The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I am obliged to the right reverend Prelate and to the other noble Lords who have spoken in this debate. I begin by observing that the noble Lord, Lord Rosser, has very helpfully advanced matters by answering his own question. He identified what he termed “the key words”, and precisely so. The key words are,
“if the Secretary of State is made aware”,
or where someone,
“makes the Secretary of State aware”;
and, of course, it is largely for a parent or carer to do just that in the circumstances that pertain. Therefore that is where we stand, just as we did in Committee.
On Amendment 113, from the noble Lord, Lord Roberts of Llandudno, there is undoubtedly a generous spirit behind it in allowing any person who arrived in the United Kingdom as an unaccompanied child to be exempt from deportation once they reach the age of 18. However, it is necessary to bear in mind certain points. First, when you examine the figures with regard to the arrival of unaccompanied children who fail to qualify for refugee status, you find that the vast majority are aged 16 or over—16 or 17 years of age. Consequently, they have not spent the vast proportion of their life in the United Kingdom; indeed, they will have spent very little time in the United Kingdom by the time they reach the age of 18.
The difficulty is that the consequence of the amendment would be damaging for the legitimate immigration control which is required in these circumstances and for the deterrence of crime and the protection of the public. The amendment would prevent the deportation of any foreign national offender—regardless of the severity of the crime they had committed or the risk they posed to the British public—as well as those who would otherwise be liable to deportation simply because they had arrived in the United Kingdom as a minor and claimed asylum.
We are conscious of our history of offering protection to those in need and, clearly, no Government will seek to return an individual to a country where they face persecution or serious harm. However, we will deny asylum to those who are not refugees or who have committed serious crimes and are a danger to the public, and will seek to return them as soon as it is safe to do so. Some unaccompanied asylum-seeking children are genuine refugees and we are clearly committed to protecting them for as long as they need such protection, but a very large number are not. This amendment would take no account of the outcome of an asylum claim nor the criminality committed by an individual. It could also create a pull factor, encouraging more children to risk their lives on hazardous journeys and play into the hands of people smugglers and traffickers. For that reason, we do not consider that such an amendment would be appropriate.
I turn to the amendments which relate to Clause 59: the power to certify that an appeal against the refusal of a human rights claim must be brought from outside the United Kingdom, which is, as was noted, a manifesto commitment. In Committee in this House we undertook to reflect on putting in the Bill that a decision to certify under Clause 59 will be subject to a consideration of the best interests of the affected child. We have done so. Amendment 145 makes it explicit in the Bill that Section 55 of the Borders, Citizenship and Immigration Act 2009 applies to all the provisions of the Bill, including a decision to certify that an appeal against refusal of a human rights claim must be brought from outside the United Kingdom. In doing so, it preserves a fundamental principle of the way this power is to be applied—namely, the individual consideration of each case on its own facts. By contrast to the foregoing, Amendments 113A, 113B, 114 and 114A seek to impose requirements on the manner in which this power is to be applied. Such an approach would be inimical to the principle that to achieve the right outcome for certification under this power each case must be considered individually, while having regard to legal obligations and the relevant guidance.
Amendments 113A and 113B, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, would prevent the certification of claims made by persons with the characteristics specified. The result would be that they could not be required to leave the United Kingdom while their appeal was pending. While this amendment may be well intentioned, it does not deliver additional protection and has the detrimental effect of limiting the scope of Clause 59. The protection that the amendment seeks to deliver is inherent in Clause 59. The scope of the power in the clause is already circumscribed, as it cannot be used where to do so would cause serious irreversible harm or otherwise breach human rights.
These amendments would replace a case-by-case consideration sensitive to the nuances of individual circumstances with a blanket set of criteria. The result would be that the Secretary of State would be unable to certify claims in some cases, even where there would be no serious irreversible harm or breach of human rights as a result.
The Secretary of State gives careful and proportionate consideration to cases where children are involved, and we have brought forward an amendment to make that duty clear on the face of the Bill. Nevertheless, there are circumstances in which it may be appropriate to use this power where a human rights claim made by a child has been refused—for example, where a child is living in the United Kingdom with members of his wider family but his parents remain in his country of origin.
In respect of trafficking victims, I hope it is reassuring for noble Lords to note that this power will not apply to those who have made an asylum claim, as Clause 59 does not apply to asylum claims. Where, unusually, a trafficking victim makes a human rights claim, that claim can be certified only where no serious irreversible harm or other breach of human rights will result—namely, where a person will not face harm on return to their country of origin. It is right that in those cases it should be open to the Secretary of State to consider certification.
We can provide further reassurance in respect of those whose claim to be trafficked has yet to be determined. No negative decision will be made on any human rights claim until the trafficking claim has been determined. Therefore, any such decision, including any decision to certify, will be informed by the outcome of the trafficking consideration.
Amendment 114 seeks to prescribe the mechanism by which the best interests of a child must be considered by requiring a wide-ranging assessment of a long list of factors—I will not rehearse them all here—in relation to any child whose human rights may be breached by a decision to certify. Many of these factors may indeed be relevant in a particular case and will form part of a best-interests assessment by the Secretary of State. However, the current framework is for this to occur only where relevant to the individual circumstances of the case and not for every listed factor in every case to be considered in a blanket manner.
The amendment would require intrusive and potentially irrelevant investigations, even in cases where the carer or parent, best placed to inform the Secretary of State about the impact on their child, had not provided any information to suggest such an impact. We are concerned that this could have a negative impact on the children it seeks to protect. Indeed, the investigation could put a child in the position of feeling that they were to blame if the claim were certified, notwithstanding their evidence.
The amendment is simply disproportionate. It requires an independent investigation in every case, even though published guidance is clear that, where independent advice is necessary, appropriate and relevant, and it is not provided by the person affected, the Secretary of State can seek it. The amendment would also be unworkable in practice. It would require an assessment of factors which go far beyond the effect of the decision to certify the case and stray into the realms of a full care assessment.
The role of the Secretary of State in these decisions is very different from that of the courts in considering a child’s welfare in, for example, family proceedings under the Children Act, from which it appears to me that the list of proposed factors has been drawn.
The amendment may have unintended adverse consequences. It may allow unco-operative parents to frustrate a consideration of whether to certify by failing to provide information to the assessor. It is therefore, as I observed earlier, wholly disproportionate.
I turn, finally, to Amendment 114A, which would require successful appellants to be returned at public expense within 28 days of a successful appeal. This amendment proceeds on the basis that the Secretary of State’s original decision was always wrong when an appeal is allowed. That is a misconception. Appeals can be allowed for many reasons, including a change of circumstances or new evidence submitted at a late stage by the appellant. The Home Office makes an assessment on the basis of the proceedings in the appeal—for example, whether late or new evidence was provided by the appellant that the Home Office had not previously had an opportunity to consider, and on the basis of the appeal determination itself. Therefore, the analysis is fact-sensitive.
This amendment, however, would require the public purse to pay for the return of all individuals subject to certification who are successful on appeal, including foreign national offenders and those who have already received financial assistance to leave the United Kingdom through the facilitated returns scheme. Our guidance strikes a better balance, ensuring that factors such as an individual’s ability to pay for return or the reasons why the appeal was allowed are taken into account, and that the cost of return comes from the public purse only where necessary. We consider that this is a fair approach.
Lord Keen of Elie
I wonder if I may be permitted to correct the noble Lord, Lord Rosser: it is the court’s interpretation of the obligation, as is found in the case of SS (Nigeria) in 2014. It is on the basis of that judicial interpretation of the obligation that the Secretary of State proceeds. I am obliged to the noble Lord for the question.
Baroness Hamwee
Before the Minister sits down, he referred to guidance with regard to payment for the return of an appellant following a successful appeal. The guidance that I referred to relates to deportation—inevitably, because that is the current position. Is the Minister saying that equivalent guidance is to be provided in the case of appellants in this situation?
Lord Keen of Elie
I am not in a position to immediately answer that question but, if I may, I will write to the noble Baroness on that point.
Lord Roberts of Llandudno
I am grateful to the Minister for responding. His facts and figures are a wee bit at variance with those that I have, and I think that we need to explore this further. Therefore, tonight, I will withdraw this amendment, but I suggest that we come back to this subject very soon because so many refugee and voluntary organisations are very concerned about this deportation dating. I beg leave to withdraw the amendment.
Lord Rosser
Briefly, I am genuinely not clear what the problem is for the Government in accepting Amendment 116, which presumably would not involve large sums of money. As I understand it, it affects not people who have had their claims turned down and who have to leave the country, but people who receive a resident’s permit to remain in the country for differing reasons and differing periods of time. If it is the case that there is a gap between asylum support payments and mainstream payments, because matters are not all being dealt with within what is presumably the intended 28-day period, then, frankly, why not agree to the amendment? I hope that the Government will be able to give a helpful response to what, on the face of it, appears to be a pretty straightforward issue.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to the noble Baroness, Lady Lister, for moving her amendment and for maintaining pressure in this important area. She and the Red Cross have managed to identify a bureaucratic problem that we accept needs to be addressed.
In responding, I will place on record a few points. The first is my letter of 10 February, which is in the combined pack and set out my initial responses. I was also very grateful for the opportunity to meet—with the noble Baroness—officials. We talked through the reasons for the delays and the evidence. I know that that was something the officials found extremely helpful. It contributed to the response that I give now.
I thank the noble Baronesses, Lady Lister and Lady Hamwee, and the right reverend Prelate the Bishop of Norwich for bringing forward Amendment 116 concerning the transition off Home Office support of asylum seekers granted refugee status or other leave to remain. I agree with them on the importance of these arrangements, which we discussed at our meeting on 25 February. I also thank the British Red Cross for its excellent work in this area and for its advice ahead of this debate.
We allow a grace period of 28 days before Home Office asylum support ends in these cases. This is to provide time for the person to make other arrangements and move on from Home Office support. Many refugees have much to contribute to our economy as well as to our society, and work and integration go hand in hand. But some need support while they find work. I do not dispute that there is evidence—from the Department for Work and Pensions research in 2013 and the British Red Cross report of 2014; those two dates are relevant to the point I will come on to later—that some newly recognised refugees do not secure DWP benefits within 28 days. But the reasons for this are complex and the evidence does not show that the problem would be easily fixed simply by increasing the grace period to 40 days.
Our investigations into this show that there are two main reasons for delays. First, there is a lack of awareness among refugees of the need to apply for welfare benefits as soon as they are granted refugee status. Of the 16 people sampled in the Red Cross report, only three applied within the first three weeks of being granted status. That is a problem. Of course, they should apply for their biometric residence permit as soon as they get an indication, and that should take just a matter of days.
Help is on hand. I repeat that people are not left on their own with this. They are given advice and leaflets about the information and help that are available to them. Refugees can also seek help from the free telephone advice line run by Migrant Help—an excellent service that the Home Office funds. Migrant Help provides advice and support in building a new life in the UK, including help with housing and other issues. Refugees can also apply for integration loans. These can be used, for example, to pay a rent deposit or for essential domestic items or for work equipment. My point is that when we are identifying the problems, we must first make sure that people who are granted refugee status immediately understand what help is available to them and what they should do next. A new information leaflet for refugees was introduced in July 2015. In oral evidence in 2015 to the House of Commons Work and Pensions Committee session on benefits, the British Red Cross said the new leaflet provided “good guidance”. It supplements the advice and assistance available from Migrant Help, which I referred to.
Secondly, the DWP research identified occasions on which a lack of awareness among staff of the correct processes contributed to the problem. Updated guidance and instructions have been issued to DWP front-line staff to address this. We welcome the Work and Pensions Committee’s report on benefit delivery published on 21 December 2015, which recommends further work in this area. DWP will respond shortly to the report but intends to carry out an evaluation later this year of the impact of the improvements I have described.
The key point I make to the noble Baroness in assuring her that we take the concerns very seriously is that it is important that we have up-to-date evidence. I mentioned the reports from 2013 and 2014. We are now in 2016. Since those two dates, there has been a significant number of new initiatives and changes. We want to understand what the up-to-date periods of delay are.
Baroness Lister of Burtersett
My Lords, I am grateful to all noble Lords and the right reverend Prelate for their powerful support. I am also grateful to the Minister, because we have reached a fair compromise this evening and I appreciate that.
I think I got some clarification in those last statements but I just want to be clear that I got it right. The Minister will bring a Statement to both Houses, I guess, or certainly to this House, that will let us know the outcome even if the decision is not to change the regulations. So we will have a chance to debate the decision that is made, and it will be this year, I think he said. I would be grateful if that could be clarified. The Minister rightly paid tribute to the work of the British Red Cross in this area and there are other groups, such as the Refugee Council, which do a lot of work in this area. It would be very helpful if there could be a commitment that they could have some involvement in the discussions that lead up to the decision.
Lord Bates
To use the precise words we have agreed—obviously, we have agreed this between different government departments so I need to stick rigidly to what was said—I can confirm that if the further DWP evaluation I have referred to shows that it is necessary to increase the length of the grace period to consistently enable newly recognised refugees to begin to receive welfare benefits for which they are eligible before their Home Office support ends, we will return to Parliament with a proposal to amend the regulations to that effect. I am sure we can have an ongoing dialogue. I know that there is a very good relationship with the Red Cross in these areas. Officials meet it regularly and I am sure they will be able to share the information that comes in as it is received.
Baroness Lister of Burtersett
Are we talking about a timescale of this year—not the indefinite future?
Lord Bates
Yes, I did actually say that it would probably be later this year. That would give us the necessary time to gather the new information on the basis of the new changes that have been introduced to our procedures to try to address the concerns that the noble Baroness has identified.
Baroness Lister of Burtersett
I thank the Minister. I am sorry to pursue this but this feels like my last opportunity for the moment. On the understanding that if the decision is not to change it, we will be told that in some way, because otherwise we do not have any way of interrogating it—
Lord Bates
Just to clarify this point—because we are lip-reading from different ends of the Chamber here—I will write to the noble Baroness, setting out exactly how we will communicate this. But of course we will want to communicate how we are doing, not least to the DWP Select Committee, which has undertaken a report and the DWP is going to be responding to that shortly. I will set that out in a letter and I am sure it will be very clear.
Baroness Lister of Burtersett
I very much appreciate that. The noble Lord very kindly paid tribute to my tenacity on this issue. I am not going to give up. As he will expect, whatever the decision is, we will try to come back to it in some way. But I appreciate the fact that it sounds like finally someone has listened and heard. Certainly, from what Still Human Still Here put in its briefing to us, its assessment is that things have actually got worse, not better. But let us see what the evaluation shows. As I say, it would be helpful if there could be some involvement of the refugee organisations in that evaluation because they have on-the-ground knowledge.
On the basis that we will return to this in some form or other later in the year, I appreciate the response of the Minister and the work that officials have put into this. It is perhaps au revoir until we come back to this later in the year. I beg leave to withdraw the amendment.