(8 years, 8 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
22:31 - Division on Amendment 121 - Ayes: 111 / Noes: 148 - Amendment 121 disagreed.
23:13 - Division on Amendment 122 - Ayes: 60 / Noes: 136 - Amendment 122 disagreed.
23:25 - Division on Amendment 122A - Ayes: 91 / Noes: 134 - Amendment 122A disagreed.
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 (CB)
My Lords, I thank the right reverend Prelate the Bishop of Southwark and the noble Baroness, Lady Hamwee, who have both signed my amendment. When we debated family reunion in Committee, the only crumb of comfort that the Minister could offer was that the relevant application form had been simplified and better guidance provided for caseworkers. For that small mercy, I am grateful.
Since the official text of the Dublin III regulation, which I have seen, runs to some 13 or more pages of official prose, it is very difficult for laypeople to understand. It was disappointing that the Government saw fit not to accept the very mild amendment from the Labour Front Bench that simply asked for a review of the rules governing family reunion to be laid before Parliament. For this reason, I feel fully justified in bringing back my earlier amendment. This benefits only those people already registered as refugees or in clear need of international protection. It therefore chimes in with government policy to help the more vulnerable people to come to Britain.
The effect of Amendment 120 would be to assist families that are already split, with some members here and others overseas. By widening the categories it would prevent additional families becoming split; for example, by the current exclusion of children over the age of 18. It seems important to make family reunion possible for children of all ages—including adopted children, who are often currently refused. It should be possible also for parents, grandparents, siblings and civil spouses. In all cases, it could be a condition that there be no recourse to public funds. Your Lordships may have noticed the case of Mrs Myrtle Cothill, aged 92, who recently won the right to remain here despite Home Office opposition. Subsection (2) of the proposed new clause is important for securing legal aid for this category of refugees.
It can hardly be said that the Dublin process has been a resounding success. How are refugees to know about it? Let us take as an example those in the north of France. Most of them cannot speak French, and anyway distrust all officials, whether French or English. They and other split families need a simple, well-publicised procedure that overcomes a lack of knowledge of where close family members are and how to contact them.
Ideally, those in Britain should be able to sponsor their next of kin, while those overseas should be enabled to contact a central clearing house. This would prevent what the Minister calls “hazardous journeys”, both cross-channel and from further afield. It would prevent people falling into the hands of traffickers and supply safe and authorised routes.
It may be argued that the Secretary of State already has discretionary power to give exceptional leave to enter or remain outside the normal rules. However, as the noble Baroness, Lady Hamwee, pointed out earlier, that power is used very sparingly, with only 12 cases known in 2014. Has the Minister a more recent figure than that? Once again, I ask: how can split families know that such a power exists? Further difficulties arise over access to British embassies and consulates, travel to which can be expensive or impossible. Even those who can reach our posts face heavy fees for visas and problems of documentation.
The British Red Cross laid out eight feasible improvements in its briefing dated January of this year. Have these been discussed and, if so, with what result? When I put down a Written Question calling on the Government to meet the Red Cross, the reply was, “We are constantly in touch”. I think that we are entitled to know what has happened.
There is strong support for the amendment throughout the country. It is backed not only by the Red Cross but by Save the Children, Amnesty International, the Refugee Council and the Immigration Law Practitioners’ Association. Taken together, these organisations have more members and supporters than the Conservative Party. I said in Committee that increasing family reunion provides a triple benefit: to the families themselves; to social cohesion in our communities here; and to the Government by increasing family incomes and reducing demands on statutory services. The Government’s offer to take in 20,000 Syrians who have been approved by the UNHCR looks good, but will they ask the UN body to give priority to family reunion cases, even where the relationship may be more remote than is set out in the amendment? We want happy families, not just families who will be sad and isolated when they come here.
I realise that this amendment may be too widely drawn and is sure to draw the fire of my noble friend Lord Green of Deddington. If that is the case, I urge the Minister to take the amendment away. Either he can give us positive assurances that the procedures for family reunion will be radically improved without delay or he can undertake to come back with a text for Third Reading which puts the matter beyond doubt. I would particularly like to hear the Government’s thinking on involving the UNHCR in family reunion and on the chances of having a clearing house for applications from overseas. I do not propose to press this amendment, but I understand that Amendment 122A, which I also support, may well go to a Division. I beg to move.
Lord Alton of Liverpool (CB)
My Lords, my Amendment 122A, which my noble friend Lord Hylton has just referred to and to which he and the noble Lords, Lord Rosser and Lord Roberts of Llandudno, are also signatories—to whom I am grateful—seeks to address the inadequacies of the existing rules on family reunification to prevent families being torn apart and loved ones left behind because of age. It is an issue which we debated extensively in Committee and, in returning to it, I will try to be succinct and simply tell the House what makes this amendment different from that just described.
The Red Cross has provided me with case studies which eloquently illustrate why such a change is necessary, and I am happy to make them available to any Member of your Lordships’ House but particularly to the Minister, who I know has not only been doing sponsored walks for Save the Children, as we heard in relation to an earlier set of amendments, but has done a sponsored walk for the Red Cross as well, walking most of the way across China. So I know that he has great admiration for those organisations. I shall not take the time of the House this evening by going through those examples, but I commend them to him. My noble friend has also set out the points about Dublin III and how the rules apply in that context, so I shall not exhaust the time of the House on that either.
Like the amendment tabled by my noble friend and those tabled in the other place—I pay tribute to the right honourable Yvette Cooper MP and those who have championed this cause in the House of Commons—Amendment 122A seeks to reunite those families but through a very different approach from that proposed in the amendments tabled previously. Instead of expanding the categories of family members who would qualify under the existing family reunion route, the amendment proposes a limited resettlement scheme based on schemes already operated, such as the Syrian vulnerable persons resettlement scheme. The scheme would be specifically for the purposes of reunited family members and priority would be made for those family members who are currently unable to access existing routes to family reunification.
Amendment 122A seeks to address a key concern of the Government: the difficulty in determining how many refugees might be entitled to come to the UK if eligibility for family reunion were widened. The amendment provides for a managed and limited programme of resettlement specifically for the purposes of family reunification and it would provide a legal, safe route for families to be reunited while limiting the number eligible through such a route. Indeed, Amendment 122A is intended for family members in clear need who have no route to reunion under the existing rules. It states that those covered should include children—adult or minor, grandchildren, parents, spouses, civil or non-marital partners and siblings, and that the scheme should apply to family members of both refugees in the UK and British citizens whose family member has fled conflict or persecution.
The amendment would apply to refugee family members in Europe, such as those in Idomeni or Calais, as well as in Syria and other regions. Your family remains your family, whether in Beirut or Calais, and as the Red Cross and others will testify, the need is no less great.
Under this provision, the Secretary of State would be able to set a limit on the numbers accepted through this route after consultation, and surely that is the key concern of people like my noble friend Lord Green. He has raised the point during our proceedings. Clearly this goes nowhere near as far as the amendment tabled by my noble friend Lord Hylton, but it is a genuine attempt to meet the Government’s concerns about open-ended commitments. Any number set would be in addition to the existing commitment to resettle 4,000 a year for five years from the camps around Syria.
It has been noted that the family reunion rules provide for a discretionary category which can sometimes apply to other family members in compelling and compassionate circumstances. Ministers have taken a position that these rules are sufficient to reunite those families which do not fall within the existing narrow categories, but the reality is that this has always been an exceptional and little-used category. The number of family members admitted through this route has in fact fallen during the refugee crisis. In 2011 some 77 were admitted in this way, and as my noble friend and the noble Baroness, Lady Hamwee, have pointed out, in 2012 that number had fallen to just 12.
Viscount Hailsham (Con)
Would the noble Lord clarify subsection (3) of the proposed new clause, where I see that the word “may” is used? Is it contemplated under this amendment that those persons falling within the categories shall be admitted, or is it contemplated merely that the power to admit is discretionary?
Lord Alton of Liverpool
I am happy to reassure the noble Viscount that it is the latter. That is why it does not use the word “must”; it is purely discretionary. It is deliberately designed in that way to meet the concerns that the Government have expressed. It does not go as far as I personally would wish it to and it does not go as far as the amendment moved by my noble friend, but it is an attempt to open up the possibility of helping families in this predicament.
Let me conclude by saying that this is an exceptional measure for exceptional times. It does not seek to change the rules in perpetuity; rather, it would provide a solution for those families which have been torn apart by the present crisis. It would provide a managed route to reunite refugee families and to allow British citizens who are desperately worried about loved ones stuck in conflict regions or makeshift camps across Europe the opportunity to be reunited. It also leaves the final decision, reverting to the point made by the noble Viscount, in the hands of the Secretary of State. I hope that if the Government are unable to accept my noble friend’s amendment, they will respond to this amendment in the spirit in which it has been tabled.
Baroness Lister of Burtersett (Lab)
My Lords, I rise to support the amendment. I was going to talk about the human rights implications, but given how the time is getting on I shall simply quote from one of the many emails that I am sure we have all received imploring us to support one of these family reunion amendments. This email rather touched me: “I have a very personal reason for my concern in that my family were privileged to foster a 14 year-old boy from Afghanistan for five months. He has now moved to an area of England where there are other people who speak his language, but he became such a special part of our family and we remain in very regular contact with him. His story was truly heart-breaking. His mother had been killed and he had been injured by the Taliban when he was 10 years old, and then in recent months his village in eastern Afghanistan had been targeted by Daesh/Islamic State who were forcing teenage boys to fight for them. His father felt there was no choice but to arrange for him to leave, otherwise he faced almost certain death. We have the utmost admiration for this boy. His courage and determination are just amazing and he is trying so hard to make a new life for himself. We are extremely proud of him and know he will be an amazing asset to this country. His sadness at being parted from his family is beyond comprehension, however, and that is where I would like to appeal to you”. I replied and in the response I received the lady said: “I have never before felt moved to contact anyone in this way, but this subject has affected me hugely”.
I take great heart from the fact that there are members of the public with direct experience and who care so much. I hope that we will do the right thing if it comes to a vote.
The Earl of Sandwich (CB)
My Lords, I have one brief question for the Minister, who is going to rehearse the various stages of the resettlement schemes over the past few years going back to before he came to the Front Bench. Is it not the case that the Government dragged their feet rather with the original UNHCR resettlement scheme, which would have been very similar to the scheme before us? Could he not therefore make up the ground, because I think the Government have already made their decision?
Lord Green of Deddington (CB)
My Lords, the noble Lord, Lord Hylton, has correctly anticipated the thrust of my response to his amendment. There are of course provisions in the Dublin regulations for uniting refugee families and they are being implemented, albeit very cautiously—I accept that—but this amendment throws caution to the wind.
Subsection (1)(a) of the proposed new clause in Amendment 120 provides for almost any relative of a person settled in Britain to be treated as a refugee and admitted to the UK. All he or she would need to do would be to register as a refugee with the UNHCR, so there would be little of the careful investigation of individual circumstances that applies to those who claim asylum in Britain. We would in effect be outsourcing decisions on refugee status as well as risking the development of very large numbers indeed. The second part of the proposed new clause, subsection (1)(b), is not much better. Almost any relative of someone granted refugee status in Britain would automatically be admitted, irrespective apparently of their particular circumstances.
Let us not forget that, in the past 10 years alone, some 87,000 people have been granted asylum or humanitarian protection in Britain. This amendment would throw open the door to literally hundreds of thousands of people, whether or not they themselves were in danger. Let us not forget either the question of cost, which in this context I will raise. The costs are huge. Those granted refugee status are entitled to full access to the benefits system, to the National Health Service and to social housing, where they tend to get priority because their needs are probably greater than those of many of the indigenous population. I find it surprising, actually, that such a proposal should be made when Europe is almost overwhelmed by enormous numbers of refugees and asylum seekers making their way to this continent.
I think that the amendment should be firmly resisted, but Amendment 122A is a much more realistic proposal. The fact that it uses the word “may” rather than “must” is a help, and it sets a number, which is also a help. We have to recognise that whatever limit is set would come under pressure, but it seems to me a viable start, whereas Amendment 120, in my view, is not.
The Lord Bishop of Norwich
My Lords, I rise to speak briefly in the absence of the right reverend Prelate the Bishop of Southwark, who is a co-sponsor of Amendment 120. I will not repeat the cogent reasons for the amendment set out so well by the noble Lord, Lord Hylton, but I will offer one observation which I think also applies to the amendment proposed by the noble Lord, Lord Alton.
There is one outstanding reason for these amendments. It is that stable families make stable societies, which in turn make for a more stable world. Do we appear to believe this? A visitor from another planet attempting to understand our Immigration Rules—it would need to be a very intelligent life form to do so—but it would be unlikely to conclude that we did all we could to enable family reunion; quite the reverse. What sort of system permits refugees to be reunited with children aged under 18 with spouses or partners, but children who are recognised as refugees have no similar right to be reunited with their parents? They must rely on discretionary provision, which is frequently not given. Hence a child granted refugee status may have to endure prolonged family separation. The argument for this anomaly, which is the most polite way of referring to it, is that to grant family reunion will feed the practice of people smuggling and may cause hazardous and dangerous journeys to be undertaken. The probability must surely be that illegal means of travel and entry are more likely to be attempted than less.
Reuniting a family creates the sort of economic, social and emotional support that people need. It may well save money from the public purse that would otherwise be expended on dealing with the traumas and mental unhappiness caused by enduring family separation. I believe that the present rules do families no service and do our society no good. I hope that the Minister will look favourably on the spirit of these amendments and upon the value of family life as well.
Lord Rosser (Lab)
My Lords, I shall speak to Amendment 122A, since my name is associated with it. Some 2,000 refugees are currently arriving in Greece on barely seaworthy boats every day. According to the UNHCR, the majority are now women and children, fleeing the fighting in Syria and around the Iraqi border. Some 4.8 million Syrians have been displaced since the war began.
The existing rules on family reunion simply were not designed to cope with such a mass and, at times, chaotic exodus of people, which tears families apart and potentially leaves individuals in pretty desperate circumstances. Under the Immigration Rules, people granted refugee status or humanitarian protection in the UK can apply to be joined by family members still living in other countries. However, there are a number of restrictions about which family members qualify for family reunion. For adult refugees in the UK, only partners and dependent children under the age of 18 will usually come under the definition of “family”. As a result, families can be left with the invidious choice of whether to leave some members behind.
Amendment 122A seeks to provide an immediate route to reunite, in a managed and controlled way, those families caught up in the crisis. The Secretary of State would specify the numbers to be resettled through the scheme after full consultation with key stakeholders. The amendment would provide for that in a managed way on the basis of current resettlement programmes. It allows British citizens, as well as recognised refugees in the UK, to be reunited with family members through the programme, but, crucially, any number specified would be in addition to the Government’s existing commitments on resettlement.
The amendment does not distinguish between refugee family members who have made it to Europe and those stuck in the region—people do not cease to be part of a family based on where they are in the world. It would help to prioritise those cases of family members who fall outside the existing rules and find themselves in desperate situations. We believe that Britain can do, and should be doing, more in this unprecedented crisis, which the amendment would enable the Government to do through the Secretary of State. Four thousand Syrian refugees resettled a year—none from within Europe—is certainly a start and I do not wish to stand here and suggest that it is not a real contribution, but one is entitled to ask whether it is enough when that number arrives in Greece over the course of just two days.
We support the amendment and we will vote for it if the mover, having heard the Government’s response, decides to test the opinion of the House.
Baroness Hamwee (LD)
My Lords, my name is to the amendment moved by the noble Lord, Lord Hylton. I prefer it to the amendment spoken to by the noble Lord, Lord Alton, but either is considerably better than the current situation. If the noble Lord, Lord Alton, decides to divide the House, we on these Benches will be with him. It seems to me that the Section 59 referred to in his amendment is designed for exactly this sort of situation, had anyone been able to envisage it. Children without their parents who have got to the UK alone are refugees, so by definition cannot return to their country of origin, but their being unable to be with their parents is a situation that I am sure no noble Lord would want to envisage.
When we debated the matter in Committee, the Minister gave a number of defences to the current position, including:
“Our policy is more generous than our international obligations require”.
The vote on the previous amendment—a comparison was made in the debate on that between our generosity and that of others—answers that point. The Minister also said:
“Allowing children to sponsor their parents would play right into the hands of traffickers and criminal gangs and go against our safeguarding responsibilities”.—[Official Report, 3/2/16; col. 1881.]
The issue of safeguarding can be argued either way; there are problems of safeguarding whether you do or whether you do not in this situation. I prefer the right reverend Prelate’s logic.
On family sponsorship, where the more distant family of a refugee is here, it seems illogical in many ways not to allow aunts, uncles and so on to sponsor people to come here because it must lead to much faster integration, address the numbers to an extent—given the numbers, we should use what opportunities there are—and be obviously the right thing to do. There would be fewer safeguarding issues in that, although I would not claim that there are none.
Finally, I should not ask a question at this stage unless I know the answer, but I understand that family reunion is a matter of international law—despite my pile of papers I do not have all the detail with me. If the Minister can assist the House on that I would be grateful.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, I thank the noble Lords for enabling this debate. We have had another passionate debate about refugee family reunion, as we had in Committee and, of course, as we had on the previous group of amendments. It is a central part of the UK’s asylum policy and of our approach to the collective effort needed across Europe and beyond to manage the consequences of the conflict in Syria and elsewhere as well as we can. We recognise that families may be separated due to conflict and persecution and the speed and manner in which asylum seekers often flee their country. Of course, we understand the motivation of those in the UK who want to be reunited with their extended family members.
We already have several ways in which a family can be reunited in the UK, including existing resettlement schemes, so we are not persuaded of the need for another resettlement scheme. First, our refugee family reunion policy allows immediate family members of those granted protection here, who were part of the family before the sponsor fled their country, to reunite in the UK. This reflects our obligations, to which the noble Baroness referred, under the refugee convention. We also work closely with the UNHCR to resettle families together under the Syrian resettlement scheme, which will benefit 20,000 of the most vulnerable people. Under this scheme, family reunification is one of several vulnerability criteria used by the UNHCR, meaning that those with family links to the UK are among those prioritised for resettlement. On 28 January, the Government announced that we will work with the UNHCR on a new scheme to resettle unaccompanied children from around Syria and conflict areas where it is in the children’s best interests to do so.
In addition, British citizens and refugees in the UK can sponsor family members who themselves are recognised refugees under our mandate resettlement scheme. Under our refugee family reunion policy, we have reunited many refugees with their immediate family and will continue to do so. We have granted more than 21,000 family reunion visas in the last five years, from 2011 to 2015. That is not a small number and it is likely to increase in line with the numbers of recognised refugees in the UK. That is an essential but also a responsible and sustainable part of our overall asylum policy and our contribution to supporting those affected by the conflict in Syria and elsewhere.
Alongside these provisions, the Immigration Rules enable British citizens and persons settled in the UK to sponsor their spouse or partner and children under 18 to join them here, where they make the appropriate entry clearance application and meet the relevant criteria. This reflects our obligations under Article 8 of the European Convention on Human Rights. The family rules also cover those with refugee leave or humanitarian protection status to sponsor a spouse or partner with whom they formed a relationship after they fled their country of origin. Where an application fails to meet the requirements of the rules, our policy requires consideration of exceptional circumstances or compassionate factors for granting a visa outside the rules. This can include reasons why extended family members should join a refugee here. This is an important addition and I give a commitment today that we will review the policy guidance rigorously to make sure that it is clear for caseworkers that this includes some of the exceptional cases that have been highlighted here.
The noble Lord, Lord Alton, mentioned that he has had some case studies from the British Red Cross. We would be very interested to receive those and to look at them. This policy is already more generous, as has been mentioned, than our international obligations require and than many other countries provide. Some EU countries require up to two years’ lawful residence before an individual becomes eligible to sponsor family members, and impose time limits on how soon family members must apply. There are indications that some EU countries are moving towards more, not less, stringent requirements in this regard, because they understand the impact this is likely to have on where someone chooses to claim asylum.
The noble Lord, Lord Hylton, and others made a powerful case based on compassion. It is right that such arguments should weigh heavily in this debate, but the Government are charged with the responsibility of maintaining the viability and effectiveness of the UK’s asylum system as a whole. We must consider the interests of genuine claimants relying on us to decide their protection claim in a correct and timely fashion. It is because of that principle that the Dublin regulations make specific provision to unite 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. It is clearly in the best interests of asylum seekers, children or adults, to claim asylum in the first safe country they reach so that they can be provided with assistance there and do not seek to travel further across Europe.
Our policy prevents children with refugee status sponsoring their parents to join them. It does so for very good reasons. We simply cannot create perverse incentives for children to be encouraged or even forced by their families or others to risk hazardous journeys to the UK. As Save the Children points out, many children are feared to have fallen victim to human traffickers and people smugglers. These criminals will seek to exploit the very compassion that lies behind the proposed amendment, and allowing child refugees to sponsor relatives would play right into the hands of the criminal gangs and undermine the safeguarding responsibilities that we seek to uphold. We must not create a situation that encourages children to risk hazardous journeys to and across Europe, which have already, tragically, cost so many lives.
Turning to some of the questions I was asked during the debate, the noble Lords, Lord Hylton, and Lord Alton, asked whether the current process for applying for family reunion is too complex. We are currently reviewing the process for dealing with family reunion applications, in consultation with the Ministry of Justice and the Foreign and Commonwealth Office. We have already accepted recommendations made by the British Red Cross in its report, published on 9 July 2015, Not So Straightforward: The Need for Qualified Legal Support in Refugee Family Reunion, on 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 behind it.
Questions were asked whether the Dublin arrangements were working. The UK has fully implemented the Dublin III regulation and we think that the arrangements are the right way to provide consistency of approach across the whole EU in dealing with asylum applications. The European countries in which they arrive have a duty to provide adequate protection to those in their territory. If they claim asylum in another EU country and have close family already in the UK, the family reunion provisions of the EU Dublin regulation provide a route for asylum seekers to join them.
We recognise that some European countries face particular pressures on their asylum and border systems, which is why the UK has been active in providing practical operational support, bilaterally and via the EU and its agencies, to countries such as Greece, Italy and Bulgaria. This support includes more than 1,000 days of asylum experts deployed as part of the European Asylum Support Office.
The noble Lord, Lord Alton, asked why British citizens cannot sponsor a family member under the family reunion criteria. Only those with refugee or humanitarian protection status are entitled to sponsor immediate family members under family reunion provisions, which means that they do not need to meet the same financial or language requirements as those applying under the family rules. This policy recognises that refugees may need more time to integrate into society following the grant of refugee status. Family members of British citizens can apply for entry clearance to come to the UK under the family Immigration Rules. Where an entry clearance application does not meet the requirements of the Immigration Rules, the entry clearance officer must consider whether there are exceptional circumstances or compassionate reasons, such as I have previously referred to, to justify granting entry clearance outside the rules.
The right reverend Prelate the Bishop of Norwich talked about family reunion. We are certainly of one mind in saying that families are crucial and that, except in exceptional circumstances, the children’s best interest is always to remain with the family. That is one of the reasons why the UNHCR, which very much concurs with that view, proposed that family members would do better to seek refuge in the region within their family rather than one member of that family coming to another country. Therefore, the policy that we have developed for the Syrian vulnerable person resettlement programme is that of bringing families together. I would have thought that would be widely welcomed, because we do not just look after one person but bring the whole family together. Of course, that very much helps them to integrate into the local community and gives them that support network. Equally valuable is encouraging children to be reunited with their families in the region, if that is practical. We work with the UNHCR in seeking to do that.
In answer to a specific question about why we treat children differently from adults, effectively the policy is determined on the basis of dependency. A child is obviously dependent on their parents, so that drives the policy that says that they ought to be reunited. Of course, the parents are not necessarily dependent on the child in the same way. That is the reason for the difference in approach. The amendment proposes to draw that boundary even wider than parents being able to bring in their children. It could allow a child who arrives in the UK to bring in probably not grandchildren but certainly parents, a spouse, civil or non-marital partners and siblings, which is a significant widening of the scheme.
We discussed what other assistance the UK has offered to Syria in previous debates, and I will not go through it at length. Suffice to say that we have on record the very significant financial contribution that we have made and the comparative effectiveness of our resettlement programme in having brought 1,000 people to this country, whereas the European resettlement programme has managed to resettle only half that number among 27 countries in the European Union.
The noble Lord, Lord Rosser, asked whether there was a managed resettlement system for refugees. An avenue is already available under the existing resettlement programmes mandate and the Syrian resettlement scheme. Allowing child refugees to sponsor relatives would play right into the hands of the criminal gangs and undermine the safeguarding responsibilities that we are seeking to uphold. We must not create a situation that encourages children to risk hazardous journeys to and across Europe. Equally, we already have resettlement schemes providing a route to the UK for the most vulnerable of those affected by conflict. These are, by design, focused on offering resettlement from regions in conflict instead of from the safety of other European countries, and that has to be the right approach. We do not, alas, have infinite resources and public services, so we must strike the right balance, and we have done so, with the particular proviso in relation to the Red Cross that we have considered very carefully the points raised about the operation of the scheme and whether there is a need for a better application process and clearer understanding. We are working with the Ministry of Justice, the Foreign and Commonwealth Office, the British Red Cross and others to develop that. In the light of those changes and the reasons I have given, I ask noble Lords to consider withdrawing the amendment.
Baroness Hamwee
I may have missed it, but the noble Lord, Lord Hylton, asked the Minister whether he had an update on the figures for grants outside the rules on the basis of exceptional, compelling, compassionate circumstances. The year before last it was 12. Can the Minister tell us the updated figure?
Lord Bates
I do not have those updated numbers, but I will be happy to write to the noble Baroness. I mentioned a figure of 21,000, but that referred to the whole group of family reunion cases that came to the UK between 2011 and 2015.
Lord Hylton
My Lords, I am grateful to the Minister. He gave me one more small crumb of comfort when he spoke about a government review of cases and the discretion that is available to entry clearance officers. On the review, I ask Members of your Lordships’ House, and of the other place, to send into the Home Office the maximum number of difficult, hard and compassionate cases. I hope that the organisations outside this House that have supported this amendment, and that tabled by my noble friend, will do the same. I hope that entry clearance officers will get clear instructions to consider the best interests of any children they may come across who are applying through them.
I beg leave to withdraw Amendment 120.
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 referral to the High 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
My Lords, serendipity, or the way the dice fall, means that the House is having to hear rather more from me than I—or, no doubt, the House—would wish at this time. I thank my noble friend Lady Cox, the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Forsyth of Drumlean, and the noble Baroness, Lady Nicholson, for their support on this amendment, either today or when we discussed it in Committee on 3 February.
Before setting out the case for the amendment, I draw the attention of the House to one important change in the wording since Committee, following the helpful advice of the noble and learned Lords, Lord Judge and Lord Hope of Craighead. They suggested that the consideration of evidence of genocide and the declaration that genocide has been committed should be made by the High Court, rather than the Supreme Court. We have therefore incorporated that change into the text. I also thank the Minister for meeting me to discuss the amendment.
During the debate on 3 February, I cited the decision of the Parliamentary Assembly of the Council of Europe to declare the atrocities which had been committed by ISIS—Daesh—against Christians and Yazidis in Iraq and Syria to be a genocide. The very next week, the European Parliament decisively passed a similar resolution, recognising the killing of minorities in the region as genocide. Since our Committee debate, on 9 March Congress and the State Department received a 300-page report detailing more than 1,000 instances of ISIS deliberately massacring, killing, torturing, enslaving, kidnapping or raping Christians. It had similar evidence about the plight of Yazidis, along with the findings of the International Association of Genocide Scholars.
Last week, the American House of Representatives, by 393 votes to zero, declared that grotesque and targeted beheadings, enslavement, mass rape and other atrocities against Christians and other minorities indeed constitute a genocide. I will not read the entire resolution of the House of Representatives but the last phrase says that,
“the atrocities committed against Christians and other ethnic and religious minorities targeted specifically for religious reasons are, and are hereby declared to be, ‘crimes against humanity’, and ‘genocide’”.
Later in the week, on behalf of the White House, Secretary of State John Kerry, said:
“Naming these crimes is important”,
and that Daesh, in targeting these minorities with the purpose of their annihilation, is,
“genocidal by self-proclamation, by ideology and by actions”—
in what it says, what it believes and, indeed, what it does. He called for criminal charges to be brought against those responsible.
On Friday last, in a leading article, the Daily Telegraph urged the British Government to recognise the reality of what is under way, saying that the West has a “moral duty” to name this genocide for what it is. It said:
“Sadly, the British government still refuses to do this, insisting that it is up to judges to define genocide. Next week a group of peers will table an amendment to the immigration Bill triggering just such a judicial decision. Government opposition to this amendment would seem odd following Mr Kerry’s intervention”.
For many months, much of the same evidence that Congress and the European Parliament have seen and acted upon has been available to the United Kingdom Government and this Parliament. It has been catalogued in Early Day Motions tabled in another place, during evidence-taking sessions here, and in letters to the Prime Minister from distinguished and eminent Members of both Houses, including the former Lord Chancellor. Anyone who has heard first-hand accounts from Yazidi women of enslavement and rape or read the reports of mass graves, abductions, crucifixions, killings and torture cannot fail to be moved, and I know we will hear more on that from the noble Baronesses, Lady Nicholson and Lady Kennedy of The Shaws, who have both met Yazidi women.
Last week, Antoine Audo, the Chaldean Bishop of Aleppo, said that two-thirds of Syrian Christians had either been killed or driven away from his country. Zainab Bangura, the United Nations special representative on sexual violence in conflict, has authenticated reports of Christian and Yazidi females—girls aged one to seven—being sold, with the youngest carrying the highest price tag. Last May, one 80-year-old Christian woman who stayed in Nineveh was reportedly burned alive. In another Christian family, the mother and 12 year-old daughter were raped by ISIS militants, leading the father, who was forced to watch, to commit suicide. One refugee described how she witnessed ISIS crucify her husband on the door of their home.
Nearly two years ago, on 23 July 2014, I warned in an opinion piece in the Times:
“The last Christian has been expelled from Mosul … The light of religious freedom, along with the entire Christian presence, has been extinguished in the Bible’s ‘great city of Nineveh’ … This follows the uncompromising ultimatum by the jihadists of Isis to convert or die”.
I said that,
“the world must wake up urgently to the plight of the ancient churches throughout the region who are faced with the threat of mass murder and mass displacement”.
But the world did not wake up and for those caught up in these barbaric events, the stakes are utterly existential.
Genocide is never a word to be used lightly and is not determined by the number of people killed but by specific genocidal intent. The position of the British Government has been to insist that declarations of genocide are not made by the Government but by the international judicial system, yet there has been no referral of any evidence by the Government to any court in Britain or elsewhere. This has become a circular argument which can be ended only by Parliament.
The Government’s position was reiterated in another place last week, when the Minister of State for International Development, Mr Desmond Swayne, was on the verge of misleading the House with a Parliamentary Answer that only states could commit genocide. He said:
“I believe that the decision as to what constitutes genocide is properly a judicial one. The International Criminal Court correspondent, Fatou Bensouda, has decided that, as Daesh is not a state party, this does not yet constitute genocide”.—[Official Report, Commons, 16/3/16; col. 937.]
I hope the Minister will correct this today, or say whether it really is the position of the Government that no non-state party is capable of committing genocide under the 1948 genocide convention.
My understanding of what Fatou Bensouda actually said is that the ICC does not have territorial jurisdiction under the Rome statute over crimes committed on Iraqi or Syrian soil. This means that, in order to investigate, the ICC would need a referral from the UN Security Council. In fact, the prosecutor’s statement in April last year appeared to lament the absence of a referral of the situation from the Security Council, and concluded with the assurance:
“I stand ready to play my part”.
Surely, as a permanent member of the Security Council, we can trigger that by proposing a resolution. We should be leading the process, yet on 16 December last, in answer to a Parliamentary Question I tabled, the noble Baroness, Lady Anelay of St Johns, told me:
“We are not submitting any evidence of possible genocide against Yezidis and Christians to international courts, nor have we been asked to”.
As for referring the matter to the International Criminal Court, she told me in the Chamber on the same day:
“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.]
In these circumstances, the genocide convention becomes nothing more than window dressing, which is an insult to the original drafters and ratifiers, as “never again” becomes a hollow slogan devoid of meaning.
This brings me to the heart of the amendment. The United Nations General Assembly unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, in the wake of some of the worst atrocities in history. It was the culmination of years of campaigning by the Jewish lawyer, Raphael Lemkin, and recognised that “international co-operation” was needed,
“to liberate mankind from such an odious scourge”.
When we added our signature in 1970, it laid upon us the moral and legal duty to,
“undertake to prevent and to punish”,
genocide—surely the crime above all crimes.
The minorities in the Middle East, whose very existence is under direct and immediate threat, deserve more than a promise that the international judicial system will investigate without any action to enlarge the said system. If the amendment passes, a judge from the High Court will be able to examine the available evidence and determine whether ISIS’s actions should be recognised as genocide. That in turn would require the Government to take concrete steps to protect the victims of ISIS and seek to bring the perpetrators to justice. Our cross-party amendment seeks to establish a mechanism for the United Kingdom to determine whether acts of genocide are being perpetrated and would then afford those subject to genocidal acts appropriate consideration when it comes to application for asylum.
The provision would not oblige the Government to take in any more refugees than the number to which they have already committed themselves but, within that number, it would prioritise those who have been the victims of this crime above all crimes. It would enable declared victims of genocide to make their applications from overseas, and if the UNHCR is unable to facilitate this, we would expect British overseas missions to assist those affected. In light of the situation unfolding in the Middle East, where minorities are being annihilated before our very eyes, this is of vast importance.
I visited the genocide sites in Rwanda—a salutary and chilling experience. I am always struck that President Clinton and British Ministers of the day say that their failure to identify and take action to prevent that genocide, which led to the loss of 1 million Tutsi lives, was their worst foreign affairs mistake. In the past two years, two serving Foreign Secretaries have similarly lamented the failure of the international community to decry the genocides in both Rwanda and Bosnia quickly enough, despite the overwhelming and compelling evidence that existed. The noble Lord, Lord Hague, speaking as Foreign Secretary on the 20th anniversary of the Rwandan genocide, said:
“The truth is that our ability to prevent conflict is still hampered by a gap between the commitments states have made and the reality of their actions”.
His successor, Mr Hammond, said last year that the horror of Srebrenica,
“demands that we all try to understand why those who placed their hope in the international community on the eve of genocide found that those hopes were dashed”.
The reality has been that once it is recognised that genocide is being committed, serious legal obligations follow, and states have proved reluctant to engage with their responsibilities. There are really only two options here. If there is no genocide, our obligations under the genocide convention have not been triggered, but if there is, how could we sleep at night having disregarded the chilling lessons of past genocides and endless equivocating? Instead of doing everything in our power to bring this unmitigated suffering to an end, are we content simply to let these matters pass?
By passing the amendment today, we have an opportunity to prevent history from repeating itself, to close the gap between the commitment we made in ratifying the 1948 genocide convention and the reality of our actions, not to once again dash the hopes of beleaguered and abandoned people exposed to the crime above all crimes. We also have the opportunity to make a step change by moving beyond aerial bombardment to a consideration of justice, to demand that, under our commitment to the rule of law, however long it takes, we will bring those responsible for abhorrent mass executions, sexual slavery, rape and other forms of gender-based violence, torture, mutilation and the enlistment and forced recruitment of children to justice. I beg to move.
Baroness Cox (CB)
My Lords, in Committee, I gave my reasons for supporting the amendment and why I have no doubt that what is under way in Syria and Iraq is, in the strict technical sense of that word, genocide.
As my noble friend Lord Alton has reminded us, the Council of Europe, the European Parliament, the House of Representatives and US Secretary of State John Kerry have all come to the same conclusions. British public opinion agrees. A ComRes poll published this weekend indicated that 68% of British people agreed that Britain should use its international influence to ensure that these horrific events are classed as genocide. About two-thirds said that the current widespread killing is Britain’s concern, that Britain should recognise it as genocide, raise it at the UN and conduct a formal inquiry into the claims of genocide. Only 7% disagree but, sadly, our British Government seem to side with this small minority.
That is why we have had to bring this all-party amendment to the House again today. It gives the Government an opportunity to be in accord with the majority of the British public, who have a long and respected record for standing up for victims of persecution. It would also prioritise help for those minorities who have been targeted for eradication by Daesh, which incessantly boasts of its determination to annihilate diversity.
As my noble friend said, the prosecutor of the International Criminal Court, Fatou Bensouda, has said that she stood ready to begin a genocide inquiry, but could not do so legally without orders from the UN Security Council, as Iraq and Syria are not signatories to the ICC’s founding charter. I understand that the French Government are now considering tabling such a resolution. Perhaps the Minister will tell us whether that is so and, if they do, whether we may support them. As a permanent member of the Security Council, Britain could have tabled such a resolution, but has not, claiming that it is unable to declare genocide without a decision of the courts. However, as my noble friend emphasised, the Government have not asked the courts to make such a decision. That is why our amendment creates a route for the evidence to be considered by the High Court, so that we never again get into such a circular argument, which, if the circumstances were not so horrific and the human suffering so appalling, could almost be farcical.
Your Lordships may be aware that several of us, including a former head of our intelligence service and a former head of our Armed Forces, recently wrote to the Prime Minister. In his reply, David Cameron reiterated his belief that a declaration of genocide must be a matter for the judicial system, although the House of Representatives, the Council of Europe and the European Parliament appear to have been able to do so. He said:
“Not only are the courts best placed to judge criminal matters but their impartiality also ensures the protection of the UK Government from the politicisation and controversies that so often attach themselves to the question of genocide”.
He added:
“It is essential these decisions are based on credible judicial processes.
The Foreign and Commonwealth Office have recently reviewed this long-standing position and I agree with their conclusion that there is no need to reconsider it at this time”.
He also said that he could not,
“make specific promises about UK action through the Security Council or the International Criminal Court at this time”.
Having heard first-hand, detailed testimonies, as my noble friend Lord Alton has described in great detail, of mass executions, mass graves, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, forced recruitment of children, and confiscation of homes and land, I personally cannot understand the Prime Minister’s position, so fundamentally incompatible with that of our American and European allies, who are convinced by the compelling, widely available and well-documented evidence. Our Government’s position also leaves victimised Christians, Yazidis and those of other faiths bewildered by the UK’s perceived lack of concern and support. John Pontifex of the charity Aid to the Church in Need, who was in Syria last month, says:
“Christians feel that they have been abandoned by the West as a whole, why they have been left to face the worst that extremism can throw at them ... It is a disgrace that it has taken so long but we are very grateful to John Kerry for having the guts and the stature to name it for what it is”.
He argues that recognition of genocide,
“would throw a lifeline of hope and show that there are people who care about what has happened and are determined to bring these people to justice, sending a signal very clearly that the world will not tolerate this butchery”.
It must be a priority to make it clear to those responsible for these barbarities that they will be brought to justice. Also, in accordance with the genocide convention, our amendment seeks to give refugees escaping from genocidal atrocities the ability to make an asylum application to the United Kingdom from overseas missions, as well as the existing opportunity to do so via the UNHCR. It is important to emphasise, as my noble friend already has, that of course the Government have the right and the power to impose a ceiling of total numbers. We are arguing that, within that number, genocide victims should be prioritised in accordance with the Prime Minister’s commitment to accept 20,000 of the most vulnerable minority groups who have been singled out by Daesh because of their religion or race. We also know that those who have been targeted do not represent a security threat to the United Kingdom and that, unlike other categories of asylum seekers, there are no countries in the region where they will be secure in the long term. They have nowhere to go.
A hearing, chaired by my noble friend and myself, poignantly held on Holocaust Memorial Day, was told by Major General Tim Cross:
“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”.
How will our silence be perceived by subsequent generations? Dietrich Bonhoeffer, the Protestant theologian executed by the Nazis, said:
“Silence in the face of evil is itself evil: God will not hold us guiltless. Not to speak is to speak. Not to act is to act”.
I conclude by quoting a testimony given here at Westminster, one that could be multiplied many times over, the true story of a Christian pastor in Aleppo about a villager who was told to convert or he would die; he was forced to watch his 12 year-old son tortured before his eyes. Neither he nor his son renounced their faith, and both were executed. Perhaps, in this Holy Week, we who enjoy so many freedoms and privileges should use the liberties we cherish to demand justice and protection for those who are denied the same freedoms and who are being barbarically targeted for extinction. Not to do so, not to speak and not to act, would bring great shame upon us all. I hope, passionately, that this amendment will be accepted.
Lord Forsyth of Drumlean (Con)
My Lords, I spoke in support of this amendment in Committee, although as the noble Lord, Lord Alton, said, it has been changed in the light of representations made by the noble and learned Lord, Lord Hope of Craighead. I invited my noble friend Lord Bates to throw away his brief, tear it up and go back to his department—and I see that he has thrown his brief to the noble and learned Lord, Lord Keen. Nothing that has happened since has done anything other than to underline the appalling atrocities that are occurring against Christians in Syria and Iraq.
As I came into the Chamber this evening, the noble Lord, Lord Alton, gave me this document, which is the report submitted to John Kerry by the Knights of Columbus. There are pages and pages of testimony of the most barbaric atrocities, of kidnappings, violations and extortions. Anyone who just glances at this document, which is incredibly harrowing, cannot but conclude that something must be done to stop this.
No doubt in reply my noble and learned friend may make some legal arguments about why the amendment may not be exactly right. I have followed the noble Baroness, Lady Cox, whom I admire immensely, as does everyone in all parts of the House, for her courage and perseverance in seeking out examples of injustice. Having listened to her speech, I say to my noble and learned friend that he would be wise also to abandon his brief and to go back to the Foreign Office and ask it how the European Parliament—not an organisation that I spend a lot of time praising—and Congress are able to take a firm view but this Government seem incapable of doing so and hide behind legalistic arguments which prevent us offering sanctuary to people who are facing real persecution. They are fleeing not just war but religious persecution, and they find themselves with nowhere to go.
The importance of recognising this for what it is—an appalling genocide—is that it enables us to stretch out a hand to these people, offer them sanctuary and get beyond the political correctness that says that we as a Christian country cannot offer sanctuary to Christians who are in real terror and despair. Many of these people use the language of Christ. If the parable of the Good Samaritan was about anything, it was about not passing by on the other side. I cannot share the expertise or the knowledge of the noble Baroness, Lady Cox, or the noble Lord, Lord Alton, but I urge all Members of the House and those outside the House to look at this document and the evidence and ask ourselves how much longer we are prepared to stand by and not acknowledge what is going on, which is a systematic attempt to destroy Christianity throughout the Middle East by people using barbaric medieval methods. It is essential that we find a way in which we can offer sanctuary to people who are victims. This amendment suggests a way in which that could be done, not just in terms of offering sanctuary but in bringing to justice those who have been responsible for these barbarous crimes. I hope that the House will feel able to pass the amendment or that my noble and learned friend will offer us a way forward which enables the Government to act and to not pass by on the other side.
Baroness Kennedy of The Shaws (Lab)
My Lords, none of us who is pressing this amendment invokes the word “genocide” too readily. For most of us, this term will be forever associated with the atrocities of the Nazi concentration camps and the deliberate effort to exterminate the Jews during the Second World War. It is a word that carries incredible weight, and its importance cannot be diluted. We are taking about something of great seriousness when we talk about genocide.
“Genocide” has a specific legal meaning and the alarming truth is that, while genocidal violence has been perpetrated around the world since the Second Word War on a number of occasions, we find that very often there is resistance to using the terminology and a refusal to recognise genocide as genocide because it carries legal responsibilities with it. Noble Lords have heard a number of times that we have now heard the United States Secretary of State John Kerry, the United States Congress and the European Parliament all being of one voice about what is happening in the Middle East.
I remind the House that the 1948 genocide convention defines genocide as,
“acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
That is what is currently happening towards the Yazidi people, Christians and Shi’ites—anyone who refuses to convert. For the Yazidis it goes even further: because theirs is a pre-Abrahamic religious grouping, they are considered to be of lesser value, and in fact as less than human, in ISIL’s interpretation of Islam. The testimonies we have been hearing are absolutely barbaric. A week yesterday, I met for the second time the Yazidi Member of Parliament Vian Dakhil. She has been trying to draw the world’s attention to the plight of her people. I heard her account of spending time with families that are now in refugee camps and of the descriptions of what they have seen. Hundreds of men and boys have been slaughtered. Women and girls have been kidnapped from their families, some of them really very young children, and raped and raped again, continuously over months, their vaginas torn, then passed on and sold between men. She finds it hard to find words for what is happening. She says that these are girls who will never be able to have a proper family life when they grow into adulthood.
Baroness Nicholson of Winterbourne (LD)
My Lords, I speak this evening in the name of those who would undoubtedly qualify under this extremely modest amendment, were your Lordships’ House see fit to pass it.
I have in front of me some evidence in Reports, Resolutions, and Documents in Favor of a Declaration of Genocide by So-Called Isis, Isil, or Da’esh. It is a fairly hefty chunk of material, and I have to ask myself why we, the British people—and we in the House of Lords, who in some ways represent the British population—who have harboured so many victims of genocide over the centuries, are the last to come forward.
Here we have five major reports, from the Office of the United Nations High Commissioner for Human Rights, the United Nations Assistance Mission for Iraq, the United States Commission on International Religious Freedom, the Simon-Skjodt Center for the Prevention of Genocide, and the Knights of Columbus. These are remarkable, full, dense dossiers, which offer evidence. In consequence, we have seven resolutions, which are magnificent in their breadth and human understanding, from the United States Commission on International Religious Freedom, the United States Senate, House of Representatives and Department of State, the European Parliament, the Republic of Lithuania and the Council of Europe Parliamentary Assembly. I am sure that the Minister will notice that those resolutions reflect two great blocs of democracy, although they miss out India; I have nothing from there, as it has its own problems with regard to this. We have the USA and the entirety of Europe—not just the European Parliament or the European Union but the 47-state Council of Europe. That is no mean set of resolutions, and we have 30 appendices with major support.
I offer this dossier to the Minister. It is carefully researched, utterly accurate—and where is the United Kingdom? It is nowhere. Those 30 appendices are all statements to the United Kingdom, to Her Majesty’s Government—they are all requests. One of mine is in there, way back in October 2014. I urged the Ministers in Her Majesty’s Government to look at different ways, given the difficulties of classifying genocide and of using it, which we all know so well. There are many different ways around this that creative lawyers can work out. This modest amendment tonight is yet another effort to try to achieve that same goal, to define genocide against at least one of the religious minorities of Iraq, the Yazidis, and, if at all possible, some of the others. I speak as a Christian, a communicant member of the Church of England.
My request in October 2014 was rather late, because this genocide started much earlier than that. It started in 2003 and went on in 2004 and 2006; it rose to a height in 2007. The minorities in Mosul were forced to leave their homes, and Yazidis were also attacked around the Sinjar area. They were pushed to the Nineveh plain. We knew; we had our military there. We knew absolutely everything, but we did not even talk about it then. By October 2014—some seven, eight, nine and 10 years later—the caliphate’s design to wipe out the Yazidis and attack the other religious minorities was in full swing. It was characterised in just the way that the genocide convention instructs us to look out for and act upon, anywhere and everywhere that we find it. Even if there is only one case for genocide—one individual—we are tasked to act by the convention that we assisted in drafting.
What do I mean by that? Mass kidnap, mass assault, mass design for extinction of a named race, which is distinguished by its race, faith, dress, culture and rituals from others of the same nationality—all of those things make qualifications of genocide. Under all those headings, the Yazidis in particular qualify. They are a distinctive, separate people within the universe of modern Iraq. For example, they have just one religious day a week, Wednesday. They have only one temple; they do not, like the Abrahamic faiths, have many opportunities to worship at different places. They have different dress: yes, the Mandaeans also wear white, but on a Saturday rather than a Wednesday, for example. They have a different social structure entirely from the remainder of their fellow national Iraqis. There are a number of different ways, in their prayer life and their religious rituals, which differ them uniquely; there is no way of denying that.
The mass kidnap and religious persecution that the Yazidis have endured is falsely justified by some peculiar, perverted distortion of Islam, which is shown by the letter from its leader, Mr al-Baghdadi himself, when he quotes verses, pulls them out and distorts or repositions them, so that Islam is said to justify mass rape and mass extinction. There are mass executions, to destroy the bloodline. For a society that is not allowed to marry out or marry in, it is very easy indeed to wipe them out: if you kill the males, the females have no one left to work with. There is also forced marriage and the destroying of infants. I hope that the Minister has never seen or tried to touch an infant of 18 months that has been repeatedly raped; it is a devastating experience. That is what is happening. They are destroying infants, impregnating young girls and forcing conversion. If you destroy the religion, the bloodline and the family structure, you actually extinguish the race. If that is not genocide, nothing qualifies at all.
Because nobody was listening, my colleagues and I brought three young ladies here to talk about it, in June 2015. One of them, Noor, aged 22, said, “They took the men away in cars. In the distance we could see them being killed. The windows in the room we were held in were painted black. Sixty-three Daesh fighters came in and picked girls and started to rape them. I said to the man who picked me, ‘Why are you doing this?’. He said we were kafirs and he would kill us Yazidis as long as he lived. He would rape our women and kill our children”. That is genocide. On her first escape attempt, this poor girl of 22 was caught, brought back and locked in a room with 12 guards, who raped her continuously for 12 hours.
The Lord Bishop of Chelmsford
My Lords, I have two concerns in relation to this issue, to which I will speak briefly. First, in our prayers in this House and in homes across the country, we cry out to God that this terrible violence will cease and we look for any small contribution we can make to hasten its end. Secondly, we are determined that those inflicting such terrible suffering will be brought to justice before the International Criminal Court, where such atrocities are properly dealt with. There is, as we have heard, a growing consensus that the systematic violence of people operating in the name of Daesh is rightly described as genocidal. This is what people outside this House call it, whether they know or understand the legal definitions or not, and we need to be very mindful of what would be heard were we not to pass this amendment.
Legally, the matter turns on whether we are confronted by,
“acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.
I understand the caution of the Government and other experts about applying the word “genocide”. There are risks. Some worry that the strength and clarity of the legal definition of genocide could be somehow devalued if it is applied to such a complex set of conflicts as prevails in the countries involved. Some worry that the genocide label could encourage false understanding of the situation as conflict between different ethnic or religious groups. There is also the risk of removing Christians and members of other minorities from the area to a point where those minorities, with a long history and characteristic identity in that place, could become unviable. I smile at that—if not I would weep—because this is, of course, precisely what is happening at the moment. However, it is obviously something that we wish to avoid. Only last week, the right reverend Prelates the Bishops of Coventry, Southwark and Leeds visited these places and this was their primary concern.
However, we can live with those risks while trying to mitigate them. Our urgent prayer is for Christians, Yazidis and a variety of other identifiable groups against which the hatred of Daesh is directed, and, supremely, for each individual—each of them precious to God. Therefore, can the category of “genocidal acts” help to stop the killing and help to bring the perpetrators sooner to account for their crimes? Yes, I believe it can.
The role of the Supreme Court is a matter for those with expertise in legal and constitutional matters. However, I note the support of a number of distinguished jurists for applying the label of genocide. The ability of people in this category to submit asylum applications at British missions overseas offers a reasonable additional route, alongside the work of the UNHCR, in identifying and bringing for resettlement those at greatest risk.
The General Synod of the Church of England has declared that it wants the Government to work with the UNHCR to ensure that vulnerability to religiously motivated persecution is taken into account when determining who is received into Britain. It calls on the Government to work with international partners to help establish safe and legal routes for people to come to this country who are so at risk.
The force of this amendment, whatever the issues of detail, is simply that the word genocidal is not too strong for what is happening. The seriousness of the national and international response needs to take that into account.
Perhaps I may briefly quote a passage from scripture—not an obvious one on this occasion for this situation. I have always been very moved by what Jesus said after the miracle of the feeding of the 5,000. After they had all been fed, he said to the disciples: “Gather up the fragments. Let nothing be lost”. I believe that this amendment can help in a small way to address this situation, so that those who are most in danger of being lost could—maybe a few of them—be found.
Lord Pannick (CB)
My Lords, the noble Lord, Lord Alton, and other noble Lords who have spoken have made an overwhelming case that acts of genocide are being carried out by Daesh, and they have made an overwhelming case that it is shameful that Her Majesty’s Government are not prepared to say so. I cannot understand the basis on which Her Majesty’s Government assert that a judicial determination is required before they are able to say that genocide is occurring. I would be particularly grateful if the Minister, the noble and learned Lord, Lord Keen, were to explain why a judicial determination is required. Any such approach seems quite inconsistent with Article 8 of the 1948 genocide convention, which states:
“Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide”.
It is implicit in that that any contracting state is going to form a view that acts of genocide are taking place and in the light of that to make a request. I can see no basis whatever for the Government’s policy.
I have much more difficulty with the substance of this amendment because it proceeds on what seems to be the incorrect premise that a judicial determination is required in relation to genocide. I agree with the noble Lord, Lord Alton, and others that a judicial determination is not required before Her Majesty’s Government can state what their position is.
In any event, I am concerned that the substance of the amendment confuses the law relating to genocide with the different subject of refugee status. The genocide convention is concerned with the bringing to justice of the perpetrators of genocide in criminal courts, either the local court or the International Criminal Court. It is not concerned with refugee status; it makes no mention of the subject. This is not a technicality. What the substance of the amendment seeks to do is impose some obligations—we heard that they may not be very extensive—on the diplomatic mission of the United Kingdom abroad to accept applications for refugee status. It is a fundamental principle of refugee law, for sensible and practical reasons, that an asylum claim cannot be made at a consulate or an embassy of the United Kingdom in another country.
So I am not myself keen on the substance of this amendment, but I repeat that I share the concerns about the position being adopted by Her Majesty’s Government and their refusal to state publicly and importantly that acts of genocide are being carried out. If the noble Lord, Lord Alton, decides to divide the House, he will have my support precisely because I oppose the Government’s general policy in this area.
Viscount Hailsham
My Lords, I find myself in great sympathy with what the noble Lord, Lord Pannick, has just said. If this were a general debate about genocide, I would find myself in total agreement with what has been said by all noble Lords who have contributed; there have been some very remarkable speeches. But it is not. We are actually talking about legislation and we have to ask ourselves the serious question: does what this House is contemplating by way of legislation make legal sense? It is there that I part from those who are advocating this amendment.
I want to concentrate briefly on subsection (1) of the proposed new clause because there are three points that I would like to make about it. First, we are not in the business of talking about groups, although the noble Baroness, Lady Nicholson, did talk about groups. The question is whether an individual belongs to a group, and that involves adjudication, a decision. It is made in the context where there is an enormous amount of scope, and motive too, for misrepresentation. It is sometimes very difficult to tell the difference between a Tajik and an Uzbek or, for that matter, between an Alawite, a Sunni and a Shia. They may all have reason for misrepresenting their status. To put the test in the way that it is expressed in subsection (1) will open up an enormous amount of judicial argument.
The second point is slightly different. In the second line of the subsection is the phrase “in the place”—not in the country, but in the place. The truth is that in a country like Iraq, a Shia may be unsafe in a particular area but can move to another area where he or she is safe. Simply to have the test of whether the conditions exist in the place where a person for a moment in time happens to be resident is, I think, to distort what one really seeks to do.
The last point I want to make is that subsection (1) creates presumptions of entitlement. I believe that presumption should depend on individual adjudication, not on class presumption. This amendment would create a class presumption with which I am bound to say I am extremely uneasy. Therefore while I have enormous sympathy with the points that have been made, and I do not wish in any way to undermine the fervour with which people have spoken, we are in the business of asking ourselves whether particular pieces of legislation which we are being asked to authorise make sense.
Lord Carlile of Berriew (LD)
My Lords, it gives me great pleasure to applaud the noble Lord, Lord Alton, for bringing this amendment back to your Lordships’ House in an improved form. I do not want this to turn into a lawyers’ fest or to give your Lordships too much pleasure in knowing that the lawyers may disagree about the matters that have just been referred to, but I would remind the House that the noble Lord, Lord Alton, told us earlier that the amendment followed interventions at an earlier stage in the passage of this Bill by the noble and learned Lords, Lord Hope of Craighead and Lord Judge. Both are former Supreme Court judges, one the former Lord Chief Justice and the other the former Deputy President of the Supreme Court.
I do not disagree in principle with what has just been said by the noble Lord, Lord Pannick, and the noble Viscount. However, we must remember that the power to pass law rests upon Parliament. This is not a court where we act upon precedent. If Parliament wishes to include a judge’s decision in the determination of a matter of law, it is open to Parliament to do so. Let us not pretend that the Government—particularly this Government—do not send for the judges when they are in an awkward position in any event. We know that that is all too common and currently being done with the most controversial Bill before these Houses: the Investigatory Powers Bill.
I therefore suggest to your Lordships that while we of course listened with enormous respect to the two noble Lords who just spoke, nevertheless what they say does not negate the merits of the debate that we have been hearing. Indeed, we have heard some very eloquent speeches dealing with those merits: for example, the speeches of the noble Lord, Lord Forsyth, and of the noble Baroness, Lady Kennedy of The Shaws, who had an excellent article in the Guardian this morning, setting out in principle what everybody on my side of the debate might say.
I do not want to give a catalogue of the events that give rise to this debate; we heard from my noble friend Lady Nicholson in some detail. I applaud, as I am sure we all do, the extraordinary work that she has done with the charity AMAR, of which she is the chairman and founder, which has helped so many, particularly young women, affected by genocide, especially in the Middle East. She deserves great praise for that. Indeed, she and the noble Baroness, Lady Cox, are responsible for bringing these very important and painful issues to the attention not just of the House, but of the country much more widely than the political class represented here and in another place.
I simply say this to your Lordships: there is no more arrogant crime than the crime of genocide. Genocide defies all decent religious standards, albeit sometimes in the heretical pretence of religion. Genocide offends all decent secular standards. I know of no secular state that would allow any of the horrendous practices described in the debate. Genocide rejects the proposition that there should be even any limits to the actions and cruelties committed in war. Genocide diminishes the dignity of the human race, quite simply. Surely Parliaments such as this should recognise the suffering of victims of genocide, and not merely by wringing our hands with rhetoric about those victims. Where else have they to turn to if not to Parliaments and to Governments in countries such as ours? Why are we not making the sorts of declarations that have been made, as I understand it, by the French Government and very clearly by the American Secretary of State?
The designation of crimes as “genocide” sends out a clear message, and it is not an unimportant one: it is a deterrent. Designation of genocide sends out the message that those who commit the act and are identified will one day be brought before international courts and punished for their crimes against the rest of the human race. Designation of genocide by Governments such as ours also sends out a warning to those who might be inclined to commit genocide that they will be pursued to the end of the days—to the end of their lives if necessary, when they are old and hiding from their responsibilities, as happened, for example, with the Nazi genocide.
I heard earlier in the evening—I hope that I am wrong—that Her Majesty’s Official Opposition’s position was to sit on its hands in this debate. I hope that that shameful proposition is not correct. I hope that we will not have a situation in which the party that introduced the Human Rights Act 1998 into our law will chicken out of an official vote on this amendment.
We carry out a great responsibility this evening. I hope that we will do so in a spirit that recognises the challenge that genocide presents to humankind.
Baroness Berridge (Con)
My Lords, the issues that the tablers of this amendment have raised are so important and urgent that I am prompted to speak for the first time on the Bill. Everyone’s hearts this evening are on the same page in your Lordships’ House. Our hearts are weary of seeing the suffering on our news bulletins and we want solutions urgently. I hold the noble Lord, Lord Alton, and the noble Baroness, Lady Cox, in the highest regard, not only for their lobbying on behalf of vulnerable people, but for often placing themselves in harm’s way as they do so. They are entirely right that certain groups of people that we should have been focused on more clearly have been lost from view. However, the mechanism proposed this evening will, sadly, not ensure that the most vulnerable people are helped and with huge regret I cannot support the amendment.
First, the amendment runs the risk of taking too long to help these people, as setting up a judicial process with rules of court, et cetera, will take months. Help for these people is needed now, help that can be provided, as I will outline, through the Syrian vulnerable people scheme. As I understand the amendment, this would not just be declaring acts of genocide; what the High Court would be declaring would be a policy of genocide in a particular situation. Since the Second World War, only two situations have merited that declaration: Rwanda and the Srebrenica incident within the Balkans conflict. This is recognised as the crime above all crimes, to be kept special, to be kept unique and with a particular connotation.
Although we can prosecute genocide anywhere in the world, the case of Eichmann, which many noble Lords will remember, remains of its era and we have seen the development of international tribunals to try this particular crime. This amendment draws the declaration of a policy of genocide, which it took the Rwanda tribunal four years to come to, into a domestic court. That opens the way for other domestic courts to do the same and to disagree with us. It risks diluting this crime and we could end up with one domestic courts saying, “We think this is genocide”, and another saying, “This is not genocide”. The risk of politicising and putting into foreign affairs terms a policy such as genocide is grave.
I watched with care the full announcement by Secretary of State Kerry, most of which asserts the supremacy of the judicial process. I was disappointed that such a campaign in America has led, in fact, to so little. They have promised a bit more aid and that they will do some investigation of the evidence. I would like Her Majesty’s Government to deliver more than that.
Perhaps the most important reason for not supporting this amendment is that it will not only apply only to Iraq and Syria. It is, perhaps, most likely to apply, first and foremost, in Sudan, where al-Bashir stands ready to be tried at the International Criminal Court—if they could get him there—for crimes against humanity, war crimes and the crime of genocide. This amendment would apply to people in other countries; people might learn through social media that the UK has said that they are victims of genocide and can get asylum here and they might leave to come here. As I say, Sudan might be the first case and a determination of that nature by our courts could cause vast numbers of people to flee, not knowing whether they are number four of the 5,000 we have said we are taking or number 4,555. They will not know that; they will leave. This would be particularly dangerous today because their route is through Libya, through IS-controlled territory where they risk being killed and a much more perilous sea journey across the Mediterranean from Libya to Italy.
I have sat before British diaspora who are desperate for their adult sons to remain in those countries and not to travel. Often, they listen to IS footage in Libya on the internet and see what could happen to their relatives if there was any incentive for them to move. Turkey is closing down as a route and the criminal gangs are looking for a different market, or several different markets.
The movers of the amendment are right in principle. I want to return to that. I hope that I can offer a way forward. Will my noble friend the Minister please look urgently to review the criteria of the Syrian vulnerable people scheme, as Iraqi people are the victims of probably the worst postcode lottery? A century ago, Britain was involved in setting the border between Iraq and Syria, which IS just wiped out. So if you can satisfy the vulnerable persons criteria and are a refugee but happen to live on the wrong side of the border—if you are an Iraqi—you are not eligible for the scheme. If you live hundreds of miles away or hundreds of yards away but you happen to be Syrian, you can get safe passage to the UK. As a matter of utmost urgency will my noble friend the Minister look to expand the eligibility for the scheme so that we can offer protection virtually immediately to the Iraqis who so desperately need it? Will he also please ensure that the relevant numbers are raised to accommodate the extra people?
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I support this amendment but think it right to note that it would involve two radical changes in the existing legal framework. First, it would involve a High Court judge deciding—no doubt subject to appeal—whether a particular group is subject to genocide. Secondly, it would enable any member of such a group to claim asylum from abroad. I have no real objection to the first of those changes. I do not share the concerns of the noble Baroness, Lady Berridge. In fact, it seems to me hardly necessary in the present case for a judge to be involved at all, but it might be in some future case. On all the evidence we have heard, it is pretty clear that Daesh is indeed committing genocide. If the UK Government will not say so and will not refer the matter to the United Nations, then by all means let us legislate to allow a judge to do so, if that would serve a valuable purpose. It is not necessary to go as far as establishing a case of genocide to establish a right to asylum under the 1951 refugee convention. But, of course, a ruling that an asylum seeker is indeed a member of a group subject to genocide would certainly qualify them in spades for refugee status.
I suggest that the real challenge in this proposal is the second change it would involve—namely, that under it for the very first time asylum would be able to be claimed from abroad rather than, as at present, only if the asylum seeker has somehow managed by hook or by crook to reach the shores of this country. Plainly, this change would substantially increase the numbers able to claim asylum here, and who we would then be obliged to take in. One fears and suspects that many thousands are subject to the risk of genocide. Assuming they could get to a British mission overseas—indeed, it is probably sufficient to get their application for asylum lodged there—that would have to be assessed, and the critical question would presumably be whether they are members of the group at risk; that addresses the point of the noble Viscount, Lord Hailsham. If the claim succeeds, they, as refugees, would still need to get to the United Kingdom to claim sanctuary. One wonders who would arrange and achieve that. The UNHCR has been suggested, but that might involve certain logistical difficulties.
Is the sheer increase in the number of prospective asylum seekers a fatal objection to the proposal? That is the crucial question here. I am puzzled about the suggestion that those who succeed under this provision would fall within the cap of 20,000 who we are already committed to relocate over this Parliament. I cannot see how, or why, that should be required. However, the proposal is confined to those who are genuinely subject to the risk of genocide. That is, of itself, a manifestly limiting factor. Accordingly, this objection should not be regarded as fatal: we should pass this amendment.
Lord Shinkwin (Con)
My Lords, I support this amendment and the excellent speeches made by other noble Lords, particularly my noble friend Lord Forsyth. As we have heard, the Christians in Daesh-held territory are suffering indescribable persecution and slaughter on account of their belief in Jesus Christ. They are sacrificing their lives and suffering genocide for Christ’s sake. Yet we are not being called to make any sacrifice at all on their behalf. All your Lordships’ House is being asked to do today is bear witness to the truth than genocide is happening and to keep faith with these victims of genocide by empowering a High Court judge to determine whether a genocide is under way, and by requiring the Government to accelerate the resettlement requests of those fleeing such a genocide.
It may be almost impossible for us, as we sit in the splendour of this beautiful Chamber, to conceive of the enormity of the genocidal crimes being perpetrated thousands of miles away. It is possible that the only thing that we have in common with their situation right now is the colour of the luxurious red Benches on which we sit. It is also the colour of their blood. The amendment would help to ensure that it is not spilt in vain, that the extent of the genocide they are suffering is recognised for what it is, that refuge is given on account of it, and that the perpetrators, as we have already heard, will be punished specifically for genocide.
For Christians around the world, yesterday marked the start of Holy Week, the worst and yet the best week of Jesus’s life. By the end of it, he would be dead, yet he went to his death in full knowledge of the excruciating pain involved, because he chose to bear witness to the truth. We debate this amendment in full knowledge of the truth that genocide is being suffered, as I speak, in his holy name. We cannot stop it, but like him we can choose to bear witness to the truth.
So I say with sincere respect to my noble friend the Minister that that is why I support this amendment. I hope that many noble Lords will do likewise, united in proud defence of the freedom of conscience that surely we all cherish. Surely that is the very least we can do in the face of genocide.
Lord Green of Deddington
My Lords, the hour is very late. I shall be very brief. I find myself on this occasion in broad agreement with the interventions in this debate. The abuses in Iraq and Syria are repulsive and surely can only amount to genocide. I therefore welcome effective action in respect of Christians and Yazidis in Iraq and Syria.
I will just make two practical observations. The first refers to proposed new subsection (1), which is very widely drawn. We could at some future date find that literally millions of people qualified for the presumption that they met the qualifications for asylum in the UK. In the past five years alone, the office of the UN special adviser on the prevention of genocide has named five countries as being at risk: Syria, Sudan, South Sudan, Libya and Ivory Coast. Any of these situations could descend into genocide in the coming years, so it follows that a blanket clause in our immigration law could prove to be a serious hostage to fortune. I am not sure how that can be dealt with. A limit of numbers is a possibility. That was touched on by the noble Lord, Lord Alton, and the noble Baroness, Lady Cox, and might be a way forward on that point. But above all, it is surely essential to avoid a situation where a thoroughly well-intentioned statement sets off a wave of humanity that has reached the limits of its endurance. I leave it to the proposers to consider that point.
My other observation refers to proposed new subsection (3), which envisages British missions overseas assessing applications. I agree with the noble Lord, Lord Pannick, that that is a difficult road to go down; I think the noble and learned Lord, Lord Brown, had similar doubts. It is not hard to imagine a ghastly event in Sudan or somewhere leading to hundreds of claimants camping outside some of our missions. It might be possible to engage the UNHCR in the process. If it does not have that capacity, we might be able to consider, for example, sending a team of British officials deployed for this purpose in situ. They might be established somewhere appropriate, perhaps in a refugee camp near the border with the country concerned, but certainly not in a mission, which would very soon be swamped.
The practicalities clearly need some further thought and we should not overlook the point that to move away from the fundamental principle of claiming asylum in the UK is a major departure. That said, I think we must find a way to tackle this ghastly situation—to break, as the noble Baroness, Lady Kennedy, put it, the cycle of inertia.
Lord Farmer (Con)
My Lords, I, too, will be brief. There can be no doubt that the noble Lords, Lord Alton and Lord Forsyth, and the noble Baronesses, Lady Cox and Lady Kennedy, have brought an issue of the most profound gravity to our attention, and they have done so with characteristic eloquence and passion. It is essential that Parliament takes the time to consider the appalling treatment meted out to Yazidis and Christians, the threat of extinction that faces these ancient communities, and what our considered response should be to this genocide claim. What is being proposed today is that we amend primary legislation in far-reaching ways with minimal consideration and debate. Surely a better way forward would be to establish a specific review that does justice to the enormity of the issue that is before us today, which would then be the subject of a sufficiently lengthy debate in both Houses.
Lord Elton (Con)
My Lords, whether this amendment is carried or not, it must be clear to a Government who refer so often to our Judeo-Christian heritage that they cannot simply stay where they are thereafter. There must be an acknowledgement of what is going on. The truth must be recognised and must be brought to the attention of the world by this country and the many others that are already committed to it.
Baroness Hamwee
My Lords, I have a couple of sentences on behalf of these Benches. This may be the first time that my thought processes have followed exactly those of the noble Lord, Lord Forsyth, but I had concerns about the format, if you like, of this amendment. I would much prefer to be addressing the matter on an international basis through the UN, but then I, too, found Article 8 of the convention, which provides for contracting parties to call on the UN to take action. In the light of the growing call around the world for the recognition of what is going on as genocide, it seems to me that it is absolutely right that we should take this opportunity, whatever the technicalities of the amendment.
Lord Rosser
My Lords, no one can fail to be concerned about and moved by the appalling position of those to whom this amendment relates. There is a need to see what more can be done to help those fleeing violence and persecution and to increase safe and legal routes for refugees. We all have sympathy with what lies behind this amendment, particularly with regard to the appalling actions of ISIS—Daesh—against Yazidi women. The amendment as it stands is in our view unworkable, but we would be willing to work with the Government and others in the House to develop a scheme to present at Third Reading for these women and others persecuted on grounds of religion.
Anyone coming under the conditions referred to in proposed new subsection (1) who is already in the United Kingdom should already be able to claim asylum under the existing law and definition of a refugee. However, the amendment appears problematic in a couple of areas. It places responsibility for declaring that a genocide is taking place—and, with it, a presumption that the conditions for asylum in the UK have been met—with the High Court rather than with an international body, which is a departure from existing practice. We are not convinced that this power should rest with domestic courts.
The amendment also allows people to apply for asylum outside the UK, which is again a significant departure from existing law and would allow unknown numbers to apply as, as the amendment sets out, there should be no discrimination in dealing with such applications based on,
“national, ethnical, racial or religious group”.
As a lesser point, there also needs to be more clarity about how the process set out in the amendment would work in practice, how applications would be processed, by whom and where.
While we all want to do more for vulnerable people fleeing persecution and genocide—
Lord Carlile of Berriew
The noble Lord is telling us that the Labour Party agrees in principle with the feelings behind the amendment of the noble Lord, Lord Alton. Is it not a bit supine for the Labour Party to say that but not put forward an improved amendment of its own if it really seeks to say what we have just heard with full integrity?
Lord Rosser
I do not share the noble Lord’s view; I am setting out our view of the amendment and have referred to two specific issues, which do not seem to me unimportant. I can only note that he holds a different view.
While we all want to do more for vulnerable people fleeing persecution and genocide—such a debate needs to take place—we are unconvinced that the amendment as drafted represents the best way to do that. It entails a significant change in practice and procedure, and there needs to be much greater consideration than, inevitably, there has been of the practicalities and impact of what is being proposed. For these reasons, if the mover, having heard the Government’s response, decides to test the opinion of the House, we will not be able to lend our support.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, no one could but be moved by the strength of feeling and concern that has been expressed in this House with regard to events in the Middle East. Several of your Lordships have eloquently articulated the terrible threats that Daesh or ISIS poses to the populations of the Middle East. Who could gainsay the ghastly evidence of some of the events that have been reported?
All of us want to do everything that we can to support the victims of such terrible violence. All of us want to alleviate the suffering experienced in Syria and Iraq at present. But to do that, our primary priority must be to secure an end to the conflict in Syria and Iraq, in order that people can return to their communities and their lives. That is what this Government have been committed to achieving, and I shall not repeat the points made earlier about the steps taken in that regard.
I urge your Lordships to read the amendment to see what, on the face of it, it is intended to do. The noble Lord, Lord Alton, finished by saying that the intention was to bring those individuals responsible to justice. That, with respect, is not the objective of the amendment. Indirectly, it might achieve that, but let us remember to emphasise individuals. We cannot bring Daesh to justice; we must identify the individuals within ISIS and Daesh who have been responsible for these terrible crimes. That is not the objective of this amendment at all.
The amendment deals with three matters. Essentially, proposed new subsection (1) is a presumption that if a person is a member of a certain grouping they have been a victim of genocide. Secondly, there is an adjudication and, thirdly, there is an application process by which an individual who is a member of a group that has been subject to genocide can secure asylum in the United Kingdom but, more importantly, can secure that by means of an application form outside the United Kingdom—a unique and quite unprecedented step in the context of refugee law. Indeed, I would respectfully adopt the observation of the noble Lord, Lord Pannick, when he said that he had much more difficulty with the substance of the amendment. With respect, so have we, because if we look at the substance of the amendment, we have to consider the background to what is being addressed.
There are two entirely distinct conventions here. There is what is shortly termed the genocide convention, which is concerned with the identification and prosecution of those guilty of the terrible crime of genocide. Then there is the refugee convention, which is concerned with the circumstances in which a country such as the United Kingdom has an obligation to those who are defined—
Lord Keen of Elie
I shall finish the sentence, if I may—to those who are defined as refugees. The two are entirely distinct. Under—
Lord Carlile of Berriew
The noble and learned Lord said that he was going to give way at the end of the sentence. I detected a full stop. With all his legal experience, he surely knows that numerous applications relating to residence in the United Kingdom are made from outside the United Kingdom. For example, visas are applied for outside the United Kingdom. What is so unique about extending that process?
Lord Keen of Elie
I am obliged to the noble Lord. I was aware of that—and, of course, the distinction lies in international law. Our obligation towards asylum seekers arises under the refugee convention, and it is in accordance with that that we deal with these applications. I shall elaborate on why that poses such severe problems in the context of the amendment.
Under our own Immigration Rules we have provision for those who enjoy refugee status, which includes those who are the victims or potential victims of genocide. But of course it also extends beyond that category to those who are the victims or potential victims of persecution—for example, political persecution, which would not be covered by this provision. If we look at the provisions of the refugee convention, we find it explicitly stated at Article 3 that in dealing with applications for asylum there will be no discrimination on grounds such as nationality, ethnicity or religion. Indeed, that is reinforced by Article 14 of the European Convention on Human Rights.
While I understand the desire of the noble Lord, Lord Forsyth of Drumlean, to see some help extended to the Christians in Syria, and the Yazidis as well, the reality is that if we had this provision in law we would have no right to discriminate between Christians and Yazidis. We know that in fact the activities of ISIS and Daesh in Syria and Iraq are directed not just at the Christian or Yazidi communities but at the Shia Muslim communities within these countries, at the Kurds and even at the Alawites. All those would also be in a position of complaining that they belonged to a group that was potentially the subject of genocidal acts, torture or violence.
Baroness Kennedy of The Shaws
The Yazidi are in a different position, which is why I raised them particularly. They are perceived by ISIL as not being one of the Abrahamic religions. Their religion predates even Judaism. As a result, ISIL sees it as something totally inimical to being human and as something other. That is why it feels quite at liberty to diminish this people to nothing. That is why it thinks that that is permissible, and that is why it is genocide.
Lord Keen of Elie
I am obliged to the noble Baroness, but the reality is that under the refugee convention and the European convention we could not in legislation discriminate between particular communities, such as the Yazidis, the Christians or the Shia Muslims. It goes further than that because we know that at present there are something like 4.8 million Syrians displaced in the Middle East, in Turkey, Lebanon and Jordan. It goes even further than that because, as the noble Lord, Lord Judd, observed much earlier in the debate on this Bill, according to the United Nations there are something like 19.5 million refugees in the world at present, whether they be in Darfur, Burma, the Middle East or elsewhere. The figure I had was 20 million, but in the context of such a catastrophe, perhaps 500,000 does not make an enormous difference. The reality is that this amendment would, on the face of it, open the United Kingdom to immigration by all 19.5 million people who could claim to be in that position. Noble Lords may scoff, but that is why it is so important that we examine the implications of the legislation proposed. Indeed, I have only to cite the example of Germany to point out the consequences of unintended action.
Lord Alton of Liverpool
Will the noble and learned Lord point out where in the amendment it specifies anything about Yazidis or Christians? The amendment says that if there is evidence of genocide, that evidence can be laid before a High Court justice for the justice to determine whether there is genocide. Will he also say what is non-discriminatory about the Syrian vulnerable persons scheme in which we single out a group of people and say that we will give them special protection and support, quite rightly in my view, but impose a cap, as we do, by saying there will be only 20,000? Is this not scaremongering of the worst order?
Lord Keen of Elie
With respect to the noble Lord, it is nothing of the sort. On the last point, the Syrian vulnerable persons scheme does not discriminate on the grounds of nationality, ethnicity or religion and therefore does not contravene either Article 3 of the refugee convention or Article 4 of the European Convention on Human Rights. That is where the distinction lies.
Lord Ashdown of Norton-sub-Hamdon (LD)
I know the Minister is trying to make progress, but he said that the Syrian vulnerable persons scheme does not discriminate against nationalities, but it does. The key is in the name. They are Syrian. It does not apply to Iraqis.
Lord Keen of Elie
The noble Lord makes the point, and I accept that the scheme applies only to Syrians in the context of Syria being the area that is subject to the scheme, but it does not distinguish on the grounds of ethnicity or religion in that way.
I mentioned numbers a moment ago. No country in the world has an open-door immigration policy of the kind proposed by this amendment. More particularly, no country in the world has an open-door immigration policy that would involve persons who were not strictly refugees under the convention being able to apply in the place of their residence for asylum in the UK. It has always been the practice that an asylum seeker is a person who presents themselves in a safe country and seeks to establish refugee status. What is suggested in this amendment, as I read it, is that a person from within Syria, Lebanon, Jordan, Turkey or elsewhere would be entitled to approach a British consulate or embassy and make an application for asylum in the UK from that point. That would not be limited to the Middle East, either; it would apply across the world because, again, you could not distinguish between one set of refugees and another. That would not be possible.
The noble Lord, Lord Alton, introduced the idea that somehow this amendment was subject to a cap. As the noble and learned Lord, Lord Brown, observed, though, that is simply not the case, and it is difficult to conceive of how it could be. Still, let us suppose that it was going to be subject to a cap of, say, 5,000 applications. How would that be dealt with? Are we to send 5,000 visas to the consulate in Baghdad? Are we then to say that first come are first served—that those who arrive and apply can have one while those who arrive too late cannot? With great respect to your Lordships, that is not an immigration policy, it is a lottery, and that is not what we are about. We are trying to achieve an objective and fair result.
When we address this, we have to remember also that refugee status applies not only to those who may have been, or threatened with being, the victims of genocide but to those who have been the subject of, or threatened with, persecution. On what basis can we rationally and reasonably distinguish between those two groups when they all constitute refugees?
Lord Forsyth of Drumlean
My noble and learned friend is making quite heavy weather of the inadequacies of the amendment. Can he tell us—he has had quite a lot of time to think about this because a similar amendment was tabled in Committee—what exactly the Government are going to do for those Christians and other groups who are facing genocide?
Lord Keen of Elie
I believe that we are already doing all of that. This was addressed by my noble friend Lord Bates earlier when he spoke of the steps that we are taking regarding diplomatic efforts to try to secure peace in the Middle East. He spoke of the Government delivering a robust and comprehensive strategy to defeat Daesh in Syria and Iraq as a member of the global coalition of 66 countries. He spoke of the fact that there was effectively a cessation of hostilities on 27 February that we will build upon and hope to develop. He spoke of the fact that we have pledged over £2.3 billion, our largest ever response to a single humanitarian crisis, which is delivering vital assistance to refugees in neighbouring countries on the ground right now. We are also working through the United Nations High Commissioner for Refugees with three schemes—the Gateway Protection Programme, the Mandate Refugee Programme and the Syrian resettlement scheme—in order to reach out to the most vulnerable people at risk, such as women and children. All that is being done.
We have to be realistic about what we can and cannot achieve. What we cannot achieve is a policy whereby 4.8 million or more people are invited to make an application at a local level for a visa to bring them to the UK. We know that we could not cope with the consequences of such a policy, and we know the potential disaster that could follow from attempting to impose one. We know that at the end of the day we would be expressing hope that could not be delivered. We would be expressing hope that these people might be helped when in reality we knew that their prospects would actually be dashed to pieces on the rocks of reality. We could never cope with such an immigration policy. I say to your Lordships in conclusion—
Lord Elton
My Lords, before my noble and learned friend sits down, he has heard considerable argument in favour of the Government using the opportunity pointed out by the noble Lord, Lord Pannick, to bring before the Security Council a proposal that this be recognised as genocide. Can he tell us what he is proposing to do about that?
Lord Keen of Elie
I am obliged to the noble Lord. Respectfully, it appears to me that the proper course of action in those circumstances, where we are putting to one side an amendment that even my noble friend Lord Forsyth would appear impliedly to accept is not workable, the appropriate way forward would be to consider a Motion of this House, directed to Her Majesty’s Government as to how they should address or not address the issues that pertain here with regard to whether there has been genocide. Noble Lords have heard already what the present government policy is. The Government believe that recognition of genocide should be a matter for international courts and that it should be a legal rather than a political determination. That remains the position.
Lord Keen of Elie
I have not given way.
In conclusion, this amendment does not even address the objective set out by the noble Lord, Lord Alton. Although I fully understand his concerns about what is going on, the amendment creates a mirage of false hope. It might salve our conscience, but it will not solve the problem. I urge the noble Lord to withdraw it.
Lord Lea of Crondall
Before the Minister sits down, if such a Motion was put forward, would it have the Government’s support?
Lord Alton of Liverpool
My Lords, the noble and learned Lord, Lord Keen, ended on an interesting note, which the noble Lord just questioned him about: if a Motion were placed before your Lordships’ House, which presumably would have to be done by the Government, because such procedures are not open to—
Lord Keen of Elie
If I may, with respect, correct the noble Lord, the Motion would not be required to be from the Government but could be laid by any Member of this House.
Lord Alton of Liverpool
Would the noble and learned Lord like to remind me of the last time a Motion of that kind was tabled on the Order Paper and selected for debate in your Lordships’ House without the support of the usual channels and the Front Bench?
Lord Keen of Elie
I am not aware of the date when that was last done, but, as the noble Lord observed, it would be a matter of securing the support of the usual channels.
Lord Alton of Liverpool
My Lords, it seems that we are back into the circular arguments that we have been having. The last time I put the question to the Government and asked whether they had any intention of submitting evidence of genocide in Iraq and Syria to the Security Council and through it to the International Criminal Court, they said:
“We are not submitting any evidence of possible genocide against Yazidis and Christians to international courts, nor have we been asked to”.
This argument just goes on and on. That is why, in February, I and other noble Lords from across the House tabled the Motion in Committee. Normally when a Motion is tabled in Committee, the Government respond by saying, “We will discuss with the movers of the Motion ways in which we can take it forward”. Although I had a meeting with the noble Lord, Lord Bates, it was interesting that the first comment of one of the officials who was present was, “We have never done this before”, as though that was an argument for never doing it in the future. I am disappointed that this evening neither the noble and learned Lord, Lord Keen, nor the Front Bench opposite have offered an opportunity to discuss how an amendment might be framed that could find favour with the Government. It seemed to me from what the noble and learned Lord said that under no circumstances would any such move be countenanced.
I was shocked when the noble and learned Lord started to express numbers that were in the realms of fantasy—the idea that 19 million people in the world might take the opportunity. It would be impossible to do that. First, a genocide would have to have been declared by the High Court. It would then have to go before the Government, who would have to decide how they wanted to treat it, and they could then impose exactly the kind of cap that they have imposed in the case of the numbers of people being admitted to this country under the Syrian vulnerable persons scheme. Therefore there is no question that this amendment would open those kinds of floodgates. As the Minister said, that was not the intention of the movers and it would not be the effect of the Motion. Surely, therefore, we now have an opportunity to do something about this. If the Government had said, “We will take this away and look at it between now and Third Reading”, I certainly would have responded positively to that; or we can pass this amendment, and between now and Third Reading the Government can either amend it or send it to those in another place and let them decide how they want to deal with the issue.
Under the 1948 genocide convention, we have three duties. We have a duty to prevent, a duty to punish and a duty to protect. There are two strands in the amendment. The first is to bring about the punishment of the offenders, and the second is to help some of those people. We cannot help everyone; I recognise that. But no one is more vulnerable than someone who is the subject of genocide. We have heard the speeches of the noble Baronesses, Lady Kennedy, Lady Nicholson and Lady Cox, and we have heard from the noble Lord, Lord Forsyth, and many other noble Lords who have set forward the case that genocide is indeed under way and we should therefore do something about it.
I do not claim that the amendment is perfect. I do claim that we cannot keep on going round and round in these circles. Although I recognise that I may well be in a minority this evening, it is better to be in a minority, say what one believes to be right and seek the opinion of the House. I will do that in a moment, because I agreed with the right reverend Prelate the Bishop of Chelmsford when he said that it is our duty to gather up the fragments. I agreed with my noble friend Lady Cox when she said that we should not be silent in the face of evil; with the noble Baroness, Lady Kennedy, when she said that we should break the cycle of inertia; and with the noble Baroness, Lady Nicholson, when she asked why we are last in coming forward. We have the opportunity to break the cycle of inertia this evening, and I would like to test the opinion of the House.
“Protection of locally engaged staff
(1) This section applies to staff who formerly worked for Her Majesty’s Government in Iraq or Afghanistan—
(a) as direct employees of the United Kingdom armed forces or the Ministry of Defence;(b) on letters of appointment from a British Embassy;(c) as direct employees of the Department for International Development or the British Council; or(d) as contracted staff who worked as part of Her Majesty’s Government’s programmes, projects and operations.(2) Persons falling into the categories in subsection (1) and who satisfy the United Nations High Commissioner for Refugees that they meet the criteria of the 1951 Refugee Convention are eligible for resettlement in the United Kingdom under the United Kingdom’s Gateway Protection Programme.
(3) Persons falling into the categories in subsection (1) may apply for a visa to come to the United Kingdom for the purpose of the United Kingdom determining their claim for asylum.
(4) Such persons may be accompanied by—
(a) their spouse or civil partner;(b) any of their children under the age of 18 who are not leading independent lives; and(c) any of their parents and grandparents who are over 65 and their respective spouses and civil partners.”
Lord Dubs (Lab)
My Lords, Amendment 122 is concerned with individuals who helped the British Army and general British interests either in Iraq or Afghanistan, and who are now refugees or, as it were, want to be categorised as refugees. I am indebted to a small NGO called Help Refugees for the advice and information it has given me.
The amendment refers to individuals who are now in refugee camps—they may be as far away as the Middle East or they may be in Calais, where some have been identified. These are persons who worked with Her Majesty’s Government in Iraq and Afghanistan. They may have worked on the Kandahar air base, as translators and interpreters, or as radio operators. These are people who have sufficient evidence to indicate that they worked in that capacity, helping the British Army and other British interests.
These individuals have now suffered from quite serious threats, and I have got some information from a couple of them. One individual who acted as a logistics officer and was involved in liaison contact between British forces and local interests, and who helped train the Afghan military and other companies, said: “I had phone calls saying that I had to stop working with them and, ‘If you don’t stop working with them, you will be killed’”. Another individual, working at the Kandahar base in Afghanistan, said, “As you know, the situation is very bad for those who have worked with the foreign forces—the Americans, the British—and those who are interpreters or translators. Their life is in danger in Afghanistan. Everywhere the Taliban are present in each province, so if they know that you have worked with them they will elect to kill you. Everybody knows this. This is the truth. Nobody can ignore it”. “Have you personally had any threats?”, he was asked. “Yes, when I was there, I was getting calls saying, ‘Leave this job or I will kill your family. I will kill you if I find you’. It was very hard for me”. “Were you getting many of these phone calls in a week?” “Two or three times, yes”. These are individuals who worked with us and to whom we surely have some responsibility. My argument is that we should give effect to that responsibility through this amendment.
There is a difficulty in that two different schemes are in existence which do not quite fit the bill: there is an Iraq policy and an Afghan policy. It is clear that the Iraq policy is a better one and the Afghan policy has helped only one particular individual. What I am suggesting in this amendment is that we should have a more far-reaching policy which helps all the individuals who I have described. The idea is that if they can be identified—and this is a departure from the present policy—as coming under the various categories as set out in proposed subsection (1) they would be entitled to come to Britain and then claim refugee status here. So we meet some of the difficulties that the Minister referred to in responding to the previous amendment.
This is a modest amendment which would meet a certain obligation that we have. If the Government feel that they cannot accept the amendment, there are things they can do to meet the need. I would like an assurance from the Government either that they will accept the amendment or that they are prepared to say that they will do what they can, and describe it, to help the individuals concerned and make accommodation for them outside the statute. I would be happy about that, but we have to do something for these people. Some of them are in the camps in Calais. They have been neglected and forgotten by the world, and they worked for us. They helped us at a critical time in Afghanistan and Iraq. I beg to move.
Baroness Hamwee
My Lords, I have added my name to the amendment. The whole of this Bill raises moral issues, and it was the simple rightness of this proposition that led me to sign the amendment.
The Daily Mail has been campaigning on this issue and recently highlighted the case of one interpreter who was injured by a bomb and accused by the Taliban of being a spy. He was at that time waiting for the UK Government’s support unit to consider his application to be relocated to the UK. He said, “They told me that after five days they would interview me but after five days I was still waiting and they said the programme has not started yet. Then they said maybe 2014, maybe 2015, but I could not wait that long, it was my life at risk”. We know that hard cases make bad law, but do they invariably make bad law? Do they not sometimes point us to what should be good with the law? The dangers to these staff and their families at home are now obvious, as they were obvious when they provided assistance.
The Minister for the Armed Forces in a Statement last August spoke of the UK team,
“which investigates thoroughly all claims of intimidation. When necessary we will put in place appropriate measures to mitigate any risks. These range from providing specific security advice, assistance to relocate the staff member and their family to a safe place in Afghanistan, or, in the most extreme cases, relocation to the UK”.
There are others in the Chamber who can speak with much more authority than I can about whether giving advice and relocation elsewhere within the country is realistic or effective.
I will finish by saying simply that it took a long campaign to recognise the contribution of the Gurkhas to this country, which was supported by David Cameron before he was Prime Minister. I think that we should put right the position for the individuals who are the subject of this amendment now.
Lord Ashdown of Norton-sub-Hamdon
My Lords, the hour is late and no doubt the House does not want to sit for too long. This is an issue on which I have campaigned for the best part of 18 months. My instinct is to speak at some length to outline the individual problems that affect Afghan interpreters, but I do not think that this is the moment to do so. I shall try to be fairly brief in supporting the noble Lord, Lord Dubs, in his amendment.
The amendment cannot be seen except in the context of the United Kingdom’s policy towards Afghan interpreters. As the noble Lord, Lord Dubs, has said, a significantly more disadvantageous set of regulations applies to Afghan interpreters than existed in relation to Iraqi interpreters after the Iraq war. That is an injustice by itself, but let us leave it to one side. As my noble friend Lady Hamwee has said, this is an issue on which the Daily Mail has campaigned—no weeping liberals they, as we know. The newspaper has described the Government’s policies in respect of those to whom we owe a duty of recognition and honour as dishonourable and shameful. I do not often agree with the Daily Mail, but I certainly agree to the use of those adjectives.
I suspect that I am probably the only person in Parliament who not only has been an interpreter—not, I hasten to say, in operational conditions—but has used interpreters, in that case in operational conditions and sometimes moderately dangerous ones. Many of those who served with the front-line units were the bravest of the brave. If there is a front line, they are on it because they have to be; British soldiers cannot do their job unless they are. If there is action, they had to be there too, otherwise we could not do the task that Her Majesty sent us to Afghanistan to fulfil. When the patrol returns the soldiers go into a protected base, but not the Afghan interpreters. They have to spend the night with their families in their communities. Their families are not 10,000 miles away in safety. They too live in the community and are subject to the threat of the Taliban. They came almost by the month for every one of those 13 years and now they come virtually by the day to individual Afghan interpreters, who are beaten up and their families threatened. I have heard so many stories of this that I can barely remember the individual details.
The Afghan interpreters who served day in and day out in active service in the most hostile and dangerous positions, sometimes even with the Special Forces, do not go back after six months. They have stayed in the country for every single one of the 13 years of the Afghan conflict. Now—I have to say it bluntly—we have abandoned them. I do not think that there is a single squaddie or serviceman who served in Afghanistan alongside these interpreters who did not love them, who did not admire them, and who did not think that every single one of them on front-line duties bore a burden of risk greater even than many of our own soldiers because they had borne it for longer. And yet we have abandoned them. It is a shameful policy that shames the Government and, in my view, the nation as well.
The Government’s refuge in this, and we may well hear it from the Minister, is that they have set up their package. There are obligations of duty, honour and service here. Our soldiers could not have operated without the service of these men. They simply would have been useless. The next time our servicemen are asked to go into battle on behalf of our nation and we seek a local interpreter, given the way that we have abandoned them and in the light of the way we have treated them, what kind of response do noble Lords imagine they will get?
The Government believe that all their obligations to these brave men can be fulfilled by the Afghan intimidation scheme. When I understood that the scheme would be put into operation in the next Government, I expressed my opposition to it. I thought that it was the wrong scheme. But if it had been applied with good will, so that the burden of presumption was that the Afghan interpreter would, in the face of intimidation and threat, be allowed to return to Britain, maybe this would have been a reasonable policy—inadequate, flawed, but maybe just about acceptable. But it is not. Almost none of those who have suffered from mortal intimidation from the Taliban have been housed and not a single one has been allowed to return to Britain in the years since this Government have been in power. This policy is already flawed. It is very difficult to understand why it has been enacted with such little generosity and duty of honour, except that those interpreters, along with the honour of our country, have been sacrificed in this Government’s obsession to do not what is right but what is necessary to outflank the revolting prejudices of the right wing of the Conservative Party and UKIP.
This is a shameful policy, the price of which will be paid in the standing not only of our nation but of our own troops, when they seek to draw in the services of interpreters in the future. If we vote for the amendment we can at least make amends in this Bill for three or four years of complete failure to live up to the role that these men have played on behalf of Her Majesty and of our nation in a conflict of our choosing, and who have placed their lives at risk in doing so.
Viscount Hailsham
My Lords, if the amendment was simply in the terms expressed by the noble Lord, I would support it. But it is not: once again, one comes back to look at the terms of the amendment. It is extremely broadly drawn. It is not confined to interpreters. I agree with what the noble Lord, Lord Ashdown, said about the interpreters, but then I look and see who is covered. It includes,
“direct employees of the Department for International Development or the British Council”,
and people who are,
“contracted staff who worked as part of Her Majesty’s Government’s programmes, projects and operations”.
It goes far beyond what the noble Lord said. As I understood the introduction given by the noble Lord, Lord Dubs, which was very clear—the House is grateful to him—all the people who come within those categories should be entitled to come to the United Kingdom and there make applications. We need to focus on legislation. It is quite right to draw attention to the broad principles, which was done very eloquently indeed, but when we are at this stage of a Bill the business of the House is to try to pass legislation that makes sense.
Lord Ashdown of Norton-sub-Hamdon
The amendment does not apply to all those people. It applies to all those people who have served Her Majesty if they are subject to intimidation and threat. The noble Viscount questions the drafting. That is fine, but does he agree with the Government’s policy and the way it is presently enacted with Afghan interpreters? It would appear not. If not, will he put a statement down to the Government today, seeking to use the amendment to get them to adopt a more honourable policy?
Viscount Hailsham
The noble Lord asked whether I support the Government’s policy regarding interpreters. I happen to think that we have not been sufficiently generous to interpreters. I take the point entirely. I would like to see the Government be much more generous to interpreters from Afghanistan, and indeed from Iraq, but that is not the sole purpose of the amendment. I come back to the point I constantly make—I am sorry to repeat it. It is right to look at broad principles, of course it is, but we are also looking at legislation. What the House passes into legislation must make sense. This amendment goes far beyond the point so eloquently made by the noble Lord.
Baroness Nicholson of Winterbourne
In support of this amendment, I remind the House that Britain has been deficient in its treatment of our interpreters. I recall very well that, when the British forces withdrew from Basra in the mid-2000s and we closed, or partially closed, the British consulate—it is completely closed now—three men contacted me in despair and desperation. They were under huge threat; they had worked as interpreters and senior officials in the British consulate and their lives were undoubtedly, in their view, under threat. The evidence they gave me was compelling. I did everything I could; I had no locus, no money, no budget, but by some miracle I was able to persuade a near-neighbouring country to take two of them, temporarily, for what turned into a two-year period before the UNHCR managed to take them out into third countries that were completely safe. The third man, when I said how difficult this was—it was impossible, frankly—said, “Don’t worry about me. I think I’m safer than the other two. I can manage a couple more months before I think they’d find me”. Three weeks later, he was found tortured to death in a shallow grave. I believe that other nations are far more imaginative and constructive in the treatment of interpreters, who are right upfront, known to everybody and, for our services, put their lives at the gravest possible risk and all too frequently lose them. For this reason, I support the amendment.
Lord Ashton of Hyde (Con)
My Lords, there are some things that I think we can all agree on. I agree with the noble Lord, Lord Ashdown, on this. We all acknowledge that the locally employed people in Afghanistan and Iraq did tremendous work—the interpreters in particular, because they tended to be on the front line. They put their lives at risk and sometimes put their families at risk, and I completely agree that we owe them a duty to look after them and to be honourable towards them. Where I differ from the noble Lord, Lord Ashdown, in particular, is that we have not had a policy which is shameful; we have tried and we have succeeded in doing quite a lot to support those people.
We do distinguish, it is true, between those who were employed doing more and less dangerous things and we particularly support those who were on the front line in places such as Helmand in Afghanistan, but I assure noble Lords that we are aware of our legal and our moral responsibility to assist those who suffer as a result of conflict generally. Over and above that, we have a comprehensive approach to assisting those in need who are outside the UK, whom the UNHCR considers in need of resettlement and whom we accept under one of our programmes, particularly the Gateway programme and, more recently, as we heard in the previous debate, the Syrian vulnerable persons relocation programme.
We also accept that we have an additional responsibility to those who have worked for the UK Government in conflict zones. Perhaps it would help if I explain briefly what those arrangements are, because I think there has been some misunderstanding. The numbers that the noble Lord, Lord Ashdown, quoted are not correct. In Afghanistan, we engaged around 7,000 staff during our operations, around half of whom were English-speaking interpreters. There are two schemes designed to assist these former interpreters and other locally engaged staff who are in Afghanistan. First, there is the redundancy scheme, introduced in 2013 in response to the military draw-down. For those who qualify, there is a range of in-country packages of assistance, but also, for those who meet certain criteria, relocation to the UK along with their immediate dependants. Under this scheme, up to the end of February 2016 more than 600 Afghan civilians have been relocated to the UK. This is completely distinct from our refugee resettlement programmes.
The second scheme is the scheme that was mentioned by the noble Lord, Lord Ashdown, which is the intimidation policy—personally, I think it should have been the anti-intimidation policy. This is designed to provide advice and support to any serving or former staff member whose safety has been threatened. So that applies to anyone, whether they resigned long before the draw-down or not—anyone can apply under this policy. That is regardless of the dates or duration of their employment or the role that they held working for us in Afghanistan. Anyone who was employed by the Government, or on associated programmes, can apply. Investigations take place and mitigation measures can be put in place. These can range from providing specific security advice to assistance to relocate the staff member within the country. In the most extreme cases, it could mean relocation to the UK. We have supported around 300 staff members through this intimidation policy, which is regularly reviewed. In the case of Iraq, the numbers are rather larger.
Lord Ashdown of Norton-sub-Hamdon
I said that, according to the figures I have, under the intimidation scheme the number of Afghan interpreters who have been relocated to the United Kingdom since the election of this Government is nil. Am I right?
Lord Ashton of Hyde
The noble Lord is right on that. The point is that 600 Afghan locally employed staff have been relocated to the UK and many others have been helped within the country. The important thing about the intimidation scheme is that, if the circumstances merit it, there is nothing to prevent those people being relocated to the UK.
The noble Baroness, Lady Nicholson, talked about Iraq. The Government have assisted staff through the Iraq locally engaged staff assistance scheme, which has been running since 2007. Six hundred places were made available for staff and dependants who met the criteria and have enabled nearly all that number to be resettled in the UK. The second arrangement in Iraq was also for locally employed staff who were still serving on 8 August 2007. They were granted entry clearance which, on arrival, if they met the criteria, conferred indefinite leave to enter the UK. This had to be referred by employing departments. Since 2007, under this arrangement, a total of 1,323 Iraqi civilians have been relocated to the UK up to the end of February this year.
These programmes are in addition to the UK’s obligation under the refugee convention to consider all asylum claims made in the UK. But we have no legal obligation to extend the asylum process to those outside the UK. As the noble Lord, Lord Pannick, mentioned in the last debate, government policy is very clear that we consider only asylum claims that are lodged in the UK. We do not grant visas to enable asylum seekers to come to the UK. To accept that proposal would attract large numbers of claims requiring careful consideration and place very heavy burdens on UK posts abroad. Importantly, it would also draw resources away from those applying in the UK, and thus undermine our ability to process those claims in accordance with our legal obligations under the refugee convention.
The operation of the two global resettlement schemes already provides a route to the UK for refugees recognised by UNHCR. The existing ex gratia schemes for locally engaged staff in Iraq and Afghanistan have a different focus and provide a route to the UK to reward those who have made particularly significant contributions to the success of UK missions. For all locally engaged staff we have the intimidation policy that provides cover for those who may need support in the face of a local threat, which in extreme cases could lead to relocation to the UK, as I have said. We recognise the considerable contributions made by locally engaged staff and owe a debt of gratitude to them and an ongoing duty of care. That duty and that debt are already being discharged and those in need have been allowed to come to the UK.
In answer to the noble Lord, Lord Dubs, I cannot accept the amendment. However, I can go some way towards what he was asking for as his second alternative. If he can give me examples of where the existing schemes are not working, I am happy to take them to the MoD and explain why they are not working. However, I submit that the schemes which are operating do fulfil our moral and legal obligations. On that basis, I would be grateful if the noble Lord would withdraw the amendment.
Lord Dubs
My Lords, what the Minister has said is quite complicated. There are a number of different schemes and it is not easy to sort out all the implications of what he has said. I will pick him up on one point, though. The Minister said that people cannot travel here to claim asylum. I remember that the British Government brought in some 4,000 Bosnians from the Serb camps. These people were allowed into the country—
Lord Ashton of Hyde
They had to travel here to claim asylum. What they cannot do is claim asylum in foreign countries.
Lord Dubs
They had to be given visas or something with which to come here. The amendment says that they have to satisfy the UNHCR that they meet the 1951 convention criteria and they would then be eligible to apply for a visa for the purpose of claiming asylum here. That meets what the Minister says—yes?
Lord Ashton of Hyde
One of the reasons why we cannot accept the amendment—the red line, if you like—is that we do not give people visas to come to this country to claim asylum.
Lord Dubs
The hour is late but, as I remember it, the Bosnians were allowed to come here in order to be able to claim asylum. I do not think they were given asylum in Serbia when they left. But be that as it may.
If I understand the Minister correctly, he has said that, if we can produce evidence of individuals who have slipped through the net and who would be entitled to come here, under what he has said, if we can find them and give the Government the names, then the Minister will pass them on to the MoD to be dealt with under the scheme. That goes some way to meeting my concerns. I am worried that there are people who have simply slipped through the net. For example, I am told there are several in Calais. They would seem to meet the criteria that the Minister set. There may be others elsewhere. If the Minister is giving that clear assurance, I am prepared to withdraw my amendment.
Lord Ashton of Hyde
I can certainly assure the noble Lord that, if he can produce examples of people who would appear to have slipped through the net, I would be happy to take them to the MoD. Obviously, I cannot give a guarantee that they definitely have slipped through the net, but the MoD will certainly take a look.
Lord Dubs
I appreciate that. I know of at least two who have been identified in Calais by members of an NGO. If I let the Minister have their names, will he be prepared to act as he said and let the MoD have them? I understand he cannot give a complete assurance about what the MoD will do. We have some names and we can produce some more.
On the basis of the Minister’s assurances, I am prepared to withdraw the amendment.
Lord Alton of Liverpool
“Family reunion: refugee resettlement programme
(1) The Secretary of State shall make provision for a refugee resettlement programme to be established under section 59 of the Nationality, Immigration and Asylum Act 2002 (international projects), to provide for family members of persons resident in the United Kingdom to travel to the United Kingdom for resettlement.
(2) The Secretary of State must consult as appropriate before specifying the number of places to be offered under the programme.
(3) Under this section, family members that may be accepted for resettlement under the programme include—
(a) children,(b) grandchildren,(c) parents,(d) spouses,(e) civil or non-marital partners, or(f) siblingsof British citizens, persons settled in the United Kingdom, or persons recognised as refugees or who have been granted humanitarian protection.(4) Priority for family reunion resettlement under this section shall be given to family members not eligible for family reunification under existing rules.
(5) Persons resettled under this section must be in addition to any persons resettled under any commitment on refugee resettlement which exists on the date on which this Act is passed, and must include persons from within the rest of Europe.”
Lord Alton of Liverpool
My Lords, we debated Amendment 122A some hours ago, when it was coupled with Amendment 122. It deals with family reunions, and I would like to test the opinion of the House.
Lord Bates
“( ) In that sub-paragraph, in paragraph (h) for “or 36” substitute “, 35A or 35B”.”
The Earl of Listowel
The Earl of Listowel (CB)
My Lords, I shall speak also to Amendments 123B, 123C and 123D. I thank the noble Baronesses, Lady Lister of Burtersett and Lady Hamwee, and the right reverend Prelate the Bishop of Norwich for attaching their names to these amendments.
These amendments affect a subgroup of young people leaving care. I am very glad and grateful that at the last Conservative Party conference the Prime Minister chose to speak about his particular concern about young people in care. Edward Timpson MP’s work in improving security for care leavers and introducing “staying put” to allow young people to stay with their foster carers until the age of 21 was a huge step forward in the coalition Government. There has been much welcome work in this area and recognition of the vulnerabilities of these young people. I am therefore not at all surprised that the Minister has paid great attention to these amendments. I appreciate our correspondence, the meeting that we and the noble Baroness, Lady Lister, had about this, and the Minister’s consideration and the adjustments that he has made, particularly with regard to young people who were not offered the chance to make an application for their immigration status to be regularised while they were in care under the age of 18, and to young people who have been trafficked.
These amendments ensure that young people leaving care are able to continue to access leaving-care support from their local authorities in circumstances where their departure from the UK is not envisaged. This includes young people with pending applications to remain in the UK whose long-term future may be in the UK, and young people who cannot leave the UK because there is a genuine obstacle to their removal.
This Bill creates a two-tier system of support and discriminates against care leavers on the basis of their immigration status, with damaging consequences for young people who have sometimes been living in the UK for many years as unaccompanied children, including potential victims of child trafficking and those who have no family but their foster family and their corporate parent, the local authority. It is not clear to me why a separate system is needed when the Children Act 1989 and the provision for care leavers, in particular the entitlement to a personal adviser and pathway planning, provide the most appropriate mechanism for supporting young people leaving care whatever their long-term future in the UK.
Central and local government have a unique relationship with children in care and care leavers, as they are corporate parents. That means that they have a statutory responsibility to act for young people in the way that a good parent would. The Government have indicated that very similar types of support could be provided under new paragraph 10B in the Bill, including continued foster placement, the advice and support of a personal adviser and social care support. That is most welcome. However, the Bill is drafted so that the duties to meet the welfare needs of care leavers, in line with wider care-leaving legislation, have been replaced by a power to make regulation. It is therefore anticipated that these young people will generally be prevented from staying in foster placements, continuing education, having a personal adviser and pathway plan, being supported with their health and so on.
The Bill’s provisions affecting migrant care leavers are inconsistent with government policy on care leavers generally, and fundamentally undermine the corporate parenting responsibility. Under these provisions, the Government estimate that 750 care leavers will be affected and therefore prevented from accessing the full range of leaving-care services that their peers receive. However, the Bill will also affect care leavers with pending immigration applications that are not their first application, and others whose long-term future may be in the UK. Young people caught by these provisions will include those who face genuine obstacles to removal, which may persist for lengthy periods of time, and those with non-asylum human rights claims based on having lived in the UK for significant periods of time, if this is not their first application.
I am very grateful to the Minister for the attention that he has given to the needs of these young people, and for the extent to which he has moved during the passage of the Bill. I would really appreciate it if he and the Government could go a bit further in ensuring that as many of these young people as possible have access at least to a personal adviser and a pathway plan. That is crucial for these young people at the age of 18 who have had troubled starts in life. It may also be to the benefit of the Government in their wish to create a robust immigration system. If these young people are engaging in a relationship with their personal adviser, it is easier for the authorities to have contact with them, so it should be easier for the Immigration Service to keep in touch with them and remove them when it is possible to do so.
I would appreciate it if the Minister could give a clear commitment to meeting the needs of these young people and, if he can, to move further forward than he has hitherto. If he could bring something to the House at Third Reading that would make the protections for these young people clear in the Bill, that would also be very welcome. I beg to move.
Baroness Lister of Burtersett
My Lords, I support this group of amendments, to which I have added my name, for the reasons outlined by the noble Earl, Lord Listowel, who has been resolute in his defence of the rights of care leavers. I want to raise some issues arising from the Government’s rationale behind creating a separate system of support for care leavers who have no leave or who are appeal rights exhausted, particularly the removal of the duty to provide these care leavers with a pathway plan and personal advisers, and the dispersal of care leavers outside their local area. I am grateful to the Refugee Children’s Consortium for its briefing.
As I understand it, the Government’s view is that a separate system is needed for these young people who are appeal rights exhausted, because they believe that these young people’s future does not lie in the UK, even though in practice many young people who are ARE remain because of the barriers to their removal. However, the Government accept that in some cases additional support, such as access to social care services and remaining in foster placements, will still be needed. In his letter following Committee, the Minister stated:
“I agree entirely that they”—
that is, care leavers—
“should receive support appropriate to their individual needs”,
and that this could,
“include remaining in foster care placement”.
That is welcome, but it is very difficult to see how it will be achieved if the young person’s needs cannot be assessed because they will no longer be entitled to a pathway plan or personal adviser under the provision in new paragraph 10B, which is precisely the mechanism through which individualised assessments currently take place. Are the Government not just going to be reinventing the wheel by creating a whole separate system for this group of young people? Would it not be better to concentrate on ensuring that the current system for planning these young people’s transition to adulthood worked better by using dual or triple planning approaches to plan for all eventual outcomes for the young person’s immigration status, as set out in the guidance? Can the Minister explain whether the Government intend for young people’s needs to be assessed by new and different professionals? If so, would this not simply break the existing links that young people have with their personal advisers?
The Lord Bishop of Norwich
My Lords, the situation of most young adults in this country reveals why this group of amendments is needed. I am glad to add my name to it and pay tribute to the noble Earl for his introduction. In 2015, half of all young people aged 21 in this country and 40% of all 24 year-olds were still living with their parents. As many Members of your Lordships’ House will know from personal experience, even adult children who have left home often return when need arises. Indeed, my own personal experience of adult children is that territorial control of bedrooms continues even when they have got married or have their flats elsewhere—I am thinking of introducing a bedroom tax in Bishop’s House in Norwich.
Children in care are not somehow exempt from the societal pressures of this age. In this regard, the Government recently changed legislation so that all care leavers can stay put in foster placements until they are 21, which is a recognition of a massive shift in our society and is good for their welfare. The current system of leaving care is designed to keep contact with young people, wherever they end up.
Care leavers who have exhausted their appeal rights and find themselves alone in this country face the same difficulties as other children leaving care but additional ones as well: isolation, loneliness and fear are common. They have often suffered abuse, violence and trauma earlier in their lives. Migrant care leavers need help from their corporate parents to gain access to legal advice and representation in relation to their immigration status.
Research for the Children’s Commissioner, published 18 months ago, included interviews with care leavers who had become appeal rights exhausted. They had a pervasive sense of fear, anxiety and depression. Some said that they contemplated suicide. The experience of friends hardened their resolution to remain in the UK. One young person said of this friends that,
“one of them is currently in a detention centre, one was sent back years ago, and one was sent recently, sent back to Afghanistan … but he is in a big trouble. His father is telling him to join the Taliban”.
This amendment is necessary because such young people undoubtedly continue to need support, whether it is to make sure that returning them to their country of origin is truly safe or to work with them in preparing them to return with assistance and proper support, without the need for enforcement. I hope that the Minister will look sympathetically on this group of amendments.
Baroness Hamwee
My Lords, I have added my name to these amendments and I was planning to say nothing more than that I agree with everything the three previous speakers have said. However, the point made by the noble Baroness on definition seems to need clarifying. When the Minister has considered that, if there seems to be any doubt that has to be resolved in correspondence, it should be resolved in the Bill at Third Reading. If there is a problem, that is where the resolution needs to be.
Lord Bates
My Lords, I thank the noble Earl, Lord Listowel, for moving the amendment. He is one of the Members of this House whom we all greatly admire. He focuses on a particular area that he cares passionately about—namely children, particularly children in care, and seeks to introduce their voice into all pieces of legislation that go through your Lordships’ House. That is to his credit and we appreciate him in that spirit. My officials and I were grateful for the opportunity to meet with the noble Earl about his amendment, and I know that James Brokenshire, the Immigration Minister, was grateful to have the meeting with the Alliance for Children in Care and Care Leavers on 8 March.
The noble Baroness, Lady Lister, invited me to write another of my famous letters. I was particularly proud of the one that we wrote on 11 March following the meetings and the consultation. Not only did we listen to the concerns that were raised, but on page 4 we went into some detail about how we would respond to those concerns. We said that we would look at how provision should be geared to what the local authority is satisfied is needed to support a person through their assisted voluntary return or forced departure. Let us just be clear for those who may not have followed all the aspects of this issue. We are talking about people in local authority care who, after various appeals for leave to remain, are deemed to have no legal right to be here, and furthermore—this is very important from the perspective of the noble Baroness and the right reverend Prelate—there is no barrier preventing their return. These are important provisions to bear in mind in relation to the group that we are talking about.
I emphasise that the great majority of care leavers are not affected by the changes in Schedule 11, including those with refugee status, leave to remain or an outstanding asylum claim or appeal. They will all remain subject to the Children Act framework. Under new paragraph 7B of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, this also includes those who have been refused asylum but have lodged further submissions on protection grounds that remain outstanding, or who have been granted permission to apply for a judicial review in relation to their asylum claim.
Under new paragraph 2A of Schedule 3, the Children Act framework will also continue to cover those awaiting the outcome of their first application or appeal to regularise their immigration status where, for example, they are a victim of trafficking. This means that the young adults affected by the changes in Schedule 11 will be those who have applied for leave to remain here on asylum or other grounds but have been refused, and who the courts have agreed do not need our protection, have no lawful basis to be here and should now leave the UK.
I shall now deal with the points referred to by the noble Earl and the noble Baroness. It is possible for individual cases supported by local authorities under the new 2002 Act framework to continue in a foster placement or to be supported by a personal adviser where the local authority considers this to be appropriate. That is an important safeguard.
The noble Baronesses, Lady Lister and Lady Hamwee, asked about the meaning of “unaccompanied” in Clause 64(10), concerning the transfer of unaccompanied asylum-seeking children. We understand the concern to ensure that all relevant cases are properly safeguarded, including victims of trafficking. We will set out in writing how we intend “unaccompanied” to be defined and how it will operate. My notes do not say when that will be, but it will be done by Third Reading. That is an important point and I am grateful that it has been raised.
The noble Baroness, Lady Lister, asked about care leavers being dispersed across the country. These cases will qualify for Home Office support under new Section 95A only where they are failed asylum seekers facing a genuine obstacle to departure from the UK. It will be possible in these cases for the person to remain in local authority accommodation funded by the Home Office—for example, while they await a travel document from their embassy. We will develop appropriate guidance with the Department for Education on those cases. I am sure that the views of the organisations that the noble Baroness referred to will be valuable in formulating that guidance, and would be appreciated.
The Earl of Listowel
My Lords, I am most grateful to the Minister for his encouraging reply. I should have acknowledged the meeting on 11 March with James Brokenshire. In particular, his offer for ongoing discussion with the Refugee Children’s Consortium is very reassuring. There is just one matter that I would like to clarify with the Minister. He said that this would apply only where there are no barriers preventing the return of these young people. That would include those young people who are here and who one would wish to return to their country but, for various reasons, they cannot be returned. For children who cannot be returned to their home country, for whatever reason that may be, would that be considered a barrier?
Lord Bates
I am happy to come back on that. Where it is not safe for the person to be returned because there is a real fear of danger, persecution or irreversible harm—I think “real” is a legal term in this context—we would not be able to return them in those circumstances. Basically, these are circumstances where there is no barrier; where the courts have looked at the case, and at the country to which the person would be returned, and adjudicated that they do not believe the person would be at risk and there is no reason for them to continue to stay in the UK. That is the definition that applies there.
The Earl of Listowel
I thank the Minister for that reply. Casting back to past Immigration Bills, it is not necessarily about the issue of safety but the right kind of paperwork. Often, if there seems to be some obstacle to returning a person to their home country, it is bureaucratic in nature. However, it does mean that they have to remain for some time here. I need to check my facts, but I look forward to the ongoing discussion with the Minister on these issues. I am very grateful to him for the pains that he has taken over this matter. I am very reassured by his response and look forward to clarification of this definition at Third Reading. I beg leave to withdraw the amendment.
Lord Bates
Lord Bates
( ) a person under the age of 18 who is unaccompanied and who—(i) has leave to enter or remain in the United Kingdom, and(ii) is a person of a kind specified in regulations made by the Secretary of State.”
Lord Bates
Lord Bates
(ii) provision which may be made under section 64(6) or (10),”
Lord Teverson
“Spouses and civil partners of British citizens
(1) The spouse or civil partner of a citizen of the United Kingdom shall be entitled to enter and remain in the United Kingdom in order to live with that citizen.
(2) The provisions of subsection (1) shall not apply in the case of a sham marriage or sham civil partnership within the meaning of section 24 of the Immigration and Asylum Act 1999 (duty to report suspicious marriages).
(3) The Secretary of State shall make rules for the purposes of this section.”
Lord Teverson (LD)
My Lords, I shall not keep the House for a great deal of time. This is an issue which I believe to be fundamental, which is why I have brought it back on Report. I thank my noble friend Lady Hamwee for having simplified it down to its basic elements so that we get to the crux of the matter.
When we talked earlier this evening about bringing together families who were asylum seekers, it was interesting how the Minister agreed, as he obviously would do, that it is much better that asylum families are able to live together. I think that what is not recognised or realised by the vast majority of the population is that we do not in many circumstances allow British citizens to live together with their spouse or civil partner. There are many instances where British citizens who have married are not able to bring their spouse or civil partner to this country to live with them, or if they are abroad and wish to do that, they are effectively exiled. If they have children, who are then usually entitled to British citizenship, those younger citizens are also effectively exiled from their country of citizenship.
The reason for that is the requirement of a certain income per annum for the British citizen over a period of time to enable them to live with their chosen civil partner or spouse. It seems fundamentally wrong that we as British citizens are constrained about who we are able to marry or enter a civil partnership with and are unable to live in our home state. Not only is that fundamentally wrong; it is discriminatory in terms of income levels, with those in certain professions or work or those in certain regions less likely to be able to live with their spouse or civil partner in the United Kingdom, with their family, than are those in other trades and professions and other regions.
For a party and a Government who believe that family is of fundamental importance and for a party with many libertarians among it who believe in the freedom to marry and live with who you wish as long as it is not a sham marriage—clearly those exist, and the amendment takes that into account—I have brought this amendment forward again. I believe that there is a fundamental discrimination and a fundamental injustice in terms of what British citizenship should mean and the liberties that this country should offer to its citizens. On that basis, I beg to move.
Baroness Hamwee
My Lords, at the previous stage my noble friend and I tabled an amendment that sought to change the financial thresholds that currently apply to spousal visas. The Minister gave as one argument for the threshold the need to protect families, saying that the Government want to see family migrants thriving here, not struggling to get by. But separation does not help people to thrive. The Minister thanked my noble friend for raising our sights at that point by talking about love. So instead of another amendment on financial thresholds, my noble friend and I have decided to say what we mean, which is this: do not set a financial threshold on love.
Lord Green of Deddington
My Lords, the amendment simply deletes a key requirement in a spousal visa. Noble Lords will remember that the Migration Advisory Committee was invited to make recommendations on what should be a threshold. I take the point that the noble Baroness would not like a threshold at all, but the recommendation was £18,600 as the level at which no income-based benefits were paid. The level at which the overall costs to the Exchequer would be zero was £40,000. That gives an indication of the cost to the taxpayer of abolishing this income requirement. It is surely not right that the taxpayer should be obliged to subsidise at such a considerable level the arrangements of other people. This amendment would drive a coach and horses through that requirement, and I hope that it will be opposed.
Lord Ashton of Hyde
My Lords, I thank all noble Lords who have spoken on this amendment and I appreciate the knowledge and the strength of feeling of the noble Lord, Lord Teverson. He has put this as a matter of fundamental principle. I respect that, but I am afraid that we disagree on it, and I shall try to explain why the Government feel like that.
The amendment concerns the family Immigration Rules for British citizens which also apply to those who are settled in the UK and those here with refugee leave or humanitarian protection to sponsor a spouse or partner to come and remain in the UK. Of course, we welcome those who wish to make a life in the UK with their family, to work hard and to make a contribution. However, we believe that family life must not be established here at the taxpayer’s expense and that family migrants must be in a position to integrate into British society. That is fair to the applicants and to the public and it is the basis on which the family Immigration Rules were reformed in July 2014 by the coalition Government.
The amendment would reverse those reforms by removing all requirements except the requirement that the marriage or civil partnership is not a sham. So the effect of the amendment would be to remove the minimum income threshold and accommodation requirements; to remove the requirement for basic English language speaking and listening skills; to remove the suitability requirements which prevent a foreign criminal from qualifying for leave; to remove the minimum age requirement; to remove the requirements which prevent the formation of polygamous households and prevent those with a prohibited degree of relationship from qualifying; and it would run counter to Parliament’s view of what the public interest requires in immigration cases engaging the qualified right to respect for family life under Article 8 of the European Convention on Human Rights as set out in the Immigration Act 2014. This would undermine our system for family migration. Understanding basic English and being financially independent, for example, help to ensure that the migrant spouse or partner can integrate and play a full part in British society.
Lord Teverson
My Lords, I thank the Minister for going through all of that. It is a difference of opinion on principle. That is what it is. To me, British citizenship means that you have that freedom. That is something that should be sacred to us as British citizens. We do not have that. I regret that. It makes the case slightly too strongly in certain areas, but clearly the Government are not going to move on this. That is a great shame, because a number of families are seriously exiled from this country and from being able to live with their wider family where they grew up because of these restrictions. Many of those would be no burden on the British taxpayer whatever. But I take the point and I beg leave to withdraw the amendment.
Lord Bates
“(1A) A statutory instrument containing (whether alone or with other provision) regulations under paragraph 28(6) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Lord Bates
My Lords, I can be brief. These are three relatively small amendments, responding to the report from the Delegated Powers and Regulatory Reform Committee, for which we are grateful. I am satisfied that Amendments 141 to 143, which stand in my name, fully respond to the concerns of the committee, which recommended that the affirmative procedure should apply to the power conferred by new paragraph 28(6) of Schedule 2 to the Immigration Act 1971, inserted by paragraph 1 of Schedule 12 to the Bill.
I am also satisfied that the amended provisions will still achieve the policy objective of enabling the Secretary of State to impose financial penalties on owners and agents of aircraft where they fail to take reasonable steps to secure that passengers are embarked or disembarked only within designated control areas at airports. This accords with the committee’s long-standing approach that instruments that specify a fine or other penalty—or a maximum fine or penalty—that is not itself subject to an upper limit set out in the enabling Act should require the affirmative procedure.
I will also move Amendments 146, 149 and 150 in this group, which make it clearer that regulations under a provision that attracts the affirmative procedure may be combined with other regulations, but that, if this happens, the affirmative procedure applies. I beg to move.
Lord Bates
Lord Wallace of Saltaire
“(3A) Regulations under this section must provide for exemption from a charge under subsection (1) in the case of an application for entry clearance or leave to remain made—
(a) to fill a skills gap directly concerned with the provision of education;(b) by an institution whose primary function is the provision of education or skills training;(c) to fill a skills gap directly concerned with the provision of health services; or(d) by an institution whose primary function is the provision of health services.”
Lord Wallace of Saltaire (LD)
My Lords, the immigration skills charge is a major innovation in UK immigration policy and very difficult to debate this late in the evening. Since Committee, however, I have had representations from the British Medical Association, Oxford and Cambridge universities, Universities UK, the Russell group and a very large number of other research institutes which regard this as a very important issue. I hope that the Minister will be able to provide at least some information, because we have not had any communication from him since we raised questions in Committee, nor have we had any letters. There is a real problem here of how we address a major innovation which the Royal Society, on behalf of the national academies, says will cost universities £25 million a year merely to deal with short-term secondees from foreign universities working on two-year post-doctoral fellowships in British universities. This is a serious issue to have to discuss late at night.
The idea was first floated by the Prime Minister in a speech last June. He stated that he would ask the Migration Advisory Committee to report on the subject. The Migration Advisory Committee reported on 20 January this year, after the Commons considered the Bill and had spent five minutes at the end of its Committee stage discussing this clause. In other words, it was not considered properly at all in the Commons. The Government have not yet had time to respond to the MAC report. The chairman of the MAC will be giving a briefing to parliamentarians on this issue tomorrow, the day after we have completed our Committee and Report stages. We raised a number of questions in our short Committee stage to which Ministers, as I have just said, have not responded.
The Minister, in responding in Committee, could assure us only that,
“details about the rate and scope of the immigration skills charge will be set out in regulations to be laid before the introduction of the charge. At that point there will be an opportunity for an informed debate on the details ... There are likely to be legal implications of introducing exemptions”.
I understand that to mean that the Government do not think they necessarily can introduce exemptions from the charge for some sectors. He went on:
“the Government need time fully to consider the evidence about the likely impact … and whether any exemptions should be applied”.—[Official Report, 9/2/16; col. GC 174.]
I am told there are discussions under way with representatives of the universities and the medical profession and that various suggestions of ways forward have been hinted at but nothing has been made available to Parliament to guide any scrutiny of the proposals. Those consulted are not yet happy with the Government’s responses. Yet Clause 88(4) sets out that:
“Section 80 comes into force at the end of the period of two months beginning with the day on which this Act is passed”.
That is far earlier than most other provisions of the Bill. So much for the Prime Minister’s proposal last June that:
“As we improve the training of British workers, we should—over time—be able to lower the number of skilled workers we have to bring in from elsewhere”.
So much for the Minister’s comment in Committee that,
“the Government need time fully to consider the evidence”.
The immigration skills charge is to be rushed into effect before the beginning of the next school and university year—I assume deliberately—to catch recruitment from outside the EU of teachers and academics for the 2016-17 year. I cannot see how either House of Parliament will have time or opportunity to consider the necessary detailed regulations that will be required between May and July this year, or how the Home Office, BIS, the Department for Education and the Department of Health will be able to agree by then what those regulations should spell out.
Amendment 151A seeks to delete subsection (4) of Clause 88. If the Minister cannot provide a justification for this rush to implementation, we may wish to return to this question at Third Reading.
I stand shoulder to shoulder with the noble Lord, Lord Green of Deddington, in accepting that the failure to train sufficient British citizens in skills in demand is one of the most powerful pull factors in UK immigration. When hospital trusts announce that they need to recruit 15,000 nurses from outside the EU, when head teachers are searching Australia, west Africa and Asia for maths teachers, and when IT companies are forced by shortage of skills within Britain to look for recruits in India, large numbers of additional migrants are pulled into the UK. That represents a long-term failure of labour market policy stretching back over several Governments. Net migration, as we all recognise, will not fall until vital parts of both the private and the public sector are able to train enough skilled workers from within the UK workforce.
The promise of 3 million apprenticeships by 2020 should do much to close that gap, if the Government are successful in hitting the target. But we do not yet know enough about the apprenticeship scheme either. I read the Grayling public affairs comment on last Thursday’s Budget, which warned that,
“a current lack of policy clarity and consistency … may undermine the government’s target of 3m apprenticeships … With so little information available, employers will rightly be concerned about how the … system will work”.
Last June, the Prime Minister stated that improvement in training would come first, and then reduction in skilled immigration, but here we are presented with charges to reduce skilled immigration before the training scheme has been set up. We are promised an institute for apprenticeships from April 2017, the details of which also remain unclear. The skills charge is supposed to flow towards funding a scheme which will not be in operation for 12 to 18 months after it is imposed.
Of course, many skilled jobs are not subject to apprenticeships within the UK. Nurses are not apprentices and teachers are not apprentices. University researchers and teachers come with advanced degrees, not apprenticeship qualifications. Logically, therefore, such professions should be exempt from the levy. However, the Minister suggested in Committee that there may be legal problems with this. Can he confirm whether the Government see this as a universal charge on all entrants under tier 2 visas or whether exemptions for health and education, for example, are envisaged? The idea of charging Health Education England for visas for overseas doctors coming here for advanced training, or hospital trusts for recruiting nurses, seems absurd—funding them with one hand and fining them with another.
There is a large air of unjoined-up government about all this. We have just had announcements from other Ministers about extending maths teaching in schools, and the whole apprenticeship scheme depends on finding additional teachers in specialist subjects and skills. But there has been no announcement about a crash scheme for training extra teachers in maths or IT within Britain, no more than there has been any announcement on an emergency scheme to train more British citizens as nurses. Are we going to search for extra teachers from around the world and then penalise the schools and FE colleges that take them on?
Imposition of the charge on universities would be even more damaging, as many of those who have been in touch with me have argued. I am sure that they have sent similar briefings to other Peers. The global standing of British universities depends on the global circulation of academic researchers and teachers, with British citizens studying for advanced degrees abroad and experts from other countries researching and teaching here. Do the Government really want to discourage our universities from international exchange? Would they be happy if other advanced countries outside Europe followed this example and imposed penalties on British researchers whom they invited to join their research teams? None of us yet knows enough about the implications of what the Government are proposing in this highly permissive clause, and I see no sign that the Government understand the implications either. We cannot leave such important issues to regulations that have clearly not yet been drafted. I beg to move.
Lord Renfrew of Kaimsthorn (Con)
My Lords, I support this amendment in so far as it applies to the university sector and, indeed, to university research. It is the role of universities to employ the best people internationally and it is very important that they should be free to do so without the imposition of a charge which might, one gathers, amount to about £1,000 per researcher. That would have an unfortunate effect on many universities. It would cost several of our greatest universities several hundred thousand pounds a year and could be very detrimental, so I hope that the Minister will say a word or two to indicate that it would not fall directly on the university sector in so far as international research goes.
Baroness Warwick of Undercliffe (Lab)
My Lords, I will speak in favour of the amendment in the name of the noble Lord, Lord Wallace, to require the Home Secretary to make exemptions from the immigration skills charge for certain cases. I declare an interest as a member of the councils of UCL and of Nottingham Trent University.
The problem which the Government claim the charge is intended to fix is the underinvestment in the skills of our young people, particularly by employers. I do not think many in this Chamber would disagree with that. Action is certainly necessary on this; employers should be incentivised to invest in skills. However, like the noble Lord, Lord Wallace, I wonder how this charge will interact with the apprenticeship levy, and whether it might be more sensible to proceed with that vehicle as the primary means of increasing investment in apprenticeships and perhaps other forms of education and training. It would be useful if the Minister would comment on that.
The Government have suggested that the charge seeks to disincentive employers who perhaps too readily recruit from overseas in preference to training the domestic workforce. However, the Government have, on many occasions in debates in this House, commented on the impact of immigration on our higher education and research communities and made clear that they do not oppose the UK attracting the brightest and best from around the world to study, teach and research, and to help us to develop an innovative and growing economy. It is difficult to square this commitment with a charge that punishes employers for doing precisely that, particularly if this were applied in blanket fashion without appropriate exemptions.
The amendment also seeks to exempt the appointment of health professionals from the scope of the charge. It is worth pointing out that in many cases in the health sector the supply of suitably qualified candidates in the domestic workforce is at least in part dictated by government policy. To levy a charge on NHS trusts recruiting from overseas, when the number of qualified doctors, for instance, is entirely determined by government quotas, does not seem a sensible approach. It seems particularly perverse that these two sectors will surely be among the most heavily hit by the proposed charge if no exemptions are allowed for.
I accept that the Government have not yet set out their precise plans on this matter, and I understand that they will shortly set out their response to the Migration Advisory Committee’s report on tier 2 migration. I urge the Minister to give some reassurance to the House—and to the health, education and research sectors—about what provision will be made for these sectors.
Baroness Hamwee
My Lords, my noble friend filleted his remarks rather skilfully. I have been trying to do the same, but I think they are going to come out a little disjointed. I am sure we will be told that we will have the opportunity to scrutinise the proposals when regulations are laid. However, I think we know that we can debate but not scrutinise effectively when we have unamendable regulations.
In the public sector generally, particularly the health and education sectors that are publicly funded, I wonder whether there is a risk that the charge will in effect be recycled back into the sector—less all the administrative costs that are lost along the way—if the sector can actually train via apprenticeships. That is not, of course, the case for doctors and many other front-line healthcare professionals. Yesterday, when I was preparing a very much longer speech than this, I wondered about the logic of a charge whose effect may well be to reduce the contribution of skilled workers because employers will simply not be able to afford them. We may be left in a worse position than we are in now. Undoubtedly, we should have enough information to be able to debate these very significant proposals, at the stage of primary legislation, in an effective, possibly even constructive, fashion. It is very disappointing that we are left without that possibility.
Lord Green of Deddington
My Lords, I very much agree with the thrust of the contribution of the noble Lord, Lord Wallace of Saltaire. I think he was absolutely right.
Lord Bates
My Lords, I thank the noble Lord, Lord Wallace, for moving the amendment. We have to remember that what we are seeking to do here is to introduce a levy in order to bring about some behavioural change in the way that people think about recruitment. For far too long it has been an automatic thought to recruit people from outside the European Economic Area without giving proper attention to whether those skills are there in the resident labour market. The immigration skills charge is seeking to provide some funding, first, to see if it causes the organisation to stop and think about whether there are alternatives from the resident labour market and, secondly, to provide some additional support through the funds raised by the levy.
Given the hour—and of course the noble Lord is familiar with the points I made in Committee—I am happy to put further thoughts in writing to him if that would be helpful. I will just deal with some of the particular points that he and other noble Lords raised.
There are exemptions to the charge. An exemption will be applied to migrants undertaking occupations skilled to PhD level. I would have thought that the noble Lord, Lord Renfrew, in terms of academia—
Lord Wallace of Saltaire
My Lords, I am very interested to hear that. It was suggested to me in an email I had the other day from one of the groups that the department has been consulting that this had been floated but had not yet in any sense been agreed. Can the Minister guide me to where I could discover the status of such a proposal?
Lord Bates
In that case, I will return to my speech and go through it in context. This is something additional. The Government have considered advice from the Migration Advisory Committee and additional views from employers. Following careful consideration, I am able to announce that the immigration skills charge of £1,000 per migrant per year will be paid by employers who sponsor tier 2 migrants. The charge will be collected by the Home Office.
A reduced rate of £364 per annum will apply to small businesses and charities as defined in the Immigration Rules. This is consistent with other lower fees applied to these organisations. In addition, an exemption will be applied to migrants undertaking occupations skilled to PhD level. A list of these occupations is included in the Immigration and Nationality (Fees) Regulations. They are primarily science and research roles. There will also be an exemption for graduates who switch from tier 4 to tier 2 in order to take up a position in the UK. These two exemptions build on the Government’s strong post-study work offer for international students and are intended to protect the UK’s position as a centre of excellence for education and research.
The Department for Business, Innovation and Skills has confirmed that it will continue to consult with stakeholders. Indeed, when the Migration Advisory Committee was asked to look at this measure, it consulted with a wide range of groups, including the Russell Group of universities, of which of course Cambridge is an eminent member. The Department for Business, Innovation and Skills is continuing to engage with stakeholders, including devolved Administrations and other government departments, on how best to introduce these skills.
On the proposition that the legislation mandates an independent review one year from the date that the implementing regulations come into force, the Government believe in consulting those affected by proposed changes, and we have done that. As is good practice with any new measure, the Government will review the operation and impact of the immigration skills charge after a suitable period of operation. In addition, the Migration Advisory Committee will continue to provide independent advice to the Government on the UK’s migration policy.
The skills charge will help address issues that I know are of concern to many of us here: net migration and skills shortages. However, I hope that a commitment to a reduced rate and the exemptions I have described, together with a commitment to publish the draft regulations setting out the detail of the charge, will assure the noble Baroness and the noble Lord of the Government’s commitment to implement the charge in a balanced way.
The noble Lord, who has a distinguished academic background himself, rightly talks about the impact of this on universities. We are very conscious of our leading role in this area and will of course continue to engage. But it has to be remembered that, in the international competitive marketplace, other countries such as the United States, Australia and Singapore, all of which have both highly sophisticated labour markets and distinguished academic institutions, operate a similar levy. Of course, when the Migration Advisory Committee looked at this, it looked at international examples before agreeing to set the rate.
I hope the noble Lord will accept this in a spirit of generosity. In his Amendment 151A, he raises a point about the timing and when Clause 80 will come into effect, which the noble Baroness, Lady Hamwee, also mentioned. I hear the points that the noble Lord makes and I give him an undertaking that we will reflect on this and come back at Third Reading with, I hope, something which addresses the concerns that he expressed. I hope, in the light of that commitment, that the noble Lord may feel able to withdraw his amendment at this stage.
Lord Wallace of Saltaire
My Lords, the Minister has been able to provide some reassurance, but not yet very much, and I would like to ask for a great deal more information. I have been able to discover a little about the levy in some other countries—I was not aware that the United States had a levy on skilled workers, let alone teachers at that level—and I would welcome, as I think would all noble Lords interested in this area, some more comparative information on this.
We have touched on the university question, which, given the strength of the academic lobby in this Chamber, is something which a large number of noble Lords are likely to be concerned about—although not just them. As I think I said to the noble Lord on an earlier occasion, I have talked to several head teachers in the last three months who have said to me that they are scouring the world for maths and computer science teachers. They cannot find them in Britain. The Government’s response to that has to be either to say that for the next two years they will exempt from any immigration skills charge people who are going to help build up the skills within the younger workforce in this country in those key areas or to provide a crash course for training people and encouraging them into those professions—or possibly both. The same is true of nursing. We need a joined-up government approach and to expand rapidly the numbers of nurses in training in this country. Otherwise, we will go on importing large numbers of people from the Philippines, South Africa and elsewhere.
I am only half persuaded that the Government yet know what they are doing. An active labour market policy and signals to the private sector seem to me to be very important. But I look forward to hearing further from the noble Lord—perhaps he would like to arrange an all-Peers meeting before we get to Third Reading so that we can discuss some of these things in detail with those around the Chamber who are interested in it. We need a lot more information before we can be confident of what the Government are saying. On that basis—
Lord Bates
The picture I am trying to paint for the noble Lord is that we have listened very carefully, including to the advice from the Migration Advisory Committee. BIS continues to consult and engage with stakeholders on this. On the particular point he raises about teachers of mathematics, schools do not just have to scour Britain but can seek maths teachers from the whole European Economic Area market. They can also recruit them from among people who have graduated from tier 4, and we have a PhD level which, to give a little more information, covers chemical scientists, biological scientists, biochemists, physical scientists, social and humanity scientists and natural and social science professionals not elsewhere classified, including researchers in research organisations other than universities.
My point is that we have done quite a bit. We have listened to the Migration Advisory Committee, we have consulted and I have said that I will give further consideration as to when they are introduced. On the other points which the noble Lord raises, if he really feels strongly about them, our position is that we have made our case strongly and that he should test the opinion of the House.
Lord Wallace of Saltaire
My Lords, it might help the House if the Government could tell us when their response to the Migration Advisory Committee will be published. The committee made the strong statement that the impact of this immigration skills charge on the public sector was such that it should be carefully phased in, perhaps over a number of years. Will that be one of the issues that the Government will address in their response to the MAC report?
Lord Bates
With the leave of the House, I will just say that I have recounted our response to the Migration Advisory Committee. We have listened to what it recommended on this. I said that we were looking at phasing it, which is in the noble Lord’s Amendment 151A. On the other amendments, we believe that the policy is very important. We will not change our position between now and Third Reading and, if the noble Lord wishes to test the opinion of the House, he should.
Lord Wallace of Saltaire
My Lords, a quarter to one in the morning is not the ideal time to test the opinion of the House. The Labour Benches appear to be almost entirely empty—they have abandoned their position. On that basis, I will not test the opinion of the House at this stage.
Lord Bates
I should just say for the benefit of the record that I notice on the government Benches a significant number of colleagues here present and very interested to listen to this debate and the Government’s position. The fact that the noble Lord’s Benches and the opposition Benches may be a bit thin at this hour of the morning is not the point; a lot of people are here who are interested in this debate.
Lord Wallace of Saltaire
There is a strong argument that the way to make legislation on important issues is not in the early hours of the morning. However, on the basis that will have extensive further information and further consultation from the Government between now and Third Reading, I will withdraw my amendment.
Lord Bates
“Duty regarding the welfare of children
For the avoidance of doubt, this Act does not limit any duty imposed on the Secretary of State or any person by section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding welfare of children).”
“Fees for applications made by children to register as British citizens
(1) Section 68 of the Immigration Act 2014 (fees) is amended as follows.
(2) After subsection (13) insert—
“(14) Notwithstanding subsection (9), in setting the amount of any fee in respect of an application for registration as a British citizen made by a person who is a child, the only consideration to which the Secretary of State may have regard is the cost of exercising the function.
(15) Fees regulations shall provide for the waiver of the fee for an application for registration as a British citizen made by a person who is a child and is being provided with assistance by a local authority.
(16) Fees regulations shall provide for discretion to waive the fee for an application for registration as a British citizen made by a person who is a child on grounds relating to the means of the child and anyone exercising parental responsibility for him or her.””
Baroness Lister of Burtersett
The amendment would: limit the fee that the Secretary of State may charge for the making of an application to register a child as a British citizen to the cost incurred in dealing with such an application; provide that, where the child applicant is being assisted by a local authority, there shall be no fee; and, where the child and/or her parent or guardian has insufficient means, provide a power to waive that fee, because no such power exists at present.
The aim is to remove the barrier to children registering their entitlement to British citizenship and to other children applying to register at the Home Secretary’s discretion that is all too often created by the Home Office fee. The amendment follows on from that moved by the noble Lord, Lord Alton of Liverpool, in Committee, and I am pleased to see that he is very patiently still in his place. Like him, I am grateful to Amnesty International UK and the Project for the Registration of Children as British Citizens—or the project, for short—for drawing this issue to my attention and for their help with their amendment.
The noble Lord drew attention to the problems faced by an estimated 120,000 children in the UK without citizenship or immigration leave, despite the fact that many of them are entitled to British citizenship and many others could and would be likely to be registered at the discretion of the Home Secretary, if they were to apply. More than half of these children were born in this country. Unlike the amendment proposed by the noble Lord, Lord Alton, this one is not limited to children in care; it is concerned with all children entitled under the provisions of the British Nationality Act 1981 to be registered as British citizens, and those others who may be registered if they apply. Given the various provisions in this Bill and its predecessor concerning such matters as the right to rent, access to employment and access to higher education, the importance of registration for these children is clear.
The project has much experience of the considerable barrier to children registering as British created by the fee, which rose last Friday to a staggering £936. When I tell people about this, they look at me open-mouthed and say that they had absolutely no idea. Nor, to be honest, had I until I was made aware of this issue. Not surprisingly, many children, and their parents and carers, cannot afford it, many local authorities are unwilling to pay the fee for children in their care, and it is unclear why local rather than central government should bear the cost of these children’s registration. The overall result is that children who could and would be British miss out and in many instances later face the prospect of being removed from the country in which they have lived for all or most of their lives.
The project provided some examples, including that of Danny, who was three years old when he was brought to the UK and was in receipt of assistance from social services. He had been offered a place at drama school but had no leave to remain. He was referred to the project as he was approaching his 18th birthday, and he was able to apply to register as a British citizen. However, he could not afford the fee and the local authority refused to pay it. Had one of the project’s volunteers—and it is totally volunteer-run—not paid his fee, Danny would have lost the opportunity to be registered on turning 18. Surely it is not right that a basic right such as this should be subject to the vagaries of a kind volunteer meeting the cost of accessing it.
It is especially shocking that by far the greater part of the fee is simply profit to the Home Office, as the noble Lord, Lord Alton, pointed out in Committee. The cost to the Home Office in registering a child was calculated to be £223 in the previous financial year. The relevant impact assessment states that this cost will rise by more than 20% in 2016 to £272, although it is unclear why. The impact on children is not considered in that assessment, and their best interests, and the Government’s statutory duty to promote their welfare, are not considered. The assessment and other government statements failed to acknowledge the fact that in many of these cases what is being charged for is a pre-existing entitlement under the British Nationality Act 1981, and that the Home Office has not been asked to grant but is merely being required to register the child’s citizenship. In any case, making any profit, let alone one of £664, as is now the case, from a child’s entitlement to be registered as British is surely unconscionable, especially when it leads time and again to preventing children from registering at all.
A recent Written Answer to the noble Lord, Lord Alton, explained:
“The power to set fees that are higher than the cost of processing applications is contained within The Immigration Act 2014, which provides that the Home Office may take into account not just the cost of processing an application, but also the benefits and entitlements available to an individual if their application is successful and the cost of exercising any other function in connection with immigration or nationality. The Home Office does not provide exceptions … because the Home Office considers that citizenship is not a necessary pre-requisite to enable a person to exercise his or her rights in the UK in line with the European Convention on Human Rights. British nationality applications are not mandatory and many individuals with Indefinite Leave to Remain decide not to apply. A person who has Indefinite Leave to Remain may continue to live in the UK and travel abroad using”,
existing documentation. Again, the Home Office is failing to distinguish the registration of a pre-existing entitlement from other citizenship applications, particularly naturalisation applications. It is comparing apples with oranges. Those children who are entitled to register are not requesting some benefit from the Home Office but are requiring it to record what Parliament as long ago as 1981 determined to be their right. It is true that those who may apply to be naturalised are not in the same position, and it is correct that many of those with indefinite leave to remain—a prerequisite for applying to naturalise—do not necessarily want or need to be naturalised. Those entitled to register are entitled in the same way as those born in the UK to a British or settled parent are entitled to British citizenship.
The Written Answer seems to imply that the registration of British citizenship is of no real importance to these children, yet in his post-Committee letter the Minister acknowledged the importance of local authorities enabling and encouraging children in their care who need to do so to make a timely application to regularise their immigration status or to register as British citizens. It can be critical for some of these children, because they risk losing their entitlement if they do not register before turning 18. Moreover, the guidance on the MN1 form on which children register as British states:
“Becoming a British citizen is a significant life event. Apart from allowing a child to apply for a British citizen passport, British citizenship gives them the opportunity to participate more fully in the life of their local community as they grow up”.
The project and Amnesty believe this amendment to be crucial to ensuring that children are not denied their right to citizenship because of their inability to pay. They are right to call our attention to what they dub profiteering on the part of the Home Office at the expense of children.
I imagine that the Minister is planning a response on the lines of the recent Written Answer from which I quoted. I hope I have shown why that Answer does not invalidate the case for this amendment. I would be grateful if he could take on board in particular what I said about this being a pre-existing entitlement. There is a real issue here. It may well be that we cannot resolve it today—today now being tomorrow—but I would be grateful if the Minister and his officials could look into it, ideally in discussion with the project and Amnesty, and consider coming back at Third Reading with a considered response. I beg to move.
Lord Alton of Liverpool
My Lords, I support what the noble Baroness, Lady Lister, has just said to the House. As she indicated, this is an issue I raised in Committee. It has been the subject of correspondence between the noble Lord, Lord Bates, and me and of Parliamentary Questions which I have tabled.
If Amendment 145A is accepted, it would mean that in setting a fee in respect of an application for the registration of a child as a British citizen, the only matter to which the Secretary of State could have regard is the cost of processing that application. The amendment provides that fees regulations must provide for the fee to be waived where the child is in care or otherwise assisted by a local authority. It provides for discretion to waive the fee in other cases on the grounds of the means of the child, his or her parents or his or her carers.
In many cases where children have a claim to be registered as British citizens, no application for such registration has been made. Under a number of provisions of the British Nationality Act 1981, to which the noble Baroness referred, the power to register the child exists only while the child is a minor. After I raised these cases in Committee, the Minister wrote in reply on 3 February and described what he called—the noble Baroness referred to this—the importance of local authorities enabling and encouraging children in their care who need to do so to make a timely application to regularise their immigration status or to register as British citizens. So there is nothing between us in that sense. We both agree about the desirability of that.
However, I have had drawn to my attention, as has the noble Baroness, that in many cases the reason why no registration has taken place is precisely the size of the fee. As of 18 March 2016, the fee is £936. In these cases, where the child and/or the parents cannot afford to pay or the local authority will not pay, this money is simply beyond their means. The fee is set above the cost of registering the child, which the Home Office calculates to be £272, while in 2015-16 it was just £223. There is a massive discrepancy between that figure of £272 and the £936 that would be charged to the child in order to be able to register in these circumstances. How on earth can we justify that phenomenal difference? It seems to me like profiteering on children. It is quite indefensible and it is hardly a good advertisement for one-nation Britain.
Lord Bates
My Lords, I thank the noble Baroness, Lady Lister, for her Amendment 145A. It is important that the Home Office is able to run a sustainable immigration and nationality system in a way that minimises the burden on the taxpayer. When the figures are spoken about in terms of the amount of money that it costs, that has to be seen in the context of our commitment to achieve a self-funded border, immigration and citizenship system by 2019-20. That raises the question: when people are using our border service, our immigration system or our citizenship, why should the resident taxpayer population be the ones who have to pay for the benefit that is falling to the individuals making the applications?
The first part of the amendment would restrict our ability in setting a fee to take account of any factor other than cost. That would cost the Home Office at least £29 million per annum over the next spending review period, mainly from lost income on current plans. Such a reduction in fee funding would have a serious detrimental effect on the department’s ability to operate an effective border and immigration system.
We recognise that families normally bear the cost for applications made on behalf of children. As a result, the Home Office already sets a fee for a child to register as a British citizen at a rate £300 lower than the overall cost of adult citizenship applications.
The second part of the amendment relates to those children receiving local authority assistance. Unaccompanied children in the UK generally seek leave to remain on protection grounds, for which no fee is charged. For a child in the care of the local authority, the Home Office waives the application fee for leave to remain on the grounds for settlement. This preserves the person’s ability to reside in the UK until they can afford to apply for citizenship.
The final part of the amendment, which would introduce a very broad provision to waive application fees, taking into account the means of applicants or parents, would be very difficult to implement in practice. It would be highly likely to lead to claims from applicants simply seeking to avoid paying, rather than those who were genuinely destitute, for whom there are already alternative and appropriate remedies that ensure that convention rights are protected. For children in family groups applying for leave to remain on human rights grounds, the fee is waived where the applicant is destitute or otherwise meets the published fee-waiver policy. Taken as a whole, this policy ensures that a person’s convention rights are protected, that the value of British citizenship is recognised and that the border and immigration system is adequately sustained and funded.
Citizenship can never be an absolute right, nor is it necessary in order for a person to reside in the UK and access our public services. A person who is settled in the UK is not required to become a citizen by a certain date: they can remain here until they can meet the criteria for doing so, including payment of the required fee. Overall, on balance, we feel that the existing arrangement strikes the right balance between fairness to individuals and fairness to all applicants, as well as to the resident taxpayer population. I ask the noble Baroness to consider withdrawing her amendment.
Baroness Lister of Burtersett
My Lords, I am grateful to the noble Lord, Lord Alton, for persevering and staying up at this late hour to give me such strong support on this amendment.
I suppose I am grateful to the Minister—he did not have any option but to stay and respond—but I am very disappointed by his response. He seems to be saying that the immigration system depends on children paying this exorbitant fee to be able to carry on; that, bluntly, seems to be what he is saying. These children will become taxpayers; I find the idea that they are somehow a burden on the taxpayer terribly depressing. They have a right—I do not see why they should have to pay such fees.
I can quite see that there might be somewhere between what the amendment is calling for, which is that there cannot be anything above the cost to the Home Office, and the Government’s position, but we are talking about a difference of over £600 for a child between the cost to the Home Office and the fee. That seems to be a very large surcharge on these children to keep the wheels of the immigration system turning. It is well past my bedtime so I am not thinking very straight, but I am slightly flabbergasted by that argument. At least it is now in the open—what this has been about has been said very clearly.
I am disappointed that the Minister has not been willing to give an inch, because there is scope there for some kind of compromise between the amendment and the situation as it stands. I am also disappointed that the Government are not prepared to think about it and talk to Amnesty and the project just to see whether there might be some way of coming to some kind of agreement to make this policy slightly less harsh than it is at present. The Minister may want to say something.
Lord Bates
I will say only that, with the existing arrangements for waivers for those who are in particular need, the policy is absolutely right and we stand by it.
Baroness Lister of Burtersett
According to Amnesty, the waiver is limited, but I will have to look into that. The Minister talked about the right balance, but personally I do not think there is no balance there at all. However, I beg leave to withdraw the amendment.
Lord Bates
“( ) regulations under section (Information gateways),”
(b) to which subsection (2) does not apply,”
Lord Bates
“( ) But subsection (3) does not apply to the amendments made to the Modern Slavery Act 2015 by paragraphs 26A and 27A of Schedule 2 (for the extent of which, see the amendments to section 60 of that Act made by paragraph 26D of that Schedule).”
( ) section 60(6) of the Modern Slavery Act 2015.”