regulations mirrors the current arrangements set out in Section 51 of the Immigration, Asylum and Nationality Act 2006 except in terms of the introduction of maximum, and in some cases minimum, fee levels into the order.
My noble friend went on to say that Clause 62(2) appears to require a fees order for all fees. She asked whether fees are chargeable outside of the specified functions. All chargeable functions must be set out in the fees order. The only caveat to normal treatment is set out in Clause 64:
“Power to charge fees for attendance services”.
She asked whether “any specified fee” under Clause 62(4) means each fee specified by a fees order. That is correct; it does. She assumed that Clause 62(10)(b) overrides subsection (8)(a)(ii), which requires a fee not to be less than the prescribed minimum, and that is correct. She also asked why subsection (10)(c) needed a failure to pay in the light of subsection (3). The consequences might mean the refusal of a visa in the future. Subsection (10)(b) relates to debt recovery in particular circumstances, such as where a payment is withdrawn once it has been processed and the application considered. Paragraph (c) ensures that we can provide that applications will not be considered if payment is not received. It also states that any other consequences for failing to pay must be set out in regulations. These provisions have been carried forward from current legislation.
My noble friend asked about costs and whether we can give an example of costs. Costs will be incurred by our commercial partners when, for example, providing visa services overseas, and they form part of the costs to the Home Office when providing services or processing applications. On Clause 62(13), she asked whether there are particular arrangements or ways to recover such things as the premium service. Yes, there are such arrangements. This subsection reflects that fees for the same function may vary depending on where and when they are delivered, and the specific service provided. It also reflects the fact that we may, in limited circumstances, charge different fees for the same product in different circumstances. We might, for example, enter into a reciprocal arrangement with another country by which we agree to offer a reduction in the visa fee to nationals of that country.
My noble friend put a question to me about Clause 62(4). This subsection is directed at the factors that the Secretary of State can consider in setting fees, taking into account costs and benefits to applicants. Subsections (4) and (6) are directed at the mechanics of the calculation, so that if the fee is being set out at a flat rate or by reference to an hourly rate, the reference to other factors is to give us flexibility in the future in order to charge, for example, with reference to a daily rate. My noble friend asked whether the rate is the hourly rate. Yes, it is, or there can be other factors. As I have just said, there can be a daily rate as set out above. I was also asked whether the calculation will involve an hourly rate to give the position/grade of the officers for whom a rate is charged. The grade of officers is not a relevant consideration when establishing an hourly rate. Where the grade of staff is relevant in establishing an estimated unit cost, it will form part of the calculation. This level of detail will not be set out in statutory instruments or a fees table.
My noble friend asked whether, where a fee is intended to exceed the cost, this will be made clear in the Explanatory Memorandum to the regulations. We will include the unit costs, as is currently the case. She asked whether the exceptions might allow for increases in a particular class of individuals. No, the exceptions relate to exemptions from payments; that is, waivers. The Home Office currently provides a number of exceptions in regard to fees including, for example, asylum applicants and children receiving local authority assistance, and there is no plan to withdraw the exceptions currently offered. This is complicated and I am sorry to have rattled it off but my noble friend did ask that I put it on the record. I hope the record has noted it and that I have reassured my noble friend.
Lord Avebury
Will the Minister deal with the question that I asked about the directions that the tribunal would formerly have been able to give regarding the restoration of citizenship and its backdating in cases where that was appropriate? Since the tribunal has lost its power, those directions can no longer be given.
Lord Taylor of Holbeach
My Lords, I think that I will have to write to my noble friend if he wants an authoritative on answer on that. I have given the answer that I have before me, but if that does not meet the point that he has made—it is clear that it does not—I hope that my noble friend will allow me to write to him.
Lord Tyler (LD)
Before my noble friend sits down, will he go just one step further on the issue raised by the noble Lord, Lord Ramsbotham, and the case to which he referred, which seems on the face of it to be extremely serious if the facts as reported by Channel 4 last night are correct? Will he undertake to provide an answer and place it in the Library, and as soon as possible? I can see that, since the inquest has not taken place as yet, it would be all too easy for Ministers to hide behind that fact and not give us urgent advice on what seems to be a major problem with the way in which the immigration law is operating at present.
Lord Taylor of Holbeach
I do not want to be difficult. This matter is clearly not associated with an amendment or even this part of the Bill, but I am sympathetic to the point that the noble Lord, Lord Ramsbotham, and my noble friend Lord Tyler have made. I will do my best to inform the House on the facts of the matter as much as I am able. If matters are sub judice, it would be inappropriate for any Minister to interfere with due process. I hope that noble Lords will understand that. I am always prepared to answer either Oral Questions or Written Questions on any subject, but we are here to debate the Immigration Bill. It may interest the noble Lord to learn that I am going on a removal flight on Friday to Kosovo and Albania. I want to see what goes on. I share the noble Lord’s determination to make sure that things that are done in our name are done properly. I hope that with that reassurance my noble friend will understand why I do not want to give an answer at the Dispatch Box at the moment.
Baroness Smith of Basildon
My Lords, I appreciate that that point is not part of the deliberations today on the Bill but it was appropriate for the noble Lord, Lord Ramsbotham, to address it given the concerns raised. I am glad the Minister has offered to place an answer in the Library if he is able to. I suggest if he is going on a removal flight that people do not know he is on there and he goes incognito. That is the best way to understand how these matters are carried out. I hope that is the case.
I turn to the amendments. On transitional provisions and arrangements regarding health, perhaps I should have been clearer. I apologise to the noble Lord if I was not. The reason for raising the matter here is that I am not clear from what he said in his previous responses when I raised this if any transitional provisions are required for the transitional arrangements. He referred to the arrangements between two departments—the Department of Health and the Home Office. Where I am confused and do not understand this is, as I said, in the real-life implications and workability. Will Home Office computers be able to talk to and share information with Department of Health computers?
My recollection as a government Minister of various meetings on Cabinet committees on this is that there must be some kind of process, agreement or even legislation to ensure that that happens. I am not clear if that has been agreed from what I have seen so far. It does not seem to be in the Bill and nobody is able to tell me how the process would work where, for example, somebody who has a visa and is in the country legally but has not paid the surcharge turns up for treatment. How will the health service know that they are legally in the country but just have not paid the surcharge? They came into the country and took their visa before the surcharge was in place. If that information can be provided only by sharing information between the computers of the two departments, how will that be done, have the arrangements been put in place and is legislation needed? If not, something will be needed in transitional provisions, presumably in this Bill, to undertake that. That is what I am trying to get to. I need to understand how it will work in practice.
Lord Taylor of Holbeach
All I can say at the moment is that if that were needed in transition it would be in the Bill. I have been party to some of the discussions that have taken place. Indeed, it is intended that there should be an exchange of information between the two departments. If the noble Baroness does not know how that will happen, I hope I am in a position to inform her. This matter does not need legislation; it is one of good administration. My noble friend Lord Howe and I both share the determination that this should be properly done because it is important to make sure that the health service is not in any way impeded by measures that we enact in this Bill.
Baroness Smith of Basildon
My Lords, I do not for one moment question the determination of the noble Lord and the noble Earl, Lord Howe, to make this work but when we pass legislation we need to understand—as I said at the very beginning, at Second Reading—the evidence base for something being brought forward and the workability of it; that is, if what is sought can actually be achieved and the implications, including unintended consequences. I really want to understand this. If the noble Lord could undertake to write to me with further information about how this will work in practice that would be really helpful.
I raised two other points in speaking to my amendments. It was helpful to have the response on the record. I take it from what the Minister said that there probably will not be a government amendment coming forward on the points I raised on my second amendment, but if there was it would be helpful to have very early notice of that. I would have expected that today. On the other issue, he made the point on fees. This is a reduction in scrutiny. I understand the Government’s reasoning that under Clause 62 a higher level is set and it cannot go above that but in terms of setting the amount, specifically where the fee for the visa is higher than the cost of the provision, we experience a loss of scrutiny. That is now on the record and I am grateful to the noble Lord for accepting that, even though I understand the reasons. With that, I beg leave to withdraw my amendment.
Lord Avebury
“Legitimacy
(1) The British Nationality Act 1981 (c.16) is amended as follows.
(2) After section 4C (acquisition by registration: certain persons born between 1961 and 1983) insert—
“4D Acquisition by registration: legitimacy
(1) A person is entitled to be registered as a British citizen if—
(a) he applies for registration under this section; and(b) he satisfies each of the following conditions.(2) The first condition is that the person was born before 1st July 2006.
(3) The second condition is that the person is not already a British citizen.
(4) The third condition is that the father of the child satisfies any requirements as to proof of paternity prescribed under section 50(9B) of this Act (interpretation).
(5) The fourth condition is that the person would have been a British citizen had his father been married to his mother at the time of his birth.””
Lord Avebury
My Lords, we have made several attempts in previous legislation to remove the disadvantage which illegitimate children suffer compared to their legitimate siblings in citizenship law. Some children born to British fathers who are not married to their non-British mothers are still not entitled to inherit their father’s citizenship. Since 1983, that applies to a child born out of wedlock in the UK to a British father and a mother who is neither British nor settled in the UK—an anomaly that was only partially redressed by Section 9 of the Nationality, Immigration and Asylum Act 2002. That section restored the right of such a child to British citizenship if he or she was born on or after 1 July 2006, leaving an arbitrary gap of 23 years from the date in 1983 prior to which all children born in the UK automatically acquired British citizenship.
The parents of such a child can apply to register him or her as a British citizen while he or she is still a minor, and the Home Office normally, but not invariably, exercises discretion in favour of those applications under Section 3(1) of the British Nationality Act 1981, but once he or she reaches the age of 18 there is no provision that allows him or her to become British—an irrational barrier, because it relies on the parents being aware of the qualified right and acting on it in time. There are examples on record of parents who discover the 2006 change too late.
The proposed new clause would allow a child born to a British father who is not married to their mother, and for that reason alone not British, to register as a British citizen. It assists a child born abroad to a father who is British otherwise than by descent to become British himself, and deals with the gap between 1983 and 2006 for the child born out of wedlock to a British father and a woman who is not British or settled in the UK. That would enable us to withdraw our reservation to the 1979 Convention on the Elimination of All Forms of Discrimination against Women, which declares in paragraph 2 of Article 9:
“States parties shall grant women equal rights with men with respect to the nationality of their children”.
The UK Government said that our acceptance of Article 9,
“shall not, how ever, be taken to invalidate the continuation of certain temporary or transitional provisions which will continue”,
beyond January 1983.
Discrimination in our citizenship has continued well beyond what might be considered temporary or transitional. Discrimination against women was corrected only by Section 4C of the Borders, Citizenship and Immigration Act 2006, and discrimination against men has been corrected only for their children born after 1 July 2006. We now have the opportunity to put this last piece of the jigsaw in place so that we can ratify the convention and sign up to the European Convention on Nationality. I hope that your Lordships will therefore agree to the amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I am pleased to be able to support the amendment, although I was not able to put my name down to it fast enough. The noble Lord, Lord Avebury, has made the case for it very well. As I understand it, the Government accept the merits of the case and the substance of the amendment but, in the Public Bill Committee, questioned whether it lay within the scope of the Bill and suggested that there were better ways to take this forward. Presumably, as the amendment has been accepted by the Public Bill Office here, it is within the scope of the Bill.
I am not sure how many people are likely to be involved—perhaps the Minister could give us an estimate. As the Government said about Clause 60, it is the principle, not the number, that matters here. Even if it is only a handful, it matters to those people. I hope that the Minister will be able to come back with an amendment at Report to rectify what is clearly an unfair and anomalous piece of discrimination, based on the outmoded status of illegitimacy—indeed, what I would call an illegitimate status.
Baroness Smith of Basildon
My Lords, this is an interesting and useful amendment that the noble Lord, Lord Avebury, has brought before us. If the only objection from the Government in the other place was that they thought it was out of scope and that it could not be brought forward, it is clearly no longer out of scope as it has been brought forward. I hope that the Minister might take the advice of my noble friend and that, if the Government are not able to accept this amendment or bring it back, they will explain why. I really hope that there can be a positive resolution to this.
Lord Taylor of Holbeach
I am grateful to my noble friend Lord Avebury for raising this matter and to the noble Baronesses, Lady Lister of Burtersett and Lady Smith of Basildon, for supporting it because we are well aware of the issues faced in acquiring British citizenship by those whose parents never married. We agree that this is an anomaly which deserves to be addressed. Having understood that nationality matters were outside the scope of the Bill, we were considering whether a measure covering this could be drafted as a government handout Bill for the next Session. I understand that had this amendment been tabled in another place, it would indeed have been ruled out of scope. However, this House has different rules on relevance and therefore it is appropriate for us to debate the matter.
I say to the noble Baroness, Lady Lister, that while I cannot give her any numbers, she is quite right that this is not about numbers but about whether to do it or not. That is the position the Government are coming from.
As my noble friend Lord Avebury pointed out, the law changed on 1 July 2006 to enable British citizen fathers to pass on their citizenship to a child where the parents were not married. This was not made retrospective, however, because it could have created difficulties for those affected in relation to any other citizenships that they held. For example, some countries do not allow dual nationality, as some noble Lords will know. Since 1987, the Secretary of State has exercised discretion in relation to those born to an illegitimate father. Discretion is exercised under Section 3(1) of the 1981 Act to enable the registration of children born before 1 July 2006 who are the illegitimate children of British citizens or settled fathers. Registration can take place if the Home Secretary is satisfied about the paternity of the child, if all those with parental responsibility have consented, if the good character requirement is met and, had the child been born to the father legitimately, if he or she would have had an automatic claim to British citizenship or an entitlement to registration.
However, this exercise of discretion under Section 3(1) applies only to those who are minors at the date of the application for British citizenship. There is no power in law to register as a British citizen a person who was born illegitimately to a British citizen father before 2006 and who is now an adult. We accept that this creates a lacuna and that those who were born illegitimately to British citizen fathers are at a disadvantage compared with those whose parents were married.
I cannot accept my noble friend’s amendment as currently drafted because while this provision covers any person who would have been a British citizen had his parents been married, we think that it should be set out clearly exactly who should benefit from such a change in the law. In addition, other matters would need to be considered such as good character, which persons registered under this provision should be British citizens by descent and what additional measures should be included for those who might apply when under the age of 18. These are technical matters which need to be considered in amending the legislation. I am afraid that I must resist the amendment as it stands but I am happy to commit to taking it away, with a view to considering urgently whether the Government could prepare a suitable amendment for tabling at Report. I hope that amendment would have the support of the House, should it come back, and I therefore ask my noble friend to withdraw his amendment and its proposed new clause.
Lord Avebury
I am most grateful to the noble Baronesses, Lady Lister and Lady Smith, and particularly to the Minister for his extremely accommodating reply and his undertaking to consider this proposal as a matter of urgency in the hope that something can be produced to be tabled on Report.
As to scope, I was not in doubt: if the Secretary of State could include provisions in the Bill regarding deprivation of citizenship, surely it was proper to allow acquisition of citizenship also to be within scope. That is implicitly conceded if the Minister can produce an amendment by Report that will match the aspirations of the amendment I have moved.
I never expect an amendment that I have drafted to be accepted on the spot by the Minister—that does not happen in real life—but the answer he has given is extremely satisfactory, and I am most grateful to him for the careful consideration he has given to this proposal. Accordingly, I beg leave to withdraw the amendment.
The Earl of Listowel
“Welfare of children: asylum seekers
(1) Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support) is amended as follows.
(2) In paragraph 6(1), after “person” insert “who entered the United Kingdom as an adult”.
(3) In paragraph 7, after “person” insert “who entered the United Kingdom as an adult”.”
The Earl of Listowel (CB)
I shall speak to Amendment 81, which stands in my name and that of the noble Lord, Lord Storey, and, in doing so, support Amendment 81A.
The effect of our amendment would be to take children who arrive in this country out of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, “Withholding and Withdrawal of Support”, so that if they arrive in this country as children and reach the age of 18, they will not have all support withdrawn from them. As vice-chair of the APPG on children and young people in care and leaving care, I am particularly concerned as many of these young people are care-leavers and would not receive the support that I see other young people leaving care getting. I am also concerned that, through a technical detail, I think, in effect some of these young people are treated more harshly than adults in these processes. Whereas adults can have support withdrawn from them only once they have received removal instructions, some young people leaving care who have arrived in this country as asylum-seeking children can have support removed before they receive their removal instructions.
Noble Lords might like to know what kind of young people these are. For instance, a young man I met had come from Afghanistan. He had taken photographs of a solider or soldiers who had been hitting a woman with a rifle. The soldier or soldiers concerned did not like that and started to take an interest in him and his family. That was the reason that he gave for coming to this country. I played chess with a young man of my acquaintance over a period of nine months several years ago. He was a Kosovan Albanian. His father was a teacher. He was a very well turned-out young man who took great care of himself. He was very well spoken and very polite and considerate. Those are the kinds of young people that I have come across.
I know that some of these young people will have come through camps at some point in their life. My experience of that has been visiting one of these camps in Angola several years ago, which was very densely populated by adults and families. There had been no planning involved: the camp had simply grown and had gone on for many years beyond the time that had been expected when it was set up. It was really arranged in an ad hoc way. The Government were so neglectful of it that the people living there even had to pay for the water that was supplied by tankers to the area.
These young people have often had traumatic experiences before they made those traumatic journeys. In this country, we recognise that young people who have had such trauma and come into care should get additional support when they leave. We recognise that they should have special services provided to them to the age of 21 and, in certain circumstances, to the age of 25. These are vulnerable young people. They need additional support. They have had additional challenges which other young people have not.
It is therefore concerning to me that these young people who have had such trauma often have so little support once they turn 18, and may even be made destitute. That, of course, also raises the risk that they may become involved in crime. I remember meeting this particular Kosovan Albanian young man, who was so kind and seemed of such good character, with another young man—perhaps from Kosovo as well—who looked to me like a real thug. This young man was looking up to this leather-clad, rather rough-looking chap. I can see that if one makes such young people, who may have come from good backgrounds, destitute, the risk is that they will get involved with such unsavoury characters. One is particularly concerned for the young women who may be put in this situation of having their support withdrawn at the age of 18, and thinks about what might become of them if they should become exploited and involved in crime. These concerns are shared by the Refugee Children’s Consortium, a coalition of 40 charities working in this area.
I meant to make an apology to the Minister; I am sorry not to have done so before. In our recent discussion on the welfare of women who are pregnant or who have newborn children, I regret that I may have given the impression that the Government and the Minister himself did not care that much for the welfare of these women. I am sure, of course, that the Government are very concerned about the welfare of such women, as we all are. I apologise for giving that impression; I will be more careful in future. I look forward to the Minister’s response. I beg to move.
Lord Storey (LD)
My Lords, I support the amendment in the name of the noble Earl, Lord Listowel, The noble Earl successfully moved an amendment during the passage of the Children and Families Act, which the Government courageously supported, on children in foster care staying on beyond the age of 18, realising that that care and support was crucial to those young people.
This is a simple but essential amendment. This has been my only contribution to the Committee, and I am grateful to the organisations that have sent me briefings on this topic, not least the Children’s Society. The principle behind Amendment 81 rests on the belief that all young people who came to these shores as children and were in care should be able to receive leaving-care support, as all other care-leavers do, until they settle here or until they leave the UK.
I am deeply concerned about the impact of Schedule 3 to the 2002 Act, which allows local authorities to withhold or withdraw support from certain migrants, and the effect it has on young people who came here as unaccompanied asylum-seeking children, who have been made destitute because they exhausted the appeal rights when they turned 18. This House has always believed that the welfare of young children is paramount. As such, care-leavers are rightly supported in education according to their need rather than their status. Whether they were trafficked here for exploitation, were escaping a war-ravaged country, or fleeing torture or persecution, they should be able to get the support they need while they are in this country.
Some Members of the Committee might well say that if the Minister accepts this amendment, we will create further incentives for young people to falsely claim to be under 18 when they put in an asylum application. That argument is baseless—it simply is not supported by any evidence. The OECD has shown that there is no correlation between levels of support, permission to work and access to healthcare, and the number of asylum applications a nation receives. I hope the Minister will tell us what he makes of that.
From my time as leader of Liverpool City Council, I am well aware that when children are taken into care, a local authority assumes the role of corporate parent. That means that the authority has both a legal and moral duty to provide the kind of support that any “good parent” would provide for their own children, regardless of where they were born or who their parents are. That role rightly continues as children approach the age when they leave care, as it equips those young people with the skills and confidence they need to succeed in later life. Crucially, that should include those who came here as unaccompanied children.
It is interesting to note that the Office of the Children’s Commissioner for England said the current situation was,
“a stark example of how legislation, designed with the best interests of children in mind, differs in its implementation between young people who are, and those who are not, subject to immigration control”.
Children are children. Best intentions are simply not good enough. Indeed, children’s charities have raised concerns about the correlation between Her Majesty’s Government’s policies on immigration and the incidence of destitution among asylum-seeking and migrant children. As the noble Earl, Lord Listowel, noted during the passage of the Children and Families Act, our understanding is that we currently treat those 18 year-olds more harshly than adults of similar status, but who have not come through the care system.
To withdraw leaving-care support from those young people will put them at risk of exploitation and forced criminality, as well as make it less likely for them to return home when it is safe for them to do so if they are no longer in contact with local authorities. I therefore hope that the Minister, in his reply, might agree to review the impact that will have on child protection and children’s rights. We must not miss this opportunity a second time. I have personal experience of this as a head teacher. When an unaccompanied child from Mongolia came to my school, I saw the wonderful support he was given by his foster parents, but also saw the problems he faced when he got to the age of 17 and a half.
Forget targets and quotas; I hope that we will have the courage to remember that we are talking about children and young people here.
Lord Roberts of Llandudno (LD)
My Lords, this is the appropriate place, following the noble Earl, Lord Listowel, and my noble friend Lord Storey, to thank them and other noble Lords for all the work they did on the Children and Families Bill to secure this increase from the age of 18 to 21 for those who would have lost care. They made sure that those who reach age 18 will not immediately be cut off from their lifeline and support network. We are also grateful to the Refugee Children’s Consortium—a group of more than 40 organisations that are actively interested in and concerned for young people—for coming on board and saying, “What this proposes is unacceptable; to cut off care at 18 is not something we should countenance at all”. The Children’s Society, Action for Children—formerly the National Children’s Home—the NSPCC and all the refugee councils are working tirelessly on this issue.
Baroness Benjamin (LD)
My Lords, I wish to speak to Amendment 81A, which is in my name along with that of my noble friend Lady Hamwee, whom I thank for her support in helping me to put it together. I also support what was said by the other three noble Lords who have already spoken. This is a probing amendment and the intention is to investigate how best support can be given to young people brought to this country as children—that is, refugee children, trafficked children and children brought here for sexual exploitation and so on. These young people find that their lives come to a complete standstill when they reach 18 due to their non-status and lack of citizenship.
I thank my noble friend the Minister for meeting me to discuss this issue, and for his letter explaining the present policy and responsibilities of local authorities and children’s services, which are obliged to assist and protect young people with unresolved immigration status. My noble friend quite rightly pointed out current laws and regulations which theoretically should be applied by well managed and financed local authority children’s services. However, Kids Company, the charity which provides therapeutic, emotional, practical and financial support to 36,000 children, young people and families in services across London, Bristol and Liverpool—some with unresolved immigration status—still has serious concerns that the impact of the proposals in the Immigration Bill in its current form poses a major risk to vulnerable children and young people because, despite all the good intentions, the Bill does not appear to make adequate provision, or provide sufficient safeguards and protection, for the young people who find themselves with unresolved immigration status.
Kids Company’s concerns are not hypothetical; it has considerable evidence related to failures in care by some social work departments handling very serious child protection issues. In fact, the organisation spends approximately £1 million a year on staff whose sole responsibility is, sadly, to police the working of social work departments, which apparently cut corners and avoid responsibility, presumably because of budget limitations, and which it finds merely go through procedures as opposed to affording genuine care and protection to children. As Kids Company says:
“Unfortunately, unstable economic times … can lead to further pressurised and fundamentally unlawful decision-making by local authorities”.
Kids Company has had to initiate a number of pre-action protocol letters and judicial reviews, every single one of which has been actioned or ruled in favour of the children. With legal aid being diminished and time limits on assessments being removed, the framework of protection afforded by social work departments to the most vulnerable is weakening, so it is unreasonable to base further legislative change, which impacts on the children accessing vital services, on the premise that the system currently operates as described in the Minister’s letter. That is simply not the case according to Kids Company and other organisations. There must therefore be further clarification about the degree of the obligations that the Secretary of State and local authorities have in respect of this problem.
This amendment is necessary because many of these children, even those in care, when they turn 18 are often forgotten, unlawfully, by many local authorities. They are left to navigate a system that presupposes that they have an adult who has brought them up and have the tools to navigate themselves into early adulthood, or have parents who are able to assist when something unknown comes their way. This is simply not the case. So when local authorities fail to submit applications to the Home Office or fail simply to fill out an application for British registration to ensure citizenship, who is that young person or child supposed to express that failure to? How is that local authority being held to account?
We need to consider the psychological strategies used by overstretched workforces in local authorities to defend against overwhelming demand. In Kids Company’s experience it has found that some social workers can become immune to children’s distress because they have seen too much violation. They can become complacent, driven by overfamiliarity with horrific abuse; and that complacency can become normalised in the workplace. Unacceptable risks emerge when social work departments are under clinical and financial pressure.
There is an unintentional impact on children leaving care. The current legislation states that children leaving care are entitled to support until the age of 25 if they are still in education or training. However, in Kids Company’s experience, as soon as a child turns 18, some local authorities have already failed to confirm the child’s immigration status—and now use that failure to prevent the child leaving care accessing statutory support based upon the immigration position—or their limited leave to remain, granted by the Home Office. As a result, the young person has to go through the whole immigration court process to extend their stay. This can often take years and their lives can be left on hold because, even though their leave is extended, statutory bodies and employers are fearful of immigration laws.
There is some anecdotal evidence that some unscrupulous solicitors who receive legal aid to assist these young people are practising without giving proper advice or carrying out the work correctly. These young people urgently need documentation to show that they have legitimacy to be in the UK—legitimacy that is suspended when they reach 18. This causes a huge problem when it comes to accessing higher education, which involves many obstacles and seemingly impossible hurdles for these young people. The university application forms require rigorous and detailed information that is impossible to supply because the young people have no documentation. So they live in limbo, waiting for decisions to come back from the Home Office to gain immigration status and, during that time, their access to higher education becomes a distant dream. They become disheartened as their ability to access local authority services is stopped, based upon their having no documentation. With no ability to work, the child turned young person is caught up in a cycle to survive in a state that has blocked his or her access to official help.
Another problem caused by unresolved immigration issues is that young people are not able to open bank accounts due to lack of relevant ID and proof-of-address documentation. The additional requirements on banks to carry out checks are another way of stigmatising this group. A further implication is that those young people will have no formal way of accessing support payments, if they are in care, once they have turned 18 or are receiving their leaving care grant. Because these young people have no documentation, they often live under the radar, surviving in rented accommodation that is poorly maintained and often not fit for habitation. However, they have nowhere else to go. Often the local authorities do not have social housing to offer them. Therefore, the proposed checks that landlords are expected to make will have an impact on these young people, and that is a cause for concern.
Lord Rosser (Lab)
My Lords, the amendment in this group to which I wish to speak is Amendment 81AA, which would require independent legal guardians to be appointed to look after the interests of children trafficked into the United Kingdom. The amendment proposes the insertion of a new clause but this is by no means a new issue. A similar amendment was recently voted on and narrowly defeated during the passage of the Children and Families Bill. The Committee will be aware of the tremendous work of the noble Lord, Lord McColl of Dulwich, who has championed this issue for a very long time, and indeed the work of other noble Lords, including the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Royall of Blaisdon. We have been pursing this matter and the shadow Home Secretary has raised it a number of times.
We are returning to the matter again because it still is very much a concern. At least 450 children were identified as possible victims of trafficking in the past year alone. NGOs and police all say that it is most likely that the numbers of people trafficked, including children, are far higher than the national referral mechanism statistics record. A shocking two-thirds of children who are rescued from traffickers go missing again because the system to protect them is not strong enough.
Most of those children come from countries outside the European Union. They are here alone and have no knowledge of the country that they are in. They often speak and understand little English, and do not know who to turn to or how to find help. In the debate on this issue during the Children and Families Bill, noble Lords heard evidence from research commissioned by the Government, which highlighted the desperate need of trafficked children for specialist, independent support. That research, and the report by the Children’s Society and the Refugee Council, entitled, Still at Risk, which was published in September 2013, recommended the provision of “an independent trusted adult” whose,
“role would be to ensure”,
that all child victims are,
“able to understand their rights, ensure that their voice is heard in decisions that affect them and are supported effectively through the different legal processes that they are engaged in”.
Amendment 81AA would provide such a person.
When this was discussed in the Children and Families Bill, the Government argued that there was no need for new independent guardians for trafficked children since there are a number of professionals with responsibility for supporting a child under the Children Act. They pointed instead to the introduction of draft regulations and statutory guidance which they claimed would address all the faults in local authority care, rendering specialist guardians unnecessary. I suggest that that misunderstands the role of the independent legal guardian.
Child victims of trafficking find themselves in a foreign country and to access help they are expected to deal with many different state agencies; that is, local authorities, social workers, police, investigators, immigration officials and so on. When dealing with each organisation, they must engage with a different set of people and must repeat their story again and again, with all its traumatic details. This process is distressing and unhelpful for a child in unfamiliar surroundings. Children can become alienated and distrustful of those trying to help them, which leaves them vulnerable to retrafficking. Local authorities do not always seem to appreciate that young victims of trafficking often maintain links with the person who brought them to the United Kingdom because they speak the same language. A guardian with legal responsibility for the child would understand the dangers.
The role of the legal guardian is an entirely new role that no existing agency currently provides. That person would be a constant for the child in an ever changing world. They would accompany the child as they relate to all the different state agencies and would also have the right to speak on behalf of the child if the child requests it so that the child does not have to keep repeating their painful story if they do not want to.
Noble Lords will be aware that the Government recently published their draft Modern Slavery Bill but that does not provide for an independent guardianship system, so we are raising the matter again here. There is a growing coalition of support behind this idea. Trafficked children should have access to a trusted and independent advocate or guardian who is legally responsible for them and their interests in order to do what we are failing to do all too often at present; that is, to protect children who are the victims of trafficking in human beings from repeated trafficking and repeated abuse. I hope that the Minister will give a sympathetic response to this amendment.
Baroness Hamwee
My Lords, as the noble Lord has said, the issue of guardianship for victims of child trafficking is one that has support right around the House. When it was raised during the Children and Families Bill, I said in reply to the noble Lord, Lord McColl, that when he first raised this some years ago I had not been persuaded. However, particularly through his arguments, I came to be persuaded of the need, in part from the point of view of someone who has practised as a solicitor and needs someone from whom to take instructions. That is one of the functions that a guardian would fulfil. The draft Modern Slavery Bill, which is the subject of pre-legislative scrutiny, has been drawn up from the point of view of the victim and, like the noble Lord, I think that this would fit absolutely in protecting and assisting victims.
I have a couple of comments about the issues raised by my noble friends with regard to children and young people without immigration status. I first want to draw attention to a report published last year by the ESRC Centre on Migration, Policy and Society at the University of Oxford, entitled No Way Out, No Way In about irregular migrant children. Its summary, which is a tiny part of a report that goes on for many pages, states:
“Our estimate regarding the high proportion of irregular migrant children who are either born or have spent most of their childhood in the UK invites a refocus of public understanding of this population”.
The second issue that I would like to mention is the very uncomfortable reporting that we have seen, not so much of the children to whom my noble friend Lady Benjamin drew attention, although some would fit into this category, but of wonderful young people—just the sort of young people we want to have in this country —who reach the age of 18 and are accepted at university and told they cannot go there. They are told that they need to go “home”. I am not saying that they are any more deserving than the other children in question, but I hope that the Government have been embarrassed by the reports because they should be, just as they are about the reports of the children assisted by Kids Company and others of whom we have heard.
When I tried to draft this clause, I really did not know how to do it. It seemed that so much is a matter for the Secretary of State’s discretion. I hope that when the Minister replies, he can assist the Committee with some clarity about what issues are matters of discretion and how that discretion comes to be exercised.
Baroness Lister of Burtersett
I will speak briefly to Amendments 81, 81AA and 88; they all deal with issues that have been covered recently by reports of the Joint Committee on Human Rights, of which I am a member.
I start with Amendment 88 on legal aid. In its report on the implications for access to justice of the Government’s proposals to reform legal aid, the JCHR was very critical of the application of the residence test to children. We said that,
“we do not agree that the Government has considered all groups of children who could be adversely affected by this test, and we note that no Child Impact Assessment has been produced”.
This is becoming a bit of a pattern, I have to say. The report continues:
“Such groups of children include children unable to provide documentation of residence and those who need help to gain access to accommodation and services … We are concerned that the Government has not given full consideration to its obligations under the second article of the UNCRC … we do not consider that the Government’s argument that cases can always apply for exceptional funding is sufficient to meet UNCRC obligations or the Government’s access to justice obligations. We are sure that the Government does not intend vulnerable children to be left without legal representation. The proposals give little consideration to the access to justice problems that the proposal specifically creates in relation to children, such as the potential complexity and urgency of the cases for which children would need advice and representation, or in some cases, the need to find a litigation friend to assist the child with their proceedings because they have become separated from their families … We do not consider that the removal of legal aid from vulnerable children can be justified and therefore we recommend that the Government extend the exceptions further by excluding all children from having to satisfy the residence test”.
In their response, the Government agreed to extend the exceptions further, but in my view, not far enough. Although any further exception is welcome, it goes only so far and does not meet the concerns of the JCHR about protecting children generally in relation to our obligations under the UNCRC. Having a lot of exemptions just complicates matters and I would have thought it was easier simply to say that it should not apply to children.
Baroness Hussein-Ece (LD)
My Lords, I add my voice in support of the Amendment 81, tabled by my noble friend Lord Storey and moved by the noble Earl, Lord Listowel. The other day I read a Children’s Society report which was produced some time ago about the journey made by an asylum-seeking child. It is as relevant today as it was then. I should remind the Committee that when the United Kingdom ratified the United Nations Convention on the Rights of the Child back in 1991, it recognised that children are vulnerable and require additional care and protection, and acknowledged their autonomy as rights holders in their own right under Article 3.
Later on, in Section 55 of the Borders, Citizenship and Immigration Act 2009, certain provisions were put in place to safeguard children. At the time, in their response to the Children’s Commissioner’s independent review, the Government made clear their commitment to,
“give due consideration to the UNCRC Articles when making new policy and legislation”.
They emphasised:
“At the centre of this Coalition Government’s thinking is a determination to see children and young people achieve to their full potential, and the desire to empower individuals to shape their own future”.
This should apply equally to children and young people subject to immigration control. This is really the heart of the issue. As has already been mentioned, the children who we are seeing come from well documented war-torn countries such as Afghanistan, Congo, Iraq, Iran and Eritrea. These children have often fled from these countries having seen family members killed and often having escaped being recruited as child soldiers. They have seen horrific things that we can only imagine and which none of our children, thankfully, will ever have to witness. However, they then have to navigate a system whereby they have to prove somehow that they are worthy of not being sent back once they get to the age of 17 and a half, after they have lived and been protected in this country for some years.
The phrase used here, which comes up time and again, is this “culture of disbelief” that they face when they have to navigate the system. Sometimes they are given a solicitor and, as my noble friend Lady Benjamin said very eloquently earlier, they have to rely on officials, usually from local authorities, who have a responsibility as corporate parents. However, often this is not very consistent and they find themselves—like most young people, who are very vulnerable—worried. Some of them are suffering from post-traumatic stress and all sorts of psychological problems due to what they have experienced but then have to prove that they should not be sent back and are worthy of being allowed to stay here and being given protection. We need to think very long and hard about the way we treat young people. It does not matter where they have come from—as my noble friend Lord Storey said so succinctly, they are still children. These are extremely vulnerable young people, and the other thing is that they are not huge in number. There is a perception that we are talking about vast numbers—we are not, but they are very vulnerable and distinct and their cases need to be given due care and diligence when they are looked at.
The amendment that the noble Lord, Lord Rosser, spoke to on guardianship is very important as well. That would guarantee that somebody is appointed who will be looking out for and speaking and advocating on behalf of young children. We have heard from social services departments, and I speak as a councillor and cabinet member for health and social services with particular responsibility for corporate parenting. I have met many social workers who were a bit overwhelmed by the amount of work they had to do and who felt they were subject to the legislation rather than being able to look at each individual case. I was not always satisfied that they were able to give the individual young people the care and advocacy that they needed, not because they were unwilling but because of pressures of work and sheer numbers in some inner-city areas. In particular, some very bright young people were offered university places and were unable to take them up. It was very difficult then for them to do anything further. It was almost as if their situation was parked and officials moved on to somebody else. I urge the Minister to think very carefully about this situation, where we are talking about very vulnerable young people.
Earl Attlee (Con)
My Lords, I am grateful to the noble Earl, Lord Listowel, for moving his amendment and to other noble Lords who have spoken in this debate. Amendment 81 would allow persons who entered the UK when they were children to continue to be provided with local authority support after they reached adulthood and had all their applications and appeals to stay refused but failed to leave. The noble Earl and others illustrated some of the cases that the noble Earl had in mind. Nevertheless, I would point out that our well developed system of justice and the rule of law has determined that these people should not be here.
Under the current legislation, automatic access to support and assistance stops if the person’s asylum claim and any appeals have been rejected. However, the legislation still allows support to continue where that is necessary to avoid a breach of the person’s human rights. This would include cases where the persons cannot return to their own countries through no fault of their own; for example, because they are too sick to travel or need time to obtain a necessary travel document. The Government remain committed to ensuring that failed asylum seekers leaving local authority care do not face an immediate or abrupt withdrawal of all support. In answer to my noble friend Lord Roberts, it is important that the consequences of the failure of their asylum claims are fully explained to them at the time. It is also important that human rights factors are properly assessed by the local authority in a consistent way. My noble friend Lady Hussein-Ece expressed some concern on this point.
I understand that the Children’s Commissioner has been looking at these issues and will shortly be issuing a report. The Government will consider the report very carefully. However, I think it is wrong in principle that adults who can reasonably be expected to return to their own country should retain access to welfare support from public funds if they refuse to do so.
My noble friend Lord Storey expertly raised the issue of age on arrival. The Committee will certainly need to consider whether the amendment creates obvious incentives for young people to claim, falsely, to be under 18 when they apply for asylum. My noble friend Lord Storey suggested that there is no evidence that the amendment would lead to more asylum seekers claiming to be children. As a simple matter of fact, many local authorities have to do age assessments because some asylum seekers falsely claim to be children. If people who claim asylum before the age of 18 are allowed indefinite support, this can only add to the problem.
I am grateful to my noble friend Lady Benjamin for the detailed way in which she spoke to her important Amendment 81A. It is not clear what this amendment would achieve for the really important people—the young people themselves—other than by being a great probing amendment. The criteria for making the decisions covered by the amendment are already known and publicly available. As I understand the proposed new clause, the reference to,
“young people … who have irregular immigration status”,
is meant to refer to a group of young people who are entitled to indefinite leave to remain or to British citizenship because their parents had that status but, for whatever reason, those parents never got round to pursuing the applications of that kind that would benefit their children. Some of those young people will also qualify to be here in their own right because of their own length of time spent in the United Kingdom.
Publishing a report will not give those children and young people what they need. What they need to do is to come forward and apply. There are very clear routes open to them. If they were born in this country and have lived here for 10 years with only short absences, there is provision for them to be registered as British citizens. They may also apply on the basis that their family life or private life is in the UK. For private life, there is special provision for a person under the age of 25 who has spent at least half their life living continuously in the UK; and for a person under 18 there is provision for someone who has lived continuously in the UK for seven years and for whom it would be unreasonable to expect them to leave. These are generous provisions and it is difficult not to regard most, if not all, the cases behind the amendment being included here.
In addition, we are willing to make available a named point of contact for them or for the charities and NGOs working with them to approach with personal applications. This will also allow us to make formal referrals to local authority children’s services on behalf of those who need support and assistance in that way. If some of them are in risky situations, as we are frequently told, these arrangements are by far the best for them and not some kind of blanket approval without contact with us.
Lord Rosser
Can the Minister clarify whether in the trial that is taking place the advocates to whom he has referred will have the same roles and responsibilities as are set out in my Amendment 81AA for an independent legal guardian?
Earl Attlee
My Lords, I very carefully read through the noble Lord’s amendment—to the extent that I detected a typographical error. There were a lot of points, but, broadly, that is the objective. However, I cannot say at the Dispatch Box that every single provision will be covered.
Baroness Lister of Burtersett
I quite understand that, but could the Minister write to us afterwards to say exactly which elements of the amendments will be covered and which will not?
Earl Attlee
My Lords, I would be delighted to do that.
We are fully aware of the importance of getting support for trafficked children right and are wholly committed to doing so. It is crucial that we take the opportunity to look closely at how we achieve the best possible results for children. I hope that the Committee agree that it will be important that we learn lessons from this trial so that we get the right arrangements in place for this exceptionally vulnerable group of children.
Amendment 88 effectively holds the Government to ransom. My noble friend Lord Roberts asked about the availability of legal aid and suggested that not all asylum, trafficking and domestic violence claims receive legal aid. I reassure him that all asylum claims and appeals, and all applications for a right to enter or remain by victims of trafficking and victims of domestic violence, receive legal aid, subject to the usual means and merits test. As the Committee knows, the scope of the legal aid scheme has been decided by Parliament through the Legal Aid, Sentencing and Punishment of Offenders Act—LASPO. I do not believe it is advisable to reopen the issue here and I am sure that, in his heart, my noble friend Lord Roberts recognises that, too.
The noble Baroness, Lady Lister, when speaking to Amendment 88, suggested that the residence test should exempt all children. As she said, the Government responded to the JCHR report by extending the exceptions to the residence test in relation to children. The Government are satisfied that the proposals for the legal aid residence test are compliant with their obligations under the UN Convention on the Rights of the Child. I also wish the House to note that the residence test is not yet in force. Parliament will have the opportunity to consider the residence test when the relevant statutory instrument is laid before it.
Legal aid is and will remain available for the highest priority cases, such as asylum seekers or advice and damages claims for victims of trafficking. Children—or those who entered the UK as children—who fall into one of these groups are eligible for legal aid. It is right that limited funds should be targeted towards them. Therefore, only children and young adults who do not fall into one of those high-priority groups will not be eligible for legal aid, in line with LASPO. Children who are to be removed are well protected in the immigration system. In addition to the duties towards them imposed by the Children Act and the Borders, Citizenship and Immigration Act, in this Bill we add further protections—placing the Government’s policy of ending the detention of children on a statutory footing. In light of that, I hope that the noble Earl will feel able to withdraw his amendment and other noble Lords will not press theirs in due course.
Lord Hylton (CB)
Before my noble friend decides what to do with Amendment 81, I urge the Government most strongly to give maximum publicity to what they have just said: first, about no abrupt withdrawal of support for children in care who reach the age of 18; secondly, about the possibility of children who have been here for 10 years or more achieving British citizenship; and, finally, about there being perhaps now or certainly in future a named point of contact for children and young people in irregular migrant status. In passing, I thought the amendment of the noble Baroness, Lady Benjamin, rather too mild: something much stronger and clearer is needed.
Earl Attlee
My Lords, the noble Lord makes an important point. There is no point in having good arrangements if you keep them quiet. We need to make sure that everyone knows what arrangements have been put in place—and perhaps who is responsible for prodding the Government to do them.
The Earl of Listowel
My Lords, I am most grateful to the Minister for his careful reply. I would be grateful to know more about one particular matter; perhaps he will write to me about it. It is the situation where young people who have come to this country as children and then become adults are removed and get harsher treatment than those adults who exhaust the asylum process. I think that it occurs in situations where they have exceptional leave to remain. For some reason there is a technicality that means that young people leaving care can be more harshly treated than adults. I would be grateful if the Minister looked at that particular question and wrote to me on it. Perhaps there will be a chance before Report to discuss these issues around young people and children a bit further.
Earl Attlee
My Lords, in response to the noble Earl’s first point, while not agreeing to reflect upon it, I will make sure that I understand the issue.
The Earl of Listowel
I appreciate the Minister saying that. I will withdraw this amendment in a moment but want to thank the Minister for his careful response. I also thank all noble Lords who took part in this important debate. I am very grateful for their contributions, particularly that of the noble Baroness, Lady Lister, who drew our attention to the JCHR report on these matters, and that of the noble Baroness, Lady Benjamin, who talked about the very important work of Kids Company—which is so well respected in this area—and its concerns. I understand that a number of local authorities face real difficulties because they may choose to extend support to young people leaving care in this situation but cannot guarantee that they will be refunded for that support. They face difficulties there. Again, I thank the Minister for his reply. I will look at it carefully but suspect that I will come back on Report with a further amendment in this area.
Lord Roberts of Llandudno
My Lords, the Minister gave us some noises regarding the continuation of support for youngsters when they get to 18 years of age. What is the Government’s intention in dealing with that? Is there some possibility of them bringing their own amendment on Report?
Earl Attlee
My Lords, I hope I did not give an indication that I would bring forward an amendment in that particular area.
Lord Taylor of Holbeach
“Special Immigration Appeals Commission Act 1997 (c. 68)In section 2 of the Special Immigration Appeals Commission Act 1997 (jurisdiction: appeals), in subsection (2), after paragraph (c) insert—
“(ca) section 78A of that Act (restriction on removal of children and their parents),”.”
Lord Taylor of Holbeach
“Prison Act 1952 (c. 52)(1) Section 5A of the Prison Act 1952 (appointment and functions of Her Majesty’s Chief Inspector of Prisons) is amended as follows.
(2) In subsection (5A)—
(a) omit “and” at the end of paragraph (b);(b) after paragraph (b) insert—“(ba) in relation to pre-departure accommodation within the meaning of that section, and”.(3) In subsection (5B)—
(a) in paragraph (a), after “facilities” insert “, accommodation”;(b) in paragraph (b)(i), after “facilities” insert “, pre-departure accommodation”.”
“Immigration Act 1971 (c. 77)In Schedule 3 to the Immigration Act 1971 (supplementary provisions as to deportation), in paragraph 3, for “33” substitute “33A”.”
Lord Avebury
Lord Avebury
My Lords, Part 2 of Schedule 9 applies new provisions on bail to proceedings before the Special Immigration Appeals Commission. SIAC frequently deals with persons detained by administrative fiat under high-security conditions without a time limit and without being brought automatically before a court, in conditions normally reserved for persons serving long sentences for criminal offences. Yet those appearing before SIAC have not been convicted of any offence at all.
As I hope to demonstrate in a moment, it is a matter of settled law that the alternatives to a bail hearing—that is, an application for habeas corpus or a judicial review of the lawfulness of detention—are insufficient in cases before SIAC to comply with Article 5 of the European Convention on Human Rights: the right to liberty and security of person. That article provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”.
The Government’s justification in the Home Office’s memorandum on SIAC and the ECHR is that the power to grant bail is limited rather than removed and that the Secretary of State has discretion over bail in certain circumstances, but the Secretary of State is not a court of law for the purpose of Article 5(4) and the question is therefore whether JR and habeas corpus are sufficient for the purpose of compliance. In Chahal v United Kingdom in 1996, 23 EHRR 188, paragraphs 58 to 61, the European Court of Human Rights held that neither judicial review nor habeas corpus provided an adequate basis for challenging a deportation on national security grounds because closed material could not be disclosed in those proceedings. These principles can be applied to challenging a decision to detain. The High Court would not be able to undertake a full review of the lawfulness of the detention sufficient to comply with the conditions of Article 5(4). That point is not addressed in the government briefing, which assumes without argument that judicial review and habeas corpus provide adequate remedies. We know that this concern has been drawn to the attention of the Home Office, and we therefore expect a full reply from my noble friend. I beg to move.
Lord Pannick
My Lords, I offer my support to the noble Lord, Lord Avebury, on Amendment 84A. As he said, the Committee will recognise the importance of the right to bail, particularly in relation to persons who have not been convicted of any criminal offence and who are often detained for lengthy periods.
I ask the Minister whether proposed new subsection (5A) is being brought forward to address a practical problem. How often are applications being made within the 28-day period, and with what result? I am concerned about proposed new subsection (5A) because it is not difficult to envisage cases where it may well be appropriate to bring a further bail application within the 28-day period, even if there is no “material change in circumstances”, the criterion in proposed new subsection (5A).
Suppose, for example, that a bail application has been dismissed because of the incompetence of the legal advisers—sadly, in this context, as in others, that is far from a hypothetical contingency. Suppose that the individual concerned lacks proper legal advice when the bail application is made. New solicitors may be appointed, a friend may be assisting the individual, they may be able to present a bail application differently or they may have discovered a binding Court of Appeal judgment which, hitherto, escaped attention. None of that would be a material change in circumstances, as I understand the concept, but it would surely be highly undesirable for the detainee to have to wait for 28 days before an application for bail could be heard and ordered, if it is appropriate on the facts of the detainee’s case.
I hope that the Minister will therefore be able to tell the Committee that he is prepared to think again on this important matter before Report.
Lord Taylor of Holbeach
My Lords, I welcome the opportunity to debate my noble friend’s amendment because it provides me with the opportunity to reassure noble Lords that the safeguards we highlighted when we debated Clause 3 in terms of the Home Office’s process and policy, common law and case law protections and, indeed, judicial oversight are in place when immigration bail applications are considered by SIAC. The power to detain under immigration powers flows from the Immigration Act 1971, and the consideration of whether detention remains lawful is governed by exactly the same legal principles. It is simply the venue that is different: SIAC, instead of the immigration tribunal. SIAC has its own procedure rules, separate from the tribunal procedure rules, and paragraph 2 of Schedule 9 requires SIAC’s rules to mirror those of the tribunal in how repeat bail applications made within 28 days should be handled in cases where there has not been a material change in circumstances. My noble friend’s Amendment 84A would remove the requirement for SIAC to dispose of repeat applications made on the same facts within 28 days without a hearing. That would create disparity between how different tribunals are required to handle the same matter.
As will be the case in the immigration tribunal, if a further bail application is made within 28 days of a previous unsuccessful bail application, SIAC can agree to an oral hearing, provided that there are genuine reasons to seek another hearing because there are materially different grounds to consider which may lead to a different outcome.
As I have said, safeguards are already in place. Clause 3 does not prevent an individual from applying for bail. Nor does it prevent an individual from challenging the legality of their detention, and legal aid will remain available for that. The Home Office will continue to conduct formal reviews of detention, and detainees will continue to have full access to legal advice.
I have been asked how many times the existing power has been used. The existing power has not been used for some time, so the Government have no statistics on its use. It is drafted so broadly that its meaning is, arguably, unclear. The government amendment is clear about the circumstances in which the power can be exercised and is proportionate. Therefore, it is more workable.
My noble friend Lord Avebury asked about judicial review and habeas corpus and their relationship with SIAC. He suggested that they were not adequate in SIAC. I hope that I can assure the noble Lord, Lord Pannick, that the position in SIAC differs from the position in the tribunal. SIAC is a superior court of record, whereas the tribunal, which considers most bail applications, is not. In SIAC bail applications, SIAC does consider the lawfulness of detention, and detainees do not have to apply for JR or habeas corpus, although those options remain open to them should they wish to do so.
I hope that I have covered the salient points made by my noble friend and the noble Lord, Lord Pannick. I understand that my noble friend’s amendment was probing. I therefore hope that my comments have reassured the noble Lords that there is no difference in the policy, procedural or judicial protections that those detained under immigration powers enjoy even if the case is under SIAC’s jurisdiction rather than that of the immigration tribunal. I therefore ask that my noble friend withdraw his amendment.
Lord Avebury
My Lords, I understood on good legal advice that the principles in Chahal did read across to SIAC but in view of what my noble friend has said about that, I shall go back to my advisers and see whether they have any further comments on what he has said.
Perhaps I may make an aside about this amendment and others that we have dealt with today. It is very inconvenient, when looking up the Special Immigration Appeals Commission Act or any other Acts to which amendments are being made by the Bill, to find at the head of each page in the version that we can see online that it cannot be guaranteed that all the amendments which have been made to that Act have been incorporated. This is a serious disadvantage because it means that we always have to go back to the Library, which has access to another database that contains the full Keeling schedules of Acts that have been amended. Normally, people using the parliamentary website cannot see that database and that causes some considerable inconvenience. I would be grateful if my noble friend could address that point at some stage in the future. I do not ask him to give me a reply now but this is a general disadvantage to people who are trying to work on these Bills which work by reference to other legislation. However, with those words I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
“Northern Ireland Act 1998 (c. 47)In section 69C of the Northern Ireland Act 1998 (investigations: places of detention), in subsection (3)(g), for “or short-term holding facility” substitute “, a short-term holding facility or pre-departure accommodation”.
Immigration and Asylum Act 1999 (c. 33)(1) The Immigration and Asylum Act 1999 is amended as follows.
(2) In Schedule 11 (detainee custody officers)—
(a) in the heading above paragraph 3, at the end insert “and pre-departure accommodation”;(b) in paragraph 3—(i) in sub-paragraph (1), after “facility” insert “or in pre-departure accommodation”;(ii) in sub-paragraph (2), after “facility” (in both places) insert “or accommodation”;(c) in paragraph 4(c), after “facility” insert “or in pre- departure accommodation”;(d) in paragraph 5(c), after “facility” insert “or in pre- departure accommodation”.(3) In Schedule 12 (discipline etc at removal centres)—
(a) in paragraph 4 (assisting detained persons to escape)—(i) in sub-paragraph (1), for “or short-term holding facility” substitute “, a short-term holding facility or pre-departure accommodation”;(ii) in the opening words of sub-paragraph (2), for “or short-term holding facility” substitute “, a short-term holding facility or pre-departure accommodation”;(iii) in sub-paragraph (2)(a), for “or facility” substitute “, facility or accommodation”;(iv) in sub-paragraph (2)(b), for “or facility” substitute “, facility or accommodation”;(v) in sub-paragraph (2)(c), for “or facility” substitute “, facility or accommodation”;(b) in paragraph 8 (notice of penalties)—(i) in sub-paragraph (1), after “facility” insert “or contracted out pre-departure accommodation”;(ii) in sub-paragraph (2), after “facility” insert “or pre-departure accommodation”.”
“Nationality, Immigration and Asylum Act 2002 (c. 41)In section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State), in subsection (3), after paragraph (a) insert—
“(aa) a reference in paragraph 18B of that Schedule to an immigration officer shall be read as a reference to the Secretary of State,”.”
“Safeguarding Vulnerable Groups Act 2006 (c. 47)In section 59 of the Safeguarding Vulnerable Groups Act 2006 (vulnerable adults), in subsection (7)(d), after “facility” insert “or in pre-departure accommodation”.
Corporate Manslaughter and Corporate Homicide Act 2007 (c. 19)In section 2 of the Corporate Manslaughter and Corporate Homicide Act 2007 (meaning of “relevant duty of care”)—
(a) in subsection (2)(b), for “or short-term holding facility” substitute “, a short-term holding facility or in pre-departure accommodation”;(b) in subsection (7), for “and “short-term holding facility”” substitute “, “short-term holding facility” and “pre-departure accommodation””.UK Borders Act 2007 (c. 30)In section 48 of the UK Borders Act 2007 (establishment of border and immigration inspectorate), in subsection (2A)(a), after “facilities” insert “and in pre-departure accommodation”.”
Baroness Hamwee
“After section 3D insert—
“3E Extension of leave following revocation
(1) This section applies if a person—
(a) has limited leave to enter or remain in the United Kingdom (including leave that has been extended by section 3C); and(b) the person makes a protection claim or a human rights claim within the currency of that leave or within 14 days of the conclusion of any administrative review of a decision to vary, refuse to vary that leave.(2) the person’s leave to enter or remain is extended during the period when—
(a) the protection claim or human rights claim is neither decided nor withdrawn;(b) an appeal could be brought under section 82(1)(a) or (b);(c) an appeal under that section against refusal of the protection or human rights claim is pending within the meaning of section 104.3F Revocation of a protection status
(1) This section applies if the Secretary of State has decided to revoke a person’s protection status.
(2) The revocation shall not take effect during the period when—
(a) an appeal under section 82(1)(c) could be brought;(b) such an appeal is pending within the meaning of section 104.””
Baroness Hamwee
My Lords, I will speak also to Amendments 87ZE and 87ZF. The first of my amendments would introduce two new paragraphs to ensure that leave continues in the event of revocation on the terms and conditions which have applied while an asylum or human rights appeal is pending. The Bill does not repeal the provisions for extending leave during the period for lodging an appeal or while an appeal is pending once a decision not to extend leave or to revoke has been made. However, those provisions will not function because the provisions on which they bite are being repealed. I acknowledge readily that this is not my analysis and I am grateful, as so many noble Lords have been and no doubt will be during the course of the Bill, to the Immigration Law Practitioners’ Association for this.
I made a point on Amendment 72B on Monday in respect of drivers’ licences but I do not think that the Minister who was replying was able to deal with it. In this situation, it would mean that a person’s presence immediately becomes unlawful, with implications for employment and his employer, education and his university, tenancy, holding a bank account, access to healthcare and so on. I might be wrong about holding a bank account; I think that I mean opening a bank account.
It would also mean that there would be a break in the continuity of his leave, which might have implications for a later application for settlement or citizenship. Schedule 9 provides for leave to continue on the same terms and conditions while an administrative review is pending, so it seems likely that people will make both an application for review and a human rights appeal. There would then be the dual review and appeal—parallel might be a better word—which I know the Government want to avoid. That is my first amendment.
Baroness Smith of Basildon
My Lords, shall speak briefly on these amendments because I have listened to the noble Baroness, Lady Hamwee, quite carefully on them and I share some of the concerns that she raised. Concerning Amendment 87ZA, can I just be 100% sure that I have understood it correctly? The current position is that once a decision is taken not to extend or revoke leave, that leave is extended on the same terms and conditions during the period provided for lodging any appeal or while the appeal is pending. However, the Bill would remove that provision. The noble Baroness is nodding at me, so it seems I have understood it correctly.
Baroness Hamwee
That is as I understand it. Possibly like the noble Baroness, I have had some difficulty following this around the course.
Baroness Smith of Basildon
I share that difficulty. However, what the Bill does has quite significant implications. If I take the example of somebody who is employing an individual whose leave is revoked and who then appeals, the employer has the opportunity to continue to employ that person quite legally. What is being proposed here seems to make the employer commit an offence, because from the moment that leave is revoked, even if the individual is appealing against it, they are no longer allowed to employ that person. What I come back to on a number of areas in the Bill is the issue of unintended consequences—not thinking through from point A to point B. I may have it completely wrong, and I am happy if I have, but I would like some clarification on that point.
On the other two points, the Minister will be aware of how concerned we are about the Government’s proposals on appeals and administrative reviews. I fail to understand why the Government do not want to have the Independent Chief Inspector of Borders and Immigration reviewing decisions taken in this case. The noble Baroness asked him to confirm that. An explanation would be quite helpful. The same is true on Amendment 87ZF.
As with so many proposals the Government bring forward, I would like to understand the evidence behind the decisions being taken and an assurance that they understand and know the consequences, including the unintended consequences, of such measures.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I thank my noble friend for moving this amendment and confessing, as did the noble Baroness, Lady Smith, to having difficulty getting her head around some of this. Having had this landed on me very recently, I have similar issues.
Lord Wallace of Tankerness
I am advised that it is not correct that this Bill means that leave does not continue where an application has been made in time. I think there is a double negative in there. My understanding is that Section 3C of the Immigration Act 1971 provides that where someone makes an application for further leave while they have existing leave and that the existing leave expires before the application for further leave is decided, their existing leave is extended on the same terms until that further application is decided and any appeal against its refusal is no longer pending. That is the existing position. Section 3D of the 1971 Act makes the same provision where someone has existing leave which is revoked, extending leave while they can appeal against the revocation. Schedule 9 to this Bill amends Sections 3C and 3D so that they extend leave also while an administrative review can be brought or is pending. I hope that is helpful. No doubt the noble Baronesses will want to consider it. I think that is the accurate position.
Nothing in the Bill prevents people making protection or human rights claims. We are committed to protecting such fundamental rights but equally, as has been explained on numerous occasions in Committee, we also seek to prevent abuse of the system and to create an improved process. Our concern is that the amendment that my noble friend has moved would undermine both these aims.
Extending leave because a protection or human rights claim has been made following an unsuccessful administrative review would create a strong incentive to make such claims. This would undermine the greater efficiency of the appeals framework in this Bill. There would be an advantage in making a protection or human rights claim just before leave extended under Section 3C of the Immigration Act 1971 expired, even after an appeal at the First-tier Tribunal has been decided. This would create a sequential process where the further claim and any appeal are considered after the other claim has been decided rather than at the same time. It would mean that leave is extended on current conditions for a worker, even when that worker has first sought an extension of leave as a worker and then decides he no longer wants to be in the UK to work but rather wishes to claim asylum. We do not believe that that consequential inconsistency is right.
Inserting new Section 3F into the Immigration Act 1971, as proposed by Amendment 87ZA, would create duplication. Existing Section 3D of the 1971 Act already provides that where leave is revoked, the leave will continue while any appeal against revocation is brought.
I wish to make the important point that, as I said at the outset, there is nothing in the Bill that seeks to stop or prevent people making protection or human rights claims. The Home Secretary will consider and decide any human rights claim made to her and will not remove any person while that claim remains undecided, irrespective of whether they have leave. I hope that is a reassurance that there will not be a removal while a claim remains undecided.
Amendment 87ZE queries the necessity of a consequential appeals amendment. We believe that the consequential amendment is necessary. Schedule 9 repeals the provision establishing a monitor for entry clearance cases with a limited right of appeal. This monitor role is now performed by the independent chief inspector under Section 48 of the Immigration, Asylum and Nationality Act 2006. However, the Bill provides that there will no longer be any entry clearance cases with a limited right of appeal, and therefore Amendment 87ZE would retain an otherwise redundant provision.
With regard to Amendment 87ZF, the Bill simplifies the appeals framework and removes “not in accordance with the law” and “different exercise of discretion” as grounds on which appeals can be brought. Amendment 87ZF would reinstate these as reasons for allowing an appeal, although they are not grounds on which an appeal can be brought. Noble Lords will recall from when we debated Clause 11 that the grounds of appeal under that clause are that a decision breaches the UK’s obligations under the refugee convention to those entitled to humanitarian protection, or is unlawful under the Human Rights Act. These are the relevant grounds for challenging refusals of protection or human rights claims, and, in considering them, the tribunal is considering whether the decision was in accordance with the law. That is the important point in the appeal. Similarly, the UK’s obligations to asylum seekers entitled to humanitarian protection or under the Human Rights Act are not discretionary. There is therefore no exercise of discretion for the tribunal to consider in those appeals that come before it.
I hope that in the light of this explanation and these reassurances, my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, it would be foolish of me to try to continue the debate at this point. I obviously need to read—probably several times—what my noble friend just said and to consider it with those who are far more familiar with the whole raft of immigration legislation than I am. I beg leave to withdraw the amendment.
Lord Avebury
Lord Avebury
My Lords, Amendment 87ZB would retain Section 40A(3)(a) of the British Nationality Act 1981. This provision can be used by an immigration judge hearing an appeal against deprivation of nationality to direct, following a successful appeal, that an order depriving a person of his or her British nationality is to be treated as having had no effect. I think what my noble and learned friend said in response to Amendment 84A is relevant to this provision because he said that it is no longer necessary for immigration judges to have these powers of direction.
Amendment 87ZC would retain Section 2(6) of the Special Immigration Appeals Commission Act 1997, which states:
“In this section ‘immigration decision’ has the meaning given by section 82(2) of the Nationality, Immigration and Asylum Act 2002”.
It would thus be consequential upon leaving Clause 11 out of the Bill so that the existing Section 82(2) was preserved. As matters stand, Clause 11 removes the list of immigration decisions in Section 82(1) against which Section 82(2) gives a right of appeal.
Amendment 87ZCA amends Section 2B of the Special Immigration Appeals Commission Act 1997, which reads:
“A person may appeal to the Special Immigration Appeals Commission against a decision to make an order under section 40 of the British Nationality Act 1981 (c. 61) (deprivation of citizenship) if he is not entitled to appeal under section 40A(1) of that Act because of a certificate under section 40A(2) (and section 40A(3)(a) shall have effect in relation to appeals under this section)”.
It is the cross-reference to the provision that Amendment 87ZB seeks to retain.
These amendments arise from the case of Hilal Al-Jedda, which was referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on Monday. Mr Al-Jedda, originally an Iraqi citizen, sought asylum in the UK in 1992. He obtained refugee status in 1994, ILR in 1998 and UK citizenship in June 2000. Then, in June 2004, he was detained in Baghdad as a suspected member of a terrorist group and was held without trial at a camp in Basra for the next three years. At the end of that period, it was discovered that he was a UK citizen. On 13 December 2007, he was released from detention and went to live in Turkey, where he remains to this date. Towards the end of his detention, the Secretary of State wrote to Mr Al-Jedda, saying that she was minded to make an order depriving him of his citizenship under Section 42 of the British Nationality Act, as well as excluding him from the UK, and inviting him to make any representations he chose against the order. His solicitors replied that he wished to challenge the order but, to do so, they required details of the facts on the basis of which he was suspected of terrorism. The Secretary of State declined to give that information and proceeded to make the order on 14 December 2007.
Lord Deben (Con)
My Lords, I suddenly thought that the court which heard St Paul declare himself a Roman citizen must have been just as surprised as we are at some of the people who claim to be British citizens, both by name or background and present place of abode. Your Lordships will remember that St Paul made an important and entirely supported point. Having declared himself a Roman citizen, he was treated in a different way. We have an important point here, and I commend my noble friend Lord Avebury in raising it. This is a very difficult area, not least because the exemplars are not ones that are easily taken to the heart of the broad mass of the British people. That means that those people should be particularly able to call upon this House.
I live in a house which was previously occupied, a long time ago, by the man who won the War of Jenkins’ Ear—the Battle of Porto Bello. At that time we thought that British citizenship was of enormous importance. People who found it quite hard to explain how they had managed to become British citizens were still supported, sometimes for pretty dubious reasons.
I hope that my noble friend will consider very carefully the points which the noble Lord has made. We live in a world in which statelessness is one of the most terrible things that can befall anyone. If you do not belong and cannot come to belong, you are placed in an impossible position. In a sense I welcome that this is so peculiar. This so special a situation which has been adumbrated, and the others around it are small in number and, as I suggested, do not affect many people or raise their sympathy in this country. Indeed, I fear that they could easily be used by some organs of the press as another way to beat the Government on their immigration policy. That makes it all the more important that we are very serious about this.
I therefore hope that my noble friend, in expressing his view on this amendment, will reassure the House that we do three things which are basic to British justice. First, we will recognise that if we have granted citizenship, or if someone has citizenship, we will defend it, and do so even though it be to our own hindrance. Secondly, we will not continue, unless there is some really good reason, the unacceptable position in which we say to somebody, “We will take away your citizenship but will not tell you why”. I find that unacceptable. I can see why people do that, but the circumstances must be most extreme before it is reasonable and acceptable. Thirdly, to take away someone’s citizenship, it is not reasonable to say that you assume that they can get another country’s citizenship. It is only reasonable to say that you know that they have another citizenship; anything less than that is wrong. It may not be convenient, but it is not right.
We have been the signatory to and the driver of much of the international law that seeks to reduce statelessness to its minimum. I fear that in this particular case, we may, for very good reasons—in seeking to close loopholes and make neat what is essentially a not very neat kind of law—do something which will do great injustice to a very small number of people. However, it is none the less injustice if it affects but one.
Baroness Smith of Basildon
My Lords, I will be brief, because I do not want to repeat the lengthy debate we had on this issue on Monday evening. That the noble Lord, Lord Avebury, has raised this again tonight, as well as the comments made by the noble Lord, Lord Deben, indicates the strength of feeling and the very grave concerns about the Government’s provisions, which would make stateless some people in this country who are currently citizens. The issue was never, as the noble Lord perhaps thought on Monday, about the withdrawal and deprivation of citizenship, but about the consequences of making people stateless, not just for that individual but for public safety, national and international security. The noble Lord, Lord Avebury, made the point about somebody either being trapped, stateless, in this country, and our obligation to that individual, or somebody being isolated overseas, with the implications that that has for the security of that country and our relationship with it.
Lord Wallace of Tankerness
My Lords, important points have been made in this debate, following on from the debate which took place in Committee on Monday on the issues of deprivation of citizenship and statelessness. My noble friend Lord Deben has reminded us of important things: “Civis Romanus sum, civis Britannicus sum”. This is of great seriousness, and in no way do I wish to detract from the seriousness of these matters, to which I am sure the House will inevitably return on Report. Neither do I wish to try to dodge the question the noble Baroness, Lady Smith, asked, by looking at the amendment. The amendment does not raise these profound issues, which as I said, I am sure we will come back to—indeed, she has indicated that she has a meeting with my noble friend Lord Taylor of Holbeach to discuss some of those issues.
The amendment moved by my noble friend relates to part of Schedule 9, entitled “Transitional and consequential provision”, and specifically would omit Section 40A(3)(a) of the British Nationality Act 1981. The point of that omission is that Section 87 of the Nationality, Immigration and Asylum Act 2002 is repealed by paragraph 28 of that schedule. I think that this matter was debated at an earlier stage; my noble friend Lady Hamwee tabled an amendment which sought to reinstate the power of the tribunal to give directions when an appeal succeeds. The point of this amendment is to reinstate this paragraph in relation to a section which relates to the power of a tribunal to give directions following a successful appeal to give effect to its decision. When my noble friend Lady Hamwee raised that issue in an earlier debate, my noble friend explained that that power is no longer necessary, as the range of decisions that the tribunal can make following appeals reform in the Bill will be more limited, and therefore the consequences clearer.
As Section 87 is repealed by virtue of paragraph 28, the reference to Section 87 in the British Nationality Act 1981 is deleted. The consequence of my noble friend’s amendment would be to reinstate a reference to a section of a Bill that has been repealed. If that is what the amendment is about, it is on that basis that we cannot accept it. But that in no way detracts from the seriousness of the points raised, which it is inevitable that we will return to on Report.
Likewise, Amendment 87ZCA seeks to retain a further cross-reference that is redundant following the repeal of Section 87 of the 2002 Act. There is a cross-reference in the Special Immigration Appeals Commission Act 1997 to the section of the British Nationality Act which refers to Section 87.
Amendment 87ZC also relates to a change made to existing legislation as a consequence of the changes to appeal rights in Part 2 of this Bill. It would retain a reference to “immigration decision” in the Special Immigration Appeals Commission Act 1997. This reference should be removed because Clause 11 on rights of appeal to the First-tier Tribunal does not use the term “immigration decision” to describe decisions that can be appealed. Therefore, the terminology is simply inappropriate and wrong.
I apologise to the Committee for a very technical answer to what are, in fact, technical amendments. In doing so, I do not wish in any way to detract from the seriousness and importance of the points that my noble friends and the noble Baroness have made, which I am sure will be the subject of further discussion outside the Chamber and, again, when the House returns to the matter on Report. In the light of those technical explanations, I hope that my noble friend withdraws his amendment.
Lord Avebury
My Lords, in the light of those technical matters, we thought that those amendments were necessary. That is why we still consider that the power of direction of the Special Immigration Appeals Commission should be retained, as we suggested in Amendment 87ZB. As my noble and learned friend says, these are matters to which we shall return, presumably on Report when there is a fuller attendance in your Lordships’ House.
Meanwhile, I should say how grateful I was to my noble friend Lord Deben for his remarks. The same quotation occurred to me as to my noble friend—Lord Palmerston’s famous speech, in which he ended, “Civis Britannicus sum”. It was the case of a person who might not have been considered particularly worthy of British nationality, but he had it, and he was being victimised by the dictators in Naples. We should still be able to say, “Civis Britannicus sum”. As my noble friend Lord Deben said, we should not allow the Secretary of State to take away a person’s citizenship, particularly when, as he pointed out, she does not have to explain why she has done that. He agrees that it should be feasible for her to take away a person’s citizenship only when she knows that the person has another citizenship to turn to.
I am grateful also to the noble Baroness, Lady Smith, for her reference to the consequences of making a person stateless, which go well beyond the individual consequences of the person concerned. We have to think of the influence that that will have on other states that already have persons who are stateless in their community or are contemplating making people stateless; they will look to the British example, and statelessness will thereby be increased across the world. We should not underestimate the influence of a decision by a state such as Britain, which has always been in the forefront of combating statelessness and has now abandoned that stance. So I am sure that we shall return to this matter. In the mean time, I beg leave to withdraw the amendment.