House of Lords
Enterprise Investment Schemes
Lord Leigh of Hurley
To ask Her Majesty’s Government what assessment they have made of the opportunities for reforming the eligibility criteria for UK-based companies to access investments through the (1) Enterprise Investment Scheme, and (2) Seed Enterprise Investment Scheme, following the United Kingdom’s departure from the European Union.
Lord Leigh of Hurley (Con)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I draw your Lordships’ attention to my register of interests, which includes investments in EIS companies.
Baroness Penn (Con)
My Lords, the Enterprise Investment Scheme and Seed Enterprise Investment Scheme are world-leading in their generosity, with more than £2 billion of funds raised across the schemes in 2019-20. They provide a range of reliefs for investment in small and growing companies with a permanent establishment in the UK. The Government keep the schemes under review to ensure that they continue to meet their policy objectives in a fair and effective way.
Lord Leigh of Hurley (Con)
I welcome my noble friend back to the House. The EU state aid rules, in particular the risk finance guidelines, are the reason why these important incentives for small and growing businesses are restricted. For example, they cannot be more than seven years old, there is a sunset clause and there is a cap on SEIS investments. Many restrictions were imposed on business by the EU, so now is the time for us to unwind them—particularly those that will facilitate investment into private companies by private individuals. Will my noble friend agree to facilitate a meeting between me and others interested in this area with Treasury officials to discuss this matter further?
Baroness Penn (Con)
My Lords, the schemes referred to by my noble friend are targeted at new and younger companies where asymmetry of information can make it difficult to attract the investment needed. However, we recognise that there is a scale-up gap in the UK, which is why we have other schemes, such as the British Patient Capital scheme, to support UK companies with high growth potential. I will happily take my noble friend’s request back to the Treasury, which is always looking at what more it can do to support British business.
Baroness Kramer (LD)
My Lords, many companies have been putting pressure on HMRC as part of the revision of regulations to remove the requirement that investors should be identified in applications for advanced assurance that they meet the parameters of tax relief schemes and will be included. Indeed, removing disclosure seems to be an important theme in the simplification that is being asked for. As we look at kleptocracy and much of the abuse of the London laundromat, surely now is not the time for us to be focusing on removing disclosure, particularly the disclosure of who the investors are in companies that will receive especially favourable tax treatment.
Baroness Penn (Con)
My Lords, the Government are committed to ensuring that any state support they deliver is done in a fair and appropriate way. In saying that, we keep all our schemes under review to ensure that they are doing that. We will always do that in a fair way.
Lord Flight (Con)
My Lords, I declare an interest as chairman of the EIS Association. I entirely support the issue raised by my noble friend Lord Leigh. There are two particular restrictions on eligibility that serve no purpose but are there as a result of the EU requiring them. One is the sunset clause, which effectively means that, if it is not changed, EIS will come to an end in 2025. The second is the seven-year rule, which serves no purpose other than adding to legal costs. I echo my noble friend’s request for a meeting to discuss these matters. I just want to make the point that EIS has now raised nearly £30 billion for small companies, and has been thoroughly successful and much better than the systems in other countries.
Baroness Penn (Con)
My noble friend is correct about the success of the EIS scheme in terms of the amount of money raised. It is world-leading in that fact and has managed to do that under its current design. However, as I have said, I will take my noble friend’s request for a meeting back; we are always looking at what more we can do.
Lord Sikka (Lab)
My Lords, the Office of Tax Simplification has stated that the Government give more than 1,100 tax reliefs, most of which have not been quantified by HMRC. The National Audit Office cannot verify them. We have absolutely no idea whether they achieve the assumed economic objectives. When will the Government look into that?
Baroness Penn (Con)
My Lords, the Government are confident that the Enterprise Investment Scheme and Seed Enterprise Investment Scheme we are talking about today are effective schemes that have proven to give much-needed support to many British businesses over many years.
Lord Londesborough (CB)
My Lords, I declare my interest as an EIS investor in start-up companies. Do the Government plan to conduct an impact assessment in relation to EIS and SEIS-invested companies? I ask this question because these companies show a very high failure rate, and we should be clear about the cost-benefit in the long term of granting such tax subsidies.
Baroness Penn (Con)
The Government are always keen to ensure value for money in those tax benefits or subsidies that they give. As my noble friend noted earlier, there is a sunset on these schemes, and I am sure that, as part of any process around that, we want to ensure that their impact is appropriate and value for money for the taxpayer.
Lord Tunnicliffe (Lab)
My Lords, the Government’s Levelling Up White Paper is severely lacking. Both the EIS and the SEIS schemes could be said to highlight entrenched economic disparities across the country. Half of investments go to firm with registered addresses in London. That climbs to two-thirds when including the south-east. Do the Government plan to roll out these schemes into the levelling-up agenda, or will the two approaches continue to be at odds?
Baroness Penn (Con)
My Lords, I am not sure that I agree with the premise of the noble Lord’s question. However, he is right to say that one way to judge whether the levelling-up agenda is having the effect that we would want it to have is having greater take-up of these schemes for companies outside, as well as inside, London.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, this is the latest example of one of the disasters of Brexit. Yesterday, we heard at the European Affairs Committee about Horizon Europe and the problems there. We are about to see the resignation of the First Minister and Deputy First Minister in Northern Ireland. There is disaster after disaster, yet we were promised £350 million a week for the National Health Service. As a Treasury Minister, could she tell us when that is going to come?
Baroness Penn (Con)
My Lords, we have put more than that sum of money into the health service, although I am not sure what that has to do with the Enterprise Investment Scheme. However, I can tell the noble Lord that those have continued to have success since our departure from the EU: £2.7 billion of funds were raised across three schemes last year and investments in VCTs are up 437% this year.
Bird Control Licences
(2 years, 2 months ago)
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Baroness Hayman of Ullock
To ask Her Majesty’s Government, further to the GL42 general licence to kill or take certain species of wild birds to prevent serious damage, updated on 1 January, what assessment they have made of the numbers of wild birds that will be killed annually to protect game bird interests.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)
My Lords, I declare my farming interests as set out in the register. An assessment such as the noble Baroness describes is not required, as control of wild birds under GL42 has already been assessed to carry a low risk to the conservation status of those wild birds.
Baroness Hayman of Ullock (Lab)
My Lords, the Minister may have seen coverage over the weekend of Nottingham magistrates’ court sentencing a gamekeeper for bludgeoning two buzzards to death inside a cage trap. The United Nations Office on Drugs and Crime has recently highlighted the systemic problem of raptor persecution in the UK in a report that included more than 70 recommendations to improve action on wildlife crime. How do the Government intend to take forward the recommendations of this report, especially its recommendations on licensing gamebird shoots, with the buzzard case as a very recent example on what happens when there is no real accountability in the shooting industry?
Lord Benyon (Con)
There are very strict sanctions against wildlife criminals in this country: unlimited fines and up to six-month custodial sentences can be awarded where people commit these hideous acts. They represent a very small proportion of a sector that does enormous good for conservation and wider natural wildlife benefits in this country.
Lord Robathan (Con)
My Lords, three years ago I spent some days walking on the Pennine Way, west of Leeds. I was so thrilled to see clouds of lapwings and a great number of curlews on large parts of it. Suddenly one would get almost to a desert, where all one saw were crows. The difference, of course, was that where the lapwings and curlews were, there were keepers, whereas where the crows were, there were not. I would be delighted to take the noble Baroness, Lady Hayman, with me to walk the same area if she would like. Does my noble friend think that an area with just crows is better for biodiversity than a place where ground-nesting birds, such as lapwings and curlews, flourish?
Lord Benyon (Con)
I am enjoying the image of the noble Baroness and my noble friend enjoying a walk in the countryside. There are three legs to the stool of nature conservation: providing habitat, providing good feed sources and legal predator control. When those three are put in place, extraordinary things happen. It helps us hit our 2030 target of no net loss of biodiversity.
Lord Bethell (Con)
My Lords, shoot owners contribute £250 million and volunteers contribute 3.9 million volunteering days every year. What assessment has the department made of the value of this contribution to our country’s environment?
Lord Benyon (Con)
There are various data sources about the value of shooting to the wider rural economy. There are, of course, other measures that have shown the wider conservation benefits of properly managed countryside. In order for lapwing numbers to thrive, you need to be fledging 0.7 chicks per pair. It is very interesting to see where, in the country, that is being achieved and where it is not.
Lord Lancaster of Kimbolton (Con)
My Lords, do these fines also apply to the sovereign base areas in Cyprus? In 2016, more than 900,000 songbirds were illegally poached in these sovereign base areas. Thanks to the Ministry of Defence, that poaching was reduced down to about 250,000 in 2019. Can I simply ask my noble friend whether he will ensure that, notwithstanding other commitments of the Ministry of Defence, they will continue this counter-poaching operation in the sovereign base areas?
Lord Benyon (Con)
We are all grateful to my noble friend for kicking this off when he was Armed Forces Minister. What is happening in the sovereign base areas is excellent, but it needs to be copied in other places such as Malta. For those of us who are passionate about seeing the turtle-dove recover in this country, we are going to have to take action. International action will have to be taken to prevent this amazing bird being shot, and there are many other species of songbird which, unfortunately, are killed in this way.
Baroness Bennett of Manor Castle (GP)
My Lords, the weight of captive-bred released non-native gamebirds in the UK is the same weight as that all of the native birds in the UK. These eat reptiles in particular. I was speaking to a herpetologist who was very concerned about the impact on reptile populations. But a fifth of the pheasants released are estimated to be eaten by foxes. Those foxes, with their artificially inflated population, also eat many native birds. Would the Minister acknowledge that we would possibly see many more lapwings and other ground-nesting birds if those foxes were not being fed by those gamebirds?
Lord Benyon (Con)
There is an enormous amount of data on the diet of predators such as foxes, and I do not think it is as simple as the noble Baroness makes out. In the vast majority of areas, there is a net gain for biodiversity by the moderate actions of shooting estates. There are, of course, individual cases where they may be a net negative, but in the vast majority of the country, game covers and hedgerows and management of woodland create extraordinary habitats. That is an investment which does not cost the taxpayer anything but is of huge benefit to our natural capital.
The Earl of Kinnoull (CB)
My Lords, I refer to my interests in the register. I am an organic sheep farmer, among other things, and we are worried all the time about crows pecking out the eyes of young lambs. We are also worried about pigeon families setting up in our sheds and causing disease in our organic ewes. Can the Minister confirm how important general licence 42 is to operations such as ours, to allow us to control the birds and give our sheep the opportunity for life?
Lord Benyon (Con)
The species of birds on general licence are ones for which it is estimated that there would be no impact to their conservation status if they were controlled. Certain species are controversially not in the general licence, such as rook and jackdaw. This is constantly being looked at by Natural England. It is very important to understand that they are controlled not just for game bird management but very often for the protection of crops and livestock. We must be mindful of that and make sure that farming businesses around the country have the protection that they need.
Lord Harlech (Con)
My Lords, independent scientific research in numerous case studies by the Game & Wildlife Conservation Trust shows that proper game bird management has a net benefit to songbirds and biodiversity in general. How will the Government be compensating farmers and land managers for increasing those songbird numbers?
Lord Benyon (Con)
Under our environmental land management schemes farmers will be rewarded for doing what we call public goods, and that includes creating habitat for wildlife and protecting species which will otherwise, on our watch, become extinct. I could go on about the curlew, as I do every day in Defra, a species for which you can map the point at which it will become extinct in a decade or two’s time. We do not save it then, we save it now, and so we must deploy every measure that we can, whether it is in government grants or activities that we allow land managers to perform to protect them.
Lord Cormack (Con)
We should be grateful to the noble Baroness for initiating a brief but enlightening debate. I thank my noble friend for his answers, but can he add another factor? Game is about the most nutritious food that you possibly can eat. If the noble Baroness, Lady Bennett of Manor Castle, had a few more pheasants, she might find life a bit more agreeable.
Lord Benyon (Con)
My Lords, it is not my position at the Dispatch Box to prescribe noble Lords’ diets, but I entirely agree with my noble friend about the health-giving benefits of natural food.
Lord Newby (LD)
My Lords, following on from the noble Lord, Lord Cormack, and as someone who really enjoys pheasant, in many cases game birds are shot and not used for food at all but put into landfill. Have the Government any plans to reduce that practice?
Lord Benyon (Con)
There may be cases where that happens, but I imagine that it is very rare. Recently, the British Game Alliance was created, which has sought to develop new markets for this very healthy food. I do not have any evidence of what the noble Lord talks about but, if he can produce it, I will be happy to discuss it with officials and with Natural England.
Viscount Trenchard (Con)
My Lords, predator control is necessary for many reasons, including maintaining populations of rare ground-nesting birds. Does the Minister agree that, besides this, the revocation of the general licence would have a serious negative effect on the rural economy and the levelling-up agenda, placing at risk much of the £2 billion and 74,000 jobs that game shooting contributes to the countryside?
Lord Benyon (Con)
The question suggests that there has been a change in government policy. There has been no change in the definition of species that can be controlled under licence since the Wildlife and Countryside Act 1981. My noble friend is right that, whatever people feel about the rights and wrongs of shooting predator species, the value that it brings to some of the most remote parts of these islands and to maintaining the rural economy is huge.
School Absences
(2 years, 2 months ago)
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Lord Blunkett
To ask Her Majesty’s Government how many children in (1) primary, and (2) secondary, schools in England were absent the weeks commencing (a) 10 January, (b) 17 January, and (c) 24 January.
Lord Blunkett (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. I declare an interest, in that my 10 year-old grandson, Oscar, currently has Covid.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, I am very sorry to hear about the noble Lord’s grandson. I hope that he recovers speedily.
Absence data is collected by the department on a termly basis, but we publish fortnightly data on on-site attendance in state-funded schools. The latest data, from 17 to 20 January, shows that average secondary attendance was 86.7%, unchanged from the previous week, while primary attendance was 89.4%, down slightly from 91.8%. Absence figures specifically for Covid-related reasons are published fortnightly, and were 5.7% and 3.4% in primary and secondary in the week of 17 January, and 3.7% and 3.5% in primary and secondary in the week of 10 January.
Lord Blunkett (Lab)
I am very grateful for the kind words of the Minister.
The latest ONS figures for last week show over 600,000 primary school children not in the classroom. This would be worrying at any time, but obviously with the statistics relating to the national tutoring programme at a miserable 15% of their target, the remedial action that is needed is clearly not working. Can the Minister go back to the department and work out what has happened with the contract which was relet last September?
Baroness Barran (Con)
The noble Lord is right to raise the issue of the 600,000 primary-age children not in school, although I remind the House that there is a clear expectation that all schools offer high-quality remote learning. We are working very actively on the national tutoring programme contract and are confident that we will reach our objectives.
Lord Storey (LD)
My Lords, as well as the absentee rates in schools, as the Minister knows we have hundreds of thousands of children not in school at all. They are missing from the system. Some may be home tutored, but we do not know that. What plans have the Government got for those home tutors to register their children, so that we know they are safe and know where they are?
Baroness Barran (Con)
I am pleased to update the House that, this morning, we announced our response to the Children Not in School consultation and have confirmed that we will be setting up a register of home-schooled children.
Baroness Greengross (CB)
During the pandemic schools were provided with laptops to support students during the national lockdown and any future school closures. These laptops were delivered without software, anticipating that schools would need to install the programmes applicable to their own school context. However, in some cases, these devices still have not been used, as this added to the already stretched capacities of existing IT staff, who did not have the additional hours needed to install software or set up the laptops sufficiently. Do the Government have any information about how widespread this problem was and how many laptops remain unused?
Baroness Barran (Con)
The laptops that were distributed in the department’s Get Help with Technology programme are owned by the schools, trusts, local authorities and further education institutions concerned. It is those institutions which are responsible for making sure that they are safe and secure. We are offering support to those organisations to take urgent action to reset devices and to apply their own safeguarding measures, and we are making grant funding available to them to contribute to the technical support costs to which the noble Baroness refers.
Lord Haselhurst (Con)
My Lords, I declare an interest as the grandfather of two primary school children who have caught Covid and who are now at home. Is my noble friend confident that the catch-up plan will be robust enough to deal with the slightly uncertain total number of children who are missing vital education at this stage? That is the assurance that many parents who are now returning to work would be very pleased to have.
Baroness Barran (Con)
My noble friend is right to highlight this. I will try to set out for the House that our approach is genuinely comprehensive. Last week, we announced a consultation on new attendance measures and we are consulting on behaviour and exclusion, which, less at primary but more at secondary, is a material issue for attendance. We made direct investments through the £1.3 billion of recovery funding and the £1.5 billion tutoring programme. Schools have the flexibility to direct that to the most disadvantaged children, so that they can catch up fastest.
Baroness Blackstone (Ind Lab)
My Lords, following the answer the Minister has just given, I wonder if she is aware that, unsurprisingly, a survey by Teach First found that teachers in the most disadvantaged schools strongly believe that attainment would be greatly improved if attendance could be improved. What specific measures are being brought in to improve the attendance of children, particularly in primary but also in secondary schools? What kind of monitoring is being done to find out which of these measures are most effective and which do not work?
Baroness Barran (Con)
I am grateful to the noble Baroness for giving me the opportunity to set this out in more detail. Attendance is an absolute priority for this Government, both because children obviously cannot learn if they are not in school and because of the well-recognised impact on their mental and physical health. We have already announced a team of attendance advisers, who will support schools, and we are open to piloting new approaches to supporting attendance. The Secretary of State has established a national attendance action alliance with key actors from across the sector and we will focus in the consultation on getting consistency in both the attendance policy of a school and the use of different sanctions for non-attendance, which very much vary across the country.
Lord Brownlow of Shurlock Row (Con)
My Lords, I declare my interest as a donor to various charities in the children’s sector. Given what the Minister has just said, will there be any special focus in those measures and the catch-up programme on children with SEND?
Baroness Barran (Con)
My noble friend is right to focus on children with special educational needs. School is absolutely the best place for them to be, too. Throughout the pandemic, we have consistently prioritised children with special educational needs—for example, through the education recovery funding and by providing additional uplifts for those who attend specialist settings, including specialist units in mainstream schools. I am sure that, for the most part anyway, the House will share in the good news that at-risk children aged five to 11 are now eligible for the vaccine and its rollout has started.
Lord Watson of Invergowrie (Lab)
My Lords, the ongoing disruption caused by absences of pupils and teachers is evidence that the Government have failed to get a grip on the measures required to keep children learning, whether that is from the supply of testing kits or classroom ventilation. Schools that ended the requirement for pupils to wear face coverings last month, in line with government guidance, are now reinstating it because of the upsurge in Covid cases. Part of the effect of the January disruption was that some pupils were unable to sit their mock exams. What plans are in place to ensure that those pupils are not disadvantaged as a result when it comes to the real thing?
Baroness Barran (Con)
I think the noble Lord is being a little harsh: 99.9% of schools have stayed open. I know that he, with me, will recognise and deeply thank head teachers and all the teaching and associated support workforce for making that happen and for the flexibility they have shown. On Monday, we will announce the advance information about exams. The evidence from the VTQ January series of exams is that it has gone extremely well.
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
My Lords, the noble Baroness, Lady Brinton, wishes to speak virtually and it is a convenient point for me to call her.
Baroness Brinton (LD) [V]
My Lords, DfE guidance to schools, updated on 20 January, told heads that
“A director of public health might advise you that face coverings should temporarily be worn in communal areas or classrooms”.
What would the Minister say to the head who is asking all pupils to wear masks until further notice, as one of their pupils has leukaemia and is severely immuno- compromised? Why have the Government, whether the Department for Education or the department of health, not given advice to these pupils, their families and their schools?
Baroness Barran (Con)
The noble Baroness raises a very specific point. The department’s advice would be to talk to the director of public health and our teams, who are available and have been offering support to schools around the country, throughout the pandemic.
Benefit Sanctions on Jobseekers
(2 years, 2 months ago)
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Baroness Lister of Burtersett
To ask Her Majesty’s Government what assessment they have made of the impact of their policy to impose benefit sanctions after four weeks rather than three months if an unemployed jobseeker fails to seek or take work in any field; and whether they will publish their evaluation of the effectiveness of such sanctions.
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office and Department for Work and Pensions (Baroness Stedman-Scott) (Con)
No assessment has been made. We are not changing the reasons why we may apply a sanction, including refusing to take a job that has been offered, nor the rates applied. As part of the Way to Work campaign, we are changing the period in which a claimant can limit their job search to their usual occupation to promote wider employment opportunities, supporting people into work more quickly. As the noble Baroness knows, we no longer plan to publish a report.
Baroness Lister of Burtersett (Lab)
My Lords, given the general view that tougher sanctions will have only a limited impact on labour supply in today’s market, the inability of the Government’s evaluation to assess their deterrent effect, the independent evidence that they typically push people out of the formal labour market or into poor jobs at the cost of longer-term better-quality jobs, and that they are associated with serious hardship and ill health, what justification is there for introducing a significantly harsher policy now without even public consultation?
Baroness Stedman-Scott (Con)
I make it absolutely clear that we are not having tougher sanctions. We are reducing the period for which people can look for usual work, as I said. I went to Hastings jobcentre last week, and it was busy helping people to look for work. There were employers in there doing interviews, not rubbing their hands saying, “We can sanction more people”. The whole Jobcentre Plus network is enthralled by this new opportunity. We will be helping people to get a job quicker, but we will not stop helping them to get a job in the field they want to be in.
Lord Lamont of Lerwick (Con)
My Lords, I appreciate what the Minister said—the Government are altering not the sanctions, merely the period of time—but I confess to being surprised when I heard this. A month seems a very short period in which to expect somebody to find work in their usual area. Could it not be extended a bit?
Baroness Stedman-Scott (Con)
The decision about the four-week period has been made. I can go back and say that noble Lords would like it to be longer, but that will probably not come as a surprise to the Secretary of State. The other factor is that we are inundated with employers wanting to recruit people to their workforce. In my experience, you are much more able to get the next job if you are in a job, than if you are sitting looking for jobs that do not exist at the moment.
Baroness Ritchie of Downpatrick (Lab)
My Lords, as my noble friend Lady Lister said, there is no evidence that sanctions are effective in encouraging people into sustained long-term work. As universal credit statistics show, new claimants flow quickly off. In view of this, will the Minister ensure that the Government adopt the safety valve of preparing people with independent advice before bringing in these sanctions? What action will the Government take to publicise and inform claimants of the easement regime, which can protect people from such sanctions, notwithstanding what the Minister has said already? A month is a sanction.
Baroness Stedman-Scott (Con)
Sanctions apply only if claimants do not comply with their agreed requirements for no good reason. That is not changing at all. If claimants refuse to apply for roles, attend interviews or take up paid work without good reason, they can be referred for a sanction. If a claimant disagrees with the sanction decision, they can ask for it to be reconsidered. We have a well-established system of hardship payments available as a safeguard if a claimant demonstrates that they cannot meet their immediate and most essential needs due to a sanction.
Baroness Fookes (Con)
My Lords, if a sanction is applied, what arrangements are there for someone who feels unfairly treated to ask for redress? In particular, is it simple or will they have to run through a whole series of bureaucratic hoops?
Baroness Stedman-Scott (Con)
Building on the answer that I just gave the noble Baroness on the opposite Benches, if a claimant disagrees with their sanction, they can ask for the decision to be reconsidered and can subsequently appeal against it. There are hardship payments. To emphasise the point, I rang a district manager this morning and said, “Tell me about this Way to Work”. She said, “We love it. We’re very excited about it, we’ve never had so many jobs, and the last thing in the world we want to do is sanction somebody in this environment”—and I believe her.
Baroness Meacher (CB)
My Lords, the Minister referred to the inundation of employers, and I can imagine that, but has any work been done to assess the willingness of employers in different sectors to take on people with no experience in that sector? It is very important that workers on the front line understand.
Baroness Stedman-Scott (Con)
The noble Baroness makes a very good point. The work coaches are well trained and their relationship with employers is gathering momentum. In fact, I heard today that employers are more prepared to take people with no experience in their industry and in fact are also considering taking people they would not normally have taken, such as ex-offenders and those with autism. So, yes, I agree.
Baroness Sherlock (Lab)
My Lords, let us take a step back. What the Government are doing is saying to somebody who has lost their job, “If you don’t get back into your own field within four weeks, you should go and find any job and get in there fast”. The Government put out a massive press release last week saying, “We’re going to get half a million people into over a million vacancies”, and the centrepiece was the idea that you could be sanctioned within four weeks—ironically, before you even get your first universal credit payment, which takes six weeks.
Given that only 3% of universal credit claimants are even in this category—and given that all the evidence shows that most of them get back into work really quickly anyway—rather than blaming people who have lost their jobs, why not focus on long-term unemployment, people leaving the labour market and people retiring early? Let us concentrate on the real problems. Would that not be a better idea?
Baroness Stedman-Scott (Con)
I am afraid that on this occasion I cannot quite agree with everything that the noble Baroness said, or indeed the sentiment in which it was said. That will come as no surprise to people. The fact is that we have been working with long-term unemployed people to try to overcome their barriers and put solutions in place. I say again that when someone does not have a job and they cannot get one within the field that they are used to and skilled in, their skills can be applied to other sectors, so they can take jobs and be in work and then, when a job comes up in the field they want, we can help them apply for it. So I do not hold with what the noble Baroness says.
Baroness Pinnock (LD)
Putting pressure on people to take jobs with the threat of benefit sanctions has a known link with deteriorating mental health. Indeed, some medics have pointed to a link between benefit sanctions and suicide. In the past, the Government have refused to assess that impact and publish the results. Will the Minister now look at that evidence and make sure, for transparency’s sake, that we all see it?
Baroness Stedman-Scott (Con)
Let me go to the point about the publication of the evaluation and so on. We committed to using UC administrative data to look at the impact that a sanction has on an individual. However, durations could not be compared as we did not have robust legacy data and could not develop counterfactual information without legislative changes to allow for the testing of different approaches. Therefore, we were not able to do it and come up with a meaningful comparison.
I understand exactly the point that the noble Baroness made about mental health. Our work coaches are trained in mental health and to watch out for people. As I say, the last thing they are going to do is threaten people. It is only when there is no good reason for turning down an opportunity that a sanction will be imposed. Sanctions are running at 0.78%, which is lower than pre pandemic.
Baroness Seccombe (Con)
My Lords, some people seem to find great difficulty in securing a job, so what has been done by the Government to help these people to secure employment?
Baroness Stedman-Scott (Con)
I am pleased to say that the Government have doubled the number of work coaches. They are spending more time with people, finding out in more depth the issues that are stopping them working and putting interventions in place to help them overcome their barriers. We have our plan for jobs programme. More and more employers are coming into jobcentres to interview people, understanding the barriers that people face. When all is said and done, we are doing a lot for people.
Nationality and Borders Bill
Thursday 3rd February 2022
(2 years, 2 months ago)
Lords ChamberRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-III(a) Amendments for Committee (Supplementary to the Third Marshalled List) - (3 Feb 2022)
“(4A) In section 16 of the Nationality, Immigration and Asylum Act 2002 (Establishment of centres), after subsection 2 insert—“(2A) Accommodation provided under this section must—(a) have a capacity of no more than 100 residents, and(b) provide any non-related residents at the centre with an individual room in which to sleep, such that residents are not required to share sleeping quarters with people to whom they are not related.”” Member’s explanatory statement
This amendment would amend the 2002 Act to ensure that accommodation centres are not too large and that residents are not required to share sleeping quarters with anyone they are not related to.
Baroness Lister of Burtersett (Lab)
My Lords, I shall speak also to Amendments 57, 59 and 60 in my name and those of the noble Baronesses, Lady Neuberger and Lady Hamwee, and the right reverend Prelate the Bishop of Durham. I also express broad support for the other amendments in this group. The amendments reflect the concerns of the British Red Cross together with many other organisations, and I am grateful to them for their help. Together, the amendments would place restrictions on who could be accommodated in the accommodation centres proposed under Clause 12 and for how long, the numbers to be accommodated in a centre and the sleeping arrangements, and would ensure that if children were ever accommodated in those centres, they would not be prevented from attending local maintained schools.
Under Clause 12, as signalled in the new plan for immigration, accommodation for asylum seekers will move from what has been the dominant dispersal model, in which asylum seekers are housed in local communities, to accommodation in reception centres, using a power provided by the Nationality, Immigration and Asylum Act 2002. No detail has been provided, so one purpose of the amendments is to try to elicit more detail than was provided in the Commons. In particular, how many accommodation centres are planned, and where? Will they be purpose-built or will they use existing sites such as Napier barracks? What criteria will be used to decide whether such existing sites are designated as accommodation centres or contingency accommodation?
What the Government have made clear is that they will use Napier as asylum accommodation for a further five years, and that this will allow testing and piloting to inform the final design of how accommodation centres will operate. In view of the High Court judgment about the inadequacy of the accommodation provided, and having sat on an inquiry held by the APPG on immigration detention into quasi-detention centres, I find the idea that Napier could provide the model for future accommodation centres profoundly worrying.
The evidence we received—both from stakeholder organisations and from those with experience of living in Napier or in another centre, now closed—was overwhelmingly negative. Typically, such centres are in remote areas. This spells isolation and a lack of easy access to support services. It is not conducive to integration. On the contrary, it creates what HOPE not hate describes as “targets of hate”. It warns that the use of such centres is likely to lead to increased harassment of asylum seekers.
As noted in the joint evidence from Doctors of the World, the Helen Bamber Foundation, Forrest Medico-Legal Services and Freedom from Torture, the use of dormitory-style accommodation means a total lack of privacy. This can be particularly problematic for LGBTQ+ residents. It also results in serious sleep deprivation for many. The impact of this deprivation on mental health and well-being was described very powerfully in evidence to the inquiry by those with experience of Napier barracks.
The use of former military barracks can be retraumatising for those who have suffered abuse and torture. As a dozen organisations, including Doctors of the World, the Helen Bamber Foundation, the BMA and various royal colleges warned the Home Secretary in a joint letter, this makes them inappropriate for people seeking asylum. They also warned that the kind of accommodation centres envisaged represent a real public health risk and impede adequate medical care.
It was clear from our inquiry and from the experience of a range of health and refugee organisations that such accommodation is bad for mental and physical health. It undermines any sense of agency and hope. According to the Helen Bamber Foundation,
“the use of institutional accommodation of this type is extremely harmful to survivors of torture”
and its features
“have the same impact as open prisons with groups of people with little to motivate or occupy themselves becoming increasingly desperate.”
It is not surprising, therefore, that the Refugee Council has warned:
“Proposals to extend these forms of accommodation are ill-thought out and dangerous, and undermine the UK’s duties to support and protect those making asylum claims.”
It advised that international examples of the use of congregated settings, including in the Republic of Ireland, have shown that this kind of accommodation is completely inappropriate for housing those seeking asylum.
The amendments will not prevent the use of such accommodation centres—the power for which stems from earlier legislation, as I said—but they would go so way towards addressing their most inhumane features. Amendment 57 would, with some additions, give legislative force to what is supposed to be current policy—of not housing groups with particular vulnerabilities in such accommodation. Our inquiry, British Red Cross research and the experiences of stakeholders all indicate that, all too often, people with vulnerabilities are housed in such accommodation. It is therefore essential the safeguards are spelled out in the legislation. In the absence of such legal safeguards, what assurances can the Minister give that the use of accommodation centres will be accompanied by more robust screening and protection than exist at present?
With regard to children, in the Commons Committee, the Minister assured Members that the Government had “no intention” and “no plans” to accommodate children. Welcome as such assurances are, they are far from a cast-iron guarantee. We need to spell it out in the legislation. I do not see why the Government would resist this—if this is their intention. I invite the Minister to give an absolute assurance on the record.
Without a firm—preferably legal—guarantee, Amendment 60, which assures children’s access to local maintained education facilities, is still needed. At present, Section 36 of the 2002 Act prevents a child who is resident in an accommodation centre being admitted to a maintained school or nursery. Section 29 allows for education to take place within the centres. The prior information notice for accommodation centres, published by the Government last August, includes provision for education services. It surely cannot be in the children’s best interests to segregate them from children in the local community in this way.
Amendment 56 would limit the number of residents in any one centre to 100. The larger such centres are, the less the residents feel that their humanity is recognised and the more likely the centres are to attract hostile attention and to work against social cohesion and integration. In the Commons Committee, the Minister said that such a limit would undermine a key objective of resolving asylum cases more quickly on site. It is not clear how it would do so. Could the Minister please explain?
The other part of the amendment would ensure that residents were not required to share sleeping accommodation with anyone to whom they were not related. This reflects a recommendation made five years ago by the Home Affairs Select Committee—that room-sharing should be phased out across the asylum estate. It would help address lack of privacy and public health concerns.
The Minister was rather dismissive of this in the Commons Committee, but he did not seem to appreciate what it is like for people seeking asylum to be housed in dormitory-style accommodation, as opposed to sharing a bedroom in accommodation in the community. It is all very well saying, as he did, that torture survivors receiving treatment should not share sleeping quarters, but in practice, all too often, inadequate screening means that torture survivors and others who are vulnerable do so.
Amendment 59 would remove the power given to the Home Secretary in Clause 11 to increase the maximum period for which someone can be accommodated. At present, there is a limit of six months in most cases. The Explanatory Note gives no indication as to how the new power might be used, other than to argue that it provides flexibility. The UNHCR has expressed concern that, unless there are necessary safeguards and support services, prolonged accommodation in such centres is likely to harm well-being, increase the need for future support and delay refugee integration. The 90-day limit in the amendment reflects current practice at Napier. We know the damaging impact on mental health caused by the absence of any clear time limit. It should not be replicated in accommodation centres.
In conclusion, I will quote from residents of Napier and of Penally, which is now closed. One told the APPG inquiry:
“When I arrived, the fear completely overwhelmed me. The design of the camp was oppressive, the high fences, the sheer numbers of people, the security who … looked like they were from the military. It was terrifying and I could feel it through my whole body. It reminded me of the military camps in [my home country]. I was in complete shock for the first few days. I did not sleep at all … It reminded me of [my home country] and I could not function.”
Another suggested:
“It would be difficult to design a system that more perfectly delivers despair and deteriorating human health and mental capacity than these asylum camps.”
A third said:
“I did not feel like a person when I was there.”
These quotes show quite clearly the experience of dehumanisation. The JCHR suggested, in one of its reports on the Bill, that such dehumanisation and distress are not inevitable in accommodation centres. It also made it clear that it was imperative that the Government learn from the poor treatment of asylum seekers housed in former military barracks. The amendments in this group give the Government the opportunity to demonstrate that they have learned from the overwhelming evidence of the damaging impact of such accommodation. I beg to move.
Lord Horam (Con)
My Lords, I strongly welcome my noble friend’s initiative in building and setting up reception centres of this kind. I appreciate that the amendments tabled by the noble Baroness, Lady Lister, and others, are, in effect, probing amendments to find out more about the Government’s exact intentions. I fully understand that. It is perfectly reasonable.
I do not think that the noble Baroness objected to the principle of reception centres of this kind. At the moment, first of all, people are visited on local authorities, which are asked to accommodate them. Inevitably, these are not local authorities in London and the south-east, where accommodation costs are very high, but in areas such as the Midlands, the north-west and the north-east. I come from the north-west, so I know it particularly well. Here there is the largest concentration of people of this kind in council flats and so forth. They are, in effect, in competition with local people on the council waiting list, who may be rather resentful if they find they are asked to wait rather longer because of the need to accommodate people who have just come across the channel on a boat. This is not conducive to good community relations, as well as being quite unfair on people who have long been resident in this country.
Secondly, if they cannot be accommodated by local authorities—indeed, it is increasingly difficult to find appropriate council accommodation because of the shortage of housing, even in areas such as the north-east and north-west—they are sent to local hotels. I know this particularly well because I happened to spend part of my youth in Southport. Southport has a splendid main street called Lord Street. The Committee may not know it, but it was visited by Louis Napoleon, the Emperor of France, when he was in exile in this country before he became the emperor. On the basis of Lord Street, he created the Champs-Élysées in Paris. In Southport we always think of the Champs-Élysées as being the French Lord Street.
Baroness Neuberger (CB)
My Lords, I rise to speak in support of Amendments 56, 57 and 59 in the name of the noble Baroness, Lady Lister of Burtersett, supported by the noble Baroness, Lady Hamwee, and the right reverend Prelate the Bishop of Durham. I have added my name to these amendments. I say to the noble Lord, Lord Horam, that we are not talking about illegal immigrants; we are talking about asylum seekers. It is legitimate to seek asylum in this country.
In 2021—last year—a British Red Cross investigation found that unsuitable and poor facilities were having a severe effect on the well-being of asylum seekers, including children. I join the noble Baroness, Lady Lister, in asking the Minister to clarify that these accommodation centres will not be used for children in any circumstances because that is really important, and we really would like that on the record.
We know that people housed in asylum accommodation are generally not registered with a GP and face significant challenges in accessing appropriate healthcare, particularly for more complex mental and physical health conditions. People who are not registered with a GP and do not have an NHS number are also unable to access Covid-19 vaccines through the regular channels, which makes them largely dependent on outreach and walk-in clinics. I can tell noble Lords, as someone who has been very involved in the vaccine delivery, that it is a serious problem. It poses a huge challenge for timely follow-up and identification of those who need additional doses as a result of their clinical vulnerability.
The noble Baroness, Lady Lister, mentioned the judgment about those who were in Napier barracks. Noble Lords will know of the judgment, which was brought in June 2021, where it was made very clear that there were inadequate health and safety conditions, a failure to screen for victims of trafficking and other vulnerabilities and false imprisonment of residents. Evidence presented to the court showed that the Home Office continued to house people at the barracks against advice from Public Health England. A Covid outbreak was found by the court to be inevitable and it occured in January 2021, with nearly 200 people testing positive. Yet this is the model the Government are using.
We need to understand from the Minister and know more about how exactly this is going to operate and how we are going to ensure that anybody in an accommodation centre has their health protected and gets decent health services. We know that the risks to the health and well-being of people in these large-scale accommodation centres are clear.
If you add in the most vulnerable of people—children, women, people with disabilities, those who have been referred to the national referral mechanism and others who are vulnerable—the system will not be able to cope. The accommodation centres will apparently provide basic healthcare services, but access to medical care and infection control in current asylum accommodation settings has been notoriously poor, drawing widespread condemnation from healthcare professionals across the UK.
This amendment would mean people in vulnerable circumstances, including children, survivors of torture and those who have been subjected to human trafficking or enslavement, are not accommodated in the new accommodation centres. The Home Office recognised that most vulnerable people should not be accommodated in Napier barracks but Doctors of the World—I am extremely grateful to Doctors of the World and other organisations which have provided excellent briefings on all of this—data shows that 70% of Napier barracks residents accessing its clinical services disclosed an experience of violence in their home or transit country and 38% had applied for asylum because of an experience of violence. Of course, people who have experienced violence and associated trauma are unlikely to regard an accommodation centre that is prototyped by an ex-military camp as a place of safety, exactly as the noble Baroness, Lady Lister, has said. It is likely to trigger a trauma response. Talk to some of the psychiatrists who know about this and they will tell you that. It is likely to lead to the deterioration of an individual’s mental health and well-being.
Amendment 56 would mean that accommodation centres would not become overcrowded and would not place unnecessary pressure on local health services. It might also improve conditions—the noble Baroness, Lady Lister, has perhaps said enough about that—because if you hear the experience of people who have been living 20 in the same room, you can almost not believe it. I t makes one stretch one’s eyes. The lack of privacy living in large, shared rooms is a major cause for concern for people’s mental well-being. By limiting the number of people accommodated at a site, this amendment would contribute to better access to mainstream health services, a better chance—not a great chance, but a better one—of social integration and possibly a chance of maintaining some sort of well-being.
There is a further point. The noble Baroness, Lady Lister, has referred to what is happening just across the Irish Sea in the Republic of Ireland. The Republic of Ireland has, for nearly 20 years, been providing something called “direct provision” of housing for asylum seekers. I know about that because we have a holiday home in Ireland. However, because of the poor health experienced by residents, deaths within the centres and the same arguments being adduced here, the Irish Government are changing their system and have promised to phase out these so-called direct provision centres by 2024. Their new centres will be smaller, but not small enough, will be for a maximum of four months, which is not short enough, and will look out for the health and well-being and integration of the residents. If the Irish are removing these large centres, for all these reasons, should we not be thinking again, as well as protecting the most vulnerable from being housed within them, and reducing the length of stay permitted?
Baroness Jones of Moulsecoomb (GP)
My Lords, I point out to the noble Lord, Lord Horam, that the stresses and strains being experienced by local economies and local people have actually been created by his Government, the Conservative Government, over the past 12 years. Their levelling-up message—I will not call it a campaign—is only to repair some of the damage they have done in the past 12 years. Please, I want no lectures about making things easier for people, because this Government have made things much harder for many millions of people.
I also express my admiration for the noble Baroness, Lady Lister, who has shown incredible perseverance, persistence, bravery and toughness in keeping on about this subject. Her deep knowledge is informing the House. I really hope that we can listen to her, hear from her and learn from her; I include the Conservative Front Bench in that.
The way that asylum seekers have been detained in unsuitable accommodation in this country is a national outrage—a national disgrace. We should be deeply ashamed of it. If these conditions were not in violation of international law, then frankly we ought to be fighting for a change in international law, because no country should treat people like this.
The amendments in this group would have a two-pronged benefit, by improving the standard of accommodation and reducing the time for which people can be detained. I hope that the Minister will reflect deeply on the impact that this government detention is having on people’s lives, and accept these amendments.
The Lord Bishop of Durham
My Lords, in rising to support these amendments, to some of which I have added my name, I declare my interests in relation to both the RAMP project and Reset, as set out in the register.
Where we live and sleep is fundamental to our health, well-being and ability to live our lives fully. It should be a place we feel safe, from where we can build our lives. The majority of people who claim asylum will be granted refugee status or humanitarian protection. From day one in this country, they should therefore be treated as future citizens—a gift to us rather than a problem or inconvenience. They may well have endured persecution and trauma, but they also have skills and experience that they want to actively use to contribute to our society. This should inform the whole asylum process, including how they are accommodated.
I am deeply concerned about the planned accommodation centres for asylum seekers. The Home Secretary has said that the continued use of Napier barracks may inform the final design of how accommodation centres will operate. This does not bode well given the serious concerns raised by the Independent Chief Inspector of Borders and Immigration, HM Chief Inspector of Prisons and the findings of the High Court of fundamental failures by the Home Office in ensuring that the barracks were suitable accommodation for vulnerable asylum seekers.
I am now in the position, unlike anyone else in this House I think, to say that I visited Napier barracks last week with two Members from the other place: the honourable Member for Westmorland and Lonsdale, Tim Farron, and the right honourable Member for Romsey and Southampton North, Caroline Nokes—herself a former Minister for Immigration. We were accompanied by the Bishop of Dover and three members of the RAMP project team. I put on record our deep gratitude to the Minister for her support in ensuring that the visit took place, and for intervening when it looked like it might get cancelled at short notice. She worked tirelessly for us, and we thank her.
It was clear from our visit that efforts have been made to improve things in the light of the previous inspection and the court case. The conditions are far from ideal, but the deeply shocking conditions we have learnt about at Napier and Penally camps should never be repeated, and they are not currently being repeated. Good-quality asylum accommodation should be provided from the outset, not forced following inspections and legal challenge. I have a number of observations to make and questions to ask of the Minister that apply to the different areas of our four amendments.
Lord Hodgson of Astley Abbotts (Con)
My Lords, one rises to talk in this debate having heard speeches from the noble Baronesses and the right reverend Prelate which are based on great experience. My experience, which is much less and can therefore be dismissed as anecdotal, causes me to raise a couple of questions which I have told the noble Baroness, Lady Lister, I would raise. It is the question of the inflexibility that may be imposed if the system has too many conditions attached to it and, in particular, of the maximum number of 100 in a centre.
My anecdotal experience—I accept that it is anecdotal —is that the numbers are not the problem; what people want is proper management and not an absolute focus on numbers. As we all know, those unfortunate people arrive here traumatised, as the noble Baroness, Lady Neuberger, pointed out, and, for them, to some extent there is safety in numbers because in their previous experience they have been kept on their own. Therefore, having people around them can be helpful and not traumatising—in fact, it reduces trauma and does not compromise their humanity in the way the noble Baroness described. Of course, the smaller we make the group—the maximum—the more we run the risk of having to break up families because family groups cannot be fitted together. That seems undesirable by any measure. When the noble Baroness replies at the end of the debate on her amendment, I hope that she will be able to explain why 100 is the right number and some of the other issues that arise around this point.
My noble friend the Minister will know that I support the direction of travel of this Bill, but I am afraid that for the rest of my remarks I am going to be perhaps rather less helpful. The Committee may be aware that I chair the Secondary Legislation Scrutiny Committee. We looked at 901 regulations last year, and all human life is there. Amid 901 regulations, things pass in a bit of a blur, but one or two—a dozen, 15 or 20, over the years—stand out. I am afraid that No. 962 did that. As we heard from several earlier speakers, it concerned the special development order for Napier barracks. Noble Lords have spoken extensively about the drawbacks of that—I shall not go into them now; apart from anything else, I do not want to rain on the parade of the noble Lord, Lord Paddick, because I know that he happens to have tabled a regret Motion about this matter, and no doubt he will wish to take that forward at a future date. However, consideration of that order revealed a shocking series of cases. I was pleased to hear from the right reverend Prelate that he thought that things had improved. I was pleased to hear about how he thought things could be further improved. I am not sure that we can go quite as far as he would wish—I find it quite difficult to see how we can interfere with military journeys in this country. People should be able to understand that the Army, the Air Force or the Navy are not coming for them; it is part of their training.
The Lord Bishop of Durham
My point was that I just do not believe that they should be right next door to military barracks.
Lord Hodgson of Astley Abbotts (Con)
I accept that point, but I do not accept the point that large centres cannot work if they are properly designed and managed. That is not necessarily a reason for rejecting the possibility of there being larger reception centres, albeit that they may be built around buildings that have existed before.
When my noble friend the Minister replies, I am looking for her to say that we have no more Napier barracks hidden away somewhere, that we are moving in the direction of travel given by the right reverend Prelate and that, with that provision, we should continue to be prepared to provide centres that may be larger because they answer some of the requirements and traumas that those unfortunate people are experiencing.
Baroness Kennedy of The Shaws (Lab)
My Lords, I support these amendments and pay tribute to those whose names are attached to them, because they all raise important issues. I say to the noble Lord, Lord Horam, that there was something of a Freudian slip when he suggested that we were here dealing with illegal immigrants. Perhaps the tabloid newspapers are having too much of an effect on his view of what is happening.
Lord Horam (Con)
Surely in many instances we will not know the state of their claim when those people are accommodated in the reception centres. They will not know, and we will not know, what their status is.
Baroness Kennedy of The Shaws (Lab)
It was the assumption that we were talking about illegal immigrants. The vast majority of the people coming through are asylum seekers and have good reason to be seeking asylum.
The reason I got to my feet was not really to reprimand the noble Lord, Lord Horam; it was to raise a question that came from my own experience. When it became public that we had been evacuating judges and prosecutors from Afghanistan, because they were in mortal danger, to a lily pad—a temporary location—in Greece, the number of communications I received from people and families up and down the country with additional accommodation and offering to make it available to any of those seeking refuge from persecution was extraordinary. I know that the answer will be given from the Front Bench that of course we encourage people to contact a central line and to put their names down to say that they might make such an offer, but many of those who contacted me, where I gave them that advice, told me that no one had ever contacted them. I just wonder whether the good will of the British people who could offer accommodation is really being tapped into, rather than piling people into camps such as this one.
Lord Etherton (CB)
My Lords, I will speak to Amendment 61 in my name. Unlike the previous amendments that have been discussed so eloquently, this is not based on specificities in relation to the nature of the accommodation and particular people; it is a compendious description of the standard of accommodation that should be provided to a refugee, in the light of and against the background of the unsatisfactory accommodation provided to date, which, as I said, has been so eloquently elaborated upon by previous speakers.
The compendious description is in three parts, which are as follows. The accommodation
“must be provided in the United Kingdom”,
which ties in with Clause 28—I will deal with that more fully under that heading. It
“must be consistent with the European Convention on Human Rights”—
there can be no objection to that, for obvious reasons. It must also
“be such as is appropriate for the safety and welfare of that refugee having particular regard to any protected characteristic asserted by the refugee, within the meaning of Chapter 1 of Part 2 of the Equality Act 2010, which is innate or immutable.”
I will say a little bit about that last particular part of this compendious description of the appropriate accommodation that should be provided. An asylum seeker who has “innate or immutable” protected characteristics may have particular vulnerabilities—we have heard quite a bit about that—which need to be taken into account in determining what would be appropriate while their particular claim is being assessed, and even if it has been rejected. In the case of LGBTQI+ and single women refugees, for example, it has been clearly established that they may well encounter bullying, sexual harassment and physical violence from other refugees coming from the same or similar countries, such as Pakistan, Bangladesh, Malaysia, Uganda, Nigeria, Iran, Iraq and Syria—or, indeed, in the case of LGBTQI+ refugees, any of the more than 70 countries where sex between two people of the same sex is illegal. There have been comprehensive analyses and accounts of this type of abuse in detention centres, and one can find them in Stonewall’s 2016 report No Safe Refuge: Experiences of LGBT Asylum Seekers in Detention, Stephen Shaw’s 2016 report to the Home Office on his Review into the Welfare in Detention of Vulnerable Persons and the 2020 recommendations of the University of Sussex’s School of Law, Politics and Sociology on people seeking asylum in the UK on the basis of sexual orientation or gender identity.
In relation to the suggestion in the Bill that there could be offshore centres, I will describe in more detail criticisms of the state of accommodation and examples of the sort of violent and oppressive treatment that I have described—particularly the appalling events that have taken place in some of the Australian offshore centres in Papua New Guinea.
Lord Cashman (Lab)
My Lords, I rise briefly to speak to these amendments and congratulate my noble friend Lady Lister of Burtersett on so eloquently moving the amendment. I also congratulate the other speakers who have spoken in favour.
I particularly welcome Amendment 61 of the noble and learned Lord, Lord Etherton, because, as he said, he introduces into it elements—human rights and the regard to the special provisions within the Equality Act —of which we should be proud and on which we should lead internationally. I give my wholehearted support to that because, as noble Lords have heard me say before—I make no apologies for saying it again and again—in each of these situations, I imagine what I would want as an asylum seeker or refugee. I must imagine myself in that situation. Some who read our newspapers would believe that it is a picnic and a party; it is certainly not at the moment in the United Kingdom. I believe that the signal that we are sending out with the Bill and with these amendments is that asylum seekers and those seeking refuge are not welcome.
To reiterate the points made by the noble and learned Lord, Lord Etherton, I remember that, when I was a Member of the European Parliament many years ago, I was approached by a person whose partner was a gay man from Belarus who was seeking asylum here. His asylum process was going through and, suddenly, in the very early hours of the morning, he was arrested and detained at a detention centre. Let us make no bones about it: Clause 12(9) introduces detention centres—they are called “accommodation” centres, but asylum seekers are detained and cannot leave them at will. This is why the minimum conditions that the right reverend Prelate the Bishop of Durham outlined are a basic and bare necessity to which we should adhere. This young gay man was placed in a detention centre for a number of weeks and had to sleep in shared accommodation; we managed to get him out because his partner could afford a rather brilliant lawyer to plead the case. While he was there, he contemplated suicide on an hourly basis. This young man is now in a senior job in the United Kingdom, paying his taxes, his dues and his national insurance and abiding by the same rules and laws as everyone else. But he still lives with that scar every single day, and I do not want any other person to experience that.
Placing vulnerable people back into these situations, as outlined by the noble and learned Lord, Lord Etherton, only increases stress and the damage to mental health. If LGBTQI people are put back into the communities from which they have fled, they face further oppression within places that should be safe, and it makes it much more difficult for them to prove their LGBTQI status to others.
Someone once said to me, “Oh, being trans is just a feeling, isn’t it?” Well, I cannot prove to anyone that I am a gay man; it is a feeling and one that I have when I look at another human being—although not every single man, interestingly enough. Therefore, we have to deal with these particular issues, not only of LGBTQI people but all of these vulnerable asylum seekers.
I will finish with this. In roughly 1600, Shakespeare co-wrote a play; it was the only play that he co-wrote and it is “Sir Thomas More”. Sir Thomas More is called to London because the citizens of London are rebelling—they had probably read the tabloids of the day—because “the strangers” had made their way from Calais via Dover to London. In a parenthesis to a speech, Thomas More comes out, and with one hand silences the crowd. In that silence, a voice shouts, “Remove them!” Thomas More replies: “You bid that they be removed, the stranger, with their children upon their back, their families at their side, their belongings at their feet. Imagine you are the stranger, with your children upon your back, your family at your side, your belongings at your feet. Imagine you are the stranger and bid that they be removed and show your mountanish inhumanity.” It is a great privilege and pleasure to support these amendments.
Baroness Ludford (LD)
My Lords, I support all the amendments in this group and I ask the Minister to address in her response a couple of issues, particularly in relation to Amendments 57 and 61, about restricting the placing of vulnerable people in accommodation centres—military barracks. When a similar amendment to Amendment 57 was tabled in Committee in the other place, the Home Office Minister, Tom Pursglove, said it was
“unnecessary because there are no plans to place those with children in accommodation centres”.—[Official Report, Commons, Nationality and Borders Bill Committee, 21/10/21; col. 295.]
If the Home Office has no such plans, which is a welcome commitment, why will it not accept a statutory shield against placing at least children in those centres?
Wider than that, I am grateful to the British Red Cross, which has reminded us that there is a Home Office policy document, of which the latest update was in May 2021, called Allocation of Accommodation Policy. It has a section on “Asylum seekers considered unsuitable for Napier”, which starts with the statement:
“Women and dependent children are not suitable to be accommodated at Napier”,
before listing further cases, including potential survivors of modern slavery, people with a disability and those with complex health needs. The tablers of Amendment 57, which I support, say the list should be longer and should include those under Amendment 61. If the Home Office has these policy commitments, it is my contention that it ought to accept the amendments restricting the types of people who would be sent to these accommodation centres. I would be very pleased to hear the Minister agree and therefore accept at least Amendments 57 and 61.
Lord Green of Deddington (CB)
My Lords, noble Lords will not be surprised if I strike a somewhat different note; none the less, it is a note that needs to be heard. I think we need to stand back before addressing this group of amendments. We cannot and should not assume that everyone who claims asylum in this country has a case and is a genuine asylum seeker. The Home Secretary said recently that of those crossing the channel, 70% were more likely to be, and were in fact, economic migrants rather than genuine refugees. A historical view, I think, gives a figure of something like 50% of asylum seekers whose cases were rejected after very careful legal procedure. So, I think we have to stand back and not simply assume that all applicants have two wings and a halo.
Baroness Lister of Burtersett (Lab)
I am sorry to interrupt the noble Lord but, according to the Refugee Council, which did a very careful analysis of those coming over on boats—and this was an analysis, not just throwing out statistics in the way the Home Secretary did, perhaps—the great majority would be expected to receive refugee status. So, yes, of course, there are always going to be some people who are not “genuine” asylum seekers, but surely the assumption should be that they are until proved otherwise, rather than that they are not until it is proved that they are. The noble Lord seems to be assuming that they are not genuine asylum seekers and there is no evidence to support that.
Lord Green of Deddington (CB)
I think we need to be careful not to make an assumption in either direction. I was quoting the Home Secretary in the expectation that she has information to back that up. Even without that, and the noble Baroness did not address this point, the historical record is that 50% over the last 10 years have had their cases refused. I leave it at that. My point is clear on that matter.
Lord Alton of Liverpool (CB)
Does my noble friend agree that it would be helpful to the Committee if, when the Minister comes to reply, she provides two specific facts? One is about the number of people, said to be 125,000, awaiting decisions on their asylum claim; and the other is the average length of time it is now taking to expedite those decisions. This returns to the point made by the right reverend Prelate earlier about the pressure that would be taken off accommodation if those matters were attended to in a much more efficient way.
Lord Green of Deddington (CB)
Yes, 125,000 is correct, and I think that many—most—are waiting for more than a year. But if I may continue with my point—which does not address that; what I am addressing is the way this discussion has gone—the issue of scale is an important one. I have some sympathy with the Home Office: it is having to deal with a very large problem that is extraordinarily difficult to deal with. It is clear that the situation in the channel is a shambles. It is also clear that it is going to get worse. The number who arrived last year was 30,000 just on the channel, with another 10,000 elsewhere. We could, this year, have something like 60,000 arriving and claiming asylum. That is a massive logistical task and we should have that well in mind in making recommendations to the Home Office.
It is clear that the system is already buckling under the strain. One major problem is, of course, accommodation. Provision of accommodation in four-star hotels does nobody any good: it does the Government no good, it does the cause of refugees no good and it should not be taking place. That, presumably, is why the Government are now legislating in connection with accommodation centres, but the response to that legislation is to propose eight amendments that, taken together, would make it unworkable, given the scale of applications that we can expect. For a start, if we limited it to 100 for each accommodation centre, we would have to build something like 100 centres. If we get to the higher end of what I have just been describing, it would be 200. We have to be realistic and recognise what the Home Office has to deal with. I have not always been its great friend, but I think it has a problem and we should be conscious of that.
To conclude, I advocate a rather different approach. I think we should set up accommodation centres, we should establish them and mark their boundaries, we should provide medical assistance and legal advice, but we should simply make it the case that if applicants leave that accommodation without permission, their application is refused.
Lord Green of Deddington (CB)
No; it is very simple —too simple for the noble Baroness—but it would mean that we do not need huge amounts of security in order to keep people where we put them. I hope that Government will take powers to do something on those lines. I do not think what they are now proposing will work, and I think it would be even worse if some of the proposals we have heard today came into effect.
Lord Dubs (Lab)
My Lords, I would not want this whole debate to turn on the comments of the noble Lord, Lord Green. All I would say is that his suggestion that people should be kept in a form of virtual detention and penalised if they happen to leave it is surely unacceptable. I am afraid that I do not accept the thrust of his arguments anyway. If he looks at the figures, he will also find that, although more people came across the Channel by boat in the last year or so, the numbers have not increased all that much, compared with those who came on the back of lorries before. The numbers have actually gone down a bit.
Lord Green of Deddington (CB)
That is correct. If the two are added together, it averages about 40,000 a year over the last eight or 10 years. The problem now is the publicity surrounding all this, which makes it more difficult. Also, these numbers could easily double, as the Home Office says, and then we are in a new situation, going back to the early 1960s when it ran completely out of control.
Lord Dubs (Lab)
I do not want to pursue the point, because it is diverting us from the particular amendments, which I support. I say at the outset that the Minister has the advantage that, having been able to look at the Joint Committee on Human Rights reports on this, she will know exactly the quotes and arguments that we are going to use. It will be no surprise to her at all. She knows exactly what we are on about. I am certainly speaking as a member of that committee.
Before that, perhaps I could pay tribute to the Kent Refugee Action Network. During the pandemic—at its height—when the issue of Napier barracks arose, it drew our attention to what was going on. I am sorry I could not go with the right reverend Prelate on his recent visit, but at the time of the pandemic, we were not able to go on visits and I am sure the Minister was not able to, either. She gave us a version of what was going on in the barracks which frankly was disproved by the local people on the ground, who told us that the conditions were bad, and that people with Covid were mixed up in dormitories with people who did not have Covid. I am afraid the Minister at that time appeared to be misinformed as to the situation there. All these issues were raised at the time. I cannot remember how long ago it was. We had quite a long earlier debate.
I do not want to go over the ground that other noble Lords have covered. The Joint Committee on Human Rights looked at this. We have some good quotes from Bail for Immigration Detainees and from Médecins Sans Frontières. I will not quote those, but I do want to quote paragraph 91 of the JCHR report:
“It is imperative that the Government learns from the poor treatment of asylum seekers housed in former military barracks. If accommodation centres are to be used to house those awaiting asylum decisions and appeals or awaiting removal from the UK the conditions must ensure that residents are free to come and go, treated with respect, provided with adequate access to healthcare and legal advice and not prevented from mixing with the rest of society”.
I will say one other thing. At the time this issue arose, the Home Secretary said that the barracks were used by the British Army and asked why we were complaining. That was wrong in a number of respects. First, it was years previously that the Army had used the barracks. Secondly, they were not mixing up people with Covid with other people. If the conditions were not adequate now, they were not adequate for the Army then—but to use that as an excuse, and say, “It’s good enough for refugees because the Army used it 10 or 15 years earlier” seems an unacceptable argument.
I am sorry the Home Office has been put in this position. I welcome what the Kent Refugee Action Network has been doing to support refugees in Kent generally, to support refugees in the barracks and to campaign on the same arguments that are characterised by these amendments.
Lord Marlesford (Con)
My Lords, it seems to me that this debate reflects what we said yesterday in our debate and what some of us tried to say on Second Reading. There is an irreconcilable conflict and quandary between our desire to receive people in the way in which we would wish them to be received and treated and the number of people who have been coming—and are likely to continue to come—and our capacity to handle them. The Home Office’s proposals attempt to increase the capacity and the quality. I totally understand the criticism of the proposals, but it seems to me that we are in no way in sight of a practical solution to this problem.
Lord Paddick (LD)
My Lords, I start by thanking the noble Baroness, Lady Lister of Burtersett, for so comprehensively and clearly setting out the issues addressed in this group. I also thank the noble Baroness, Lady Neuberger, for her detailed exposition of the negative impact that accommodation has on the health and well-being of asylum seekers.
We have Amendments 58, 62 and 63 in this group, which are about accommodation centres, which are—if the Government were honest about this—immigration detention centres, as the noble Lord, Lord Cashman, said. I say that because Section 30 of the Nationality, Immigration and Asylum Act 2002 allows the Secretary of State to make regulations about conditions to be observed by residents of an accommodation centre—including, in subsection (3)(a), the power to
“require a person not to be absent from the centre during specified hours without the permission of the Secretary of State or the manager”.
Hence my noble friend Lady Hamwee’s Amendment 62, which we strongly support, to remove such a condition.
If these are not intended to be detention centres, the Government will have no objection to this amendment—but I am not optimistic. The noble Lord, Lord Green of Deddington, will be heartened by the news in the Telegraph today that the Secretary of State
“is in talks with the Attorney-General about potential restrictions that could be placed on their movements”—
that is, the movements of asylum seekers housed in accommodation centres. The noble Lord will be heartened; we will be horrified.
We have already seen from the Government’s attempts to warehouse large numbers of asylum seekers in former military camps how such an approach is not “conducive to the public good”, to adopt a phrase from another part of the Bill. Noble Lords have talked about Napier barracks. In the same article in the Telegraph today, apparently the Home Office confirmed that it has acquired military barracks at Manston, in order to accommodate further asylum seekers.
The noble Lord, Lord Horam, suggested that there was no objection in practice to accommodation centres. To some extent, that is true, but having large numbers of asylum seekers in one place creates tensions with local communities and hampers asylum seekers’ attempts to integrate into their adopted country. While I am on the subject of the noble Lord, Lord Horam, can we nail the illegal immigrant issue? The noble Lord said that a lot of these asylum seekers had yet to have their claim determined. We have a principle in British law called being innocent until you are proved guilty. These people are not illegal immigrants unless and until their claim for asylum has been rejected.
So many objections to immigration generally are on the basis that immigrants do not integrate into society; that they do not attempt to learn the language, for example, or mix with those already established in the UK. Accommodation centres would prevent asylum seekers integrating and force them to isolate themselves from local communities. It is the very opposite of what we should be doing to ensure the integration that is so important to foster good community and race relations.
As the noble Baroness, Lady Neuberger, said, we have seen the appalling conditions that asylum seekers have been forced to live in at Napier barracks, which drew universal condemnation. Amendments 56, 57 and 61 seek to provide some safeguards and protections for the most vulnerable asylum seekers. Amendment 60 would enable children housed in accommodation centres to attend local state schools, and Amendments 58 and 59 try to restrict the length of time that asylum seekers can be held in accommodation centres.
Lord Green of Deddington (CB)
The noble Lord mentioned that most applicants will become refugees. I have the Home Office figures here: 49% of the 450,000 asylum applications between 2004 and 2020 were withdrawn or rejected, including those that went to appeal. Those are the basic stats from the Home Office; they should surely underline the whole debate.
Lord Paddick (LD)
I am very grateful for the historic information that the noble Lord has provided. My understanding is that, as the years have gone on, the number of successful appeals has increased and the number of first-time decisions to reject application from refugees has gone down. While I do not deny that those might be the overall numbers going back to 2004, in saying that most applicants for refugee status are successful, we are basing it on the last few years—the current trend rather than the historic numbers the noble Lord refers to.
I am reminded of heavy-handed policing of football supporters in the 1980s. I remember a football fan saying to me, “If you treat us like animals, we’ll behave like animals”. Warehousing asylum seekers may be a short-term gain, but it is likely to create long-term problems.
Lord Rosser (Lab)
I too express my appreciation to my noble friend Lady Lister of Burtersett for the determination and commitment she has shown in pursuing not only this but so many other key issues about which she rightly feels very strongly. I repeat what the noble Baroness, Lady Neuberger, said: this clause and these amendments are about asylum seekers. In the Bill—a government document—Clause 12 is titled “Accommodation for asylum-seekers etc”. We are talking about asylum seekers, not illegal immigration, although I accept that there are those who make no distinction between the two. The other point I make at this stage is about the quite interesting exchange between my noble friend Lord Dubs and the noble Lord, Lord Green of Deddington. I think there was rough agreement—if not I am sure I will stand corrected—that the kind of numbers coming over in the back of a lorry are very similar to those coming over in small boats across the channel.
Lord Green of Deddington (CB)
To get the timescale on this, I say that 10 years ago it was 40,000 asylum seekers a year. That is roughly the number now—30,000 on the channel and 10,000 by other means. The difference, as I mentioned, is the potential in the channel for the numbers to go up very fast and make it even more difficult for the Home Office and local government.
Lord Rosser (Lab)
The potential is, of course, a matter of speculation. I note the point the noble Lord makes, but up to now there is agreement between him and my noble friend Lord Dubs that the numbers have been roughly the same.
Lord Paddick (LD)
I am sorry to interrupt the noble Lord, but my understanding is that the number of asylum claims a decade or more ago was something like double what it is now. We are talking not about similar numbers crossing the channel in boats compared to those in the past, but about half as many.
Lord Rosser (Lab)
The point I wanted to make was that, when people were coming over in the back of lorries—not all that long ago—they were largely unseen and the Government were not proposing the measures in the Bill. However, when similar numbers started to come over in small boats across the channel, with pictures of them landing on our shores regularly appearing on TV, it became a big political issue for the Home Secretary and the Government, following some rather rash promises they made to their supporters. Consequently, we now see the Bill, which frankly is an attempt to save the political skins of the Home Secretary and the Government. It really has nothing to do with properly trying to solve a problem. We ought to remember what is driving it—the political future of a Home Secretary and Government who made rash promises. Because people are coming over no longer in the backs of lorries, where you do not see them regularly on television every night, but in small boats across the channel, with pictures of them on television, it has become politically very awkward.
The amendments in this group are driven, as has been said, by serious concern over the Government’s track record on accommodation for asylum seekers, not least in connection with Napier barracks, and the provision in Clause 12 for creating asylum accommodation centres. It is worth repeating that last June a court judgment ruled that the accommodation at Napier barracks was inadequate, in that it did not meet the minimum standards required by the Immigration and Asylum Act 1999. Both the process for selecting people to be sent to Napier barracks and the process for monitoring its ongoing suitability while they were there were flawed and unlawful. From January 2021 the residents were given an order not to leave the site until they were permitted to do so. The claimants were unlawfully detained, under both common law and the European Convention on Human Rights.
The report on Napier of the Independent Chief Inspector of Borders and Immigration and Her Majesty’s Inspectorate of Prisons raised a number of serious concerns, including that the screening of potential residents for physical and mental health problems was “wholly inadequate”, with all of those interviewed reporting feeling depressed and one-third feeling suicidal, and that there was extremely poor communication with those accommodated at Napier. We have heard today from the right reverend Prelate the Bishop of Durham that Napier has improved, but it is fair to say that he also said that it is far from being as it should be. It is a legitimate question to ask why the Home Office allowed Napier barracks to get into the position where it required a court judgement, and why we should now accept that the same thing will not happen again.
Clause 12 gives the Government powers to house different groups of asylum seekers in undefined accommodation centres. It appears that these centres would involve congregated living in hostel-type accommodation—the type of accommodation which has been shown to be unsuitable to house people, many of them traumatised, in the asylum system for long periods. As others have said, this move away from housing in the community is likely to impede integration prospects and will surely make access to needed support and services more difficult. I simply ask the Government, and I hope that we get an answer in their response: is it now their policy to move away from housing in the community for asylum seekers?
The Explanatory Notes to the Bill say that the accommodation centres for those at different stages of their asylum claim, including those with “inadmissible” asylum claims, will
“increase efficiencies within the system and increase compliance”,
but no evidence is given to support that assertion. It would be helpful if the Government could provide that evidence in their response to this debate.
While the term accommodation centre is not defined—again, perhaps the Government will do so in their response —there is an implication that the Government are seeking to replicate the kind of inferior accommodation that we have seen at Napier. This more prison-like and isolated accommodation provides a very poor environment for engaging with asylum claims and is more likely to retraumatise extremely vulnerable people and hinder future integration.
As I understand it, last summer the Home Secretary visited the notorious reception centre on the Greek island of Samos, which campaigners have described as “prison-like” and “inhumane”. Is that what the Home Secretary seeks to emulate in her accommodation centres? The Government must know the answer, since I believe I am right in saying that initial submissions for the procurement of these accommodation centres were invited by the end of September last year. The contract is to be delivered in accordance with Part 2 of the Nationality, Immigration and Asylum Act 2002, and it stated, as I understand it, that it is for housing up to 8,000 people for periods of up to six months. Could the Government say in their response how accountability and standards will be maintained in such asylum accommodation when there is no public access to the contracts? How did the Government decide that commercial confidentiality should take priority over the public interest in knowing about the contracts and transparency?
Since April 2020, the Home Office has been using two large-scale accommodation centres for asylum-seeking men who have arrived in the UK by boat: Napier barracks in Kent and the Penally camp in Wales, which is now closed. A report by the All-Party Parliamentary Group on Immigration Detention noted that, although legally speaking these are not detention centres, they none the less replicate
“many of the features found in detained settings—including visible security measures, shared living quarters, reduced levels of privacy, and isolation from the wider community”.
Frankly, that seems wholly inappropriate. No doubt the Government in their response will wish to provide some reassurance on this point.
It would be helpful too if the Government could spell out what freedoms and rights will be restricted or diminished for the occupants in these accommodation centres, and what independent access will be allowed, and to whom, to these centres to ensure there is some regular accountability for conditions and standards.
The Minister of State, Home Office (Baroness Williams of Trafford)
My Lords, I thank all the noble Lords for their contributions to this debate. I will clear up two things before we start.
Noble Lords will recall that, yesterday, at Questions, I made an apology—the noble Lord, Lord Paddick, was not actually in his place—having been quite insistent that I had sent a letter to the noble Lord, Lord Dubs, and that everyone had received a copy of that letter. I had cleared the letter, but it had not gone out. I apologised to the whole House, in the noble Lord’s absence, and thanked him for bringing it to my attention. I understand—I will not assert it—that the letter has now gone out, so everyone in the Committee and the House will get a copy of the safe and legal routes. I am sure the noble Lord will intervene on me if it has not arrived in noble Lords’ inboxes.
The second point to clear up was on something mentioned by the noble Lord, Lord Rosser, before he sat down, in the Times article. I had not seen it at the time, but I have looked at it now. It is speculation, but I will confirm two things: we detain only for the purposes of removal and to examine claims.
I want also to clarify a third thing: Manston is not going to be an accommodation centre. The plans are for it to be a short-term holding facility for a maximum of five days’ stay.
Noble Lords have pointed out that the asylum accommodation state is under huge strain—there is no doubt about that. We are currently relying heavily on the procurement of hotel rooms, which is not sustainable. Noble Lords have alluded to that in previous questions and debates. The use of accommodation centres will provide additional capacity and ensure that adequate housing is available to everyone in the asylum system who needs it. The noble Lords, Lord Alton and Lord Green, are right, although they come from different sides of the argument: the numbers are large, with 125,360 in the system to June last year. There is no doubt that processing claims more quickly will free up the system.
The noble Lord, Lord Alton, asked about the average time to process. We prioritise claims involving individuals who are either high-harm, vulnerable, unaccompanied asylum-seeking children or in receipt of asylum support, and we are working on implementing an improved service standard.
Lord Alton of Liverpool (CB)
Before the noble Baroness leaves that point, is she able to give an average time to process these claims? I recognise some will be in different categories.
Baroness Williams of Trafford (Con)
I think I said right at the outset that I do not have a figure at this point in time. In terms of speeding up claims and decision-making, we are dealing with a sustained high level of new asylum claims, including from those who arrive in small boats who noble Lords have been talking about. That is creating an additional pressure on the asylum system, but we are committed to ensuring that asylum claims are considered without unnecessary delay and that those who need protection are granted it as soon as possible. We have in place a transformation programme. We are developing existing and new technology. We are digitising casework. We are building a high-performing team, and we are investing in training and supporting staff in professional development to aid staff retention, which we so desperately need.
A key objective of setting up accommodation centres is to resolve asylum cases faster by putting casework and other services on-site. As my noble friend Lord Hodgson of Astley Abbots said, there is no rationale per se for restricting the number of people in each site to 100, as Amendment 56 seeks to do. It is only likely to make it much more difficult and expensive to set up the centres, meaning that fewer asylum seekers will benefit from the efficiencies that we are trying to achieve. There is also no reason that unrelated residents of accommodation centres cannot share sleeping quarters provided they are the same sex, as this is already allowed in the asylum accommodation system. I take the point made by the right reverend Prelate the Bishop of Durham about the noise and probable brightness within the facilities, and I will most certainly take that comment back.
Baroness Lister of Burtersett (Lab)
I am sorry to interrupt, but I was so struck when we took evidence about sleep deprivation from people who had been in Napier. It really got me, as someone who hates being deprived of sleep, because it clearly is such a fundamental issue for their mental health. It is not just noisy. They cannot sleep because of the noise.
Baroness Williams of Trafford (Con)
The noble Baroness and I share more in common than I thought, because sleep deprivation, which I have been a bit subject to recently, is not something I find very easy at all. I am going to take those comments back and provide more commentary, on the back of the right reverend Prelate’s questions, on what we were doing and what we are doing now, if the noble Baroness will bear with me.
As I said, there is no reason that unrelated residents of accommodation centres cannot share sleeping quarters. In fact, the right reverend Prelate conceded that some people like sharing sleeping quarters with others. It is the peripheral issues that he has brought to my attention that I will take back.
The Lord Bishop of Durham
It was simply in pairs. That was quite clearly stated to us. Two in a room was quite welcome, but more than that was objected to.
Baroness Williams of Trafford (Con)
Okay, I thank the right reverend Prelate for being so specific. However, I do not think that, fundamentally, there is a reason that unrelated residents cannot share. This amendment clearly provides effective action to alleviate this burden and seeks to restrict the introduction of efficiencies, already mentioned, to the system.
Amendment 57 is unnecessary because there are no current plans to place those with children in accommodation centres, and all other individuals will be placed in an accommodation centre only following an individual assessment that it will be suitable for them and they will be safe.
Baroness Lister of Burtersett (Lab)
Will the Minister at this point make a firm, absolute assurance not only that there are no current plans—I get very suspicious when I hear that, because a plan can be thought up in a few weeks’ time—but that no children will be placed in such centres?
Baroness Williams of Trafford (Con)
I do not think I can go further than saying that there are no current plans because if a child was destitute and there was a place for the night, I could not say we would not put the child in an accommodation centre.
Baroness Lister of Burtersett
Could the Minister at least give an assurance that, except in the most exceptional circumstances, no child will be put in such a centre? I hope she can understand why saying that there are no current plans is not sufficient to satisfy us.
Baroness Williams of Trafford (Con)
I understand the noble Baroness’s point. I cannot go beyond saying there are no current plans, but I can think further about the point she is making and perhaps give her more detail on it, if she will allow me to do so, but that is as far as I can go. She might be further comforted by some of the things I am going to say about vulnerability, et cetera.
Baroness Hamwee (LD)
My Lords, if the Minister is coming on to that, perhaps I should sit down, because I was going to stress welfare as distinct from safety.
Baroness Williams of Trafford (Con)
That is what I am going to come on to, if noble Lords will accommodate me—no pun intended—for a short period of time.
Whether an accommodation centre is suitable for individuals who share the characteristics listed in the amendment will depend on a number of factors, including their personal circumstances and vulnerabilities and the facilities available at the particular site or area. This goes to the points made by both noble Baronesses.
I now turn to Amendments 58 and 59, which seek to limit stays in accommodation centres to 90 days. The amendments attempt to disapply a key part of Clause 12. One of the aims of Clause 12 is to enable wider flexibility to ensure that individuals are supported in accommodation centres for as long as that form of housing, and the other support and arrangements on-site, is appropriate for their individual circumstances. We intend to provide vital services and support co-located within accommodation centres. Reducing individuals’ access to these vital services by restricting them to a 90-day stay would not be acting in their best interests.
We do not think Amendment 60 is necessary because we are not proposing to use the power in Section 36 of the Nationality, Immigration and Asylum Act 2002, so there is no need to amend it.
Moving to Amendment 61, I would like to thank the noble and learned Lord, Lord Etherton, for his contribution to this debate. The Home Office is already required to provide accommodation to destitute asylum seekers and failed asylum seekers in a way that is consistent with the European Convention on Human Rights and the requirements in the Equality Act 2010. Our policies also recognise that we need to take account of the individual’s safety and welfare—to take the point from the noble Baroness, Lady Hamwee—in considering the type of accommodation that is suitable for them.
There are no plans to use accommodation centres to house all asylum seekers. I slightly wondered whether there might have been some conflation with that in today’s debate. Some will be identified at the outset as unsuitable for that type of accommodation, and some will need to be moved out of the centres as new issues emerge. All individuals in the asylum support system have access to an advice service from Migrant Help, a voluntary sector organisation that we fund for this purpose, and are able to put forward reasons and evidence why they need a particular sort of accommodation.
Moving to Amendment 62, I need to be clear on this. As my noble friend Lord Horam said and my noble friend Lord Hodgson of Astley Abbotts asked, accommodation centres are being set up to provide housing and other support for those who require it because they would otherwise be destitute. The judges mentioned by the noble Baroness, Lady Kennedy of The Shaws, may not in certain circumstances need this type of accommodation; I am not making a presumption, but they may not. These are not detention centres, of course. Individuals are free to move out of the centres if they can obtain their own accommodation, for example through friends or family.
Baroness Hamwee (LD)
The point was made very clearly that these centres should not be places of detention. I was waiting for some assurance that the ability to come and go would be recognised. The Minister has just said that people will be free to leave if, for instance, they need to go and do something specific. To me, that sounds very different—it may just be a trick of the language—from an assurance that these will not be places of detention subject to specific allowances to leave for specific purposes.
Baroness Williams of Trafford (Con)
I repeat that these are not detention centres. There may be specific conditions—for example, if an asylum seeker needs to attend an interview about their claim, they will be required to be there—but they are not detention centres.
Baroness Lister of Burtersett (Lab)
I am sorry to interrupt—I know that there is a lot to cover—but I want to follow on from that important point. Again, we were given an example of a specific reason. The person may just want to go for a walk. They may want to go into the local town, if they can get there. Will they be free simply to go out when they want to?
The Lord Bishop of Durham
We saw and talked to people who were going out into Folkestone for a walk and coming back. So if the system is modelled on Napier as it is now, they were absolutely free to come and go. I think the Minister is saying that, if a specific appointment is made, they will be required to attend it.
Baroness Williams of Trafford (Con)
I know that the Committee will believe a holy man over me—so, yes, God’s representative on earth is absolutely correct.
Baroness Williams of Trafford (Con)
One of many. The right reverend Prelate is absolutely correct and put it perfectly.
Where was I? I will talk about standards and all the stuff around Napier in more detail in a second but, for now, I will move on to Amendment 63. This would effectively give local authorities a veto over any proposals to set up accommodation centres in their areas. We do not think that is appropriate. We fully accept that local authorities should be consulted on such proposals and on their views about any impacts on local services. This is already provided for in the way that the Home Office arranges accommodation for destitute asylum seekers who need it. Accommodation providers are contractually required to consult local authorities on any proposals to use accommodation that has not previously been used to house supported asylum seekers. We hope that this consultation leads to agreement, but it is not realistic to assume that this will always happen. It is, however, vital that we provide housing and support to those who would otherwise be destitute. Local authorities cannot be given the option to turn these people away as an inconvenience. I am sure that the Committee would not want that.
I want to address directly the questions asked by the right reverend Prelate the Bishop of Durham. He asked, first, whether there would be added recreational activities and appropriate medical expertise on site. The simple answer is yes. I know that he saw such an example when he was at Napier the other day. As I have said, accommodation centres will meet all statutory and legal requirements. We expect services in and around the centres to include spaces for exercise, religious activities and appropriate healthcare provision.
The right reverend Prelate asked about community cohesion—a very appropriate question. We will work with local authorities to ensure that community cohesion aspects are addressed; I am sure that the Church will engage on that as well. He also asked whether there would be effective processes to ensure that the most vulnerable are not housed on site. Again, the answer is yes. People will be able to disclose reasons and evidence for why they should not be accommodated in a centre. I was also asked to confirm that no children would be accommodated in these centres. I refer back to my answer to the noble Baroness, Lady Lister.
The right reverend Prelate asked whether specific learnings from Napier would be applied in future. That is a totally reasonable question. Offering residents Covid vaccinations and personal cleaning kits is one of the things that we will do. The noble Lord, Lord Rosser, talked about the Covid outbreak. Lateral flow tests are available on arrival and twice a week thereafter for people at the accommodation centres. There are communications on Covid in 10 different languages, and there are people and messages encouraging Covid compliance.
NGOs have also been introduced on site to provide assistance and support. There is free travel to medical appointments and a visiting dentistry service. There are weekly meetings with residents to identify and act on concerns. Sport and recreational activities have also been introduced. I took the noble Lord’s point about the hard football pitch, but then I thought that, in some parts of the country—such as where I live—having a grass pitch might preclude them from playing football for six months of the year, so it is probably appropriate, depending on the area.
The right reverend Prelate also asked whether sleeping areas would be limited to two people. I think I have covered that. There is no reason why unrelated residents of accommodation centres cannot share sleeping quarters, provided that they are of the same sex. This is already allowed for in the asylum accommodation system.
The Lord Bishop of Durham
I thank the Minister for her comprehensive answers. Report after report has highlighted the importance of ESOL.
Baroness Williams of Trafford (Con)
I was going to come on to that, and I shall do so now. The right reverend Prelate has mentioned ESOL, which of course is used in either a work context or a life context. He mentioned that there were NGOs providing language assistance for people in accommodation centres. I am not aware of plans to introduce ESOL, but I would say that that is maybe further along the chain of the claim and therefore the granting of asylum.
I hugely support learning the English language for all aspects of these people’s lives, not least in order to integrate, for their children to get educated and for them to be able to access basic things such as healthcare if and when they are granted asylum. So I will think about that—actually, I will not just think about it but take it up with the department.
Lord Alton of Liverpool (CB)
My Lords, the Minister may recall that some years ago I came to see her, with the then Minister Brandon Lewis, specifically about the teaching of English. I declare an interest in that my wife is a volunteer, working in the north-west of England on the very kinds of projects that the right reverend Prelate mentioned, teaching English. She and I agree with the Minister that having a command of the English language gives access to everything, while not having that command is a major disadvantage. So, whether or not it is ESOL, resources are required, certainly for volunteers, to ensure that they have available to them all the necessities required if you are a teacher.
Baroness Williams of Trafford (Con)
I do not think there is any disagreement here. I have seen some great examples—particularly in the north-west of England, and I think the noble Lord and I talked about them at the time—of English language learning for people new to this country. I am not in disagreement in that area.
The noble Baroness, Lady Lister, and the noble and learned Lord, Lord Etherton, who also mentioned the Shaw review, talked about children, those with vulnerabilities and, of course, our LGBT community. I stress that we will accommodate people in a centre only after an individual assessment that it will be suitable for them and that they will be safe. There are no plans currently to use the centres to house families. Beyond that, the centres will be used to accommodate only those who require support because they would otherwise be destitute. Those who obtain accommodation with friends or family will not be affected by the measures.
With regard to unaccompanied asylum-seeking children, the provision has nothing to do with unaccompanied minors. The provision is about adults in the asylum system and their dependants who are accommodated by the Home Office under powers in the Immigration Acts. Unaccompanied minors are not accommodated under those powers.
On the question about accommodation centres generally not being suitable for certain individuals, I repeat again that there are no plans to accommodate asylum seekers and failed asylum seekers who are not destitute in this kind of accommodation. Those who can obtain accommodation with friends or family will remain unaffected; that goes to the question from the noble Baroness, Lady Kennedy of The Shaws. Individuals will have the opportunity to disclose information and supporting evidence for why they should not be housed in accommodation centres, and I say again that we have no current plans to accommodate those with dependent children. However, it is not possible to completely rule out placing those with children in accommodation centres in future if, for example—this is a point that I made earlier—there are no available flats or houses to house them. In certain situations, this might be a better option than using hotels. In terms of educational opportunities, all children who are resident in the UK in whatever circumstances can access the state education system in the same way as British children.
I think we have gone over the question of why these are not detention centres.
On the mental health point that the noble Lord, Lord Cashman, mentioned, we have later amendments on that issue. Individuals will have access to health services, but we will discuss the issue of mental health in later groups. However, I agree with his point.
Lord Cashman (Lab)
It was also particularly in relation to LGBTQI people placed in those situations.
Baroness Williams of Trafford (Con)
Yes, I totally concur with the noble Lord’s point.
I turn to the judgment on Napier, mentioned by the noble Baronesses, Lady Lister and Lady Neuberger, the right reverend Prelate the Bishop of Durham and the noble Lord, Lord Dubs. The judgment on Napier was reached on the basis of the conditions on site prior to the significant improvement works we carried out and the measures we put in place as a result of the Covid-19 pandemic. The court did not make any findings that the accommodation centres were unsuitable for providing support to asylum seekers who would otherwise be destitute. Indeed, the Nationality, Immigration and Asylum Act 2002 specifically provides for this type of accommodation. The Napier site provides full-board facilities with meals and other essential items provided, as well as access to essential local services such as healthcare. I have been through the improvements that have been put in place. I am most grateful to the right reverend Prelate the Bishop of Durham for reporting back on his visit there last week. He did not have me wandering around after him showing him the best bits; he was free to go in, report and make suggestions to me on the back of that visit.
I hope I have given a fulsome response to the Committee, for the reasons that I have outlined, about the need to ensure that we can support asylum seekers appropriately but also encourage—
Lord Kerr of Kinlochard (CB)
The Minister is valiantly dealing seriatim with the qualms that so many of us have about accommodation centres, but I have not yet heard an answer to the fundamental question: why accommodation centres? What is the purpose of this? Why would it improve the asylum system? Is it cost savings? I hope it is not deterrence. Is it the advantages for the Executive of the concentration of cases in one particular place? If we are going to deal fairly with asylum seekers, surely the best thing to do is to speed up the process of hearing their cases and get more of the initial decisions right so that fewer go to appeal.
Surely the accommodation should be empty local authority housing. Why are 12,000 of the 16,000 August Afghans still in hotels? Is there some hold-up in the system which means that local authorities, some of which are quite keen to get some revenue from the presently empty accommodation, cannot deal with them? Is that not the answer, rather than building these concentration centres—or is there some reason that I have just completely missed that would make an accommodation centre the answer? What is the underlying rationale of the proposal?
Baroness Williams of Trafford (Con)
I am very grateful to the noble Lord for asking that question. When someone arrives in this country, they go first into initial accommodation and then into dispersed accommodation. Depending on whether their claim is allowed or denied, either they are welcomed here as an asylum seeker with their claim accepted or, if their claim is rejected, they might ultimately be asked to leave. These are initial accommodation centres; this is not move-on or follow-on accommodation. I hope that helps to explain the difference.
Lord Kerr of Kinlochard (CB)
As long as the queue is three, four or five years long, it is not really just a question of initial accommodation. This is pretty long term.
Baroness Williams of Trafford (Con)
The noble Lord is absolutely right, and this goes right back to the beginning of this discussion. We need to process claims quickly, grant asylum if the claims are valid, and ask people to leave if they are not. He is absolutely right and we agree with each other on this point: people’s claims need to be done expeditiously. Without making excuses, I say that the pandemic really held back the smooth running of our asylum system, as I am sure it did in other countries. I hope the noble Lord is satisfied. For the reasons I have outlined—so that we can both support asylum seekers appropriately and encourage that throughput that he was just talking about, by freeing up spaces in the asylum spaces— I hope noble Lords do not press their amendments.
Lord Marlesford (Con)
Does my noble friend agree that there must be a limit to the resources available to deal with the increasing potential scale of this problem?
Baroness Williams of Trafford (Con)
There is a limit to both the resources and the geography of this country. That is why the system needs to run in a way that accommodates the most vulnerable people. People whose claims are not upheld need to leave.
Baroness Lister of Burtersett (Lab)
My Lords, I thank Committee Members for their kind words and, more importantly, those who made strong contributions in support of these amendments. It is not appropriate to cover them all in detail, but what is important is that the case was made for decent accommodation for asylum seekers that promotes their welfare and is based on a recognition of their common humanity.
While to an extent it is true that, as the noble Lord, Lord Horam, said, I am not opposed to accommodation centres in principle, I am opposed to what I think is envisaged. I am sorry if I did not make that clear. It is one thing to have small, homely centres; it is another to have things based on military barracks or their equivalent.
I will refer to what two noble Lords said before turning to the Minister. First, the noble Lord, Lord Hodgson, asked me a specific question about why 100 residents. To be honest, I do not know the answer. The British Red Cross suggested 100 and I have great respect for its work in this area, but the specific number is not important. What is important is that people at such a centre can feel that it is their home for a while. That point was made powerfully by the right reverend Prelate the Bishop of Durham. There is a real danger that big centres—this is what HOPE not hate is afraid of—will attract the kind of hostility that residents of Napier have faced. The noble Lord made the point that it would be easier to accommodate families, but the Minister herself said that this is not the intention; these are not appropriate for families. I have not come up with an actual answer, but the noble Lord, Lord Hodgson, also had the grace to acknowledge that his argument was based on anecdote that people might prefer to be in larger groups. But I have been using the evidence from both research and organisations working on the ground.
I also want to pick out what the right reverend Prelate said, partly because he made an important point at the outset about how, not in all but in many cases, we are talking about future citizens. He made a wonderful remark: he said that we should treat them as
“a gift to us rather than a problem”.
Too much of this debate has been based on the assumption that these people are problems. Please bear in mind what the right reverend Prelate said.
Lord Green of Deddington (CB)
Does the noble Baroness agree that there should be a distinction between those who have had their cases examined and are refugees and those whose cases have not yet been examined? That is all I am asking for.
Baroness Lister of Burtersett (Lab)
No, I am sorry; I do not, because they are all people. We should start by accepting their common humanity, and then we can see how people fare in the system. That is my working assumption and I think it is the right reverend Prelate’s too.
It was helpful that this debate was postponed, because it was originally supposed to have been while the right reverend Prelate was at Napier. In fact, I am supposed to be at Napier today with the APPG. I was struck by what he said and that there have been improvements. That is welcome and we should acknowledge it. However, he said that—I am paraphrasing—despite the improvements, he could not help getting the impression of a prison camp rather than a place of safety. We should be creating places of safety, not prison camps. That is my other working assumption.
I am very grateful to the Minister. She was on her feet responding for nearly an hour and I appreciate how she has really tried to address many of the points made. All noble Lords appreciate that. It is very difficult with so many amendments and so many questions. I am still very worried about children because, despite being pressed, the Minister said that there could be circumstances when children would be accommodated. My fear is that this would open the door, but she said that she would take this away and look at it. We will have to come back to lots of these aspects on Report, that one in particular. If the amendment about children’s education is unnecessary and there is no intention for these centres to provide education, I do not understand why the prior information notice included how they should be able to provide education facilities. I am not asking the Minister to respond now, but perhaps she could look at that.
Despite the Minister’s valiant attempts to answer them, a number of questions went unanswered. I will not push them now, but perhaps she could write one of her famous letters—and make sure that it actually gets sent. I have been asking the Library about one of them and it knew nothing about it, but I am glad it has been sent now. I am also worried about the emphasis on individual assessment, because that is supposed to happen now yet we find that many people in vulnerable circumstances end up in places like Napier. She might want to look at that and we might want to come back to it.
I am conscious that we have spent a lot of time on this and rightly so, because it is such an important issue. I am very grateful to every noble Lord who contributed and to the Minister for her engagement on the issues, even if I am left dissatisfied, because I am not sure we have moved on much further than the Commons in answering the questions asked—even though she tried very hard to do so. I suspect we will come back to at least some aspects of the accommodation centres on Report. Having said that, I beg leave to withdraw the amendment.
Lord Paddick
“Asylum seekers’ right to work
The Secretary of State must make regulations providing that adults applying for asylum in the United Kingdom may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant’s asylum application within 3 months of the date on which it was recorded.”Member’s explanatory statement
This new Clause would require the Secretary of State to make regulations enabling asylum seekers to work once they have been waiting for a decision on their claim for 3 months or more.
Lord Paddick (LD)
My Lords, this is a rare treat: a group with only two amendments. I will speak both to Amendment 64 in my name and to Amendment 65. I am reminded of the phrase “lies, damned lies, and statistics”, but apparently, according to the figures that I have—perhaps we need a Hansard fact-checker, like the BBC has—every year from 2012 to 2019 the majority of asylum seekers in the UK were successful.
Lord Paddick (LD)
There is agreement. In 2019, it was 65%. To prevent such a large proportion of asylum seekers working while their claim is resolved is demoralising, debilitating and expensive—increasingly so as the time taken to process applications continues to increase. The latest Home Office data shows 76% of applications taking more than six months to resolve. The Minister did not have the average figures, but I appear to have them. Figures published by the Independent suggest that more than 1,200 asylum seekers currently in the system have waited more than five years for a decision and 399 have waited more than a decade. That can result in asylum seekers becoming deskilled, leaving gaps in their work experience and long-lasting demotivation. To be willing and able to work but not be allowed to, for months or even years, must be devastating.
Our amendment, supported by the noble Baronesses, Lady Chakrabarti, Lady Meacher and Lady Jones of Moulsecoomb, simply allows an asylum seeker to ask the Home Office for permission to work if their application has not been resolved after three months, instead of the current 12 months. It is intended to establish the principle that it is better for asylum seekers and for society if they are allowed to work. Amendment 65, in the name of noble Baroness, Lady Stroud, goes into more detail, requiring the Home Office to allow an asylum seeker to work without restriction after six months, rather than the current situation where asylum seekers can apply to work. Currently, however, they will only be given permission to work in the types of employment on the shortage occupation list maintained by the Home Secretary. These jobs are very limited and asylum seekers are unlikely to be qualified for them or have recent experience of them. Moreover, asylum seekers are unlikely to be attractive to potential employers while their claim for asylum is being considered. We are currently facing worker shortages in some sectors. Providing asylum seekers with work means they can start to pay their own way in society through tax and national insurance rather than relying on handouts. They are less likely to disappear if they have a job and a steady income.
In November, a cross-party group of MPs and the right reverend Prelate the Bishop of Durham wrote an open letter to the Home Secretary saying it was “nonsensical” that there were people in the UK who wanted to work but were not permitted to do so. They described allowing asylum seekers to work as common sense, fiscally responsible, and enabling those living here to pull themselves and their families out of poverty. The Lift the Ban coalition, which includes businesses, recruitment firms, trade unions and refugee organisations, estimates that removing the ban would save the economy £181 million a year. As I said in the previous group, the key to any successful immigration policy is integration, and allowing people to work is key to their integration into society. It also makes them less likely to be exploited, for example by becoming victims of modern slavery. We support Amendment 65—
Lord Alton of Liverpool (CB)
My Lords, I was trying to intervene on the noble Lord’s speech, and I apologise to him for doing that. As I am also going to be involved in the other business going on in Grand Committee a little later on, I might not be able to be here to hear the Minister’s reply, so I am going to have to forego the opportunity of speaking on this group of amendments. However, I wanted to register my strong support for them, not least because, in 2016, I moved an amendment on the six-month issue and this House passed it by 218 in favour to 195 against. One point that the noble Lord might also like to register is that Article 23 of the 1948 Universal Declaration of Human Rights specifically sets out the right to work. That is something that this House has an obligation to consider, but I thoroughly endorse everything that the noble Lord has said. I should mention that I am patron of Asylum Link Merseyside, which has made representations on this subject.
Baroness Lister of Burtersett (Lab)
My Lords, I will speak to Amendment 65, in the name of the noble Baroness, Lady Stroud. She is very sorry that she is unable to be here today, not least because she feels so strongly about this issue. I hope that the three of us who are supporting signatories will act as effective understudies.
The general case has already been made very persuasively by the noble Lord, Lord Paddick. The main difference, as he explained, between his amendment and this one is that our amendment proposes the right to work after six months, which is the usual time period proposed and is probably more realistic. It also ensures that that right allows an asylum seeker to take up employment on grounds no less favourable than those of a person with recognised refugee status. This means they would not be confined to the highly restrictive shortage occupation list, as they now are when they are finally allowed to work.
It has already been said that there is great support for asylum seekers’ right to work, including from business and the general public. Even the Deputy Prime Minister has said that he is open-minded on the subject. Home Office Ministers repeatedly claim to be committed to refugee integration, a point made by the noble Lord, Lord Paddick. As the Migration Advisory Committee made clear, the right to work after a reasonable period—and I think six months is one—in a job not limited to the shortage occupation list, represents one of the key foundation stones of integration. The committee also challenged the pull-factor argument put forward by Ministers, an issue that we debated at some length on Tuesday, and noted that the recent
“parliamentary statement regarding analysis of the employment ban … contained no evidence on the ‘pull-factor’.
It suggested that,
“To the extent that the Home Office has robust evidence to support a link between the employment ban and a pull factor, they should of course make this evidence publicly available for scrutiny and review. That is how good policy is made.”
In the interests of good policy-making, then, will the Minister now undertake to publish that evidence, because all the evidence that I have seen, including academic studies, does not support the pull-factor argument?
As well as its implications for integration, the denial of the right to work can take a toll on mental health and feelings of self-worth. I recently attended a Zoom meeting at which members of MIN Voices, part of the Maryhill Integration Network, talked about what it meant for them. One talked about his life being frozen; another about being made to feel helpless and useless. The Government should recognise such sentiment, given the weight that they attach to paid work, especially in their social security policy.
I would like to finish by reading a statement from MIN Voices that makes the case much more powerfully than I am able to. It says:
“Remember, we are Human Beings first, and we have dignity. Asylum Seekers who came here had to leave everything behind. Security for asylum seekers is not only shelter and health but also work, the ability to contribute to their own life and other people’s. Who will give back the five years of my life I lost in the asylum claims process? Who will give me back my skills and my health? Not being able to work makes us feel less human. We are living in constant worry, feeling worthless, frustrated, in pain and fearful. Not knowing the future. Not being able to plan for the future. If we can work, it will help with integration and allow us to live in a dignified and a healthy life. If we can work, we will feel less stressed, have a sense of control over our life, have better mental and physical health, and feel at home … Being able to work is important for self-respect and dignity. If we can work, we belong to something and do not live in complete limbo. If we are not allowed to work, if we cannot even study, then what are we allowed to do? When we can work, we could pay tax, look after our families and children. Many of the problems will disappear. See us as human beings not a number.”
That is very relevant to the last debate we had, when we were constantly talking about numbers and forgetting we are talking about fellow human beings.
“See us as human beings not a number. Let us build our life and future and not waste our time and skills.”
So I hope that, like the Deputy Prime Minister, the Minister will be open-minded to the growing calls for this very basic right: the right to work.
Baroness Prashar (CB)
My Lords, I rise to support the amendment tabled by the noble Baroness, Lady Stroud, and supported by the noble Baronesses, Lady Lister and Lady Ludford, and myself. The noble Baroness, Lady Lister, in her usual manner introduced it fully and spoke movingly, as did the noble Lord, Lord Paddick.
As we heard, asylum seekers wait months or even years for a decision on asylum claims, and sometimes decades. This condemns them to poverty, uncertainty and fear. It leaves them in a limbo, experiencing poverty and destitution. If they are allowed to work, this would improve family life, give them better prospects for their lives in the UK, and they would be able to rebuild their lives in the UK and eventually integrate better. It also, of course, as we have heard from the noble Lord, Lord Paddick, makes economic sense. As we have already heard, the Migration Advisory Committee, which advises the Government on migration policy, in December 2021 recommended that the Government should look again at this policy. It also recommended giving asylum seekers the right to work after six months and not restricting them to the jobs on the shortage occupation list. Perhaps the Minister can explain why they are not paying heed to the advice of their own advisory committee?
The committee also states that the argument that this right would be a pull factor, as we have heard already, is not supported by evidence. The benefits of allowing asylum seekers to work outweigh the unfounded fears expressed by the Government. Therefore, I urge the Minister to accept this amendment, which has very wide support.
Baroness Chakrabarti (Lab)
My Lords, it is an absolute pleasure to follow both my noble friend Lady Lister of Burtersett—who is hard working to the point perhaps of being a Stakhanovite—and also the noble Baroness, Lady Prashar. I have added my name to Amendment 64 from the noble Lord, Lord Paddick, but I support the thrust of both of these amendments. I think this is a total no-brainer—forgive me, I really do. I have always thought this. I have been working around this area all my adult life and I have never understood the logic of Governments of both persuasions, over the years, prohibiting this category of humanity from working, at the same time as trying to get other categories to “jolly well get on and work”, not be dependent on the state and not be dependent on benefits: “Don’t be scroungers—just get out and work”. It seems so illogical to have this strange bifurcation.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is a pleasure to follow the noble Baroness, Lady Chakrabarti, except that she dropped me into a group that I have never considered myself to be part of: that of post retirement. As to whether or not it is a pleasure to be working here, obviously it is an honour, and clearly it is better to be able to shout across the Chamber than at the television or radio. Is it good for my blood pressure? Probably not.
However, it is a pleasure to have signed the amendment in the name of the noble Lord, Lord Paddick, and other eminent noble Lords in this Chamber. For me, banning people from working is just one of the many ways that the Government dehumanise and punish asylum seekers. I honestly cannot see the logic behind it. Why would we not want them to work? Why would we not want them to play a role in society? Why would we not want to engage them and get them out of the probably dreadful accommodation that they are living in? Where is the logic in not letting them work? It will leave them destitute, which is not healthy for them or for us—though I suppose it is slightly better than sending them back to face persecution in their home country.
This Government are not brave enough. They pander to the right-wing parts of their own party and the country, and constantly use nationalist rhetoric to divide and rule. The Conservative Members of the House of Lords are better than that—and some of them do argue against what the Government say. On this occasion, this side of the Chamber is absolutely right: asylum seekers should be allowed to work.
Baroness Ludford (LD)
My Lords, the case for asylum seekers being able to work after a few months is compelling. I am sorry that we have not heard from the noble Baroness, Lady Stroud, but I perfectly understand why she is not able to be here. Amendment 65 was admirably moved by the noble Baroness, Lady Lister.
In the debate on Clause 11, several noble Lords invoked public opinion, saying that it was wary of immigration. I suggest that obliging asylum seekers to be idle, existing in some cases on taxpayer support, is a surefire way to prejudice public opinion against them, especially those apparently fit young men who have been demonised recently. The noble Lord, Lord Alton, reminded us that the 1948 Universal Declaration of Human Rights has a provision of the right to work, and I thank him for reminding us of that.
Lord Alton of Liverpool (CB)
The noble Baroness made a very important point about public opinion. I draw her attention to a study by British Future which found that 71% of the public support the right to work after six months.
Baroness Ludford (LD)
The noble Lord has taken the wind out of my sails; I was going to quote that statistic, though I must admit I did not know it came from there. I got it from the splendid Lift the Ban organisation.
If the majority of people who seek asylum are ultimately found to be entitled to stay here as refugees, after either an initial decision or an appeal, how demoralising and frustrating for them to then be excluded from employment, and be unable to help support their families or to deploy and develop their skills, possibly for several years, or even a decade, as we have heard, while knowing that the host society may regard them as freeloading layabouts. It is of course a waste of a resource.
This is not just a leftie, Liberal cause. Not only was Amendment 65 led by the noble Baroness, Lady Stroud, from the Benches opposite, but everyone has already spoken about the Migration Advisory Committee report, and I assume it is not going to be accused of being some leftie, Liberal outfit. As has been said, the MAC has told the Home Secretary that there is clear evidence of harm being caused by the job ban, particularly in the context of a rising number of claimants waiting for more than six months for determination of their claim. The Government argue that the ability to work would be a pull factor, but the MAC says that Ministers have failed to provide clear evidence to support this contention, and that it would instead be good policy to assist asylum seekers to “integrate well into society” by letting them work while their cases are decided. I will not delay: I was going to give the same quote that the noble Baroness, Lady Lister, did—I jumped the gun and cited it the other day—about the Home Office needing to provide robust evidence because that is how good policy is made.
Amendment 65 has the advantage of requiring permission to work to be granted after a wait of six months. That is stronger than the drafting of Amendment 64, which empowers someone to apply. Ideally, I would like an Amendment 64.5, allowing someone to work after three months but with the drafting of Amendment 65 on requiring permission to be given. The second element in Amendment 65 is that it would not limit the type of work that asylum seekers could undertake, unlike the current policy of restricting them and then, after 12 months—which is too long—using the shortage occupation list. That list is narrow, and many asylum seekers would not have relevant experience or qualifications.
As other noble Lords have said, it is extremely odd—indeed illogical—that the Government want to keep asylum seekers in enforced welfare dependency while, as shown by this morning’s Answer from the noble Baroness, Lady Stedman-Scott, to the Oral Question from the noble Baroness, Lady Lister, defending imposing benefits sanctions after four weeks on unemployed jobseekers who failed to take a job. Why then not allow asylum seekers to work? Most of us would support people trying to get a job, although there can be argument about the policy of the Government.
On Tuesday, the noble Lord, Lord Horam, and others impressed on us the need to take account of public opinion. To repeat, the ban on work makes asylum seekers the potential butt of ignorant jibes that they are lazy scroungers. Some 71% of the public support the right to work after six months. The right to work is a win-win policy. It would save the taxpayer £200 million a year. It would help remedy a labour shortage. I had in my notes that it is a no-brainer, so I agree with the noble Baroness, Lady Chakrabarti. I very much hope that the Government will respond positively.
Baroness Meacher (CB)
My Lords, I support Amendment 64, to which I have added my name. I also strongly support Amendment 65.
The right to work—and the lack of it—for asylum seekers has concerned me for a very long time. I am rather relieved finally to be able to say so. I strongly support the comments already made in excellent speeches by other noble Lords. I shall try to avoid duplication.
First, the current law forces people to try to live on £39.62 a week. We all know that this is completely impossible. Utility bills, council tax, food, transport—you name it—cannot be paid for on this sort of money. These people are forced into something that they would never dream of doing in any other circumstances. It also prevents them from earning and paying taxes. Why would the Government force able-bodied workers to be unemployed and draw benefits at a vast cost to the taxpayer? Actually, the cost is not vast; these are trifling amounts of money, but it is a cost to the taxpayer. The cost to the community is considerable. As others have said, in many cases, these effects last for a very long time.
The Government say that they have undertaken a review of the policy. I believe they have not published the results, nor given any estimate of cost. Can the Minister inform the House whether their review considered the number of normally law-abiding asylum seekers who have been driven to crime by this policy? This is the worst possible thing a Government can do. All the asylum seekers want to do is to earn, pay taxes and lead a good life. Instead, they feel that they have to do something they have never done in their lives before and never dreamed that they would do: commit crimes. Perhaps the Minister can tell us the estimated cost in the review, and whether that includes the cost of courts, prisons and police in dealing with the crimes that these people absolutely do not want to commit.
Believe it or not, 40 years ago I wrote a book about the consequences of a similar sort of policy—a rule which deprived single people of benefits after four weeks. My research showed that the rule caused a dramatic increase in crime among that population. Government officials asked for a copy of my manuscript before I published the book. The policy was immediately scrapped. It did not help the sales of my book but, nevertheless, it was worth doing. I feel that this policy has to be scrapped for exactly the same reason. Noble Lords have pointed out all sorts of other reasons, but there cannot be a government policy which drives people into crime. Continuing it cannot be justified.
My second question concerns the basic cost to the Exchequer. The voluntary sector has come up with a figure of £194 million a year. I believe this is a massive underestimate. I am quite sure the cost is far more than that when all the unintended consequences are considered—if you want to put it that way.
The noble Lord, Lord Paddick, and others have already dealt with the pull factor. We have the evidence. Asylum seekers who are desperate to get away from persecution, rape and other ghastly things—you name it—do not even think about the detail of what there will be when they arrive at the other end. It is just a European country. If I may say so, the pull factor is rubbish, rubbish, rubbish. If it made any sense, it would be the only possible justification for this policy. I implore the Minister to go back to colleagues and see what she can do.
Lord Bethell (Con)
My Lords, it is quite daunting to follow the noble Baroness, Lady Meacher. I very much hope that she will not be driven to writing a book about this, although if she did, maybe we would see some change.
I shall speak to Amendment 65 in the name of the noble Baroness, Lady Stroud, with the support of the noble Baronesses, Lady Lister, Lady Ludford and Lady Prashar. As has been discussed, this aims, quite rightly, to introduce the right to work for asylum seekers who have been in the UK for more than six months.
My noble friend the Minister will know the gist of my argument from my comments on Tuesday. I am grateful for her forbearance then. Suffice it to say, I believe that this amendment is a matter of complete common sense. It is exactly the sort of policy that should underpin global Britain’s new immigration system.
This is a moment when we have to decide who we are as a nation. We want an immigration system that takes back control—one where the British people can see that we are trying to manage our borders and are actually doing so. They can also see that we have compassion for those in need when we, as a nation, have so much already.
This is not a niche opinion. I note that all wings of the Conservative and Labour Parties, the Liberal Democrats, other Cross-Benchers and the Deputy Prime Minister support the extension of the right to work for asylum seekers.
The arguments for this right to work are overwhelming. I will restate a couple of them. I hope that it will be helpful to hear them from these Benches. First, as the noble Lord, Lord Alton, said, the latest figures show that 125,000 people are waiting for asylum decisions. Every study shows that the net benefit to the state would be in the tens or even hundreds of millions of pounds a year in increased tax take if this measure were enacted.
The UK economy is recovering after Covid. A lot of jobs have been created but this has, in turn, created labour shortages. It makes no sense whatever for asylum seekers who can drive HGVs or serve in the NHS to be forced to sit around doing nothing for over a year while they await a decision from the Home Office. The noble Baroness, Lady Chakrabarti, made that point very powerfully.
Secondly, there is very persuasive evidence that the right to work has a large, positive impact on the integration of asylum seekers who successfully settle. As other noble Lords have already mentioned, the Government’s Migration Advisory Committee recently underlined that shorter waiting times have a large, positive impact on long-term employment outcomes for asylum seekers.
As noble Lords have noted, these measures have overwhelming public support. I will mention one niche statistic. According to recent polling, 73% of red wall voters questioned support a right to work. As others have mentioned, business leaders back the easing of the ban on the right to work.
There is a basic human dignity argument for this policy. I believe that every individual should be able to support themselves and their family. I would go further and say that, as Conservatives, we believe that every family has a personal responsibility to do so where they can. I have often made the argument that work is the best route out of poverty. The aim and intention of this amendment are to do precisely that: let people support themselves and create their own pathway from poverty to prosperity while they wait for the decision.
The lack of the right to work leaves people vulnerable to exploitation, declining mental health, poverty and modern slavery. If the human dignity arguments do not seal the deal, the amendment could also be viewed as purely pragmatic. Reforms to the asylum system proposed through the Nationality and Borders Bill will take time to come into full effect. In the interim, while asylum cases are being processed, the asylum system continues to be under considerable strain. By offering asylum seekers the right to work, the Government would take pressure off themselves.
I anticipate that the Minister and other colleagues might be inclined to respond to this amendment using the pull factors argument, and I know others have addressed it. However, let me address those points from these Benches. First, it is push factors such as war and famine which drive refugees to these shores, not pull factors. If there are any pull factors, they are those which encourage people to come to the UK: our language, culture, rule of law, democracy, historic ties through the Commonwealth, family connections, and liberty, not the welfare payments.
It is worth noting that the UK is currently an outlier in enforcing a 12-month wait period for work and then placing long restrictions on which employment can be taken up. No other nation across Europe, USA, Australia or Canada has such stringent requirements. It is worth asking why they have not considered the right to work to be a pull factor. This view is totally backed by the experts. The Migration Advisory Committee underlined that there is no evidence in academic research that people decide to claim asylum based on these kinds of factors. The Home Office commissioned a study, which others have mentioned, that also shows that there is little evidence of this.
All of this is to say that I believe the Government could quite legitimately, without nervousness and in line with their poverty strategy for families working their way out of poverty, adopt this amendment that allows asylum seekers to work after six months of being in the UK.
Lord Green of Deddington (CB)
My Lords, we have heard eight speakers on one side of this debate, and I think a word is in order from the other side. We are back to the same point: should we or should we not assume that all those who come here to seek asylum are genuine? It is, to me, no answer to reply that we are all human. Of course we are, but so are the population of this country and the constituents of those who were MPs.
In the medium and longer term, any asylum system has to have the support of the public. That could be brought into doubt if they saw increasing numbers of mainly young men arriving in this country, as others have mentioned, in a very visible fashion. As for public opinion, that will depend very much on the outcome of the next months and years. If that is a bad outcome from the point of view of numbers—numbers who are not perhaps genuine—that will decide itself.
Baroness Lister of Burtersett (Lab)
I am sorry to interrupt the noble Lord, and it may be that he was going on to acknowledge this, but the noble Lord, Lord Alton, and I think the noble Baroness, Lady Ludford, quoted actual public opinion surveys which showed big majorities in favour of the right to work for asylum seekers.
Lord Green of Deddington (CB)
Yes, I heard that opinion poll mentioned a couple of times. I would actually like to see the question and the context in what it was put. Any opinion poll needs to be looked at very carefully, but it may well be the case—I do not know, I have not looked at this particular one—if you ask the public that question today, they will say “Okay, sounds sensible”. What I am saying is that, if we set the asylum system in such a manner that the numbers will increase significantly month after month and year after year, that will change. So we need to be careful about what we do with this amendment at this point.
We know that the system is already under considerable pressure; we have talked about that. We know that the present conditions on work are very tight, as other noble Lords have mentioned. They are deliberately tight. The case must have been undecided for 12 months —there are far too many of those now—and the job must be on the official shortage occupation list, which is barely relevant to the qualifications of most asylum seekers.
My argument is that it would be a serious mistake to abolish both these requirements as the amendment proposes. It would make for a very clear incentive to spin out the claims process—not that they need to at the moment, but in the longer term—to get permission to work in any capacity. With the current delays in the system, additional numbers would get permission, thus adding to the pull factors at the channel.
Baroness Chakrabarti (Lab)
I know that the noble Lord is concerned about asylum seekers who turn out not to be recognised. No doubt he is even more concerned about the smaller proportion of them who may be wicked people in some way. Does he acknowledge that wicked people who are convicted of crimes in this country, even those who go to prison, are allowed to work? Does he consider that a pull factor or an incentive to commit serious crime?
Lord Green of Deddington (CB)
I do not see the relevance of that question.
Let me conclude, if I may. As we discussed earlier in this debate, the Government’s asylum workload has tripled from 40,000 cases in 2012 to 120,000 cases in 2021. Furthermore, nearly half of all cases awaiting an initial decision have been waiting for 12 months or more. In the present situation, they would in any case get permission to work. However, it is vital for these delays to be tackled. On that point, the noble Baroness, Lady Chakrabarti, and I are agreed. It makes no sense to me to adjust the immigration system to encourage delay. This Bill contains some useful measures designed to speed up the asylum process, and they should be supported.
Lord Coaker (Lab)
My Lords, I rise to support Amendment 64 and 65. Before I specifically speak to them, I say to the noble Lord, Lord Green, that at some point in this Bill we are going to have to have a debate in this Chamber about the idea that this is a debate between those on the side of the public and those of us who are some kind of middle-class liberal elite who do not care about the opinions of the public—who believe that we need a draconian system to try to deal with this—because that is not what this debate is about. It is a caricature of the Government’s position and of those of us who oppose what the Government are doing.
We are saying that many of the policies being put forward by this Government to deal with the problem as they see it simply will not work. They go too far sometimes and compromise some of the principles every Member of this House would agree on. That is the clash. At some point we will have a debate about this, although perhaps there are other groups of amendments where it is more appropriate. I say again, there will have to be debate between those who—to be fair to the noble Lord, Lord Green—think they represent public opinion on this, and people like me who think he has got it wrong.
As part of the middle-class liberal intelligentsia—maybe not the intelligentsia, but the elite—let me say that I very much support that. Let me say why. As we stand here now, debating this, there are tens of thousands of asylum seekers who have applied for asylum in this country who have been waiting for a decision for more than a year. There are so many statistics sometimes you drown in them and are not sure which are actually right, so I will quote the Joint Committee on Human Rights, as it is slightly different to my own statistics. It says:
“approximately 65% of asylum applicants awaiting initial decisions had been waiting more than six months and that the average time to make an initial decision is now more than a year”.
That means tens of thousands of asylum seekers are waiting to have their application determined.
It would be interesting to hear from the Minister about the Home Office’s assessment of how long this is. Are there thousands of people waiting two years? When I was a Member of Parliament, people would sometimes come to me whose asylum claim had been neither agreed nor disagreed. They had actually disappeared and were there, and had been there for years and years. Now nobody wants that system. It’s ridiculous; of course nobody wants a situation that works like that. The reason I labour this point is that it goes back to the debates on the last group. The key to this issue is speeding up the process. We cannot have a situation where people are languishing for months and years before a decision is made. To be fair, the Minister believes that what the Government are proposing will speed up the process. I hope that they are right, but I do not think that they are. This is what bedevils the asylum system; it is not fair to the country, the public or the asylum applicants themselves. That is the basis of it.
Then you are left with the question of how you deal with this problem and what you do about it. At the moment, the Government’s position is that you have to wait a year before you can apply to work and then, if you do, you can work in specific occupations and jobs. I go back to the point made by my noble friend Lady Chakrabarti—supported I think by the noble Lord, Lord Bethell. The problem then becomes the denial of the opportunity for asylum seekers to work unless they have been here for a year. The community cohesion impact of that is enormous. What happens is that people then look at it and say, “What are they doing?” Noble Lords know the things that people say. “They’re not working. They’re not doing anything. They’re living on benefits. It’s about time they got out and did something”. Yet that is exactly what they want to do. Then some of them go out and work illegally, and they undercut the wages of legal workers or are employed in various occupations that we know about. So the whole system is undermined. To be fair, the last Labour Government did it. We introduced it, actually. I say to the Minister that, working in the Home Office, if she ever comes to this side, she will find quoted back to her things that she agreed to. So I accept that, right at the beginning of 2002, I think, we introduced this legislation for the same reason: we were worried about it being a pull factor.
But, if you look at it, where is the evidence? It clearly has not been, because it has not stopped asylum taking place—in fact, it has gone up. I will be fair and honest about it. My noble friend Lord Blunkett has done it once or twice in here, to his credit. Sometimes you introduce a policy with the best intentions—but what do you do if it does not work? Carry on? Do you just blindly say, “Well, it hasn’t worked but we’re going to carry on with it”? In supporting these amendments, we are saying to the Government that we have a policy that undermines community cohesion and does not work.
We then have the ludicrous situation where we have a Statement made by the Minister in the other place where he will not even publish the evidence for why the Government will continue with the current policy. He just refuses to publish it. So the Home Office has a review and does not publish the evidence. Then its own advisory committee says, “You’re wrong—you should do, and the policy is wrong anyway”. So the Government then turn around and say, “That’s ridiculous. We don’t agree with you”. They do not say why—other than that it is the pull factor. But then they do not publish the evidence that says that it is the pull factor.
It is not only that. I looked to see whether there was anybody else and found out that the Independent Anti-slavery Commissioner said:
“As the Independent Anti-Slavery Commissioner, I am aware of the harm caused to survivors of modern slavery and human trafficking unable to access training and work opportunities while they face delays in asylum status decisions.”
So the Independent Anti-slavery Commissioner is wrong as well.
So, to answer this, I say that the Minister does not want to penalise asylum seekers, but this is ridiculous. We have public policy that is not working and is undermining community cohesion and a government response that simply says, “We don’t agree with all the people who disagree with us but we’re not going to tell you what the evidence is to support that, because it’s the pull factor”—
Lord Green of Deddington (CB)
I am a bit puzzled. Although the precise numbers vary from year to year, it is quite clear that substantial numbers—30%, 40% or 50%, depending on which year you take—turn out not to have a case for asylum in this country. Surely that should be a factor. Surely the way forward is, as the noble Lord proposed when he first spoke, to speed this situation up so that we can get the answers within the six months, which would be much better for everybody. Surely that should be the centre of their policy.
Baroness Ludford (LD)
Can I intervene on an intervention? What is wrong if those people are allowed to work? If it is then determined that they have no right to stay, they would then have to leave—but, in the meantime, they are supporting themselves, perhaps using their skills and contributing tax. If they are then found not to have a legal claim to stay, so be it. I cannot see what the harm is in the meantime.
Lord Coaker (Lab)
I say to the noble Lord, Lord Green, that, at the end of the day, of course you want to speed the system up. No one does not want to speed up the asylum application process—to say that would be ridiculous, because of course everyone does. What I am saying is that, as the noble Baroness, Lady Ludford, has just said, at the same time, for the purposes of community cohesion and all the other things that we have heard, allowing asylum seekers to work while their application is being processed is actually a sensible thing to do. But the Government will not publish the evidence for why that is a pull factor, when the policy has been in place since 2001 or 2002 or whatever and has not made any significant difference at all. So all sorts of people and organisations support the right to work, which seems a sensible and reasonable thing to do.
I will finish by saying one simple policy to the Minister. I like to see people off benefits; I do not want to see people languishing on benefits. I thought that was a Conservative Government policy. One of the ways of doing that is allowing people to work: it aids community cohesion and is good for the individuals concerned. I simply do not understand why the Government are turning their face against what is a sensible policy initiative that would do a lot for community cohesion.
Baroness Williams of Trafford (Con)
My Lords, I again thank noble Lords who have spoken on these two amendments. The fact that there were only two amendments in this group did not make the debate any less fulsome.
I will say at the outset that the conclusion on right to work was made primarily on the grounds not of the pull factor but of the integrity of the labour market, and an impact assessment will be published on this in due course. But the noble Lord, Lord Coaker, is absolutely right that the policy has been in place since 2002. He says that things have not changed in that time in terms of people still wanting to come to this country, but I think that the global situation to draw people to this country probably has changed since 2002. I do not say that in a mischievous way at all—the world has changed and, therefore, people are more likely to want to come to this country, particularly when the economy is so good.
The noble Baroness, Lady Ludford, and the noble Lord, Lord Green of Deddington, talked about polls, but I will not go into the merits and demerits of them: they are what they are and, as the noble Lord, Lord Green, said, it depends on the question that you ask. But the biggest poll that we have had in recent years was of course the 2019 general election, and that point about taking back control of our borders was at the heart of it.
Our current policy allows asylum seekers to work in the UK if their claim has been outstanding for 12 months, through no fault of their own. However, as the noble Lords, Lord Green and Lord Alton, were absolutely right to say, the best way to deal with people’s claims being outstanding for 12 months is to speed the process up in its entirety.
Lord Kerr of Kinlochard (CB)
I support these amendments, because they are good economics and good social policy, but if the Government resist them and insist that those people may not work, we are under a duty to make sure that sufficient subsistence money is paid to them to keep them alive. We pay them about £40 a week. Could the Minister get by on £40 a week? I know that I could not. It is £39.63 today; it is going to go up to the princely sum of £40.85 a week, an increase of 17p a day. My elementary maths makes that an increase of just about 3%; inflation is running at about 5.5% to 6%. Why have we increased it by such a small sum?
Baroness Williams of Trafford (Con)
My Lords, it is based on a calculation. I shall not try to bluster my way through what that calculation is, but I shall get the details to the noble Lord. As I said to the noble Baroness, Lady Meacher, people who are destitute will have things like council tax and utility bills paid for them by the Home Office.
Baroness Lister of Burtersett (Lab)
I hate to say it, but I have just checked my phone and there is no evidence there of that letter having arrived.
Baroness Williams of Trafford (Con)
My Lords, we often say that we will not provide a running commentary, but I will provide a running commentary on said letter. When we break for the Statement at 3.30 pm, I shall look to the Box as to the whereabouts of the letter —which I did clear some time ago.
Lord Paddick (LD)
My Lords, we have the famous Dubs letter; I do not know why others have not—maybe it was sent to selected recipients.
I thank all noble Lords from all sides of the Committee for their support for these amendments—with the exception of the noble Lord, Lord Green of Deddington, whose case seemed to be that public opinion polls in the future might turn on their head from where they are now, with 70% of the public supporting asylum seekers being able to work, and that might be a minority rather than a majority.
I am losing patience with the noble Lord, Lord Green of Deddington. When he intervened on my opening remarks he accepted that, from 2012 to 2019, the majority of asylum seekers were successful in their applications and that, in 2019, 65% were successful. But in his speech, he maintained that the majority of asylum seekers’ claims were not accepted. It is getting difficult.
The Minister talked about an impact assessment in due course on the effects on the labour market of this change. What is the Migration Advisory Committee for if it is not to advise the Government on the likely impact of changes in migration policy? The MAC recommends that asylum seekers are allowed to work. The Minister claimed that if the amendments were accepted, it would go against what people voted for in 2019. Is she really saying that in 2019 people voted not to allow asylum seekers to work, particularly in the light of the evidence of opinion polls showing 70% support for the contrary?
The Minister seemed to claim that allowing asylum seekers to work was a pull factor, but then said it was complicated and more research was needed. If there is evidence that allowing asylum seekers to work is a pull factor, what is it? She talked about other countries making the UK appear more attractive to asylum seekers, yet we have already heard that the UK is an outlier in terms of most other European countries allowing asylum seekers to work. How does that happen? She also said that European countries that allow asylum seekers to work still provide them with accommodation. Asylum seekers could pay for the accommodation that they are provided with if they were allowed to work.
The Minister’s explanations are not acceptable and we will return to this issue on Report. At this stage, I beg leave to withdraw the amendment.
“Prescribed period under section 94(3) of the Immigration and Asylum Act 1999
(1) The Asylum Support Regulations 2000 (S.I. 2000/704) are amended as follows.(2) In regulation 2(2) (interpretation) for “28” substitute “56”.(3) Subject to subsection (4), this section does not prevent the Secretary of State from exercising the powers conferred by the Immigration and Asylum Act 1999 to prescribe by regulations a different period for the purposes of section 94(3) (day on which a claim for asylum is determined) of that Act.(4) The Secretary of State may not prescribe a period less than 56 days where regulation 2(2A) of the Asylum Support Regulations 2000 (S.I. 2000/704) applies.”Member’s explanatory statement
When an individual is granted refugee status, their eligibility for Home Office financial support and accommodation currently ends after a further 28 days. This amendment would extend that period to 56 days or allow the Secretary of State to set a longer period.
Baroness Lister of Burtersett (Lab)
My Lords, Amendment 66 is also in the names of the noble Baronesses, Lady Hamwee and Lady Jones of Moulsecoomb, whom I thank. I speak at the risk of being called a Stakhanovite by my noble friend Lady Chakrabarti.
The aim of the amendment is to extend from 28 to 56 days what is called the moving-on period, which sets a deadline by which those recognised as refugees are required to move on from asylum support to mainstream social security support and housing. As I said the other day, it feels like Groundhog Day, because I think it was six years ago that the noble Baroness, Lady Hamwee, and I first raised the difficulties created by the moving-on period during the passage of what became the Immigration Act 2016. I have lost count of how many times I have raised it since but have certainly had at least one meeting with the Minister about it. I pay tribute to the British Red Cross for continuing to press the issue with us.
The case for the change rests on the fact that it is extremely difficult for newly recognised refugees to make the transition to mainstream support in 28 days. Not only do they have to sort out all sorts of complex administrative issues that would try any of us at the best of times, and not only does research by the BRC and others show that it is virtually impossible to achieve within 28 days, but there is also a basic incompatibility between a moving-on period of 28 days and the 56 days that local authorities usually have to support those at risk of homelessness and the 35 days it takes from application to receipt of a first universal credit payment. In case the Minister has been briefed to respond to this issue, I point out that an advance payment that has to be repaid out of basic benefit is not an inviting prospect for someone already on the breadline.
Baroness Hamwee (LD)
My Lords, I am glad to have my name to this amendment. I am aware—to use the rather odd language of this House—that lunch-hour business is to come, although neither “lunch” nor “hour” is accurate. I could just use the first line of my notes, which reads “Lister—double tick.” I will say only a very little more. Joining up 28 days, 35 days and 56 days does not take a genius—and even if it did, it has been proven by experience that it does not actually work.
I am looking to see whether there is anything the noble Baroness has not said. In terms of integration for the individual, the family and the community, underlying this amendment is not just support for the individual but the importance of self-sufficiency—this is quite similar to the previous debate—as a component of integration, and not being dependent on the state. Integration and contribution to community and society go hand in hand.
I have one further point. The Minister mentioned the charity Migrant Help in a previous group. As I understand it, it can give advice; that is not the same as providing dosh—the funds that are needed. That seemed to be the implication in that debate. However, I congratulate the noble Baroness, Lady Lister, on her persistence. I am glad to continue to be one of her terriers.
Baroness Jones of Moulsecoomb (GP)
Am I a terrier as well? I think of myself as a larger animal, but a terrier will do. There is almost nothing left to be said. I am delighted to have my name on this amendment. The noble Baronesses, Lady Lister and Lady Hamwee, have said virtually everything, but I would like to say a couple of things.
In spite of our rather uncertain economic situation—if anyone from the opposing side wants to say that it is all terribly healthy, a Radio 4 programme more or less corrected that conceit yesterday; we have a slightly unhealthy economic situation, and it is not as good as people in the Government claim—we are still a rich country. We ought to show a little more generosity to people who have lost virtually everything, not to mention the fact that we have often caused the instability that forced them to leave their homes. Whether it is Afghanistan, Syria or other countries, when we have sold weapons, invaded or, as I have said before, used fossil fuels to the extent that we continue to do, we have destabilised many countries throughout the world. We have a moral obligation to behave better and take in refugees. This amendment is worthy of acceptance.
Lord Paddick (LD)
My Lords, however undesirable accommodation centres may be, being thrown out on to the street as the first acknowledgement by the state that it has accepted your claim to be a refugee is not acceptable. The current limit of a 28-day transition has proved in practice not long enough for all refugees to avoid homelessness and destitution. Amnesty and Migrant Voice point to the fact that it takes time to find alternative accommodation, open a bank account and find a job, particularly if refugees have been prevented from working while their applications are considered, which in itself makes it more difficult for them to find work.
The limit is therefore more likely to result in refugees having to rely, at least initially, on benefits, which take time to apply for and to come on stream. It also takes time to readjust from the trauma and anxiety caused by the war or persecution from which they have fled or by the often hazardous journey to the UK and the uncertainty of whether they will be granted asylum.
Twenty-eight days is simply not long enough. This amendment extends that transitional period to 56 days, with the Secretary of State being given discretion to extend it further. We strongly support it. I say to the noble Baroness, Lady Stowell of Beeston, who looked aghast when I said I was losing patience with the noble Lord, Lord Green of Deddington, that the noble Lord and I have had words offstage and we are all good.
Baroness Stowell of Beeston (Con)
As the noble Lord has mentioned me by name, I feel duty-bound to respond. It is far from my responsibility to feel in any way concerned for the noble Lord, Lord Green, but I am pleased that he and the noble Lord have been able to come to some kind of resolution.
The reason I looked aghast was because I feel—I have listened to a lot of these debates over the last few days—that whenever anybody raises any opinion which is not widely held by those moving amendments or supporting them, there is a tone and reaction which I do not think becoming of your Lordships’ House. We have to be as courteous and considerate to those with whom we disagree on this topic as to those with whom we agree.
Baroness Jones of Moulsecoomb (GP)
The noble Baroness is absolutely right, except that those who interject constantly with tiny, mean little points also ought to respect the House and perhaps be courteous to everybody else. It goes both ways.
Lord Coaker (Lab)
Coming from where I have, it seems incredibly courteous to me. We have Ministers who try to answer questions, which is refreshing. However, I take the point—the noble Baroness is absolutely right in what she said.
This is an important little amendment, which I support, in the names of the noble Baronesses, Lady Lister, Lady Hamwee and Lady Jones. It is not a party-political or ideological issue but a question of administration and removing a totally avoidable obstacle for people granted asylum in the UK. The British Red Cross is campaigning for it. The 28-day move-on period is simply not long enough to put basic arrangements in place. It leaves people facing avoidable poverty, and we should be able to do better. I remind the Committee that we are talking about people who have been granted asylum, not those waiting for their decision.
I believe we can go on a couple of minutes past 3.30 pm, but I will not detain the Committee for very long. The Minister, Tom Pursglove MP, gave a couple of answers in the other place that I did not quite understand. He did not disagree that there was a problem, saying:
“We are aware of reports that some refugees do not access universal credit or other benefits, or adequate housing, within 28 days.”
He went on to say that extending the period to 56 days, as the amendment suggests, would not fix the problem but he did not say why. He said there was a problem, but that extending the period would not do anything about it. Can the Minister elaborate on why the Government believe there is a problem but that extending the time limit would not make any difference? He also gave no response to the points raised on cost savings to local authorities and the benefits to the public purse of extending the time limit, lessening homelessness and the use of temporary accommodation. He gave no answer to any of those questions.
Finally, Mr Pursglove said that
“we must also consider the strong countervailing factors that make increasing that period difficult”—[Official Report, Commons, Nationality and Borders Bill Committee, 4/11/21; cols. 666-67.]
but he did not say what they were. He just stated it. Knowing our Minister as I do, and knowing that she does try to answer questions, I say that it is not really acceptable to make a statement as a point of fact without some evidence to support it. The Minister in the other place accepted that there was a problem with 28 days but did not say why extending it would not solve this. He just said, “Yes, there is a problem”, almost as a shrug of the shoulders. This important little amendment seeks to help those who have been granted asylum deal with their transition into the life we all want them to have.
Baroness Williams of Trafford (Con)
My Lords, again, I thank noble Lords who have made points. I will attempt to assist the noble Lord, Lord Coaker, on the extension. First, I will say that I am glad the noble Lord, Lord Kerr, is in his place—I hope noble Lords will indulge me; because different amendments are bleeding into different groups, I know noble Lords will not mind. The basic approach to the asylum support calculation is based on the essential needs of the claimant—but I will get him more detail and perhaps more of a breakdown if that is what he would like.
I also say before we start that I agree with my noble friend Lady Stowell: I disagree with many points that people make, but I hope I always approach the House with courtesy. I know the Committee generally does not agree with the noble Lord, Lord Green of Deddington, but I must admire his tenacity in coming to this place, week in and week out, and making points that a lot of people do not agree with—I feel like that sometimes. That is a light-hearted point, rather than a point for debate.
Lord Paddick (LD)
My Lords, perhaps I could just explain to both noble Baronesses that it was facts that were in dispute, not opinions. I actually agree with a lot of what the Lord, Lord Green of Deddington, says about immigration as a whole, and I would not want that misconstrued.
Baroness Williams of Trafford (Con)
That is not in dispute; I was just echoing the point made by my noble friend Lady Stowell about respect, because I think it is always a good thing to be promoting.
I too listened to “More or Less” yesterday—the programme that the noble Baroness, Lady Jones of Moulsecoomb, referred to—and I think the conclusion was that it depended on how you looked at it. So everyone was right and everyone was wrong, all at the same time; I think that was the conclusion. But I very much enjoyed listening to that calculation.
Anyway, before I cause any more controversy, I will start by saying that it is very clear that individuals leaving asylum support following a positive immigration decision receive the assistance that they need to obtain other housing and apply for other benefits, such as universal credit, that they are entitled to. We do not think it is sensible to increase the length of time they remain eligible for asylum support from 28 to 56 days, and I will explain why.
The asylum accommodation estate is under huge strain and demand for normal asylum dispersal accommodation —that is to say, flats and houses obtained from the private rental market—is exceeding supply. The only way to meet this demand has been to use hotels, and there are currently around 26,000 people accommodated in them. A programme of work is under way to drive down the use of hotels by obtaining more dispersal accommodation and introducing accommodation centres. This clause would impede this work—I hope that answers the question put by the noble Lord, Lord Coaker, about “Why not 56 days?” In simple terms, the longer that successful asylum seekers remain in asylum accommodation, the fewer beds will be available for those entering the asylum system, including those temporarily accommodated in hotels at great expense to the taxpayer.
We are aware of reports that some refugees do not access UC, as it is called, or other benefits or adequate housing within 28 days. The reasons for this are complex, but the problem is not solved by increasing the 28-day move-on period, for reasons I have explained, and that is why our focus has been on implementing practical changes with the aim of securing better outcomes for refugees within the 28-day move-on period. The noble Baroness, Lady Lister, talked about some of the things that have been done during the pandemic that have actually improved the situation. These include ensuring that the 28-day period does not start until refugees have been issued with a biometric residence permit, the document that they need to prove that they can take employment and apply for universal credit, and that the national insurance number is printed on the permit, which speeds up the process of deciding a UC application.
We also fund Migrant Help which, as noble Lords will know, is a voluntary sector organisation that contacts refugees at the start of the 28-day period and offers that practical, move-on assistance, including advice on how to claim UC. I think this is a big change from the last time the noble Baroness and I spoke on the subject. We offer advice on the importance of an early claim; on other types of support that might be available; on booking an early appointment at their nearest DWP jobcentre, if needed; and on how to contact their local authority for assistance in funding alternative housing. We did evaluate the success of the pilot scheme that booked an early appointment with the local jobcentre for those who wanted one. The evaluation showed that all applicants for UC in the survey received their first payment on time—that is, 35 days from the date of their application—and that those who asked for an earlier advance payment received one, although I take her point about the advance payment. This assistance is now offered to all refugees leaving asylum support and is provided by Migrant Help, which again, as the noble Baroness knows, is a voluntary organisation funded by the Home Office.
Asylum accommodation providers are under a contractual duty to notify the local authority of the potential need to provide housing where a person in their accommodation is granted refugee status. Refugees can also apply for integration loans which can be used, for example, to pay a rent deposit or for an essential domestic item or work equipment, or for training.
We have a proud history of providing protection to those who need it, and I can reassure the Committee that this Government are committed to ensuring that all refugees are able to take positive steps towards integrating and realising their potential. We keep the move-on period under review, but we must consider the strong countervailing factors that make increasing it very difficult at this stage. For the reasons that I have outlined, I hope that the noble Baroness will withdraw her amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I thank everyone who spoke in support of the amendment, and I thank the Minister. I did ask some questions that she did not answer. I will not push them now, but I would be grateful if she could write to me, particularly about the potential implications of the Bill for the numbers affected—but I am conscious that we all want our lunch so I will not press her to reply now.
I said that hope springs eternal, but hope constantly gets dashed, does it not? It is the same old arguments. I was aware that there had been improvements since I last raised this with the Minister, so I asked the British Red Cross to brief me on what those improvements were and what the effects had been—and, yes, they have had some effect. But there are still problems, otherwise the British Red Cross would not be asking us to put this amendment. So why does the Home Office think that everything is hunky-dory? I take the point about accommodation, although, as I pointed out, if you leave newly recognised refugees without accommodation there are knock-on costs for other statutory services. But that point is not valid for UC. So even if one accepted the point about accommodation —which I do not—why cannot newly recognised asylum seekers receive asylum support for longer before they get UC?
It is not complex; it is quite simple. As the noble Baroness, Lady Hamwee, said, just do the maths. It is simple arithmetic: there is not enough time. I actually think it is a territorial issue about who is paying. I ask the noble Baroness—I am sorry, I need my lunch and I am sure the Minister does too—the Minister to take this back to her department and the DWP and look again at the basic incompatibility with universal credit. If nothing else, I think there is a strong case for continuing financial support for longer than 28 days to ensure that people can claim UC. I will leave it at that, and I beg leave to withdraw the amendment.
Finance (No. 2) Bill
Thursday 3rd February 2022
(2 years, 2 months ago)
Lords ChamberRead Full debate Finance Act 2022 View all Finance Act 2022 Debates Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 2 February 2022 - large print - (2 Feb 2022)
Vaccination: Condition of Deployment
(2 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Wheeler (Lab)
My Lords, I thank the Minister for the Statement and welcome the Secretary of State’s decision to end the requirement for vaccination as a condition of deployment. Vaccines are safe, effective and the best defence that we have against the virus, and, whether compulsory or not, it remains the professional duty of all NHS and care workers to get vaccinated, as it is the duty of us all in order to protect ourselves, our loved ones and our society from the greater spread of infections and hospitalisations.
The debate over this policy has always been about whether the state should mandate the vaccine for health and care staff or whether it should take a voluntary approach. It is not a discussion over the need to get vaccinated, the arguments for which are overwhelming and one-sided. Since our support for mandatory vaccination in December, we have seen a significant increase in vaccinations among NHS and social care staff, with tens of thousands more staff now protected. I thank NHS and social care managers who have worked tirelessly to persuade hesitant staff of the need to get vaccinated. I also thank the royal colleges and the health unions for all the work they have done to encourage vaccine take-up by their members, despite their misgivings about the mandate policy.
Clearly, things have now moved on in terms of both our overall levels of infections and our understanding of this latest omicron variant. It has also become clear that to follow through with this policy could see tens of thousands of staff being forced to leave their roles at a time when our health service is already desperately understaffed and overstretched. However, with 5 million people in the UK still to have their first jab, we cannot take our foot off the pedal in getting the message out. Strenuous efforts must now also continue to persuade those staff who are still hesitant. What plans do the Government have to achieve that?
In the light of Monday’s decision, I ask again: when will the Government take action to make all workers eligible for sick pay to enable them to do the right thing and isolate when they need to without the fear of being unable to feed their families? One in five care homes still do not pay their staff full wages to isolate. Why have the Government still not sorted this? Is it not an essential requirement for being able to learn to live well with Covid?
Technically, the next stage is the Government’s consultation on ending vaccination as a condition of deployment in health and social care settings—that is now under way—and then bringing forward the necessary statutory instruments to revoke the regulation for Parliament’s approval. Can the Minister explain the process and timescales for this? I understand that the Secretary of State has also promised to strengthen the guidance on staff’s duty to be vaccinated. Can the Minister say more about that?
We know that NHS Providers and the NHS Confederation have expressed their concern and frustration at managers having to have such a significant 11th-hour policy change, just three days before the deadline for first jabs, after all the hard and complex work that had gone into meeting the deadline. Can the Minister explain why the decision was not made earlier given, in particular, the growing concern in the NHS and social care about escalating job losses and staff vacancies? These organisations and the many staff who have strongly advocated the mandatory policy fear that the change may have a serious impact on the wider message for staff, and the population as a whole, on the importance of being vaccinated. Can the Minister say how this is to be combated?
Finally, I want to ask some practical questions about next steps. Have the Government instructed employers not to proceed with plans to implement mandatory vaccines from today, including the issue of pre-dismissal notices? What advice has been given to employers on how to approach all this? What will happen to the thousands of staff dismissed from their roles in social care settings last autumn? How will the Government’s decision impact on their approach to other vaccination programmes for health and social care staff, such as in relation to flu jabs?
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite her to make her comments.
Baroness Brinton (LD) [V]
My Lords, from our Benches, I thank all the staff and volunteers in the entire health and social care sector, as well as the scientists and other experts, who are still working to keep us all safe as this pandemic continues, because it is clear, especially with omicron BA.2, that it is not over yet.
We are warned that there may yet be more surprises down the line, which is why it is somewhat bemusing that the Statement begins with this phrase:
“Last Thursday, we woke up to a new phase of this pandemic as we returned to plan A.”
That is extraordinary, because the Prime Minister made his Statement with neither the Chief Medical Officer nor the Chief Scientific Adviser by his side. His press conference and this Statement feel like the Government trying to create good news against the constant bad news battle, not least over partygate.
Last summer, and again before Christmas, we warned that the insistence on compulsory vaccination for front-line staff in the social care sector and the NHS would cause severe problems, specifically in terms of staff shortages as staff either left or were sacked. That problem is already evident in social care; a number of care homes have already been taken to court by staff they have had to let go.
The Statement on Monday also talked about cases falling but, frankly, the opposite is happening at the moment, with cases plateauing in some areas and rising in others. Tim Spector of the ZOE Covid study is warning that the numbers are consistently increasing despite many people no longer recording their results. The high level of cases in schools and in the younger adult age groups shows that Covid is still prevalent. Even if omicron BA.1 and BA.2 are less severe than delta—which is, by the way, good news—the number of cases has two consequences. First, there is increased pressure on primary care, especially GPs and hospitals, even if there is less pressure on ICUs. Secondly—the Minister will not be surprised to hear me say this—there are the problems faced by the clinically extremely vulnerable. I will return to this point later.
Yesterday afternoon, the director-general for adult social care wrote to providers of CQC-regulated adult social care activities about the removal of vaccination as a condition of deployment, or VCOD. Extraordinarily, this letter was written as late as on the eve of the date when notices would have to be served to staff in the NHS. Further, the letter refers to a Written Statement being laid before Parliament today but, as at 3.30 pm, it still has not been laid.
The first and second paragraphs of the letter refer to the regulations on VCOD, which relate to care homes and the wider social care sector, but the heading of the letter reads:
“Vaccination as a condition of deployment … in wider social care (social care settings other than care homes)”.
For anyone reading this letter at face value, it clearly excludes care homes from the U-turn on compulsory vaccination. There is no mention of a separate letter for them and the sector is extremely concerned. I know that the department has been dealing with calls on this matter today, but those I have talked to say that they cannot get a straight answer from the department. Can I try to distil this to get a clear answer from the Minister, who I wrote to about this earlier today?
Is the reason that the letter to the social care sector specifically excludes care homes from the compulsory vaccination rule changes because they are covered by regulations that are being revoked and it is not necessary and, if so, why were they not told that in the letter? Or is it because of an error, and they will receive a separate letter that has not gone out yet, despite today being the day that any final employment notices must be served? Or is it because compulsory vaccination rules remain in care homes? Another matter that I have picked up today is that this letter was not sent to hospices. Why was that? I hope the Minister can give your Lordships’ House a precise answer, but there is a wider interest in this so, if he cannot give me that now, I would welcome a written response.
Secondly, can the Minister say whether UKHSA gave formal advice to the Department for Education, in advance of Nadhim Zahawi’s guidance to schools on 20 January, specifically the strong guidance on no face coverings in schools, other than temporarily and only on the advice of their director of public health? Further on in the guidance, on page 12, it says that
“Children and young people previously considered CEV should attend school and should follow the same … guidance as the rest of the population. In some circumstances, a child or young person may have received personal advice from their specialist or clinician on additional precautions to take and they should continue to follow that advice.”
What would the Minister say to the head who, earlier this week, asked all pupils—not just the CEV pupil—to wear masks until further notice, as one pupil has leukaemia and is severely immunocompromised? The family and the school want that pupil in school, if possible. Why have the Government, the Department for Education or the Department of Health—I do not mind which—not given advice to these pupils, their families and their schools?
Finally, the briefing to journalists earlier this week that the Secretary of State for Health wants to stop publishing Covid data in mid-April has rung alarm bells across the medical and scientific community, as well as for those who are CEV and are still following the guidance in place for them. Scientists say it will reduce their ability to look at data to understand the progress locally, regionally and nationally, and doctors need that information too. I hope the Minister can confirm that any such decision is in the hands of the Chief Medical Officer and the Chief Scientific Adviser, as these are scientific, not political, decisions.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
I start by thanking both the noble Baronesses for their questions and the Benches opposite for their support during this difficult time. There was not really much political difference between us. We all recognised that vaccination remained the best defence against the virus and the variants. I also thank them for their support on VCOD.
One of the things we have constantly been doing—for example, over the Christmas break, I was on almost daily calls with other Ministers, the UKHSA and others—is to look at the evidence and the data, as it came in. We were always led by data when it came to making decisions. At the time, we felt that it was right to bring VCOD in for care homes and then to extend it across wider health and social care. You only have to look back to the beginning of Covid when we saw the disproportionate number of deaths in care homes.
Given that Delta has now been replaced, it is not only right but responsible to revisit the balance of risks and opportunities that guided our decision last year. In weighing them up, this was the balance we struck. First, our population as a whole is now better protected against hospitalisation from Covid-19. Secondly, the dominant variant, Omicron, is intrinsically less severe. Taken together, the evidence shows that the risk of presentation to emergency care or hospital with Omicron is approximately half that with Delta. Given these changes, and in conjunction with scientific advice, we have reviewed the policy and decided it is no longer proportionate to require VCOD.
We continue to encourage staff to take up vaccines. It is really important. I know most noble Lords have supported this. The NHS has focused on a targeted approach, particularly among hesitant groups within the health service, but in some ways, those hesitant groups reflect hesitant groups in the wider population. When speaking to my colleague, the Minister Maggie Throup, I have been very impressed by the number of different targeted interventions and consultations there has been, sometimes targeted right at the level of local communities. When I chaired a round table for black and ethnic minority organisations this week, one of the things we looked at was how to roll out antivirals. The question there was do we need to do still more work to convince those who are hesitant in certain communities, sometimes based on ethnicity, sometimes based on geography, sometimes based on income levels. How do we make sure they are vaccinated?
The NHS has continued and will continue with its one-to-one conversations with all unvaccinated staff. This has been associated with an early increase in vaccine uptake by 10%. Even though VCOD, we hope, will be dropped subject to the consultation, we will continue, and I know the NHS will continue, to consult all staff.
On the written advice to those who are about to issue letters today—I have to take responsibility for this—it was waiting for sign-off from me because I was doing lots of meetings for the Bill. I am very sorry; I was juggling two things at once. However, literally just before I came into this Chamber, I gave my sign-off for that letter to go out to give advice that those letters of dismissal should no longer go out.
We know it does not happen immediately, but we want to finish the consultation quickly. We hope to finish the consultation by April, and then we can drop VCOD.
As I said, we are continuing with the wider vaccination programme, and our intention is to be able to revoke it well ahead of 1 April, which is our target date. We want to move as quickly as possible, but as noble Lords will acknowledge, we also have to do a consultation process.
In the care home sector, employees have already been dismissed since 11 November. We know it has been difficult. Care homes were following the laws at the time. There have been conversations about whether some care homes will have those conversations with staff who have left. Will those staff want to go back, or have they got new jobs? This is part of our wider recruitment process to make social care a more attractive vocation and a more attractive career. Some care homes have told us individually that they will probably keep VCOD because it gives more assurance to the relatives of patients in those care homes. So, it is very much not one size fits all.
Some have asked why we are doing this now and whether it is still too dangerous. Others have asked why we have not done this sooner. We have always followed the evidence. We have always balanced the risks, and we now recognise, clearly, that given the rates of transmission, the lower severity of Omicron and the higher percentage of staff that are vaccinated in both the health and social care systems, this was the right time.
I thank the noble Baroness, Lady Brinton, for giving me advanced notice of some of her questions. Unfortunately, I do not have good enough answers at this stage, so I am going to go back to my department and ask for clearer answers, and I will write to her.
Lord Cormack (Con)
My Lords, as my noble friend knows, I have advocated compulsory vaccination since the beginning of last year. I am very disappointed that this decision has been made. Can my noble friend assure me that there will not be another variant breaking out in a few weeks’ time that will be much more dangerous? Of course, he cannot. If he can, we will all be delighted. Would we think of suspending the requirement for a motorist to pass a test and have a licence before driving? A car is a lethal machine. Well, a worker who has this virus can be a lethal instrument within a hospital or care home. Can my noble friend at least give me an absolute assurance that this policy will be under constant review?
Lord Kamall (Con)
I thank my noble friend for his question and for his longer-term engagement with me on this issue. I assure him that we are keeping this under constant review. The evidence changes. We are aware that new variants will arise, as is natural with any virus. Given the replication factor, when the virus replicates, there will be some imperfect replications and so there will be variants. That is just part of the virus spreading. As my noble friend acknowledges, we cannot give an absolute guarantee that there will be no new variants, but we are keeping an eye on all the variants and their continued transmission, along with the tools that we are using to protect workers, staff and everyone, to make sure that we are continuing to protect people as best as possible.
Baroness Tyler of Enfield (LD)
My Lords, I was pleased to hear the Minister say just now that some care homes will choose to keep this as a condition of employment because of the reassurance that it gives to both the relatives and the residents. In this increasingly fractious debate on mandatory vaccinations, one voice entirely missing has been that of patients, social-care users and care home residents on what they want. Could the Minister tell me, first, what consideration in the decision to change the policy was given to the wishes of patients and residents? Secondly, will patient-voice groups or relatives’ groups be included in the consultation referred to by the Minister? Thirdly, what will be the position of patients who, due to their own vulnerabilities, actually do not want to be treated by staff who, despite being given every opportunity, have chosen not to get vaccinated?
Lord Kamall (Con)
I thank the noble Baroness for raising that point. It is really important to note that, when engaging in debates such as this, it is sometimes easy to forget patients, and we should not do that. The health service should be all about patients; it should be patient-centred. I understand the concerns. One of the reasons that we originally introduced VCOD, particularly for care homes and then more widely, was that patients were very concerned and relatives of patients were concerned about their loved ones—they were terrified, given the early outbreaks that we saw in care homes. On the particular consultation, I am afraid that I do not have the information with me, but I will commit to write to the noble Baroness.
Baroness McIntosh of Pickering (Con)
I thank my noble friend for answering questions on the Statement here this afternoon. One thing that struck me when I read through it was that
“Incredibly, over a third of the UK’s total number of covid-19 cases have happened in just the last eight weeks.”—[Official Report, Commons, 31/1/22; col. 71.]
Taken together with the point raised by one of the noble Baronesses on the Front Benches—that the Government are planning to stop publishing the level of Covid infections and deaths, and to stop testing from the end of March—what reassurance can he give us this afternoon that the Government will know where the infection is and what the level of infection is? Against that background, how does my noble friend expect to protect the NHS and care homes at that time?
Lord Kamall (Con)
I thank my noble friend for her question. I will be frank with her: I was not aware that the Government intend to stop publication, so I will have to go back to the department and double-check whether that is indeed true or whether it is a qualified statement. I commit to write to all noble Lords, given that it seems to be what we have heard. Clearly, as we are told, we follow the evidence, and the scientists continue to follow the evidence, so I would expect that data to continue to be collected. The best answer I can give at this stage is that I will go back to the department and investigate, and will write to noble Lords.
Viscount Waverley (CB)
This might be another point that the Minister will wish to write to us about. Beforehand, the selfless manner by which the British people have risen to the challenge represents nothing short of the finest traits of Britishness. Would the Minister care to say a word about the benefits, advisability and practicality of receiving a fourth jab?
Lord Kamall (Con)
I agree with the sentiments expressed by the noble Viscount. Sometimes it takes the worst of times to bring out the best in people. It was an incredible response. It was also a very sad, emotional response. People lost loved ones, friends and relatives, and we were unable to contact people. I still have not seen my mother since January 2019 and my father died in September 2020, and I have not seen his grave. We have all been through incredibly emotional times and lost loved ones. On the fourth jab, we are continuing to review this—for example, we know that Israel has gone for a fourth jab. The briefings I get say that it is too early to tell whether there will be a fourth jab. It depends on whether immunity wanes, and whether the immunity that people now have responds to new variants, for example. In the longer term, if we have to live with this virus, will it almost be like the flu, with people having to take annual jabs? It is too early to give a definitive answer on that, but as soon as the evidence suggests one way or the other, we will notify noble Lords.
Lord Farmer (Con)
My Lords, may I come at this matter from another angle? Dr Steve James, the King’s College Hospital intensive care doctor who defended the principle of bodily autonomy to the Health Secretary, said natural immunity should be taken into account. Healthcare workers like him, especially those who have had Covid, keep topping up their natural immunity with micro exposures. In the omicron rethink, are the Government considering allowing vaccine-hesitant people to use readily available antibody test kit results instead of vaccine status?
Lord Kamall (Con)
First, I thank my noble friend for giving advance notice of the question, enabling me to try to get an answer. While we do intend to revoke the VCOD, subject to consultation in these sectors, we believe that staff still have an important professional responsibility to be vaccinated. The Secretary of State has written to regulators to review their guidance on vaccination for social care providers and the importance of vaccination in supporting the provision of safe care. We believe that vaccination remains important. In conversations I have had—on the daily calls with the UKHSA, for example—I have been told that even if people believe they have natural immunity, vaccination increases immunity by a further percentage. We believe it is worthwhile encouraging people to take vaccines.
Baroness Walmsley (LD)
My Lords, I associate myself with the Minister’s remarks and the Front-Bench contributions about the importance of the professional duty of health and care staff to take the vaccination. However, given the Statement today, it seems we will continue to have unvaccinated staff working in patient-facing roles in hospitals. We do not know about care homes yet, but I look forward to the Minister’s urgent response to my noble friend Lady Brinton’s question about that. What is going to be put in place so that unvaccinated staff and their patients continue to be protected? Will unvaccinated staff be asked to have a negative lateral flow test every day when they are on duty? Can the Minister assure us that they will continue to have appropriate PPE provided for them, for every day that they are working, in every corner of the hospital or care home, and whichever patients they are dealing with?
Lord Kamall (Con)
The noble Baroness raises an important point. I am afraid I do not have detailed answers on patients’ concerns about unvaccinated staff. The main reason for revoking VCOD is that the levels of transmissibility are much lower, with a higher number of people being vaccinated, and cases are less severe. I will have to go back to the department and write to the noble Baroness.
Lord Framlingham (Con)
My Lords, given all the scientific information now available, will the Minister accept that there is absolutely no justification whatever for the wholesale vaccination of children?
Lord Kamall (Con)
The Government continue to review the data, as other countries do. Clearly, we have vaccinated vulnerable children, and there have been moves, particularly with omicron, to look at vaccinating children. We have reduced the age, but we still need more data. Once we have that data, if it is more appropriate, we will vaccinate children, but we have to make sure we have the data because children respond differently.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have always been opposed to this discriminatory policy on principle, so I welcome the Statement, even if it rather defensive. Will the Minister commit to dumping jabs for jobs and not sacking front-line workers? Will the Opposition roll back on the divisive rhetoric, categorising workers under moralistic labels of vaccinated equals virtuous, and traducing the unvaccinated as selfish or neglecting their professional duty? This seems unhelpful, especially as many of the NHS100k campaign are fully vaccinated, vaccine enthusiasts working in the health service, but who believe in choice and freedom of conscience. Is there any likelihood of the estimated 40,000 care workers who have been driven out of their jobs being compensated for the income lost, never mind being reinstated?
Lord Kamall (Con)
I begin by agreeing with the sentiments expressed by the noble Baroness that we should not necessarily be labelling people who decide not to take the vaccine. We should understand individual choice, but with freedom comes responsibility, and we always have to get that balance right. At the same time, I do not think that some of the characterisations that have been given are helpful. Having said that, if people have stopped other people being vaccinated, they should be dealt with by the law. The noble Baroness and I agree on individual choice, but, clearly, this was an emergency and people were dying and it was important that patients going into hospitals and care homes felt confident that they were being treated by staff who would not pass the virus on to them. There is always a difficult balance between liberty and responsibility.
Lord Scriven (LD)
My Lords, I come back to the really important issue raised by my noble friend Lady Brinton about the letter that went out last night to providers of CQC-regulated adult social care activities, except for care homes. My noble friend gave the Minister three hours’ notice of this question because, if care homes do not receive a letter by midnight tonight, under the law they will have to send out notices of termination to staff. Can the Minister give an absolute guarantee that, by midnight, or as early as possible, a letter will go out to stop the confusion whereby many care home providers do not know whether to keep their staff or send out a letter of termination? This is critical.
Lord Kamall (Con)
I hope that the noble Lord will forgive me, but I had a lot of meetings on the Bill today. When the questions came in and I saw the original answer, to be perfectly frank, I was not content with it and I pushed back, which is why I need more time to answer the question.
We are completely clear. We intend to revoke the requirement in its entirety for both care homes and the health and wider care sectors. The care home requirement has been in force since 11 November, but the requirement for health and wider social care was not due to come into force until 1 April. This means that first doses would have been needed by today in order for people to be fully vaccinated by 1 April. We wrote to the sector to clarify how the 3 February deadline would be impacted by the Government’s intention to revoke the regulations. While this particular question was specific to wider social care settings, not care homes, the letter was clear that we intended to revoke them for both care homes and wider social care.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the Minister for the way in which he has answered these questions, because he has done so in a very nuanced way and this is a difficult topic to deal with. Can he reassure me that there will be no let-up in the effort to understand the fears behind why people are vaccine hesitant, particularly when they are working in these settings, so that they can change their mind without any sense of losing face? Will the general infection control measures that have been put in place, such as handwashing, social distancing and ventilation, be maintained? It is not only Covid that is transmitted from one person to another; there have been thousands and thousands of cases where patients have acquired a nosocomial infection in hospital. One of the most important measures—particularly for something like MRSA—has been handwashing in between treating every patient. Any let-up in these procedures could well mean that we would slip back to the bad old days of multiple wound infections on surgical wards.
Lord Kamall (Con)
As ever, the noble Baroness is absolutely right. Once again, I thank her personally for her frequent advice and questions, based on her years of experience. This gives me the opportunity to be quite clear: just because we are intending to revoke VCOD does not mean that we should let up in the fight against this virus. We need to continue to be vigilant, to wash hands, to respect space, and we hope that many people will continue, as in this Chamber, to wear face masks in crowded places and to ventilate areas, particularly when you are with people that you do not know and do not normally associate with. We should not give up on those; in fact, some of those measures, especially handwashing and others, are good common sense anyway, whether we have a virus or not. We hope that one of the lessons from this whole Covid experience has been the need for better hygiene and for us to be more aware. We cannot yet let up. We may have revoked VCOD, but it is really important that we continue to battle against this virus.
On the first question, about understanding the very real concerns, as the noble Baroness said earlier, I do not think we should simply categorise people as anti-vaxxers or pro-vaccine and virtuous; I think we need to understand their reasons. I had conversations this week when I was chairing the round table with local community organisations and I made the point to them that we want to learn from them. It is all very well for me, as a Lords Minister, to say this, but they understand much better in the community. Sometimes, it is a lack of trust. Sometimes, there are historical trust reasons. Sometimes, it is people’s personal experience. Noble Lords will have heard the recent story about the police, for example: it does not exactly engender trust in figures of authority within certain communities. It just shows the spillover effect of all these issues—discrimination, racism, but also lack of trust—and we have to be quite clear that we understand individual communities. Sometimes, even though they are in the same ethnic community, they may live in different parts of the country and respond in quite different ways. It is very easy to group people and say, “Oh, all BME, all Asians or all disabled people feel this way.” These people are individuals, and we need to understand their concerns.
Baroness Wheatcroft (CB)
My Lords, whatever the reasons people refuse to be vaccinated, the Statement says more than once that it is a professional duty of those working in the health service or in care homes to have the vaccination. Therefore, I rather agree with the noble Lord, Lord Cormack, that it is an unusual situation in which those who breach their professional duty will be allowed to continue in the role. Can the Minister tell us whether what appeared to be a decision taken through thorough research and as a matter of principle has now been changed, not because of principle but because of practicality—we need these people in the health service because of the terrible shortage of staff?
Lord Kamall (Con)
One of the things we have constantly done has been to listen—I had daily calls over the Christmas period, for example—and follow the evidence. Clearly, one of the issues may well have been staffing and warnings of potential shortages, and we had to balance all that up. As the noble Baroness, Lady Finlay, said, these things are nuanced; there are number of different factors we have to consider.
As for professional responsibility, on more than one call I have been on with senior NHS staff, clinicians and senior practitioners, they have told me that in their codes—for example, the GMC code and the nursing code—there is a professional duty to be vaccinated against transmissible diseases. Clearly, that is an issue. The NHS has had to speak to individual clinicians, those who have been reluctant, to try to press that issue, but clearly it came up against freedom of choice. It is difficult and I may not understand it, but we all think differently, which is why we have such great diverse thoughts and debates. It is really important that we understand individuals’ concerns and we can address them, but we are not going to be able to persuade everyone.
Lord Scriven (LD)
My Lords, the Minister is an honourable man and tries his best. The letter that went out yesterday evening has literally caused confusion. People in care homes will be sending letters of resignation. Can he give a guarantee from that Dispatch Box that something is going to go out before midnight tonight, before notices go? It is really important.
Lord Kamall (Con)
I thank the noble Lord for raising this issue and emphasising its importance. As soon as I leave this Chamber, I will go back to the department and ask what is being done and notify him. I thank him for raising it.
Nationality and Borders Bill
Thursday 3rd February 2022
(2 years, 2 months ago)
Lords ChamberRead Full debate Nationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 82-III(a) Amendments for Committee (Supplementary to the Third Marshalled List) - (3 Feb 2022)
Lord Ashton of Hyde (Con)
My Lords, during the hybrid House my children thought that all I ever said in this place was “Please could the noble Lord unmute?” Now they think that all I ever say is, “Please could noble Lords be brief?” Contrary to what some noble Lords think, I am not against scrutiny and improvement of legislation, but this afternoon we have six groups of amendments left to the target on this important Bill, and significant issues to debate on the two remaining days in Committee. I am very grateful to those on the Front Benches for agreeing to sit beyond 7 pm today but, to make the best use of this time and to give all the issues raised by this Bill the attention that they deserve, and to allow Peers who are involved in the later groups to have their say, I ask all noble Lords from all Benches to ensure that their contributions are as brief and to the point as possible, and strictly related to the amendments. That way we will get the business done properly and get home at a reasonable time.
Clause 13: Requirement to make asylum claim at “designated place”
Amendment 67
Lord Paddick
Member’s explanatory statement
Clause 13(1) requires an asylum claim to be made at a designated place. However, the UK territorial sea is excluded from being a place where a Home Office Immigration Officer is authorised to accept an asylum claim. This amendment would remove that provision.
Lord Paddick (LD)
My Lords, the Committee will be pleased to hear that I am not hangry any more. I would not like the Chief Whip to think that this speech is so short because of what he just said; it was going to be short anyway.
Amendment 67 in my name and that of my noble friend Lady Hamwee seeks to take out an apparently innocuous part of the Bill that intends to put into primary legislation that the feet of the asylum seeker need to be on dry land in the UK before they can claim asylum. At present, this requirement, “UK terra firma” as I might call it, is contained in the Immigration Rules rather than in primary legislation. The concern of organisations such as the Immigration Law Practitioners’ Association is that this strengthens the Government’s hand in any court case where Home Office actions are challenged as being contrary to the refugee convention, where the Government can now point to primary legislation as in some way overriding their international obligations.
Section 2 of the Asylum and Immigration Appeals Act 1993 provides that nothing in the Immigration Rules may lay down any practice that would be contrary to the refugee convention. Moving the UK terra firma condition from the Immigration Rules to primary legislation may be seen as an attempt to get around this requirement. The change is seen as integral to other quite abhorrent and questionably legal measures that we will come to later, giving Border Force and others the authority to board, intercept and drive away vessels containing asylum seekers crossing the channel.
Presumably this change that we are challenging is to stop asylum seekers being pushed back towards France from trying to claim asylum in the channel. Clause 13(7) may seem innocuous, but it is part of a greater evil and should be removed from the Bill. I beg to move.
Lord Coaker (Lab)
My Lords, I have a couple of questions for the Minister on Amendment 67. I will be interested to hear the debate on this amendment because the change in Clause 13(7) appears to be fairly innocuous, although quite significant. As the noble Lord, Lord Paddick, has said, the Immigration Law Practitioners’ Association has raised concerns about it so we will all listen carefully to what the practical impacts of this charge are.
Can the Minister explain what “territorial sea” of the United Kingdom means? I take the Chief Whip’s point—this may seem a very detailed point, but that is the point of Committee. What does “territorial sea” mean with respect to the beach? My understanding is that territorial water is low tide to 12 nautical miles out. The target then becomes the low beach mark. How is that measured? This is pedantic, but important: how is that measured around the coast?
I looked up the Explanatory Notes for Maritime and Coastal Access Act 2009 and I do not understand what they mean:
“For the most part the territorial sea of the UK does not adjoin that of any other state. Where it does do so in the English Channel, the Territorial Sea (Limits) Order 1989 … sets out the limits of the territorial sea in the Straits of Dover in accordance with an agreement between the UK and France.”
Is that still in existence? The notes continue:
“In relation to the delineation of the territorial sea between the UK and the Republic of Ireland, the situation is more complex, with no boundary having been agreed between the two states. Instead arrangements have been put in place under the Belfast Agreement for joint management of the Loughs that form the border (the Foyle, Carlingford and Irish Lights Commission’s Loughs Agency).”
I do not expect the Minister to answer now—this is not a trick question—but will she write a letter to explain what the legislation means for someone who may or may not be claiming asylum? The Explanatory Notes continue:
“Within the territorial sea, the UK has jurisdiction for the sea itself, the seabed subjacent and the air above.”
I do not know what the “air above” means. Will the Minister clarify that point?
I am confused—and the Government are confused—on another point. A row is clearly going on in government between the Ministry of Defence and the Home Office on pushback and this House is confused by the Government’s response.
Yesterday at the Home Affairs Select Committee, the Home Secretary was asked whether James Heappey, a Ministry of Defence Minister, was right to rule out pushback by the Navy. To be fair, the noble Baroness, Lady Goldie, ruled this out in this Chamber in answer to a question from me and other noble Lords. We were told by the Home Secretary, and this is really important, that the Minister
“gave a view … They are not facts. They cannot be facts, because the work—that operational work—is still under way. While I appreciate that he was responding to questions in Parliament, whether that was in Committee or in response to an urgent question, this is work in progress. It is wrong to say anything specific with regards to work operationally that is still being planned. That work has not completed yet.”
They cannot both be right, can they? If the Government have a pushback policy, they have a pushback policy and, as the noble Lord, Lord Paddick, mentioned, presumably including the seas helps with that. I do not know. What is the Government’s policy on pushback? We are debating the Nationality and Borders Bill and an aspect of it to do with territorial seas and I have no clue what the Government’s policy is.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
I thank noble Lords for speaking to these amendments. In terms of territorial waters, yes, I understand it to be 12 nautical miles at low tide. In terms of pushbacks, of course I agree with my right honourable friend the Home Secretary and we are developing a range of tools to tackle the illegal and very dangerous crossings in the channel.
Lord Coaker (Lab)
I absolutely understand why the Minister has said what she has with respect to the Home Secretary. Nobody, including me, expects the Minister to get up and say that she disagrees with the Home Secretary—for obvious reasons. But that is not the point. The point is: what is the Government’s policy? The Ministry of Defence is saying one thing—including the Minister who speaks for defence matters from the Dispatch Box—and the Home Secretary is saying something completely different. It is not good enough.
Baroness Williams of Trafford (Con)
I agree with the noble Lord and I will clarify the point on this issue. He knows that I will clarify that for him.
Amendment 67, if we can get on to that, seeks to weaken the message that this Bill strives to send. People should not risk their lives using unseaworthy vessels—I do not think anyone would think that they should—to reach our shores when they have already reached safety in a country such as France. It puts their lives at risk, and those of Border Force and rescue services. Events in recent months have all too starkly demonstrated the devastating human cost of undertaking these journeys. This provision is just one of a host of measures which aim to deter illegal entry to the UK. It is right that we prioritise protection for the most vulnerable people rather than for those who could have claimed asylum elsewhere.
Parliament has already had an opportunity to scrutinise these measures when they were placed in the Immigration Rules in December 2020. It has been a long-standing practice in place for many years to only accept claims for asylum in person at the individual’s first available opportunity on arrival in the UK. These provisions simply seek to place these long-standing requirements on a stronger statuary footing.
Lord Paddick (LD)
My Lords, I thank the noble Lord, Lord Coaker, for his intervention. From memory—and I have to say, no pun intended, that I am finding it difficult to keep my head above water with this Bill—we come on to pushback in a later group. Maybe the Minister might be able to say more when we get to the appropriate group on that issue.
But on this issue, there are lots of things in Immigration Rules that are not in primary legislation, and I do not understand why this particular issue is different. If it is simply to put something that has been for a long time been in Immigration Rules on a more secure statutory footing, why are we not seeing many more Immigration Rules being put on a firmer statutory footing by putting them into primary legislation? This leads me to believe ILPA—that there is some other motivation behind it related to pushbacks, as the noble Lord, Lord Coaker, has said.
But there will be an opportunity to revisit this when we come to the groups debating pushbacks, so at this stage I beg leave to withdraw the amendment.
Lord Etherton
“(c) fails to protect its nationals, including in particular those who have a protected characteristic within the meaning of Chapter 1 of Part 2 of the Equality Act 2010 which is innate or immutable, from persecution by third parties who are not agents of the member State.”Member’s explanatory statement
This amendment provides that there are exceptional circumstances where, even though there is no overt persecution by the State or state agents, the conduct of others towards a person which the State has failed to prevent can amount to persecution within the Refugee Convention.
Lord Etherton (CB)
In moving the amendment in my name, I should say that I have also put my name to the proposal from the noble Lord, Lord Rosser, to exclude Clause 15 from the Bill—but I will wait to hear him and support him when he proceeds with that.
I will make a relatively short point in relation to Amendment 68. The provision relates to Clause 14 and the section of the Bill that deals with inadmissibility. Clause 14 is concerned with amending the Nationality, Immigration and Asylum Act 2002 and the exclusion in that Act, by way of amendment, of asylum claims by EU nationals. I am not certain why they have been selected for exclusion, but I assume it is because EU member states are bound by the EU’s Charter of Fundamental Rights, the provisions of which, for the most part, mirror the European Convention on Human Rights and, in some respects, go beyond it. In Article 1A(2) of the refugee convention, persecution is obviously tied to the question of human rights.
The point I wish to make is simply that, under the new clause proposed by Clause 14—headed “Asylum claims by EU nationals”—to amend the 2002 Act, the Secretary of State
“must declare an asylum claim made by a person who is a national of a member State inadmissible.”
Proposed new Clause 80A(4) states:
“Subsection (1) does not apply if there are exceptional circumstances as a result of which the Secretary of State considers that the claim ought to be considered.”
Proposed new subsection (5) states:
“For the purposes of subsection (4) exceptional circumstances include”—
and then it lists a series of matters under proposed new paragraphs (a) and (b), with three proposed sub-paragraphs under (b).
Basically, short the point is that there can be persecution for the purposes of entitlement to refugee status under the convention even where the state itself is not the protagonist of the persecutory conduct but allows citizens, residents or others present within its territory to persecute particular groups or persons who otherwise fulfil the requirements of the convention’s definition of “refugee”. My amendment proposes adding to the exceptional circumstances in proposed new Clause 80A(5) the circumstance when the EU member state
“fails to protect its nationals, including in particular those who have a protected characteristic within the … Equality Act 2010 which is innate or immutable, from persecution by third parties who are not agents of the member State.”
This is not a fanciful matter. If we take the case of Hungary, which has been moving more and more to the right in political terms, we see a campaign that is based on undisguised anti-Semitism against George Soros’s support for universities there, and a constant encouragement by the Government there of homophobia and attacks on LGBTQI+ people. So it is not a fanciful point, and I suggest that it should plainly be added as one of the exceptional circumstances. That is the point. On that basis, I beg to move.
Lord Dubs (Lab)
My Lords, notwithstanding the fact that we have touched on some of these issues before, we have to face them head-on in this group of amendments. The issue is whether an asylum seeker has to claim asylum in the first safe country that they reach, and we might as well deal with that head-on because it is fundamental to many of our criticisms of the Bill. Bearing in mind the Chief Whip’s request that we keep our speeches short, I shall endeavour to do that, but this issue is so important.
First, there is a practical issue in all this. If we had demanded that asylum seekers should claim asylum in the first safe country that they reach, the result would have been that every Syrian who reached Europe would have had to have stayed in Greece, Italy or Malta. That is clearly not a practical way for the world to function. If we make demands on where asylum seekers should claim asylum, so of course can other countries. It is quite wrong in practice.
The principle is perhaps more important; that principle being the Geneva convention of 1951. I would have thought it would be widely acceptable to say that the UNHCR was the guardian of the 1951 convention, and if the UNHCR has a view on that convention then that should surely have some influence on the Government—after all, the convention has been fundamental to human rights for asylum seekers over the last 70 years or so. The UNHCR has made it very clear that it disagrees with the argument that refugees should claim asylum in the first safe country that they reach, saying that:
“Requiring refugees to seek protection in the first safe country to which they flee would undermine the global humanitarian and cooperative principles on which the refugee system is founded”.
No country close to the main countries of origin of refugees would ever have considered signing a convention if it meant that they would assume total and entire responsibility for all refugees. These are responsibilities that the international community has to share, and that is implicit in the 1951 convention. Therefore, some of the amendments, although they are in my name, probably seem to be compromising a fundamental objection in principle to what the Government are seeking to do. For example, my explanatory statement on Amendment 70 says that
“asylum seekers should not be removed to a safe third State other than the one with which they are considered to have a connection.”
One can argue about that. The Bill says clearly what it means to have a connection, and some of its definitions are okay but some are not.
Amendment 71 says that there must be a return arrangement in place. Clearly, unless we have a return arrangement in place with other countries, we cannot even begin to consider returning people. I say to the Minister: do we have a return arrangement with any country? If people come from France, across the channel—we all deplore the people traffickers and how they endanger lives, and the tragic loss of life that we have seen in the channel—unless there is an agreement with France, what do we do? If they have come from France, can we send them back to France or not? The French will not accept that. Incidentally, judging from this morning’s papers, our relationship with France is getting worse and worse; that is something that should be put right anyway, regardless of other considerations. Surely there must be a return arrangement in place, otherwise we cannot even consider this.
Lord Horam (Con)
My Lords, I agree with the noble Lord, Lord Dubs, that there has to be some shared responsibility in Europe. In particular, his point about Greece, Italy and Spain was well made. They have had to bear the brunt of the inflow of asylum seekers to a very difficult extent, and I understand their problems. The noble Lord was also right that, whatever other solutions may be forthcoming on this very difficult issue, we will eventually have to have some agreement with the French. I am rather hopeful that, with the departure of the noble Lord, Lord Frost, we may have a better chance of reaching agreement—I say that with no malice to the noble Lord, Lord Frost, who I am sure did a very difficult job his way, but none the less, the fact that he has gone seems to me to be rather good news from the point of view of having a rather more diplomatic approach to France. I am glad that the Foreign Office in particular may now be in charge of that. I am sure that the noble Lord, Lord Kerr, will agree that it is probably better for the Foreign Office to have more say in this matter than under the previous arrangements.
What I am concerned about reflects what the Chief Whip said earlier on. Clauses 14 and 15 seem to do no more than bring into British law what we already had when we were in the European Union—that is all they do—using the Dublin regulations and the Spanish protocol. This is nothing more than a transfer. We have all the rights that we enjoyed when we were members of the European Union to take account of particular circumstances and difficulties which people may have in getting evidence and so forth. All these fairly extensive amendments are already taken account of by our existing rights, so I do not see how we can spend very long on these clauses, given that they really do no more than a transfer job.
Baroness Ludford (LD)
My Lords, I do not think that the noble Lord is right about EU arrangements. I remember as an MEP fighting hard on the inadmissibility provisions in EU directives. On the Dublin arrangements, my understanding is that the UNHCR is satisfied that those arrangements were compliant with the refugee convention. I contend that Clause 15 is not, hence I have put my name to some of the amendments in this group. My noble friend will propose that Clause 15 be removed altogether, as it fails to recognise the need to share asylum responsibilities with other countries in order for the international system to work effectively, but at least some changes to the clause are necessary, and so I have co-signed the amendments suggested by the JCHR, tabled in the name of the noble Lord, Lord Dubs.
Amendments 69, 70, 71 and 75 all seek to restrict and improve the operation of the scheme proposed in Clause 15. I also support Amendment 68, and convey the apologies of my noble friend Lord Oates, who has a conflict with other business. Clause 15 is about proposals whereby the UK would attempt to persuade some other country to take responsibility for the asylum applicant if it considered that there was a connection to that state, broadly defined, or even if there was no connection at all.
Amendment 69 seeks to ensure that the definition of “safe third State” means it affords the protection and rights to which the person is entitled, so there is no real risk of them experiencing persecution, a violation of their human rights or refoulement, and that there is access to fair and efficient asylum procedures and refugee convention rights. Amendment 70 seeks to ensure that any removal should be only to a state with which the person has a connection. Amendment 71 requires that, unless formal and legal binding return arrangements are in place with the state in question—such as was the case with Dublin, which is why the UNHCR gave it its blessing—and removal takes place within a reasonable period. Absent those conditions, there must be no declaration of inadmissibility and the claim must be considered in the UK. Amendment 75 removes and rejects the suggestion that the UK can remove a claimant to a country in which the UK Government think it would have been reasonable for them to have made a claim, even if they had never visited that country.
As I said, even if these four amendments were adopted, Clause 15 would still be flawed. It would create yet greater delays, backlogs and costs in the asylum system. As we keep saying, the Home Office says the system is broken yet it wants to shoot itself in the foot by having ever-more complicated and long-winded procedures. It would also create greater anxieties for claimants and disruption to the international system. Therefore, Clause 15 must be at least amended, if not removed.
Baroness Chakrabarti (Lab)
My Lords, unsurprisingly, I agree with everyone who has spoken so far except, I am afraid, for the noble Lord, Lord Horam. This is why: we are out of the EU now and have taken back control of our borders and laws. This is the Government’s policy. We are no longer in this family of nations, this bloc called the EU. Therefore, on what logical basis should we be saying that, by definition, we will never consider a claim made by an asylum seeker from that group?
It is one thing when you are in the EU to say that we do not need to be taking refugees from the EU because there is free movement in the EU and we are part of that bloc. You might well say that it will be inadmissible and that we do not consider refugee claims from within that family of nations of which we are a part, but we are not in it anymore. We have taken back control. Therefore, we are no longer able to assert pressure on others in that group to buck up their ideas about human rights or to threaten the Hungarians with being ejected from the EU if they do not sort out their human rights record. We do not have that leverage anymore. Therefore, it is our obligation as global Britain, as great believers in human rights and a signatory to the refugee convention, that if Hungarians are being persecuted we will consider their claims for asylum because we are better than them and we have taken back control in a lovely global Britain sort of way. It is totally illogical for Clause 14 to be part of the Bill.
More generally, the noble Baroness, Lady Ludford, made an important point about complexity and efficiency. In an earlier group, everyone in the Committee agreed that decision-making needs to be faster and better. That is in everybody’s interest, whichever side of the argument we are on. Creating lots of convoluted provisions about what is inadmissible, before you even consider whether someone is being persecuted, will only make life harder for caseworkers in the home department. I have seen Governments of both persuasions do this over the years. They think they are making it easier, but they actually make it harder by creating more convoluted hoops for people to jump through before their claim is even considered. It is better to have a clean slate and to consider somebody’s circumstances: do they qualify for asylum or not? It would be much easier without all these hoops, so Clauses 14 and 15 should go.
Just consider the claims: if countries are safe, they are safe. If people are not telling the truth, test their credibility and make that decision. Of course, I agree with everything my noble friend Lord Dubs said about safe countries, who has or does not have an association with one and the Government making the decision for them on a spurious basis.
Finally, I agree with the noble and learned Lord, Lord Etherton, it is a well-established principle of refugee convention jurisprudence the world over that you do not have to be persecuted just by agents of the state. States have a duty to protect all the people in their state. If they do not do it, there can be behaviour and persecution by non-state agents within that territory. If the state is not offering protection, if there is no effective rule of law, it is not enforcing the criminal law and is allowing Roma or gay people or whoever to be persecuted by fascist skinheads in Hungary or whatever it is, that is persecution for the purposes of the refugee convention.
Lord Cashman (Lab)
My Lords, it is a pleasure to follow my noble friend Lady Chakrabarti. I will be brief. I thank the noble and learned Lord, Lord Etherton, for moving Amendment 68 and associate my name with this amendment. It deals with a glaring omission. I hope the Government will accept the amendment because, as has been rightly said, the Bill states:
“The Secretary of State must declare an asylum claim made by a person who is a national of a member State inadmissible … For the purposes of subsection (4) exceptional circumstances”.
This is where Amendment 68 beautifully sits and deals with that omission because intolerance is on the rise on the grounds of many protected characteristics listed within the Equality Act not only in Hungary, but in Poland and other parts of the EU. Indeed, the EU is somewhat restricted in what it can do with independent member states on some of these issues. I hope that the Minister will indicate that the Government will move on this, and the other positive amendments within this group, because in the end we are dealing with issues of human rights.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am going to make a short speech about how the Government want to have their cake and eat it. One minute the EU is a place where there are lots of freedoms and protections for its citizens, and the next minute it is terribly repressive and we want to get out. Essentially, I support the noble Lord, Lord Dubs.
Lord Kerr of Kinlochard (CB)
My Lords, I agree with the noble Baroness, Lady Chakrabarti, but my feeling about these amendments is that that the noble and learned Lord, Lord Etherton, is right and that the best answer is to strike out the clause.
Baroness Chakrabarti (Lab)
I am so sorry but would the noble Lord remove his mask for a moment so we could better hear his wisdom?
Lord Kerr of Kinlochard (CB)
Was everything I said even more incomprehensible than usual? Basically, I am saying that we can amend and improve this a bit, but it would be much better to get rid of it.
I also have one point of detail. I am struck by the double reference to the definition of a safe third country, which I believe is irrelevant because the refugee convention says what it says. The definition is that a safe third country
“is one from which a person will not be sent to another State … otherwise than in accordance with the Refugee Convention”
and that is repeated later. Of course, there is absolutely nothing in the refugee convention about sending somebody to a safe third country, or sending somebody to any country, except there is the firm ban on refoulement, that is, sending somebody back to the country where he had the justified fear of persecution. I understand why the noble Lord, Lord Dubs, has that phrase in his amendment. He is thinking about refoulement, but the Government, when they put it in the Bill, are not thinking just about refoulement. They are thinking about their doctrine of having to seek asylum in the first safe country. They are thinking about their strange reading of Article 31 of the refugee convention. They are not letting Article 1 speak for itself, and their reading of the convention is a quite different one, as was explained by the noble and learned Lords, Lord Etherton, Lord Brown and Lord Clarke, with a different definition from the one that has become the jurisprudence of this country.
The Lord Bishop of Durham
My Lords, very briefly, my deep concern is that the Government’s proposal virtually rules out us ever being the first safe country in which to arrive, simply because of our geography. That is the fundamental problem I have with the whole proposal, because it feels like we are removing ourselves from being a front-line nation in receiving people. I believe the Minister does not actually think that, but this would be the impact. We need to strike these clauses out.
Baroness Hamwee (LD)
My Lords, my name is to a number of amendments in this group—including Amendments 69A, 71A, 71B, 73A and 73B—and they all come from the UNHCR. I had written down not “guardian” but “steward”, but it comes to the same thing—that is, stewardship of the convention. I am not suggesting for a moment that I would be happy—or that it would be happy—to see these clauses remain in the Bill, and I hope I am not too much in “lipstick on pigs” territory, but given that the UNHCR of all bodies has proposed these, I think it right that I speak to them, and I will do so reasonably quickly.
The UNHCR has reiterated that the Bill is fundamentally at odds with the Government’s avowed commitment to uphold the UK’s international obligations under the convention, and its long-standing role as a global champion of supporting and protecting refugees. It has reminded us that three safeguards are essential to any inadmissibility rules. First, they must not operate in a way that denies the fundamental right to seek and enjoy asylum, which is another way of saying a good deal of what has already been said. Secondly, they must protect rights under international law during the refugee process and once a refugee has been recognised. Thirdly, the aim should be to increase access to asylum globally. Clause 15 does not meet those tests; in the interests of time, I will not go through why.
The amendments in my name are to prevent the UK breaching international standards. They would mean that a safe third state must be safe in law—I should put that first—but safe in practice, and that a claim must be considered under the Immigration Rules, not as an optional matter; they broaden the circumstances in which the Secretary of State must consider the application and reduce the risk of an asylum seeker being sent to a country which is not a signatory to the convention and does not respect the rights of refugees under international law. The “connection” would be what most people would regard as a connection in ordinary language, and they define a “relevant claim” as a claim for protective status consistent with the convention. On Tuesday there was a lot of discussion about the importance of the convention as a matter of morality and, very importantly, as law. These amendments relate to both.
On the issue of formal returns agreements, to which the noble Lord, Lord Rosser, referred, Amendment 195 would require a returns agreement before regulations were brought into force. I agree with that but with the condition that the agreements were acceptable. The amendment perhaps begs the question: I would like to think that it would be possible—it would be proper—for Parliament to have a role, which it will in an international agreement, and that amendments that are thought by Parliament to be required are made, so that the agreement is not just imposed.
Lord Paddick (LD)
My Lords, there are lots of issues here, but I start by making an overarching comment. A decade or more ago, the Home Office was dealing with many more applications for asylum than now. I am talking about initial decisions, not appeals. It was dealing with them more quickly and more effectively; the backlog was lower; and the successful appeal rate was lower. I try to be a “glass half full” person and usually fail miserably—but enough of my problems. Let me put it this way: the Home Office has proved in the past that it can deal efficiently and effectively with many more asylum applications than it is facing today. The fix for the current problems lies in the staffing systems and processes of our Home Office, not in the legislation or the number of asylum applications.
I have said it before, and I will say it again: the Government are focusing on the wrong things in the Bill and doing nothing to address the things that need to be addressed. This group of amendments is about unfairly and unreasonably reducing the number of asylum applications rather than increasing the capacity of the Home Office to handle them effectively, as it has proved it is capable of doing in the past.
Clause 14 proposes that all claims for asylum from EU nationals must be ruled inadmissible and that, as it is not a decision to refuse a claim but a decision to refuse to consider a claim, there be no right of appeal. A claim can be considered in exceptional circumstances, but the examples given are where the EU state is at war and has suspended the European Convention on Human Rights, or is going off the rails to such an extent that the EU itself is taking action against it for not complying with the standards of human rights expected of a member state.
These exceptional circumstances do not go far enough, as the noble and learned Lord, Lord Etherton, said. We have seen EU states fail to act or take sufficient action to protect minorities. He mentioned Hungary. In 2020, six Polish cities announced LGBT-free zones. It may not necessarily be the case that an EU state, or even a municipality within an EU state, is overtly persecuting minorities, but failing to protect some minorities may make it unsafe for them to be in a particular state and as such may amount to grounds for asylum in the UK. Surely Home Office officials can determine whether any application for asylum has merit, whoever it is made by and whatever part of the world the applicant is from, without blanket bans of this kind in primary legislation. Amendment 68 from the noble and learned Lord, Lord Etherton, would be useful if the clause survives, but Clause 14 should not stand part of the Bill.
Another category of claim the Government want to rule as inadmissible is where the claimant has a connection, however spurious, with a safe third state. It just smacks of: “Let’s invent lots of excuses for rejecting someone’s asylum claim, however far-fetched they may be.”
In relation to the other amendments, if the clause remains part of the Bill, of course a safe third state must be safe—and that means safe for everyone, including minorities. It means that their rights will be protected and that the asylum system is compliant with the refugee convention. Of course the Home Secretary should not be able to remove a genuine refugee to any safe third state—to dump them anywhere in the world, whether they have any connection with that state or not.
On what planet does the following make sense? You establish some kind of connection between an asylum seeker and a safe third state, but you cannot send them there because you do not have a return agreement with that state. However, you still refuse to consider their application for asylum. So what are they supposed to do now?
Another amendment seeks to prevent the following scenario: even if the refugee has family in the UK, they could still be deported to a safe third state—“Sorry, lad, I know your parents are here but you’ve got a connection with Turkey because your grandparents are old and frail and could only make it that far, so off you go”.
The conditions for establishing a connection with a safe third state—we have seen this sort of thing before—look like an awayday board blast, where there are no wrong answers and anything you can think of is uncritically written on a flipchart. Can “Well, we think you should have made a claim elsewhere” seriously be a reason an official can give to rule a claim inadmissible, with no right of appeal?
Clauses 14 and 15 should not be part of the Bill, and we will support the other amendments only if those clauses remain.
I was going to speak to Amendment 76, which seeks to override
“all prior national and international law”,
but there is no one here to speak to it, so I shall decline.
Lord Rosser (Lab)
I have the Clause 15 stand part debate and Amendment 195 in my name. I thank the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Etherton, for their support in opposing this clause, and my noble friend Lord Blunkett for his support on Amendment 195.
Clause 15 puts in the Bill an existing immigration law on inadmissibility that makes any asylum claim inadmissible in a number of circumstances, including if the claimant has passed through a safe country or if they have a connection to a safe third country. The result of a finding of inadmissibility is that, unless the Secretary of State decides that there are exceptional circumstances, the claimant will be denied access to the UK’s asylum system for a “reasonable period”, currently defined as six months in Home Office policy, while the UK seeks to transfer them to “any other safe country”. With the huge backlog and delay currently in the system, it is impossible to understand how adding another six months to the asylum process will help an already dysfunctional system.
We believe that, as drafted, Clause 15 should not stand part of the Bill. It is just not acceptable or deliverable in practice. We have concerns on the definitions of “safe third state” and “connection” and the lack of relevant international agreements. Serious concerns have been raised by the UNHCR and the cross-party Joint Committee on Human Rights, among others. There is an absence of adequate safeguards against returning individuals to countries in which they will be denied rights owed to them under the refugee convention.
Safe returns, as part of an international asylum system, are not new and are accepted under agreed conditions. However, this clause does not provide for safe reciprocal return agreements. Even as it stands, the UK Government do not have return agreements with EU member states—namely the “safe third countries” that refugees are most likely to have passed through.
Lord Etherton (CB)
My Lords, I support the proposal from the noble Lord, Lord Rosser, to exclude Clause 15 from the Bill, for a wide variety of reasons.
First, if a claim is deemed to be inadmissible but to satisfy the convention, that seems effectively to be saying that the person is not a refugee within the convention. That does not make sense. If they satisfy the definition of refugee within the convention, they have a claim. It can be dismissed, and then there will be a right of appeal. What cannot be said—which is effectively what is being said here—is “We’re not going to hear you at all, even though you are a refugee within the strict terms of the convention”. So I take issue with the very idea of inadmissibility with no right of recourse at all by way of an appeal.
Secondly, the terms of Section 80C to be inserted into the 2002 Act in relation to four and five seem completely contrary to both the wording and principle of the convention. My understanding of Clause 4 is that it is, in some way or other, intended to be made analogous to the Dublin III regulation.
There are a number of points to be made about that. First, we are no longer part of the EU or of the Dublin regulation. Perhaps more importantly, EU member states themselves have recognised that the Dublin regulation has failed. On 23 September 2020, the European Commission adopted what they called the New Pact on Migration and Asylum, following consultations with the European Parliament, member states and various stakeholders. The PR notice from the European Commission, which is available on the internet, states:
“The new pact recognises that no member state should shoulder a disproportionate responsibility and that all member states should contribute to solidarity on a constant basis.”
It has failed because the effect of the Dublin regulation, when strictly applied, means that certain states are overwhelmed with refugees because they are inevitably the first state on the way through to somewhere else. What is happening at the moment is that the Commission is proposing to replace the Dublin III regulation with a new regulation on asylum and migration management. So, frankly, there is no point in referring to the Dublin III regulation. It has failed in practice, and we should not be emulating it.
Furthermore, proposed Section 80C(4) is inconsistent with the terms of the convention itself. There is nothing in the convention, in Article 31 or anywhere else that makes this “connection” mean that a refugee claim would fail.
I have another point about condition 4, and I would welcome clarification from the Minister on it. The description that would render a connection with the state, and therefore the claim, inadmissible is exactly the same as the definition of arriving “directly” for the purposes of Clause 11. Clause 36 effectively amplifies Clause 11 and paragraph 1 of Article 31 of the convention. It says:
“A refugee is not to be taken to have come to the United Kingdom directly from a country where their life or freedom was threatened if, in coming from that country, they stopped in another country outside the United Kingdom, unless they can show that they could not reasonably be expected to have sought protection under the Refugee Convention in that country.”
On this particular approach, you are never going to get anywhere near Clause 11 because you will be knocked out under Clause 15—so I do not understand that contradiction. Once you fall within condition 3, which is the same as condition 4—which is the same as not arriving directly under the definition in Clause 36 —you are knocked out. So which is it—are you knocked out or do you still have some right under Clause 11, admittedly, to show that you could with good cause fall within either group 1 or even group 2? I am left confused by that.
Condition 5, on which the noble Lord, Lord Rosser, and others have eloquently spoken, provides
“that, in the claimant’s particular circumstances, it would have been reasonable to expect them to have made a relevant claim to the safe third State (instead of making a claim in the United Kingdom).”
Nothing in the Dublin regulations says that, even if they were to apply—and there is certainly nothing in the convention that would make such a condition apply to exclude a claim.
So I support the suggestion that Clause 15 should be excluded because, with respect, it seems to be a muddle in a whole series of different respects—legally, practically and in principle.
Baroness Williams of Trafford (Con)
My Lords, I thank noble Lords again for speaking to this group of amendments. I appreciate the thoughtful and well-meaning intent of Amendment 68, but we cannot accept it. The definition of “persecution” is well established and must be on the basis of a refugee convention reason—namely, race, religion, nationality, membership of a particular social group or political opinion. It is reiterated in Clause 30(1)(c) that persecution can be committed by
“any non-State actor”
where the state is
“unable or unwilling to provide reasonable protection”.
Given the level of protection afforded to EU nationals, through fundamental rights and freedoms, EU countries are inherently safe, and individuals are exceptionally unlikely to be at risk of persecution. If individuals experience discrimination, they can seek protection from within their country of nationality.
That said, the noble and learned Lord, Lord Etherton, might be comforted to have it confirmed that our processes already acknowledge that it may not be appropriate to apply inadmissibility to EU national claimants in exceptional circumstances. The list of exceptional circumstances included in the provisions is not exhaustive; it looks to protect individuals in the very rare circumstances that a member state is at risk of a serious breach or where there exists a serious and persistent breach of the values under the Treaty on European Union, including equality.
Baroness Chakrabarti (Lab)
Briefly, on the Minister’s previous point in response to the right reverend Prelate about refugees being able to fly here instead of making perilous crossings, will she make a commitment that the Government will not slap transit visa restrictions on jurisdictions that produce a lot of genuine refugees because of what is happening over there, and that they will not use carriers’ liability as a deterrent for people trying to escape through that safer method?
Baroness Williams of Trafford (Con)
Can I write to the noble Baroness on that? I suspect that I will misspeak if I try to answer because there are several things in that question that I am thinking about. I hope that she is okay for me to write to her.
The definition of a safe third state is already set out in the clause. It ensures that, even if a country is not a signatory to the refugee convention, the principles of the convention should be met if we are to remove an individual to that country. It defines safe third countries as states where an individual will not be sent to another state where they would be at risk of persecution or a breach of their Article 3 ECHR rights. This is consistent with our obligation under the refugee convention to ensure that individuals are not subject to refoulement; I keep pronouncing it as “refowlment”, which is completely wrong. This definition has been part of our previous legislation on safe countries and is a widely recognised definition of a safe third state; it is used in EU law under the procedures directive.
I want to come to point made by the noble Lord, Lord Dubs, that the UNHCR says that we are breaking the refugee convention. There are three groups of amendments on this in Committee—not today, but shortly, so I will not go too much into the convention. We have already touched on it. We think that everything we are doing complies with our international obligations, including the convention. The first safe country principle is the fastest route to safety and widely recognised internationally. It is a fundamental feature of the Common European Asylum System. It is self-evident that those in need of protection should claim in the first safe country and that is the fastest route to safety.
There are different ways in which an individual may be protected and not all of them require entitlements that fall under the refugee convention. To define a safe third state in the way that is suggested by these amendments ignores the fact that other forms of protection are available to individuals which ensure that these countries are safe for them to be removed to. We will only ever remove inadmissible claimants to countries that are safe. Using this definition is not a new approach. It has been part of our previous legislation on safe countries. I do not think these amendments are necessary.
On Amendment 70, the ability to remove an individual declared inadmissible to any safe country has formed a part of our inadmissibility process since the changes to the Immigration Rules in December 2020. This amendment would remove a provision that Parliament has already had the opportunity to scrutinise. The aim of these provisions is to disincentivise people from seeking to enter the UK by dangerous means facilitated by criminals. They send a clear message that those arriving via an irregular route may be eligible to be transferred to another safe country, not of their choosing, to be processed.
I do not agree with the premise of Amendments 71 to 73A and 195. Agreements by a safe third country to accept an asylum seeker may not always be via a reciprocal or formal arrangement. It is right to seek removals on a case-by-case basis where appropriate. Doing so has formed a part of our inadmissibility process since the changes to the Immigration Rules in December 2020. I do not think that these provisions are unworkable without formal agreements in place. That said, I do not disagree with the need to get formal agreements in place. Without providing that running commentary, that is what we are working on doing.
Lord Dubs (Lab)
Will the Minister confirm that to date we do not have an agreement with any country for the return of the people she is talking about?
Baroness Williams of Trafford (Con)
There are countries that we can return people to but, as I said, I will not provide a running commentary on ongoing discussions. Of course, there are countries that we return people to, or else we would never have returned anybody in the last two years, and we have.
The Lord Bishop of Durham
If I remember rightly, we returned only five last year. It is partly to do with Covid, I fully accept that, but it is also because there simply are not the agreements in place with the countries that we want to return those people to.
Baroness Williams of Trafford (Con)
I am not disagreeing with the need to have formal arrangements in place to return people. On that we are at one.
We also acknowledge that it might not always be appropriate to apply inadmissibility to all claimants who have travelled via or have a connection to a safe country. The provisions as drafted already have flexibility that allows us to consider if an individual has exceptional circumstances to warrant consideration of their asylum claim through the UK asylum system. That includes consideration of the best interests of any children affected.
Lord Kerr of Kinlochard (CB)
How does case-by-case work? If we are not going to have agreements and the Minister says it is much better to do it case by case, how does that work? The diplomatic post in the capital in question goes in and says, “We have Mr X in an accommodation centre in Kent. We’d like to send him to you because we think he has a connection to you and we don’t want to let him have asylum here.” What happens if the country in question says, “Well, if he’s with you, he’s your problem”? Do we just put him on a plane and tell him to take his chances at the other end, or are we negotiating his terms of entry into the third country?
Baroness Williams of Trafford (Con)
I think it is both. We need to assess people on a case-by-case basis and we need to have return agreements in place. It is not an either/or. I fully acknowledge the need to have return agreements in place. We could not return someone to a country that said it would not accept them; that simply would not be on. That underlines the need to have formal return agreements in place.
Lord Rosser (Lab)
Does that mean that the Government accept that Clause 15 is pretty meaningless without such agreements in place? There is no argument about that, then.
Baroness Williams of Trafford (Con)
No, I do not accept that Clause 15 is meaningless. I am agreeing that we need to have return agreements in place. I do not think anyone would disagree with that point.
Lord Rosser (Lab)
If we do not have return agreements in place by the time this clause comes in, we will end up with a lot of people being here for six months while the Government try to find out if they can send them back to another country. If you have no agreements with any other countries, you know before you start that that is a further six months wasted before the Government seek to do anything meaningful. Clearly the clause is meaningless without those agreements in place.
Baroness Williams of Trafford (Con)
I was going to go on to say that if no agreement is possible within a reasonable period, the individual’s asylum claim will be considered in the UK, but I am not disagreeing with the point that return agreements need to be in place. I think I have made that quite clear. Similarly, this is a global challenge, so every nation in the world has to be mindful of the fact that they will be in similar positions as the months and years go on.
Lord Kerr of Kinlochard (CB)
No other country is in this position because other countries believe that the refugee convention means what it says. I am uneasy, and I think the noble Lord, Lord Rosser, must be right, but what makes this particularly peculiar is that we are considering inadmissibility here. Suppose there were an agreement in place. Suppose we were handling a case—the Minister says that it is best done case by case—but we have not done anything except say, “This is inadmissible.” We do not know anything about this chap. He has not had an appeal turned down and has not been categorised in group 1 or group 2; he has simply been declared inadmissible. What does the diplomatic post in the intended recipient country have to go on?
Baroness Ludford (LD)
Surely the noble Lord, Lord Rosser, is right: there is no realistic possibility. The Minister keeps “not confirming” that there are no return arrangements in place yet; she lives in hope, but the reality is that there are none and it seems unlikely that there will be any in the near future. I know there are hopes for one with France after the presidential election; well, good luck with that.
The Government wanted Brexit, they got Brexit done and Brexit meant that we no longer enjoy the Dublin regulation. Realistically, the countries that she is talking about sending people back to are mainly EU countries. Frankly, the chances of having a readmission agreement with the EU are for the birds, so we are going to be seeking bilateral agreements—and none is in prospect. So Clause 15 is indeed basically window-dressing.
The noble Lord, Lord Rosser, mentioned that apparently 6,500 cases have been declared inadmissible. All we do by kicking the can down the road is create more people waiting, more people demoralised and more work for the Home Office. It is all completely unrealistic.
Lord Green of Deddington (CB)
My Lords, I am not sure whether this is helpful to the Minister or not, but the Dublin agreement was just quoted. Over the last five years, we asked France and Germany whether they would take back 2,480 cases. They took 234, which is just under 10%. Let us not imagine either that the Dublin agreement was useful or that something similar will be in future.
Baroness Williams of Trafford (Con)
That is a very good point. I think we talked about this the other day, in terms of returns. We actually took far more than we returned under Dublin. At this juncture, I would say that we do not need formal agreements in place.
Lord Kerr of Kinlochard (CB)
The noble Baroness should be careful. I quite agree that it was an interesting point, but it is a point that works for the noble Lord, Lord Rosser, not for the Minister. While there was a Dublin agreement and only 10%—I do not vouch for the figure, but the noble Lord, Lord Green, may be right—what do we expect to happen when there is no agreement? Do the Government expect a higher acceptance rate from the French and Germans when there is no agreement, when they are declaring the guy inadmissible?
Baroness Williams of Trafford (Con)
I do not know if the noble Lord heard my last point, but we do not necessarily need formal return agreements in place. We can do returns without formal agreements. The point about Dublin is that the formal arrangements that were in place did not necessarily work. It is important to try both—formal and informal, diplomatic and otherwise. It works both ways and, as I said, this is a global challenge. It is not that it is not an EU problem either.
Lord Rosser (Lab)
Can I just be clear? Will this then work on the basis of some ad hoc arrangements that will be determined through diplomatic channels, in which other countries take people whom we have declared inadmissible? As I understand it, the number of people we are likely to declare inadmissible will be high. Will all that be done by ad hoc arrangements? Will there not be any agreements and will these countries come forward and say, “Yes, that’s fair enough. You declared the claim inadmissible; of course we will take them back”. Is that how it is going to work?
Baroness Williams of Trafford (Con)
My Lords, I am saying that there are a number of ways in which we can seek to secure this—formal, informal, diplomatic and otherwise. I am not saying there is a single solution to returns. Therefore, Clause 15 still needs to be in place.
It might not always be appropriate to apply inadmissibility to all claimants who have travelled via or have a connection to a safe country. The provisions that we have drafted already have flexibility that allows us to consider whether an individual has exceptional circumstances to warrant consideration of their asylum claim through the UK asylum system. As I said, this includes best interests. We also have the family reunion provisions that I mentioned earlier so, if individuals have family members in the UK, they should apply under those provisions. The inadmissibility provisions should not be used to circumnavigate those provisions and create a back door to enter the UK by dangerous means.
Furthermore, if an individual has not been recognised as a refugee, but has been provided with a different form of protection from refoulement, that country is safe for them to be removed to. To define a “safe third State” in the way suggested by the amendments ignores the other forms of protection available to individuals, which ensure that these countries are safe for them to be removed to.
Regarding Amendments 74, 73B, 74A and 75B, the UK should not be obliged to assess the substance of an asylum application where the applicant, due to a connection to a safe third country, can reasonably be expected to seek protection in that third country, or where they have already sought protection in a safe country and have moved on before the outcome of that claim, or where a claim has already been granted or considered and refused. This is a necessary part of achieving the policy aim of deterring those unnecessary and dangerous secondary movements. We are not alone in operating this practice. These amendments ignore the other forms of protection available to individuals that ensure that these countries are safe for them to be removed to. Amendments 75, 75A, and 76 would significantly undermine the aim of these provisions. The provisions as drafted send that clear message for those who could and should have claimed asylum in another safe country to do so.
I commend the spirit of Amendment 76, which would introduce a new clause to strengthen our inadmissibility provisions and deter irregular entry to the UK, particularly where that means of entry indicates that individuals have travelled to the UK via a safe country. I agree with the premise of this amendment—that access to the UK’s asylum system should be based on need and not driven by criminal enterprise. The provisions in the Bill send that clear message. However, this proposed new clause probably goes too far, and would breach our international obligations. It could place individuals in indefinite limbo, which would be against the object and purpose of the refugee convention. The provisions as drafted ensure that individuals are not left in limbo, with their asylum claim neither considered in the UK nor another safe third country. If after a reasonable period it has not been possible to agree removal of the individual to a safe third country, as I said earlier, their asylum claim will be considered in the UK. The introduction of Clauses 14 and 15 as they stand aims to strengthen our position on inadmissibility, further disincentivise people from making dangerous journeys, and encourage them to claim asylum in the first safe country.
I will leave it at that. I hope that noble Lords will be happy not to press their amendments.
Lord Paddick (LD)
The Minister said that two issues were widely recognised internationally. One was the definition of a safe third country and the other was on the first safe country principle—that refugees should claim asylum in the first safe country. The United Nations High Commissioner for Refugees asked for the definition, in the amendments, of a third safe country, so it does not agree that it is a widely recognised international definition. The UNHCR also says that it does not recognise the first safe country principle and that there is nothing in international law about it. Does the Minister accept that, even if she says that these things are widely recognised internationally, they are not recognised by the UNHCR?
Baroness Williams of Trafford (Con)
We have had wide discussions about the UNHCR’s opinion on this and think that we are complying with international law. It is up to each state to interpret the refugee convention. I know that the noble Lord and most of this House do not agree but it will ultimately be for Parliament, through the passage of the Bill, to interpret what Parliament thinks of the refugee convention.
Lord Green of Deddington (CB)
My Lords, I will not move Amendment 76 and will consider the Minister’s comments on it.
Lord Etherton (CB)
My Lords, I am extremely grateful to the Minister for battling so valiantly in relation to all the points that have been raised, and am extremely grateful for all the amendments that have been spoken to. What has become clear from this discussion is that there are, on any footing, immense practical difficulties in relation to Clauses 14 and 15. In effect, I think the Minister accepted that it is not going to be straightforward to repatriate people with inadmissible claims to other EU countries without any agreement. The expression “window dressing” has been used. It is going to be very difficult.
I hope I correctly interpreted the Minister in getting my crumb of comfort from Clause 14. I think she reassured me that the exceptional circumstances specified were not closed. As a statement from the Dispatch Box in Parliament, recorded in Hansard, that is quite an important point. If Clause 14 remains, it will give at least some people some succour at any event, particularly in the circumstances I mentioned: an EU country which does not prevent those who are citizens, resident or present within the country, from persecuting others belonging to a social group, or for some other reason.
I am afraid that the overwhelming sentiment—and certainly my view—was that whatever may be said by the Government about adopting existing expressions which are generally used or have been previously used, in vital respects Clause 15 is inconsistent with the convention. This is not in a complex way, but in an obvious way. I am sorry to say this, but to my mind as a lawyer it is an egregious contravention of the convention. I ask the Minister about, for example, condition 5 in new Section 80C. Not only is that not in the convention, but I do not know where it comes from. I can see it is there as a matter of policy but it is not in the Dublin regulations, so far as I can recall. As I pointed out, in any event the Dublin regulations are being revised, so there is no point in going back to them.
There are a number of difficulties. There is one point I was hoping the Minister might be able to reply to that she has not. I would be grateful if she could explain perhaps in communication with me. How does one reconcile condition 4, which is failing to make a claim in the first country—thereby rendering you having a connection and the possibility of inadmissibility—with one of the requirements under Clause 11 to satisfy Article 31, which is arriving directly, because you never get there if you are rendered inadmissible? At the moment I do not see how the two fit together. I am not suggesting it is a straightforward and easy point; it is a lawyer’s point, but an important one. It shows a muddle somewhere along the line. But, on the basis of everything that has been said, I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
If Amendment 69 is agreed I cannot call Amendment 69A because of pre-emption.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
If Amendment 71B is agreed I cannot call Amendment 72 because of pre-emption.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
If Amendment 74 is agreed I cannot call Amendment 74A because of pre-emption.
Lord Coaker
“(1A) The Secretary of State may not serve an evidence notice on a person who—(a) has made a protection claim or a human rights claim on the basis of their sexual orientation or gender identity;(b) was under 18 years of age at the time of their arrival in the United Kingdom;(c) has made a protection or human rights claim involving sexual or gender-based violence;(d) is a victim of modern slavery or trafficking; oron other categories of person on whom the Secretary of State considers it would be inappropriate to serve an evidence notice.”Member’s explanatory statement
This amendment probes the serving of an evidence notice on vulnerable groups.
Lord Coaker (Lab)
My Lords, my noble friend Lord Rosser tabled Amendments 77 and 89. In this group we also very much support the important amendments in the name of the noble and learned Lord, Lord Etherton; those of the noble Baroness, Lady Hamwee, to remove the deadline; the crucial amendments of my noble friend Lord Dubs on the weight given to evidence; and indeed the amendment of the noble Lord, Lord Paddick. This is another important group of amendments.
The Government are aware that there are extreme and widespread concerns over the impact of the late evidence provisions in this part of the Bill, particularly the impact on vulnerable groups of people. I am pleased that the Government agree, because in their equality impact assessment which goes with the Bill there are hundreds of quotes that could be used to support the amendments that have been put down by various noble Lords. I have picked just a couple out. For example:
“We will continue to consider ways in which to mitigate adverse impacts on vulnerable people.”
Astonishingly, it also admits that:
“Where we do not have data, we have made assumptions.”
One hopes that if they have made assumptions on legislation which we are going to presumably pass at some point, we will continue to look at how we mitigate these consequences.
Noble Lords will be particularly interested in a quote from the Government’s own evidence to themselves:
“There is a risk that our policies could indirectly disadvantage protected groups.”
That is the Government’s own evidence to themselves. They are worried about the impact on protected and vulnerable groups—they say so in their impact assessment. If noble Lords have not had a chance to read all if it, it is worth reading in great detail. If the Government come back and say that there is no need for some of these amendments, they are actually contradicting their own evidence. So I support the Government’s equality impact assessment of these amendments and hope that noble Lords will also support it, and that the Government will welcome the amendments for further clarifying their own impact assessment.
Crucially, the amendments seek to provide more clarity on how vulnerable groups will be considered and what will be accepted as, for example, a good reason for late compliance. It is well understood, but not particularly reflected in these provisions, that those who have experienced trauma may find it intensely difficult, if not impossible, to disclose their experiences on demand.
Amendment 77, in the name of my noble friend Lord Rosser, would prevent evidence notices and the strict cut-off date for evidence being served on children, people seeking asylum based on their sexual orientation or gender identity, or survivors of sexual violence, gender-based violence or modern slavery and trafficking. I should declare again my interest as a research fellow at Rights Lab, at the University of Nottingham, in respect of modern slavery and trafficking. This amendment seeks to probe what the approach will be to these and other vulnerable groups.
I was struck by my noble friend Lord Cashman’s speech, on Tuesday, about somebody fleeing persecution because of their sexual orientation. He said that when you arrive at a place of safety, your first thought is that you are safe, not whether you are complying with a notice of what you will be required to do by a certain date or else be in trouble; indeed, when you are fleeing from whatever it is you are fleeing from, you first thought is not whether you have picked up all the relevant papers. These are the sorts of things that we need to consider.
Crucially, the amendment is not limiting, as it allows the Secretary of State to recognise further vulnerable groups who should also be exempt from these provisions. There is always a problem when you generate a list that there is someone you do not include.
An LGBTQ+ asylum seeker may face obvious problems providing evidence of sexuality, given that they will have been forced to hide in their home country through fear of persecution or death. They have fled to seek safety. They may not be being interviewed through a translator, the fear has not left them, they may not have the language with which to express what they have been through, and they may be fearful for the loved ones they have left behind. I know many noble Lords will have met many victims and survivors. Part of the problem is the concern they have for people at home, back in the country they have fled. I use myself as an example, as I know other noble Lords might: I would not comply with an authority, even if I felt safe, if I thought that my sister, brother, uncle, husband, wife or whoever was going to be put in danger—I just would not. I sometimes wonder whether what the Government are suggesting complies with the real world in which we all live.
Women for Refugee Women, which supports women fleeing gender-based violence, has said that
“because there are so many legitimate reasons for why a woman who has survived gender-based violence may submit evidence late, we do not think there is a way in which these evidence notices can be implemented fairly in respect to these highly vulnerable individuals.”
The Government themselves recognise that these specific difficulties exist, yet now, if a vulnerable person cannot produce that relevant evidence by a fixed date, it will be considered to have less weight than it is actually worth. That is included in the legislation, as laid out in the clauses we are considering at the moment.
Particularly concerning is that victims of modern slavery and trafficking are included in these provisions. The Government’s own statutory modern slavery guidance says that victims may be
“reluctant or unable to self-identify … Victims may experience post-traumatic stress disorder and anyone interviewing a potential victim should be aware of the impact of trauma on the interviewee, for example difficulty recalling facts.”
Why then, on the one hand, does guidance recognise the impact of trauma in disclosing experiences, yet, on the other, the Bill includes provisions that penalise people for not being able to hand over a neat life story on a deadline? That is contradictory.
Can the Minister clarify—because it is not clear to me—whether these provisions will be applied to children? The number of children waiting for more than a year for their initial decision increased from 563 in 2010 to 6,887 in 2020. That is not because of a surge in applications; it is because of a breakdown in the asylum system. We need to be extremely careful that the Government’s answer to that huge increase is not to penalise children for a failure of the system.
The Bill provides for exemptions where a person has good reason for not complying on time, but we need more information, as we have heard in respect of other parts of the Bill, about what is meant in practice by “good reasons”. Is that a subjective judgment? Is it just left hanging? What does “good reasons” mean? Our Amendment 89 probes examples of what would be considered a good reason for providing evidence late for a PRN. The amendment includes examples of where there is evidence of post-traumatic stress and where it would potentially endanger a person to gather the needed evidence before the cut-off date. It would also require the Secretary of State to publish a non-exhaustive list of what would be accepted as a good reason. The Minister will understand that we are trying to understand what the Government mean by “good reasons”.
It is particularly interesting that the only answer to these queries that we had in the Commons was:
“Guidance … will be published and made available when these measures come into force.”—[Official Report, Commons, Nationality and Borders Bill Committee, Commons, 26/10/21; col. 357.]
We know how difficult it is for us to consider whether that is the appropriate way forward and or whether it satisfies this Chamber given that it is, “We’ll pass it, but don’t worry, the guidance is on its way, and we’ll deal with it”. I say with all respect to the Minister that that is not good enough. Parliament is being asked to pass this Bill now, and we need greater clarity and understanding about how it will function in practice.
Clause 25, on which there is the stand part debate, states that “minimal weight” should be given to late evidence. It is extremely problematic to give important evidence minimal weight based on a deadline rather than judging it on its merits. That is prioritising process over truth and factual evidence, and it will lead to bad decisions. It completely flies in the face of the established practices and procedures of this Parliament and our judicial system. I say again that the Government are prioritising process over truth and factual evidence and it will lead to bad decisions.
The system is currently not operating as it should. The proportion of asylum appeals that were successful in 2020-21 was 47%, so evidence is already not being given the weight it should be given because almost half the decisions are overturned on appeal, and it is leading to decisions that are incorrect. Why in this situation would we build in a mechanism to take evidence less seriously? It flies in the face of the reality that we are confronted with. We must ask how this measure complies with the legal requirement on the Government and all of us to act in the best interests of the child. Can it ever be the case that giving evidence of their need for asylum “minimal weight” is in their best interest?
We therefore strongly support my noble friend Lord Dubs’s Amendments 83 and 88 to remove, as recommended by the JCHR, the provision in Clause 25 that the deciding authority must have regard to the principle that minimal weight should be given to the evidence. It is quite an astonishing principle to establish in law that evidence should be given minimal weight rather than whether it is good evidence or bad evidence or whether it is truthful evidence or untruthful evidence. The noble Lord has been in court. I am sure that if he was giving evidence and somebody said, “Well, that’s minimal”, he would say, “Well, actually, it’s true.” I am not a lawyer, but I would hope that anybody representing me would put good evidence forward and the court would say whether it was good or bad, and you would hope to establish the facts.
Baroness Hamwee (LD)
My Lords, we have Amendments 78, 79, 80, 81, 82, 82A, 82B, 86A, 86B, 90 and 90A in this group. I have also put my name to Amendment 95A along with that of the noble Baroness, Lady Lister. I do not know whether she is planning to speak to it—it is the amendment tabled by the noble Baroness, Lady Coussins—but its thrust certainly falls within this group. Noble Lords will be pleased to know I am not going to speak precisely to each amendment.
I am slightly hesitant to raise this point, given the expertise of the noble Lord on the Front Bench and the noble and learned Lord sitting opposite, although it feels as if I have been sitting next to him through most of the passage of this Bill. Listening to the last exchange, is it something to do with the whole of our legal system that we place asylum seeker on one side opposite the state as the other party? The whole way this is designed is to have parties to proceedings fighting one another. I am glad to see the noble Baroness, Lady Chakrabarti, nodding at that. It has only just occurred to me.
This clutch of amendments addresses the period within which the claimant is to provide evidence. I hoped that the noble and learned Lord might be speaking ahead of me because I am sure I would be saying I agree with him. Why is the specific date a matter for the Secretary of State or the immigration officer? Different people will need different periods of time. That might be an argument for variability, but it should not mean that it can be an arbitrary date without there being a reasoned basis. The lawyers in the Chamber will tell me if I get this wrong, but I think one would usually expect to see time periods within tribunal rules with a possibility of applying for an extension, but the procedure rules are the subject of the next clause. I am concerned about whether this is a proper way to go about giving notice. It should be neutral and objectively appropriate, and Clause 17 gives the Secretary of State considerable power.
Under the new subsections introduced by Clause 18, the tribunal is required to make a statement as to whether the claimant has behaved in a way designed or “likely” to go to his credibility. When we tabled Amendments 82A and 82B, I was thinking about points noble Lords made and will make again and again about the impact of trauma on a claimant, and the difficulties someone may have—even someone who is not affected—in dealing with authority figures, accessing documents and so on. This point was very clearly made by the noble Baroness, Lady Neuberger, a couple of days ago. That is why I stress the word “likely”.
This gives me the opportunity to ask the Government why Clause 18 is included. It would be good to have that on the record. Others may have a different take on the reasons for some claims having taken the course they have.
In my Amendment 86A, I am not really seeking to amend the noble and learned Lord’s Amendment 86, just to add to it by requiring adequate time before a cut-off date in a priority removal notice. Amendment 86A would add more of the people about whom we have been concerned to the list; the same point is made on Amendments 90 and 90A.
I also have Amendment 86B in this group. I got into quite a circular argument with myself last weekend about this. I am not sure I resolved it, but I will not trouble the Committee with it this evening, given the time.
Baroness Lister of Burtersett (Lab)
My Lords, I support Amendment 95 in the name of the noble Baroness, Lady Coussins, who apologises for having had to leave early. This speech will be in two halves—although one will be rather bigger than the other. The first half is roughly what the noble Baroness would have said.
At Second Reading she spoke about the ways in which she believes this Bill places additional unacceptable barriers in the way of women refugees seeking asylum who are fleeing sexual violence and exploitation. The amendment seeks to remove one of those obstacles and to extend the benefit to other groups of asylum seekers who may be similarly disadvantaged, so that it is accepted that they have a good reason for a late claim.
As we understand it, the issue is that in the proposed legislation the authorities deciding an asylum claim or appeal are instructed to attach, as we have heard, only minimal weight to any evidence provided late by the applicant, unless there is a good reason for it being late. However, there is robust evidence to show that the trauma suffered by the victims of sexual violence or trafficking can impact on memory and the ability to recall information. The Home Office guidance itself makes this clear. The other categories she included in Amendment 95, such as victims of torture, modern slavery and trafficking, are just as likely to suffer the same effects on memory and should be protected in the same way. I strongly support what she would have said.
However, as the arguments from this perspective are very similar to those I made in support of Amendment 40 on Tuesday, I will focus on children, a group we have not talked much about so far, although I was very pleased that my noble friend Lord Coaker did so in introducing this group. It is the strong view of children’s organisations such as the Children’s Society—I am grateful for its help—that the Bill completely fails to protect children, a group in particular need of it. Despite recognition of this added need for protection, this Bill’s harsh reforms apply to children just as they do to adults, unless the Minister can tell me that I am wrong—I hope he can. This is not right; it is a serious failure of the Government’s duty to protect children.
We need only look at Clauses 25 and 17 to see the disproportionate impact many of these provisions will have on children and young people. Amendment 95 seeks to ensure that children are recognised as having a good reason for not providing evidence by the deadline and that any evidence they provide late is given due weight. We know from organisations on the ground that asylum-seeking children who have been forced to flee, who may have witnessed violence and the destruction of their homes or schools, or even death, and who may have endured traumatic journeys, might not be able to share all the details of their ordeal in the first instance to provide evidence to support their case. The particular difficulties children might face in providing prompt evidence are recognised by the JCHR.
The Government know this. Their only quality impact assessment, to which my noble friend referred, sets out how these clauses will have a disproportionate impact on vulnerable persons, including children. The Home Office’s Children’s Asylum Claims Casework Guidance makes it clear:
“Decision makers must take account of what it is reasonable to expect a child to know”—
or relay—
“in their given set of circumstances”.
It is inappropriate for authorities to question the credibility of a child’s claim if they omit information, bearing in mind the child’s age, maturity and other reasons that may have led to those omissions. Requiring time-limited evidence and penalising children when they are unable to meet the deadlines goes against the Government’s own assessments and guidance and does nothing to protect children or, as we have heard, their best interests.
As one young person supported by the Children’s Society, which has long supported asylum-seeking children and young people, reminds us:
“This is not a joyful moment in our lives. We have to talk through the worst parts of our past. It is very traumatic.”
Children and young people need time and a sense of safety before they can begin to disclose their experience. They also need good, child-appropriate legal representation, which we know they often do not get, unfortunately. All too often, asylum-seeking children receive poor initial legal advice, which can lead to ill-prepared claims and to them not feeling comfortable about setting out their information. Due to legal aid funding cuts, quality legal advice is not readily available.
Another young asylum seeker supported by the Children’s Society described his experience:
“My solicitor did nothing, it was horrible. They didn’t even prepare a witness statement for my interview. I had to do everything myself. I had my social worker but she didn’t know how to help me with my asylum case. The interviewer told me she had no information and I had to tell her everything.”
The Children’s Society sees many asylum-seeking children who have to provide evidence at later stages of their claim, not because of any weakness in the claim but because of the trauma they have endured or the consequences of non-existent or poor legal representation. No doubt the Minister will assure us that these concerns will be addressed in guidance and on a case-by-case basis, yet, as was highlighted in the recent report, An Inspection of Asylum Casework, guidance is often neither followed nor implemented by Home Office caseworkers. Home Office staff themselves stressed that they
“did not have time to consider each case on its own merits, contrary to the guidance they receive.”
So the aim of Amendment 95 is not to tie the hands of decision-makers or legislate for every situation in which a person might provide late evidence. Rather, it is to ensure that the most vulnerable are protected in the Bill, because we cannot leave their safety and well-being to chance. That is consistent with this highlighted observation from the JCHR:
“It is crucial that decision-makers recognise the many legitimate reasons why asylum seekers may struggle to provide evidence in support of their claims within tight deadlines.”
If Clause 25 stands part—I have to say that I will support the proposal that will be put by my noble friend Lady Chakrabarti that it should not—this amendment represents the minimum necessary to protect children, women, women fleeing gender-based violence and others in the most vulnerable circumstances.
I want to return briefly to what the noble Baroness, Lady Coussins, said. Given the Home Office guidance, we cannot see any logical or humane reason why the Government would not accept this amendment and establish on the face of the Bill that, in these circumstances, for these victims, any late evidence should always be accepted as being late for a good reason, and their application or appeal should not in any way be disadvantaged because of it.
Lord Green of Deddington (CB)
My Lords, I will speak briefly to Amendment 85 on the destruction of documents. I am a sponsor of this amendment, together with the noble Baroness, Lady Neville-Rolfe, who is unfortunately unwell and in isolation.
The purpose of these subsections is to indicate matters that might damage a claimant’s credibility in respect of an asylum or human rights claim. The destruction of documents is clearly one of these. Why else would this be done, except to make it much more difficult to identify the claimant and therefore much more difficult to assess their claims? Noble Lords will remember that claimants arriving by air used to cut up their passports and dispose of them in the aircraft’s toilet. That was dealt with by photocopying their documents before they boarded the aircraft. This time round, it is rather more difficult to counter, but it should certainly be regarded as relevant to an assessment of the validity of their claim.
Baroness Ludford (LD)
My Lords, I will speak to the five amendments in this group—Amendments 83, 88, 90B, 95A and 137, and the question of whether Clause 25 should stand part—all of which I have co-signed or are in my name. The four I have co-signed are inspired by the Joint Committee on Human Rights and are in the name of the noble Lord, Lord Dubs. He has had to leave and has asked me to give his apologies.
The provisions whereby the presentation of evidence, after a date specified by the Home Office or in a priority removal notice, is required to be treated as damaging to credibility or to be given minimal weight are unfair, unjustifiable and should be removed. I agree with everything the noble Lord, Lord Coaker, said.
I have also tabled Amendments 90B and 95A in the alternative, as it were. Under Clauses 21 and 25, the decision maker on priority removal notices or in an asylum or human rights claim would at least be obliged to consider whether the presumption of damage to credibility was fair, rather than looking solely at whether there were good reasons for the delay. Taking lateness into account should be rejected if it would be unfair.
The motivation for all these amendments is fair access to justice—both to comply with the European Convention on Human Rights and, as set out in Amendment 137 about removal notices, to uphold a common-law right to access justice. Yesterday, I had the pleasure of being at the Joint Committee on Human Rights session at which the noble Lord, Lord Wolfson, gave evidence. We discussed having the common law as an inspiration, as well as the ECHR, in the application of human rights. I am sure the noble Lord will be able to tell me that the Government at least accept Amendment 137.
I do not need to say more because the noble Lord, Lord Coaker, put it very well. To say that evidence is not convincing is one thing; to say that, because it has not been submitted by date X it is incredible or has no weight, is putting process over substance.
Baroness Chakrabarti (Lab)
My Lords, I shall speak against Clause 25 standing part. I agree with so much of what has already been said. This is a particularly tawdry little clause in an outrageous Bill, which, as we have heard, has been slammed by UNHCR, the custodian of the refugee convention, by the JHCR, Amnesty International, Human Rights Watch and everybody, it seems, except noble Lords opposite.
My noble friend Lord Coaker need not apologise for not being a lawyer. It is not necessary to be a lawyer to see how tawdry Clause 25 is and how it absolutely puts process over substance.
This area of the law is not about parking regulations, or the tax owed to the Revenue or even major civil or commercial litigation between powerful opposing forces. This is the David and Goliath situation referred to by the noble Baroness, Lady Hamwee. When an asylum seeker presents themselves to whoever—the Border Force or the Home Office—they are putting themselves in the trust of Her Majesty’s Government in the hope that this is the right place to be.
Noble Lords have been making arguments in Committee, and those opposite have been making arguments about forum shopping, wanting better lives and all those things as if they are terrible but, in essence, the refugee convention is about desperate people escaping and having a fair crack at being believed. They may not all be telling the truth. Whether they are or not, they may not all qualify for convention protection, but there should at least be a kind and fair reception and a fair crack of the whip. That means not taking tawdry little process points such as this.
I have been a refugee lawyer, in and outside the Home Office. When I worked as a lawyer in the Home Office—I am going back now to before the new Labour Government, when my first boss was the noble Lord, Lord Howard—we did not take tawdry process points like this. That was in 1996.
In a moment, the ever-avuncular and brilliant advocate, the noble Lord, Lord Wolfson of Tredegar, will get up and tell us not to worry, because this will come into play only when there are no good reasons. So, fear not, Women for Refugee Women, UNHCR, Amnesty International, ILPA and every other bleeding heart. The Home Secretary would call them activist human rights lawyers and they are perhaps almost as contemptible as refugees in her eyes. The noble Lord will say not to worry because, where there are good reasons, this does not come into play and there will not be an issue about evidence.
But why put this in the statute book? Immigration officers, the Secretary of State, the First-tier Tribunal, the Upper Tribunal and SIAC—these bodies are well capable of looking at evidence and credibility. It is an insult to their intelligence for them to look at whether there were or were not good reasons for late evidence. Sometimes late evidence is incredible and sometimes it is perfectly valid, because there are very good reasons—a host of good reasons, more good reasons than not—in relation to trauma.
Lord Green of Deddington (CB)
Would the noble Baroness like to say whether evidence is ever deliberately produced late in order that it is impossible to remove people for whom such a decision has been made?
Baroness Chakrabarti (Lab)
I have no doubt that that is sometimes the case, but my point is that you do not need Clause 25 to deal with that case, because the decision-makers listed here are well capable of looking at evidence whenever it is served. If the idea is that this is late, incredible or mischievous evidence, or the other concerns of the noble Lord, these decision-makers are capable of getting there by themselves. They do not need this insult to their intelligence that they must give it minimal weight. I never knew about this principle of minimal weight. It has been invented. Sometimes late evidence is good and sometimes it is bad, but this is asylum; refugees are at stake.
The noble Lord opposite always wants to talk about the numbers. He is very concerned about the numbers and I appreciate that, but this is not about numbers. It is about getting decisions right and protecting even the one claimant in a thousand who is the torture victim, who has been persecuted, who may be a child and who may have been trafficked. To turn this into a matter of a parking fine or commercial litigation, in which your case is prejudiced because you were only just advised that being gay is relevant and that you do not have to be afraid to say so, because this is Britain and Hungary, is tawdry. To make that process point, when we are talking about life or death—not big bucks or small bucks but life and death—is totally tawdry.
Clause 25 does not help. If anything, it will make life more difficult for the Home Office because, I promise you, there will be endless litigation about what good reasons are. That is why the amendments are helpful, because they are beginning to tease out what will eventually be the subjects of litigation. We do not need it. We all know that late evidence is sometimes an abuse and is sometimes incredible, but sometimes it emerges because people have only just got decent translators or lawyers, or country or other vital information, which is sometimes hard to get.
I am sorry to hear that the noble Baroness, Lady Neville-Rolfe, is unwell. I am sure that the Committee will join me in wishing her a swift and full recovery.
On the point about identifying documents, let us go back to the history of the refugee convention. Some of the most genuine refugees have to escape without identifying documents, and some of the least oppressed people are the ones who have fantastic documents. That is why Amendment 85 has to go. This is not the biggest problem in a terrible Bill, but Clause 25 is a tawdry little clause, unworthy of Her Majesty’s Government; let us strike it from the Bill.
Lord Cashman (Lab)
My Lords, it is a pleasure to follow my noble friend Lady Chakrabarti. I have deep concerns about Clauses 17, 19 and 25. Others have already expressed why, so I will not overly repeat myself. I congratulate my noble friend Lord Coaker on brilliantly moving the amendment in the name of my noble friend Lord Rosser. Equally, I associate myself with the amendments in the names of the noble Lord, Lord Paddick, my noble friend Lord Dubs and the noble and learned Lord, Lord Etherton.
The reality of what is sometimes the last line of defence, not only in LGBTQ issues but in other vulnerable situations, is that it is the last thing you want to have to deal with yourself. Sometimes the very notion of coming out to yourself is deeply painful, because the recognition in certain cultures, countries and religions means to shut yourself off, not only from a body of support, your religion or community, but from your family. Initially, to come out to yourself is a huge step. Then you have to make the decision, day in and day out, whether to come out in other, very ordinary situations. You are here and you have put in your claim, and someone might say, “How was your weekend? Did you spend it with your girlfriend?” You have to decide whether to lie or tell the truth. If you tell the truth, you may become isolated in the asylum community, and perhaps from your country or religion. This is the community that you associated yourself with, to give yourself support and belonging, in a country where you seek to belong. Then you come out in late evidence, with that last line of defence. If your claim is rejected, you are possibly putting yourself in danger at home, in that you could be returned to one of the seven countries where you are criminalised simply for the reason of being LGBTQI+, or to one of the 11 countries where you could face the death penalty.
I remember in the 1990s working on the case of an 18 year-old Iranian who came out in this country. His asylum application was going to be rejected. A group of us were privileged to intervene on his behalf. What that teenager had said publicly would have been recorded and noted back home. We were successful—I do not say this boastfully, but it is one of the few things I am proud of in my life—in preventing that young man being returned to Iran, where, like three other young men in the weeks before, he could have been hung by his neck on the gallows until he was dead. How will the Government deal with exceptional cases where people bring in late evidence in order to substantiate their claim?
Baroness Jones of Moulsecoomb (GP)
My Lords, I will speak to Amendments 83 and 88, which I have co-signed, and Amendment 96, but there are some other superb amendments. I am not a lawyer—I am not going to apologise for that because I have had an interesting life— but I did get a lawyer to look at this for me; not yet a QC, but obviously it is a possibility. Their thoughts were that these evidence notices treat asylum seekers like criminals—in fact, worse than criminals; they treat asylum seekers as if they were dreadful criminals.
In a criminal case, late evidence might be treated as less compelling than if it had been raised earlier on, but evidence is evidence, and if evidence demonstrates a fact, then that is a fact. Facts do not care about your timescales. Rather than allowing a tribunal to determine how much weight to give the evidence, Clause 25 forces them to give minimal weight if the evidence is supposedly late. Even if it were the most compelling evidence, a tribunal would be forced to give it minimal weight. That really cannot be right; it is not justice. I cannot believe the Minister will stand up—in a few moments, we hope—and say that this is justice. This is an artificial exercise. It is not founded in justice. It is a purely political venture to make it harder and harder for people to claim asylum, and to make it easier for them to be deported. It must be stopped.
Lord Etherton (CB)
My Lords, I will speak to my Amendments 82, 84, 86, 90, 91 and 96. I would like to start by taking up the point about the so-called principle specified in Clause 25(2) of the Bill
“that minimal weight should be given to the evidence.”
I am not aware of such a principle. Of course, there can be times when time limits are imposed in a court—and perhaps it can be done by statute—for evidence to be delivered, and if it is not delivered by that time it is excluded. But once evidence is before the court, as the Minister will appreciate, it has to be taken into account even if the relevant evidence—it may be documentary evidence—has been obtained improperly, when it should not have been disclosed or it has been disclosed inadvertently. Once the evidence is there, it is taken into account and given such weight as it is due. We do not have a principle in this country, so far as I am aware, of simply saying that if evidence is late we are not going to have regard to it. That seems to be a denial of justice. I certainly support all those who have spoken against that so-called principle.
I thank the noble Lord, Lord Coaker, for his introduction to the difficulties faced by minority groups, particularly LGBTQI groups, in relation to the giving of evidence. In deciding whether there is good cause for late evidence, or for failure to comply in a timely manner with a priority removal notice and so on, all my amendments—apart from one—put forward that there be, on the face of the Bill, a provision so that the difficulties and particular situations of people who have a protected innate or immutable characteristic must be taken into account. I went into this, your Lordships will remember, on Tuesday in relation to Clause 11, and there is no need for me to repeat it. It has been put very well by the noble Lords, Lord Coaker and Lord Cashman.
Apart from all the difficulties of having discreet, secret lives—particularly in the case of the LGBTQI community—and therefore perhaps not having any evidence as such, seeking information when it is required, and corroboration, from people back in the country from which asylum seekers come poses great difficulties. An asylum seeker will not want to implicate his or her family or friends, because they could suffer as a result. There are all sorts of adverse consequences as a result of conduct that is disapproved of in the many countries that proscribe sex between same-sex couples. There is a combination of a whole variety of things, in addition to all those other points made by people about the difficulty of coming to terms with one’s sexuality.
The same applies for single women. They have many similar problems: the shame of having left an abusive relationship, the shame on the family, the consequences for the family, the clandestine nature necessarily required for those women to come here—and then they may face a male authoritative figure. All these grave difficulties have to be taken into account.
I explained why this ought to be on the face of the Bill, despite the fact that the noble Baroness the Minister said it would all be dealt with in guidance, because, as the noble Lord, Lord Cashman, said, the record of the Home Office in relation to this is not good. I gave the statistics on Clause 11 earlier this week. In 2018, 29% of LGBTQI applicants were permitted asylum, but on appeal, taking the average from 2015 to 2018, nearly 40% of the appeals succeeded. That reality reflects the grave difficulties and the disbelief faced by these desperate people. That is why noble Lords will see in those amendments—apart from one; I will come to Amendment 91—that they are all to do with putting on the face of the Bill the need to take into account, wherever there is a reference to reasonable cause or what is practicable, the particular protected characteristic of the asylum seeker.
The one that is different is Amendment 91, which is one of the two amendments I have to Clause 22. Clause 22 provides for a new Section 82A to be inserted into the Nationality, Immigration and Asylum Act 2002 and provides for “Expedited appeal to Upper Tribunal in certain cases”. For there to be an expedited appeal, the Secretary of State has to
“certify P’s right of appeal”—
that is, the person served with the priority removal notice—as being appropriate
“unless satisfied that there were good reasons for P making the claim on or after the PRN cut-off date (and P’s right of appeal may not be certified if the Secretary of State is satisfied that there were good reasons)”.
What is important is that, whatever the Secretary of State has to be satisfied about, they should be reasonably satisfied. My amendment is to impose a requirement that the Secretary of State can certify the right of appeal under this clause only if satisfied on reasonable grounds, so that there is some principle that can be examined in the light of the particular facts of the case.
Lord Paddick (LD)
My Lords, as my noble friend Lady Hamwee explained, Clause 17 has the potential for time limits to be placed on the submission of evidence in support of an asylum claim. I am immediately reminded of the criminal caution in the Police and Criminal Evidence Act, which says:
“You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court.”
There is no time limit, you notice. I accept it is not a perfect analogy, because we have already established that asylum seekers are not illegal immigrants and, as my noble friend Lady Hamwee said, this should be an inquisitorial process not an adversarial one.
In this context, a notice served on a claimant saying something along the lines of “It may harm your claim if you do not provide evidence in support of your claim as soon as it is becomes available” seems reasonable. As in criminal cases, it should be left to the court, or in this case the tribunal, to place whatever weight it thinks appropriate on the evidence based on when it was submitted, and if it considers that the timing of submissions reflects on the credibility of the claimant or not. Placing a deadline for the submission of evidence seems completely arbitrary and unreasonable, hence Amendments 78 to 81. How long it takes to secure, collate, and submit evidence will be different in every case, and may be especially delayed in the case of vulnerable claimants for the reasons we discussed on Tuesday, and the reasons noble Lords have explained this afternoon, hence Amendments 78 and 82. Even if the Government want to instruct officials, why not do this through the Immigration Rules, as has always been done?
The rest of Clauses 17 and 18 seem superfluous. To instruct a judicial body by primary legislation what conclusions it must come to when it is presented with evidence appears unnecessary, unreasonable and unconstitutional. I say that not knowing anything about the constitution, but thinking in terms of separation of powers between Executive and judiciary.
Clauses 19, 20 and 21 relate to priority removal notices. These too set an arbitrary deadline that must be complied with—in this case, after which a person is liable to be removed and deported. I say that, but Clause 20(4) says:
“A priority removal notice remains in force … even if the PRN recipient ceases to be liable to … deportation”.
Amendment 87 asks why that is. I am guessing that it is to avoid having to serve a separate evidence notice.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I am grateful to all noble Lords who have taken part in this debate, which has ranged fairly widely. I will try to cover everything in my response. I start with Amendments 77, 89, 90B and 95A, which were spoken to by the noble Lord, Lord Coaker, on behalf of Lord Rosser.
We acknowledge that there may be many good reasons why an individual is not able to comply with either the requirements of an evidence notice or the requirements of a priority removal notice. We also accept that those good reasons may often be linked to the trauma that they have suffered. Where such reasons exist, they will be fully considered by decision-makers on a case-by-case basis and thereafter by the judicial system, should a claimant appeal the refusal of a human rights or protection claim.
The key point here is that every claim is unique; that is trite to say but none the less true. I therefore suggest it is correct that case-by-case scrutiny is given to all individuals. The good reasons test therefore takes into account objective factors, such as difficulties in obtaining evidence, but it would also include subjective factors, such as an individual’s particular vulnerabilities—related perhaps to their sexual orientation, as the noble Lord, Lord Cashman, and the noble and learned Lord, Lord Etherton, mentioned; gender identity; or, indeed, mental and physical health. I suggest that the good reasons test, which I think is appropriate, means that Amendment 77 is unnecessary.
To respond specifically to the point made by the noble Lord, Lord Cashman, who invited me to parse or gloss what good reasons are and are not, I respectfully say that the test is deliberately open, not circumscribed, to ensure that all relevant factors in the individual case can be considered. Specifically, I can confirm that LGBTQ+ protections will be dealt with in guidance that specifically addresses good reasons and how they may relate to LGBTQ persons and issues, because of course you can have an LGBTQ issue even if you yourself are not LGBTQ.
Further, under Amendment 77, a vulnerable individual who did not fall within the specified groups listed in the amendment may nevertheless be served with an evidence notice. If they provided late evidence, a decision would be needed on whether or not they had good reasons for that lateness; whereas at the same time an individual who happened to fall within the categories set out in the amendment would be free to raise evidence at any time. For reasons that may be entirely unconnected with the reason for their exemption, they would none the less be automatically free from any disadvantage under the system or the consequences in the legislation, based on what is essentially something of a tick-box exercise. I suggest that that would be unfair.
The noble Lord, Lord Coaker, asked how the test would apply to children. This was taken up by the noble Baroness, Lady Lister, speaking also on behalf of the noble Baroness, Lady Coussins. Guidance will be published setting out how decision-makers should consider the age of the child in the exercise of their discretion. This should be obvious but let me state it from the Dispatch Box anyway: evidence provided by a child will be considered in the light of their age, degree of mental development, and maturity, currently and at all material times previously. As part of our obligations under the public sector equality duty, as the noble Lord, Lord Coaker, said, equality impact assessments have been completed in respect of these clauses. Those assessments incorporate a consideration of the impacts on children.
We are concerned that Amendment 77 could also lead to perverse outcomes, whereby individuals who do not fall into one of the categories identified by the amendment could abuse the process by falsely claiming that they did. That would perpetuate the issues that these clauses are designed to address, to the detriment of genuine claimants, undermining their usefulness.
For similar reasons, Amendments 90B and 95A are unnecessary and would confuse the test to determine the acceptable reasons for something being raised late in response to an evidence notice or a priority removal notice. Unlike the good reasons test, which is fair and is an established principle in the assessment of credibility of an asylum or human rights claim, an unclear and, at least in practice, a rather subjective test of “fairness” risks inconsistent decision-making, which could lead to an increase in uncertainty for both decision-makers and claimants. For those reasons, I invite the noble Baroness to not move her amendments.
Amendment 89 introduces a requirement to publish guidance on good reasons within 30 days of the Bill receiving Royal Assent. This is an arbitrary deadline which is not necessary to include in the Bill. I have already said that good reasons will be set out in published guidance for decision-makers. This will be made available when the measures come into force. The amendment does not assist those in genuine need of protection and would in fact limit the discretion of decision-makers and undermine the effectiveness of the priority removal notices. For those reasons, I invite the noble Lord, Lord Coaker, on behalf of the noble Lord, Lord Rosser, to not move those various amendments.
I turn to Amendments 84, 90 and 96. In accordance with the public sector equality duty, protected characteristics must be considered by decision-makers when they are considering good reasons for lateness following service of an evidence notice or a priority removal notice. However, it is not intended that the good reasons are limited to the characteristics listed in Chapter 1 of the Equality Act 2010. For example, mental health issues or past trauma do not amount to a disability under the Act, but they will also be considered. These may be as important, perhaps even more important, than a protected characteristic in determining whether or not someone has a good reason for lateness. Therefore, the amendment is not only unnecessary but could have the unwanted effect of leading decision-makers to believe that they should be prioritising a narrower range of factors than those already intended within the Bill itself. I invite that amendment to be not moved.
I turn to Amendment 85, in the name of the noble Lord, Lord Green of Deddington, and my noble friend Lady Neville-Rolfe. Again, I associate myself with the remarks of other noble Lords: we wish her well. Clause 18 adds two new behaviours to the existing credibility provisions in Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It introduces the principles that providing late evidence without good reason or not acting in good faith should be damaging to the claimant’s credibility. Where there are good reasons for providing late evidence, that will not impact on their credibility.
The concept that certain conduct should be damaging to credibility is not new. Decision-makers must consider egregious conduct by the claimant, and it is then open to the Home Office decision-maker or the court to decide the extent to which credibility should subsequently be damaged. The good-faith requirement is intended to address behaviours such as those mentioned in the amendment, as well as any other behaviours that a deciding authority thinks are not in good faith. Therefore, there is no need, I would suggest, to single out, as this amendment does, particular behaviours to highlight them specifically.
Lord Green of Deddington (CB)
My Lords, is the Minister saying that in practice—I hope he is—if someone has quite clearly destroyed their documents, that will be taken into account when considering their claim?
Lord Wolfson of Tredegar (Con)
I really do not want —as I said earlier—to get into a position of glossing the wording of the Bill. It is very important that decision-makers and the courts are able to look at the Act—I hope that it will become an Act—and not my gloss on it. What they will have to do is to ask themselves whether there are good reasons or other circumstances, and whether the claimant acted in good faith. Those are the tests which they will have to apply. Although it is tempting to do so, I am going to resist the temptation to say that this would be included and that would not be included, because my underlying point is that this has to be assessed on a proper case-by-case basis and the statutory tests applied. I am going to leave it there, because I think I have said it clearly enough.
Let me now turn to Amendment 86A in the name of the noble Baroness, Lady Hamwee. For the priority removal notice to achieve its objective and operate efficiently, it is essential that those who receive the notice should raise any relevant claims and provide information and evidence before the date specified in the notice. That is to ensure that all claims can be considered sufficiently in advance of the person’s removal, reducing the extent to which removal can be frustrated, and to allow those, on the other hand, in need of international protection to be identified and supported as early as possible. For individuals who have received a priority removal notice, there will be standard timescales for recipients to respond, which will be set out in guidance. Guidance for decision-makers will also set out the circumstances where it would be appropriate for these timescales to be adjusted or extended.
When considering whether to extend the standard timescale, decision-makers will be required to take into account a wide range of factors and will not just be limited to the recipient’s experience of, or alleged experience of, sexual or gender-based violence or torture, or modern slavery or trafficking. The approach is certainly not arbitrary, to use the noble Baroness’s word. The guidance will, therefore, actually go further than these amendments and will require decision-makers to consider a wider range of issues when determining what is a reasonable and fair timescale for an individual to be able properly to respond to a PRN. For those reasons, I invite the noble Baroness not to press her amendment.
It should also be noted, while I am on this point, that all recipients of a PRN will receive a legal aid advice offer to support them in responding to the notice. Having experience of sexual or gender-based violence or torture, or modern slavery or trafficking, does not necessarily mean—I underline the word “necessarily”; I do not want to be taken out of context here—that an individual will acquire additional time or a longer period to respond. There are many factors and reasons why an individual may require additional time to respond. Again, each case has to be looked at on its own circumstances. Therefore, we need to adopt a case-by-case approach, and not the approach set out in this amendment.
Turning now to Amendment 87, in the name of the noble Lord, Lord Paddick, a person who has been issued with a priority removal notice can be subject to the conditions of the notice while it remains in force. That is a 12-month period after the cut-off date or, where a claim is received prior to the cut-off, the 12-month period after they have exhausted their appeal rights. We suggest that that is a reasonable period, which recognises that personal circumstances can change over time.
Lord Etherton (CB)
Is the Minister able to give an assurance that this guidance, which has been referred to a great deal, rather than putting what I would describe as cautionary provisions in the Act itself, will be ready before the Act comes into force and will be made sufficiently public so that there can be discussion and consideration of it by the general public?
Lord Wolfson of Tredegar (Con)
My Lords, I think I was asked a similar question, in a different context, on the police Bill. I will give the same answer, not least because I am conscious that a lot of these provisions are actually Home Office provisions. I can assure the noble and learned Lord that I will write to him with the answer to that question, so that when this matter comes back he will be in possession of the answer—rather than make an educated guess, which might turn out to be slightly inaccurate, from the Dispatch Box. I hope that is sufficient.
Baroness Lister of Burtersett (Lab)
My Lords, on that very important point, perhaps the Minister will take back to the Home Office that this Committee would very much like the guidance to be published in draft form in good time so that Members of the House and others can look at it.
Lord Paddick (LD)
I am sorry for interrupting, but I am becoming a little confused again, I am afraid, probably because we have been at this for a very long time and it is very late and so forth. Is the Minister saying that the deadline that is set for the submission of evidence will be set on a case-by-case basis, for example, if the applicant is particularly vulnerable? If vulnerabilities come to notice that were not initially brought to the notice of the decision-maker, will the deadline then be adjusted and perhaps extended as a consequence of that? Although there might be general guidance about what the deadline might be in every case, is it movable and adjustable in every case and might it be adjusted further as the case progresses? In which case, why on earth is this part of the Bill?
Lord Wolfson of Tredegar (Con)
Let me come to that point in a second. First, let me say that I almost took it as implicit in the request from the noble and learned Lord, Lord Etherton, that the Committee would like to have the guidance, but I have heard the point made, and I will certainly pass it on. I do not want to go over points I have already made, and I think when the noble Lord looks in Hansard, he will see that I have set out quite clearly why, first, we need to have a system whereby, in particular cases, the date can be extended or adjusted, but also, secondly, why that does not undercut the principle of actually having a date and having this structure. However, I am very happy to look again at what the noble Lord has just said. If, having read it, it seems to me that I can add to what I have already said, I will; otherwise, I respectfully direct him to what I said earlier.
Baroness Chakrabarti (Lab)
It may be that, because it has been a long day, I have missed something, or it may be that I have jumped the gun and the Minister was about to come to this point, but I have not yet heard the justification for having Clause 25 at all.
Lord Wolfson of Tredegar (Con)
There are a number of ways of skinning this particular cat because there are separate amendments but common themes. If when I am about to sit down, I have not dealt with it fully, I am sure the noble Baroness will intervene, but I will try to come to Clause 25 head on.
However, I was going to go next to Amendments 82A and 82B, both in the name of the noble Baroness, Lady Hamwee. Different elements of Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 have different thresholds in how they are applied to the facts of a case and how credibility is consequently damaged. Clause 18 is drafted to take this into account, so that decision-makers will take into account the relevant thresholds on a case-by-case basis. Clause 18 will encourage claimants to engage with the process in good faith and, along with the measures relating to late evidence in Clauses 17 and 25, to provide evidence in support of their claim at the earliest opportunity. As I said earlier, we think that by encouraging people to bring all their evidence upfront in protection or human rights claims, we can protect those who need protection and identify any unmeritorious claims as early as possible.
Turning to Amendment 82B, the good faith requirement is intended, as I think is obvious, to address behaviours that a deciding authority thinks are not in good faith. Where an individual who makes a protection or human rights claim exhibits a pattern of non-compliant behaviour during their dealings with immigration authorities, their credibility should be damaged to reflect that behaviour. It is also designed to stop claimants deliberately obstructing the one-stop and expedited judicial process—for example, by not taking up our enhanced legal aid offer and then making a last-minute claim based on lack of access to legal advice. The good faith requirement therefore goes further than the behaviours currently described in Section 8 of the 2004 Act. It puts beyond doubt that past behaviour that is deliberately designed to frustrate or delay proceedings should be damaging to the claimant’s credibility. We think that is right, for the reasons I have outlined.
I turn to Amendments 83 and 88, which would remove the credibility provisions in Clauses 18 and 21. For the reasons that I set out earlier, we think that it is entirely reasonable to require evidence in support of a protection of human rights claim, or a claim of being a victim of modern slavery, to be provided in a timely manner, unless there are good reasons why that is not possible.
However, I underline that a person’s credibility is not necessarily determinative of their claim under the current rules and procedures, and the Bill does not change that. Decision-makers will still be required to consider credibility in the round, as they currently do, and, where a person has raised evidence late, which causes delay and wasted resource, it is right that decision-makers consider whether there is any merit in the reasons for that lateness.
I turn now to Amendment 90A, again in the name of the noble Baroness, Lady Hamwee. We recognise that, due to an person’s individual circumstances, it may be harder for them to provide material in a timely manner. Since this is essentially an amendment to Amendment 90 in the name of the noble and learned Lord, Lord Etherton, I respectfully direct the noble Baroness to the response that I gave to the noble and learned Lord.
As I am on the noble and learned Lord’s amendments, I will now deal with Amendment 91 on reasonable grounds. It is right that, where an individual has been assessed as a priority for removal or deportation, they should avail themselves of the associated legal aid advice offer and provide any matters listed within Clause 19(3)(a) before the cut-off date and they should provide reasons for lateness where a late claim is raised, under subsection (7).
Decision-makers cannot reasonably be expected to speculate on or investigate why an individual who has received a removal notice and associated legal aid advice offer would raise a late protection or human rights claim. If no reasons for lateness are provided, or if the reasons provided are not considered to be good reasons, it would be clear to the decision-maker that any appeal must be subject to the expedited appeals process. In answer to the noble and learned Lord, I say that the good reasons test is adequate and sufficient.
The clause already provides significant safeguards for recipients of a PRN in the form of the legal aid advice provision and the good reasons test for individuals who raise late claims. I set out earlier what those good reasons can amount to. It is a very open-ended test. Therefore, I respectfully suggest to the noble and learned Lord that the amendment is unnecessary and, indeed, would risk complicating an otherwise straightforward and, I suggest, suitable test.
I turn now to Amendment 95 in the name of the noble Baroness, Lady Coussins, but spoken to by the noble Baroness, Lady Lister. By introducing a statutory requirement to provide evidence before a specified date, the Bill redresses the current balance. It is right that decision-makers should have regard to the principle —I underline “principle”—that minimal weight is given to evidence that is late, following receipt of either an evidence notice or a priority removal notice, without good reason.
I will come to the thrust of Clause 25 in a second, but I will first say that this amendment would place an obligation on decision-makers, not only in the Home Office but also the judiciary, to accept that there were good reasons for late evidence in all asylum and human rights cases where either the claimant or the claim type fell into one of the listed categories. That would remove the requirement that decision-makers should have regard to the principle that minimal weight should be given to the evidence. That would be the case even if the reason for lateness was wholly unconnected to the category of claim or the personal factors. No causal link between the two is set out in the amendment. I respectfully suggest that that is overly prescriptive and would tie the hands of the decision-maker. Of course, in all cases, the decision-maker can take these matters into account—
Baroness Lister of Burtersett (Lab)
It is not my amendment so maybe it could be worded better. The noble Lord gave great emphasis to the case-by-case basis earlier, which sounds very reasonable, and he talked about subjective factors. Has he read the recent research from the British Red Cross about women seeking asylum? It found that frequently their claims are met with disbelief and they are not treated very well at all. There is a lack of recognition of gender-based violence that they may be fleeing from, as the noble and learned Lord, Lord Etherton, talked about earlier. I suggest that the noble Lord and those responsible for this clause look at this research, because I worry about putting so much emphasis on subjective factors and the case-by-case basis.
Lord Wolfson of Tredegar (Con)
I think I have received the email from the Red Cross, as I think it emailed everyone. I have set up a folder for all these briefings, so I do not want to say that I have read it, but if I have been sent it I certainly have it and will read it. However, due to pressures of other business, I cannot say that I have read all the material yet.
Baroness Lister of Burtersett (Lab)
I absolutely understand—I do not think it was in its general briefing, but it produced a separate report last week or the week before, and it is worth looking at.
Lord Wolfson of Tredegar (Con)
In that case, I will certainly read it over the weekend. I know that those in the Home Office responsible for this area are obviously looking at the debate and will have picked up what the noble Baroness has said.
I was just dealing with Amendment 95, after which I will come to Clause 25 itself. I lost count of how many times the noble Baroness, Lady Chakrabarti, used the word “tawdry”. It really is not, if I may say so. We obviously disagree, and I will make no comparisons either to parking fines or international commercial litigation. At one point it seemed to me that the noble Baroness was saying that, on the one hand, this clause was terrible and, on the other, that this is what tribunals do in any event and we can trust them to do the right thing.
Baroness Chakrabarti (Lab)
I am saying that, if we trust—as I am sure the Government do—immigration officers, the Secretary of State, the First-tier Tribunal, et cetera, to be intelligent, effective operators in the system, they are by definition capable of looking at late evidence on a case-by-case, open-textured, well-reasoned basis and determining those occasions where there is a good reason and those where there is not. That goes without saying, so why do we have to have this diktat in the Bill, with “must” give it “minimal weight”? I suspect it is because, as the noble Lord, Lord Paddick, suggested, the Government are trying to dictate to the tribunals in particular what is and is not a good reason. That is the sinister aspect of this. It is also impractical, because you then have to have arguments about what is and is not a good reason. I promise the Minister that this will be litigated ad nauseam. It would be better, as he said to other noble Lords, to leave this to open-textured judgment and decision-makers who are capable of applying it.
Lord Wolfson of Tredegar (Con)
As regards the in terrorem threat that things will be litigated ad nauseam, I am tempted to say that that is not really a change from the current position. More substantively, and with respect, to say that the clause sets out that the tribunal “must give … minimal weight” to the evidence, as the noble Baroness just put it, is not what it does at all.
Lord Wolfson of Tredegar (Con)
It does not do that either.
It does not say that the tribunal “must give the evidence minimal weight”; it says that the tribunal
“must, in considering it, have regard to the principle that minimal weight should be given to the evidence”.
The tribunal is perfectly entitled to say, “Well, we’ve looked at that principle. Actually, we’re not going to apply it here”—for reasons A, B and C. There is no requirement and no fettering of the tribunal; there is no compulsion that the evidence be given minimal weight. What the decision-maker has to do is have regard to the principle that minimal weight should be given to any late evidence unless there are good reasons why it is provided late.
Baroness Chakrabarti (Lab)
I promise that this is my final intervention on the Minister, but I do not understand why we have to have the provision at all. He is saying that it is perfectly open-textured enough, that good reasons do not have to be specified in the Bill because the Government are not going to put glosses on it or be overly prescriptive, that they can be objective good reasons or subjective good reasons, that it is only about having regard to the new principle that they are inventing et cetera. Why have this at all?
Lord Wolfson of Tredegar (Con)
It is because there is absolutely nothing wrong with Parliament saying to a tribunal, “We want you to have regard to this principle, but of course the final decision is yours”. We do that in other areas of the law as well. As the noble Baroness, Lady Ludford, kindly said, I gave evidence yesterday to her committee in what I hope was an interesting session. One thing we talked about was Section 12 of the Human Rights Act. The layout there was not a million miles away from this. It too gives a very clear direction to the court, but ultimately it is the court’s decision. I find it slightly surprising that, on the one hand, the noble Baroness is saying that this is tawdry and dreadful but, on the other, is saying, “Actually, you don’t need it all because the same result is going to eventuate”. Both points cannot be right at the same time.
As we all know, the asylum and the legal systems in this regard are overwhelmed. We see repeated unmeritorious claims at the very last minute designed to delay removal. This clause is a proper part of an overall system to make sure that we give protection to those who need it—I always put that first; that is the most important thing—and at the same time to identify unmeritorious claims.
Finally, Amendment 137 in the name of the noble Lord, Lord Dubs, and spoken to by the noble Baroness, Lady Ludford, seeks to implement a recommendation made by the JCHR in its ninth report. Of course, we welcome the JCHR’s positive comments on Clause 45. Migrants who are subject to removal must be given sufficient opportunity to access justice. The clause improves and enhances the status quo. It gives a statutory guarantee that migrants will receive a minimum notice period of five working days. As a result, some migrants will get more time compared to the current policy. It introduces a separate statutory requirement for a notice of departure details to be provided to the migrant before removal.
On a practical level, Clause 45 will be supplemented by policy guidance that accords further respect to the common-law right to access to justice. I say respectfully that it is not clear to me what deficiency in Clause 45 Amendment 137 tries to address. I would genuinely welcome engagement from the noble Baroness and the noble Lord, Lord Dubs, to identify what offending aspects of Clause 45 there may be and how Amendment 137 would solve them.
Therefore, having taken probably too much of the Committee’s time already, I invite the various noble Lords to consider not pressing their amendments.
Lord Coaker (Lab)
I thank all noble Lords who have spoken in this very important debate. I also thank the Minister. Yes, it was a long reply, but it was an important one and it did not take up too much time. Sometimes long replies are needed, and the Minister was right to take the time that he took to respond. There are a large number of points on which I could reply to the Minister, but it is clear that we will have to come back to some of them on Report.
If the Minister does not mind me chiding him slightly, I will say that that was a bit of a “no worries, no problem” defence: “Everything is fine. It will all be sorted in guidance, although we will not see it until some future time. Do not worry about the children problem that the noble Baroness, Lady Lister, raised, because we have all taken into account the sensitivity of children and how old they are. Do not worry about LGBTQI because they will all be very reasonable. Do not worry about the good reasons either—it will all be sorted. Good reasons mean good reasons. Nobody will do anything about it if the reasons are good.”
One example where the Minister was in trouble at the end essentially concerned Clause 25(2). When is a principle not a principle? Is it a principle when it is written down? I love the phrase “have regard to”; it is always put in. The Minister said that we do not have to take X or Y into account. In a sense, he agreed with the JCHR that a better word would be “may” instead of “must”. This is quite a significant change—something may be taken into account, or it may not be. At the moment, it says “must”. This is the problem with which he was trying to wrestle—first, whether there is a principle at all, and secondly, whether “may” or “must” should be used.
The Government are seeking to deal with the problem that the asylum system is in chaos. Half the decisions are overturned on appeal. Panic has broken out. The Government say, “We cannot have this. The public are going mad. Everybody is dissatisfied. We will get more and more of this. Everyone is making late appeals. They are not abiding by the rules. We have to do something.” A whole series of new measures is being taken to overcome a bureaucratic problem. In the end, it needs good—probably trained—decision-making, speedily done, to get a system that works. The Government will not address the very real problem in the Bill, particularly in respect of late priority notices, except on a piece of paper. In a year or two or three, there will be a Nationality and Borders Bill mark 2. If they are not careful, whoever is in government—I hope it will be a different Government—will be panicking in the face of it not working. They will bring in other measures.
Much of what has quite rightly been raised by noble Lords across the Chamber will have to be revisited on Report. I thank the Minister again for his courtesy and for the time and trouble he took to try to respond. Finally, the sooner we have a look at the guidance, the better. It is very frustrating when the Government say that they will publish the guidance and it is published after the Bill is passed. We deserve to see the guidance as soon as possible. I would be very grateful if the Minister could pass this on. I seek leave to withdraw the amendment.
Baroness Hamwee (LD)
My Lords, I have put my name to the proposal that Clauses 22 and 23 should not stand part of the Bill. When I first saw the term “expedited appeals”, my antennae twitched. It sounds such a benign and helpful term but then so did “detained fast track”—the accelerated process for considering asylum claims introduced in 2002, involving detention immediately after the asylum screening interview, which was followed shortly by the substantive interview, with a decision the following day and two days to appeal. The High Court found that the DFT, as operated, carried
“an unacceptably high risk of unfairness”
to vulnerable or potentially vulnerable applicants, and to that extent it found it to be unlawful, and the Home Office eventually suspended it. Expedited appeals are not the same but some of the issues are really quite similar.
As we have been discussing, the Bill of course provides for priority removal notices to be served on anyone liable for removal or deportation; we have discussed the cut-off date for the provision of evidence. However, it does not set out the factors that may lead to a PRN being issued. That is left solely to Home Office guidance. I support what the noble Lord, Lord Coaker, just said about needing to see guidance—but only so far because guidance, by definition, can be changed and although we may be reassured in February 2022, come February 2025 things might look quite different, with the same Government or another Government producing rather different guidance.
Listening to the previous debate, I was concerned that for an appropriate date to be set, the Home Office needs to know whether somebody is vulnerable, but it will know that only after the event of the notice. I understand the difficulty of trying to start without a starting point, which is the point that the Minister was making. Without a date, you cannot look further, but the extension of that is important. I found it quite difficult to follow all that. I am mentioning it now because it is part and parcel of the same issue and certainly Hansard will require careful reading.
The PRN will remain in force until 12 months after the cut-off date or exhaustion of appeal rights. We have talked about whether or not there is a principle. Clause 22 provides for an expedited appeal route for appellants who have been served a PRN and have made a claim on or after the cut-off date but while the PRN is still in force. In that circumstance, the Secretary of State may “certify”—an interesting term in itself—that any right of appeal against a Home Office refusal will be to the Upper Tribunal instead of the First-tier Tribunal. The Secretary of State can also certify that she or he is satisfied that there are good reasons for making the claim on or after the date. I cannot think of an alternative to what is probably an inappropriate term about being judge and jury in your own case, but I think noble Lords will understand what I mean.
The result of an appeal being certified is that one tier of appeal—the First-tier Tribunal—is lost. Under the Bill, the rules must provide for expedited appeals in the Upper Tribunal to be determined more quickly than an ordinary appeal in the First-tier Tribunal and allow for the Upper Tribunal to make an order that the expedited appeals process may—I stress “may”—not apply
“if it is satisfied that is the only way to secure that justice is done in the case of a particular expedited appeal”.
When someone is subject to the expedited process, Clause 23 provides that any other appeals they may have, for instance
“in respect of protection and human rights claims … deprivation of citizenship … EU citizens’ rights”
and so on, are dealt with as a related expedited appeal.
Ousting the jurisdiction of the Court of Appeal, and so prohibiting an appeal from a first-instance decision, is clearly a significant matter. It would give no one the right of appeal to the Court of Appeal and, necessarily, not to the Supreme Court afterwards either. As we have discussed, the appeals concerned involve international protection rights, human rights, European Union and EEA citizens’ rights and the deprivation of citizenship, all areas where the UK has bound itself to abide by international agreements. For such a fundamental right as the right not to be sent back to a country where one is at risk of persecution to be excluded from an onward appeal to the Court of Appeal—even if the decision of the Upper Tribunal contains an error of law or a breach of natural justice—is extraordinary. This is not a criticism of the Upper Tribunal in any way; it is just not how things should be done. Removing Clauses 22 and 23 would leave the existing appeals structure in place.
How will one challenge Upper Tribunal decisions if these clauses stand? My noble friend made a caveat about the use of “constitutionality” but I think that it applies here, as well as on the impact on the rule of law. The Constitution Committee of your Lordships’ House said in its report:
“The House may wish to consider the effect of clause 23 on the functioning of the appeals process and consequently on access to justice.”
That is quite strong stuff for a Lords committee.
Lord Paddick (LD)
My Lords, I apologise but, in the war of attrition that this Bill has become, we seem to have lost any contributions other than from the Liberal Democrats and the Labour Front Bench.
Bearing that in mind, I will add to what my noble friend said rather than repeat anything she said. This clause smacks of the Home Office trying to remove or deport people before they have had a reasonable chance to appeal against a removal or deportation decision. No doubt it is embarrassing when repeated stories emerge of government charter flights taking off almost empty because the courts ruled that the majority of those with a seat on the plane should not be deported, but the answer is not to deport them before they have a reasonable chance to put their case before the courts. The answer is to improve the efficiency and effectiveness of the Home Office to ensure that there is a cast-iron case for deportation that cannot be overturned in the courts at the last minute. Yet again, the Bill focuses on the wrong solution to the problem.
I am sure the Minister will agree that as the Home Office becomes better at making its decisions and more and more appeals are turned down, as opposed to the current situation where the majority are accepted by the tribunals, there will be fewer appeals as lawyers say to their clients “Look at what’s happening now. There’s absolutely no point in appealing.” That is the answer to this problem, not Clauses 22 and 23.
Lord Rosser (Lab)
My Lords, the Bill’s system of penalisation includes curtailing appeal rights, as set out in Clauses 22 and 23. These clauses create an expedited appeal route for those who have been served with a priority removal notice and who have provided evidence or a claim after the PRN cut-off date. Most importantly, the right of appeal would be limited to the Upper Tribunal. However, where a person provides a good reason for lateness, they will not be subject to this clause.
Clause 23 wraps certain other appeals a person may have into the expedited appeals process, further restricting appeal rights. The Government say the reason this clause is needed is prevent delaying tactics, remove incentives for late claims and protect the system from abuse. It is probably fair to say that in this Bill, where so much of it is driven by the party-political considerations of the Government, they will be part of the so-called lefty-lawyers amendments—we have one or two others—who seem to have become the bête noire as far as this Government are concerned.
As has been said, I have added my name to the clause stand parts to Clauses 22 and 23, to start, at least, to probe concerns that have been raised about these provisions. The Law Society, the Public Law Project and Justice have recommended that these clauses be removed from the Bill. The UNHCR has raised legal concerns. I suggest that these are not concerns the Government should take lightly.
The UNHCR has said the expedited appeals process, as designed under Clause 22, risks “miscarriages of justice”. Its legal observations agree, as do we, that accelerated processes can be appropriate for
“manifestly unfounded or repeat claims, as long as they are sufficiently flexible and contain adequate safeguards to ensure that they can be determined fairly and justly.”
The UNHCR is, though, entirely clear that appeals
“should not be accelerated … for reasons that are unrelated to their merits.”
The widespread expediting of appeals under these sections is, in the words of the UNHCR, “arbitrary” and
“unrelated to considerations of justice or efficiency.”
It risks people having their human rights violated as a result of a truncated appeals process for asylum claims. The incorrect decision can cost an individual their safety, security and livelihood.
Clause 23 is particularly troubling on the “arbitrary” point as it joins certain pre-existing appeals to the expedited process, even where they pre-date the priority removal notice and were made entirely on time. I ask the Government: what in this clause actually targets the expedited process on vexatious and unmerited claims? That is the reason Ministers give for why the clause is needed but, as far as I can see, it is not what the clause as drafted achieves.
I will make a couple of further points. First, the Public Law Project has said that making a system quicker is patently not the same as making it efficient. In order to be efficient, a system must move both more quickly and more accurately.
Lord Wolfson of Tredegar (Con)
My Lords, in the last group I spoke at some length. This time I hope to be more brief. The principles have been discussed in some other groups and the points at issue are of relatively narrow ambit, although they are important.
Clause 22 creates a new expedited appeal that will be heard in the Upper Tribunal. Too often, those facing removal or deportation utilise delay tactics to thwart removal action, such as withholding relevant information in their initial claim, which can be used later if they are first refused, resulting in late and repeated claims and subsequent appeals. That is both costly and an unfair burden on the courts and tribunals system. With this clause, appeals in relation to late human rights or protection claims brought by recipients of a PRN are determined quickly, with decisions being final. That removes the incentive for bringing late claims.
Where a person provides good reasons for a late claim, their right of appeal will not be certified as an expedited appeal. Furthermore, the Committee will note in Clause 22(5) that the Upper Tribunal retains discretion and when it considers that the only way that justice can be done in an individual appeal is to remit to the First-tier Tribunal, that is what it will do. Therefore, while I agree with the noble Lords, Lord Paddick and Lord Rosser, that better decision-making is important and certainly part of the answer, I do not accept the implication of their contributions, that it is the only answer. This is also an important thing that we can do to improve the system.
Clause 23 works together with Clause 22 to ensure that individuals cannot utilise the appeal system as a tool for delay. Clause 22 provides expedited appeals to be determined quickly and finally by the Upper Tribunal. There may be additional rights generated by other claims that an individual may want to exercise in parallel with an expedited appeal. Those other appeals might usually be heard in the First-tier Tribunal. Therefore, without Clause 23, an expedited appeal might have concluded but there would be an outstanding appeal in the First-tier Tribunal, which would prevent removal. Clause 23 provides that the other related appeals will be heard by the Upper Tribunal at the same time, so provides a suitable one-stop shop. Again, there is a safeguard to ensure that in cases where the Upper Tribunal thinks that justice can be done only by continuing the appeal in the First-Tier Tribunal, it can do that. That is the burden of Clause 23(7).
For those reasons, which are brief but, I hope, persuasive, I beg to move that Clause 22 stand part of the Bill.
Baroness Ludford
Member’s explanatory statement
This amendment would give effect to the recommendation of the Joint Committee on Human Rights to amend the Bill to provide those receiving a slavery or human trafficking information notice with an equivalent amount of civil legal services support as for those receiving a priority removal notice.
Baroness Ludford (LD)
My Lords, as I said in an earlier group, the noble Lord, Lord Dubs, who is the lead signatory of these amendments, could not stay so I am moving our amendments in this and the last group.
Clauses 65 and 66 amend LASPO—the Legal Aid, Sentencing and something Act—to allow for people already in receipt of legal aid for an immigration, asylum or human rights claim, under the exceptional case determination procedure, to receive legal aid advice in relation to a referral into the national referral mechanism, whereby they seek a positive reasonable grounds decision as a potential victim of slavery or human trafficking.
However, these provisions help only victims who already receive legal aid and know how to ask for it. It does not cover all victims. Exceptional case funding for legal aid is very difficult to secure in practice, so Clauses 65 and 66 will help only a small number of people, not least, as the Anti-slavery Commissioner has noted, because it requires a lot of time-consuming work up front to get that exceptional case funding and the solicitor is paid only if the application is successful.
The Joint Committee on Human Rights supports the request of the Anti-slavery Commissioner that legal aid advice of seven hours—or preferably more, as my noble friend’s Amendment 94A probes—should also be available to those in receipt of a slavery or trafficking notice in the same way as for those in receipt of a priority removal notice, to avoid victims of severe trauma remaining unidentified and unassisted. The Joint Committee on Human Rights, like others in Parliament, as I know from these Benches, has also repeatedly expressed its concern about legal aid deserts, but that is a wider debate. I beg to move.
Baroness Hamwee (LD)
My Lords, I have Amendment 94A in this group. I am sorry that I could not respond to the Minister on the previous group, but I am sure we will come back to that. I was going to observe that the Chamber seemed largely to have cleared, possibly because other noble Lords could not bear this Bill any longer today, but some noble Lords have rejoined us.
It is clearly better that legal aid is available than not, but I am aware, as my noble friend is, of the shortage of provision and some of the problems here. I would say that it is not a matter for today, but actually it probably is. It is very significant, because the words in the Bill will not provide the advice. The Minister has referred two or three times very confidently to the legal aid offer; we are concerned to ensure that that offer has substance.
I have heard over the years of the difficulties of solicitors—if you can find one—advising and taking instructions in immigration removal centres, with the restrictions there on time, of 30 minutes eaten into by the client having to be fetched and then returned. I do not need to say again, but I will in one sentence, that the client often needs a lot of time over a period to tell his or her story.
My amendment seeks to understand how the Government have landed on seven hours. The Minister gently chided me for the use of the term “arbitrary” before. I will acknowledge that my proposal of 20 hours is arbitrary, but it is my way of probing why the Bill provides for seven hours. I asked ILPA whether that would be sufficient, and the reply was:
“I do not think seven hours of legal aid is sufficient to advise on the notice, the person’s immigration status, the lawfulness of removal, and immigration detention. The immigration system is complex, and the Bill makes it more complex through the expedited processes, priority notices, and new definitions/standards … It is also of concern”
that the Bill
“would allow a power to alter that 7 hour time limit.”
There must have been evidence for coming to the seven hours. If that is so, what evidence would the Minister apply to reduce that figure—or indeed extend it? ILPA says it does not
“have a sense as to the specific number of hours needed for this advice, as it would be so case-specific,”
which is entirely understandable,
“including the immigration and procedural history of the case, novelty of any legal arguments, number of bases on which to raise a claim, the legality of detention”
and so on. So I hope that the Minister can flesh out this provision in the Bill so we can understand what the Government think can be achieved with the seven hours of scarce legal aid.
Lord Paddick (LD)
My Lords, we support the amendments in the name of the noble Lord, Lord Dubs, for the reasons my noble friend Lady Ludford has explained. As my noble friend Lady Hamwee has explained, Amendment 94A is not to replace one arbitrary number with another but to probe how much legal aid should be provided in such cases. The Minister described, in a previous group, how cases are of different complexity and how people will be given more time to secure and collate evidence if they are from a vulnerable background. For example, if they come from an LGBTQIA background, they are less likely to be able to acquire evidence quickly, and therefore, the date on the notice they are given would change even during the process. Surely that points to the fact that each and every case is different and will require a different amount of legal aid, depending on how much aid is needed to advise in each particular circumstance. I understand that people who are in this situation do need legal aid, but surely the number of hours should be as case-specific and flexible as the deadline date of any notice for them to submit their evidence.
Lord Rosser (Lab)
We too support the amendments we are debating. I suppose, in a sense, this clause is a rare section of the Bill, in that we welcome it but desire it to go much further, as has already been said. Amendment 94A is a probing amendment, but it is a very valid one, because, clearly, the Government have come to the view that the seven hours of support that will be available will be sufficient.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to all those who have contributed. These amendments obviously deal with matters of legal aid, and I remind the Committee that LASPO is the Legal Aid, Sentencing and Punishment of Offenders Act, just to put everybody out of their misery—otherwise they will not be able to sleep when they get home. I will be quick, but I will just make one point: with great respect to the noble Lord, Lord Rosser, this is not a matter of generosity. This is not about the Government being generous. I do not want to sound high-falutin’, but this is about the rule of law. Abiding by the rule of law is not a matter of generosity; it is simply non-negotiable, and this provision is in the Bill because it is a proper and necessary thing to do.
Amendment 93 and 94 seek to provide up to seven hours of free legal aid to individuals with a slavery or trafficking notice. They are unnecessary because existing legal aid rules will already ensure that individuals can receive more than seven hours of advice if they receive a slavery or trafficking notice. The key point to bear in mind—and I accept that this is complex—is that a slavery or trafficking notice can be issued only to individuals who have made a protection or human rights claim. That is relevant because it means that they are already within the immigration system and legal aid is already available in order to make that protection or human rights claim. So, in a case where an individual is in receipt of legal aid for their protection or human rights claim and they then receive a slavery or trafficking notice, they are already entitled to advice on that notice as part of their protection or human rights claim. Importantly, there is no limit on the number of hours that can be provided on someone’s protection or human rights claim. Legal advice is available until the matter is resolved, and it may well be for considerably more than the seven hours—or, indeed, 20 hours.
Baroness Ludford (LD)
I am really sorry, I know we are looking at the clock, but if I have understood it, and I am sure the Minister is briefed to the hilt, the problem is that he who has, gets more, as it were. If you are already in the asylum system and then you get the notice, you will get even more legal aid—but what if you have not already made a protection claim? What about those people?
Lord Wolfson of Tredegar (Con)
The noble Baroness must have had access to my notes, because that was just the point I was going to make. I have written down here that I know the Committee will ask about individuals who are not receiving legal aid for their protection or human rights claim—and sure enough, the Committee did. My answer is that there could be multiple reasons for an individual not receiving legal aid in those circumstances. The individual might not have passed the means or merits test, and those two tests, as the Committee will know, are there to ensure that legal aid is targeted at those most in need who cannot afford advice themselves. That is one possibility, and I will come back to that in a moment. Another possibility—and this does happen—is that the individual has just made an application to the Home Office by themselves and has not sorted out a lawyer. If so, I would strongly encourage them to seek out a legal aid lawyer, who would be able to provide more than the seven hours of advice that could be provided.
Turning to Amendment 94A, the short answer to why we have specified up to seven hours in Clause 24 is that a balance must be struck between giving free legal advice and using taxpayers’ money responsibly. Seven hours is intended to reflect that this is an opportunity for initial legal advice to help individuals understand what the notice is and what it is requiring them to. It is available on a non-means-tested and non-merits-tested basis. That means that anyone with a PRN is guaranteed access to legal aid for up to seven hours, but it does not mean that, after seven hours, there is no further access to legal aid. Some individuals will need further advice; it is not intended that seven hours will resolve every immigration issue. At the end of the seven hours, any individual who has an issue within the scope of the legal aid scheme and who passes the means and merits test will be eligible for ongoing legal advice funded by legal aid until the matter is resolved.
I am conscious that that gets us into the territory of means and merits tests. I answered an Oral Question in this area on Tuesday, when I said that there was a review of the means test under way at the moment, on which I have personally spent a lot of time. I hope very much that we will soon be able to go out for consultation on that. We are conducting a really thorough review of the means test.
Finally, I will address the noble Baroness’s concerns that the exceptional case funding scheme might not be up to standard. Respectfully, I disagree. That scheme is specifically designed to act as a safety net and to provide legal-aid funding to individuals who can demonstrate that, without it, their human rights might be breached. In 2019-20, of the immigration cases that applied for exceptional case funding, 80% were granted legal aid, so that shows that the system works. We are continuing to work with legal aid practitioners and the Legal Aid Agency to improve the scheme if we can.
For the reasons that I have set out, I hope that the noble Baroness, speaking also for the noble Lord, Lord Dubs, will be content to withdraw the amendment.
Baroness Hamwee (LD)
Before my noble friend responds, could the Minister at least acknowledge that it is not just a matter of hours? It is a matter of the difficulties of finding a legal aid lawyer and the very clear existence of legal aid deserts and so on? Even when it is not a desert, there are difficulties which are, to a very considerable extent, related to the terms for the lawyers themselves. I do not know whether it ever occurred to the noble Lord that he might pursue a career in legal aid; he probably felt as guilty as I used to, when I was in practice as a solicitor, that my firm did not do legal aid, or at least it gave up doing it. That is partly because you need to specialise in legal aid, as well as the subject that you are dealing with, and that is very difficult for a lot of lawyers. It has led to two classes of lawyers, and that is a very bad thing.
Lord Wolfson of Tredegar (Con)
The noble Baroness’s question is quite broad. She knows that we have had a number of discussions about legal aid, which will continue. I did not do much legal aid in my practice. I do not want to advertise from the Dispatch Box, but my brother-in-law is one of the finest criminal legal aid solicitors in London—I am sure that no one here will ever need his services, but he is absolutely brilliant, none the less.
More seriously, I am very conscious of the need to make sure that people have access to a lawyer with the relevant skill set, because a general right to legal aid is not much use if you cannot find a legal aid lawyer—I absolutely appreciate that. On Tuesday, I explained some of the efforts that we are making in this area. To say any more now might trespass on the Committee’s patience, but I am obviously well aware of this point.
Baroness Ludford (LD)
I appreciate the care with which the Minister has responded to these amendments. Although he started by saying that they were unnecessary, he conceded that there is a group of people who do not get legal aid. We might differ in our views on how meritorious they are in any claim for legal aid, but he said that they could find a solicitor and get legal aid that way—but that might not be the easiest thing in the world, for reasons that include what was just discussed. I am afraid that I am not really persuaded.
I will read the Minister’s remarks in Hansard, but I do not think that he denied that there are people who do not get legal aid. The fact that the anti-slavery commissioner was on the case with the JCHR shows that it is not just these Benches over here that think that this is an issue. For the time being, I have to accept that the Minister has given his response and I cannot get any further. I beg leave to withdraw the amendment.
Baroness Ludford
(a) any relevant appeal brought in relation to the decision would be likely to be disposed of expeditiously; and(b) any relevant appeal brought in relation to the decision could be resolved within the time limits set out in subsection (3) without giving rise to unfairness or injustice.”Member’s explanatory statement
This amendment would give effect to the recommendation of the Joint Committee on Human Rights to limit the cases that are brought within the accelerated detained appeals process, to prevent unfairness or injustice arising.
Baroness Ludford (LD)
This clause is about accelerated detained appeals. In moving Amendment 97 I will also cover Amendment 99, both of which I have signed. As I have said, the noble Lord, Lord Dubs, is leading on these amendments, but he has had to leave.
I support the deletion from the Bill of Clauses 26 and 27 in order that claimants should retain a meaningful right of appeal. The Government are trying to revive, though with an even wider scope, the detained fast-track system, despite the fact that their arguments were rejected by the Court of Appeal in 2015 and later by the Tribunal Procedure Committee. These provisions would deny access to justice, including for the reason that five days is far too short for a claimant to prepare an appeal, particularly if they are detained—it is even worse if they are in prison or a detention centre. Clause 26 would apply to a greater number of people even than the detained fast track, including those facing deportation.
The Home Office has been struck down and rebuffed twice but is coming back for more. Its decision-making is frequently flawed and unlawful. As we have heard this afternoon, half of all appeals against immigration decisions were successful in the year to June 2019, so people must have access to effective means of appeal.
After the Court of Appeal declared the detained fast track unlawful in 2015, the Government tried to revive it in tribunal rules. However, the Tribunal Procedure Committee said that if the rules were to operate fairly, which is vital given the high stakes for the claimant, they needed procedural safeguards—an additional case management hearing, for example—such that there was no guarantee of a fast conclusion of the appeal. By trying short cuts, the Government are yet again creating more potential delays. Justice cannot be achieved with the kind of short cuts the Government are trying in this Bill.
Lord Green of Deddington (CB)
My Lords, the noble Baroness is right to say this is the detained fast track brought back again, in effect. I simply say that this is a very good idea. Leaving aside the detail, if experienced officials can see that a case is really very unlikely to be a genuine one, there should be a fast track and the person should be detained. The details can be sorted, but it is the right way to go. It is what we need to do, given the enormous wave of applications we are now receiving.
Lord Etherton (CB)
I speak in support of the amendment in my name in relation to Clause 26, Amendment 98. It is that
“The Secretary of State may not give … certification if the appellant claims to have a protected characteristic … which is innate or immutable, and that the characteristic is relevant to the appeal.”
Cases in which the appellant is an asylum seeker who has an innate and immutable protected characteristic that is relevant to the appeal are not appropriate for the very short timescale set out in Clause 26(3). I think the noble Lord the Minister himself acknowledged, and the noble Baroness the Minister accepted earlier, that many of these cases raise difficult issues and that guidance that we wait to see will be issued to provide assistance. The paradigm case again is that of the LGBTQ+ asylum seeker. Establishing whether or not they are in fact LGBTQ, the adequacy of the evidence in support on that issue—whether or not there is a genuine fear of persecution because of that characteristic, whether what they have done in relation to pursuing their claim has been reasonable, even if it was not always in compliance with the required time limits—makes their appeal inappropriate for an accelerated appeal.
Once again I say, as others have said, that this conclusion is reinforced by the significant proportion of successful appeals that have been brought by LGB refugees. That is something we simply cannot ignore. Nearly 40% of appeals taken in the period from 2015 to 2018 succeeded.
Lord Paddick (LD)
My Lords, for the reasons I explained in a previous group, accelerating appeals processes is not the solution to the last-minute successful appeals against removal or deportation. Rather, it is improving the efficiency and effectiveness of the Home Office. Clause 26 is another clause with the wrong solution to the problem, and while Amendments 97 to 99 seek to limit the damage that accelerated appeals might cause, it is more lipstick on more pigs.
To my shame, I am struggling to keep my head above water on this Bill and asking that Clause 27 does not stand part of the Bill does not go far enough. Already the Home Secretary can certify that the decision to remove or deport can be appealed against only once the claimant has been removed or deported, which makes such an appeal more difficult. We should have tabled an amendment to remove that power, let alone Clause 27, which proposes to go one step further, allowing the Secretary of State to certify that a claim cannot be appealed against at all if she thinks it is clearly unfounded. That should be a decision for the tribunal and not the Executive.
Lord Rosser (Lab)
In this group, I have the Clause 26 stand part amendment, and Clause 26 requires the Tribunal Procedure Committee to create a fast-track route for certain appeals made from detention. The accelerated process would apply where the Secretary of State “considers” that an appeal brought in relation to the decision would
“likely be disposed of expeditiously.”
Of course, that raises the question of the basis on which the Secretary of State will decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously. Will it be done on a whim? Will it be done on the basis that we need to speed things up and this may be the way to do it? Will they be getting legal advice on whether they should consider that it is likely to be disposed of expeditiously? What happens if they do decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously, and they then find that it cannot be disposed of expeditiously? What is the redress in that situation?
The Explanatory Notes state:
“This clause aims to establish an accelerated route for those appeals made in detention which are considered suitable for a quick decision, to allow appellants to be released or removed more quickly.”
As far as the Explanatory Notes are concerned, it is being done for the highest of motives, and nothing to do with simply trying to speed up the process.
The Law Society, Justice, the UNHCR and the Public Law Project have recommended that the clause be removed from the Bill. They raise that the fast-track system largely replicates, as has been said, a system that was already found to be unlawful in 2015 in a Court of Appeal ruling.
We support the amendments and concerns raised in this group, but I intend to speak only to the amendment in my name, which is to oppose Clause 26 standing part of the Bill. The concerns are very clear. As I said, various organisations have recommended that the clause be removed from the Bill. Their basis for saying so is that it amounts to a new detained fast-track procedure that was found to be unlawful in 2015 due to being “structurally unfair”. The Court of Appeal described the timetable for such appeals as
“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.
It held that the policy did not sufficiently appreciate
“the problems faced by legal representatives of obtaining instructions from individuals who are in detention”,
nor did it
“adequately take account of the complexity and difficulty of many asylum appeals”
and
“the gravity of the issues that are raised by them”.
Since that ruling, the Tribunal Procedure Committee has repeatedly taken the position not to introduce specific rules in relation to cases where an appellant is detained. In its report of March 2019, the TPC concluded that
“a set of specific rules would not lead to the results sought by the Government. If a set of rules were devised so as to operate fairly, they would not lead to the increased speed and certainty desired.”
Following the clear and somewhat damning court ruling and the position of the TPC, the Government’s response has been, as we now see, to legislate to reintroduce a fast-track procedure by forcing the TPC’s hand and requiring it to create one.
The questions for the Government are fairly simple. What is it about this scheme that is significantly structurally different from the scheme that was found to be legally unsound? What about this scheme will prevent it having a timetable
“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity”?
Why, and on the basis of what evidence, do the Government disagree with the TPC when it says that such rules should not be brought in since they cannot both operate fairly and achieve the desired result of speed?
One wonders whether the Government are risking further judicial proceedings in replicating a scheme that has been found to be unlawful or, indeed, whether they would care too much anyway if there were such future judicial proceedings. I await the Government’s response.
Lord Wolfson of Tredegar (Con)
My Lords, I will come to the amendments in a moment but, since we have had a number of references to the old detained fast-track scheme, I will start by saying a word about that.
Obviously we considered carefully the legal challenges to the detained fast-track. We are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. It is right to say that the courts have been clear, in upholding the principle, that an accelerated process for appeals made in detention, operated within certain safeguards, is entirely legal. We believe that the new accelerated detained appeals route will contribute significantly to the timeliness with which appeals can be decided. We will be able to remove swiftly people found not to be eligible to remain while those people with valid claims can be released from detention more quickly, which is also important.
So far as the Tribunal Procedure Committee is concerned, the Bill sets out a clear policy intent but, as the noble Lord, Lord Rosser, says, changes to tribunal procedure rules are for the TPC to draft and are subject to its statutory consultation requirements and procedures. We have already begun to engage with the TPC on the elements of the Bill that will require tribunal rules to be made or amended and will continue to do so as the Bill progresses and passes into law.
I turn to the amendments before the Committee. I thank the noble Baroness, Lady Ludford, and, in his absence, the noble Lord, Lord Dubs, for Amendment 97. I understand the motivation behind it. It is right that appeals made from detention should be dealt with in a timely way so that, as I have said, people are not deprived of their liberty for longer than necessary, but we recognise that not all appeals made from detention will be suitable for the accelerated detained appeals route. So Clause 26 specifies that if a decision is certified as suitable for an accelerated detained appeal, in those circumstances the Secretary of State must consider that any appeal to the decision is likely to be disposed of expeditiously. Importantly, the tribunal may remove a case from the accelerated detained appeals route if that is the only way to ensure that justice can be done in a particular case.
Lord Rosser (Lab)
I may not have been listening as attentively as I should have been, but if the Minister has already said it I ask him to repeat the criteria under which the Secretary of State will make the decision that he or she considers that the appeal is likely to be disposed of quickly, which was a question I asked. Another point rises from something he said—that the clause now sets an extremely high bar for an appeal to be released from the scheme, and provides that it can be done only where
“it is the only way to secure that justice is done.”
Am I not right in saying that this has been amended by the Government during the Bill’s passage, and that the original language permitted the release of a case if the tribunal
“is satisfied that it is in the interests of justice to do so”?
Why is it no longer the case that “the interests of justice” are a good enough reason to take action?
Lord Wolfson of Tredegar (Con)
I shall reply to the second point first, if I may. The language in Clause 26(5) is essentially the same language as in Clause 23(7).
Lord Rosser (Lab)
Is it the same or essentially the same? My understanding, and I may be wrong, is that the Bill now says that
“it is the only way to secure that justice is done”,
where previously it said
“that it is in the interests of justice to do so”.
They may be similar but they are not the same words.
Lord Wolfson of Tredegar
My Lords, I think we are at cross-purposes. I was not saying that the language had not changed; I was saying that the test in Clause 26(5) is the same test as in Clause 23(7). On the question of whether the language has changed, I think the noble Lord is right. I will write to confirm the position—I do not want to get it wrong at the Dispatch Box—but I think there was a change in this clause. The test as set out is entirely proper. Is the only way that justice can be done to take the case out of this tribunal? If that is the only way justice can be done, it ought to be done. If this tribunal therefore, by obvious logic, can deal with the case justly, it should do so.
On the first question, I am not sure how much more I can say. The Secretary of State must consider, in order to certify a case as suitable for an accelerated detained appeal, that any appeal to that decision would be likely to be disposed of expeditiously and that the other conditions are met. In coming to that conclusion, the Secretary of State would obviously have to look at all relevant factors. I am not sure that I can take it much further than that, but let me look again at the noble Lord’s question in Hansard. If I can add anything more, I will do so, so he is in possession of everything I can say before we look at it again—no doubt on Report.
Baroness Ludford (LD)
My Lords, I thank the noble Lord again for his detailed responses. On the first point, on Amendment 97, I just hope that we do not find ourselves back in litigation. He asserts that the Bill avoids the pitfalls that the Court of Appeal found in 2015 and that the Tribunal Procedure Committee found later. Let us hope so, because obviously, resorts to litigation will also be something that gums up the system, which the Home Office already says is broken. Time will tell if this is going to stay as it is.
On Amendment 99, I believe that the noble Lord, Lord Rosser, is right. If my memory serves, the wording has changed since the Bill was in the other place. Certainly, the JCHR would suggest that wording that says that the tribunal “must”—not just “may”—if the interests of justice and fairness require it, take an appeal out of the accelerated detained system is stronger than the wording that is there at the moment. It says that the tribunal “must” if—and it is a broader test—it is in the interests of fairness and justice. It is a better test, and a fairer and more just test, so I am disappointed that the Minister does not like that amendment—although I guess I am not terribly surprised. On that note, I can only withdraw my amendment.