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.
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.
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.
Lord Bates
“( ) In that sub-paragraph, in paragraph (h) for “or 36” substitute “, 35A or 35B”.”
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
Lord Bates
Lord Bates
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 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 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).”
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
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).”