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 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.
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.
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);”
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”.”
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.