16:43 - Division on Motion A1 - Ayes: 157 / Noes: 217 - Motion A1 disagreed.
18:26 - Division on Motion C1 - Ayes: 271 / Noes: 206 - Motion C1 agreed.
18:41 - Division on Motion D1 - Ayes: 259 / Noes: 203 - Motion D1 agreed.
19:28 - Division on Motion E1 - Ayes: 279 / Noes: 172 - Motion E1 agreed.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, it may be helpful if I first remind the House of the current arrangements for asylum seekers wishing to work, as that will put the comments of the noble Lord, Lord Alton, into context. We allow asylum seekers to work if their claim has not been decided after 12 months through no fault of their own. Those allowed to work are restricted to jobs on the shortage occupation list, introduced in the previous Parliament.
The Government believe that this is a fair and reasonable policy, and the main reason for that is the need to protect the resident labour market—that is, the need to ensure that access to jobs is prioritised for British citizens and those with leave to remain here, including refugees. I firmly believe that the current policy strikes the right balance. It is fair and reasonable towards genuine asylum seekers, it is consistent with our international obligations and it takes into account the rights and needs of our society as a whole. I therefore urge noble Lords to accept the view of the other place, and not to insist on their amendment. I beg to move.
Motion A1 (as an amendment to Motion A)
Lord Rosser (Lab)
The amendment your Lordships sent to the Commons on allowing asylum seekers the right to work after six months, like the other amendments carried in this House against the Government’s wishes, did not find favour with the Government or indeed receive any indication of movement by them on the issue.
As has been said, at present in most cases asylum seekers are not allowed to work in the UK unless they have waited over 12 months for an initial or subsequent decision, and are not considered responsible for any delay. Those who do qualify for the right to work under these restrictions are then able to apply only for jobs on the shortage occupation list. However, we are currently reviewing this issue as part of a wider policy review and consequently we will not be supporting the Motion sending the matter back again to the Commons—albeit now saying nine months rather than six months.
Earl Howe
My Lords, Amendment 59B, proposed in lieu of Amendment 59, while slightly less radical than the earlier amendment, would still mean fundamental changes to the government policy of restricting permission to work to those who have been awaiting a decision, through no fault of their own, for 12 months. As the noble Lord reminded us, those allowed to work are restricted to jobs on the shortage occupation list introduced in the last Parliament. As I indicated earlier, the Government believe that this is a fair and reasonable policy, and we believe that because of the need to ensure that access to jobs is prioritised for British citizens and those with leave to remain here—including, importantly, refugees.
The new amendment would not only allow asylum seekers to work after only nine months; it would also remove the important caveat that any delay must not be of the asylum seeker’s own making. This would benefit those who are responsible for delaying a decision on their claim and purposely frustrate the asylum process simply to gain permission to work or to avoid removal. It would also benefit individuals whose cases were complex for perfectly good reasons, such as those accused of serious criminal acts, including war crimes, where there is an inescapable imperative to investigate the facts before reaching a decision. It would also allow unrestricted access to the labour market—that is to say, not just to jobs on the shortage occupation list—regardless of the interests of British jobseekers. It is a recipe for a free pass into the UK employment pool and that really is not fair to British people competing for the same jobs. In making policy in this area, we have a duty to consider how such policy impacts on society as a whole, not just on asylum seekers.
The noble Lord, Lord Alton, rather dismissed the arguments rehearsed by my noble friends Lord Ashton and Lord Bates in earlier stages of the Bill. But there is a danger that the noble Lord’s amendment would serve to encourage unfounded claims from those who do not need protection at all but are simply seeking employment opportunities, knowing that if they play their cards right they can achieve that objective within nine months. These are opportunities for which they would not otherwise be eligible. That cannot be right or acceptable. The shorter the period allowed for in this context, the more we encourage spurious asylum claims of this kind.
Currently, the Immigration Rules allow non-EEA nationals to work here if there is no suitable resident worker available. This gives priority to those filling roles on the shortage occupation list and is subject to numerical limits. If non-EEA nationals could bypass these restrictions by lodging an unfounded asylum claim, this approach would be completely undermined. It could encourage illegal migrants to come here and make an unfounded asylum claim, which would prejudice the position of British people and recognised refugees in our labour market. I say that because if we were to experience an increase in unfounded claims, the knock-on effect would be to delay claims from genuine refugees and undermine our progress towards a fair and efficient asylum system.
There has been much debate about delays in decision-making in the Home Office, but this is no longer an issue. Delays have been brought under control and, in the great majority of cases, asylum seekers receive a decision within six months. Many of those who do not are the complex cases that I referred to earlier. The noble Lord’s amendment carries an increased risk that we will be obliged to give a free pass to people with a criminal record—or, shall I say, with a criminal past. The majority of refugees are granted asylum within six months and once that happens, they have unrestricted access to the labour market.
The noble Lord, Lord Alton, suggested that his amendment was a route out of poverty but this suggests that asylum seekers are penniless. While awaiting a decision, they receive free accommodation and a cash allowance to cover essential living needs if they would otherwise be destitute. While their claim is outstanding they can undertake volunteering activities that can benefit a community, giving them a sense of purpose, and we are exploring ways to support this.
The amendment proposed is unnecessary and I really do not think that the noble Lord has made his case. Asylum seekers do not need to work and what he proposes carries the risk of serious abuse. I firmly believe that the current policy strikes the right balance. As I said earlier, it is fair and reasonable towards genuine asylum seekers; it is consistent with our international obligations; and it takes into account the rights and needs of our society as a whole. On that basis, I ask noble Lords to resist Amendment 59B in lieu.
Lord Alton of Liverpool
My Lords, I am grateful to the noble Earl for his reply. However, I would beg the House to consider whether these are convincing arguments. If there were gangs of marauding criminals—or war criminals—seeking jobs in the 24 countries that use either a six-month or a nine-month limit, I think we would have heard about it by now. It is a slightly bizarre argument. If the Government were really concerned that this might be misused, then surely the answer is to engage with the amendment and for the Government to come forward and include exemptions, so that if someone is being prosecuted, they would not qualify for this entitlement. There are ways of dealing with this, if the noble Earl really is serious about it, rather than saying out of hand, “We are not prepared to do what 24 other countries are doing”.
The noble Earl also said that this will deprive British people of jobs. We are talking about a tiny number of people in reality: the 3,600 people I mentioned in my earlier remarks. If the Government are right and are able to deal with these matters in a six-month period, presumably those numbers will continue to reduce.
What is the view of the British public? A survey conducted by the IPPR found that 51% of people in the UK thought that asylum seekers should be allowed to work, with 29% saying they should not. It is not right for the Government to imply that there is hostility in the country. If you were to ask people whether it is right to leave people to survive on £5 a day, I have a pretty shrewd idea of how public opinion would react to that question. If you were to ask them whether it is better for people to scrape along in destitution on £5 a day or to be given support through their own efforts and labours, again I know where public opinion would stand. Of course people believe it is better for people to provide for themselves rather than the state making that provision for them. This is not about free passes; this is about human dignity. It really disturbs me that we are adopting a morality that seems closer to the Victorian approach to the workhouse than to one based on the humane and civilised needs of the 21st century.
I am disappointed that the noble Lord, Lord Rosser, feels unable today to come into the Lobby with us. After all, he was a signatory to this very same amendment, when it provided for six months, when it was before your Lordships’ House on a previous occasion. However, I am extremely grateful to the noble Baronesses, Lady Lister and Lady Hamwee, and others of your Lordships who encouraged me to retable an amendment today. Having done that, I would like to see the opinion of the House. I hope the House will agree that this amendment should find favour here and go back to another place so that they can have a discussion about its merits, or otherwise, which it was unable to do yesterday. That is a reason, surely, for returning it back down the corridor.
Earl Howe
My Lords, we come now to the issue of overseas domestic workers. I very much hope that the House will be content to accept the arrangements that I am about to outline, which represent a considerable change from those we were proposing when this matter was first debated. It is clear that both the Government and the noble Lords who have supported this House’s Amendment 60 have a common purpose, which is to prevent the abuse of this group of vulnerable workers. In his independent review, James Ewins emphasised the need to provide overseas domestic workers who arrive here in an abusive relationship with an escape route from that abuse. The Government have accepted that. The debate is about how the right to escape an abusive relationship is made effective.
The Government have considered carefully the arguments that have been put forward, including by the Immigration Law Practitioners’ Association in its detailed commentary on the debate on Report in this House. What I am sure we also agree upon is the need to ensure that, where abuse occurs, the perpetrators are identified. If that is to happen, victims of abuse need to be encouraged to consent to their cases being referred into the national referral mechanism, and they are more likely to do so if they are confident that doing so will not prejudice their ability to work.
We have set out a comprehensive package of measures to address these very objectives. We have already amended the Immigration Rules so that overseas domestic workers are admitted on conditions of stay that permit them, during the six-month period for which they are admitted, to change employer. They do not need to apply to the Home Office to do so. Paragraph 159B of the Immigration Rules already sets that out.
This will be a genuine and effective right to change employers, not an illusory one. The Minister for Immigration has stated that we will take further action to ensure that, where an overseas domestic worker has been referred into the national referral mechanism within that six-month period, their permission to work will continue while their case is being considered—again, without having to apply to the Home Office. This change can be made through secondary legislation, using the powers in Section 4(1) of the Immigration Act 1971. We will do this as soon as possible. We have also already amended the Immigration Rules—in paragraphs 159I to 159K—so that overseas domestic workers who obtain a positive conclusive grounds decision can obtain a two-year extension of stay.
The Earl of Sandwich (CB)
My noble friend Lord Green said that the Government have moved a very long way but I cannot agree with him. The Government have moved a short way. We heard previously, at earlier stages of the Bill, about the national referral mechanism being the fulcrum of the Government’s argument. I acknowledge that they have moved, but anyone who has sat and listened to 50 domestic workers, as I did with my noble friend Lord Hylton, will know that there is an atmosphere of fear, which is very hard to convey, but the noble Baroness, Lady Hamwee, has already pointed that out. Even applying to the national referral mechanism, reporting very dangerous circumstances and forms of abuse, carries its risks for these people. Therefore, I urge noble Lords to think very hard about this amendment and I support my noble friend.
Earl Howe
My Lords, I have listened carefully to the questions and comments that noble Lords have made. I re-emphasise that we share a common objective here—that is, to ensure that there are effective arrangements for overseas domestic workers to escape abuse, and that must be at the centre of our thinking.
Perhaps initially I may respond to the questions put by the noble Lord, Lord Hylton. I am grateful to him for giving me advance notice of them. I confirm that the protection measures which the Government are extending to overseas domestic workers will apply in cases where the abuse or exploitation starts only after arrival in the UK. This includes the ability of overseas domestic workers who were referred to the national referral mechanism to continue working while their case is considered. We will ensure that this possibility is publicised via the planned information meetings and that statutory and voluntary personnel who work with overseas domestic workers are also made aware of it.
If the outcome of the referral is that the person is found not to be a victim of slavery and trafficking and therefore needs to return home, I also confirm that it will be for the individual to choose whether they return to their country of origin or to their country of previous residence. The Government’s information leaflet for victims of trafficking already makes it clear that they will be assisted to return to their home country if it is safe to do so. I hope that that reassures the noble Lord.
I am sorry that the noble Baroness, Lady Hamwee, is not convinced by the measures that we have taken to address the concerns raised at previous stages. I am genuinely sorry as we have tried our best. Perhaps I may address one point that she made. She indicated that James Ewins had been asked to produce a further report on overseas domestic workers. In fact, he has not been asked to complete a report, although I need hardly say that the Government will keep the situation under close review. The noble Baroness may be thinking of a different issue. We have asked Stephen Shaw to review the system of detention, and my noble and learned friend Lord Keen will come to that issue later.
Lord Alton of Liverpool
The noble Earl may remember, or may have been briefed on it, that a meeting was convened by his noble friend Lord Bates when he held ministerial responsibility. We were told during that meeting that to deal with the problem of an employer who might repeat the offence of bringing other people into the country in order to engage in the same level of abuse against them that they did with an earlier employee, some kind of register would be drawn up and there would be a licensing system to prevent that taking place in the future. Can the noble Earl say whether any further thought has been given to that? He is quite right that none of us would want to see the repetition of these offences, but surely a licensing system and register would be the way to prevent that occurring.
Earl Howe
My Lords, as I said in my earlier remarks, we have accepted in principle the need to bring employers into the net, if I can put it that way. They have to register when they arrive so that we know who they are and who they are employing. I think we have addressed that point. It is necessary, I agree with the noble Lord, to know who is bringing overseas domestic workers into the country. We will be working through the detail of the registration requirement over the coming weeks and will announce more details in due course. The key purpose will be to allow us to monitor those who bring overseas domestic workers into the UK in the first place.
Lord Keen of Elie
That this House do not insist on its Amendment 84 and do agree with the Commons in their Amendment 84A in lieu.
Commons Amendment in lieu
“Duty to arrange consideration of bail
(1) Subject as follows, the Secretary of State must arrange a reference to the First-tier Tribunal for the Tribunal to decide whether to grant bail to a person if—
(a) the person is being detained under a provision mentioned in paragraph 1(1)(a) or (c), and
(b) the period of six months beginning with the relevant date has elapsed.
(2) In sub-paragraph (1)(b) “the relevant date” means—
(a) the date on which the person’s detention began, or
(b) if a relevant event has occurred in relation to the person since that date, the last date on which such an event has occurred in relation to the person.
(3) The following are relevant events in relation to a person for the purposes of sub-paragraph (2)(b)—
(a) consideration by the First-tier Tribunal of whether to grant immigration bail to the person;
(b) withdrawal by the person of an application for immigration bail treated as made by the person as the result of a reference under this paragraph;
(c) withdrawal by the person of a notice given under sub-paragraph (6)(b).
(4) The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person—
(a) includes such consideration regardless of whether there is a hearing or the First-tier Tribunal makes a determination in the case in question;
(b) includes the dismissal of an application by virtue of provision made under paragraph 9(2).
(5) The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person does not include such consideration in a case where—
(a) the person has made an application for bail, other than one treated as made by the person as the result of a reference under this paragraph, and
(b) the First-tier Tribunal is prevented from granting bail to the person by paragraph 3(4) (requirement for Secretary of State’s consent to bail).
(6) The duty in sub-paragraph (1) to arrange a reference does not apply if— (a) section 3(2) of the Special Immigration Appeals Commission Act 1997 (persons detained in interests of national security etc) applies to the person, or
(b) the person has given to the Secretary of State, and has not withdrawn, written notice that the person does not wish the person’s case to be referred to the First-tier Tribunal under this paragraph.
(7) A reference to the First-tier Tribunal under this paragraph in relation to a person is to be treated for all purposes as an application by that person for the grant of bail under paragraph 1(3).”
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I shall also speak to my Motion D.
It is clear that both the Government and noble Lords who supported this House’s amendment in respect of a time limit on immigration detention have a common purpose—to prevent the detention of individuals for any longer than is absolutely necessary. As the Government have stated previously during the passage of this Bill, I can reassure the House that individuals who are removed will be detained only for that purpose and only where there is a realistic prospect of removal within a reasonable time.
We all also agree on the need to ensure that any decision to deprive someone of their liberty must be subject to careful consideration and scrutiny, taking into account an individual’s circumstances. Work on a wide package of reform, which was announced in the response to the review by Stephen Shaw of the welfare of vulnerable people in detention, is already under way. This reflects the seriousness with which the Government regard these issues.
The Government have made clear previously their rationale for opposing general time limits on immigration detention—that they would be arbitrary, that they would not take account of individual circumstances, and that they would encourage individuals to seek to frustrate the removals process until the time limit is reached. I fully respect the views of those noble Lords who voted in favour of a time limit but the Government’s strong view remains that a time limit would have a negative impact on their ability to enforce immigration control and, consequently, to maintain public safety.
However, the Government have considered the views expressed by many noble Lords that there should be a greater level of judicial oversight over detention. That is why the Government tabled a Motion in the other place, the effect of which would be that individuals would be automatically referred to the tribunal for a bail hearing six months after their detention began or, if the tribunal has already considered whether to release them within the first six months, six months after that consideration. The individual would then receive further referrals at six-monthly intervals calculated from the point of the last consideration. This referral requirement will ensure that individuals who do not make an application themselves, for whatever reason, will have independent judicial oversight of their ongoing detention.
Individuals will still be able to make an application themselves at any time. They will be made aware of and have access to legal advice to support them in making challenges to immigration detention and in making applications for bail. This will be another important safeguard which will complement the wider reforms that the Government are putting in place in response to Stephen Shaw’s report.
The adults at risk policy will strengthen the existing presumption against detention of those particularly vulnerable to harm in detention. A new gatekeeper function will provide additional oversight and scrutiny to ensure that detention is the appropriate option for those entering the detention estate. Furthermore, a new approach to case management with a clear focus on removal plans and panel reviews on at least a quarterly basis will ensure that only those who should be detained remain detained. As the Government have already made clear, they fully expect these reforms to result in fewer people being detained and for a shorter period.
Six months is a proportionate approach. It will ensure that an adequate safeguard is in place to protect individuals who have been detained for an extended period and have not made their own application for bail, while not imposing unreasonable burdens on the tribunal and on the Home Office. Earlier referrals might result in mandatory work for the tribunal and the Home Office whereby individuals would be referred for bail hearings at the very time when their removal from the country is planned and imminent. This is not a good use of taxpayers’ money or of the tribunal’s time. Together with other reforms—the gatekeeper role, the adults at risk policy and the new casework management system with frequent internal reviews—this amendment will provide adequate oversight of detention.
Amendment 85A requires the Government to issue guidance to those making decisions on the detention of individuals for the purpose of immigration control where issues of vulnerability are raised. This relates directly to the adults at risk policy announced in a Written Ministerial Statement on 14 January as part of the Government’s response to Stephen Shaw’s report. The amendment reinstates the clauses as agreed in this House on Report. The reinstatement removes the amendment agreed to by this House at Third Reading, the effect of which would be to place an absolute exclusion on the detention of pregnant women.
The Government have been considering this matter since they received Stephen Shaw’s review and have also listened carefully to the views of the noble Baroness, Lady Lister, who tabled the amendment, and those of Peers who voted in favour of it. As the House will be aware, the Home Secretary announced just last week that the Government plan to end the routine detention of pregnant women. This would be similar to the arrangements put in place as part of the ending of routine detention for families with children in 2014, a reform which demonstrates the Government’s commitment to balancing proportionate immigration controls with safeguarding vulnerable people. The Government have listened carefully to the concerns expressed on this issue in both this House and the other place.
The Motion agreed in the other place yesterday would put in place a statutory time limit on the detention of pregnant women for the purposes of removal. The effect would be that pregnant women could be detained only for up to 72 hours, for example, immediately prior to a managed return or to prevent illegal entry at the border where a return can be arranged quickly. This could be extended up to a maximum of seven days in total, but only with ministerial approval. That could be appropriate where, for example, a removal has failed due to a cancelled flight and where arrangements can be made for a new flight within the seven-day period. Finally, as a further demonstration of how seriously the Government take these matters, we plan to invite Stephen Shaw to carry out a further short review to assess progress in relation to key actions identified in his original review in the context of these new measures. I am sure that we are all in agreement that our focus should be on striking the right balance between protecting pregnant women and maintaining effective immigration control, and we believe that this amendment achieves that.
Motion D1 seeks to place a statutory requirement that detention powers should be used only in the most exceptional circumstances. Current policy is that pregnant women may be detained in very limited circumstances where there is a clear prospect of early removal or otherwise in very exceptional circumstances. Motions D1 and D2 would restrict that even further to only the most exceptional circumstances, which would almost certainly prevent detention to support removal, including immediately following arrival at the border and foreign criminals facing deportation. This would also require the Home Office to set out what the most exceptional circumstances are. This would be overly prescriptive and would not allow officers to respond to the individual circumstances presented by a varied group of people. Placing such a prescription in statute would provide no further safeguards. Courts can and do hold the Home Office to account based on published policy and guidelines, as well as the facts of individual cases.
The amendment also seeks to set the clock on the time limit running from the point of detention rather than the point at which the Secretary of State is satisfied that a woman is pregnant. The amendment is unworkable for a number of reasons. While there are circumstances where it is obvious that a woman is pregnant, there may be many instances where it is not immediately apparent, and the woman may not inform immigration officers of her condition. This is of particular concern where women are detained at borders without the facilities to conduct pregnancy tests, unlike at immigration removal centres. That could lead to instances where the Home Office becomes liable for unlawful detention because it was not aware that the woman in question was pregnant and the time limit has already expired. It could also prevent removal of pregnant women, as the Home Office would have to release a woman if she was found to be pregnant and had already been detained for 72 hours. This, in turn, could disrupt travel and removal plans.
Lord Lester of Herne Hill (LD)
My Lords, will the Minister clarify for my benefit a matter which concerns me? Does he agree that the writ of habeas corpus referred to by the noble Lord, Lord Ramsbotham, would not be of any use in the circumstances that we are discussing because the return to the writ would simply show that there was lawful authority for the detention? If that is right, does he agree that the right to liberty could be relied upon only by reference to the Human Rights Act and Article 5 of the European Convention on Human Rights, which would mean that any statutory provision that we approve would have to be read and given effect in accordance with the convention right to liberty?
Lord Keen of Elie
My Lords, on the last point, in respect of any answer to a writ of habeas corpus it would be possible to rely upon lawful detention, but the relevant lawful provision would have to be in compliance with the convention.
I turn to notice, a point that was made by the noble Lord, Lord Pannick, when he was referring to the matter of bail. He spoke of the default position. That is very important. It is a matter that was pointedly not addressed by the noble Lord, Lord Ramsbotham, who said repeatedly that it was only after six months that there would be any judicial oversight of detention in the context of immigration. That is not the case. Once a person is detained, it is open to them to make an application for bail. That application is made to a judicial tribunal and will therefore be the subject of judicial determination. The onus will rest very firmly, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, made clear, upon the Home Secretary to justify the detention or continued detention in those circumstances. So it is not a question of judicial oversight arising only after six months: it is available from the outset. What we are providing for is the exceptional case in which an application is not made or is refused and, after a delay of time, should be reviewed.
Lord Keen of Elie
How prescient I have been, it would appear.
In those circumstances, I respectfully suggest to this House that the Government have responded in a reasoned, reasonable and proportionate way to the issues that have been raised, and I invite the noble Lord to withdraw the amendment.
Lord Ramsbotham
My Lords, I am very grateful to the noble and learned Lord for his response and to all noble Lords who have taken part in this short debate.
Referring first to the Minister’s comments I would say yes, of course it is open to a person to ask for bail. What I sought to illustrate was that although that may be so in theory, in practice many of them simply do not know what to do. I accept that there have been many applications for bail. However, just out of interest, I would like to know at what period in their detention those people made the bail application and how long they had been there. In report after report of inspections of immigration detention centres, both the Chief Inspector of Prisons and the chief inspector of immigration have pointed out the absence of interpreters and legal advice and the fact that they were approached by many detainees asking how they could get help. We will not resolve this situation in this House tonight, but it is clearly unsatisfactory as seen through the eyes of the people on the ground, who are making the applications. I absolutely accept that the 1999 automatic bail provision was repealed because it was unworkable, but I am just interested that automatic bail should be substituted for it.
If I might refer to the comments of my noble and learned friend Lord Brown of Eaton-under-Heywood and the noble Lord, Lord Pannick, I never said that immigration detention should be limited to 28 days. What I said was that nobody should be submitted to administrative detention—that is, detention ordered by civil servants—without judicial oversight of that detention within the shortest time possible. A period of 28 days is entirely reasonable. It was the decision taken by the commission which the noble Baronesses, Lady Hamwee and Lady Lister, and I, were on, and which was agreed to by the other place in a debate last September. Bringing in judicial oversight of immigration detention as quickly as possible must be the aim of any system. Yes, it is said the expert advice is available, but it is not in fact, as I have tried to illustrate.
My contention is that a principle is at stake here. If we wish to remain a civilised country, we cannot go on with a system in which civil servants are allowed to put people in immigration detention for unspecified periods which, as we all know, have stretched to months and even years. Anything longer than a month, in circumstances which I inspected for a long time—I think I know a little bit about them—is not successful. Therefore, without more ado, I wish to test the opinion of the House.
Lord Keen of Elie
That this House do not insist on its Amendment 85 and do agree with the Commons in their Amendments 85A and 85B in lieu.
Commons Amendments in lieu
“Guidance on detention of vulnerable persons
(1) The Secretary of State must issue guidance specifying matters to be taken into account by a person to whom the guidance is addressed in determining—
(a) whether a person (“P”) would be particularly vulnerable to harm if P were to be detained or to remain in detention, and
(b) if P is identified as being particularly vulnerable to harm in those circumstances, whether P should be detained or remain in detention.
(2) In subsection (1) “detained” means detained under—
(a) the Immigration Act 1971,
(b) section 62 of the Nationality, Immigration and Asylum Act 2002, or
(c) section 36 of the UK Borders Act 2007, and “detention” is to be construed accordingly.
(3) A person to whom guidance under this section is addressed must take the guidance into account.
(4) Before issuing guidance under this section the Secretary of State must lay a draft of the guidance before Parliament.
(5) Guidance under this section comes into force in accordance with regulations made by the Secretary of State.
(6) The Secretary of State may from time to time review guidance under this section and may revise and re-issue it.
(7) References in this section to guidance under this section include revised guidance.”
Earl Howe
My Lords, let me begin by saying to the House that I entirely recognise the need for the Government to do more to respond to the ongoing migration crisis and alleviate the suffering it is causing to some of the most vulnerable people. There is no argument about that. This is a highly emotive issue and we have a moral duty to help those in need.
However, let me be equally clear: the Government are fulfilling that duty and I shall demonstrate how. By opposing Lords Amendment 87, the Government are not denying their obligation to help those in need—quite the contrary. Our commitment to help those in need stands comparison with that of any other country. We are simply saying that physically transporting unaccompanied children from one part of the EU to another is not the best or most effective way to fulfil our duty. The Government have always been clear that to make the biggest difference and to help the greatest number of those in need, it is best to support the majority of refugees to stay safely in their home region, and for families to be kept together. To the extent that children have been separated from their families, we believe that our efforts should be directed towards reuniting them with their families rather than simply bringing them to the UK and placing them in the care of social services.
That is exactly why we recently doubled our aid for the Syrian crisis to £2.3 billion. This support has reached hundreds of thousands of families in Syria, Jordan, Lebanon, Turkey, Iraq and Egypt. In addition, we co-hosted the recent London-Syria conference, securing pledges of more than $11 billion, the largest amount ever raised in one day for a humanitarian crisis. The Government wholeheartedly share the intention of the noble Lord, Lord Dubs, to protect and support vulnerable unaccompanied refugee children. Our efforts to date have been designed to do just that, but our starting principle is that we must put the best interests of children first and avoid any policy that places children at additional risk or encourages them to place their lives in the hands of the people traffickers and criminal gangs.
At the heart of this approach are the child’s best interests. That is why, on 21 April, we announced a new resettlement scheme for children at risk. We worked closely with the UNHCR to design a scheme that will protect the most vulnerable children. We have committed to resettling several hundred individuals in the first year, with a view to resettling up to 3,000 individuals over the lifetime of this Parliament, the majority of whom will be children, where the UNHCR deems it to be in their best interests. Family reunification will be at the heart of this. We want to make the Dublin agreement work. Children who are identified as being at risk will be resettled with their family members or carers where appropriate.
This unique initiative will be the largest resettlement effort to focus on at-risk children from the MENA region. It will be in addition to the 20,000 Syrian refugees we have already promised to resettle here. This new resettlement scheme will focus solely on the “children at risk” criteria and will be open to all vulnerable children deemed in need of resettlement by the UNHCR within the MENA region. It will not be limited to any particular nationality or group, allowing us to assist the most vulnerable children, whoever they are.
Our new scheme will complement existing resettlement programmes, which are already helping children at risk in conflict zones. Some 1,085 vulnerable Syrians were resettled to the UK before the end of 2015 as part of our commitment to resettle 20,000 Syrian refugees here over the course of this Parliament. Most of those Syrians—51%—were children. We can expect that several thousand of those who will come here over the next few years under this programme will also be children. If anyone thinks we are neglecting the needs of vulnerable children, I hope that the facts and commitments that I have outlined will reassure them.
The amendment is clearly well meant—how could it not be? It shares our objective of identifying and protecting vulnerable children, but its focus is wrong. Let me address the situation of children in Europe, who are already able to access support from European countries that have similar legal obligations to our own. We need a comprehensive plan that stretches outside our own shores to tackle the issues. That is exactly what we are delivering.
In this context, the thoughts of many noble Lords will understandably be resting on the situation in Italy and Greece. We need to shut down the illegal migration routes to Europe, which are exploited by human traffickers who encourage people to risk their lives to make perilous journeys. We are committed to providing safe and legal routes for the most vulnerable refugees to resettle in the UK. That is why we have seconded substantial additional resource into the European Asylum Support Office in Italy and Greece to implement and streamline the process under the Dublin regulations, including to quickly identify children who qualify for family reunion.
Lord Rosser
I will be brief, since the arguments for this amendment have already been powerfully made. I also endorse the comments made by my noble friend Lord Dubs and other noble Lords about the measures that the Government have already taken. But while on the one hand the Government say, rightly, that we need to play a role at the heart of Europe, on the other they decline to assist over taking in unaccompanied refugee children in Europe who have fled from war, conflict and persecution and are already alone and at risk, simply because they are already in Europe.
Europol estimates that 10,000 unaccompanied refugee children went missing in Europe last year and we know that children are being exploited. The Government maintain that taking in any unaccompanied refugee children from among those already in Europe would increase the so-called pull factor—an argument for which there is no firm, hard evidence one way or the other. But at the heart of the unproven pull factor claim is a policy stance that we should leave all unaccompanied refugee children already in Europe to their fate. That is an unacceptable stance and if my noble friend decides to put his amendment to a vote, we will support him in the Division Lobby.
Earl Howe
My Lords, I am very sorry that the noble Lord, Lord Dubs, appeared to be so dismissive of the many measures that I set out in my opening remarks. I emphasise that those measures include both children in conflict zones and those who have reached the shores of Europe. We want to ensure that those children already in Europe are able to access the help and protection that they need; we simply disagree on the method outlined in the amendment in lieu.
I will emphasise something that I should have highlighted earlier: our position is firmly based on the evidence and advice of the expert organisation in this field, namely the UNHCR. Our approach focuses on family reunification and the wider risk categories of children at risk, rather than just unaccompanied children. The UNHCR has commended this approach, and I ask noble Lords not to dismiss that point. As the world expert in this field, it has cautioned against creating additional routes and benefits that target unaccompanied children, because of the risk of encouraging families to send children ahead alone—in other words, causing children to become unaccompanied, with all the risks that go with it. That would be a terrible thing to do or to encourage. We surely must do nothing that puts more children’s lives at risk. Our new children at risk scheme, which I referred to earlier, is designed specifically to avoid creating perverse incentives like that.
We agree that we have a duty to help vulnerable children across the globe, whether in conflict regions, in European member states or in the UK, to access the help and protection they need. But it is our belief that simply physically transporting some unaccompanied children from one part of the EU to another is not the best or most effective way to fulfil our duty. That is why we are providing the significant support I have already outlined to build capacity in European asylum systems and ensure children are able to access that support.
We also believe it is best to support family reunification —bringing families together—rather than creating perverse incentives for children to be separated from their family, which I fear is what the noble Lord’s amendment would do. We already have several routes for families to be reunited safely. Our refugee family reunion policy allows immediate family members of a person in the UK with refugee leave or humanitarian protection—that is to say, a spouse or partner and children under the age of 18, who formed part of the family unit before the sponsor fled their country of origin—to reunite with them in the UK.
That is the answer to my Commons colleague Stephen Phillips: under that policy, we have reunited many refugees with their immediate family and continue to do so. We have granted more than 21,000 family reunion visas over the past five years. Even where an application fails under the Immigration Rules, our policy requires us to consider exceptional or compassionate reasons for granting a visa outside the rules.
Lord Kerr of Kinlochard (CB)
Does the noble Earl not agree that the noble Baroness, Lady Hamwee, is right to say that it is not a question of either/or? Of course all these good things that are being done should be done, but the children we are talking about are there, scattered across Europe and at risk.
Earl Howe
I do not agree with the noble Baroness, because of the risks that I have already outlined. If we were to go down the path that she advocates, we would put children at additional risk. We cannot possibly do that. We are currently reviewing our family reunion guidance to make clear the sorts of cases that might benefit from a visa outside the rules and will publish that in May.
We have all seen squalid conditions in Calais. That is precisely why we are working closely with the French authorities to see to it that vulnerable children are protected. We are working with the relevant NGOs to ensure that the message that children receive is that it is possible to be transferred to the UK under the Dublin arrangement both from Calais and from social care. I would just say that that can happen in a matter of weeks; it is not a slow process.
Effective communication is of course key. We agree that more can be done to ensure that children are able to access the support they need. The UNHCR already has access to the camps and accommodation centres to inform migrants on the different options of applying for asylum in France and family reunification for those who may have family members in the European Union. That is in addition to the joint UK-France communication campaign in the camps, which informs migrants of their rights to claim asylum in France and gives them information on family reunification.
However, the best way to communicate that is to demonstrate that the system works, and that is what we are already doing. How? One example is our recent secondment of a senior asylum expert to the French Interior Ministry to improve the process for family cases. That has already resulted in a significant increase in the number of children being reunited with family in the UK. In the past six weeks, 50 cases have been formally referred to the UK under Dublin family unity provisions, of which 30 have been accepted for transfer to the UK from France, the majority of whom have already arrived in the UK. Once an asylum claim has been lodged in another member state, we have shown that transfers can take place within weeks.
I think that these results are encouraging, and we are determined to replicate the work of the senior asylum expert in Calais in both Greece and Italy. We are committed to ensuring that the Dublin process works, so that will be in addition to the secondments that we have already agreed and have taken place in both Greece and Italy. We expect to second a further individual to both the Greek and the Italian Dublin units in May.
I have spoken at some length to demonstrate that the Government are committed to making a full contribution to the global refugee crisis—in particular, helping children at risk. The significant aid package within Europe and our practical assistance to front-line member states to ensure that vulnerable children are properly protected where they are in Europe is the correct approach. It is about the children’s best interests. I strongly believe that our drive to resettle children at risk and their families directly from the region will have most impact to safeguard vulnerable children. That is why I am asking the House not to agree to proposed Amendment 87B in lieu.
Lord Dubs
My Lords, of course I welcome what the Government are doing in the region. It is good, and no one has criticised it—except possibly for the small numbers, but that is for another day. However, when all is said and done, the Government will still leave thousands of children in Europe: children who are vulnerable, children who are in an unhappy situation, children who are in danger possibly even to their lives and certainly to their well-being. That will not alter, or only at the margin, if the Government have their way. What the original amendment said, and what I hope the spirit of the new one says, is that we will take our share of the responsibility for unaccompanied child refugees—no more, no less. We will play our part along with other countries. That is the way we should move forward. I beg to test the opinion of the House.