House of Lords
(8 years, 9 months ago)
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Syria: Brimstone Missiles
(8 years, 9 months ago)
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Lord Thomas of Gresford
To ask Her Majesty’s Government what is their assessment of the effectiveness to date of the RAF’s Brimstone missiles in bombing Syria, and in particular in protecting the civilian population.
The Minister of State, Ministry of Defence (Earl Howe)
My Lords, the Brimstone missile offers the coalition a capability to strike moving targets accurately, with minimal risk of collateral damage. Between 2 December 2015 and 31 January 2016, RAF Brimstone missiles were used successfully on nine occasions in Syria to strike enemy vehicles. There have been no associated reports of civilian casualties and it is assessed that all targets were successfully destroyed or damaged.
Lord Thomas of Gresford (LD)
Yes, I think that the kill so far has been two trucks and five mobile cranes. Does it really matter what type of bomb or which of the coalition partners drop it? It has been reported that some 40 civilians or more were killed in January and in the first two days of this week. Surely we are involved in a joint enterprise and, by long-standing principles of English law, we are all of us legally and morally responsible for the lives of those who are killed—innocent civilians, innocent men, women and children—by these bombs. What comment would the Minister have?
Earl Howe
So far as we are concerned, as a member of the coalition, we take the possibility and risk of civilian casualties extremely seriously. As I said in my initial Answer, to date there is no evidence that UK strikes have resulted in civilian casualties. Three factors underpin that: our use of precision guided weapons; our adherence to very strict targeting and planning protocols; and, above all, the skill of our pilots and air crew. I think that it does make a difference whether it is the RAF or another air force taking part.
Lord Soley (Lab)
The real problem here is heavy bombers flying from Russia unloading unguided bombs in large numbers and killing almost indiscriminately. Does not that also have a dramatic effect in driving up the refugee numbers, which continue to destabilise Europe? Maybe—just maybe—we are not taking this seriously enough.
Earl Howe
The noble Lord is absolutely right. There is no question that Russia is actively targeting civilians and is almost certainly in breach of international humanitarian law in the process. That has to stop. Russia cannot continue to sit at the table as a sponsor of the political process and, at the same time, bomb the civilian areas of the very groups of people whom we believe will form the backbone of the new Syria, once Assad has left.
Lord Stirrup (CB)
My Lords, is the Minister able to give the House figures for the number of civilian casualties in Syria caused by the action of ISIL on the ground?
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, we have not yet heard from the Conservative Benches.
Lord Hamilton of Epsom
As my noble friend will know, the Royal Air Force turns dumb bombs into smart bombs by the use of technology. Is it not possible for the Russians to do the same?
Lord West of Spithead
My Lords, I apologise to the noble Lord, Lord Hamilton, for not giving way. The Minister will be aware that a number of Syrian refugees got into the sovereign base area on Cyprus where our air attacks go from without being detected. Can he assure the House that security there has been tightened up? Clearly there is huge vulnerability to terrorists trying to get at our aircraft and our aircrew before they can be in the air being looked after properly.
Lord Pearson of Rannoch (UKIP)
My Lords, do the Government agree that the European refugee tragedy is caused largely by the evil Islamic State which we, the United States and other allies could destroy on the ground in a few months? Is the reason we do not do so because we have lost our nerve after our disastrous invasions of Iraq and elsewhere? Has the time not come to think again because we clearly cannot solve the problem with airpower alone?
Earl Howe
The noble Lord is right that airpower alone will not defeat Daesh. Indeed, military action alone will not defeat Daesh. We have to counter its ideology as well and cut off its sources of finance. We have set our face against putting British troops on the ground in Iraq or Syria. Prime Minister Abadi of Iraq has made it very clear that he wishes the action on the ground to be pursued by Iraqi armed forces, not western troops, and we respect that.
Baroness Jolly (LD)
My Lords, the Minister spoke earlier of careful planning. Can he tell the House how many time strikes have been called off as a result of that planning to prevent civilian losses or casualties?
Earl Howe
My Lords, the noble Baroness makes an extremely important point. There have been many occasions—I cannot give her a precise number—when a strike mission has been called off because it has been deemed too risky to the civilian population. We always err on the side of caution in that respect.
Lord Touhig (Lab)
My Lords, the House is indebted to the noble Lord, Lord Thomas of Gresford, for tabling this Question because the impact of our actions in Syria on the civilian population must never be far from our minds. On this side, we have consistently argued for airstrikes against ISIL’s oil-exporting capability, thus depleting its sources of funding. Can the Minister update us on this? More than that, I remind him that the Defence Secretary promised a quarterly report on our activities in Syria and one must be due any day now. Will he come to the House and make a Statement when that report is published?
Earl Howe
My Lords, if a Statement is decided upon through the usual channels and my right honourable friend’s decisions, of course I am very willing to repeat it in your Lordships’ House. I am in full accord with the noble Lord’s initial statements and I am prepared to update the House on a regular basis.
Islam: Extremism
(8 years, 9 months ago)
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Lord Wallace of Saltaire
To ask Her Majesty’s Government what progress has been made by the review into funding for extremist interpretations of Islam within the United Kingdom, including from overseas sources, announced by the Prime Minister on 2 December 2015 with the declared intention that it would report by the spring of 2016.
The Parliamentary Under-Secretary of State, Department for Transport and Home Office (Lord Ahmad of Wimbledon) (Con)
My Lords, the review into the funding of extremist interpretations of Islamic ideology, including funds that come from overseas, has made good progress. Analysts from across government are working on the review, led by the extremism analysis unit. It will report to the Prime Minister and the Home Secretary in the spring of this year.
Lord Wallace of Saltaire (LD)
My Lords, we understand that the Charities Commission has been doing some work on domestic sources, looking particularly at the role of Muslim charities. Foreign funding is entirely legitimate but it should be transparent, whether it comes from government or private sources. We have indications that some Governments have been supporting Muslim education in this country, but of course it should be directed to legitimate ends and not to the support of extremist versions of Islam.
Lord Ahmad of Wimbledon
I totally agree with the noble Lord that any source of funding that seeks to divide or disrupt what we have here in the United Kingdom should be looked upon, and the full force of the law for anyone seeking to create such divisions will be imposed. The noble Lord mentioned the review by the Charities Commission. That is very much factored into the review that is currently being carried out and I am speaking to colleagues in the Cabinet Office very closely on this subject.
Lord Marlesford (Con)
My Lords, what are the Government proposing to do about the Muslim Brotherhood, considering that the report that the Government commissioned, which was published in December, concludes with the words:
“Muslim Brotherhood ideology and tactics, in this country and overseas, are contrary to our values and have been contrary to our national interests and our national security”?
Will the Government at least arrange for a debate in your Lordships’ House on the matter?
Lord Ahmad of Wimbledon
The issue of a debate is very much for the usual channels. If my noble friend wishes to table such a debate, it will of course be taken forward in the normal way. On the issue of the Muslim Brotherhood, he is of course quite right: the Government published their findings in the review. The whole issue around the Muslim Brotherhood is something that the Government are watching very closely.
Lord Singh of Wimbledon (CB)
My Lords, when we talk about Islamic extremism, should we not attempt to be more precise in what we are talking about? There are passages in the Koran that might have been relevant to the time when the infant Muslim community was under siege from all sides but may not be so relevant today. It is important that those passages be put in the context of today. Should the Government not be working with Muslim leaders to that end?
Lord Ahmad of Wimbledon
It is not the Government’s role to decide on which interpretation of Islam is correct, but I assure the noble Lord that we work with all Muslim organisations, and indeed all faith institutions across the board, to ensure that we not only sustain what we have in our country today but build the resilience, strength and indeed the harmony and diversity of faith across our country that is a source of great strength for this nation.
The Archbishop of Canterbury
My Lords, it is widely agreed that all statements that tend towards causing hatred, contempt and violence towards other faiths should not be permitted, but does the Minister nevertheless agree that it is not extremist in any way, and should in fact be encouraged, for there to be statements that are frank and categorical assertions of faith or no faith, and that there is no right not to be offended or hurt by such statements?
Lord Ahmad of Wimbledon
I agree on the whole issue of interpretations and the right not to be offended, because after all that is what we are protecting here in our country. I think that there is a distinct line to be drawn when it comes to any conservative practice of a particular religion. Indeed, my right honourable friend the Prime Minister is on record, when referring to Islam in particular, as saying that anyone who is devout of faith can be anything but an extremist. The right to offend someone and not to be offended remains a value that we wish to protect, but we need to stand up to those who seek to divide us and to create division between society and faiths. That is certainly what our counterextremism strategy is all about.
Lord Lester of Herne Hill (LD)
My Lords, is the Minister aware that I have tried four times to get a straight answer to a Parliamentary Question about whether, in countering extremist ideology, the Government are concerned about the preaching and teaching of Wahhabism in mosques and Muslim education bodies in Britain that are funded from overseas? Could he please answer that question with a yes or no?
Lord Ahmad of Wimbledon
We are concerned as a Government—as we all are—about any kind of funding which seeks to harm and disturb the nature of our society. The noble Lord referred to a particular issue; the review that has been set up was set up with that very intention: to look at all forms of extremism that seek to influence or distort Islam in a way which is not conducive to the fundamental shared values we enjoy in Britain today.
Lord Pearson of Rannoch (UKIP)
My Lords, does the Government’s analysis of extremist interpretations of Islam include what is preached in our mosques, madrassahs and prisons by imams and extremists speaking in Arabic and other languages? How many reliable interpreters do we have, and should we not fund quite a few more from our own resources?
Lord Ahmad of Wimbledon
It is not the Government’s role, as I said earlier, to start adjudicating on different interpretations of Islam. The Government’s role—and this is exactly what they are doing—is to protect and secure all our citizens and protect the fundamental values we enjoy, which include the ability to profess, propagate and practise your faith with the basic and fundamental value of respect for all faiths and none in our country. That is what the Government seek to do, and I believe that we all subscribe to that principle.
Lord Harries of Pentregarth (CB)
Has it been possible to engage mainstream Muslim communities in this review so that any definition of extremism which is used will have widespread agreement—or as widespread as possible?
Lord Ahmad of Wimbledon
That is not only the Government’s intention but what we are doing, including myself as the Minister responsible. My right honourable friends the Prime Minister and the Home Secretary, as well as other members of the Cabinet, are directly engaged. Indeed, the engagement forum, which the Prime Minister has himself led on a couple of occasions, alongside the Education Secretary Nicky Morgan, has been about engaging with all denominations across the wide spectrum of Islam in Britain today.
Channel 4: Privatisation
(8 years, 9 months ago)
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Baroness Bonham-Carter of Yarnbury
To ask Her Majesty’s Government, further to the remarks made by Baroness Neville-Rolfe on 10 December 2015 (HL Deb, cols 1674–6), what they have assessed to be the major benefits of the privatisation of Channel 4.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills and Department for Culture, Media and Sport (Baroness Neville-Rolfe) (Con)
No decisions have been taken about the future of Channel 4. Channel 4 is an important part of the UK broadcasting landscape, and the Government want to ensure that it has a strong and secure future. We are looking at a wide range of options to help deliver this, including those proposed by Channel 4’s own leadership and those involving private investment.
Baroness Bonham-Carter of Yarnbury (LD)
I thank the Minister for her reply. The Secretary of State has said that he wishes to ensure that Channel 4 can continue to deliver its remit. Does the Minister accept that privatisation would have a negative impact on the channel’s delivery of news and current affairs, diversity, the Paralympics and the plurality of public service broadcasting in general? Will Her Majesty’s Government now rule out privatisation?
Baroness Neville-Rolfe
My Lords, taking into account the remit that the noble Baroness outlines, we are rightly looking at all the options with a view to achieving what the Prime Minister called Channel 4’s secure and successful future. That is very important, because Channel 4 is so unusual in its distinctiveness and experimentalism, being innovative and of course appealing to diverse sections of society.
Lord Gordon of Strathblane (Lab)
Does the Minister agree that, operationally, Channel 4 is already in the private sector in that it raises money through advertising, and it cannot do that unless it is successful in attracting an audience for its programmes? Privatisation would simply face it with the obligation of funding that privatisation through either bank interest or dividends to shareholders, all of which is money that could have been spent on programming. That is therefore undesirable.
Baroness Neville-Rolfe
We are looking at all the options. Of course, government is a sole shareholder, and the channel gets 90% of its revenue from advertising, as has been suggested. Its revenues are £930 million and last year it made a profit of less than £5 million.
Lord Grade of Yarmouth (Con)
My Lords, I declare an interest as a member of the Channel 4 pension fund and a former chief executive of Channel 4. Does my noble friend agree that the current settlement for Channel 4 is no longer fit for purpose and puts a risk on the public purse, because in the end the taxpayers are the shareholders of last resort? The world has changed dramatically, and the commercial threats to Channel 4 are a hundredfold greater than they were when I was there and was part of the present settlement. It is absolutely time that the channel had a new settlement that will enable it to change its modus operandi and become a fully fledged business.
Baroness Neville-Rolfe
I very much agree with my noble friend that this is a challenging and fast-changing environment. It is partly because of that that we are looking at options to secure Channel 4’s future. We will look at all the points made about benefits and the changing environment in which the media operate today.
Baroness Howe of Idlicote (CB)
My Lords, is the Minister aware that Channel 4’s overall share of young audiences is growing and that a higher proportion of young viewers watch “Channel 4 News” than any other broadcaster’s news? Does she accept that Channel 4 has an important role in providing public service content to young people, and that privatisation could threaten this very important part of its remit?
Baroness Neville-Rolfe
I very much agree with the noble Baroness, except perhaps her conclusion. “Channel 4 News”, which is regulated news provision under Ofcom rules, is important. It is great that the channel attracts younger audiences because that is what we need for the future of the media and our creative industries in Britain.
Lord Stevenson of Balmacara (Lab)
My Lords, I am sure the whole House will congratulate Charles Gurassa, the new chair of Channel 4, appointed by Ofcom on the advice of the Secretary of State. According to the Financial Times, Mr Gurassa has previously chaired three media and communications companies, all of which were sold during his tenure. Can the Minister confirm whether privatisation experience was specified in the job description?
Baroness Neville-Rolfe
As the noble Lord said, the appointment was made by Ofcom and approved by the Secretary of State. It is true that Charles Gurassa brings a wealth of experience. That includes business experience of the kind the noble Lord suggests, but also experience on the board of the National Trust and as chairman of a housing association. He is very broadly experienced, and it is a sound appointment. I very much look forward to his ideas for the future of Channel 4.
Lord Dobbs (Con)
My Lords, while my noble friend is rightly looking at all the options for the future of Channel 4, will she take into account the extraordinary public service work it does for the disabled? Following the exceptional and exhilarating coverage of the Paralympics, it has now nominated 2016 as its year of disability, in which it is substantially increasing the number of disabled actors in its shows, increasing the number of disabled people working in production companies and reserving a full 50% of its apprenticeships for the disabled. Is this not a significant example from public sector broadcasting that other broadcasters would do well shamelessly to follow?
Baroness Neville-Rolfe
I could not agree more with my noble friend. Of course, Channel 4 is particularly tasked with serving diverse audiences, which is an important part of its remit that we want to maintain.
Lord Christopher (Lab)
The noble Lord did not quite say what I hoped he would say but he made a very important point. I digress slightly from the issue by saying that many major companies in this country have pension funds that are greater, in terms of their deficiencies, than the value of the company. I declare an interest in Channel 4, having been a member of the authority that set it up in the first place. Will the noble Baroness confirm that the Government’s ambitions here have nothing to do with the Chancellor’s growing need for funds?
Baroness Neville-Rolfe
We are very clear that we are looking at all the options to secure a good future for Channel 4. The sort of considerations mentioned are not the issue.
Baroness Grender (LD)
My Lords, I am sure the Minister is familiar with the phrase, “If it ain’t broke, don’t fix it”. Will she please explain to the House what is broken about Channel 4 that needs fixing?
Baroness Neville-Rolfe
I think that would be a good Channel 4 programme. The environment is challenging and changing, as I have tried to explain and as my noble friend Lord Grade kindly said. That is a reason to look at the benefits and at options. As I have explained before, it is good to look at the future of organisations like this and to build on their success.
Sugar Tax
(8 years, 9 months ago)
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Lord Clinton-Davis
To ask Her Majesty’s Government whether, in the light of the World Health Organisation’s analysis in the Report of the Commission on Ending Childhood Obesity, they support the proposal of the National Health Service to introduce a sugar tax.
The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con)
My Lords, we are interested to see the results of the consultation on NHS England’s proposals for a sugar tax. Urgent action is needed to tackle obesity, particularly in children, which is why we will shortly set out a comprehensive new strategy to tackle the problem.
Lord Clinton-Davis (Lab)
The World Health Organization and the NHS, both distinguished bodies, have proclaimed that a sugar tax is desirable, necessary and should be introduced as soon as possible. In that light, do the Government have any plans to revise their previous position and introduce proposals for a sugar tax by no later than April of this year?
Lord Prior of Brampton
My Lords, the Government are considering a whole range of options for tackling the scourge of obesity in young people, which include portion control, reformulation, advertising and many others. One issue they are considering is a sugar tax, but we will announce the results of that strategy in the very near future.
Baroness Walmsley (LD)
My Lords, does the Minister agree that the key to weight management is correcting energy imbalance? Will the Government therefore consider forcing manufacturers of junk foods to put on their labels the number of hours of vigorous exercise that are equivalent to the contents of the packet?
Lord Prior of Brampton
My Lords, as the noble Baroness will know, there are plans for later this year to have compulsory labelling of sugar content on packaging. However, I am not aware that there are any plans to have pictures of well-known athletes on the packaging as well.
Lord Robathan (Con)
My Lords, does the Minister agree that the issue of obesity, which is indeed a scourge, is largely one of individual and, in the case of children, parental responsibility?
Lord Prior of Brampton
My noble friend is partly right. It is of course a matter of individual and parental responsibility, but I think we have an obligation in our country to make the right choice as easy as possible, and for too many people the wrong choice is far too easy to make.
Lord Patel (CB)
My Lords, I am sure the Minister is aware of a meta-analysis study carried out of nine studies which compared the pricing of sugar-sweetened beverages against the reduction of consumption of such drinks. It showed considerable price elasticity. Therefore, it is difficult to determine in an economy like ours the level of taxation that is required to achieve the right reduction. What plans do the Government have to find such evidence?
Lord Prior of Brampton
My Lords, it is interesting that in the plans put forward for consultation by Simon Stevens of NHS England they are looking at a levy of 20% on sweetened beverages. In Mexico, they brought in a sugar tax of 10%, which according to a study by the Lancet resulted in a reduction in consumption of some 12%. But it is very difficult to isolate the particular impact of tax when many other measures are being used at the same time.
Baroness Wheeler (Lab)
My Lords, Simon Stevens, the NHS chief executive, recently pointed out that obesity is the new smoking, and that Britain spends more on obesity-related healthcare than on the police, the fire service, prisons and the criminal justice service combined: £6 billion and rising. He has promised to raise the price of sugary drinks sold on NHS premises to staff, patients and visitors as another small step. Cannot the Government take steps to introduce this policy across all government departments and institutions?
Lord Prior of Brampton
My Lords, public procurement certainly has a role to play in tackling obesity. I am sure that that is one of the issues that will be addressed in the forthcoming strategy.
Lord Tugendhat (Con)
Does my noble friend agree that taxation, along with other measures, has played a significant role in diminishing the consumption of tobacco in this country over the years? Is it not therefore rather strange that the Government should be so reluctant to make more use of this weapon with regard to obesity?
Lord Prior of Brampton
My Lords, we have to be careful, or at least recognise, that if a sugar tax were imposed it would fall largely on those who are least able to afford it. There is of course a strong argument for a sugar tax, but there is also a case for making the argument against sugar consumption and making it easier for people not to consume sugar before we resort to taxation.
Baroness Jones of Moulsecoomb (GP)
My Lords, the Mayor of London, a well-respected member of the Conservative Party, has already put a sugar tax on sugary drinks at City Hall, so might the Government consider doing the same for the rest of Britain?
Lord Prior of Brampton
My Lords, what the Mayor of London has done at City Hall is similar to what Simon Stevens proposes to do within the NHS. The Government will watch both moves with great interest.
Lord McColl of Dulwich (Con)
My Lords, will the Minister give us an assurance that when the new policy comes out to tackle obesity we will not fall into the trap of saying that the answer is exercise? You have to run for miles and miles to take off a single pound of fat.
Lord Prior of Brampton
My Lords, exercise may be a part of our strategy to tackle obesity, but certainly not the major part.
Baroness Howells of St Davids (Lab)
My Lords, I am sure that the House is aware that sugar comes from many sources—sugar cane, sugar beet and in fruit. Which sugar would we tax?
Lord Prior of Brampton
The noble Baroness makes an interesting point. This is one of the difficulties with the proposal for a sugar tax. We must be very careful about which sugars we would tax. I cannot give the noble Baroness a proper answer save that where sugar taxes have been introduced, they apply to where sugar is added as part of the manufacturing process or where it is present in syrups and fruit juices, but not where it occurs in, for example, fruit or vegetables.
Trade Union Bill
(8 years, 9 months ago)
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Baroness Neville-Rolfe
That it be an instruction to the Committee of the whole House to which the Trade Union Bill has been committed that they consider the Bill in the following order:
Clauses 1 to 15, Schedules 1 and 2, Clauses 16 and 17, Schedule 3, Clauses 18 and 19, Schedule 4, Clauses 20 to 23, Title.
Immigration Bill
(8 years, 9 months ago)
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Lord Rosser
“( ) After subsection (3) insert—
“(3A) Before a decision is taken to certify a human rights claim, the Secretary of State must obtain a multi-agency best interests assessment in relation to any child whose human rights may be breached by the decision to certify.””
Lord Rosser (Lab)
My Lords, Clause 34 and this amendment deal with rights of appeal relating to persons who claim to have a right to remain in the United Kingdom on asylum or human rights grounds, but whose claim has been refused. Under the terms of the Bill, the Secretary of State will have the power to certify the claim for someone appealing on human rights grounds against an immigration decision so that they can only appeal from outside of the United Kingdom unless to do so would be in breach of their human rights.
This extends to all individuals the provisions that are already enforced for the deportation cases of former foreign national offenders, and will affect all those bringing human rights appeals under Article 8 of the European Convention on Human Rights, on the right to respect for private and family life. In order to make an application under Article 8, it is necessary to gather extensive evidence demonstrating the extent to which a child, for example, has developed a personal life and connections within the United Kingdom, including evidence from the carer, teachers, therapists, medical professionals, mentors and friends. This is surely made far harder where those connections are severed by distance and time, enforced by deportation and delays in the tribunal system.
It is also vital not only to understand and obtain evidence, but to present it appropriately, which requires legal assistance, yet legal aid is not available for Article 8 appeals save on an exceptional basis. For those without the requisite leave there will also be no legal aid to challenge the certification of the case prior to removal. As a result, out-of-country appeals, for which the deadlines to lodge an appeal are often extremely tight, will not be pursued or will be pursued only inadequately, given the costs of taking forward an appeal as a privately paying individual from overseas. It may be that that is the deliberate intention of this measure. Under the Immigration Act 2014, the Secretary of State was given power to certify deportation appeals so that a foreign national offender subject to a deportation order can be removed before their appeal or during the appeal process if the Secretary of State decides that to do so would not cause serious irreversible harm—not just serious harm, but serious irreversible harm. Available data show that in the year since the provision came into force for foreign national offenders, the number of appeals against deportation brought out of country has dropped by 87% compared with the number brought in country in the year to April 2013. The rate of success on appeal is also lower than before, decreasing from 26% in the year to April 2013 to just 13%. That suggests that many individuals are unable to appeal effectively a decision following removal from the UK, and that appeals which would have been successful are not being brought.
The available data indicate that “deport first, appeal later” has had an adverse impact on the ability of foreign national offenders—whom I appreciate may not be the most popular of individuals—to challenge a deportation decision, which suggests that this handicap will affect thousands more individuals if the provisions are extended, including many who have British or settled family members in the UK, such as partners and children. We have in this group a stand part Motion relating to Clause 34.
Amendment 227 is intended to ensure that before a decision is made to certify any claim for an out-of-country appeal, the best interests of any child affected must be considered in line with the terms of our amendment. As I have already said, Clause 34 is a wide extension of the existing powers relating to a limited class of individuals, and will now cover many people who are appealing their cases. It is not clear to what extent the Government have considered the impact, particularly on children, of separation in such circumstances. The Children’s Commissioner published a report last year about the impact of different rules, including the rules about the income requirement that has to be met before a spouse can join a family. It also addressed the adverse impact on a child of not having access to one parent for months or sometimes years. The Government’s figures indicate that around 40% of appeals succeed, which is a high success rate for appeals, and if a family is involved it could result in the distress referred to in the Children’s Commissioner’s report, because they cannot have any meaningful contact with one of their parents for a prolonged period. That is a real difficulty with the intention to extend the removal of individuals before an appeal can take place. Many appeals take a long time to deal with, and this Bill seems a bit thin in addressing that issue.
Lord Alton of Liverpool (CB)
My Lords, I am a signatory to Amendment 227, which has been so comprehensively and well introduced by the noble Lord, Lord Rosser, this afternoon. The noble Lord, Lord Bates, will recall that, prior to Second Reading, I chaired a meeting in your Lordships’ House organised by the Refugee Children’s Consortium and the Children’s Society. Some of the issues raised by the noble Lord today were raised then, and I know that they have been on the mind of the Minister.
The position of children was brought home to me by a report that appeared in the Daily Telegraph on Monday last, reiterated in the Observer on Sunday, which stated:
“At least 10,000 unaccompanied child refugees have disappeared in Europe, the EU’s criminal intelligence agency has said, as it warned many could be in the hands of traffickers.
Brian Donald, Europol’s chief of staff, said the children had vanished after arriving in Europe and registering with state authorities”.
He went on to say:
“It’s not unreasonable to say that we’re looking at 10,000-plus children”.
We should take the rights of children, which are at the heart of the amendment, very seriously within our own jurisdiction, as well as recognising that children are suffering outside our jurisdiction as a result of this massive crisis of migration.
The seriousness of this question and of out-of-country appeals was also brought home to me this morning when, with my noble friend Lord Hylton and as a result of the kindness of the noble Lord, Lord Bates, and Mr James Brokenshire in organising it for us, we visited Yarl’s Wood detention centre. I was deeply impressed by a lot of what we saw there. We were able to talk at random to people at Yarl’s Wood. I spoke to a lady who is 33 years of age. She has lived in this country for 26 years. She has three children, aged 17, 14 and 12. She was born in Somalia. Because she has some minor convictions, including things such as shoplifting in the past, this lady will be deported from this country to Mogadishu in Somalia. “Needless to say”, she said, “Every night, I sleep with my heart pounding”. I do not know, but will this woman have to launch an appeal from Mogadishu? Is this the sort of thing that could arise as a consequence of this legislation?
That is why the amendment that the noble Lord moved is so important. I have three very brief reasons why I support it. First, thousands of children, including British citizens, will be at risk of being separated from their parents or being removed from the UK before any judicial scrutiny of the Home Office’s decision and without adequate consideration of the best interests of the child. Secondly, given the consequences of inappropriate certification and the cost and obstacles to challenging certification—the only means of doing so being by judicial review—surely it is wrong to extend the existing provisions. Thirdly, Clause 34 could see more cases involving unaccompanied children or young people aged over 18 who claimed asylum alone as children, or who arrived as children and have lived in the UK for most of their lives, being certified for an out-of-country appeal and being removed to their countries of origin without a sufficient assessment of their best interests being undertaken.
The Children’s Society tells me that the provisions risk children being deprived of their parents or forced to leave the country that they grew up in before any judicial scrutiny of the Home Office’s decision and without adequate consideration of the best interests of the child. It says that this provision could see more cases involving unaccompanied children or young people aged over 18 who claimed asylum alone as children and/or who have lived here for many years and have built their lives in the UK being certified for an out-of-country appeal.
The noble Lord, Lord Rosser, was right to remind us of the implications, following the changes made under the Legal Aid, Sentencing and Punishment of Offenders Act, of the consequences of removing legal aid. I was struck by a report, again by the Children’s Society, that estimates that 2,490 children would be out of scope in a post-LASPO context. Clearly, without legal aid these children, including those in care, are unable to resolve their immigration issues, often resulting in a crisis for the child as they turn 18.
I have only one other point, which is a question to the Minister. Given the difficulties that children and families face making immigration applications because there is no legal aid for immigration claims, how will the Home Office be sure that it has all the information it needs to make a comprehensive, best-interests assessment before allowing an appeal only from outside of the United Kingdom? Before we agree the provisions of the clause or reject the amendment, we need an answer to that question.
Baroness Lister of Burtersett (Lab)
My Lords, I shall speak in support of opposing the question that Clause 34 stand part of the Bill and in support of Amendment 227, to which I added my name. In its two reports on the last Immigration Bill, the Joint Committee on Human Rights, of which I was then a member, raised serious concerns on human rights grounds about out-of-country appeals. It questioned reliance on judicial review to challenge certification. I note that the Select Committee on the Constitution suggested that we may wish to bear these concerns in mind. Indeed, I see that the current chair of the JCHR has written to the Home Secretary to raise concerns about how extension could result in families with meritorious Article 8 claims being subjected to extensive separation.
A wide range of human rights and immigration organisations have raised concerns on human rights and rule of law grounds, as access to justice is likely to be impeded, as we have already heard. On the rule of law question, ILFA notes that the Government point to the decision in Kiarie, R v the Secretary of State for the Home Department as support for its view that an out-of-country appeal is adequate. However, ILFA responds that a decision that the Secretary of State is entitled to proceed on the basis that an out-of-country appeal will meet the procedural requirements of Article 8 in the generality of criminal deportation cases, where she is balancing the individual’s right against the public interest of deporting someone with a criminal conviction whose presence, it is asserted, is not conducive to the public good, does not necessarily mean that it will meet those requirements in the wider generality of cases covered by Clause 34.
Concerned organisations, including Amnesty, also point out that the consequences of being removed from the UK may be profound and long-lasting, even if removal is for a short time only. Despite the equality statement’s assurance that no adverse impact on grounds of gender are anticipated, as I said at Second Reading:
“Rights of Women is worried about the implications for women migrants who have left abusive partners but who do not qualify to remain under the normal domestic violence rules because of their status, which is a common occurrence. Rights of Women fears that:
‘A mother seeking to remain in the UK as the parent of a child who is wrongfully refused by the Home Office faces the prospect of leaving her child in the UK with an abusive father or taking her child with her forcing them to leave behind a network of friends and family, abandoning their schools and communities and being forced to live in a country where in many instances they have no ties, no understanding of the language or culture’.
It points out that this upheaval could last for months or longer”.—[Official Report, 22/12/15; col. 2491.]
Potential family separation is a concern raised by a number of organisations. Will the Minister confirm that the family test was applied to this provision and, if not, why not? If the answer is yes, would he be willing to publish the conclusions reached, as, to its credit, the Home Office did, in the equality statement Reforming Support for Failed Asylum Seekers? In particular, what impact do the Government believe the policy will have on all family members’ ability to play a role in family life—one of the questions in the family test? The fact that the DWP guidance suggests that this question is aimed mainly at work/family life balance issues should not allow the Home Office to ignore this clause’s potentially much more profound impact on the ability to play a role in family life where families are separated as a consequence of it.
This brings me to Amendment 227. In its recent note on this clause, the Home Office acknowledges its duty under Section 55 of the Border Citizenship and Immigration Act 2009 to,
“have regard to the need to safeguard and promote the welfare of any child in the UK who will or may be affected by any immigration decision”.
It continues,
“where the decision maker is aware that there is a child who is affected by her decision, the decision maker will have regard to the best interests of that child as a primary consideration in deciding the human rights claim and also in deciding whether to certify the claim so that the appeal is heard after the person has left the UK”.
This is clearly meant to be reassuring but it does not reassure members of the Refugee Children’s Consortium, whose experience is that children’s best interests are not systematically and comprehensively assessed within immigration decision-making. Its briefing reminds us that the,
“UNHCR’s audit of the Home Office’s procedures highlights that, at present, there is no formal and systematic collection or recording of information that will be necessary … to a quality best interests consideration. This includes a lack of any mechanisms to obtain the views of the child”.
As the JCHR concluded in its final report of the last Parliament on the UK’s compliance with the UN Convention on the Rights of the Child:
“The Home Office seems still to prioritise the need to control immigration over the best interests of the child. This is unsatisfactory. The Government must ensure that the best interests of the child are paramount in immigration matters”.
In contrast, the Home Office note emphasises:
“While the best interests of the child are a primary consideration, they are not the only or an overriding consideration”.
Of course they are not the only consideration but established case law makes it clear that decision-makers must first understand what course of action would be in the best interests of the child before going on to take account of other considerations, including immigration control.
The Lord Bishop of Norwich
My Lords, I rise from these Benches to support Amendment 227 in the name of the noble Lord, Lord Rosser, and others.
The briefing note on Clause 34 to which the noble Baroness, Lady Lister, referred is a model of clarity. It was certainly very informative to me. It made clear, as the noble Baroness said, the statutory duty on the Secretary of State,
“to have regard to the need to safeguard and promote the welfare of any child in the UK who … may be affected by any immigration decision”—
that duty is not in doubt—and that,
“the best interests of the child are a primary consideration”.
While I understand that a primary consideration may not be the only one, I do not understand how a primary consideration can be set aside even if it is in some way qualified. If it is trumped by other factors, it does not seem to be a primary consideration. So there must be a risk that Clause 34 unamended could undermine the Secretary of State’s statutory duty.
I do not doubt the Minister’s and the Government’s best intentions here, but there is widespread concern among organisations such as the Children’s Society, as the noble Lord, Lord Alton, said, which deal with vulnerable children on a daily basis, not least about the Home Office’s capacity to cope with an unamended Clause 34. Without an adequate process to determine the child’s best interests,
“children could be returned to countries and circumstances where they may be at risk of serious harm including sexual abuse, neglect … violence, forced marriage”,
and so on. There is plenty of research to indicate the way in which separation from a parent when vulnerable causes long-term harm to a child’s developmental and emotional well-being. We should not be making such separations more commonplace.
The Home Office briefing argues that appeals from abroad have been effective and fair but, as we have heard, the cuts in legal aid for immigration cases are bound to undermine the capacity of families to put forward evidence, and the danger of not knowing the facts in an appeal must surely grow.
I have been talking generally about the impact of all this, but of course it will always be experienced in particular. An example given by the Children’s Society vividly illustrates the risks. A woman came to the UK 16 years ago to escape forced marriage. After an agent stole her documents, she lived under the radar and now has three children aged 11, seven and two. She received help from the Coram Children’s Legal Centre two years ago—pro bono—to make an application for leave to remain on Article 8 grounds. It was refused, largely because it was said that the family could return to the woman’s country of origin. She appealed and had to wait more than a year for the appeal to be heard, apparently because of a “shortage of judiciary”. The children speak only English; the older two are doing well at school and the eldest child, I understand, is now eligible to register as British.
Under the Bill’s provisions, this woman and her family could have been removed from the UK for more than a year while waiting for her appeal. The children would then have lived in a small African village with their estranged maternal grandmother, with whom they do not have a common language. Their schooling would have been interrupted, since there is no teaching in English locally. The youngest child would have been at risk of female genital mutilation in a place with limited health services. The removal of the eldest child from Britain, the only country he has ever known, would have made him ineligible to register as British since it would have happened just before his 10th birthday.
I want to believe that this family would have benefited from a Home Office caseworker’s laborious and careful sifting of all that evidence, resulting in a recommendation that the family should stay here. But how can this be guaranteed without some amendment of Clause 34? We need full and proper scrutiny before we deport such families or children. I hope that the Minister will offer us some comfort that these points have been heard.
Baroness Hamwee (LD)
My Lords, from these Benches we support Amendment 227 and the opposition to Clause 34 standing part of the Bill. I will not speak to Clause 35.
The right reverend Prelate has just mentioned legal work provided pro bono. I would like to take this opportunity of echoing a comment made by the noble Lord, Lord Faulks, from the Dispatch Box the other day when he repeated an Answer to a Question on legal aid. He said that there are a lot of legal firms which are not “ambulance chasers”. Those firms do terrific work in very difficult circumstances, and many of them are engaged in this sort of work.
The noble Baroness, Lady Lister, referred to comments on the last Bill from the Joint Committee on Human Rights. The committee, of which I am a member, has drawn the attention of the House again to particular difficulties which might be faced by appellants if a non-suspensive appeals regime is extended in circumstances in which judicial review is the only means of challenge. This could mean that families with meritorious Article 8 claims are subjected to extensive separation. I think that she also referred to the report of the Constitution Committee, which commented among other things—there were two or three pages on this—on the practical extent to which legal aid is perhaps not likely to be available in respect of judicial review challenges to certification decisions.
We use the term, “Deport first, appeal later”, but of course it is not quite that. It is “Be deported and appeal later”, or deport first and then be appealed against in a situation in which the appellant can apply only in a way that the Court of Appeal and the Solicitor-General have acknowledged is less advantageous—that is the term used in the court. The noble Lord, Lord Rosser, referred to this and it is certainly less advantageous for the appellant or potential appellant. There is difficulty in paying for legal representation and liaising from abroad with legal representatives—if you can find any who can help in the circumstances—difficulty in obtaining, submitting and giving evidence, and difficulty for the tribunal in assessing evidence.
The human rights memorandum published by the Home Office said that,
“there is no intention to apply this power to cases relying on Article 2 and 3 rights”,
and that,
“case law … makes plain that where there is an arguable Article 8 claim, there needs to be the effective possibility of challenging the removal decision”.
If Clause 34 has to remain, it would be good if it could somehow refer to what is in that ancillary documentation.
It struck me during discussions about this how difficult it is to certify a negative. It is almost as difficult as proving a positive. The Secretary of State has to certify a claim, as we have heard, if she considers, first, that removal is not unlawful and, secondly, that the appellant would not face a real risk of irreversible harm. I am sure that the Minister will, as the noble Lord said, refer to the recent Court of Appeal case which ruled that the regime was lawful. However, that was in the context of deportation, and the fact that it was lawful does not make it right.
There is no equality of arms and a perversity about this. As the Law Society has pointed out,
“the spouse of a national of any EEA”—
European Economic Area—
“member except the UK would retain a full in-country right of appeal … whereas the spouse of a UK national”—
not the spouse of any national of any other EEA member—
“would have to leave the country”.
Lord Ramsbotham (CB)
My Lords, I am proud to be British and was both proud and privileged to serve for nearly 41 years in the British Army. But I have to admit that I am not proud of much of the thrust of this Bill, which seems to be based on the assumption that every would-be immigrant or asylum seeker is illegal, and should be treated as such. That is akin to regarding everyone awarded a prison sentence as being a combination of mass murderer, armed robber, rapist, arsonist and paedophile, and treating them accordingly. The vast majority of would-be immigrants and asylum seekers are legal, which should be the default thrust of any regulatory legislation.
On 12 July 1910, the then Home Secretary, the 36 year-old Winston Churchill, winding up a debate on prison estimates, said that the way in which any country treated crime and criminals was the true test of its civilisation. He could well have added immigrants and asylum seekers. On Monday night, I heard the noble and learned Lord, Lord Keen of Elie, read from his brief an assertion that:
“The Government already have a raft of guidance and standards in place for ensuring that the regimes in detention centres operate at appropriate levels and in the interests of the welfare of detainees”.—[Official Report, 1/1/16; col.1696.]
In view of my experiences while inspecting them, I thought of Churchill and was completely flabbergasted. Has no one in the Home Office paid the slightest bit of attention to inspection report after inspection report, which point out that what the Minister described as,
“a raft of guidance and standards”,
is not subject to any meaningful oversight? For “appropriate”, he should have said “'wholly unsatisfactory”. So stunned was I that I totally failed to ask the Minister what the word appropriate meant, and who in the Home Office was responsible and accountable for allegedly ensuring the operation of such regimes, and whether their reports could be made available to noble Lords.
That was bad enough. But Clause 34 is so far outside the rule of law, let alone what decent people regard as civilised, that I am ashamed to think that anyone British was responsible for the concept, let alone its inclusion in the Bill. I know that the Court of Appeal has ruled that the imposition under the Immigration Act 2014 of out-of-country appeals in deportation cases is legal, but such appellants have committed serious crimes and received substantial prison sentences before being deported. How can any Home Office Minister seriously bring forward so draconian a proposal for those whose presence in the United Kingdom is entirely legal knowing that, currently, 61% of immigration appeals are either allowed, remitted for the Home Office to retake its decision or acknowledged by the Home Office to be flawed before a hearing? This means that 61% of those whom Ministers intend to force to make their appeal from abroad will have legal grounds for compensation, which is bound to add up to more than the cost of continuing to do the decent and civilised thing.
Included in the 61%, as the Solicitor-General acknowledged to the Committee and the other place, is an appeal success rate of 42%, which the latest figures from the Asylum Support Tribunal show to have risen to 44%. On what grounds do the Government think their proposal to force legal, as well as illegal, potential appellants to leave the United Kingdom before appealing against such appalling and proven faulty decision-taking is justified, appropriate and civilised?
Baroness Sheehan (LD)
My Lords, I speak in support of Amendment 227 and to oppose the proposition that Clause 34 stand part of the Bill. During my maiden speech I referred to time spent as a caseworker and head of office for my noble friend Lady Kramer when she was a Member in another place. I will recount the salient details of an immigration case that has stayed with me for more than a decade and which will illustrate several speeches made by noble Lords here.
One morning, I received a call from a concerned friend of a young man from Chad who had arrived here as an unaccompanied minor. He was anxious that his friend, having become 18 years of age, had been detained by immigration officers and was about to be deported. To cut a long story short, I was successful in locating the young man and succeeded in getting him off the plane—just. Now, this orphaned young man eventually succeeded in getting indefinite leave to remain, but not until he had spent several months having to report to Lunar House, often having to walk there from Kingston as he had little cash.
He also endured several months in Harmondsworth, where I had occasion to visit him. It was a prison in all but name. In all that time, he lived with the constant fear of deportation. No one should have to go through such mental anguish because of poor decision-making, which was the sole reason behind his ordeal. The Home Office got it wrong. Poor judgment on the part of the Home Office is still prevalent today. If this clause were to be passed as it stands, the injustice this boy suffered would be magnified inordinately.
Lord Horam (Con)
My Lords, I will make a brief contribution to this debate based on my own experience as the Member of Parliament for Orpington for 18 years. My experience may be the same as or different from that of other Members of Parliament in the other House, but I had so many immigration cases regularly that one out of my three caseworkers was solely devoted to dealing with them comprehensively. By the way, I think the people in these cases got a pretty good service. I am not sure that a lot of people could devote so much casework time to one particular aspect of what an MP has to face.
None the less, I want to address the question of Clause 34, rather than Amendment 227 in the name of the noble Lord, Lord Rosser. However, while I understand the argument put forcefully by the noble Lord, Lord Ramsbotham, about the guarantee you get from having something in the Bill, my experience in relation to the handling of children is that they were handled exceptionally carefully. Whenever there was a family involved, the Home Office took particular trouble to do it properly. I felt that it pursued its statutory obligations very fully.
On the wider issue of Clause 34, my own experience was that the really difficult problem in dealing with immigration cases, whether they were economic migrants or asylum seekers, was the length of time the whole appeals procedure took. As the noble Lord, Lord Ramsbotham, said, it is byzantine in its complexity. That is the truth of the matter. That very complexity and the number of possible appeals you could make—tier 1, tier 2 and then appeals beyond that—meant that cases went on not just for several months but for several years and individuals, whatever the eventual result of the case, were placed in a situation of great difficulty, resulting very often in mental problems and severe depression. These cases could go on for five, six or seven years before they were eventually resolved. This was the really big problem in dealing with immigrants.
Will this clause as it is improve that? Will it speed things up? We have evidence from the new procedures for dealing with visa applications, for example, on the hub and spoke principle brought in by the last Government, whereby visas were dealt with in a particular area—let us say Dubai for the whole of India, for example—and things were speeded up. Those measures were brought in so that visa applications could be dealt with more rapidly than hitherto. Great experience was developed in dealing with the paperwork, as opposed to seeing people face to face, which ordinary common sense would suggest is a better procedure than dealing just with paperwork—but none the less, that is what was developed in the Foreign and Commonwealth Office as a means of dealing with these things more expeditiously than would otherwise be the case. If my noble and learned friend can tell me what experience and evidence we have that Clause 34 would speed things up, I would be in favour of it, because the real problem was the length of time that appeals took in immigration cases.
The Earl of Sandwich (CB)
My Lords, in the interests of speeding things up, I shall be very brief in putting a question to the Minister about absconding. There is an overlap again between these groups of amendments. The relationship between support and appeals is very critical, and I do not believe that the Government have quite got it right; they are trying hard but not succeeding. We are discussing asylum seekers facing genuine obstacles to leaving the UK; the Government want to remove their right of appeal against decisions to withhold or discontinue support. Does not that relate to Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004? My understanding of the Section 9 pilot is that nearly one-third of the families disappeared to avoid being returned to their country of origin. The rate of absconding was 39% for those in the Section 9 pilot but only 21% in the comparable controlled group, who remained supported. Can the Minister comment on those figures, because they would appear to lend credence to the amendment?
Lord Green of Deddington (CB)
My Lords, perhaps it is time for a different point of view on this subject. I have no difficulty with Amendment 227, which of course concerns children, but I would like to speak in favour of Clause 34 in respect of cases that do not involve children. In such cases, the aim should be to confine the application of the clause to vexatious appeals, which would help to speed up the process, as the noble Lord, Lord Horam, pointed out.
Much of the discussion in this Committee has focused on the rights of applicants at various stages of the process. That is entirely understandable, but should not we also have regard to the need for a swift and effective asylum system? That would surely be in the interests of genuine asylum seekers, who make up about 50% of those who apply, and in the interests of maintaining public support for the whole system. This clause is germane in that context. It is in effect the extension of a procedure that has already been applied to foreign national offenders, as has been mentioned already. I entirely accept that the people whom we are talking about are not offenders and are not usually of the same character, but I believe that the extension of the removal of non-asylum cases should be seen in this wider context. It is essential that we should break the link for those who are in reality economic migrants between setting foot in the UK and remaining indefinitely.
At present, removals of immigration offenders—not foreign national offenders—are running at a very low level, of only about 5,000 a year. That has to be tackled if we are to break this link, which I think is increasingly understood as you look at southern Europe and so on. We have to find ways of giving protection to those who deserve it and of removing those who do not. This clause is a step in that direction.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I am obliged for the comments that have been made with regard to Clause 34 and Amendment 227. I shall begin by clarifying one point. Clause 34 applies in respect of migrants who have been found to have no lawful right to be in the United Kingdom. It does not apply to asylum cases.
Noble Lords will be aware that there is a long-established principle that persons can be removed or deported before an appeal is brought or heard. Indeed, in 2002, the previous Labour Government introduced powers to certify “clearly unfounded” claims so that the appellants could be removed from the United Kingdom prior to marking and pursuing an appeal. In 2014, the coalition Government used the Immigration Act to provide that arguable claims from foreign national offenders could be certified where deportation pending appeal would not cause serious irreversible harm or otherwise breach the person’s convention rights.
I emphasise that last point because of the observation made at the outset by the noble Lord, Lord Rosser, about it being a case of serious irreversible harm. That is but part of the test. The test under Clause 34, as under the existing provisions of the Immigration Act and as it was under the 2002 Act, is whether it would give rise to serious irreversible harm or a breach of the person’s convention rights. In this context, it is acknowledged, as it is acknowledged in respect of existing legislation, that this will not apply in cases that fall under Article 2 or Article 3 of the convention. It would generally apply in respect of cases that fall under Article 8 of the convention, which concerns the right to family life. That will give rise to questions about children, which I will come on to address in a moment.
The power introduced in 2014 has yielded significant results because more than 230 foreign national offenders have been deported before appeal in the first year since it came into force, and more than 1,200 European national offenders have been deported under equivalent regulations.
In our manifesto, the Government committed to extend this power to apply to all human rights claims. That is what Clause 34 does. We suggest that it is in the public interest that we maintain immigration control across the board. That means and includes prompt removal in cases where it is safe to do so. It is simply counterproductive to allow people whose human rights claims have been refused—again, it has to be underlined that these are people whose human rights claims have been refused or rejected—to build up their private or family life while they wait for their appeal to be determined.
This power will never apply, and does not apply in its existing form under Section 94 of the Immigration Act, in cases based on Article 2 or Article 3 of the convention. Where it does apply, each case will be assessed on its own facts. We will always ask whether there are reasons why an effective appeal could not be brought from outside the United Kingdom, and any reasons given will be fully considered when deciding whether to certify such a case.
I am conscious of the observations that have been made about whether an appeal from overseas can be a fair or effective remedy. Bringing an appeal from overseas does not mean it is less likely to succeed. Internal Home Office statistics for the five years to July 2015 show that some 38% of out-of-country entry clearance appeals succeeded.
A number of noble Lords have already mentioned a decision in the Court of Appeal, the unanimous judgment in October 2015 in the case of Kiarie & Byndloss, where it was held that Article 8 of the convention does not require an appeal to offer the “most advantageous procedure available”. Rather, an appeal must offer, and this is what is offered in Clause 34,
“a procedure that meets the essential requirements of effectiveness and fairness”.
The Court of Appeal was satisfied that out-of-country appeals met the essential requirements of effectiveness and fairness. In that context, the Court of Appeal confirmed that the Secretary of State for the Home Department was entitled to rely on the independent specialist judiciary of the Immigration Tribunal to ensure that an appeal from overseas was fair and that the process was in line with legal obligations that arose under the convention. We will also take account the impact of certification on family members, including children. It is important to note that it will always be possible to challenge decisions to certify by reference to judicial review.
I turn specifically to the impact on children and to Amendment 227, which would require that before a decision was taken to certify a claim under the power in this clause, the Secretary of State must obtain a multiagency best-interests assessment of any child whose human rights may be breached by the decision to certify. The amendment has been tabled to ensure that the best interests of any affected child are considered before a claim is certified so that an appeal must be exercised from overseas. One can quite understand what lies behind the desire for such an amendment but, however well intentioned, I suggest that it is unnecessary. It is unnecessary in law because Section 55 of the Borders, Citizenship and Immigration Act 2009, which the noble Baroness, Lady Hamwee, referred to, already imposes a clear statutory duty to consider the best interests of any child affected by a decision to certify. It is unnecessary in practice because whenever a person concerned makes the Secretary of State aware that a child may be affected by her decision, the best interests of that child are a primary consideration in deciding whether to certify. That approach is underpinned by published guidance. I note the observations of my noble friend Lord Horam that in his experience of such cases, which appears to be quite extensive, he noticed that the interests of the child were taken into consideration and regarded as a primary concern.
Today the Secretary of State takes careful and proportionate views regarding the interests of children. Whether it is necessary to engage external agencies with regard to the interests of the child in a particular case will depend on the facts of that case. For example, if the Secretary of State is made aware that a social services engagement exists with a child, she will make further inquiries of the social services. However, I suggest that it would be disproportionate to require extensive inquiries in every case by means of a multiagency assessment even where there was no indication that these were relevant. I am concerned that such unnecessary inquiries could be potentially intrusive and, in some instances, unwelcome to the families themselves. It is the family of the affected child that is best placed to identify the potential impact of certification in their particular circumstances. There are no restrictions on the evidence that a family can submit about the impact on a child, and that will always be fully considered by the qualified judiciary of the relevant tribunal.
Noble Lords asked whether in some cases we could see the separation of families. The answer is yes, in some cases. The effect on the family will always be considered on a case-by-case basis. The best interests of children in the United Kingdom are a primary consideration in any immigration decision, including the decision whether to certify under the new power. Where an individual has made a claim or seeks to appeal against a determination that they should not remain in the United Kingdom, the family dependent on that individual will of course be affected by that decision; therefore, there are two obvious options. One is that the children remain in the United Kingdom with a parent or carer, or that they depart with the parent or carer in question. Again, there is no question of children having to face serious, irreversible harm in such circumstances. The right reverend Prelate alluded to a case in which a young child might face the dangers of genital mutilation or other risk of sexual violence. In such a case, there would be no grounds for certification; therefore, there would be no basis for saying that the appeal should proceed out of country. Therefore these safeguards are already in place.
As I mentioned before, in some of his observations the noble Lord, Lord Rosser, alluded to serious, irreversible harm, which is but one part of the test. It is about serious, irreversible harm or a breach of someone’s rights under the European Convention on Human Rights—both aspects have to be addressed. As to the idea that they would be unable to appeal, there is clear evidence in the context of entry appeal processes that out-of-country appeals succeed and are effective. Indeed, in the context of an appeal from out of country before a specialist tribunal, it is necessary to bear in mind that the proportion of the evidence that will be material, particularly to a claim based on Article 8, is that relating to family connection within the United Kingdom. Those who can speak to that might be best qualified to give oral evidence rather than simply the appellant him or herself. In addition, there is of course scope for video evidence to be given, and by other means. Indeed, the specialist tribunal reserves the right to call for evidence in various forms if it considers that necessary to dispose of a particular appeal.
The noble Lord, Lord Rosser, also raised the question of compensation. We do not consider that in circumstances where an appeal was successful there would be any relevant legal basis for a claim of compensation. I notice that that point was also raised by the noble Lord, Lord Ramsbotham. The point was also made that under existing legislation, and in particular in the case of Kiarie and Byndloss, one is dealing with foreign national offenders. However, with great respect, it does not appear that there is any material distinction to be made between the prospects of appeal for a foreign national offender and other migrants who have no right to be within the United Kingdom. Surely they are all entitled to a fair and reasonable appeal process, which is what the Court of Appeal said they would have in the context of an out-of-country appeal. I acknowledge the point made by the noble Baroness, Lady Hamwee, that it would be better, easier and more attractive to have an in-country appeal, but that is not the relevant test. The Court of Appeal made that absolutely plain only a few months ago.
The noble Lord, Lord Alton, alluded to issues pertaining to the disappearance of children or minors coming into Europe, which is a tragic and dreadful state of affairs. One means of seeking to meet part of the problem is insistence upon the Dublin regulation and its imposition, which would involve fingerprints and biometrics being taken from these children upon their arrival in Europe. I am sure that more needs to be done in that respect to meet that problem.
The noble Lord also referred to his recent visit to one of the immigration centres, of which I am aware and which he mentioned that he intended to make when we spoke a few days ago upon earlier parts of the Bill. With regard to the Somali case he mentioned, I understand that the lady in question has quite a long record of criminal offending in the United Kingdom. Be that as it may, because she is a foreign national offender, she will not be subject to any out-of-country appeal under Clause 34; she is already subject to an out-of-country appeal procedure on the basis of existing legislation. Indeed, one questions whether she even has an appeal because, if she had no stateable basis of appeal, it would be rejected pursuant to Section 94. There are difficult cases and I hesitate to go into the details of one case at this stage, but I notice that, even in outline, it appears that this is the sort of case that falls under existing legislation.
Lord Alton of Liverpool
As the noble and learned Lord says, it would be invidious to build a whole argument on just one case, but I must add two points to what he has just said. First, the lady told me that she had several convictions and custodial sentences but none had been for longer than three months, which does not suggest that these were hugely serious offences. Secondly, this is about returning someone to Mogadishu in Somalia, with all the problems that country faces at present. Every day one hears reports of bombings and last week there were reports of bazookas being used on the streets. This is someone who has lived in the United Kingdom for 26 years and has had three children in this country in that time. That is why the case is relevant to this afternoon’s debate about the undesirability of breaking up family life in those circumstances.
Lord Keen of Elie
I quite understand the noble Lord’s point. That is why the Secretary of State retains discretion over certification—this is not an absolute. In circumstances where there is a risk of serious irreversible harm because of conditions in a particular country or part of a country, there will not be certification. In circumstances where that would amount to a breach of an individual’s human rights, there will not be certification. There is that safety net. It may not be as large as some noble Lords would wish but it is there for these very cases. It is not dissimilar from the instance cited by the right reverend Prelate of a child being exposed to the very real risk of sexual violence or mutilation. Again, this is why the provisions of Clause 34 are not absolute and compel the Home Secretary to take a reasoned decision that has regard to a primary issue being the interests of the child.
A further point was raised by the noble Lord about whether and when the Secretary of State for the Home Department could be sure that she had all the information. Of course, there can be no absolutes. However, in a situation involving children, individuals—parents and carers—readily come forward to explain that there are children. Where the existence of children is identified, that matter is explored, as it is bound to be, pursuant to Section 55 of the Act I cited earlier.
My experience of being involved in the Kiarie and Byndloss cases before the Court of Appeal involved my examining the decision letters issued by the Home Office. These are not glib, one-paragraph notices, but very detailed and considered letters that were sent out, giving not only a decision but a reasoned foundation for that decision. I cannot—and would never dare to—assert that they are invariably right in every respect, or that they are exhaustive in every way. On the face of it, however, it is the practice, subject to the guidance given, to send out truly reasoned decision letters in these circumstances, with particular reference to the interests of the child or children who may be affected.
I turn to the observations of the noble Baroness, Lady Lister, who also mentioned the Kiarie and Byndloss cases. She suggested that ILPA took a slightly different view of that decision from the one I have expressed. I would cleave, however, to the ratio of the unanimous decision of the Bench of the Court of Appeal: it is quite clear what it was saying with regard to this matter. It is not tied to the fact of criminality; it is tied to the facility for an out-of-country appeal and the ability for that appeal to be discharged in such a way that we can be satisfied that it is fair to the appellant. In other words, it may not be the most advantageous form of appeal but it does meet the essential requirements of effectiveness and fairness. That is not affected in one way or another by the pre-existing criminality, or alleged criminality, of the relevant appellant. To that extent, I am afraid I have to differ from her on that matter.
The noble Baroness mentioned the matter of a family test. However, a family test does not immediately arise in this context. I understand that the family test is designed to ensure that the Government’s policies overall encourage and support family life in the United Kingdom. We are dealing here with someone who is not entitled to be in the United Kingdom, and the policies that concern removing persons from the United Kingdom will therefore not always engage the family test.
Baroness Lister of Burtersett
My understanding of the family test is that it is to apply not to the generality but to any policy proposal in law that might impact on families. One of the big concerns raised by many organisations giving evidence and briefing us is that this will have very serious implications for families because of family separation. Therefore, it seems appropriate to apply the family test to this proposal.
Lord Keen of Elie
It is not immediately apparent to me that it is applicable to this proposal, but in this context one has to bear in mind that a primary consideration is the interests of the child or the children. To that extent, what might be regarded as an aspect of the family test is being applied. That is always a primary consideration. There are circumstances where it may be appropriate for the children to accompany a person out of the United Kingdom, and there may be no difficulty about that. There may be circumstances in which it is appropriate for the children to remain with a parent or carer within the United Kingdom. If there are circumstances where they will have no parent or carer within the United Kingdom and it would not be appropriate for them to leave the United Kingdom, again, there is the safety net of the certification, dealt with in Clause 34, as there is under the existing legislation. To that extent, it appears to me that the matter is dealt with.
The noble Baroness went on to mention again the interests of the child and to ask how many children would be affected by this. It is not possible at this stage to say. On the basis of unofficial and informal figures, I understand that no child has been certified for an out-of-country appeal under existing legislation. Of course, the present amended legislation has been in force for only a short time, since 2015, so it is difficult to discern figures from that.
The right reverend Prelate the Bishop of Norwich referred to particular cases. I hope that I have addressed his concerns. If there was such a serious risk to a child as he alluded to, it appears to me that, with respect, the safety net in Clause 34 would apply.
The noble Baroness, Lady Hamwee, referred to difficulties in producing evidence in the context of an out-of-country appeal. I do not accept that it would be materially more difficult to produce evidence in these circumstances. We are talking about an appeal to a specialist tribunal that is well equipped to decide the form of evidence it requires in a particular case. As I mentioned, when dealing with a case that is going to arise largely on the basis of Article 8 of the convention, if there is to be a convention appeal, one is concerned with family links with the United Kingdom, which are going to be spoken to by persons within the United Kingdom. In so far as there is any factual issue to be addressed by an appellant, it can be done in writing, by video link or even by telephone. That may appear less satisfactory than taking oral evidence but, as the noble Baroness may be aware, it is far from exceptional for appellants not to give evidence in such appeals before a tribunal. It is certainly far from exceptional for appellants not to give oral evidence in such proceedings.
Baroness Hamwee
My Lords, I am grateful for that. I did acknowledge the Court of Appeal decision, but I said that in our view it did not make the situation right. However, do the Home Office or the Tribunal Service give information or even assistance to appellants who are outside the country—as a minimum, information on how they can set about dealing with an appeal from outside the country?
While I am on my feet, the Minister credited me with a comment about the best interests of the child which I think came from the noble Baroness, Lady Lister. I have an amendment on that later so it is understandable that he might have thought that I was going to say what I will be saying.
Lord Keen of Elie
I am obliged to the noble Baroness. Without the benefit of second sight, I cannot say whether I thought she was going to say what she had not said but was planning to say later—but I acknowledge that the original comment came from the noble Baroness, Lady Lister.
Baroness Knight of Collingtree (Con)
I would like to ask my noble friend about a situation that was made clear to us in a fairly recent debate on the question of putting children together into families. There was quite a big family with four children. They were all over the place and the little girl—the tiniest one—was promised that she would have a brother. Her brother was to be put with her in an adoption situation and it was all going to be wonderful. This child believed what she was told. But it was explained to us during the course of the debate on the Bill that years went by and the child had hung all her hopes for the future on the thought that the authorities would place her real brother with her, as they had promised. Nothing was done and it wrecked that child’s belief in what older people told her. But no real comment was ever brought through that made that child’s promise be delivered. Does that still happen? Has it stopped?
Lord Keen of Elie
I acknowledge the observation made, but I cannot comment on the particulars of such a case. What I can say is perhaps only related and not directly on point. Part of the thrust of the next part of the Bill is to address the time taken for appeals to be processed. That matter will be addressed by my noble friend Lord Bates in due course. In general, it is hoped that appeal processes in simple cases will not exceed six months and even in complex cases will not exceed 12 months, so that there will not be the degree of separation that has been alluded to, even in cases where one child perhaps goes out of the United Kingdom and another remains in the United Kingdom. I rather suspect that that would be an exceptional case—albeit it is amazing when you read the facts of some of these cases just how diverse the family arrangements can be.
Baroness Hamwee
Is the noble and learned Lord able to answer the question I asked?
Lord Keen of Elie
The noble Baroness asked about communication of out-of-country appeals procedures. I do not have that information immediately to hand. I am aware of the tribunal regulations. Perhaps I could undertake to write to her to outline what the guidance is.
My research has come to a conclusion already. There is published guidance on the GOV.UK website on how to appeal from overseas, so it is there. I knew that it existed but I was not aware that it was actually on the website. Whether further steps are taken with regard to this matter, I cannot say. If in fact there is something over and above the website, I will write to advise the noble Baroness.
Lord Rosser
First, I thank the Minister for that lengthy and comprehensive reply, which I am sure will have been appreciated by all those who have spoken and raised points in this debate. That does not necessarily mean that they have agreed with the Minister, but I am sure they have appreciated the extent to which he has sought to reply to the points that have been made. I also express my appreciation to everybody who has spoken in the debate.
In the light of the noble and learned Lord’s last comment that he would reflect further on whether something not too dissimilar to what was suggested in our amendment might appear on the face of the Bill, which I think is what he said, frankly I am tempted not to make all the points that I was going to make in response. I hope that that will not be taken as meaning that he has left me completely speechless with his reply; I am doing it in the light of what he said at the end of his contribution. I beg leave to withdraw the amendment.
Lord Rosser
We have the clause stand part debate on Clause 37 and an amendment in this group.
On 4 August, the Government initiated a consultation on proposals for changes in the support available to refused asylum seekers. The consultation ended just over a month later on 9 September and the Immigration Bill was published six days after the consultation ended. One can only comment that that was remarkably quickly after the end of a consultation exercise on part of the provisions of the Immigration Bill.
At present, there are two forms of support for asylum seekers under the Immigration and Asylum Act 1999—they are usually referred to as Section 95 support and Section 4 support. While waiting for a decision on the application, asylum seekers are not eligible for mainstream benefits. If they would otherwise be destitute, they can apply to the Government for accommodation or financial support or both under Section 95 of the 1999 Act. Since August of last year, the financial support available has been £36.95 per week per adult or child. That is, by the way, one-eighth of the daily allowance applicable in this place, which I believe one noble Lord recently declared was “inadequate”.
Asylum seekers whose application for asylum is unsuccessful and whose appeal rights are exhausted cease to be eligible for Section 95 support, which is terminated 21 days after the claim has finally been determined. Under some circumstances, destitute refused asylum seekers can apply for Section 4 support under the 1999 Act. If granted, that is not paid in cash but a payment card is provided, credited with £35.39 per person per week to be used in specified retail outlets to buy food and essential toiletries.
Under the 1999 Act, refused asylum-seeking families with children under the age of 18 who were part of the family before the final decision was made on the asylum application can continue to receive Section 95 support until the youngest child turns 18 or the family leaves the United Kingdom.
Under the Bill, that entitlement for refused asylum-seeking families is taken away. As a result, support under Section 95 for families with children will be stopped once they have been refused and had any appeal rejected, following, in the light of the recent information we had from the Minister, what will now be a 90-day grace period, which I acknowledge is longer than the Government were originally proposing.
After the 90 days, these families may then be eligible for a new form of support under new Section 95A, which replaces Section 4 support. However, to qualify for support under new Section 95A, individuals and families who have had their asylum application refused will need to demonstrate that they are destitute and face a genuine obstacle to leaving the United Kingdom. The details of how this will work will be set out in regulations, but the Government have already stated that the criteria for provision under new Section 95A will be very narrowly drawn and more narrowly defined than under Section 4.
Will the Minister say whether the Section 95 support will be withdrawn after 90 days for families who are fully engaging with the authorities over their departure, or will it continue in these circumstances? If so, who would make that decision for it to continue? Would there be a right of appeal against a negative decision in that regard? I ask that in the context that, as I understand it, the Government’s review of their family return process showed that, in 59% of cases, it took longer than three months to complete the process of leaving. Presumably, the evidence suggests that there will be many cases where support under Section 95 will cease before the family whose asylum claim has failed has been able to make all the necessary arrangements to return home.
The Government have also said that, under the new arrangements, it will not be possible to apply for new Section 95A support outside the prescribed grace period of 90 days under Section 95 support, except where the regulations permit this for reasons outside the person’s control. New Section 95A claims will require the applicant to show that there is a genuine obstacle to leaving the UK. For pregnant women, that is defined as being within six weeks of the due date. What will happen in a claim by a pregnant woman during the 90-day grace period for new Section 95A support who, at the time of the application, is not within the qualifying six weeks of the due date? Will they qualify for Section 95 support?
This clause and its associated schedule are clearly intended to deliver the objectives so bluntly set out in the Explanatory Notes of making it hard for those without the appropriate immigration status to live in this country. In this instance, it is the Government’s stated policy intention to encourage the departure—to put it euphemistically—from the UK of refused asylum seekers.
Will the Minister, when he responds, place on record the Government’s estimate of the reduction in the number of people in this country with no lawful basis to remain that will result from this intended change in the support arrangements, and the basis on which that estimate was determined? I ask that because the Government will be aware that there is far from universal acceptance of their apparent premise that cutting off support after 90 days to asylum-seeking families whose appeal rights have been exhausted will result in their leaving the United Kingdom, because where parents think that their children’s lives will be at risk if they return home they are rather more likely to consider that becoming destitute in the UK is still the better option available to them.
In 2005, the then Labour Government ran a pilot scheme in which families whose appeal rights were exhausted had all their support removed if they failed to take reasonable steps to leave the UK. The Government’s own evaluation of the scheme in respect of Section 9 of the 2004 asylum and immigration Act, which involved 116 families, concluded first that the rate of absconding was 39% for those in the Section 9 pilot, but just 21% in the comparable control group who remained supported. Secondly, it concluded that only one family in the pilot was successfully removed, compared with nine successful removals in the control group. There was no significant increase in the number of voluntary returns of unsuccessful asylum-seeking families. Finally, the earlier evaluation concluded that Section 9 should not be used on a blanket basis.
The Lord Bishop of Norwich
My Lords, I support Amendment 230 in this group. My colleague, the right reverend Prelate the Bishop of Southwark, spoke at Second Reading of his concern about the architecture of Clause 37 and Schedule 8. I share his belief that the reduced weekly support of £36.95 per person, to which the noble Lord, Lord Rosser, referred, for an asylum seeker under the current system is inadequate. Where that financial provision is refused, it is subject to a right of appeal. I note that in nearly two-thirds of such appeal cases, the appeal is successful or the refusal is withdrawn.
There seems to be an inexorable but ultimately self-defeating utilitarian logic in government policy in this area. The argument seems to be that when an asylum seeker’s application is refused and an appeal is unsuccessful, there is no further need for or right to any financial support. It seems to be assumed that this will be an incentive in itself to leave the United Kingdom. I fully understand the Government’s desire to maintain the integrity of immigration control by ensuring removal, whether voluntary or not, but I wonder how effective this policy will be.
As we have heard, the criteria under the new provisions for any financial support in such situations are destitution and genuine obstacles to leaving the UK, and there is then no right of appeal. What constitutes,
“a genuine obstacle to leaving the United Kingdom”,
is not defined, although it could appear in the Bill rather than be left to regulation. In another place, the Minister expressed hope that greater engagement with failed claimants would lead to many more voluntary departures. He said that under existing legislation such engagement led to 377 people leaving between April and October last year.
The Refugee Council notes that this engagement often went on over months and involved many meetings with families and case conferences. Such experience suggests that a significant period of grace, with some financial support, in such cases is both necessary and constructive. I may have misunderstood but the Bill’s existing provision seems inimical to developing this practice and may well undermine its very aim. Scrutiny of the existing system—one which, after all, involves rather modest financial maintenance—shows that on appeal there are a significant number of corrected decisions. That is why, if the provisions of Clause 37 and Schedule 8 are conceded, they ought to be subject to appeal. I hope the Minister may be sympathetic.
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I have added our names to the objections to Clause 37 and Schedule 8 standing part, and we have a number of specific amendments in this group.
I will deal with what I have noted as minor amendments —although one of them is not that minor—before coming to the more general point. My Amendment 229ZD deals with “further qualifying submissions”. The provision requires them to fall to be considered by the Secretary of State under the Immigration Rules, which I saw, when I was looking for various things on the GOV.UK website, are described as legislation. But, as noble Lords will be very well aware, they are not subject to parliamentary scrutiny. The purpose of the amendment is to ask about the process for scrutiny, if any, of current and future amended rules and the application of these to the schedule.
The provision that is the subject of my probing Amendment 229ZE merely changes “claim for asylum” to “protection claim”. My amendment would omit “as may be prescribed”, which applied to the claim for asylum under the previous legislation. I found that slightly odd in the context, but I wonder whether there has been any experience of a prescription claim under the legislation. Perhaps the Minister can flesh that out a bit.
The last of these three specific amendments, Amendment 230ZB, is much more material. Schedule 8 provides for support not to be in the form of cash. The experience of the Azure card is not a happy one. I can just about see that vouchers for certain services might be defensible. Vouchers for goods require the recipient, in effect, to shop in places which are not convenient, do not provide what may be sought within a particular culture and are not the cheapest. In particular, they cannot be used in a market. They may mean travelling to a place where vouchers can be used but vouchers are not available for travel. Getting to essential appointments, such as medical and legal appointments, becomes a huge problem. Children are affected not only through hunger but because the card does not cover things such as school trips or, as I say, travel fares. We have had evidence that the payment system affects people’s mental health—I am sure that this is not news at all to the Minister. It affects their ability to maintain relationships and to participate in social, cultural and religious life. Not every cashier in shops where the card can be used is properly trained, so embarrassment can be caused. The card can generally be a source of stigma because it singles out the recipients.
On Clause 37 and Schedule 8, reference has been made to the current Section 95 regulations. When I was preparing for my Motion to Annul those regulations in October, I was shocked to read how minimal was the provision for essential living needs. One of my noble friends commented to me afterwards that it was obvious from the expressions on several faces opposite, where a number of the Minister’s colleagues were sitting, that they were shocked by what they had heard. The Official Report does not record facial expressions but on that occasion I felt, as I have sometimes felt on others, that the Minister may not be a particularly good poker player.
I was very critical on that occasion of the methodology used to assess essential living needs, which in the case of a child could hardly be called an assessment. It does not include nappies, formula milk and other items specifically for babies. There was a very blunt tool for applying the approach of economies of scale. By just using that rough and ready term, without any disaggregation or analysis, the adult rate was applied. Of course I did not win when I then put the matter to the vote—the regulations have been in force since August—but one outcome was some discussion both privately with the Minister and during the debate about consultation with the NGOs and others who work in the field on periodic reviews of the support rates. The Minister said:
“We would certainly welcome evidence and data”.—[Official Report, 27/10/15; col. 1160.]
That is not of course in the context of the new Section 95A, but it is relevant, and I hope that the Minister can give the Committee an assurance about the process of arriving at the rates.
Baroness Lister of Burtersett
My Lords, I oppose the Questions that Clause 37 and Schedule 8 stand part of the Bill and support Amendment 230. I note in passing my support for Amendment 230ZB—I was going to say that the history of vouchers and the Azure card is not a happy one, but that is exactly the phrase used by the noble Baroness, Lady Hamwee. I am a bit worried after the confusion about who said what on the previous group that we are somehow seen as interchangeable; I hope not—from both sides, I am sure.
At Second Reading, I warned of the exploitation that could result from Clause 37 and Schedule 8. To show destitution will not now be sufficient on its own to qualify for assistance. It is clear from past research conducted by organisations such as the Children’s Society and the Centre for Migration Policy Research for Oxfam that destitution can all too easily lead to exploitation—notably of women and children—of various kinds. In particular, it can lead to economic exploitation, which the Bill is supposed to reduce, as destitute asylum seekers are pushed into the shadow economy, sometimes earning as little as £1 an hour in deplorable conditions, and sexual exploitation. This can involve both commercial sex work and transactional sex in return for shelter and basic subsistence.
Children’s Society practitioners report that they see many such ambiguous and all-too-often abusive transactional relationships. As one practitioner observed:
“These women are absolutely at the mercy of other people because they are powerless and have nowhere else to go”.
Previous Children’s Society research revealed how destitute children and young people, too, are vulnerable to abuse and sexual exploitation.
Prospective destitution is in effect being used to incentivise voluntary return—the language of incentives is the Government’s, not mine. The thinking that it betrays was challenged by a Centre for Social Justice working group on asylum a few years ago, and by evidence from many organisations working with asylum seekers—at Second Reading, I cited that from Women for Refugee Women. Not one of 45 women it spoke to in a 2012 study felt able to contemplate return, despite facing destitution. That still held true when they spoke to 30 of those women a year later. It concluded that parents who fear for their own and their children’s safety will not be swayed to return to their home countries by the threat of being made destitute or actual destitution.
Back in 2007, the Joint Committee on Human Rights made it clear, with reference to piloting of the Section 9 scheme, that,
“using both the threats and the actuality of destitution and family separation is incompatible with the principles of common humanity and with international human rights law and … it has no place in a humane society”.
Serious human rights concerns about the proposals in the Bill have been raised by the Equality and Human Rights Commission, with reference to the ECHR and the UNCRC, and the Northern Ireland Human Rights Commission, which has deemed them retrogressive concerning rights contained in the International Covenant on Economic, Social and Cultural Rights.
The only real concession in response to the consultation, other than to local authorities, has been to extend the grace period for families to 90 days, as we have heard. This extension is very welcome. However, there seems to be a sting in the tail, as it now appears that an application for Section 95A assistance will normally be possible only during the grace period while already claiming Section 95 support, and that 90 days will represent an absolute cut-off point. This has caused considerable concern among organisations working with asylum seekers.
Two particular questions arise. I apologise if I am repeating questions posed by my noble friend Lord Rosser, but I am not absolutely sure that they are the same questions because I did not quite take it all in. I do not think that there is any harm, because it is important that these questions are addressed. I should be grateful if the Minister would do so when he replies. First, will he provide an assurance that the regulations that permit applications outside the grace period will include changes of circumstance such as when asylum seekers who were previously supported by friends or family become destitute or encounter a barrier to return after the grace period is over? If the 90 days prove to be too short for families to complete the family returns process—we heard already that the Home Office’s own evaluation of the process shows that three out of five families take longer than three months—what discretion will there be for support to be extended for families still going through the process?
Welcome as the Home Office’s recent note was in providing more information, it is deeply unsatisfactory that it does not contain the level of detail about the regulations that we need to scrutinise these provisions properly. Nor does it indicate the level of support that new Section 95A will provide. Will it be the same as that provided by Section 95? Given the savage cuts to support for children that we debated last year and to which the noble Baroness, Lady Hamwee, already referred, surely there can hardly be less than that level of support. What is the Government’s response to the Delegated Powers Committee’s recommendation that the regulation should be subject to affirmative not negative procedures?
On Amendment 230, it is simply not credible to maintain, as Ministers do, that an appeal is not necessary because whether or not there is a genuine obstacle to leaving is a straightforward matter of fact. As Still Human Still Here legitimately asks, if such decisions are really so straightforward, how come the Home Office so often gets them wrong? As it points out, the reality is that these types of support decisions are complex, with caseworkers having to assess both whether someone is destitute and faces a genuine obstacle to leaving the UK. During 2014-15, it represented 168 asylum seekers deemed not to be destitute and in 70% of cases the Home Office decision was overturned. A similar proportion of cases was overturned or remitted in the 89 cases it represented where the appeal was on grounds of fitness to travel or reasonable steps being taken to return.
Such statistics demonstrate that facts are not just facts but have to be interpreted and evaluated, and a judgment made. All too often, it would appear that the Home Office is making an erroneous judgment. Yet in future there will be no tribunals, either to ensure justice or to provide some kind of check on Home Office decision-making, which is likely to become even worse as a result. The Home Office contends that appeals win only because of the late submission of evidence, but that is not supported by the analysis conducted by ASAP. Has the Minister seen that analysis and would he care to comment on its findings?
Important human rights and rule of law issues are at stake here. It is not good enough to say that judicial review remains as it would be very difficult to use JR in such cases. The tribunal system provides a more practical, efficient and fair means of enabling vulnerable people in pretty desperate straits to challenge decisions they believe to be wrong. The stakes are so much higher now than even under the present system. It would be a grave injustice if we were to allow the decision to remove basic appeal rights to stand.
The Earl of Sandwich
My Lords, it is a pleasure to follow the noble Baroness, who spoke with such sincerity. I support these amendments in the name of the noble Lord, Lord Rosser, and others. I am grateful to the noble Lord for mentioning absconding again. I hope we will get an early answer on that.
Amendment 230 would include a right of appeal against the decision not to provide support. There is a small army of campaigners on this matter out there, some of them in the House of Commons where this was a major issue in the last debate on the Bill. One of the campaigners was called Iain Duncan Smith. The Minister may already know that in a 2008 report, Mr Duncan Smith said that the then Labour Government were using forced destitution as a means of encouraging people to leave voluntarily. He said that it was a “failed policy”; only one in five left voluntarily. The same Home Office is again aiming to squeeze Section 95 and Section 95(9A) on support and to narrow down the eligibility of families of so-called refused asylum seekers, although I have never liked that term. That may even prevent, as the noble Baroness, Lady Hamwee, said, local authorities supporting children and families under Section 17 of the Children Act 1989. We were debating this in October, as the noble Baroness said, under the Motion to annul, and arguing whether £5 was enough for a person to live on. If you take into consideration food and clothing—shoes, for example—it is not. There are some sad examples of mothers and children facing destitution, and worse. These are taken from serious case reviews, which I shall not relate now, but they convinced me that the Government have to think again.
Lord Roberts of Llandudno (LD)
My Lords, for many years we have discussed the Azure card, and it is good to return to it—and also to say that we had one or two victories in our most recent discussions, whereby instead of the value of the card being scrapped altogether there is a rollover now, so people can save a little perhaps from £35 to go over to the next week.
We are dealing here with vulnerable people. People are never illegal; they are people just like every one of us in this Chamber, as I keep on repeating. We have the opportunity to either undermine the dignity of people or to restore it. We should remember that it is as we restore that dignity that we build a legacy for the future that is far more worth while than trying to diminish the rights of people. Imagine that you are in a queue at a checkout in a shop or a store and you are wondering whether, with £35—£5 a day—you have enough to pay for the goods you have in the basket or trolley. Imagine that you get to the cashier and the cashier says, “Sorry, you can’t have that”, because you have gone over the £35. By introducing cash benefits, we could at least give people a little bit of dignity in that queue, so that they are not embarrassed. They are people—and often people of great dignity and worth.
Today I read in a paper that I do not often read that there is an easyJet shop opening in north London where for at least a month most items are 25p each. I do not know whether other noble Lords have read about this. That is great—so the person with the Azure card goes there and finds out that they do not use it there. It is used only in 14 or 15 stores. And how would they get to north London, when you cannot use it to buy a bus ticket or a ticket on the underground? If they had cash, they could do that. I am reading between the lines in transitional instructions—not in what the Minister said in the other place—that the Azure card was to stay. We have another opportunity here to bring about a bit of dignity for those people. You have children with you—and children sometimes might want a piece of toffee or chocolate, but you cannot do it, because you do not have the money. And is that included in the goods that you can buy with the Azure card? Probably it is.
We have created second-class, third-class or fourth-class citizens existing on £5 a day. I spend more on that in the cafeteria and in the restaurants here, and I know that some people pay as much as that for a coffee in some places in our Parliament. But we have the opportunity, and we are moving in that direction whereby the Azure card is yesterday’s news and cash benefits in hand are today’s news. Then we have to restore the right of appeal. There is a lot more to be done, but I am sure that the Minister will give us some comforting words at the end of this debate.
Lord Alton of Liverpool
My Lords, the noble Lord, Lord Roberts, has reminded us that this clause is about forced destitution. Is it right that in a country such as this, which is one of the wealthiest in the world and upholds humane and civilised standards of decency, we should leave people without adequate resources believing that it is a way to somehow force them to leave the country? At Second Reading, I rehearsed some of the arguments. I mentioned Asylum Link Merseyside, of which I am a patron, and the work it has done that demonstrates that that simply does not work, because when parents, rightly or wrongly, think that their children’s lives will be at risk if they return home, they will generally consider that becoming destitute in the United Kingdom is the better option available to them. That is why the noble Lord, Lord Rosser, is right to ask whether we wish this clause to remain part of the Bill and to argue why it should not stand part.
Asylum Link Merseyside works with asylum seekers, but as my noble friend Lord Sandwich and others have reminded the Committee, the Home Office commissioned its own report into these things—I think that the Home Office study covered a cohort of about 116 families. It found that the rate of absconding was 39% for those in the Section 9 pilot but only 21% in the comparable control group who remained supported. Only one family in the pilot was successfully removed, compared to nine successful removals in the control group, and,
“there was no significant increase in the number of voluntary returns … of unsuccessful asylum seeking families”.
That is why the Home Office concluded that Section 9 should not be used on a blanket basis. Removing Clause 37 would remove something that we know does not work, that is likely to be more costly, that is an inefficient support system and that will clearly, as others have said, put the welfare of children at risk.
The Bill will establish a highly bureaucratic system which will be burdensome to administer. Local authorities will remain the body to which destitute refused asylum seekers who have fallen through the safety net turn for support. They will have to conduct eligibility tests and assessments to see whether support is required in order to safeguard the welfare of a particular child. In these cash-strapped days, do we really believe that local authorities will be in a position to do that? The complexity of these new arrangements means that families with children are likely to fall through the gaps in the system and find themselves destitute, at least temporarily. The consequences of refused asylum seekers being left without support, even for short periods of time, is extremely serious as it causes illness and complicates existing health problems.
Some noble Lords, including the noble Baronesses, Lady Lister and Lady Hamwee, were able to attend a briefing a few weeks ago which was given by, among others, Still Human Still Here. I asked then for some illustrations of how this could work out in practice. I shall give two brief examples. Still Human Still Here mentioned a 2012 serious case review which involved an asylum seeker who developed a brain infection and could not look after her child. The boy starved to death and the mother died two days later. The family became destitute during the transition from asylum to mainstream support, leaving the family,
“dependent upon ad hoc payments by local agencies”.
The review expressed,
“concern about the adverse consequences on vulnerable children and the resulting additional pressure on local professional agencies”,
when support was cut off.
In 2011 a serious case review involving child Z noted that the circumstances of the child’s mother, a refused asylum seeker facing removal with a life-threatening illness and caring for a young child with few support networks,
“would challenge any individual's coping strategies”.
It stressed that the,
“need for high levels of support for someone with such vulnerabilities was clear”,
and the absence of this support was a major factor leading to the woman’s death and her child needing to be looked after.
Both these cases highlight the consequences of leaving vulnerable families without support, and I therefore have some questions for the Minister. The Government’s proposals leave the detail of the new support provisions, including the level of support, to regulations. First, will the Government provide an assurance that the level and type of support provided under Section 95A or new paragraphs 10A and 10B of Schedule 3 to the 2002 Act will meet the essential living needs of asylum seekers and that the housing provided will be appropriate for vulnerable children and their families?
Secondly, the Government have stated that it will not be possible to apply for Section 95A support after the prescribed grace period, which is 21 days for single adults and 90 days for families with children. Will the Government provide an assurance that the regulations which permit applications outside the grace period will include changes of circumstance, such as when asylum seekers who were previously supported by friends or family become destitute or when asylum seekers encounter a barrier to return after the grace period is over?
Thirdly, will the Government consider amending language which prevents local authorities providing support under Section 17 of the Children Act 1989 where,
“there are reasonable grounds for believing that support will be provided”,
as it is likely to leave families destitute for considerable periods of time while responsibility is determined?
Fourthly, and penultimately, while local authorities will be able to provide accommodation and subsistence support when they are satisfied that it is needed to safeguard and promote the welfare of a child, regulations will be laid specifying factors which the local authority must or must not take into account in making this decision. What factors do the Government intend to specify must or must not be taken into account?
Lastly, will the Government provide an assurance that the best interests of the child, which were referred to by the Minister’s noble and learned friend in earlier exchanges, shall be a primary consideration in the operation of any actions concerning children in the Bill —a point that I think will be reflected on in response to what the noble Lord, Lord Rosser, said earlier—and that the new mechanisms of support set up in the Bill will ensure that every child has a right to,
“a standard of living adequate for the child’s physical, mental, spiritual, moral and social development”?
Those words are required by the Convention on the Rights of the Child. I hope the Government will consider bringing forward their own amendment at least to put that in the Bill.
I realise that the Minister may not be able to answer those five questions now, although I hope the Box will be able to provide him with some response. However, at least between now and Report, I hope that he will give reassurance to all noble Lords who have participated in today’s debate supporting the excellent points that the noble Lord, Lord Rosser, made in moving that this clause should not stand part of the Bill.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, as we now embark on Part 5, which deals with levels of support and the treatment of migrants, it might be helpful if I put some general points on the record. First, I readily accept that we are talking about a vulnerable group of people. Irrespective of whether their asylum claims are upheld, they have travelled from another country and find themselves in a country where they often have difficulties with the language. One does not minimise in any way that they are a vulnerable group.
Secondly, when the Immigration and Asylum Act was passed by the previous Labour Government in 1999, the provision under Section 95(5) for people in need was a recognition of our international obligations to provide a basic standard of care for people who had applied for asylum in our country and for our protection while their case was being considered. I do not think that it was ever the intention of the Government at that time, as evidenced by their attempt to reform Schedule 3 to the Nationality, Immigration and Asylum Act 2002, that this would be an open-ended commitment, irrespective of whether the person was within the asylum process or had gone through that process and found that their claim was not upheld. It was not intended for that support to continue ad infinitum.
Baroness Lister of Burtersett
Before the noble Lord moves on, when he says that they will be supported in the same way, does he mean that it will be with the same level of cash?
Lord Bates
The short answer to that is yes.
Amendment 233 would require the Secretary of State to provide failed asylum seekers with a caseworker, a named contact and legal advice. It would also require the appointment of an independent person to report on the financial assistance available to failed asylum seekers who leave voluntarily, and on contact with welfare organisations in the country of return.
I agree as to the importance of these issues but not as to the need for this amendment. We provide generous financial assistance to incentivise returns and assist with reintegration in the country of origin. This can be up to £2,000 per person for families and up to £1,500 in support for a single person, in addition to removal expenses and their travel and transport costs such as flights. We also provide help with travel arrangements and resettlement needs. Some 143 families comprising 435 people and 469 single failed asylum seekers left under the assisted voluntary return scheme from 1 April to 31 December 2015, which suggests that the arrangements are working.
I will address some of the specific questions raised. The noble Baroness, Lady Lister, asked about the no right of appeal. I made the point that the wider facts will have been contested in the earlier appeals and examined by the Home Office caseworker, and that therefore a genuine obstacle would be easy to understand —in other words, that there is medical evidence that the person is not fit to travel or that they do not have the necessary travel documents to do so.
Lord Rosser
I am sure that the noble Lord will accept that it is not quite as straightforward as just saying that there will be medical evidence; there might be a view on what weight should be attached to that medical evidence and whether it meets the criteria. It cannot all be effectively a tick-box exercise, although I almost get the impression it is being portrayed as such.
Lord Bates
It is certainly not a tick-box exercise. Of course, a statement that someone is medically unfit and unable to travel is a fact that can be proved by a medical practitioner and which can be evidenced. The fact that the documents are not in place for travel can be evidenced by the absence of those documents; therefore we contest that the key facts can be established as to whether there is a genuine obstacle to the person leaving, without necessarily reopening the whole case for review.
The noble Lord, Lord Roberts, was generous enough again to recognise in connection with the Azure card, on which he has faithfully spoken over many years in this place, that we have made some improvements. I will refer back the comment on the specific chain he mentioned, the easyFoodstore—or is it the easyJet store?—which has food for low prices, because that ought to be considered. The list is not an exhaustive one: it can be changed and added to, provided that the companies themselves are willing to join the system. I will certain explore that further.
The noble Baroness, Lady Lister, asked whether the 90-day grace period would be extended if there is a change of circumstances. The person must genuinely ensure that there is an obstacle to return. An example might be if they did not receive timely notice of the asylum refusal or a failed appeal. The 90-day grace period for families will enable us to work effectively with families and local authorities to encourage and enable returns. Assisted voluntary return for families is a scheme for families comprising a maximum of two adult parents and at least one child under the age of 18. Families who leave the UK under this scheme can qualify for up to £2,000 per family member. A key difference between that scheme and the previous one— the test that was done under Schedule 3 to the 2002 Act—is that that was a dry, correspondence-based exercise, whereas with family returns we are talking about a family returns engagement officer, who works with them to ensure that provision is in place for them and their family both while they are in the UK and in the country to which they will return to.
On the regulations and whether they will be affirmative, we are very conscious as to what the committee has said, and of course we always tend to show great deference to that committee. However, I will have to come back on Report to confirm how we will deal with this. It simply requires a process we need to go through as regards consulting other people with interests across government to get approval or not for that type of thing. I feel as though I am letting my poker face go again—I have never played poker, and now I am probably figuring out why. Noble Lords have guessed it. In any case, we take the committee seriously and will come back with an amendment to—
Baroness Lister of Burtersett
I will not start to play poker with the Minister. Will there be more details about the contents of the regulations before Report?
Lord Bates
More details will come out. We are working very closely with the local authorities and the Department for Education on what the guidance should be on this. We have to get that joined-up system there to ensure protection, particularly for the families, and work out how it will work. That process is ongoing. As set out in my letter of 21 January and in the substantial document, the review is current. I realise that we had a significant debate on the level of asylum support on 27 October. On page 2, paragraph 6 states:
“As Lord Bates confirmed in the House of Lords on 27 October 2015, we continue to keep the support rate under review”.
We have engaged with a number of stakeholders, including Still Human Still Here, Refugee Action, the Children’s Society and Student Action for Refugees and we will study the results carefully. The review should report in March or April and will provide detailed reasons for the conclusion when it comes through.
The noble Lord, Lord Rosser, asked what the reduction in the number of migrants will be. An impact statement is attached, where the noble Lord will see that we anticipate that an estimated 20% of the failed cohort will return. That is the assumption we have used in the impact assessment. It is not an easy estimate to make, however, for the reasons the noble Lord gave. It cannot be judged on just this one measure but needs to be judged by the wider measures in the Bill, which will make it more difficult for people to rent accommodation, drive or gain employment if they have no right to be here. It is part of the package but that is the assumption.
I come to discontinuation of support. If there is a genuine obstacle, support will continue. If a pregnant woman is not due to give birth within six weeks of the expiry point of the 90-day grace period, she will generally be fit to fly and therefore not eligible for new Section 95A support. If that were not the case, there would be medical grounds to cite a genuine obstacle to being able to travel.
Lord Rosser
I cited what I understand to be the figures from the family returns process. A significant number of the families involved are not dealt with within the three-month period. I suppose I am asking whether the Government agree with those figures, which I understand came from a government analysis. If it is accepted that, under that process, a significant number of families cannot with the best will in the world complete the process within three months, what happens under the 90-day period if there are likewise families with Section 95 support who cannot complete the process for leaving within the 90 days? Or is the Government’s argument that everybody should finish the process within 90 days and any reference to what is happening under the family returns process is somehow not relevant?
Lord Bates
That is, of course, how it is at the moment, but we will bring forward in the regulations means by which we believe we can improve the efficiency of that process and reduce a lot of the complexity in the system, which everyone wants to see removed. That will, in turn, speed up the process so that the vast majority of claims fall well within the 90-day period. That is our intention but it needs to be kept under review so that it is the case.
Lord Rosser
We hope that is achieved and that we get a quicker process. At the moment, however, unless what I am saying about the family returns process is wrong, there is evidence that it will not be possible to complete the process for a significant number of families within 90 days. All I am asking is: if that is the case —and there is no suggestion that the families themselves have contributed to the fact that the process has not been completed in time—will that Section 95 support be continued beyond the 90 days?
Lord Bates
Every case will be different but in a normal case, if someone cannot leave within 90 days, there is probably a genuine obstacle to their doing so. They may not be well enough or they may not have travel documents, in which case they would come into the category of having a genuine obstacle and, therefore, support could continue under new Section 95A.
Lord Roberts of Llandudno
If a pregnant lady is to be deported within six weeks of the birth, and if flights can be arranged, what arrangements will be made in her destination? She will need medical attention. Might voluntary organisations be able to help? What arrangements can be made to ensure that she is well cared for on arrival?
Lord Bates
I am happy to set that out in a little more detail. I think it would be helpful to say how we envisage that working. The plan is for the family engagement officer—who is a key figure in this, working with the family to manage their return—to have cognisance of their circumstances not only while here but when they return, so that will be taken into account and will be something that we look at. I will write more on that; I am happy to do so.
Baroness Hamwee
My Lords, while we are on this subject, the noble Lord, in response to my Amendment 233, talked about the current process. The amendment was tabled after discussion with the Red Cross in particular and other organisations that commented on the need for the items set out in the amendment, namely,
“a caseworker … a named point of contact … and … legal advice”.
The part of the amendment dealing with a review refers to,
“the level of financial support provided to failed asylum seekers when they leave the United Kingdom, and … the level of contact with organisations in the country of return necessary for the welfare of the failed asylum seekers”,
which was very much the point my noble friend was making. The Minister has just described a caseworker and named person. I am not clear whether this is intended to be a change from the current process or whether his notes are defending the current process. If it is the latter, the comments I received which led to this amendment indicate that the current process, which the Minister described, is not working.
While I am on my feet, I am afraid I must take the Minister back to the Azure card. He said that, generally, support would be in the form of accommodation and cash. What are the exceptions to that?
Lord Bates
First, I am a huge admirer of the work of the Red Cross and pay tribute to all that it does in this area. The noble Baroness referred to my charitable endeavours over the recess. Last year, I raised £90,000 for projects for the International Red Cross in China. My response to the point about the Red Cross study is that we are engaging with it. Home Office officials are in contact with the Red Cross and we are working through its recommendations, which I have read. There is some question—which we need to understand better—about the cohort. I think that the Red Cross looked at some 60 case studies. The majority—all but five or six, I think—were failed asylum seekers, but there was not really sufficient explanation of why they had failed. Suffice to say that we take this very seriously. We want to engage with organisations such as the Red Cross so that we move forward sensitively.
I have said that I will write on the point about the Azure card and perhaps I could include the exceptions. With that, I hope that noble Lords will accept my explanation and withdraw their opposition to the clause standing part.
Lord Paddick (LD)
My Lords, perhaps I could ask one question. A number of noble Lords have said that when this sort of scheme was tried before, where, basically, failed asylum seekers were forced into destitution, not only were there fewer returns than in the control group but more people absconded and disappeared than in the control group. I understand the Minister’s arguments about saving government money for more deserving cases and that if somebody has exhausted the asylum appeals process you cannot keep giving them resources, but surely the most important thing is to ensure that the people who should not be in this country are no longer in this country. When this was tried before, the evidence was that starving failed asylum seekers into leaving the country is counter- productive. The Minister has not answered that question.
Lord Bates
That is one of the reasons why, in the preceding group, we talked about the policy of deport first, appeal later. If people are appealing from outside the country, there is less of a risk that they will abscond. We should also note, when comparing this with the 2002 Act, the different way in which we now engage families in this situation—through caseworkers, through Migrant Help and by working with them to manage their return to the United Kingdom. There is also a very generous grant available to them—up to £2,000 per person in addition to travel costs—when they agree to do so. So judged in the round, within the wider package of things that we are trying to do in the Immigration Bill, we can actually see that that figure will improve. But I am sure that the noble Lord will hold us to account when those figures are published each year to see how we are doing.
Lord Alton of Liverpool
My Lords, the Minister will recall that I put five questions to him. Although he has in his ministerial reply touched tangentially on some of those points, I wonder whether he would be good enough to confirm that he will write to me with a response to the particular points I made.
Lord Bates
I apologise if I did not address those questions specifically head-on. Of course, I am blessed with having a team of officials behind me who capture the gaps in my response. We have a track record, I think, of following up in some detail to plug those gaps so that Members have the information that they need to scrutinise the legislation before the House.
“Asylum support move on period
Persons in receipt of asylum support will cease to receive such support 40 days after receiving a Biometric Residence Permit following the granting of—(a) refugee status;(b) humanitarian protection status;(c) discretionary leave status;(d) indefinite leave to remain; or(e) limited leave to remain for 30 months.”
Baroness Lister of Burtersett
My Lords, I rise to move Amendment 228 and I am grateful to those noble Lords who have added their name to it. This concerns what is commonly called the “moving on” or “grace” period, during which an asylum seeker granted status continues to receive asylum support but after which it is expected that they will have sorted out mainstream financial support, employment and accommodation. The current period is only 28 days. The amendment would increase this to 40 days.
As I said when we discussed the previous group, I applaud the Home Office for listening to the concerns expressed about the grace period proposed in the consultation on asylum support for failed asylum seekers, but I was disappointed that the same document stated:
“There are no plans to change the grace period arrangements for those granted asylum or other status here”.
I hope that we might be able to persuade the Minister to look again at this also, particularly given that the grace period for failed asylum seekers will now be 90 days.
I was prompted to table the amendment as a result of reading the recent Work and Pensions Committee report Benefit Delivery. The report referred to the research evidence suggesting that,
“28 days is insufficient time for refugees to make the transition from Home Office support in many cases”.
This includes the DWP’s own research which,
“showed it takes on average 32 days from receipt of claim to first payment for a claimant with a National Insurance number and 35 days for a claimant without”.
The Committee asked why only 28 days is allowed, when it is clear from the research that,
“it is in many cases insufficient”.
It recommended that,
“the DWP conduct an immediate investigation into the ‘move-on’ period and work with the Home Office to amend the length of time if necessary”.
I realise that this amendment goes further, but I do not believe further investigation is necessary, given the evidence that already exists, including from the British Red Cross, as cited by the Work and Pensions Committee—and I am grateful to the BRC for its help with the amendment—and also an earlier report by Freedom from Torture.
It was in fact that report, on the poverty barrier faced by survivors of torture, that first alerted me to this issue. I tried in vain to find out who had responsibility for this matter in DWP and, to my shame, when I did not find out I let it go. But the publication of the Work and Pensions Committee report, following the recent research report from the British Red Cross, convinced me that we must use the opportunity provided by this Bill to address what is a very real and unnecessary injustice.
The Red Cross research identified 23 factors at play affecting the speed with which refugees are able to move on to mainstream support. For some people, five to 10 of these factors could be holding up progress. The research documents the complexities of the transition period, involving multiple stakeholders and the issuing and management of multiple documents. During a one-month data collection process, the study found that 14 out of 101 people helped by the BRC refugee support service in Birmingham were in the moving-on period, and two out of 55 people in Plymouth. All 14 participants in Birmingham were destitute, with neither financial support nor adequate accommodation. All 11 for whom it had sufficient information had been without support for more than 15 days, five for 15 to 35 days, and three for more than 75 days. In Plymouth, both had been without support for between 15 and 35 days.
BRC has provided me with a case study that was not part of the research. Hagos is a 19 year-old from Eritrea living in Stoke on Trent. He was granted status on 16 October and claimed jobseeker’s allowance on 29 October. In case anyone is wondering why there was a delay in claiming, let me remind noble Lords that claiming benefits can sometimes be difficult for people at the best of times. In his oral evidence to the Work and Pensions Committee, Fabio Apollonio of the BRC explained:
“It is clear to us that at a particular stage when a person is just coming out of a trauma, perhaps, they are thinking of what to do next and they are bombarded with a lot of things to do and very often they do not even start the process until very late. It is very difficult to engage with a benefit agency at that stage unless you are prepared and you have been receiving advice from someone who can explain to you clearly what you should do without delay”.
Anyway, back to Hagos. His asylum support was terminated on 19 November. His first JSA payment was not made until 7 January—held up in part because of incorrect advice given by Jobcentre Plus staff—so this young man, still in his teens, experienced destitution for a period of 50 days.
Another example provided in the West Yorkshire Destitute Asylum Network’s submission to the Work and Pensions Committee was of a woman with severe mental health problems, with two children, who was told that her claim for benefits could not be processed until two days before her asylum support was due to end. It then took over a month for the first payment to be made. The family were left in temporary accommodation without any subsistence support for a number of weeks and had to rely on food parcels and hardship payments from a member organisation of the network. As the network points out, many new refugees lack the safety net of savings or social networks able to support them through this difficult period.
The researchers concluded that:
“Our findings show that moving from asylum support to mainstream benefits and employment is a real ordeal for new refugees—and usually takes much longer than the … ‘grace period’ given by the government”.
I do not believe this is hyperbole, and even though it is a small study, it is consistent with the other available evidence.
In particular, the psychological impact of the ordeal that new refugees face is documented by the Freedom from Torture report that I mentioned. It observes that:
“The relief of gaining security of legal status can dissipate fairly quickly as the reality becomes apparent, while at the same time the survivor may be particularly vulnerable psychologically, as the full impact of torture and the loss of their former life may begin to be fully felt at this time of transition”.
Clinicians interviewed for the research said that it was at this time of transition and great psychological vulnerability that clients were most likely to experience destitution. They commentated on the devastating impact that this could have as, in their experience, when survivors of torture are effectively made destitute, it can lead to a deterioration in their mental health and/or to an increased risk of suicide. It can also have a long-term impact on their ability to recover from their past trauma, even after they are no longer in destitute circumstances. As one clinician put it:
“There’s nothing worse for our clients than thinking all your problems have ended because you get ‘status’ and then becoming homeless”.
If we stop and think how we would feel in that situation, it is all too understandable.
I do not believe that this is what anyone in the Government wants. It is a policy of neglect and bureaucratic inertia rather than of deliberate intent, but it is no less cruel for that. A number of practical reforms that could help are detailed both in the BRC report and in evidence to the Work and Pensions Committee—for instance, to start the clock of the grace period ticking only once a refugee has received key documents such as an NI number. But this problem has been going on for years. Indeed, the Home Affairs Committee recommended in 2013 that,
“asylum support should not be discontinued until the Department for Work and Pensions has confirmed that the recipient is receiving mainstream benefits”.
I am afraid that I do not have confidence in the statutory agencies to ensure that measures are implemented effectively without legislative change. Of course, the sooner a refugee can move from asylum support to mainstream support, the better, but in order to ensure that they do not drop into a horrible limbo in between, the time has come to extend the period to 40 days as a basic safeguard against destitution.
I am sure that the Minister is not comfortable with this situation. Therefore, would it be possible to arrange a meeting involving representatives of the Home Office and the DWP together with interested Peers and representatives of key organisations supporting refugees through the moving-on period to look at what might be possible before Report? I beg to move.
Lord Alton of Liverpool
My Lords, the noble Baroness, Lady Lister, put the case eloquently and persuasively. She and I attended a briefing with the British Red Cross and she then tabled the amendment. I added my name as a signatory because it puts, as she said, a real and unnecessary injustice right. It is a basic safeguard against enforced destitution.
The Minister needs no convincing about the merits of the British Red Cross. He has not only raised significant sums for the organisation in a voluntary capacity but I know that he has huge admiration for the work that it does. Representatives told us in the briefing that we had with them that they had helped to reunite 300 refugee families last year in the UK. They also illustrated from their own experience that destitution in the asylum system is a worsening and deepening problem. They supported 9,000 refugees and asylum seekers who were destitute in 2015, compared with 7,700 in 2014, which is an increase of some 15%. That included people granted refugee status but not given enough time to transition to mainstream benefits in the way that the noble Baroness just described.
Nearly 44% of destitute refugees and asylum seekers supported by the Red Cross last year were from Eritrea, Iran, Sudan and Syria, all of which are among the world’s top refugee-producing countries. Although I agree with what the Minister said earlier about people seeking better lives from countries such as Albania—a point referred to by the noble Lord, Lord Paddick, in his intervention—we must never lose sight of some of the hell-holes from which people are coming.
When the noble Lord, Lord Hylton, and I were at Yarl’s Wood today, two men had just arrived off the back of lorries from Iran. Another had arrived from Mosul in Iraq. The situations they had come from were such that any noble Lord in the Chamber tonight would have attempted to escape from too. We have to be clear that these are not economic migrants or people who are just coming for a better life. Some of them have come from the most perilous and appalling situations.
If the Bill is left unaltered, it could plunge thousands more people in those kinds of situations into poverty, including families who are unable to leave the UK through no fault of their own, for example due to a lack of identification documents to provide their nationality or because they have no viable or secure place to return to.
Lord Judd (Lab)
My Lords, I add my warm support to my noble friend in moving this amendment. For any of us who have been exposed to the realities of the situation, it is impossible to forget the mental turmoil that is so often present in the case of the person going through the process. The minds of those who have suffered torture are already in a pretty twisted and confused state. Just trying to cope with the procedures is physically and mentally exhausting. That is aggravated, frankly, because sometimes they have been through all the injustice of ill-prepared cases against them by the Home Office, which were subsequently totally dismissed as unacceptable, allowing the person to acquire asylum status. All this adds to the psychological pressure.
The other thing that strikes me—both the noble Lord, Lord Alton, and my noble friend referred to this—is the amount of arbitrariness in this process. Some come up against wonderful people in the community. I can think of a case not very far from where the Minister lives where there was a wonderful amount of support forthcoming for the couple concerned, and they roped me in on it, but all the time I was thinking, “But what about all those who do not have this support?”. It was bad enough for them.
Let us consider the arbitrariness that people encounter at the appeal stage in terms of the procedures in court. I was present for this couple’s case, and indeed I was called as a witness. The judge was simply incompetent, but fortunately for this couple, they had a superbly good lawyer to present their case. She was able to shred the case brought by the judge almost within minutes. What was again constantly in my mind was the fact that the couple were fortunate to have the support of a wonderful family and an excellent lawyer, someone who was commended by her own profession for her work, but what about all the others? This indicates that we need to look closely at what is realistically possible.
To be fair, I should add that when I became involved in this case, I was given a lot of helpful support by the Home Office. It was obvious that some people there were unhappy about the situation and they were trying to help. But only a minority of cases have the good fortune of the kind intervention of others. We cannot take the business of fairness lightly and we must be able to think ourselves into the shoes of the people going through this process—what they have been through, what state their minds are in and how capable they are of coping with what is required of them during the period of transition. I hope that the Minister, who I know is an extremely fair-minded man, will listen carefully to the plea of my noble friend and resolve this.
Baroness Hamwee
My Lords, our Amendment 229 also addresses the issue of people who have been granted refugee status, humanitarian protection and various forms of leave to remain accessing mainstream benefits. I am sure that being able to work, and as a secondary to that being able to access mainstream benefits and accommodation, is what people in this situation want. They do not want to be supported. But delays in the Home Office in issuing biometric residence permits and delays at the DWP in issuing national insurance numbers so that people can get identity documents and thus establish a claim to benefits mean that the system is not working as it should.
Our amendment would not make as many changes as its length might suggest. The relevant addition to the definition of when,
“a claim for asylum is determined”,
are the lines,
“and the claimant or dependants of the claimant do not appear to the Secretary of State to be destitute”.
In other words, adding that in as another condition to be met, as it were. I can understand that it must be much easier to have an automatic time trigger for these things, but we have heard throughout the debate on this Bill how matters are considered on a case-by-case basis, and it seems that this is another occasion when that consideration should be applied.
Lord Bates
My Lords, I thank the noble Baroness, Lady Lister, for moving her amendment, and the noble Baroness, Lady Hamwee. In the interests of time, perhaps I may first draw the attention of the Committee to my letter of 21 January and in particular to the accompanying document, Reforming Support for Migrants Without Immigration Status: The New System Contained in Schedules 8 and 9 to the Immigration Bill, and specifically to pages 10 to 12 which deal with the handover situation of people on support from the Home Office and moving them on to a local authority, and how that system can be improved.
The noble Lord, Lord Alton, who I respect enormously for his humanitarian instincts, as I do the noble Lord, Lord Judd, referred to the British Red Cross report. It was published on 13 January, I think, which is fairly recent in terms of government decision-making. We are engaging with the charity and we will have more to say on the report in due course.
At the heart of what the noble Baroness wants is whether we will agree to a meeting to look specifically at this issue. The next group of amendments is a significant one about children leaving care. I was going to suggest that we should have a meeting on that issue, which the noble Earl, Lord Listowel, will probably find very helpful. I am happy to incorporate this specific point into that wider meeting, given that we already have five meetings coming up before Report. If that is helpful to her, I shall restrict my remarks to drawing attention to the document I have just mentioned and agreeing to combine this issue with those to be addressed in the meeting as a result of the next group of amendments.
Baroness Lister of Burtersett
I thank all noble Lords who have spoken so helpfully and the noble Lord for that positive response. I am happy for this to be taken as part of another meeting, although I hope that we will be able to include representatives of the British Red Cross and the Refugee Council since they both work with people who are in the moving-on period. I think that I referred to an earlier British Red Cross report rather than the one which has just been produced. I know that there are two reports which are relevant to our discussions so it is possible that I have muddled them up, but I was referring to a different report from that cited by the noble Lord, Lord Alton. Anyway, that does not matter because the important thing is that we should sit down and talk about this. As I have said, I do not think that there is really any difference between us, but this has been going on for too long. I do not know what the answer is. It may be a longer time limit or it might be something else. If we can sit around a table, that would be very helpful.
Lord Bates
I should make one specific point that I need to put on to the record. It is not just a case of extending the time period, it is also about making sure that people apply for these benefits promptly. One of the figures cited in the 2014 British Red Cross report showed that of its sample of 16 individuals, only three had applied for welfare benefits within the first three weeks of being granted status. Part of the issue is getting people to apply earlier.
Lord Judd
The Minister has just put his finger on a good example of the difficulty here. He has said that it is important that people should apply promptly, but sometimes their mental condition and the state of confusion they are in makes that a totally unrealistic proposition unless there are families or friends who can take them through the whole process, as was the case with the couple I cited as an example earlier. People have to work hard on it. These are exactly the sort of points which should be taken up in the discussion that I am glad to hear the Minister is suggesting.
Baroness Lister of Burtersett
My noble friend has taken the words right out of my mouth. As I said in moving the amendment, it is easy to say that people should apply earlier. However, they are in what is still a strange country to them and are accessing a strange system. Even for people who are brought up here it can be difficult to claim benefits. If these people do not have the support of an agency like the British Red Cross or the Refugee Council, is it surprising that there is a delay? I know that it is not what the noble Lord is doing, but it does sound a bit like blaming the victim to say, “If only they would apply earlier”. I know that it is not what he meant.
Lord Bates
I cannot let that stand. I certainly would not be guilty of doing that. I am simply saying that when there are delays in the system we need to look at all the parties to explore why. The one fact I presented was that only three out of 16 applied within the first three weeks. That could contribute to the need to examine why, and what extra help they need. I certainly was not blaming the victims. It is not about simply adding days on in the end and finding that even that is not enough, as we were talking previously about the grace period going up from 28 to 90 days. We need to look at the whole system so that people get the care they need when they need it and the system works effectively. That is what we are about.
Baroness Lister of Burtersett
I am grateful for that. As I said I did not really believe that that was what the noble Lord meant. It might have sounded like it, so I am glad he has made it clear.
The Work and Pensions Committee said that 28 days is really very little time. It may be that the answer is not another fixed time limit, but I absolutely accept that we need to look at all the different aspects—the DWP, the Home Office and how people engage with them. On the basis that the Minister has very kindly offered to extend the meeting he was offering anyway, I beg leave to withdraw the amendment.
Lord Bates
“( ) in section 134 of the Criminal Justice and Immigration Act 2008, omit subsection (5);”
“( ) in paragraph 8 of Schedule 3 to the Immigration Act 2014, omit paragraph (a)”
Lord Bates
Lord Bates
“In Schedule 3 to the Immigration Act 2014 (excluded residential tenancy agreements), in paragraph 8 (accommodation provided by virtue of immigration provisions)—
(a) in paragraph (b) after “95” insert “or 95A”, and(b) in paragraph (c) after “98” insert “or 98A”.”
Lord Alton of Liverpool
(2) This section and Schedule 9 shall not have effect in respect of any former relevant child if a local authority by whom he or she was looked after failed to ensure that he or she was advised and assisted in connection with—
(a) an application for him or her to be registered as a British citizen in circumstances where he or she was either entitled to be registered as a British citizen or otherwise entitled to apply to be registered;(b) an application for him or her to be granted indefinite leave to remain in circumstances where he or she satisfied requirements under the immigration rules for a grant of indefinite leave to remain; or(c) an application for him or her to be granted limited leave to remain in circumstances where he or she satisfied requirements under the immigration rules for a grant of limited leave to remain.(3) In this section—
“former relevant child” has the meaning described in section 23C of the Children Act 1989 (continuing functions in respect of former relevant children), and“immigration rules” means the rules as laid before Parliament by the Secretary of State under section 3(2) of the Immigration Act 1971 (general provisions for regulation and control).”
Lord Alton of Liverpool
My Lords, as the Minister said in his reply to the previous group of amendments, we will now have our attention focused on a whole group on the plight of children primarily, and how this legislation will affect them. It is slightly mind-boggling to find your amendment grouped with 26 government amendments, let alone 10 other amendments, and I will leave others to deal with those.
Earlier, I referred to a report that appeared in the Daily Telegraph on Monday and had its origins in a story in the Observer newspaper on Sunday. I should like to return to that for a moment. The report states:
“Brian Donald, Europol’s chief of staff, said …‘It’s not unreasonable to say that we’re looking at 10,000-plus children’” ,
who are unaccompanied and who had disappeared in Europe. He continued:
“‘Not all of them will be criminally exploited; some might have been passed on to family members. We just don’t know where they are, what they’re doing or whom they are with’”.
The report continued:
“Of more than a million migrants and refugees who arrived in Europe last year, Europol estimates that 27 per cent of them are children … ‘Not all those are unaccompanied, but we also have evidence that a large proportion might be, Mr Donald told The Observer, adding that the 10,000 is likely to be a conservative estimate’”.
If thousands of child migrants have vanished in Europe, it is clearly not an issue about which we can be complacent. As we did with the human trafficking and modern-day slavery legislation, we must provide flagship legislation which other nations can emulate. Our practice here must be beyond reproach and we certainly must do all we can to safeguard children from falling into the hands of people who would exploit them.
One issue to which we have given relatively little attention in the course of our proceedings is that regarding children born in the UK or living in the UK from an early age without citizenship or leave to remain. Amendment 230D has a particular effect in relation to children in the care of a local authority. However there are many other children in similar circumstances in the UK, albeit not in care. The amendment would prevent in defined circumstances the application of Schedule 9 which, in various respects, removes obligations on local authorities to provide leaving care support to children without either British citizenship or leave to remain in the UK, including in relation to accessing higher education and other education and training. The circumstances in which it would prevent the effect of Schedule 9 is where the local authority has failed to support the child in its care to register as a British citizen, or obtain the leave to remain to which the child is or was entitled. Why should a local authority benefit effectively from reduced obligations in circumstances which have come about only because of the authority’s failure to adequately assist the child?
The project for the registration of children as British citizens—PRCBC, which I shall simply refer to, if I may, as the project—is supported by Amnesty International UK which drew this issue to my attention, for which I am grateful. It says that among the young people who stand to lose leaving care support under Clause 38 are young people who come to the UK at a very young age, and indeed some who were even born in this country.
I asked for examples so that I could illustrate the problem. They include people like Henry who was three years old when he was brought to the UK. He is now 15 and has been under the care of his local authority and in foster care since his grandmother’s death when he was seven. Henry is one of the luckier of these children. He has no leave to remain. However, he was referred to the project and it has been able to assist him in connection with his entitlement to register as a British citizen.
There are an estimated 120,000 children in the UK subject to immigration control and without leave to remain, more than half of whom were born in this country. Many of them are entitled to British citizenship under various provisions of the British Nationality Act 1981. However, many of them do not know and there is nobody to tell them of their entitlement. Indeed, in many cases, nobody makes the effort to find out that the child does not have citizenship or leave to remain in the UK until he or she turns 18 and seeks access to university or employment.
Another example is a young man called James whom the project has been able to assist. He was born in the United Kingdom. He has been in care since the age of one. His social worker attended one of the project’s free training sessions and referred his case. He, too, has no lawful status in the UK but is entitled to register as a British citizen.
Arising from these cases in the illustrations I have given, I have some questions for the Minister. Has he any assessment of the number of children—children without status but who are either entitled to register as a British citizen or who may be able to apply for registration at the discretion of the Secretary of State—who will be affected by Clause 38? Can he confirm, as both the project and Amnesty point out, that these children will also be adversely affected by the rest of a generally hostile environment, including the provisions we have discussed today concerning the right to rent and unlawful working, and issues we have discussed on previous sitting days? How many children in local authority care will fall into these categories? What steps do local authorities take to establish the immigration status of children in their care and then keep that under review? Do they just disappear into the ether? What assistance does the Home Office provide them to ensure they understand the entitlements of these children?
Many of the children face difficulties accessing legal advice or paying the fee required for them to register their citizenship. I should be grateful if the Minister, when he replies, can confirm that there is no legal aid for this and that the fee is currently some £749, of which £526 is simply profit to the Home Office. I understand that it is intended for the fee to go up to £936—a rise of 25%. Is that correct?
Although the focus of the project is assisting children to access their entitlement to British citizenship, it also sees cases where a child may alternatively be eligible for leave to remain. These children are young people; they are not culpable for their lack of status. Indeed, in some instances that arises due to historical wrongs in our citizenship laws, which Governments have taken some important steps to address, for instance, concerning illegitimate children. I commend that, but given that local authorities are in many cases failing to identify a child’s lack of status in the UK, or failing to take effective action to address it, it is particularly galling that Clause 38 would effectively reward the local authority for its failure. A child who would have remained entitled to ongoing support from the local authority on leaving care, had the authority taken effective action to attain status for the child, will lose that entitlement because of the failure to act.
As Amnesty made clear in oral evidence to the Public Bill Committee in the other place, these children are among those who will suffer from the hostile environment being established, particularly as they approach and reach their majority. Surely that cannot be right. I hope that the Minister will tell us what steps the Government will take to ensure that that is not the result. Perhaps it is an example of the law of unintended consequences, but I hope that it is something that the noble Lord will take seriously and see whether it is something that we can rectify, if not today then between now and Report. I beg to move.
The Earl of Listowel (CB)
My Lords, I rise to support my noble friend’s Amendment 230D and to speak to my Amendments 234B, 234M, 234N and 235A in this group. I strongly support my noble friend in what he asks. I am well aware that local authorities too often do not give timely advice and support regarding making applications for leave to remain for young people in their care. I have frequently heard that this is the case. What my noble friend asks for is very helpful and I hope that the Minister will give a sympathetic response. Indeed, I am grateful that the Minister has pre-empted this grouping by saying that we will meet to discuss these very important and sensitive issues. I am grateful to him for that.
I will endeavour to be as brief as possible. My amendments would undo those elements of Schedule 9 that would mean that children in the immigration system would be treated differently from other children in the care system. These children would not get the support in leaving care that children outside of the immigration system receive. It would also mean that the Government would fund the care-leaving support for young people in the immigration system.
The key message I make to your Lordships is that these are vulnerable 18 year-olds. We need to treat these young people with humanity. They are somebody’s child, somebody’s grandchild. They are not so different from your Lordships’ grandchildren. They are recognised to be extremely vulnerable because of their histories. Care leavers get support from the state. The care leaving Act allows young people to have a personal adviser to the age of 21 or to the age of 25 if they are in education or training. The personal adviser can help them with things such as securing housing, and advise them on getting into education and training. These are important measures that support these vulnerable young people.
Recently, the Government introduced the staying put arrangements for young people leaving care. This has been most welcome and very popular. Half of children or young people leaving care take up this offer. It allows them to remain with their foster carers to the age of 21, where they and their foster carers agree. It gives these young people the continuity of care that they so much need. It was accepted in the context of the fact that most young people nowadays leave home on average at the age of 24. These vulnerable young people need that support at least until the age of 21.
Why should we be giving all these young people this kind of support? The risk is that they may enter criminality if they are not properly supported. Their mental health may seriously deteriorate. They may be exploited, perhaps sexually. For the young people we are talking about, I think for instance of a Kosovan Albanian young man, the son of a teacher, whom I worked with many years ago when there were real issues of concern in the Balkans. He was a charming young man, well dressed and courteous to the young women he shared his hostel with. He had every good potential in the world, but I could also see him getting hooked up with some Albanian mafia group and dropping off into that environment if he was not given that proper support when he turned 18.
Baroness Hamwee
My Lords, I have my name to a number of the noble Earl’s amendments. We have all received a considerable amount of briefing material. He just referred to the work of the Children’s Commissioner. I will use that as the basis for questions—not even that: I will simply read out some of the key questions that it is said need answering. There will be a certain amount of overlap with the noble Earl.
Will the statutory guidance on transition be revised as a result of changes made in the Bill? The noble Earl referred to that. We are all concerned about young people missing from care. The Children’s Commissioner asked:
“Will transfers from local authority accommodation to Section 95A accommodation by adult migrant care leavers be monitored to look at the impact the policy is having on the missing figures and to determine whether the new arrangements have been successful in encouraging former unaccompanied children to leave the UK?”.
I share the noble Earl’s observations about the likelihood or otherwise of these children going back.
Will the Minister clarify what happens to failed asylum seekers without status turning 18 who make further submissions under the Immigration Rules, resulting in either the grant of leave or acceptance of the further submissions as a fresh claim for asylum? Will this group return to being eligible for leaving care support from their former local authority? Will the Minister clarify what provision—whether under the Children Act 1989 or under Schedule 3—will be available to care leavers with no status who do not have a pending non-asylum application or appeal when they turn 18?
Our amendments in this group are all small probing amendments. As I know that the Minister’s briefing will refer to them, I will mention simply three types of amendments. One refers to an “application … of a kind”. This phrase occurs in two places in government Amendment 234G. Does that application of a kind refer to the leave which is applied for? I think that it probably does, but I was not sure about that.
A couple of our amendments seek to replace “may” with “must”. I am beginning to think that I might seek a debate just on this issue; I think that most Members of the House would take part in it. These provisions are about making regulations. The Minister will no doubt tell me that they will be made and therefore I do not need to worry. However, I do worry about these things.
Amendment 234X concerns regulations to be taken into account in making a determination with regard to accommodation and subsistence in new paragraph 10A of Schedule 9 to the Bill. New sub-paragraph (7) states that the regulations may specify factors which the person who is to take the decision,
“may or must take into account in making a determination”.
I would like to take out the words “or must”. I find it a very curious thing to give discretion to somebody to make a determination and then have two categories of factors to be taken into account, some of which the person may take into account and some which he must take into account. If you are giving somebody the job of making a judgment, I do not think that the judgment should be fettered in this way. However, the main points have already been made by previous speakers.
Baroness Lister of Burtersett
My Lords, I support Amendments 234B, 234M, 234N and 235A in the name of the noble Earl, Lord Listowel, to which I was pleased to add my name, not least as he has been such a consistent champion of the rights of care leavers. I am also supportive of other non-government amendments in this group, particularly Amendments 230D and 239B.
On Monday, the noble Lord, Lord Ramsbotham, spoke about the deeply unsatisfactory way that this Bill has proceeded, with amendment after amendment having been tabled by the Government since its initial introduction in the Commons. It is particularly inappropriate that amendments concerning an issue as important as the treatment of care leavers should have been introduced in this way, leaving a host of unanswered questions as to how the new provisions affecting such a particularly vulnerable group—as the noble Earl emphasised—will work in practice.
This vulnerability cannot be magicked away by constant referral to this group of young people as adult migrants, as if, miraculously, the vulnerabilities that were recognised at the age of 17 years and 11 months have evaporated overnight on their 18th birthday. As the Refugee Children’s Consortium and the Alliance for Children in Care and Care Leavers point out, it is long established in law and policy that those who have been in care need continued support on turning 18 in light of their vulnerabilities. Indeed, leaving care and children’s legislation is predicated on an understanding of the need to provide additional support beyond just accommodation and subsistence needs after the age of 18.
Likewise, the Office of the Children’s Commissioner points out:
“For the purposes of the Commissioner’s primary function, a person who is not a child is to be treated as a child if he or she is aged 18 or over and under 25, and a local authority in England has provided services to him or her under”,
the relevant sections of the Children Act at any time after she or he turned 16. As the commissioner explains,
“the intention of the Children’s Act was to establish that leaving care responsibilities apply by virtue of the authorities’ position as good ‘corporate parents’ irrespective of the care leaver’s particular circumstances and in recognition that turning 18 does not result in overnight independence from those who have cared for you previously”.
By removing these young people from the protection provided by the Children Act, Schedule 9 also takes care leavers with unresolved immigration status out of the remit of the Children’s Commissioner, thereby overturning a provision introduced for good reason by Parliament as recently as 2014.
Once again, immigration control trumps the well-being and protection needs of children and young people—a more general tendency observed by the JCHR, of which I was then a member, in its report on the human rights of unaccompanied children and young people in the UK. As the Refugee Children’s Consortium and the alliance argue, it is creating a two-tier discriminatory system of support for care leavers based on immigration status. One consequence is that a young person on turning 18 could be torn from their foster parents with whom they may have developed a strong and loving relationship. Think what effect this might have on a young person who had suffered earlier trauma as a result of separation from her or his parents. This really is disgraceful and it makes me both sad and angry to think what we might be doing to this particularly vulnerable group.
Many young people in this position do not even understand that they have no leave to remain after the age of 18. Amendment 230D is particularly relevant here. The JCHR inquiry concluded:
“Discretionary leave to remain is used too readily at the expense of properly considering other options”,
and recommended that decisions should be,
“made about their future on robust evidence as early as possible”.
That this should happen will be all the more important once Schedule 9 takes effect. The JCHR report made clear that:
“The duty towards an unaccompanied migrant child does not end at 18”,
and argued that it is right that local authorities’ duties,
“continue to apply to vulnerable children who may continue to require support as they face fundamental decisions about their future”.
It notes that the Government, in their written evidence to the inquiry:
“stressed that unaccompanied migrant children were supported ‘in the same way as any other child in need’, throughout and beyond the care system”,
but no more, my Lords.
We were highly critical in that report of how effectively existing duties towards migrant young people were fulfilled. But that is not a reason for absolving local authorities of these duties. We recommended that:
“Unaccompanied migrant children must be properly supported in the transition to adulthood”,
and that,
“bespoke and comprehensive care plans”,
that,
“take full account of the wishes of the child … remain applicable up to the age of 21, or 25 if the young person remains in education, to enable children to realise their maximum potential”.
The Government responded:
“We agree with the Committee that children should be properly supported in the transition to adulthood”.
It would seem that they believe, in the face of all the evidence, that that transition ceases on a child’s 18th birthday.
Schedule 9 raises all kinds of practical questions that must be clarified before it becomes law. We have heard some from the noble Earl and from the noble Baroness, Lady Hamwee. She referred to questions raised by the Office of the Children’s Commissioner. Has the Minister met the Children’s Commissioner to discuss these matters? If not, will he undertake to do so before Report, or to include her in the meeting that he has very kindly already offered, because she is charged with protecting the rights of this group? As it is, Schedule 9 will remove rights established to protect some of the most vulnerable young people in the country, as we have heard. I have said this before and I will say it once again: this cannot be right.
Lord Hylton (CB)
My Lords, I have a question which comes up in parallel to this huge group of amendments. It is as follows: if a young person or adult has been in this country for more than seven years without committing any serious offence and is therefore in a position where they would be eligible for British citizenship, if they applied for it, is it the intention of the Home Office to deport them? I will just explain that this question arises from the visit that my noble friend and I made to Yarl’s Wood today. I quite understand if the Minister does not feel able to give me an answer now but if he does not, will he please write to me and place a copy in the Library?
Lord Judd
My Lords, having heard my noble friend and others, it is clear how important these amendments are, and I am sure that the Minister will take them seriously. I will make just one point. Those who are behind these amendments are probably the people in the House who are the most experienced in depth about the issues with children that we are discussing. Their commitment to effective work with children cannot be doubted. It would therefore be outrageous if the Committee did not take seriously what they feel is important to put forward as amendments.
The one thought that strikes me is our failure to think ahead, to think in a wider context and to make connections. We agonise about the rising evidence of mental illness. We agonise about delinquency, extremism and terrorism. What are we doing with this younger generation? Are we actually trying to generate mental illness? Are we trying to generate recruits for extremists or, at a lesser level, gangs? Do we really want to build healthy citizens? These children are going to go somewhere, and they are either going to be positive, creative citizens or they are going to be deeply damaged youngsters with all kinds of negative consequences. We really need to bring our thinking together on social policy, health policy and all the policies necessary for a stable society and, indeed, for protection against extremism. These amendments are highly relevant to the imperative of that wider thinking.
The Lord Bishop of Norwich
My Lords, I do not want to detain the Committee because we have heard the significance of these amendments, to some of which I have added my name. I want to follow what the noble Lord, Lord Judd, has just said because we all know that the consequence of not providing for these young people when they leave the care system is serious because they are going to remain in this country.
Given that these young people are likely to remain here and to go under the radar, I simply ask the Minister to comment on the figures in relation to removal directions served on former unaccompanied young people in 2014. As I understand it, 245 removal directions were served on former asylum-seeking unaccompanied young people, but only 15—less than half of 1%—were forcibly removed. What I cannot see is how any of the proposed legislation is going to do anything other than make that situation worse and make those young people more destitute. The Children’s Society has plenty of evidence of those young people ending up sleeping on buses and selling the currency of their bodies to have somewhere to stay. I cannot think that that is the sort of response that we in this House want or the sort of society we want to create.
I will not go through the list of cases that the Children’s Society has given me of people who have now reached the age of majority and are receiving some support in education and training, putting themselves in a position where they can make a contribution to our society. But if we implement a system whereby they do not get support after the age of 18, as others do, we are storing up enormous trouble for ourselves and huge financial as well as emotional costs.
Lord Kennedy of Southwark (Lab)
My Lords, the amendments in this group concern Clause 38 and Schedule 9. I declare an interest as an elected councillor in the London Borough of Lewisham.
As we have heard, many noble Lords have concerns about this part of the Bill, particularly the effect it may have on children who do not understand their immigration status and who, on reaching the age of 18, can find themselves in considerable difficulties. As we have heard, Schedule 9 aims to remove most local authority obligations under the Children Act to care leavers with unresolved immigration status.
We have to be clear that in these circumstances we are dealing with very young people—young adults but also very vulnerable people—and before approving these provisions we need to be satisfied that proper arrangements are in place to look out for these young people, who, as the noble Lord, Lord Alton, and other noble Lords have said, are at risk of serious abuse and other terrible things. They will lose their entitlement to support from the local authority where they have lived for many years and will not be allowed to remain with their foster parents. This is a particularly tough decision, along with the young adult not being able to benefit, on leaving care, from the services of a personal adviser to provide advice and support in place of a parent.
The Bill is flawed because it assumes that everything is okay, everything has been done properly and there is nothing to worry about—“Just use those criteria to assess them”. But it must be understood that these people will have come here as young children, they can be traumatised and have no understanding of why they are here and why they are on their own. They may have witnessed terrible things that no person, let alone a child, should witness. Is it really correct that we just assume that everything has been done properly when the reality may be very different? The best the young person could hope for would be being placed in Home Office accommodation, potentially far away from their foster family and the area they have grown up in and have come to understand. It can be far away from their existing support networks and their legal representatives. They will have to establish that they are destitute and have been refused asylum and that there is a “genuine obstacle” to leaving the UK.
Amendment 230D, moved by the noble Lord, Lord Alton of Liverpool, seeks to deal with the problem where the young person, on reaching 18, has not had the correct advice and could have been entitled to register as a British citizen or otherwise, and it makes provision for the schedule to have no effect in these cases. It is an excellent amendment, which I hope the Minister will accept or at least reflect on before we come back to this issue on Report. It will be important for the Minister to set out carefully what safeguards are in place to ensure that injustices are prevented from happening and are not built into the provisions in Schedule 9. I endorse all the questions asked of the Minister by noble Lords in the debate.
Amendments 235 and 236, in my name and that of my noble friend Lord Rosser, seek to maximise parliamentary scrutiny and ensure that Parliament has the opportunity to debate and approve by resolution the regulations before they come into force. These regulations have such far-reaching consequences that it is right that this level of scrutiny takes place, and I think there are some government amendments on the Marshalled List which have a similar effect.
Other probing amendments in this group, in the names of the noble Earl, Lord Listowel, the noble Baroness, Lady Hamwee, the right reverend Prelate the Bishop of Norwich and other noble Lords, seek to improve the provisions and increase the protections available to care leavers. They all have the support of these Benches and it will be interesting to hear the Minister’s response to the issues they raise. There are a number of government amendments, which I am sure the Minister will explain in detail shortly. I may have some further questions after hearing his explanation.
Baroness Kennedy of The Shaws (Lab)
My Lords, my Amendment 239B relates to asylum seekers who came to this country as children, who then progress into higher education. They are currently subject to the rules that provide for higher fees in education because they have come from abroad, so they face the charges that are faced by those who apply to come to this country, as though they were people living elsewhere.
I am seeking an amendment to the Bill to allow for those young people not to be subject to the charges faced by foreign students and, since they have come as asylum seekers and are living now in this country, being provided the protection and safe haven of this country, we might therefore provide for tuition fees to be charged at the lower rate that is charged to people in this country. I should have risen before my noble friend on the Front Bench, but I had not realised that my amendment was in this group. That is the basic argument being made for Amendment 239B.
I have direct experience of this because, as I think I have mentioned in the House before, there is a small foundation which gives bursaries to people who are particularly disadvantaged. A category of them are asylum seekers, so we are very conscious of the problems that young people have when they come to this country and are given a safe haven. They are then often the most diligent at sixth-form colleges and in further education, and go on to higher education, but they face this incredibly high bill, although they have very little resource at all. We can help them in the tiniest ways, but they are facing the increased fee as if they were a well-to-do person applying to come to study in this country from abroad. So we think that the Government might want to look at this matter.
Lord Bates
My Lords, I am conscious of the time and that there has been some shuffling around and stern looks from the usual channels, who are looking to make progress. I hope your Lordships will bear with me when I say that it just happens that the way in which the scheduling has gone, we arrived at what is probably the most important group of amendments just before 7 pm. There are a huge number of people outside as well as inside this Chamber who need to understand what the 26 amendments that the Government have in this group, and of course the other amendments in it, would do. I need to put that on the record—that is a kind of clue to those people who are hovering that it may well be 15 minutes before I have done that. I hope that the House will bear with me and understand that we are talking about a very important group. I want to get those comments and explanations on the record so that they can be examined ahead of Report and our meeting.
To shorten somewhat what I will go through, I again refer noble Lords to my letter of 21 January and to the response explaining Schedules 8 and 9. I particularly draw the Committee’s attention to paragraphs 64 through to 76, and to appendix B. I have struck out some remarks of explanation in the areas covered in that document, which has been circulated and is in the public domain. I have also given an undertaking to the noble Earl, Lord Listowel, and the noble Baroness, Lady Lister, that we will have a meeting on this—an opportunity to exchange views and take a little more time to look at the evidence in the period between Committee and Report.
Clause 38 and Schedule 9 make changes to local authority support in England for migrants without immigration status, under Schedule 3 to the Nationality, Immigration and Asylum Act 2002, while they establish a lawful basis to remain here or prior to their departure from the UK. Our public consultation on asylum support highlighted concerns that the framework provided by Schedule 3 and associated case law was complex and burdensome for local authorities to administer, and involved complicated assessments and continued litigation to establish what support should be provided and in what circumstances. The Public Bill Committee of the Commons heard similar concerns from local authority colleagues.
We are clear that we want to encourage and enable more migrants without any lawful basis to remain here to leave the UK in circumstances where they can do so, while retaining appropriate safeguards. We have also listened carefully to what local authorities have told us about the scope for simplifying and strengthening the current framework. In that context, we have also had engagement with the Office of the Children’s Commissioner and I will ensure that we get a readout from those discussions for our meeting.
Schedule 9 therefore makes two key changes to Schedule 3 to the 2002 Act. First, it simplifies the way in which local authorities assess and provide accommodation and subsistence for destitute families without immigration status. It enables local authorities to continue to provide, under Section 17 of the Children Act 1989, for any other needs of a child or their family in order to safeguard and promote the child’s welfare. Secondly, it prevents adult care leavers who have exhausted their appeal rights and have established no lawful basis to remain here from accessing local authority support under the 1989 Act. It makes alternative provision for their accommodation, subsistence and other support before they leave the UK. It ensures that local authorities can still provide these care leavers with any social care support which they consider that the young adult needs during this period.
The Earl of Listowel
I thank the Minister for the care with which he has responded and his full recognition of the vulnerability of these young people. I am grateful to him.
Baroness Kennedy of The Shaws
I, too, thank the Minister for giving consideration to the position of people who are facing this fee problem. I am grateful he has given some thought to that.
Lord Alton of Liverpool
My Lords, the Minister told us he received stern looks at the beginning of this group of amendments because of the time that they would take to consider. He has been his usual patient and courteous self in the way that he has addressed the points that have been raised, and 56 minutes on a total of 37 amendments, 26 of which were tabled by the Government, does not seem to be a wholly unreasonable time to take. Indeed, surely it is an example of this House doing its duty to scrutinise, line by line, clause by clause and schedule by schedule, a huge Bill that raises important issues which have been touched on by all noble Lords who have contributed to this debate this evening, which has been passionate and well informed. We have heard from the noble Lord, Lord Kennedy of Southwark, the noble Baroness, Lady Kennedy of The Shaws, the right reverend Prelate the Bishop of Norwich, my noble friend Lord Hylton, the noble Lord, Lord Judd, the noble Baroness, Lady Lister, the noble Baroness, Lady Hamwee, and my noble friend Lord Listowel.
It was the noble Baroness, Lady Hamwee, who reminded us of the questions put by the Children’s Commissioner. The commissioner is, after all, not a non-governmental organisation or a charity: his remit is to promote and protect children’s rights. The four questions to which the noble Baroness referred still need to be answered. She talked about the difference between “may” and “must”. This is a case of “must”: those questions must be answered.
The noble Baroness, Lady Lister, reminded us that turning 18 does not absolve us of our responsibilities. I was thinking of a friend of mine who asked me which were the most challenging years in bringing up my children. I said that a friend had told me that the first 30 years had been the worst, and I suspect that that is true of the experience of many of your Lordships. The children and young adults we are talking about here have no one to fend for them. They are often unaccompanied. They do not have all the resources of the state. They cannot just be left to their own devices. The noble Lord, Lord Judd, was right to remind us of the consequences of people without resources sleeping rough and being pushed into destitution, and how that can lead to mental illness or become a recruiting ground for people who draw them into all sorts of bad pursuits.
As many have said, my noble friend Lord Listowel has been a tireless advocate on behalf of young people. He has huge first-hand experience, and I know that the Minister will take seriously all the points that he made this evening. I welcome what the Minister said about the continuing discussions that will take place outside your Lordships’ House after this evening. There has been some movement in the government amendments tonight—it would be churlish not to thank the Minister for that—but that young person who perhaps personifies the desire of all of us always to receive more, Oliver, may be an inspiration in those discussions. Many more things need to be done, and I hope that the Minister will ensure that, as he put it earlier, the sentiment will be followed by the detail. That is clearly what we need between now and Report. On that basis, I beg leave to withdraw the amendment.
Housing Benefit (Abolition of the Family Premium and Date of Claim Amendment) Regulations 2015
(8 years, 9 months ago)
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Lord Kirkwood of Kirkhope
That this House regrets that the Explanatory Memorandum to the Housing Benefit (Abolition of the Family Premium and Date of Claim Amendment) Regulations 2015 does not contain sufficient information to gain a clear understanding of the policy objective and the intended implementation; and that some of those in receipt of housing benefit will be adversely affected by the regulations.
Relevant document: 17th Report from the Secondary Legislation Scrutiny Committee
Lord Kirkwood of Kirkhope (LD)
My Lords, it is a pleasure to move the Motion standing in my name on the Order Paper, which refers to the 17th report of the Secondary Legislation Scrutiny Committee. This is a slightly unusual Regret Motion. I gave the Minister’s private office notice of the fact that I wanted to spend a moment looking at some of the process issues around the regulations and in a wider context before moving on to some comments about the difficulties that may arise for those claiming housing benefit who may be adversely affected by the regulations.
I shall also refer to the 21st report of the Secondary Legislation Scrutiny Committee because, taken together, they cover an important worry that the committee, chaired so ably by the noble Lord, Lord Trefgarne, was beginning to have about the information and data supplied by the Department for Work and Pensions over recent weeks and months. Two other sets of regulations, the Universal Credit (Waiting Days) (Amendment) Regulations of a few weeks back and the housing costs amendment regulations, were also subject to some lapses, as is the committee saw it. The committee’s report stated in stark terms that it believed that there was insufficient information to determine the policy intent or intended implementation in the Explanatory Memoranda that the department supplied for the purposes of scrutiny by the committee.
The report used some stark language: there was a section on inaccuracy, a section on incomplete information, one on obscurity and one on lack of context. Taken together, they caused me some concern that this was a matter that should be drawn to the House’s attention. Speaking for myself, I rely almost completely on the excellent work that the committee, chaired by the noble Lord, Lord Trefgarne, does. It has a duty to bring matters to the House’s attention when it feels that that is necessary. If it is not getting the basic data that it needs to do that, it is a matter for concern. Incidentally, the Social Security Advisory Committee report that also looked at the regulations in front of the House also complained about limited material, lack of consultation and no analysis of the backdating period that was currently being claimed for the regulations as they were submitted to the committee.
Having said all that, I must acknowledge that the noble Lord, Lord Freud, responded to that in a robust way. He went to the committee and the exchange that he had with it is clearly set out. He agreed to set up a review to ensure that the process is clarified at a strategic level to deal with some of the complaints raised. I warmly welcome that. His letter of 11 January, I think it was, sets out clearly that some work is being done. He has given a reassurance that he will make sure that that happens. I am perfectly prepared to take his word for that, but I am sure that I am not the only Member of this House who will be looking carefully at the review when it is published.
I say this not by way of threat by any stretch of the imagination, but process is an important part of scrutiny. If the process is inadequate, it could be tested in the Lobbies. I am not saying that that by itself would be a reason for voting down statutory instruments, because the policy content is important, too, but these are important procedural matters. I am pleased that the Minister responded as clearly as he appears to have done, but I want the House to know that I support the statutory instruments committee and the SSAC in pursuing the department if they feel that they are not getting the information they need.
Having got that off my chest, I turn very briefly to the content of the final clause of the Motion, which deals with the backdating issue. Again, I drew heavily on the conclusions of the Social Security Advisory Committee. It came up with a compromise of a three-month period for backdating, not one; it is currently six months, as colleagues will know. I have looked at the argument both ways and the government response. I just do not believe that the department has dealt adequately with the important set of detailed questions raised by the Social Security Advisory Committee, which eventually took the issue under reference after it had a workshop about it. These are skilled people who know the complexity of the legacy benefits in a way that is not normally given to the rest of us.
I absolutely agree that the digital service of universal credit will deal with some of this in future. The one-month backdating is perfectly adequate for universal credit in the way that it is cast, as far as I am concerned, although we will need to wait and see what happens. So this is a transitional issue; I understand that. Of course, the announcement was made in the Budget. As the Minister knows, I complained religiously about him letting Treasury Ministers make announcements about social security. It is not a good thing because it is done under purdah. Nobody really gets a chance to look at the consequences. I am sure that the savings are drawn like blood out of the department and it is not an easy thing to do. I understand, too, that there is a responsibility to the nation’s taxpayers. But the Budget announcement just came out of the sky and I do not think any of us had a chance to understand any of the implications until after the deed was done. Once a Budget Statement is made, there is no going back.
I cannot figure out how the saving is £10 million. There are no data in there that persuade me that that is anything other than an estimate. I understand that it is a marginal amount of money in the totality of the Budget. I also understand that when this kind of material was being sifted through in the Treasury and the department there were a whole lot of other things going on. I can see a context where Ministers were saying, “Well, why are you bothering me with small amounts of money like this?”. Having said that, the people that it may affect are potentially the most vulnerable. We all know that these legacy benefits will still be around for a long time, in spite of everyone’s best endeavours to try to get universal credit implemented as soon as we can. Backdating, as I know from my former constituency days, is a well-known legacy safety net but one of last resort. People who really need it really need it. There are obviously delays, oversights and mistakes in the legacy systems, and we hope that universal credit will deal with some of that, too. But the histories of people who disproportionately claim backdating for lengthy periods of time are, in my experience, those claimants who have a disposition to mental illness and other vulnerabilities. That has to be weighed in the balance.
I would argue, too, that continuous good cause needs to be proved for any backdating claim to be seen under the legacy system. That is a way of dealing with claims that are not considered appropriate or within the rules. So there is a protection there. I also make the point that, as Crisis recently explained to me, its most recent work suggests that if people fall into homelessness —if they cannot get the backdating, are evicted and become homeless—that can cost between £3,000 and £18,000 further downstream to the public purse. That is just passing the problem on to our colleagues in local government. That is not necessarily helpful.
As I understand it, if there is only a one-month backdating period eligible, because there is no eligibility for housing benefit beyond that, there is no capability within the current rules as I understand them of applying discretionary housing payments. You need to be entitled to housing benefit to apply for DHPs. The Government have been quite creative about using discretionary housing payments to fill some of the gaps but I am not sure that they can be used properly in this context that we have in front of us this evening. I am be anxious to be put right on that if I am not correct.
I have just a final point of experience. Through my experience in the Wise Group in Glasgow, I saw one or two really difficult cases of sanctions being applied and, because of that, housing benefit being stopped over a long period of time—wrongly. That causes distress to housing benefit claimants whose situation will be made worse by these regulations.
So I am not sure about the saving. The wider cost-benefit analysis would need to weigh in the balance any discretionary housing payments or alternative payments found by local authorities to try to deal with the consequences of eviction as a result of these changes. I still believe that the SSAC compromise of three months would be a good one. Apart from anything else, the other legacy benefits such as income support and income-related JSA already have three-month backdating limits. So it is maybe not surprising that the SSAC in its conclusion came to the view that,
“the summary rationale given for the proposals—namely early alignment with UC—is too simplistic and potentially misleading”.
That is quite strong language for the Social Security Advisory Committee, but it is right to be concerned. I share its concerns and I hope that the debate this evening will point up some of the problems that may arise. I hope the Minister will watch these things carefully—I know that he always does—and that he will give us an assurance that if the changes have unintended consequences, he will do his best to bring these matters back to the House and try to get them sorted so that no vulnerable clients and HB applicants in future are caused further distress and misfortune by the content of these regulations. I beg to move.
Lord Low of Dalston (CB)
My Lords, I support the Motion of the noble Lord, Lord Kirkwood. I will speak particularly on the backdating aspect of the regulations.
Limiting backdating of housing benefit payments to one month is likely to put vulnerable people at risk of rent arrears and subsequent eviction, and possibly homelessness. Crisis, the charity for single homeless people, wrote to tell me that it is concerned that the most vulnerable will be affected by this change, including those who have experienced homelessness. It says that many of the people it supports to find and sustain tenancies make successful backdating claims for housing benefit often for upward of 12 weeks. These are often the result of clients having additional support needs that make it difficult for them to navigate the benefits system. Consequently, they fail to claim the benefits to which they are entitled in time.
The Government dispute the suggestion that limiting the backdating period will lead to tenants falling into rent arrears but Crisis says that many of its clients accrue considerable arrears before they seek the support they need to backdate a claim. Backdating claims are often made following a change in circumstances that affect a person’s entitlement or because of failures in the system that lead to housing benefit not being paid. I will mention three examples of when people may need to make a backdated claim. There is where there are fluctuations in income. When someone finds a job their entitlement to housing benefit must be adjusted. If they enter casual work, such as on a zero-hours contract, their entitlement must be calculated on a weekly basis. This can lead to payments being stopped until the claimant can provide all necessary payslips. That causes delay and the need for a backdated claim. The ability to backdate by only one month may not be enough to cover that delay.
Housing benefit claim forms may be lost. Despite the best intentions of council staff, housing benefit claim forms can go missing or online submissions may not be received. I can empathise with this and can vouch for the fact that this kind of thing can happen through nobody’s fault. Today, I rang up to buy some more premium bonds, only to be told that I needed to provide a password. Apparently, one had been sent to me in the course of the last year but it never arrived. Getting back to housing benefit, resubmitting claim forms can cause serious delays at the beginning of a tenancy. We need a backdating period sufficient to cover such delays.
Again, housing benefit is sometimes stopped in error when someone is sanctioned. This can lead to arrears, particularly if the landlord is receiving direct payments and does not notify the tenant that the rent has not been paid.
The Social Security Advisory Committee advised that the case for this policy has not been made out and recommended that it should be possible to backdate housing benefit for at least three months. It says that inconsistencies between the rules attaching to different benefits are hard to defend and add to the complexity that claimants are required to navigate. For people whose rent is paid monthly or four-weekly in arrears, the proposal will mean that there is no slack in the current complex legacy benefit context for them to realise that there is a problem with their housing benefit entitlement and make a late claim. This presents a clear risk that the impact on landlord and tenant behaviour could result in upward pressure on homelessness among the more vulnerable, with attendant costs that could offset the projected savings. It is disappointing, the committee says, that there has been no cost-benefit analysis of these aspects. For people whose rent is paid monthly or four-weekly in arrears, the proposal will mean that the new rules will not provide sufficient time for a backdated claim to cover the delays that have taken place.
The fact that there has been no effective impact assessment makes it difficult to assess the effect of reducing backdating by different amounts from the current six months. Centrepoint undertook a survey of more than 800 young people using its services and found that 78% of those who made a late claim for housing benefit were not seeking backdating for longer than three months; the majority of backdating claims could therefore be accommodated within a three-month period, and reducing it further could have a financial impact on a sizeable group of vulnerable young people, potentially causing hardship to those least able to withstand it. The Committee highlighted the fact that the legacy benefits system is more complex than universal credit; that being the case, there is a strong case for maintaining a longer backdating period to account for these complexities. Removing the ability to back-date housing benefit claims for a sufficient period may deter landlords from letting to tenants in receipt of housing benefit. Landlords may be particularly reluctant to let to people who have experienced homelessness in the past, given that they may be vulnerable to falling into rent arrears, often through no fault of their own.
The committee concluded that the position faced by housing benefit legacy claimants, particularly the more vulnerable, is substantially different and more challenging than the position following migration on to universal credit. It added that in the absence of a robust impact assessment, the case for a simple alignment with a one-month backdating rule has not been made and that there is a significant risk of offsetting additional costs to the estimated one-year saving of £10 million if the proposal is pursued in this form. It therefore recommends that, if the Government still wish to make an early reduction in the backdating period, a three-month period would strike a better balance between the aim of securing an expenditure saving and recognition of the substantial differences between the housing benefit legacy and universal credit positions. With the noble Lord, Lord Kirkwood, I would want to maintain that the three-month compromise is the one that we should go for, and the Government should rethink.
Lord McKenzie of Luton (Lab)
My Lords, we should be grateful to the noble Lord, Lord Kirkwood, for giving us the opportunity to range over this issue this evening and to the noble Lord, Lord Low, for his very extensive analysis of some of the risks around homelessness that these changes will create. Given the hour and the business to follow, I shall raise one or two brief questions.
On the family premium, the Explanatory Note with the regulations says:
“Removing the Family Premium helps to simplify the overly-complex HB system … and should therefore reduce administration costs”.
Can the Minister seriously tell me how much of a reduction in administration costs is anticipated just from removing this one component of what is and can be quite a complex calculation? It seems to me that it should be built into the system, so whether it is there or removed would make very little difference to the cost.
As for backdating, we have heard the arguments against the Government’s position that effectively we want to get equality with universal credit and if universal credit only needs one month’s backdating why does the housing benefit system need longer? I should have thought that it was recognised—and the noble Lord, Lord Low, has made it clear—that the housing benefit system is more complex. Indeed, is that not one of the boasts of the Government about universal credit, which we have supported—that it is an easier system whether you are in or out of work? You simply move up the scale; you do not have to come off one system of benefits and go on to another, or seek to return to them in due course.
We are in danger of overlooking a fundamental point here—that this is about backdating if there can be shown to be good cause. It is not something that is awarded willy-nilly. There are particular concerns around people with mental health conditions and the extent to which they are supported to make the right sort of decisions and judgments about their claim for benefits. That seems to sweep aside that issue.
There is one technical issue that the Minister may be able to help with. If somebody is awarded JSA after making a claim, they would be entitled to a three-month backdating of that benefit. The award of that benefit could automatically transport somebody on to maximum housing benefit—somebody who was not previously eligible for housing benefit. So we get somebody on JSA with a three-month backdating, which opens up the opportunity for housing benefit for somebody not previously entitled. There is something in the text that suggests that that backdating would apply to housing benefit as well, but I cannot quite see technically how that comes about. I would be grateful if the Minister could clarify that on the record tonight, because clearly there would be an anomaly with accessing one benefit opening up the opportunity for another benefit and giving rise to different backdating results, as a result particularly of these regulations.
Baroness Sherlock (Lab)
My Lords, I welcome the Minister’s enthusiasm to respond to the challenges put to him, but I regret that I am going to add to them, if he can bear with us for a little bit longer. I, too, thank the noble Lord, Lord Kirkwood, for giving us the opportunity to debate these regulations and for having gone into some detail about the process questions. I very much share his concerns. We have concerns of substance on these Benches, but the process should be of concern to all Members of the House, irrespective of the view that they may take on these regulations. I hope that the Minister gives some satisfactory answers on that.
As we have heard, these regulations do two things: they remove the family premium from claims to housing benefit from April 2016 and the backdating of housing benefit, to which I shall come in a moment. Existing claimants will also be affected if their circumstances change, such as if they move or if a child reaches the age of 18. When it is lost, it will be lost almost exclusively to working families, because households where someone is claiming an out-of-work benefit will automatically receive the maximum possible housing benefit payment. The Social Security Advisory Committee report cited an example from the Peabody Trust of a single parent in part-time work, caring for her disabled adult son. Should she need to make a new claim for housing benefit following the removal of the family premium, she would lose around £572 a year, compared to what she would get currently—a lot of money for someone in those circumstances.
My noble friend Lord McKenzie asked a very good question about the admin costs. It is hard to believe that simplification is the reason; one could always simplify benefits by abolishing them. We really have to have better arguments than that.
The DWP claims that withdrawing the family premium in HB will “promote better work incentives”, but, as the SSAC points out, some HB claimants will permanently lose the premium if they temporarily increase their hours and therefore could be deterred from doing so. Equally, some will be deterred from moving address to secure or look for work if it means a drop in HB, or could be discouraged from taking short-term work over Christmas, for example, if it means a drop in housing benefit. Will the Minister comment on that?
The SSAC was also very critical of the Government’s refusal to adopt linking rules. It gives the very serious example of domestic violence victims who need to be rehoused and points out that if somebody moves outside a local authority area, they lose the entitlement. The SSAC points out that some local authorities and social landlords have a deliberate policy of moving domestic violence victims to a different local authority area to minimise the risk that they would run into their assailant and to protect them. It states:
“Those organisations now face a fairly stark choice in terms of whether to keep the existing policy in the knowledge that the victim is likely to be financially worse off, or to rehome them within the existing local authority area where they may be at greater risk”.
The Government’s only response to this is to say:
“Since 2010 our policy has been to move away from building new linking into our reforms to Housing Benefit”.
That is not a reason. That is basically saying “The reason for our policy is that it is our policy”. I hope the Minister can give us the reason behind the policy rather than telling us that it is the policy. The Government go on to say that they do not think linking rules are the most appropriate way of supporting vulnerable cases, but they do not explain why. The only alternative they can offer is our old friend the discretionary housing payment, which has already been offered as an answer to almost every problem created by welfare change since 2010, from the fallout of the welfare Bill to the benefit cap.
The SSAC also points out that universal credit will allow linking and continuity of claim where there is a temporary increase in income or relocation to another local authority area, but they will not be available under these HB proposals which it says will have a negative impact on work incentives and will raise issues around income stability and security.
I now come to the backdating change which other noble Lords have commented on. A number of NGOs and charities have said that limiting backdating to one month will have a significant impact on vulnerable renters, a point made very clearly by the noble Lord, Lord Low, and my noble friend Lord McKenzie. As we have heard, the SSAC recommended that the Government should not proceed with the reduction from six months to one month. It is interesting that the committee expressed disappointment at the lack of proper consultation with local authorities, landlords and voluntary and charitable bodies which will be impacted by these changes. I hope the Minister can explain why that consultation was not done.
The SSAC’s view is that the position faced by HB legacy claimants, especially the more vulnerable, is substantially different and more challenging than the position following migration to universal credit. It pointed out that in the absence of a robust impact assessment the case for simple alignment was not there.
The response from the Government to the SSAC report was so slight as to be almost rude. Their only argument is to say that the policy intention is to align the housing benefit treatment with that in universal credit. Where is the rush? As the noble Lord, Lord Kirkwood, pointed out, it is not as though the entire population is about to land on universal credit. I know that back in November 2010 the DWP believed that everybody would be on it by 2017, but we now know that it is going to be at least 2020, possibly 2021, and maybe some way beyond that. We are years away from everyone needing housing support getting it entirely through universal credit. There could yet be millions of people who could come on to housing benefit, get it, move into work, come off it, come back on to it and still not be on universal credit, so there is a significant issue. I hope the Government will tell us their real reasons. It cannot just be that they want to be in exactly the same position on universal credit and on legacy benefits; otherwise they presumably would not have allowed the situation to develop where two people in identical circumstances, one on tax credits and the other on universal credit, could find themselves with a difference of £3,000 a year in entitlement. Will the Government tell us what the real reasons are?
To summarise I would like the Minister to answer some questions. I will be interested in his response to the process points made by the noble Lord, Lord Kirkwood. He referred to the Minister’s letter of 11 January to the noble Lord, Lord Trefgarne, saying that he had instigated a review of the way the DWP produces explanatory memoranda. Will he tell the House when that review is likely to report? Will its findings be published? If they are not going to be published, how will the House get reassurance that his department will be able to do this job better in the future than it has in the past? Will he tell us why the Government did not consult properly before issuing this instrument? Will he explain the reasons for opposing a linking rule in the family premium? In particular, will he tell us why he has rejected the SSAC recommendation of three months if the Government are not willing to go all the way to six months? I look forward to the Minister’s answers.
Lord Freud
My Lords, I ask noble Lords to forgive me for not keeping up with the exact floating role of the noble Lord, Lord McKenzie, as he moves forward and back on the Benches. I thank all noble Lords for their contributions which, as one would expect, covered a number of issues.
I start with the family premium, which will align housing benefit with universal credit, which does not have this process. As noble Lords will be well aware, it applies to new cases only. It will therefore not affect people in receipt of family premium on 30 April this year. They will continue to receive the family premium until they are no longer responsible for any children or young people under 20 or make a new claim for housing benefit. To avoid people dying at the stake for the sake of these premiums, I remind noble Lords of their very complicated history which started in 1988. With the reform of tax credits, they were removed from income support but not from housing benefit. I know there is a lot of historical nostalgia for bits of the benefit system, but this one reminds me more of an appendix than of anything else: it had a purpose at one time, but it is pretty odd to remember what it was and it can cause you problems, as I am discovering.
On the linking rules, where claimants are in receipt of housing benefit and subsequently move house into a different local authority, they are required to make a new claim for housing benefit. That has always been the case and the policy does not seek to change it. If the claimants were in receipt of the family premium before their move and they move after 30 April, they will no longer receive the family premium in their new housing benefit claim from their new local authority. That responds to the question from the noble Baroness, Lady Sherlock. I know that the noble Baroness likes to stretch out the period for which this will last, but universal credit will be coming in for new cases reasonably soon. It is simply not feasible to introduce linking rules for these cases because that really would introduce a level of complexity and cost.
I regret that I cannot answer the precise question from the noble Lord, Lord McKenzie, on the administration costs saved. When you go through the sums of how you reach that family premium amount and then do the taper with it, and you have to do that differently through every local authority, I have to believe that it genuinely saves some money. However, I cannot put any amount on that.
On the point about work incentives made by the noble Baroness, Lady Sherlock, the loss of family premium would be one factor among many others, including the financial gain and development prospects that would come from entering work. It is important to mention the likely behavioural change that could result from this policy, as the potential reduction in benefit may make claimants more likely to find work or increase their hours. Indeed, you see evidence of that in some of our welfare reforms already.
I turn to the issue of backdating, which noble Lords touched on. This change introduces equality for working-age claimants by aligning housing benefit rules with those in universal credit. Under current rules, as noble Lords have pointed out, the working-age housing benefit claimants may have their claim treated as made from a date up to six months before they actually make the claim. The backdating period will apply from the date of claim and is not dependent on the time that it takes to process claims. Our rationale is that the one month provides a reasonable period to seek assistance or to get claimant affairs in order for those who can demonstrate good reason as to why they did not claim more promptly. While claimants still receive legacy benefits before migration to UC, there is sense in preparing them for the transition to UC by, so far as practicable, equalising how they are treated. The other factor that is useful when we look at this is that our administrative data show that more than two-thirds of backdating claims for housing benefit are awarded for one month or less.
The noble Lords, Lord Kirkwood and Lord Low, asked why we rejected the three-month recommendation —although, interestingly, the numbers between the one-month figure and the three-month figure are actually not very great. We are aiming to change behaviours. If people want to claim benefits, one month allows sufficient time for them to register a claim in the first instance. It does not matter if it is a more complicated process, because the processing and getting the detail does not change the date of entitlement, which is established on the initial claim.
To respond to the noble Lord, Lord McKenzie, who as usual has excruciating detail at his fingertips, I confirm—and I am impressed that he has looked at this—that where a claim for housing benefit is linked to a claim for one of the legacy income-related benefits that applies the three-month backdating rule, entitlement to housing benefit will be linked back for the full three months if it is made within one month of the award for legacy benefit. So he got that spot on.
On the point from the noble Lords, Lord Kirkwood and Lord Low, we do not anticipate pressures on the homelessness front. I am slightly influenced by the fact that every time we make such a change we are warned about that but so far it has not come through.
Lord Low of Dalston
Does the Minister not agree that I gave some concrete and tangible examples where people might be justified in needing to have their claim backdated for longer than a month, through no fault of their own—for example, where forms have gone missing or where they have been sanctioned in error? Would it really mean any skin off the Government’s nose to include an element of flexibility to take account of those cases? If someone has lost a form or they have been sanctioned in error, those are not instances of behaviour that can be changed by limiting the backdating rules to one month.
Lord Freud
I listened very carefully to the noble Lord on those points. My response to that is, if the claim was made on that date and it was lost but it was made then, the issue is whether the bureaucracy accepts the claim that it is lost. The date is established then, and would be established in both of those cases. A lot of the problems may be through legacy benefits, where, as I just explained, the situation has not changed.
DHPs are designed to give additional support to claimants who need it. It is technically possible for DHPs to meet a historic need, although in practice we suspect that it is rather unlikely that a local authority would make this award for that reason, as the regulations state that a claimant should need further financial assistance with housing costs to receive a DHP. As the time period that they are applying for would have passed, it would be difficult to argue that there was a need for financial assistance with housing costs. Therefore it is unlikely but not impossible.
Lord Kirkwood of Kirkhope
My Lords, I am grateful to all colleagues who took part and, as always, I am grateful to the Minister. We will all collectively study his remarks in the Official Report tomorrow. I am very grateful for the opportunity the business managers have given us to have this debate, and I am pleased to seek permission of the House to withdraw the Motion.
Immigration Bill
(8 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Kennedy of Southwark
“Review of the rules relating to refugees reuniting with family members
(1) The Secretary of State must undertake a review of the current rules on refugees, or those granted humanitarian protection, reuniting with close family members in the United Kingdom.
(2) The review under subsection (1) must consider—
(a) the implementation of the provisions in the EU Dublin III Regulation (Regulation (EU) No 604/2013) for spouses or children under 18 with refugee status or those granted humanitarian protection to be reunited with family members in the United Kingdom;(b) options for allowing British citizens to sponsor close family members recognised as refugees or granted humanitarian protection; and (c) options for extending the criteria for family reunion to include children, grandchildren, parents, grandparents, spouses, civil or unmarried partners or siblings who have refugee status or have been granted humanitarian protection and have close family members in the United Kingdom.(3) A copy of a report on the review under subsection (1) must be laid before both Houses of Parliament within six months of the passing of this Act.”
Lord Kennedy of Southwark (Lab)
My Lords, Amendment 231 and Amendment 234, which will be spoken to shortly by the noble Lord, Lord Hylton, both seek to put in the Bill revisions concerning the reuniting of refugees with their family members who are resident in the UK. Again, we are dealing with people in some of the most desperate situations in which you could find yourself. The UK has always had a proud record of being a safe haven for people in such circumstances. The British Red Cross, in its very helpful briefing, provided a number of examples of families who have been split up due to the age of the children, although the whole family has fled a conflict zone. Noble Lords will understand the distress that causes.
Our amendment is very simple. It asks the Secretary of State to conduct a review, which must consider,
“the implementation of the … EU Dublin III Regulation”,
in addition to allowing close family members who are recognised refugees or have been granted humanitarian protection to be sponsored by relatives who are British citizens living in the UK, and,
“options for extending the criteria”,
for who can be considered. A copy of the report,
“must be laid before … Parliament within six months”.
The review would help the Government deal with a number of issues and to examine whether we have the best arrangements in place when dealing with refugees and reuniting them with their families in the UK. That means having the best and fairest rules in place, not just those that seem the harshest.
Some of the issues that could be looked at in the review include the fact that there is no legal aid for sponsors in the UK, as legal aid for this area ended in 2013. Has that policy improved the situation? The rules are restricted to immediate family members only, which means partners and children under the age of 18, so older children, just over the age of 18, are not eligible. There are also issues about adopted children, who are at present regularly refused entry while other children are allowed entry. Then there are the European Union’s Dublin regulations and their application. There are matters such as the applicant not being given the opportunity to submit further evidence if their application is deemed insufficient, forcing them to go through the lengthy appeals route while living in precarious conditions. Is that the UK’s best option for dealing with these difficult issues? Is it the best way to deal with families or to treat vulnerable families? I beg to move.
Lord Hylton (CB)
My Lords, I start by thanking the all-party trio who have added their names to Amendment 234. Its purpose is to make family reunion easier. It has been drafted by the British Red Cross, to which I am very grateful. Your Lordships will notice that the proposed new clause applies only to those with international protection needs—those who have a genuine fear of persecution or who have been forced to flee their homes and country by war, ethnic clearance or genocide. It does not, therefore, open the door to uncontrolled flows of economic migrants.
It is important to know that refugees and protected people in Britain may already bring in their spouses and children. Our amendment would widen the category to include close family members—that is, children aged over 18, dependent parents and grandparents, civil partners and siblings. Such close kin are essential to a full normal family life. Sponsorship from Britain is, however, limited in the amendment by requiring the incomers to be registered with the UN High Commissioner for Refugees or equivalent authority in other countries. Secondly, they should not be a charge on public funds when they are here. In this context, your Lordships may like to note also Amendment 234AA in the name of the noble Baroness, Lady Hamwee.
The limitations that I have mentioned are important ones, so let no one say that this would be a free-for-all. Subsection (1)(b) of the proposed new clause provides a second legal channel for claims to be made by close family members from overseas. I argue that it is desirable to have in this way a kind of two-way process, available both from this country and from overseas.
I would like to illustrate the critical importance of family reunion given what I saw when visiting Calais almost two weeks ago. The enterprising mass of refugees and migrants in France have made their way so far, against the odds, for thousands of miles, from Africa and the Middle East. They certainly include some who have close family in Britain. Indeed, the French social agency that showed us round had met some such people, and pointed out to us one young man in particular who had lived in England and was searching in France for his next of kin. Another category that we should also welcome is those who have worked for British forces—for example, as interpreters in Iraq and Afghanistan. We have some responsibility for such people who risk their lives for our men. We abandon them at our peril.
Sample studies done in France show that about half of those now at Calais and Dunkirk want to come to Britain, while another quarter are probably willing to apply for asylum in France. I have clear advice for our Government: it will be no good sending staff from UK borders to explain conditions here to the camp dwellers or to tell them to apply first in France. Such staff will simply not be credible. What I suggest might work would be to send volunteers from ethnic minorities in Britain to advise on British conditions and on how to apply to come here. That would work even better if our amendment were to be accepted.
While in Calais, we met three deputies from the French Parliament. They were keen to see their own Government speed up asylum applications. They wanted better information for camp dwellers and better co-ordination of relief and volunteer agencies. I trust that these French parliamentarians would agree with me that the French authorities should not bulldoze some of the shacks and tents before alternative accommodation is made available.
To return to our amendment, the Government may say that the third Dublin regulation already provides for family reunion. But who among the refugees knows about this obscure and highly technical, if well-intended, provision? In how many cases have family members actually been able to use it to achieve reunion in this country? I suggest that family reunion is a blessing to all. It strengthens the families themselves, it helps social cohesion in our communities and it assists the Government by increasing family incomes and reducing the need for services and benefits. Perhaps that may not happen in year one, but it will happen sooner rather than later.
We all know that the Home Office has huge powers of resistance, but I trust that it will not choose to resist this win-win proposal. Our amendment is somewhat stronger than Amendment 231, while still allowing the Secretary of State some discretion on the drafting.
Baroness Kennedy of The Shaws (Lab)
I support the noble Lord, Lord Hylton, in this amendment. I reiterate what he said: that this is a narrowly drawn amendment. It was drafted by the British Red Cross but is supported by a number of NGOs, including the Immigration Law Practitioners’ Association. It is closely defined in that it expands the categories of family members eligible for family reunion. It can only be, as the noble Lord has said, those who are coming here to seek respite from war, genocide or ethnic cleansing. They would have to be joining a family member who is already here, having been given refugee or humanitarian protection status. The two caveats are, first, that they would not be able to have recourse to public funds—they would be sponsored—and, secondly, that they would be registered with the Office of the United Nations High Commissioner for Refugees or a similarly recognised authority.
We make this argument to the Committee, and to the Government, on the basis that the people involved have close connection already with a family member in Britain. They are at the most extreme end of those who seek support and assistance—who seek a haven from persecution. This draws on the great tradition that we have in this country of offering asylum—genuine asylum—to those in desperate need.
I remind the Committee of what happened in the late 1930s. Although I am a Scot of Catholic background, I am married to a man who, on the one hand, is the son of a Presbyterian Scot but whose mother was a refugee from Austria. She came to this country in 1939, as a doctor from Vienna, and she and her sister managed to get out. Because of Quakers in this country, they were looked after or sponsored on their arrival into this country. They were able to bring their mother from Austria by sponsoring her. We still have among family papers her passport, which bears the stamp “J” for Jew. She came to this country precisely in the way that we are advocating that people should be able to come now—people who are fleeing persecution and are able to say, “Let us have a close family member come and join us”. I know that other Members of the Committee will join me in urging the Government to keep that great tradition alive by allowing for this amendment. It is precisely of the same order.
I add a coda. The two daughters went on to become practitioners—doctors—who brought great credit to the way in which they were able to join this community. They always felt an enormous indebtedness to the generosity of the people of this country. I urge the Committee, and the Government, to accept the amendment.
The Lord Bishop of Norwich
My Lords, the right reverend Prelate the Bishop of Southwark, who has added his name to Amendment 234, cannot be in his place, but I am glad to speak on my own behalf and, I hope, for him, too, since we are of one mind on this matter.
One of the great privileges of being a bishop in the Church of England is found in the many connections we have with Anglican dioceses overseas. The diocese of Southwark has very long-standing links with Zimbabwe, while my own has an association with Papua New Guinea that has gone on for 60 years. I was last there in August and September, visiting the remoter parts of the western highlands, which was a challenge. The welcome is amazing and humbling, but what one learns is about the huge significance of family and kinship roots in such societies. They make all the difference for individuals between flourishing and destitution. They provide the practical and emotional bonds through which people make sense of life. They are the source of social and financial security, elder care, childcare and so on.
I reflected while I was there on the atomistic character of many British social and family relationships, which seem very limited and limiting by contrast, and certainly unthinkable to them. Consequently, when states fail and insecurity becomes unbearable, as we have already heard, families do shift, but they do not fracture even if the world around them does; mutual obligations hold. When one flees terror and ruin, there can be no better way to do it than with those with whom there exist bonds of affection and mutual obligation. It may seem to us to be an organisational and financial necessity to break up family units or kinship groups, but to those within them in such situations, it seems like madness.
I appreciate that rules already exist to provide for a degree of family reunion, but the sentiment behind the amendment is that they are too restrictive. What sort of family life do we believe in if a minor is admitted to the UK and granted asylum status but there is no basis in the Immigration Rules for parents or siblings to join him or her—or, in reverse, if a Syrian father is granted asylum but not his 19 year-old daughter left in a refugee camp? I realise that the Minister may argue that such cases can be considered outwith the Immigration Rules, but the number of these visas is dropping rapidly, down to just 11 in 2014, which suggests that this is a route that is now very little trodden indeed. I would be grateful for the Minister’s reflection on that tiny number in this context.
The problems and issues underlying our net migration figures do not subsist in family reunion, nor are they caused by them, and hence I hope that the Minister will respond favourably to Amendment 234.
Baroness Lister of Burtersett (Lab)
My Lords, I shall speak to Amendment 231, to which I have added my name, but I would be more than happy if Amendment 234 were to be accepted because I acknowledge that we need to act as quickly as possible to enable family reunion. My noble friend Lady Kennedy of The Shaws talked about the experience of her husband’s family in the 1930s. It was very similar in my own family. My father came as a young man to this country from Nazi Germany in the early 1930s and his parents, my grandparents, were allowed to join him in the late 1930s having escaped to Palestine and then coming to this country, so the question of family reunion has great personal significance for me.
ILPA has provided us with extracts from parliamentary debates in the 1930s and 1940s, and I was particularly struck by a speech by the then Earl of Listowel, who said in 1939:
“There is a common assumption underlying this debate … that these refugees are a common responsibility of every civilised nation, and that each country has to play its part, according to its economic resources and according to its opportunities for offering temporary asylum or permanent refuge, in providing the means of life for these helpless and persecuted people. The question surely that is before our minds first and foremost this afternoon”—
they probably did not go quite as late in those days—
“and is naturally one that confronts every member of the British Legislature is: Is this country really making its rightful contribution?”.—[Official Report, 5/7/1939; col. 1026.]
The answer today has to be no. We are not playing our part according to our economic resources when compared with poorer countries in the region on the one hand and richer countries such as Canada and Germany on the other.
While I very much welcome recent government concessions, I fear that they do not go nearly far enough. This is the message of, for example, a statement made by more than 300 eminent lawyers last autumn who, among other things, called for the establishment of safe and legal routes to the UK from both within and outside Europe. One element of that, they argued, would be humane family reunion policies such as allowing child refugees in the UK to be joined by adult family members. This would help avoid the tragedies that continue to occur in the Mediterranean where already this year 149 people have died trying to cross, according to Save the Children. Just this week over 120 leading economists have sent a similar message in an open letter to the Prime Minister.
The British Red Cross writes of heart-breaking cases it encounters of separated families not covered by the existing rules, such as the two Syrian brothers who wanted to be reunited with their mother stuck in a camp in Iraq, having been recently imprisoned in Syria. She was alone with no family and in a second country but did not qualify for family reunion. I know that the Government’s argument is that if refugee children were entitled to bring their parents into the country, it would act as an incentive to send children on ahead to secure leave. But as ILPA points out, these children are given leave to remain not because they are children but because they are recognised to have a claim as refugees. While parents understandably prioritise getting their children to safety, surely it is cynical to believe that they would deliberately put their children in the hands of smugglers to make such a dangerous journey alone as a ploy to get entry themselves. As Save the Children put it, we are talking about:
“A terrifying push, not an enticing pull”.
It reminds us of children’s rights under the UNCRC to remain with or be reunited with their family.
The Government claim to be the party of the family. In the guidance on the family test, the list of,
“relationships at the heart of family life”,
as it puts it, includes a wide range of family relationships, including extended families. Yet the Government take the most narrow and exclusionary approach to family relationships when it comes to the reunion of a particularly vulnerable group of families. I believe that if the Government were to accept one or other of these amendments, or bring forward their own amendment on Report, this would be widely welcomed.
Baroness Hamwee (LD)
My Lords, as my name is to Amendment 234, I will give my story of doctors—I am thinking of the example of the noble Baroness, Lady Kennedy—who left the country because of our family visa restrictions. I did some work on family visas in 2013, a year after the current rules were introduced. I felt as if I had almost physically been hit between the eyes when I realised that these rules were applying in situations which noble Lords have described. It is possible for the Government to grant visas on the basis of exceptional, compelling or compassionate circumstances outside the rules. The Minister will recall his Written Answer to my Question that disclosed that the number of applications granted outside the rules was 77 in 2011 and by 2014 had declined to 12.
The basis of these amendments, and the fact that we do not believe that this would be a pull factor, has already been covered. I shall try not to repeat too much of what has been said. I am very aware that it is not sensible to seek to make too many arrangements on the basis of anecdotes and very individual circumstances—hard cases, bad law, and all that. But there are so many stories. The Guardian published an article about two British citizens who had been granted refugee status and then become citizens, but could not bring their family members to the UK because of the income threshold that is part of the family visa rules. They are actually living with their wives and children in a camp in Dunkirk. Those who have seen the conditions in that camp will be appalled that that has come about.
Lord Roberts of Llandudno (LD)
My Lords, I had not intended to come in on these amendments, but I will mention what has happened in a north Wales town in the past month. An eminent Syrian doctor works there and contributes very much to our community. His wife and two younger children are there, but there is one daughter left in Damascus. She just could not get a visa. The mayor of Bangor and others—sorry, I should not have told you where it was—have been pulling out all the stops they can to try to bring this daughter over. She is alone, or she was. I rang the Home Office, trying to get this through and getting refused. I thought, “We’ll keep on at this”, until a fortnight ago I had a telephone call from one of our people in Bangor. She said that this girl is dead. Was it a bomb at Damascus University, or something else? I do not know. It is just that the whole system needs to have such a reform to have a bit of heart in it.
Lord Green of Deddington (CB)
My Lords, I am afraid that we are not quite of one mind in this House. I take all the points that have been made and I entirely understand the sympathy that has been expressed for individual cases. However, we have to look at this in a wider context. This, after all, is not the 1930s. We face a refugee crisis in Europe which is absolutely without precedent.
As the noble Lord, Lord Kennedy, explained, Amendment 231 refers to an EU directive which the UK opted into in 2013 before the refugee crisis erupted in southern Europe. However, its provisions are not exactly as described in the amendment before us. Article 8 requires that, in the case of asylum applications from third-country minors, the determining member state should be the state in which a family member legally resides, where that is in the best interests of the child. That is fair enough.
Article 9 goes further in stating that, if an applicant has a family member—unspecified—in another state who is a beneficiary of international protection, that member state should consider the application. That is fair enough.
Article 10 goes further still, stating that where an applicant has a family member in a member state where a first application is pending, then that state is responsible for the applicant’s application. We signed up to that and that is what would happen if people in Europe applied for asylum in Europe and asked for their case to be transferred to the UK. Noble Lords will be aware that a recent court case has underlined that possibility.
However, the suggestions in Amendment 231 go well beyond that EU directive. In paragraph (b) of proposed new subsection (2) the review is widened to consider all British citizens, not just those already granted asylum, and they would all have the right to sponsor family members. In paragraph (c) of proposed new subsection (2) the reviews suggested would consider extending the criteria to a potentially enormous number of relatives of those who have already been granted asylum in the UK. I think it is quite well known that in the last 10 years about 87,000 applicants have been granted asylum or humanitarian protection in Britain. We have every right to be proud of that. However, if each of those had five or six relatives, we would be deciding to admit more than half a million people who would be granted the right to join those who have already been given protection here. Even that is a very conservative estimate. It does not include those granted asylum in earlier years and does not take account of the fact that in some countries families are even bigger than that.
The fact that you have to apply in Europe in order to take advantage of the Dublin convention is a strong argument for saying that this is not the way that we should go. The main effect of going down this road would be to widen Dublin III and massively increase the flow of people into the EU in the hope of benefiting from these changes. That is a very unwise step to take at this time. If there are thoroughly deserving cases—I am sure there are many—they should be considered on an individual basis outside the rules and let us be as just and sympathetic as we can be. But simply to go down the road of widening Dublin III seems not only unwise but extremely untimely.
Lord Kennedy of Southwark
We are asking only for a review at this stage—that is all Amendment 231 asks for.
Lord Green of Deddington
Yes, I understand that. I am really pointing to what some Members are seeking as the result of that review—and even that would not be the best step to take at this point.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, I am aware of the calls from the Refugee Council and the arguments cited in favour of widening the family reunion criteria. I have also listened carefully to the arguments put forward today, and in particular to the personal stories that bring to life the statistics that we are considering.
We recognise that families may become fragmented due to conflict and persecution, and the speed and manner in which asylum seekers often flee their country of origin. Our policy already allows immediate family members of those with refugee leave or humanitarian protection who formed part of the family unit before the sponsor fled their country to reunite with them in the UK. I say to the noble Baroness, Lady Hamwee, that the minimum income threshold of at least £18,600 would not apply where a refugee is sponsoring their pre-flight spouse or partner to join them here.
British citizens are also able to sponsor their spouse or partner and children under 18 to join them under the family rules, providing they make the appropriate entry clearance application and meet the relevant criteria. The rules have been in place since July 2012 and reflect our obligations under Article 8 of the European Convention on Human Rights. Where an application fails under family reunion provisions, our policy also requires consideration of exceptional or compassionate reasons for granting a visa outside the rules. This caters not only for extended family members of refugees where there are exceptional circumstances but for family members of British citizens who are unable to meet the financial requirement rules.
Our policy is more generous than our international obligations require. Some EU countries require up to two years’ lawful residence before a sponsor becomes eligible and impose time restrictions on how quickly family members must apply. Additionally, there are specific provisions in the Dublin regulations, which the noble Lord, Lord Green, referred to, to unite unaccompanied children who claim asylum in another member state with their parents or other relatives, where they can take care of the child and it is in the child’s best interests to bring them together. We granted more than 21,000 family reunion visas between 2010 and 2014. Numbers are likely to increase in line with the numbers of recognised refugees in the UK.
Our policy prevents children with refugee status in the UK sponsoring their parents to join them. This is a considered position designed to avoid perverse incentives for children to be encouraged or even forced to leave their country and undertake a hazardous journey to the UK. As Save the Children pointed out, many children are feared to have fallen victim to people traffickers. Allowing children to sponsor their parents would play right into the hands of traffickers and criminal gangs and go against our safeguarding responsibilities.
I know that this point has been raised; we frequently discuss unaccompanied asylum-seeking children. We also know that one of the key concerns of the International Organization for Migration and the UNHCR, our partners in the Syrian vulnerable persons relocation scheme, is that the best interests of the child are often served by keeping the family unit together in the region rather than providing an incentive for them to undertake a hazardous journey. It is also the reason why the Syrian vulnerable persons relocation scheme takes family units from the region. That is the specific intent: bringing families together to the UK.
We have talked about this country’s great generosity. Many of the wonderful stories in the media have been of families from Syria arriving together. They have been pre-cleared and immediately have access to welfare and the right to work. Accommodation has been provided for them. It is an outstanding scheme, which we can all be very proud of. We do not believe that widening the criteria to include so many additional categories of people is practical or sustainable. We must be very careful not to inadvertently create a situation which encourages people to undertake the hazardous journey.
With regard to the British Red Cross, with which we work very closely, we have already accepted recommendations it made in its report Not So Straightforward: The Need for Qualified Legal Support in Refugee Family Reunion, published on 9 July, around simplifying the application form and providing consistent, accessible guidance. We are improving our guidance to caseworkers and redesigning the application form to ensure that applicants better understand the process and what is required of them.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in this debate: the noble Lord, Lord Hylton, my noble friend Lady Kennedy of The Shaws, the right reverend Prelate the Bishop of Norwich, my noble friend Lady Lister, the noble Baroness, Lady Hamwee, the noble Lord, Lord Green of Deddington, and the noble Lord, Lord Bates. These are serious matters where refugees need to be treated fairly and compassionately. The amendment in my name is only asking for a review while that in the name of the noble Lord, Lord Hylton, goes a bit further but is specific as to who it would apply to. I hear what the Minister has said and I will reflect on that. I may return to this issue on Report but, at this stage, I beg leave to withdraw the amendment.
Baroness Hamwee
“Families of British citizens and other persons with leave to remain
(1) The Secretary of State shall, within six months of the passing of this Act, amend the Immigration Rules regarding any person who satisfies the conditions in subsections (2) and (3), in the ways specified in subsection (4).
(2) The first condition is that the person is applying for—
(a) entry clearance to the United Kingdom,(b) leave to remain in the United Kingdom, or(c) indefinite leave to remain in the United Kingdom.(3) The second condition is that the person is applying as the non-European Economic Area national partner or dependent child of a person who is—
(a) a British Citizen,(b) present and settled in the United Kingdom, or(c) in the United Kingdom with refugee leave or humanitarian protection.(4) Immigration Rules shall specify that, for a person who meets the conditions in subsections (2) and (3)—
(a) the minimum annual income requirement shall be—(i) for a partner, the equivalent of one year’s salary (net of tax and national insurance contributions, and allowing for four weeks’ holiday) at the rate of the national minimum wage in effect at the time,(ii) for one child in addition to the partner, the additional sum of £2500,(iii) for each further child, the additional sum of £2000, and(b) subsidies and financial support (including the value of accommodation provided) shall be applied towards the calculation of income.”
Baroness Hamwee
My Lords, Amendments 232 and 234AA are in my name and that of my noble friend Lord Paddick. They stay on the issue of family visas, although not necessarily in the context of the refugee crisis. My noble friend Lord Teverson is going to remind us about “the party of the family” and marriage in the current context.
As I mentioned, I was involved in work on the impact of the family visa rules that were introduced in 2012. The situation has not eased since. In a search for a solution, my own thinking has developed only as far as, “These rules will not be changed until a Cabinet Minister’s son falls in love with a woman from Costa Rica and wants to bring her to live here”.
The rules apply to refugees; they apply to people who are far from being in a refugee situation. They are academics and businesspeople: people from a wide range of backgrounds and in a wide range of situations. It has to be said that many of them would bring a great deal to this country. A comment that I have heard from so many people who, because of the rules, are unable to live as a family in this country is: “I am a British citizen and I pay tax. Why is this happening to me?”. Families are separated and children are not living with both parents as a result of these rules, which must have an impact on a child’s development.
There are situations where, if the rules were not as they are, savings would be made for the state. I remember a gentleman from a low-earning area with a 17 year-old daughter, from his first marriage, with developmental problems. He married for a second time, to somebody really dodgy—a teacher from Canada, and because he could not meet the threshold, he could not sponsor her to come here. I understand that a lot of spouses are being refused visitor’s visas now, because it is not believed that they will leave at the end of a visit. In the case of the couple I have just mentioned, the last I heard was that she was detained when she arrived here and was in Harmondsworth. She had to stay over two or three nights because her physical reaction to what was happening to her meant that she was not well enough to be returned.
The financial threshold in place is beyond the means of something like half of the British population. The provisions which we are proposing in subsection (4) for the income requirement are, instead of £18,600,
“the equivalent of one year’s salary”.
I have spelled that out a little by saying,
“for a partner … at the rate of the national minimum wage”.
Then there are figures, which I accept are arbitrary, that would allow for children and for third-party support, because there are many examples of where families would help. The amendment says that,
“subsidies and financial support … shall be applied towards the calculation of income”.
The cost of the application is also of course an issue. During the debate on the last group of amendments, I read out a letter that I had just received. Because my name has been associated with some work on this, I quite often get letters and emails from people asking me to help and telling me of their situations. I will read just a little from the most recent, which came from a gentleman yesterday. A British citizen who had been living in Argentina, he came over here to a job. His wife and three year-old daughter were in Argentina, and when he tried to bring them over, he discovered the problems. He says:
“I understand the importance of doing everything by the books and would be ashamed to do it any other way. The difficult situation for me to understand here is how, being a British Citizen, should I have to wait for nearly a whole year without seeing my wife and daughter”.
He says that it is,
“unexplainable to a 3-year-old … All the thousands of pounds paid can be made with hard work but the time lost is never coming back”.
The second of our amendments refers to adult dependent relatives. As I said in the previous group, that route has now become more or less theoretical. The noble Baroness, Lady Kennedy, mentioned the gain to this country from two daughters of a refugee qualifying as medical practitioners. The story I have to tell, which I dare say the Minister has heard me tell before, is of a woman who could not bring her elderly parents over from Singapore. She was a consultant in the NHS, so she decided she should go there to look after them. Her sister, also a senior person in the NHS, thought it was unfair to leave all the burden on her sibling and went out as well, and then the husband of one of them, also a consultant in the NHS, went out to join them. Those are three senior people lost to the NHS because we cannot somehow sort this out.
I am very aware of the time; I am also aware that I am not bringing any new points to the Committee because, by definition, they are not new: this has been going on since 2012. That does not diminish the importance of the matter, and I beg to move.
Lord Teverson
My Lords, I speak to my Amendment 239A, and I very much agree with all the points that my noble friend Lady Hamwee just made.
It is quite obvious to all of us that we live in a global society. We welcome that, we participate in it and encourage it. We study abroad, we work abroad and we are proud that Britain is an outward-looking nation. As part of that, our sons and daughters and other relatives go out as students, to work and for leisure to other parts of the world—we are not just part of the European Union. It is quite appropriate in February, the month of St Valentine, to say that they occasionally fall in love—I expect that some Members of the House have come across that—and get married. All too often, when deciding to take that step, they do not think about the practicalities. They do not think about the fact that they might not be able as a couple, as a family—in future, as a larger family—to live back in the United Kingdom because of that decision.
As my noble friend said, I have made that point before, so I too shall be brief. It seems to me fundamental, perhaps more so to those on the Benches opposite than anyone else, that family life is sacrosanct. Subject, clearly, to the legal restrictions in the Marriage Act and elsewhere, which we all accept, a British citizen should have the right to marry whom they want, and then be able to live with their spouse or civil partner back in their home in the United Kingdom, should they wish. That right should not be discriminated against by income; in effect, that discriminates against certain ages, those in certain parts of the country or in certain occupations more than others, and perhaps on gender as well. People should have that freedom. If anything should be the birthright of us as proud citizens of the United Kingdom, it should be that. That is the simple thing that my amendment tries to achieve. That was all swept away in 2012, during the period of a coalition Government— unfortunately, as far as I am concerned.
Since I have got involved in this issue, I can name all sorts of instances of people affected by this who have come to me on the internet. Most recently, there was a young man whose family live near me in Cornwall and who is working for a British company out in South Korea. He has married a Korean national and is unable to come back. He earns a lot of money out there, and she is very capable as well, but because of the rules they cannot come back together. That is completely wrong. There are an estimated 33,000 people in that position.
This problem does not make a huge difference to migration figures, but if the Government ever introduce a British Bill of Rights, please make this right No. 1. I ask the Minister to look at this again, think about the principles that the Government espouse so well in this area, listen to that rhetoric and correct analysis about the centrality of the family and family life, and change this policy area so much for the better in the Bill.
Lord Bates
My Lords, I am grateful to the noble Lord, Lord Teverson, in particular. Raising our sights to talk of love on day 4 of the Immigration Bill in Committee at quarter to 10 at night sends the mind wandering. It is good.
We welcome those who wish to make a life in the UK with their family, to work hard and to make a contribution, but family life must not be established here at the taxpayer’s expense and family migrants must be able to integrate. This is fair to applicants and to the public. That is why the coalition Government introduced the changes to the Immigration Rules in July 2012. These amendments would seriously dilute those reforms.
Amendment 232 would require the Secretary of State, within six months of Royal Assent, to amend the minimum income threshold requirement for sponsoring a non-EEA national partner and any non-EEA national dependent children to settle in the UK. This is set at £18,600 a year for a couple, with higher thresholds if children are also involved. It reflects advice from the independent Migration Advisory Committee on the income that means a family settled in the UK generally cannot access income-related benefits. The amendment would reduce this to the level of the national minimum wage, or around £12,100 a year on the basis it describes. The amendment would also reduce the increments that apply if non-EEA national children are also sponsored. It would allow third-party subsidies to be counted, though it cannot ensure these will be sustained.
Amendment 232 would therefore significantly undermine the proper impact of the minimum income threshold. A couple with income equivalent to the national minimum wage can still access income-related benefits and tax credits, so a minimum income threshold set at the level suggested would not be sufficient to prevent burdens on the taxpayer once the migrant partner reached settlement and had full access to welfare benefits. It would also provide less support for the migrant partner’s integration in society. That is simply not an adequate basis for sustainable family migration and integration in future.
Amendment 234AA in the name of the noble Baroness, Lady Hamwee, would require the Secretary of State, within six months of Royal Assent, to amend the entry clearance rules for non-EEA national adult dependent relatives. The route for adult dependent relatives was reformed because of the significant NHS and social care costs which arise when adult dependent relatives settle in the UK, notwithstanding the intention of the sponsor here to look after them. The new rules do not provide a route for every parent or grandparent to join their adult child or grandchild in the UK and settle here. It is not intended that they should do so. The route now provides for those most in need of care but not for those who would simply prefer to come to live in the UK.
Amendment 239A in the name of the noble Lord, Lord Teverson, would remove nearly all the requirements of the family Immigration Rules for spouses and civil partners of British citizens. This would undermine our system for family migration. Understanding basic English and being financially independent help to ensure that the migrant is able to integrate and play a full part in British society. We want to see family migrants thriving here, not struggling to get by. The courts have upheld the lawfulness of these requirements, finding that they strike a fair balance between the interests of those wishing to sponsor a non-EEA national partner to settle in the UK and of the community in the UK in general. The family Immigration Rules we reformed in the last Parliament are having the right impact and helping to restore public confidence in this part of the immigration system. In light of this, I hope that the noble Baroness may feel able to withdraw her amendment.
Baroness Hamwee
My Lords, what better way of integrating can there be than living with a British citizen? I am genuinely quite puzzled about that. The arguments are financial ones; this is the price of family—or, indeed, the price of love. I do not think that the central, fundamental point is being addressed. As for restoring confidence, that is not the experience that I have from the many representations from and on behalf of British citizens who say that we are taxpayers as well—if that were necessary to support the argument. Of course, I am not going to seek to press the point or prolong the debate now, but it is one that we will keep coming back to.
I am very glad that my noble friend Lord Teverson sought to make the argument on a more elevated plane than I have, by addressing the central philosophical point, which is very important. Although I deplore the phrase—and I have told my noble friends to chuck me off the Front Bench if I ever use it in this Chamber—are marriage and family not among the British values? I beg leave to withdraw the amendment.
Lord Hylton
“Family reunion: persons with international protection needs
(1) Rules made by the Secretary of State under section 3 of the Immigration Act 1971 (general provisions for regulation and control), shall, within six months of the passing of this Act, make provision for—
(a) British citizens and persons settled in the UK to be enabled to sponsor their children, grandchildren, parents, grandparents, spouses, civil or unmarried partners, or siblings, who are persons registered with the Office of the UN High Commissioner for Refugees or with the authorities responsible for the protection of refugees in the State in which they are present, to come to the UK on terms no less favourable than those under rules made under that section which apply to family members of persons recognised as refugees, save that it may be provided that those sponsored shall have no recourse to public funds; and(b) applications for refugee family reunion from the children, grandchildren, parents, grandparents, spouses, civil or unmarried partners, or siblings of persons recognised as refugees or who have been granted humanitarian protection in the United Kingdom.(2) An order shall be made by the Lord Chancellor under section 9(2)(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (general cases) in respect of family reunion for the persons described in subsection (1) within six months of the passing of this Act.”
Lord Hylton
I have spoken to this amendment, and I thank those who supported it and mentioned it favourably. I give notice that it is a subject to which I am pretty certain we will have to return at Report.
Lord Alton of Liverpool
“Conditions for grant of asylum: cases of genocide
(1) A person seeking asylum in the United Kingdom who belongs to a national, ethnical, racial or religious group which is, in the place from which that person originates, subject to the conditions detailed in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, shall be presumed to meet the conditions for asylum in the United Kingdom.
(2) The adjudication of whether the group to which the person seeking asylum belongs meets the description specified in subsection (1) shall be determined by a Justice of the Supreme Court after consideration of the available facts.
(3) Applicants for asylum in the United Kingdom from groups designated under this section may submit their applications and have them assessed at British missions overseas.”
Lord Alton of Liverpool (CB)
My Lords, in moving the amendment, I thank those noble Lords, from all sides of your Lordships’ House, who encouraged me to table it, and especially the co-signatories, my noble friend Lady Cox, the noble Baroness, Lady Nicholson of Winterbourne, and the noble Lord, Lord Forsyth of Drumlean. The amendment provides a presumption that a person will be granted asylum when a judge of the Supreme Court has determined that a group to which that person belongs is, in the place from which that person originates, subject to genocide. The presumption will operate in the UK but, in addition, applicants would be able to apply at British consular posts overseas. Genocide is defined in Article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide as follows:
“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group”.
Just one week ago, in Strasbourg, the Parliamentary Assembly of the Council of Europe adopted a resolution condemning the actions of Daesh/ISIS in the Middle East as genocide. The resolution, “Foreign Fighters in Syria and Iraq”, states that ISIS,
“has perpetrated acts of genocide and other serious crimes punishable under international law”.
The resolution unequivocally states that the actions that ISIS has committed are genocide, and was passed by 117 votes for and just one against. While we have been considering Day 4 of the Committee stage of this Bill, the European Parliament has been debating and will, tomorrow, vote on a similar resolution to that of the Parliamentary Assembly of the Council of Europe, identifying the plight of minorities such as Yazidis and Christians as genocide. This is a view also shared by 75 Members of your Lordships’ House and another place, who wrote to the Prime Minister just before Christmas urging Her Majesty’s Government to declare events in Syria and Iraq as a genocide. In that December letter to the Prime Minister, the signatories said:
“There is no doubt in our minds that the targeting of Christians and other religious minorities by Daesh falls within that definition”.
Signatories include the former chief of staff, the noble and gallant Lord, Lord Guthrie, and the former head of MI5, the noble Lord, Lord Evans. The letter urges the British Government to seek agreement at the United Nations that we should name things for what they are. The letter insisted:
“This is not simply a matter of semantics. There would be two main benefits from the acceptance by the UN that genocide is being perpetrated”.
The first is that those responsible would one day face a day of judicial reckoning, and the second is that it would require the 147 states who have signed the convention to step up to the plate and,
“face up to their duty to take the necessary action to ‘prevent and punish’ the perpetrators”.
There is now clear evidence that this genocide includes assassinations of church leaders, mass murders, torture, kidnapping for ransom, the sexual enslavement and systematic rape of Christian girls and women, forcible conversions, the destruction of churches, monasteries, cemeteries and Christian artefacts and theft of lands and wealth from Christian clergy and laity alike. The caliphate has made public statements taking credit for the mass murder of Christians and expressing its intent to eliminate these minority communities and other groups, such as homosexuals, from its territory.
The Government response thus far seeks to avoid the duty set out in the convention stating:
“It is a long-standing Government policy that any judgements on whether genocide has occurred are a matter for the international judicial system rather than governments or other non-judicial bodies”.
This is a frustrating and circular argument. Which international courts and judges should decide, on the basis of what process and in considering what evidence? What steps are the Government actually taking to ensure that those courts do indeed urgently consider the matter and reach a conclusion? On 16 December in Parliamentary Answer HL4327, the noble Baroness, Lady Anelay of St Johns, said:
“We are not submitting any evidence of possible genocide against Yazidis and Christians to international courts, nor have we been asked to”.
As for referring this matter to the International Criminal court she told me:
“I understand that, as the matter stands, Fatou Bensouda, the chief prosecutor, has determined not to take these matters forward”.—[Official Report, 16/12/15; col. 2146.]
If no one is willing to name this for what it is or to take this forward then the genocide convention becomes nothing more than window dressing and is an insult to the intention of the original drafters and ratifiers as “never again” inevitably repeats itself over and over again.
Meanwhile, people are being ruthlessly targeted, and so is their culture and history. Last week, we learned that ISIS has obliterated Mosul’s ancient, stone-walled monastery of St Elijah, dating from the sixth century, where monks had etched “chi rho”, the first Greek letters of the word “Kristos”. This attempt to eradicate memory has been accompanied by the obliteration of those whose beliefs do not comply with theirs. Last year, 200 Assyrian Christians in the Khabour river valley were kidnapped and jihadi websites showed graphic executions of some of the group, warning that others would be executed if the ransoms remained unpaid. Last August, the ancient Saint Eliane monastery in central Syria, which was founded more than 1,500 years ago, was destroyed by ISIS and dozens of Syriac Christians were abducted. Last year, a UN report said that ISIS continues,
“to deliberately and wantonly loot and destroy places of religious and cultural significance … which ISIS considers as un-Islamic. Generally, these sites are looted before being destroyed”.
Along with the Yazidi community, Christians have been told to convert or die. Children have been seized, propagandised and indoctrinated with jihadist ideology. That UN report warns that the situation continues to deteriorate, saying:
“UNAMI/OHCHR continues to have grave concerns for the welfare and safety of those held in ISIL captivity”.
The United Nations report states that that ISIS is holding 3,500 slaves hostage, mainly women and children. It said that ISIS has committed acts that,
“amount to war crimes, crimes against humanity, and possibly genocide”,
against minority groups, and that ISIS’s “systematic and widespread violence”, including beheadings, shootings and burnings, was “staggering”. Mass graves honeycomb part of the region. In a recent Parliamentary Answer HL4065, the noble Baroness, Lady Anelay, told me:
“We are aware of reports that mass graves have been discovered … at least one of which was allegedly booby trapped by Daesh”.
Murder is accompanied by other horrors. An estimated 5,000 young Yazidi women and girls have been abducted by ISIS, suffering horrific and prolonged sexual abuse. They were imprisoned for months on end, beaten, burnt and exposed to daily rape and torture. Horrifyingly, some of those victims were as young as nine. Sadly, some girls have taken their own lives in desperate attempts to escape the horrors of captivity.
Baroness Cox (CB)
My Lords, I support the amendment, to which I am a signatory. Last week, my noble friend Lord Alton and I presided over a hearing here in Parliament, where we heard graphic accounts of genocide and crimes against humanity from Yazidis and Christians from Syria and Iraq. Their first- hand testimonies were accompanied by supporting statements from relief organisations and charities working with these beleaguered communities, including Canon Andrew White, the courageous Anglican vicar of Baghdad.
Some 100 years after the Armenian genocide, these contemporary events are a continuation of a systematic campaign of annihilation which was planned by one caliphate, abolished in 1924 by the Grand National Assembly of Turkey but continued by another caliphate under the guise of the Islamic State—Daesh—today. Mass graves, beheadings, rapes, forced conversions, lootings and confiscation of property, are, sadly, nothing new. Nor is our failure to respond adequately to acutely vulnerable minorities.
This amendment is not about the misplaced free-for-all mistakenly promoted by Germany and now being urgently reassessed: nor is it about quotas or the unseemly bidding war about how many people any particular country has taken. Instead, the amendment focuses on a particularly vulnerable group of people now being subjected to genocide and argues that their asylum claims should be prioritised. Our first priority should always be those who have been singled out because of their religion, ethnicity or race. Although many people have been caught up in this suffering, we have particular obligations, as my noble friend highlighted, under the provisions of the Genocide Convention, to these minority groups. We also know that those who have been targeted do not represent a security threat to the United Kingdom and that, unlike for other categories of people, there are no countries in the region where they will be secure in the long term. They have nowhere to go.
In November I and my noble friend wrote to the Prime Minister, urging him to give priority to the most vulnerable—these minorities and children. We welcomed his decision to take vulnerable groups from holding countries such as Lebanon and Jordan, but we also pointed out that many of those fleeing from genocide have been too frightened to enter the camps and were living in informal settings, often without any help being given by UN agencies. In December, I was also a signatory to the letter sent to the Prime Minister—which my noble friend referred to—signed by 75 parliamentarians from both Houses and all sides, urging Her Majesty’s Government to name this genocide for what it is. So far, HMG have failed to do so—but, last week, the Parliamentary Assembly of the Council of Europe declared that the treatment of Christians and Yazidis is indeed genocide.
Our colleagues in the House of Commons have been equally clear. I share with the House the wording of the all-party Motion tabled last week by a group of MPs in another place, which stated that,
“this House is appalled by the beheadings, crucifixions, shootings, burnings, other murders, torture, rape and extensive violence being perpetrated by Daesh or IS against Christians and other minorities in Syria and Iraq on the basis of religion and ethnicity; observes that this disgusting behaviour clearly falls within the definition of genocide as determined by the UN Convention on the Prevention and Punishment of Genocide; notes the recent report from the UN Assistance Mission for Iraq, Protection of Civilians in the Armed Conflict in Iraq, which concludes that Daesh is holding approximately 3,500 slaves, mostly women and children in Iraq, primarily from the Yazidi community, and describes Daesh’s systematic and widespread violence as staggering, concluding that these acts amount to war crimes, crimes against humanity and possibly genocide; and calls on the Government to use all its influence at the UN to create a stated consensus that genocide is indeed being perpetrated so that the provisions of the Convention can urgently, legitimately and effectively be invoked and implemented”.
We should commend our colleagues, such as Mrs Fiona Bruce MP, the chair of the Conservative Party Human Rights Commission, who tabled that Motion, and we should give legislative force to an appropriate response to those who are suffering so grievously. This is urgent, as Christianity and ancient religions such as Yazidism are being wiped out in the Middle East.
Last week’s hearing took place on Holocaust Memorial Day. Among those who participated was Major General Tim Cross. He has said:
“Crucially, the various minorities in the region are suffering terribly. There can be no doubt that genocide is being carried out on Yazidi and Christian communities—and the West/international community’s failure to recognise what is happening will be to our collective shame in years to come”.
He also pointed to the irony that while we are neglecting our duty to protect these minorities we have been opening the door to others who may threaten the very fabric of our society.
Major General Cross quoted the Lebanese Prime Minister, who told David Cameron that he believed that for every 1,000 migrants entering Europe illegally there are at least two extremists—inner-core jihadis—which means that around 16,000 IS fighters have probably entered Europe over the last year or so. While we have been doing this, we have failed to protect those to whom we have a specific duty under international law. Major General Cross said:
“Our dilemma is how we separate ‘values’ and ‘interests’”.
This amendment offers us the opportunity to uphold our values, especially our belief in the rule of law, while also protecting our interests.
If we are not prepared to respond to the victims of genocide, we must seriously ask whether we should remove our signature from the 1948 convention on the prevention and punishment of genocide. What is the point of being a signatory if we are not prepared to accept the obligation—to see, to judge and to act? If we do not take such obligations seriously, as the amendment urges us to do, it fundamentally undermines that convention.
To remind noble Lords of what our obligations are, the convention makes it clear that genocide is not a random killing of individuals but a systematic killing or serious harming of people because they are part of a recognisable group. That group may be,
“national, ethnical, racial or religious”.
The treaty identifies acts committed with intent to destroy that group,
“in whole or in part”.
The convention also covers within the term “genocide” a range of other acts already highlighted by my noble friend.
In short, international law is clear and undeniably covers the many horrors unleashed by ISIL/Daesh in the Middle East—and, I may point out, by Islamist extremists in other countries, including several African states such as northern Nigeria and Sudan, both of which I have visited in the last two months and where I saw comparable horrors and atrocities perpetrated.
If an international law, defined by treaty, is being flouted, and if hundreds of thousands of innocent people who are entitled to rely on the protection of that law are being killed, and millions are being driven from their homes, it is absolutely incumbent on the signatories to that treaty to take action to ensure that it is enforced. Sadly, however, to date the issue has not been high on the agenda of the leaders of more than 100 nations that are signatories to that convention.
The convention is specific. The signatory nations may honour their commitments either by acting alone or by calling on the United Nations to prevent and punish genocide. That provision is hugely important in sending a clear message to the perpetrators of these dreadful acts: it warns them that they will be punished. So how can officials argue and give ambiguous replies that we can do nothing until others act? From the Nuremberg trials of the Nazi leaders after the Second World War to the more recent trials for genocide perpetrated in Rwanda and Bosnia, a very clear message should go out to all those involved in these evil movements of genocide. The message should be: the international community will, sooner or later, come for you. You will be found, you will be captured, you will be tried in accordance with the convention and you will be punished proportionately to your offence. And, as this amendment insists most importantly, we will care for those whom you target in these unspeakable ways.
I urge our Prime Minister and our Foreign Secretary to utter that one word, “genocide”. By using it in relation to the carnage befalling the Christians, Yazidis and other minorities in the Middle East, Her Majesty’s Government would be sending a clear message to ISIS and other groups that there will be a reckoning for their despicable actions.
In conclusion, Britain punches far above its weight in world diplomacy and international relations. We must ask our Government to have the courage to speak the right word to the international community and to follow the word with appropriate deeds. This amendment is an opportunity for us to do just that. At the very minimum, I hope that the Minister will undertake to go back to the Home Secretary and other ministerial colleagues and weigh these arguments with great care between now and Report.
Lord Forsyth of Drumlean (Con)
My Lords, I apologise for not having taken part in any of the proceedings on this legislation. Quarter past 10 at night in the middle of the week seems, perhaps, not the best moment to set forth on this matter. However, I am ashamed to say that until I was briefed by a friend, Mr Graham Hutton, chairman of the Aid to the Church in Need, about the position of Christians in Syria and Iraq, I was wholly ignorant of the extent of the atrocities that are occurring.
Lord Dubs (Lab)
My Lords, anyone who went to any of the events connected with Holocaust Memorial Day just a few days ago will know that people said in 1945, “Never again”. Then we had serious tragedies and genocides in Bosnia, South Sudan and elsewhere. We keep saying that it must never happen again but it still does. I found the arguments put by the three Members of the Committee who have spoken to the amendment very powerful. They are in the spirit of the commitments made on Holocaust Memorial Day—“Never again”. They are saying that because it is still happening we have to do something about the victims. I very much support the amendment.
Lord Marlesford (Con)
My Lords, the Government should be rather ashamed that this debate is necessary. It has taken the whole consideration of the Bill on to a different plane from all the other amendments that I have listened to. It is so terrible that so-called diplomacy should be unable to do what is right. I have been deeply shocked that the Government, in being asked to give priority to Christians among the 20,000 Syrians who we are to admit during this Parliament as refugees, have said that they cannot do so because they cannot discriminate. The whole concept of refugees and asylum is discrimination. It is giving succour to those who need succour. I will go no further except to say that if the amendment were to come back to the House at Report and the Government resist it, they would be overwhelmingly and humiliatingly defeated.
Lord Judd (Lab)
My Lords, apart from all the powerful arguments of support that have been put forward, the speech by the noble Baroness, Lady Cox, is one that we must all take particularly seriously. No one in this House has put their own life more on the line on issues of this kind than she has, and she has consistently done that with great courage. When she comes to us and says, “Please take this one step that would help, in terms of all that I have experienced”, we must take that seriously. I also feel very deeply that there is a real crisis in credibility with populations across the world. Governments speak with great rhetoric about these issues, but sometimes fail to provide the practical evidence that that rhetoric adds up to anything. Here is a chance to demonstrate that we mean what we say.
Baroness Hamwee
My Lords, from these Benches I support the amendment. When I first started going to ceremonies to mark Holocaust Memorial Day, what struck me most were the current examples that were used and of which we were reminded. Each year a theme is chosen and it is salutary to realise how topical those themes are. This is topical. There are many groups of people who are the subject of the treatment which has been described, and it has been notable during debate on this Bill how many noble Lords have referred to the experiences of their families. We may not be directly related to the people who are in such a situation, but as noble Lords have pointed out, we are all part of that one family.
Lord Wigley (PC)
My Lords, I had not intended to intervene in this debate either, but having listened to the noble Lords, Lord Alton and Lord Forsyth, and others, I cannot help but raise a voice on behalf of the Christian community. We are to a greater or lesser extent Christians in this country. We may not be very good Christians, but the idea that we cannot intervene on behalf of a Christian community because we might be discriminating strikes me as being absolutely unacceptable and appalling. I hope that the Government will take close notice of that and think about this serious issue.
Lord Bates
My Lords, I thank the noble Lord, Lord Alton, for his moving speech. He spoke with his typical passion, and the way he presented the arguments and the accounts he gave have certainly had a great effect on me. I think that he has done a great service to the Committee by drawing the plight of Christians in the Middle East to our attention. My noble friend Lord Forsyth invited me to tear up my speech before he had actually had an opportunity to hear it, and of course he invited me to do it while I am currently enjoying the privilege of the company of the Chief Whip, who perhaps is little worried that I might take my noble friend’s advice.
I feel very strongly about this. We cannot be anything other than moved by the brutality and evil that we are seeing unleashed in the Middle East by Daesh. I have seen something of the situation for myself on a personal visit to Zahlé, which is the capital city of the Bekaa Valley and a Christian community. I am acutely aware of the pressures to which people are subject out there. However, I cannot accept that this Government are not doing everything they can; we are leading the way. We are in the week—tomorrow, I think—when the Prime Minister will host a conference on Syria here in London, just across the way. He will urge other people to step up to the mark. A DfID report pointed out that Britain is paying more than its fair share. It recognised that we are paying 226% of our international obligation in terms of cash to support people in the region. We are hosting the event and acting diplomatically by urging for a solution to the crisis, and of course we are also acting militarily in the region.
We need to put on the record some of these points because I think some myths are arising within the Christian community, and I say this very carefully as a member of that community. Some myths are emerging about where the discrimination occurs. We are not saying that Christians will not be considered but that they will be considered on an individual basis, and the criteria we are looking at, particularly within the Syrian Vulnerable Person Resettlement scheme, include women and girls at risk, those in need of serious medical care, and the survivors of torture and violence. Of course, in all the accounts we have heard about, they would certainly seem to be people who would qualify under that definition by what they have suffered and what they have experienced when they present to the authorities rather than by a general description. That is the central case we have put. At the moment, the basic principle is that applicants for refugee status must establish their need for protection on an individual basis, and for that reason we do not think that putting this to the Supreme Court is necessarily the right way. We believe that under the current rules, we have the ability to help the people who are in need.
We also need to put on the record at this point that the people who are actually suffering the greatest brutality at the hands of Daesh are fellow Muslims in the region—and the Yazidis, the Kurdish groups, that are there as well. They are suffering, too, and our prime driving force when providing international humanitarian protection, which is what it is, is on the basis of need. That will continue to be our position.
I am very happy to meet noble Lords who have an interest in this area, with officials, to ensure that our system is sufficiently sensitive to understand what is happening on the ground—and the accounts of the noble Baroness, Lady Cox, and the experiences of the Bishop of Aleppo. We want that understanding so that it can inform our decision-making and ensure that our system is correct and appropriate. I reiterate that those Christians who are female, at risk of persecution, survivors of torture and/or violence are exactly the people that our systems of humanitarian aid in the region and our systems of relocation to this country are designed to help.
Lord Forsyth of Drumlean
I am grateful to my noble friend. I entirely accept what he says about Muslims being subject to horrors as well as Christians, but could he deal with the point that the problem for Christians is that they cannot go to the official camps because they fear for their safety, because, once again, they are a minority? Is there any possibility of creating some kind safe haven? That in itself may create a further security problem for them. The genocide point is that it would enable immediate action to be taken.
Lord Bates
Certainly, the situation is that we would take families from within the camps and from the surrounding areas. It is not exclusively from the camps; it is those who are identified as being in greatest need. The noble Lord, Lord Forsyth, raises an interesting point on the camps. I shall certainly feed that back to the department and seek some reassurance, and perhaps write to him and other noble Lords on what protections are arranged in the camps where DfID and others are involved to be sensitive to the needs of Christians.
Lord Alton of Liverpool
I thank my noble friend Lady Cox, the noble Lords, Lord Forsyth, Lord Dubs, Lord Marlesford and Lord Judd, the noble Baroness, Lady Hamwee and the noble Lord, Lord Wigley, for their contributions to the debate and for supporting the amendment. I thank the Minister as well for the characteristic way in which he has tried to deal with the arguments that have been raised during our debate.
He mentioned the conference that will be taking place tomorrow. Last week I attended a briefing that was hosted by Justine Greening, the Secretary of State at the Department for International Development. Throughout the presentation, not once was the position of minorities mentioned. I specifically raised that at the end of the presentation and the Secretary of State was helpful in her response, but it was not a presentation about events on the ground; it was about money being provided in humanitarian relief and aid. Important though that is, it is not the subject of the amendment and it is not the subject of my concern. I pay tribute to the Government for what they have done by way of humanitarian aid and I agree with them that countries such as Germany, which is co-hosting the conference, need to do more on that front and that we need to tackle these problems at source. Until we rectify some of the reasons why people are being driven out of their homeland, we will continue to see this exodus of biblical proportions.
The Minister and I are on the same page on that. I agree with what the Government are doing in that respect, but money and aid are not the same as recognising what is happening on the ground as a genocide. That is why I cited the resolution of the Parliamentary Assembly of the Council of Europe last week. We will see what the European Parliament decides today, but other national Parliaments, the 75 Members of both Houses, and the Motion referred to by my noble friend in the House of Commons last week say something altogether different, which is why the noble Lord, Lord Marlesford, said he was ashamed that this debate was necessary at all. So am I in many respects; we should not need to be debating this.
The Supreme Court is different from the Government. It is one step aside. If there is no evidence to demonstrate that there is genocide then the Supreme Court would say that. The Justices of the Supreme Court would make that determination and nothing further would have to happen. But if it decided that there was a prima facie case of genocide, then it would kick-start all the other things that need to happen, especially the special status that would then be given to those groups who had been targeted. Yes, they include Christians, but not Christians alone. They would be prioritised because they are victims of genocide. That would be the reason.
I am grateful for what the noble Lord said about meeting those of us who proposed the amendment tonight. I welcome that and certainly I would be happy to take part in discussions between now and Report, but it is important that the Foreign and Commonwealth Office, the Ministry of Justice and DfID, which the Minister referred to, are also part and parcel of that discussion. I know that some of the pressures against doing something on this issue have come from other departments.
We were told during this brief debate that we should recognise the magnitude of this catastrophe, but people had no idea of the scale of what is happening. There cannot be decent societies in the Middle East without plurality, diversity, tolerance and respect. Surely those have to be the reasons why we put this at the very top of the agenda. I have said before that Einstein’s definition of insanity is simply doing the same thing over and over again. Whatever military campaigns we have, however necessary it may be to engage in military action, will not fundamentally change things on the ground. What marks us out as different from organisations such as ISIS is our belief in the rule of law. Surely this goes to the very heart of what it means to believe in the rule of law and to uphold conventions that we are signatories to and which impose on us a duty to protect and to prosecute.
I beg leave to withdraw the amendment, but I also give notice that I intend to bring this back on Report if we are unable to make appropriate progress.
The Deputy Chairman of Committees (Baroness Stedman-Scott)
I remind the Committee that if Amendment 234B is agreed to, I will not be able to call Amendments 234C to 234F by reason of pre-emption.
Lord Bates
Lord Bates
“After paragraph 2 insert—
“2A (1) Paragraph 1(1)(g) or (ga) does not prevent the provision of support or assistance under a relevant provision to a person to whom paragraph 1 would otherwise apply by virtue of paragraph 7B if—
(a) conditions A and B are satisfied in relation to that person, and(b) condition C, D or E is satisfied in relation to that person.(2) In sub-paragraph (1) “relevant provision” means—
(a) section 23C, 23CZA or 23CA of the Children Act 1989,(b) regulations under section 23D of that Act, or(c) section 24A or 24B of that Act.(3) Condition A is that—
(a) the person has made an application for leave to enter or remain in the United Kingdom, and(b) where regulations made by the Secretary of State require that the application must be of a kind specified in the regulations for this condition to be satisfied, the application is of that kind.(4) Condition B is that—
(a) the application is the first application for leave to enter or remain in the United Kingdom that the person has made, or(b) where regulations under sub-paragraph (3)(b) require that the application must be of a kind specified in the regulations for condition A to be satisfied, the application is the first application of that kind that the person has made.(5) Condition C is that the application has not been determined or withdrawn.
(6) Condition D is that—
(a) the application has been refused,(b) the person could bring an appeal under section 82(1) against the refusal (ignoring any possibility of an appeal out of time with permission), and(c) if the person brought such an appeal, it would not be one that, by virtue of section 92(6), would have to be continued from outside the United Kingdom. (7) Condition E is that—
(a) the application has been refused,(b) the person has appealed under section 82(1) against the refusal,(c) the appeal is not one that, by virtue of section 92(6), must be continued from outside the United Kingdom, and(d) the appeal is pending within the meaning of section 104.(8) For the purposes of sub-paragraph (3) the Secretary of State may by regulations provide for circumstances in which—
(a) a person is to be treated as having made an application for leave to enter or remain in the United Kingdom (despite not having made one), or(b) a person is to be treated as not having made such an application where the Secretary of State is satisfied that the application made is vexatious or wholly without merit.””
Lord Bates
“Seventh class of ineligible person: primary carer without leave to enter or remain7C (1) Paragraph 1 applies to a person in England (“P”) if—
(a) P is the primary carer of a British citizen (“the relevant British citizen”),(b) the relevant British citizen is residing in the United Kingdom,(c) the relevant British citizen would be unable to reside in the United Kingdom or in another EEA State if P were required to leave the United Kingdom,(d) if circumstances were not as mentioned in paragraphs (a) to (c), under the Immigration Act 1971 P would require leave to enter or remain in the United Kingdom but would not have such leave, and(e) P is not an asylum-seeker.(2) Paragraph 1 also applies to the dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).
(3) In making for the purposes of this Schedule or regulations made under it a determination as to whether sub-paragraph (1)(c) applies in relation to P, a person may rely on—
(a) a document of a kind specified in regulations made by the Secretary of State, or(b) information or guidance provided by the Secretary of State for the purposes of such a determination.”
Lord Bates
“( ) Condition B is that—
(a) the person could bring an appeal under section 82(1) (ignoring any possibility of an appeal out of time with permission), and(b) if the person brought such an appeal, it would not be one that, by virtue of section 92(6), would have to be continued from outside the United Kingdom.”
Lord Bates
“( ) The Secretary of State may make regulations providing for arrangements to be made for support to be provided to a person (“P”)—
(a) to whom paragraph 1 applies by virtue of paragraph 7B(1) or 7C(1), and(b) who it appears to a person specified in the regulations may be destitute,until a person by whom support may be provided under arrangements by virtue of sub-paragraph (1) is able to determine whether such support should be provided to P.”
Lord Bates
“( ) who would otherwise be eligible for support or assistance under section 23C, 23CZA or 23CA of the Children Act 1989, under regulations under section 23D of that Act or under section 24A or 24B of that Act,”
Lord Bates
“( ) Condition B is that—
(a) the person is destitute, (b) the person could bring an appeal under section 82(1) (ignoring any possibility of an appeal out of time with permission), and(c) if the person brought an appeal under section 82(1), it would not be one that, by virtue of section 92(6), would have to be continued from outside the United Kingdom.”
“( ) The Secretary of State may make regulations providing for arrangements to be made for support to be provided to a person (“P”)—
(a) to whom paragraph 1 applies by virtue of paragraph 7B(1), and(b) who it appears to a person specified in the regulations may be destitute,until a person by whom support may be provided under arrangements by virtue of sub-paragraph (1) is able to determine whether such support should be provided to P.”
Lord Bates
“(1) Paragraph 16 (orders and regulations) is amended as follows.
(2) ”
“(3) In sub-paragraph (3) after “2(1)(d) or (e)” insert “or 2A(3)(b)”.”
“In Schedule 3 to the Immigration Act 2014 (excluded residential tenancy agreements) after paragraph 8 insert—
“8A An agreement under which accommodation is provided to a person under arrangements made by virtue of paragraph 10A or 10B of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (support for certain persons who are otherwise ineligible for support by virtue of that Schedule).””
Baroness Hamwee
Baroness Hamwee
My noble friend Lord Paddick and I also have Amendments 236ZG, 236ZH and 236ZJ in this group standing in our names. The noble Lord, Lord Wigley, will be glad to know that we have not cut out his amendments on the position of the devolved Administrations.
Clause 39 is a relatively new clause drafted by the Government to address the situation of certain local authorities coping with very large numbers of children—the relevant children for the purposes of the clause—who are in need of care, supervision and protection in the current circumstances. These amendments are essentially probing. I preface my remarks by saying how much I understand the dilemma that both local authorities and central government are facing in trying to address all this. I know that they are working together to try to find the best arrangement.
Amendment 236ZF is not traditional drafting, and I do not defend it in that way, but it deals with the regulation-making power about arrangements under this clause, which provides that the Secretary of State may make further provision by regulations, as is usual. I know it is normal to refer simply to the Secretary of State but there are clearly a number of Secretaries of State who should have a role in these arrangements. I rather doubt that the Secretary of State for the Home Department should be the one taking the lead. I appreciate that that is not necessarily implicit in the way that the clause is drafted. The amendment refers to consultation with:
“Secretaries of State with responsibility for children and for communities and local government”,
who clearly are involved, and I would be grateful if the Minister could explain how the situation is being addressed across government.
Clause 42 allows the Secretary of State to prepare a scheme to transfer responsibility from one local authority to another. Amendment 236ZG would provide that:
“Before finalising the scheme, the Secretary of State must consult the local authorities to which the scheme relates”.
I am sure we will be given assurances about this. We tabled this amendment because we are instinctively unhappy about the notion of a Secretary of State having a power of direction over local authorities. Clearly, the best way to deal with these problems is through discussion and coming to arrangements, compromises and so on by the local authorities concerned. Again, I seek some reassurances from the Minister about the Government’s approach.
Amendment 236ZH would provide that the scheme for the transfer should,
“specify the provision of resources”.
We are talking about a very resource-intensive exercise. The Local Government Association is being very moderate in its language referring to this but clearly it is a concern for local authorities. Indeed, it is because of the strain on Kent in particular that the Government have now produced these proposals.
We tabled Amendment 236ZJ to seek assurances that the points raised in a proposed new clause on the best interests of the child will be carried through into guidance and practice, even if they are not spelled out in the Bill. These issues are already in guidance in respect of other situations and provide that the child’s best interests are considered in any decision to move a child to a different local authority. They spell out some of the factors that would weigh against the child being moved, such as having lived in the initial authority for some time, having family members or other relationships in the first authority, that the processing of the child’s asylum or immigration application has started, that a legal representative in the first authority has been instructed, and that the child is established in education there. Regard should also be had to,
“the availability of legal advice and representation … in the second authority”,
and,
“the availability of services in the second authority to meet the religious and cultural needs of the relevant child”.
As I say, these issues are well understood and in guidance relating to other situations. I look forward to the Minister giving assurances. They should not be very difficult to give, particularly on that last amendment. I beg to move.
Lord Wigley
My Lords, I wish to address myself to Amendments 237 and 238, which are linked with this group. I apologise—I almost interrupted a little earlier when I thought that we were rushing forwards in a way that had overtaken my amendments.
The noble Baroness, Lady Hamwee, referred to the Secretary of State having power of direction over local government. My concern is with the implication of Clause 43: that the Secretary of State may have powers of direction not just over local government but over the national Governments of Wales, Scotland and Northern Ireland. If we are indeed to have the respect agenda to which the Government have made much reference over recent months, then in so doing there should quite clearly be a question of prior consent before that is taken on board.
Amendment 237 would insert the words,
“if consent to such application has been granted by the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly respectively”.
I would have thought that was basic common sense. I would also have thought that this is the way in which the Government would have wanted to act. The provisions in these amendments may be covered elsewhere, in some way which I have not picked up, but if they are not I suggest strongly to the Government that some such provision should be built in. In any case, to what extent have the Government had any discussions with the Governments of Wales, Scotland and Northern Ireland with regard to the implementation of these provisions? I would be very interested to know that.
I should emphasise that the question of children’s policy has been uppermost on the agenda of the National Assembly for Wales. Our Children’s Commissioner was among the first in these islands and a lot of attention has been given in public policy to ensuring that children are uppermost in our thoughts. I have no doubt at all that the National Assembly for Wales—and, I am sure, the Scottish Parliament and the Northern Ireland Assembly—wants to play a constructive and positive role in helping in these circumstances. But it should be by partnership, not by direction, and I would be very interested to hear the Minister’s response on that point.
Lord Bates
My Lords, first, there was a letter of 24 November which I think will answer a lot of the concerns of the noble Baroness, Lady Hamwee. It went to all council leaders and was on the dispersal of unaccompanied asylum-seeking children, and it was jointly from the Home Secretary, the Secretary of State for Education and the Secretary of State for Communities and Local Government. In fact it set out, as the noble Baroness requested, what financial support was available and encouraged local authorities to participate in the scheme. I will make sure that she gets a copy of that letter and that it is also sent to other members of the Committee.
These amendments raise important issues concerning Clauses 39 to 43. These provisions are intended to underpin new arrangements for the transfer of children, which we are developing together with the Local Government Association, the Department for Education and the Department for Communities and Local Government. We know that the crisis in Syria and events in the Middle East, north Africa and beyond have seen an unprecedented increase in the number of migrants. Many of them are arriving in the UK, particularly in Kent. There are now 900 unaccompanied asylum-seeking children in the care of Kent County Council, nearly 300 of whom have been placed with other local authorities. This has placed significant pressure on the council and its children’s services, as the noble Baroness, Lady Hamwee, acknowledged.
I thank all those in Kent for the excellent response which they have shown. The Government are clear that wider arrangements need to be made to support the county and ensure that unaccompanied asylum-seeking children get the support they need and are appropriately safeguarded. Additional funding has been made available to the local authorities which take responsibility from Kent County Council for caring for unaccompanied asylum-seeking children.
We hope that the new transfer arrangements will remain voluntary. However, Clauses 39 to 43 will underpin those arrangements in England if necessary. Clause 39 introduces a new power to make it easier to transfer unaccompanied migrant children from one local authority to another. Clause 40 will enable the Secretary of State to direct local authorities to provide information about the support and accommodation provided to children in their care. This will inform the new transfer arrangements. Clause 41 will enable the Secretary of State to direct the provision of written reasons as to why a local authority refuses to comply with a request to accept responsibility for an unaccompanied migrant child from another local authority area.
Clause 42 will enable the Secretary of State, if necessary, to require local authorities to co-operate in the transfer of unaccompanied migrant children from one local authority to another. Clause 43 will enable regulations subject to the affirmative procedure to make similar provision in relation to Wales, Scotland or Northern Ireland for the transfer of unaccompanied migrant children. I will come back to the point raised by the noble Lord, Lord Wigley, in a moment.
Amendment 236ZJ would make detailed statutory provision for the use of the new powers. I agree with much of the thinking behind the proposed new clause, which raises several issues for which the new arrangements will need to make provision and which will need to be taken into account. But we do not consider that it would be helpful to make such provision in the Bill. Many of the issues on which we are currently working with the Local Government Association and others are designed to provide the optimum arrangements for both local authorities and the children concerned.
We agree that issues such as proper continuity in the process for considering the child’s asylum claim or immigration application will need to be addressed, as will the continuity of the social care and educational provision made for them. Any regulations made or any scheme prepared by the Secretary of State to underpin the new transfer arrangements will need to provide clarity as to roles, responsibilities, timescales and other relevant factors. This will be the focus of the continuing joint work with the Local Government Association and others. We think that it is right to retain flexibility within primary legislation to allow that work to continue and to arrive at solutions which meet the needs of the children and of the local authorities that will be responsible for their care.
Amendments 236ZF and 236ZG require consultation across government and with local authorities before regulations are made under Clauses 39 to 42. I am happy to give assurances that such consultation is continuing. Amendment 236ZH requires that a scheme under Clause 42 should specify the provision of resources. I am happy to give an assurance that funding arrangements will remain integral to the work of developing and implementing the new transfer arrangements.
Amendments 237 and 238, in the name of the noble Lord, Lord Wigley, would require the consent of the devolved legislatures before regulations under Clause 43 could be made, subject to the affirmative procedure, making similar provision in relation to Wales, Scotland or Northern Ireland for the transfer of unaccompanied migrant children. This important issue was raised by the Constitution Committee in its report on the Bill. Immigration is a reserved matter and the transfer of migrant children is not an area in which Wales, Scotland or Northern Ireland have legislative competence. Their consent is not required for the UK to legislate in this area. However, we have been liaising, and will continue to liaise, with the devolved Administrations to see how the transfer arrangements, which we hope can be voluntary, might be extended to Wales, Scotland and Northern Ireland. We will continue to work closely with them on these issues, but we are clear that we must make statutory arrangements if necessary.
Lord Wigley
Will the Minister reflect on the fact that although the power may be reserved for the transfer of children, the responsibilities and the powers associated with those responsibilities to undertake safeguarding and to look after those children rest, almost entirely, in Wales with the National Assembly, in Scotland with the Parliament, and in Northern Ireland with the Assembly—and to the extent that it is devolved to local authorities, with local authorities? Therefore, is it not sensible to have written into the Bill that such consultation should take place in advance? Just landing it on the National Assembly without any prior consultation, seems, to say the least, to be cavalier. Is that the way in which co-operative politics should be working?
Lord Bates
I do not think that that would happen; it is certainly not what is intended. We intend that there should be full consultation with the devolved Administrations on these matters, and we hope that a voluntary scheme can be arrived at. I make the general point that we all agree that Kent, in particular, is bearing an unfair share of the burden of caring for unaccompanied asylum-seeking children. We often hear in this House many fine words from local authorities but, so far, only six or seven out of 440 have stepped up to be part of the scheme on a voluntary basis. That is why we want to include this provision. It would be wonderful if more local authorities in Wales and in England came forward to take some of these children about whom we have talked so much tonight as being in need and share the responsibility, but if they do not, it is important that the Secretary of State has this power.
Lord Teverson
I ask the Minister on a practical basis and in a positive way what channels the Government recommend that individual families who want to help should use.
Lord Bates
There will be a national register for those who want to help, in particular, with Syrian children. That is being brought together. That is a different arrangement. The children and families who we are currently taking from Syria are in acute need, often medical need, or have suffered violence. They are not those who would be most suitable for a room in someone’s home—they need particular attention. Further down the line, as we continue to help people fleeing that dreadful situation, we will want to take up those offers that have been generously made from charities, individuals and churches. That is why the national register is being put together, and it will be overseen by Richard Harrington, who is the Minister responsible for the Syrian vulnerable persons scheme.
Lord Wigley
I am sorry to come back on this, but the Minister referred to the fact that only a handful of local authorities have come forward. I happen to know, because I am active with the refugee committee in my home town of Caernarfon, that Gwynedd County Council has been trying to help in this regard. Gwynedd County Council and other local authorities in Wales come under the National Assembly for Wales. There may well be a systematic breakdown here because of a lack of consultation with the National Assembly, the Scottish Parliament, et cetera, which are the interface with local authorities in those countries. Will the Minister look at this between now and later stages to ensure a systematic approach so that everybody is brought in and those with good will and a wish to help are facilitated to undertake exactly that help?
Lord Bates
Yes, that is something that I am happy to undertake to do. To clarify the situation, the six local authorities I referred to were just for the Kent dispersal scheme. It is invidious to single out particular local authorities. I was making the more general point that it would be wonderful if more local authorities came forward. We certainly want to ensure that the generous offers made, to which the noble Lord referred, are fully explored, so that help can be provided where it is offered.
Baroness Hamwee
My Lords, it might be invidious, but I am going to do it, although in a related context. On the call for local authorities to assist with providing accommodation for refugee families, I am ashamed that the leader of my local authority of Richmond upon Thames explained that it was not possible to assist because it is not a housing authority. I think that that is using technical language which could be applied very widely across the country, but has not deterred others.
The statement from the Local Government Association on the current position, issued especially in response to the calls for admitting 3,000 unaccompanied asylum-seeking children, starts by calling for the programme to focus on family reunification, which takes us back to debates we just had. The statement refers to the current financial arrangements for taking on full Children Act responsibilities and funding the leaving care support. It says that these are currently due to expire at the end of March. The statement was dated 27 January and I would guess that the Minister has no further news about that—he shakes his head. Clearly that is worrying the LGA and it must worry us all. Of course, I agree that reaching a consensus and partnership—the word I was struggling for before—is the most important way of addressing this. As I have said before in this Chamber, the costs would be considerable. There is the shortfall in the number of foster carers. Whatever the number of altruistic people who offer to take children, there is no avoiding the cost of support for them in undertaking an extremely difficult job in looking after these children. The LGA also says that a regional approach to resettling refugees rather than a case-by-case model controlled centrally would be more effective in utilising the funding for local authorities to support resettlement.
The Minister answered Amendment 236ZF but I do not think he said whether those factors will be included in guidance. Given the hour, I will not ask him to continue—but he made a sort of semaphore indication that he will write on that point. I am grateful for that. I beg leave to withdraw the amendment.