Tuesday 8th March 2022
(2 years, 1 month ago)
Lords ChamberNationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Amendment Paper: HL Bill 82-R-III Third marshalled list for Report - (4 Mar 2022)
17:23 - Division on Amendment 64A - Ayes: 232 / Noes: 162 - Amendment 64A agreed.
19:03 - Division on Amendment 66 - Ayes: 213 / Noes: 142 - Amendment 66 agreed.
19:16 - Division on Amendment 68A - Ayes: 210 / Noes: 128 - Amendment 68A agreed.
19:29 - Division on Amendment 70 - Ayes: 207 / Noes: 123 - Amendment 70 agreed.
19:41 - Division on Amendment 70ZA - Ayes: 194 / Noes: 128 - Amendment 70ZA agreed.
21:40 - Division on Amendment 71 - Ayes: 141 / Noes: 107 - Amendment 71 agreed.
22:12 - Division on Amendment 75 - Ayes: 96 / Noes: 101 - Amendment 75 disagreed.
22:54 - Division on Amendment 77 - Ayes: 80 / Noes: 88 - Amendment 77 disagreed.
23:45 - Division on Amendment 79 - Ayes: 61 / Noes: 83 - Amendment 79 disagreed.
01:11 - Division on Amendment 83 - Ayes: 25 / Noes: 69 - Amendment 83 disagreed.
Lord Coaker (Lab)
My Lords, I am pleased to support Amendment 64A in the names of the noble Baronesses, Lady Neuberger and Lady Hamwee, my noble friend Lady Lister and the right reverend Prelate the Bishop of Durham. I will not repeat all the concerns, but clearly there are safeguarding issues that a number of noble Lords have raised. I give one quote from the British Association of Social Workers, which warns that
“any age assessment proposals must recognise that although there is a risk when adults are wrongly assessed and treated as a child, there is a much greater risk when a child has been wrongly assessed and treated as an adult. It is predominately children who are wrongly sent and dispersed as adults, sometimes to unsafe accommodation and detention”.
As a last comment on Amendment 64A, it does not seem to me that there is any dispute about the need for age assessment, but the noble Baroness, Lady Neuberger, has set out that, if we are to have age assessment, which is clearly needed at times, let us do it on the basis of science and not of subjective judgments, whoever is making them.
I quickly mention the amendment I put down, Amendment 84D, which has not been mentioned yet. It would provide that the age assessment provisions apply to England only, and is clearly a probing amendment. The Minister will know that, while we would rather these provisions did not apply anywhere, this amendment is to reflect the concerns raised by the Welsh and Scottish Governments that clauses in Part 4 require legislative consent.
Welsh Ministers and three separate cross-party Senedd committees have advised that the age assessment provisions are within the legislative competence of the Senedd. When put to a vote, the Senedd voted to withhold consent from the UK Government’s intention to legislate on these matters. Its concerns were that the Bill creates a method of assessing age that is in “direct opposition” to existing practice in Wales; that the Bill
“does not recognise the devolved context of Wales”
and provides the Secretary of State with powers to impose conditions on Welsh local authorities; and, finally, that all unaccompanied asylum-seeking children are recognised as looked-after children in Wales. This will leave local authorities trying to navigate two “statutory but conflicting” approaches.
This is an important probing amendment about what engagement the Government have had with the devolved Administrations and the grounds on which they are disputing that legislative consent is necessary. What are the Government saying to the Welsh and Scottish Governments about this?
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, I thank all contributors to this important debate. I acknowledge at the outset the feeling around the House as to the importance of these matters, so powerfully put forward by the noble Lord, Lord Coaker, just a moment ago.
The first amendment that your Lordships have had to consider is Amendment 64, so I will start with that. It is important to note that immigration officials already conduct initial age assessment on individuals whose age is doubted. This amendment seeks to lower the current threshold so that a more straightforward assessment of whether someone is under or over 18 is made, based on appearance. I will return to the matter raised by the noble Lord, Lord Carlile, as to the different rates at which people age, depending on their ethnicity and the social factors to which they have been exposed. We must acknowledge the difficulty in assessing age through a visual assessment of physical appearance and demeanour. Clear safeguarding issues arise if a child is treated inadvertently as an adult, but equally if an adult is wrongly accepted as a child.
Our current threshold, specifically deeming an individual to be adult where their physical appearance and demeanour very strongly suggest that they are significantly over 18, strikes the right balance. It has been tested in the Supreme Court in the case of BF (Eritrea), to which the noble Lord, Lord Green of Deddington, made reference, and has been found comprehensively to be lawful. Given that judgment, and the fact that immigration officials already execute this function under guidance, the value of legislating to bring this into primary legislation is unclear. That said, I acknowledge the value of the work that the noble Lord, Lord Green of Deddington, has carried out, to which my noble friend Lady Neville-Rolfe referred, into the ingathering of data in such a way as to provide a basis on which our deliberations can proceed. However, in the light of what I said, I invite the noble Lord to withdraw his amendment.
I turn now to Amendment 64A. Again, I thank the noble Baronesses, Lady Neuberger, Lady Lister of Burtersett and Lady Hamwee, for their amendment. I make it clear to the House that there is no appetite to start conducting comprehensive age assessments of all, most or even many people who come before the system, because in most cases it will be possible to resolve doubts as to someone’s claimed age without any such investigation. Indeed, the courts have made it clear that they are against any judicialisation of the procedure, and have overturned judicial reviews based on the idea that age assessments were carried out wrongly in circumstances where two social workers conducting the Merton assessment—which these measures seek only to augment, not replace—considered persons patently above the age of 18 who claimed to have been younger. The courts have supported the social workers in those assessments. To provide that there should be wider use of scientific age assessments would serve no purpose and take away significant resource from the main task of seeking to establish the age of those individuals whose age is in doubt.
Subsections (2), (3) and (4) of Amendment 64A are unnecessary additions. Our intention is that the statutory national age assessment board will consist predominantly of qualified social workers, who will be expected to follow existing case law in carrying out these holistic age assessments. The matter of scientific age assessment has quite properly concerned your Lordships. Clause 51 already contains safeguards for those who are asked to undergo a scientific method of age assessment, and in answer to the specific point raised by the noble Baroness, Lady Lister of Burtersett, I say that where a good reason emerges for declining to participate in age assessment there will be no adverse impact on credibility.
I reiterate the point made at the earlier stage. It is not considered that any of these scientific methods should replace the tried and tested method of assessment by social workers, known as the Merton assessment. The intention is merely to broaden the availability of evidence that might assist to provide more data, on which these professionals can carry out these exceptionally important tasks.
Decisions on this issue also have broad implications for the exercise of immigration functions and the provision of children’s services to unaccompanied asylum-seeking children. Decision-making as to where and how such scientific methods should be used must, we say, remain within government, taking into account independent scientific advice. I reiterate that this measure does not provide that these scientific methods of age assessment will take place. It provides that the Government will be able to consult an expert board on what is suitable. The intention is not to undermine the role of social workers in carrying out these assessments, merely to provide additional data with which they might work.
We agree that the independent professionalism that such persons bring to bear is of the utmost importance. However, we question whether the amendment has value when it provides that scientific age assessments may take place only where their ethical approach and accuracy has been established beyond reasonable doubt: first, because that is to import the highest test of assessment of evidence from the criminal courts into an inappropriate category; and secondly, because we fully appreciate that these assessments are not of themselves accurate, as I sought to make clear at the earlier stage. They are intended not to replace but merely to augment, where thought desirable, the data available to social workers carrying out these assessments.
Lord Harris of Haringey (Lab)
My Lords, I refer to my interests in this matter in the register. In the event of the Government’s having advice that they proceed with this, whom do they envisage will carry out these dental X-rays? If they are doing so without the consent of the person concerned, will that be a breach of the ethical guidelines? If they are being carried out by non-qualified people, is that not also an offence for those carrying out those X-rays?
Lord Stewart of Dirleton (Con)
If I may, I will revert to the noble Lord’s point in the course of my submission; the specific questions that he raised will need some detail, which I do not have to hand but hope to be supplied with before I sit down.
I was talking about the use of ionising radiation in these matters. As I have said previously, the use of ionising radiation in the United Kingdom is highly regulated, and we will ensure that methods used comply with all regulatory requirements and standards. The Age Estimation Science Advisory Committee will have been asked to advise on the ethical considerations for the use of medical imaging techniques. As I have said, the Home Office is exploring a number of potential methods that do not involve ionising radiation, but these may require further research and development to support their technical and commercial viability in assessing the ages of age-disputed persons.
It is important to recognise that techniques develop. In the forensic context, for example, it has been the practice when considering child pornography to employ professional persons—paediatricians and others—to make an assessment of the appearance of the unfortunate people recorded in these images, and to assess from appearance alone what age they were, for forensic purposes, in order that the appropriate criminal charges might be brought.
Also in the forensic context, we recognise that scientific techniques move on. When I was called to the Bar and started to look at criminal work, there was no DNA analysis. Blood testing was available, as was blood group analysis, to assist in drawing certain conclusions. It was not nearly as accurate as DNA testing, but it was available and could in some circumstances exclude a person from suspicion or bring a person into suspicion. Thus, although it did not purport to be able to answer questions with the degree of precision and accuracy that DNA analysis has, it was none the less a valuable technique. It may perhaps be useful for your Lordships to look at what the Government propose ultimately in that context, not as something that will provide a comprehensive answer to exclude all others but, rather, as an additional source of information, which might—I repeat, might—assist, or might be considered to have no value.
Amendment 64A calls for the establishment of a committee independent of the Home Office to consider these matters. It is, however, standard practice for the Home Office to convene its own scientific advisory committees as a forum for policy-making. The Home Office has announced the direct appointment of an interim committee of nine independent members, including the chair, to review the scientific methods of age assessment. The interim chair and committee members were appointed by the Home Office’s chief scientific adviser for a period of not more than 12 months. I return to this point—it may be that I will not need to write to the noble Baroness, Lady Hamwee, but the current interim committee includes experts involved in medical statistics, children’s social work, anthropology, psychiatry, paediatrics and radiology. The intention is that, from this broad range of disciplines, a holistic view of the issues involved in age assessment can be arrived at.
A submission was made, I think by the noble Baroness, Lady Neuberger, about the different appearances of persons coming for assessment. We acknowledge the contributing factors of ethnicity, diet and life experience that may have an effect on things like bone development, and therefore on the results of a scientific age assessment. We will be in a position to take into account all these factors, and I stress once again that the intention is not to present these scientific age assessments as a means of determining the question once and for all but rather, potentially, as available evidence, depending on the views of a committee.
It was my noble friend Lady Shackleton, I think, who questioned the fitness of the Home Office to assess such claims. The figures that I have been given are that the Home Office grants refugee status on humanitarian or humanitarian protection grounds in 90% of cases of unaccompanied asylum-seeking children.
The Government are embarking on this process so that more data is available to assist in what is, necessarily, a difficult area, and one where—as I pointed out to the House on a previous occasion—the Merton assessments undertaken by skilled and experienced social workers may throw up radically different conclusions from examinations of the very same persons. Anything that can be done to assist in that process, by providing additional data, ought to be welcome.
I turn briefly but gratefully to—
Noble Lords
Lord Stewart of Dirleton (Con)
My Lords, I am sorry: by “briefly” I did not intend to suggest that I was about to sit down, however welcome that may be to the House. I am, however, grateful to noble Lords for assisting me on the matter of the time allowed.
I am reminded that the right reverend Prelate, the Bishop of Durham, raised points about the manner in which assessments are carried out, and I again emphasise that the persons carrying them out are trained social workers, and it is not anticipated that that will change.
Amendment 84D, tabled by the noble Lord, Lord Coaker, deals with the manner in which these matters will be considered across the United Kingdom. The noble Lord wanted to know why it was being done on a national basis as opposed to within the devolved Administrations. We cannot do that, because these matters are reserved to the United Kingdom Government and apply across the UK. These age assessment measures will apply exclusively to those subject to immigration control, and immigration is a reserved matter. The overriding objective of the age assessment measures in the Bill is to ensure that there are appropriate arrangements in place to determine the ages of people coming to this country without evidence—usually in documentary form—of their claimed age. That is why it is the Government’s view that these measures relate entirely to immigration and are therefore reserved to the UK Parliament.
The comprehensive reforms we are making to the age assessment system are designed to help and support the local authorities that will carry out these tasks. For example, the new age assessment board will carry out an age assessment where a local authority makes a referral. It is not quite all-imposing upon the local authorities, but rather, makes available something to assist should they consider it desirable.
Lord Stewart of Dirleton (Con)
I propose to conclude by merely echoing the words of the noble Baroness, Lady Fox, opposite. She says that it is above all important that there should be confidence in the means by which these decisions are taken, and it is to augment that confidence that we propose these measures. On that basis, I respectfully invite the noble Lord to withdraw the amendment.
Lord Sharpe of Epsom (Con)
My Lords, given the hour and the address by the President of Ukraine, I beg to move that the debate on Amendment 65 be now adjourned, and that further consideration on Report be adjourned until 5.15 pm.
Lord Carlile of Berriew (CB)
My Lords, there may well be a Division on the second of the amendments in the group. In which case, can we take it that the House will not resume until we have had the opportunity to come back to your Lordships’ House, even if it is a bit after 5.15 pm?
Lord Stewart of Dirleton (Con)
My Lords, there was no attempt on my part to forestall any Division, and I apologise if ignorance of procedure perhaps led to the suggestion otherwise. [Interruption.] I am grateful to my noble friend for indicating that that was not his position.
The Lord Speaker (Lord McFall of Alcluith)
I can assure noble Lords that it is about the timing of the address by President Zelensky, rather than anything else. All business continues.
Lord Berkeley of Knighton (CB)
My Lords, I will make a few comments to amplify the remarks of my noble friend Lady Meacher. I have just been reading a most remarkable book by a doctor, who as an eight or nine year-old child escaped from Afghanistan to try to realise his vision of becoming a doctor and thus being able to support his family back in Afghanistan. In trying to secure a voyage here, the bureaucracy of our immigration system, which I am afraid is outrageously being demonstrated in Calais, meant that this child fell into the hands of traffickers. He arrived here with a forged passport, so was sent to Feltham young offender institution. My point is that unless we improve our ability to admit refugees—particularly at a time like this, as we have heard today—we will play into the hands of these people. Like that child, so many of these refugees are just desperate for a better life; he wanted to support his family.
That child had experienced post-traumatic stress disorder of the most awful sort, having seen friends and relatives bombed and shelled and having walked among mutilated bodies. He had nightmares and flashbacks, but he did not know that he had post-traumatic stress disorder and could not understand why he was finding it so difficult to explain to the authorities that he had come from this troubled background. It was only years later, as the noble Baroness, Lady Meacher, mentioned, that he realised that it must be because of post-traumatic stress disorder.
This extraordinary person started the most wonderful foundation, Arian Teleheal, saluted by the Government, which does telemed work with children and victims all over the world. He is a wonderful example of everything which is great in this country and everything that we need to make better. He knew that if he could get here and get training as a doctor, he could change the circumstances of those he had left behind in Afghanistan —and my goodness, he did. However, we must make it easier for people such as him to come here and benefit from our education, and then do wonderful work, such as what he wanted to do, as a doctor.
Lord Wolfson of Tredegar (Con)
My Lords, the debate has shown that the House is unanimous on two points. The first is that my noble friend Lady Williams of Trafford should be congratulated, and the second is that the House did not much like the Government’s Bill. I associate myself wholly with the former, and I will seek to set out the Government’s position on the latter. Let me go through the amendments in turn.
Amendments 65 and 66 seek to remove Clauses 57 and 58 from the Bill entirely. The effect would be to remove modern slavery from the one-stop process and would mean that modern slavery claims would be dealt with separately from the one-stop process that addresses human rights and protection claims. That does not make much sense, for either the victims or the national referral mechanism, for at least two reasons. First, treating the two types of claims as distinct means that a victim might have to describe the same traumatic events repeatedly, which nobody wants to see. Secondly, decisions would be made about their future and their right to protection and support in isolation from, and perhaps in ignorance of, the full facts, which might mean that people who would otherwise get protection are denied it.
Those amendments, and Amendment 70ZA, do not make sense from the point of view of making the NRM an efficient, transparent and fair process. They display a lack of understanding about how the NRM works, where, in line with the low threshold for referral—I will come back to the thresholds later—we simply require relevant information at an early stage, even of a limited nature, to enable key issues to be identified from the outset. That allows early access to support and gives decision-makers a clearer picture of the individual’s experience, which in turn means a more comprehensive decision, to be taken in the round, including, crucially, the victim’s age when the relevant exploitation took place.
Perhaps more than any other group, children will benefit from early identification and protection, and from having decisions made in respect of their status and their support with as full an awareness of relevant facts and context as possible. In response to the concerns of the noble Lord, Lord Coaker, echoed by the right reverend Prelate the Bishop of Durham, we see no benefit to child victims in them raising modern slavery issues after any asylum or protection decisions have been made. That would only delay their ability to access the support and protection that they need.
I have read widely the briefings which I and other noble Lords have received, and seen that critics have argued, as has been said, that the clause will stop victims from coming forward. We do not see how a clause that encourages early disclosure of information and early identification, where any negative credibility implications are non-determinative and apply only when there are no good reasons for delay, would discourage victims from coming forward. As to evidence, I say again that the measure will allow for early identification, and we do not want victims to have to describe the same events repeatedly.
Baroness Butler-Sloss (CB)
I am sorry to interrupt but will the Minister deal with why children are going through the NRM? The Home Office, through the Minister, told me that the NRM was not suitable for children, who should be dealt with under the Children Act.
Lord Wolfson of Tredegar (Con)
I do not think I am saying anything inconsistent. I am saying that, for the reasons I have set out—I was just starting on the point and hope I will be able to develop it—we do not want to create a two-tier system. Of course, we recognise the vulnerabilities of children. The modern slavery statutory guidance, which I think the noble and learned Baroness referred to, provides for the specific vulnerabilities of children. This clause does not change that. It is also right that our domestic legislation should align with our international obligations, and that includes ECAT. Children get protection from the NRM because they are recognised as victims of modern slavery; that is why they get protection.
On Amendments 67 and 68, I want to reassure noble Lords that we are currently working with stakeholders and operational partners to develop the guidance in a way that is clear for decision-makers and victims. The reasonable grounds threshold is, and will remain, low, as intended by ECAT, to identify potential victims. The House will forgive me, but we need to be clear about this: ECAT sets out that signatories have certain duties when there are reasonable grounds to believe that a person has been a victim or “is a victim” of modern slavery or human trafficking. The right reverend Prelate the Bishop of St Albans raised concerns that Clause 59 was raising the threshold. Respectfully, it is not. Clause 59 aligns the Modern Slavery Act 2015 with ECAT, but it is already the language used in the modern slavery statutory guidance for England and Wales, under Section 49 of that Act.
Indeed—I have it on my iPad—paragraph 14.50 of the guidance sets out the test of
“whether the statement …‘I suspect but cannot prove’ the person is a victim of modern slavery … is true ... or whether a reasonable person having regard to the information in the mind of the decision maker would think there are Reasonable Grounds to believe the individual is a victim of modern slavery”.
So, in the guidance, the two tests are each used; we are not raising the test at all but aligning it. Nothing will change in practice; we are aligning our domestic legislation to our international obligations. The guidance also uses the phrase “suspect but cannot prove” as part of the test. Both phrases that I have read out are used in the guidance as being indicative of when the threshold is met. We are not raising the threshold and have no intention of doing so, but it is right that we keep setting that out in guidance and not in primary legislation.
Turning to Amendment 70, I thank my noble friend Lord McColl of Dulwich for his continued engagement. We are of course committed to providing support to victims of modern slavery but we believe that this should be provided on a needs basis. We are committed to maintaining our international obligations under ECAT, and this Bill confirms that, where necessary, support and protections are provided from a positive reasonable grounds decision up to the conclusive grounds decision. Indeed, there is a five-year contract, currently valued at over £300 million, which demonstrates that commitment. Importantly, however, support for victims, including safehouse accommodation, financial support and access to a support worker are already available based on need. There is no time limit for that support.
Each individual victim will have different needs. The amendment, however, removes any needs-based assessment and treats all 12,727 victims who entered the NRM in 2021 as being one of a kind, assuming that they will all need the same level of support. We committed in the other place to providing, where necessary, appropriate and tailored support for a minimum of 12 months to all those who receive a “positive conclusive grounds decision”, and I have just repeated that here.
Finally, Amendment 70 would also reduce clarity, because it refers to assisting the individual in their personal situation. There is no definition of “personal situation” within ECAT, and Clause 64 addresses this issue by setting out circumstances where leave will be granted to confirmed victims. However, Amendment 70 requires no link to the relevant exploitation, which means that a victim could be granted leave to pursue an entirely unrelated compensation claim or assist with an unrelated investigation, and that is not what ECAT was all about.
Before I sit down, I should respond to the noble Lord, Lord Alton of Liverpool, and the right reverend Prelate the Bishop of Durham, as well as the noble and learned Baroness, Lady Butler-Sloss, who all mentioned guidance in one form or another. I can confirm that officials would be very pleased to engage on the development of the guidance, to which I have referred on a number of occasions. It will be published over the coming months, but we welcome that engagement. I also assure them and the rest of the House that we will bring forward modern slavery legislation as soon as parliamentary time allows.
I apologise for the length of my response, but there were a number of amendments in this group. For the reasons I have set out, I invite noble Lords not to press their amendments.
Lord Coaker (Lab)
My Lords, I shall just respond to the Minister briefly. I thank him for his reply and all noble Lords who have contributed to the debate.
The one fundamental point that I wish to make to the Minister is that, in all his responses, he failed to talk about the statistic referring to the dramatic increase of 47% in the number of victims, in the duty to notify process, who refused to consent to their names being put forward to the national referral mechanism. That is 3,190 reports of adult potential victims via that process who did not consent to their names being put forward. The Minister did not refer to that—and at its heart that is because people already, before the implementation of the Bill, are frightened to come forward and interact with the Government. That is the reality of the situation. For all the Minister’s protestations and reassurances, and all the statements that it will be done on a case-by-case basis, it does not alter the fact that already people are frightened of coming forward and being identified.
All the amendments before us seek to do is to address some of that problem. For example, Amendment 66, on which I will wish to test the opinion of the House, addresses the legislation where it says that if the people who do interact are late in providing information, they will be penalised and it must be taken into account and their claim refused. We are told that it does not matter because, on a case-by-case basis, they can be reassured—yet we are going to pass primary legislation to say that that provision must be included.
“Visa penalty provision: general
(1) The immigration rules may make such visa penalty provision as the Secretary of State considers appropriate in relation to a country specified under section (Visa penalties for countries posing risk to international peace and security etc) or 69.(2) “Visa penalty provision” is provision that does one or more of the following in relation to applications for entry clearance made by persons as nationals or citizens of a specified country— (a) requires that entry clearance must not be granted pursuant to such an application before the end of a specified period;(b) suspends the power to grant entry clearance pursuant to such an application;(c) requires such an application to be treated as invalid for the purposes of the immigration rules;(d) requires the applicant to pay £190 in connection with the making of such an application, in addition to any fee or other amount payable pursuant to any other enactment.(3) The Secretary of State may by regulations substitute a different amount for the amount for the time being mentioned in subsection (2)(d).(4) Before making visa penalty provision in relation to a specified country, the Secretary of State must give the government of that country reasonable notice of the proposal to do so.(5) The immigration rules must secure that visa penalty provision does not apply in relation to an application made before the day on which the provision comes into force.(6) Visa penalty provision may—(a) make different provision for different purposes;(b) provide for exceptions or exemptions, whether by conferring a discretion or otherwise;(c) include incidental, supplementary, transitional, transitory or saving provision.(7) Regulations under subsection (3)—(a) are subject to affirmative resolution procedure if they increase the amount for the time being specified in subsection (2)(d);(b) are subject to negative resolution procedure if they decrease that amount.(8) Sums received by virtue of subsection (2)(d) must be paid into the Consolidated Fund.(9) In this section—“country” includes any territory outside the United Kingdom;“entry clearance” has the same meaning as in the Immigration Act 1971 (see section 33(1) of that Act);“immigration rules” means rules under section 3(2) of the Immigration Act 1971;“specified” means specified in the immigration rules.”Member’s explanatory statement
This new clause and new clause headed “Visa penalties for countries posing risk to international peace and security etc” provide that immigration rules may make provision penalising applicants for entry clearance from countries posing a risk to international peace and security or whose actions are likely to lead to armed conflict or a breach of humanitarian law.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, following Russia’s invasion of Ukraine, I am bringing forward Amendments 70B to 70N and Amendment 84E to allow visa penalties to be extended to countries that present a risk to international peace and security, or whose actions lead or are likely to lead to armed conflict or a breach of humanitarian law.
The existing provision in Clause 69 will already give the Government the power to apply visa penalties to specified countries that are not co-operating in relation to the return of its nationals. We will be able to slow down the processing of applications, require applicants to pay a £190 surcharge or, critically, suspend the granting of entry clearance completely. These powers are scalable, and they are appropriate both in the context of improving returns co-operation and to take action against regimes waging war on the innocent.
In particular, the Government are minded to use these powers in respect of Russia. The ability to suspend the granting of entry clearance for Russian nationals will send a strong signal to the Putin regime that they cannot invade their peaceful neighbour and expect business as usual. Although we do not believe this war is in the name of the Russian people, disadvantaging Russian nationals in this way, as part of our wider package of sanctions, will contribute to the pressure on the Putin regime.
Specifically, Amendment 70B sets out the general visa penalties provisions from the original Clause 69, which will now apply in both contexts. This includes the detail on the types of penalties that may be applied and the provision to make exemptions. This has not substantively changed from the provisions that noble Lords have already considered.
Amendment 70C sets out when a country may be specified and provides for three possible conditions. The Secretary of State must be of the opinion that the Government of the country have taken action that gives or is likely to give rise to a threat to international peace and security; results or is likely to result in armed conflict; or gives or is likely to give rise to a breach of international humanitarian law. The Secretary of State must take into account the extent of, and the reasons for, the action taken, the likelihood of further action, and such other matters as the Secretary of State considers appropriate.
Amendment 70K broadly mirrors Clause 70, in that it requires the Secretary of State to review the application of visa penalties every two months. If the Secretary of State concludes that penalties are no longer necessary or expedient in connection with the factors in Amendment 70C, penalties must be revoked. This provision is a safeguard to ensure that any visa penalties applied do not remain in place by default.
I am also bringing forward Amendment 84E to ensure that these powers can be deployed in relation to the invasion of Ukraine as soon as the Bill receives Royal Assent, rather than waiting two months after commencement. The sooner that happens, the sooner this House and all Members can collectively act in response to this appalling crisis.
The United Kingdom stands firmly with the people of Ukraine in their struggle with Vladimir Putin’s monstrous and unjustified war. Extending these powers is a crucial step to enabling the Government to respond to hostile actions, such as those by the Putin regime, in the toughest possible manner. I ask noble Lords to support Amendments 70B to 70N and Amendment 84E for the reasons already outlined. I beg to move.
Lord Paddick (LD)
My Lords, my first reaction to these amendments was to wonder why they were necessary. Surely it is already possible to refuse to grant visas, or to slow the processing of visas to nationals of a hostile foreign state. The Government seem to be doing a good job of not granting visas to Ukrainian nationals fleeing war, so why can they not refuse to grant visas to Russians?
On that issue, I would like the Minister to explain why the Home Secretary told the other place yesterday:
“I confirm that we have set up a bespoke VAC en route to Calais but away from the port because we have to prevent that surge from taking place.”
Later, when challenged, the Home Secretary said:
“I think the right hon. Lady did not hear what I said earlier. I said that I can confirm that we are setting up another VAC en route to Calais—I made that quite clear in my remarks earlier on.”—[Official Report, Commons, 7/3/22; cols. 27, 40.]
Can the Minister explain why the Home Secretary gave inaccurate information and then blamed the shadow Home Secretary for mishearing?
Why have the Government accepted only 508 Ukrainian refugees—as I think the Minister said earlier in the House—while Ireland has accepted 1,800? What makes the UK so unique? Are these amendments not more of the Government saying that they are going to do something, instead of actually doing something?
I am also concerned about subsection (6), to be inserted by Amendment 70B, which would allow the Secretary of State to
“make different provision for different purposes … provide for exceptions or exemptions … include incidental, supplementary, transitional, transitory or saving provision.”
In other words, the new clause seems to allow the Secretary of State to do whatever she wants—including to allow into the UK whoever she wants, despite a general ban on a particular country. Where is the parliamentary oversight?
Amendment 70C would allow the Secretary of State to specify that a country is posing a
“risk to international peace and security”,
or a risk of “armed conflict”, or a risk of breaching “international humanitarian law”, if that is her opinion. There is no qualification that she should be satisfied on the balance of probabilities or beyond reasonable doubt, for example, but simply that she is of that opinion. Again, where is the parliamentary oversight?
These new amendments allow the Secretary of State to impose, or not impose, visa restrictions and penalties on countries which, in her opinion, pose a threat. This allows her to exempt whoever she thinks should be exempted, without any parliamentary scrutiny, oversight or involvement in the decision-making. Will the Minister consider withdrawing these amendments and bringing them back at Third Reading with the necessary safeguards in place?
Baroness Williams of Trafford (Con)
My Lords, I thank noble Lords for some pretty sensible follow-up questions. The first question, about why we need the power, is absolutely reasonable. There are currently limited powers to apply penalties to applications for entry clearance under existing legislation. It might be possible to apply extra checks if a certain nationality is considered to pose an immigration risk that could lead to a slowing down of visa processing. However, that is as far as penalties can reasonably go under current powers.
The Secretary of State must exercise her powers consistently with the Immigration Acts. Neither the Immigration Act 1971 nor the Immigration Rules allows the Secretary of State to adopt measures such as additional charges or suspending visas in order to apply pressure on a foreign Government. By their nature, these powers mean that the penalties can be applied in a blanket way to a nationality. It is correct that the Secretary of State has express statutory authority if she is to take these significant steps.
“Visa penalties for countries posing risk to international peace and security etc
(1) A country may be specified under this section if, in the opinion of the Secretary of State, the government of the country has taken action that—(a) gives, or is likely to give, rise to a threat to international peace and security,(b) results, or is likely to result, in armed conflict, or(c) gives, or is likely to give, rise to a breach of international humanitarian law.(2) In deciding whether to specify a country for the purposes of this section, the Secretary of State must take the following into account—(a) the extent of the action taken;(b) the likelihood of further action falling within subsection (1) being taken;(c) the reasons for the action being taken;(d) such other matters as the Secretary of State considers appropriate.(3) In this section—“action” includes a failure to act;“country” and “specified” have the same meanings as in section (Visa penalty provision: general).”Member’s explanatory statement
See the explanatory statement for the new clause headed “Visa penalty provision: general”.
Member’s explanatory statement
This amendment is consequential on the two new clauses for insertion before clause 69 in the Minister's name.
“Visa penalties under section (Visa penalty provision: general): review and revocation
(1) This section applies where any visa penalty provision made pursuant to section (Visa penalties for countries posing risk to international peace and security etc) is in force in relation to a country.(2) The Secretary of State must, before the end of each relevant period—(a) review the extent to which the country’s government is continuing to act in a way that, in the opinion of Secretary of State, has or is likely to have any of the consequences mentioned in section (Visa penalties for countries posing risk to international peace and security etc)(1), and(b) in light of that review, determine whether it is appropriate to amend the visa penalty provision.(3) If, at any time, the Secretary of State forms the opinion that, despite the fact that the country’s government has taken or is taking action as mentioned in section (Visa penalties for countries posing risk to international peace and security etc)(1), the visa penalty provision is not necessary or expedient in connection with—(a) the promotion of international peace and security,(b) the resolution or prevention of armed conflict, or(c) the promotion of compliance with international humanitarian law,the Secretary of State must as soon as practicable revoke the visa penalty provision.(4) Each of the following is a relevant period—(a) the period of 2 months beginning with the day on which the visa penalty provision came into force;(b) each subsequent period of 2 months.(5) In this section, “visa penalty provision” has the same meaning as in section (Visa penalty provision: general).” Member’s explanatory statement
This clause provides for the review of the effectiveness of visa penalty provision made in relation to countries presenting a risk to international peace and security etc, and requires its revocation if the Secretary of State concludes that it is no longer necessary or expedient.
Member’s explanatory statement
This amendment is consequential on the two new clauses for insertion before clause 69 in the Minister's name.
Member’s explanatory statement
This is a drafting amendment that clarifies that, like the requirement in Clause 77(2), the requirement for Tribunal Procedure Rules to prescribe conduct of the kind mentioned in clause 77(1) applies only in relation to the Immigration and Asylum Chamber of the First-Tier Tribunal and the Upper Tribunal.
Baroness Williams of Trafford (Con)
I am always worried that the noble Lord, Lord Rosser, will not get home, so if he wants to exit stage left, I will not be in the least bit offended. I am very keen that he gets his train.
On Windrush, that tragedy did not arise because people did not have a piece of paper. That problem arose because, through successive changes in immigration law over the years, Windrush was simply forgotten. Of course, it was at the time a declaratory system, but the problem did not arise because people did not have a piece of paper.
To return to Amendment 79, I know that the noble Lord, Lord Oates, will not be happy with what I will say. I hope that I can provide a comprehensive and sensible reason why, to quote my noble friend Lady Shackleton.
We provide all individuals who are granted UK immigration status with a formal written notice of their grant. It is in the form of a letter sent by post or email which sets out their immigration status. They can retain the letter for their own personal records and use it, if they wish, when contacting the Home Office about their status.
We took full account of the recommendation from the beta assessment of the Home Office’s “prove your right to work” service and have introduced a wide range of support to help vulnerable users as we roll out the e-visas, which are the secure, online services which can be used to view and prove immigration status. We are and have been implementing the change in an incremental way since 2018, to ensure that no one is left behind.
Those who struggle to use them can also contact the UKVI resolution centre, including by phone, for help using the service or sharing status on the individual’s behalf. We have also developed mechanisms which reduce the need for individuals to prove their status themselves when accessing public services: for example, benefits and healthcare. Status information is already shared automatically with HMRC and DWP and the NHS in England and Wales.
We published a policy equality statement in relation to the EU settlement scheme on 18 November 2020. The statement considered the impact of e-visas and set out the support available to users who need help. There are reports of incidents where the system may not have worked as it should have, but feedback on the e-visas and online service has been generally positive. Most users find it easy to use and it is aligned with other digital government services, such as DVLA services for renewing driving licences and paying vehicle excise duty. E-visa holders can check their status at any time by logging into the view and prove service; they can even contact the Home Office if they experience any issues with their e-visa.
The noble Lord, Lord Oates, previously referred to the Government’s intention to remove biometric residence permits, biometric residence cards and frontier worker permits from the lists of documents acceptable as part of a right-to-work check. We can do this because the online system works. The cards will remain valid for other purposes, including as an identification document and to board travel services when returning to the UK. As the noble Lord is aware and has mentioned previously, we have been considering the merits of introducing a QR code. As he said, I committed to take the matter back and discuss it with the Home Office. He is absolutely right: we have written to the3million, setting out why we do not think it is a viable option. We have had to consider a wide range of factors, not least that using this method in the context of demonstrating vaccination status is not equivalent to using it to show immigration status, since a person’s immigration status can change in a way that their vaccination status cannot.
The information on an insecure printed document, even one validated by a QR code, would not be a secure method of sharing and proving immigration status in a way that gives confidence to the user and the checker. We consider that it would open the system up to potential fraud and abuse because the QR code would not be sufficient to verify the identity of the document holder. We have looked into whether we could incorporate a facial image on to the QR code but found that the technology would not support inclusion of high-resolution facial images. It would not adhere to the principles of data minimisation, whereby only as much personal data as is needed for the checking purpose should be shared and accessible only for as long as required. The checker would require an app on an internet-enabled device capable of reading the code, whereas any internet-enabled device with a web browser can be used to check a share code. Our reply to the3million, which I will share with the noble Lord, has been published on its website and provides a full explanation.
Physical documents obviously expire—my parents insist on printing their Covid passes out, and sometimes they are near or at expiration—they can become invalid or be lost, stolen or tampered with, and they take time to replace, leaving our immigration system open to fraud and abuse. They do not provide that real-time information. Last year, UK Visas and Immigration received over 44,000 reports of lost or stolen biometric residence documents and issued over 22,000 replacement cards for those reported lost or stolen. Implementing this amendment would involve significant costs; they could well be over £270 million if we had to issue a physical document to everyone with an immigration status.
Our provision of a letter sent by email or post meets the need for a physical document showing a person what their immigration status is, and it can be kept for personal records. The ability to view and prove immigration status online in the form of an e-visa provides foreign nationals with the certainty that they need to demonstrate their rights in the UK now and in the years to come. I hope—although I doubt it—that I have reassured the noble Lord on his concerns. On the other point, I am very happy to meet any interested parties that wish to discuss this further.
I turn to Amendment 82 from my noble friend Lady Neville-Rolfe and the noble Lord, Lord Green, on trade agreements containing provisions on visas. We should recognise that the Immigration Rules and decisions about visa requirements are sovereign national powers which rest with the Home Secretary. I sympathise with my noble friend’s desire to retain national control over visa policy. We took back control of our borders when we left the EU and now have the freedom to set our own rules in the interests of the UK.
However, trade and immigration are separate policy areas and the UK does not routinely discuss immigration in trade negotiations. What comprehensive free trade agreements typically include is provisions on so-called mode 4 trade in services. These set the terms for the temporary movement of service providers between parties to the agreement. Immigration policy, as opposed to mode 4, is our overarching approach to long-term immigration and border controls.
I know my noble friend has expressed concerns about the Government’s negotiations with India on a free trade agreement. As is standard in UK free trade agreements, I expect we will explore mode 4 provisions, which could support British and Indian businesses and consumers, in our negotiations with India. This is not a one-way conversation. UK business stakeholders have identified mobility issues affecting UK service suppliers seeking to go to India, which we might seek to address in these negotiations. This is just as we have done in our free trade agreements with other partners such as Japan, Australia and the EU and would expect to do in any future comprehensive free trade agreements. But any agreement will be consistent with the points-based immigration system and we will not compromise the principles or functioning of that system.
I also want to note that Parliament already has appropriate involvement in the scrutiny of free trade agreements and their provisions through the CRaG process. The legislative framework set by CRaG provides Parliament with the opportunity to undertake scrutiny of an FTA prior to its ratification. I understand the point my noble friend raised previously that CRaG is a rather binary tool, but it would not be appropriate to have additional processes to consider individual issues within the agreement. Immigration is clearly an important issue but comprehensive trade agreements, by definition, cover more areas. It would not be practical or desirable to have carve-outs for individual issues; taken together, these could make the process of negotiating and scrutinising trade agreements lengthy and impractical.
While I agree with the thrust of my noble friend’s argument that robust scrutiny is critical, I cannot agree with the amendment. I instead point to the comprehensive processes we already have in place to ensure that Parliament has its say on trade agreements and, critically, that any changes to domestic law would need to be passed by this House in the normal way. I hope I have set out clearly for my noble friend why this amendment should not be pressed.
Lord Green of Deddington (CB)
Before the Minister sits down, is she confirming that any immigration negotiations with India will be confined to mode 4?
Lord Oates (LD)
My Lords, I thank all noble Lords who have taken part in this debate. Given the lateness of the hour, I will not go into detail but just say two things. First, I have read the entirety of the Home Office letter to the3million group, most of which is wrong and could have been corrected if the Home Office had the decency to meet on an interim basis as requested. The Minister will have seen, or will see shortly, the comprehensive refutation of every point that she has made.
Secondly, it is all very well to say that the system works well for some people. For digital-savvy people, I am sure it is fine; but for people who are not digital-savvy, it is not. That is specifically what the pilot undertaken by the Government warned about. It said that the system should not be changed, as unless effective mitigation was put in place it would have a significant impact on vulnerable users. It is having a significant impact. I very much regret and am dismayed that the Home Office does not understand that and will not listen to the people who have to use it. On that basis, I would like to test the opinion of the House.
Lord Coaker (Lab)
My Lords, I will briefly say that, like the noble Lord, Lord Paddick, I agree with most of what many noble Lords have said. The need for accurate immigration data is absolutely fundamental to any discussion on this issue. The noble Baroness, Lady Fox, made this point: one of the things that is important is to distinguish clearly between immigration, asylum and migration. All that gets conflated into one, which is not helpful to the debate or the discussion, and it simply confuses people. It would be interesting to hear from the Minister the Government’s position on data. Irrespective of the debate that we will have about policy, if we are going to build trust, that data basis is essential not only for the public but for us to understand the policy prescriptions that we will debate between ourselves.
This is in line with Amendment 81 of the noble Baroness, Lady Neville-Rolfe: on trust, whatever the rights and wrongs, the decision of the Government to abandon the daily figures for migrants crossing the channel was a disaster in public relations terms, because people knew that the Government were failing on it. It was going up and up, and the Government were making prescription after prescription, in terms of policy, to try to deal with it. In the end, they brought the MoD in, in a confused way where we are still not sure how that is meant to work, and they are going to quarterly figures. What people say to me, and what I think—to be perfectly blunt, although I am not a cynic—is that the Government would not have acted as quickly as that if the numbers were going in the right direction; that is what people think. If people think you hide figures when they are bad, and publish them only when they are good or meet your policy objectives, it is no wonder there is distrust among the public about official statistics.
The amendments before us are absolutely essential. They ensure that we have data which is accurate, objective, allows us to make decent policy decisions, and is a basis for our debates. Can the Minister say something about what the Government’s policy is on data? Also, what is happening with respect to the migrants crossing the channel? What is the figure today, compared to what it was a couple of weeks ago? When can we expect the next figure? When the Government are seeking to build trust in passing the Bill—controversial in its own right—why on earth have they taken the decision, which is hard to comprehend, to produce figures on a quarterly basis? It simply looks as though they are hiding bad news.
Lord Stewart of Dirleton (Con)
My Lords, I thank noble Lords for their amendments and their participation in this debate. I note that their interest lies in ensuring that the Secretary of State publishes regular data on a range of areas on immigration. I acknowledge the importance which my noble friend Lady Neville-Rolfe attaches to statistics, and I acknowledge the important work which the noble Lord, Lord Green of Deddington, has carried out over many years, which serves to inform debates not only in the public sphere but in this place.
I assure the House that the Home Office provides a wide range of immigration data on a regular basis and has done for many years. This includes information on many parts of the immigration system, including the asylum and resettlement systems, returns and detention, and other areas such as visas and citizenship. All this demonstrates our commitment to ensuring that the public have the information they need to understand migration trends, and that the approach to small boat arrivals is in line with these other statistics on the immigration system.
The Home Office reviews the statistics that it publishes as a department, in line with the Code of Practice for Statistics. Where it is clearly in the public interest to do so, it will publish new statistics and amend existing statistics to ensure they continue to provide transparency around key government policies. However, we must weigh up the need for more statistics against other considerations. This includes the practicalities and costs of producing resilient, assured data derived from operational systems, presenting that data in such a way as to enhance the public’s understanding of key issues, and putting the data into appropriate context, as well as recognising the need to prioritise the department’s resources.
Amendment 80 would require reviewing and updating the International Passenger Survey by the Office for National Statistics. I emphasise that the ONS is a statistical agency, which is independent of government, and whose work is overseen by the UK Statistics Authority. While the Home Office publishes statistics in relation to the operation of the immigration system, the ONS is responsible for the national migration and population estimates. It would be inappropriate, I submit, for politicians to interfere with or seek to direct the National Statistician in his statistical duties.
My noble friend Lady Neville-Rolfe and the noble Lord, Lord Green of Deddington, referred to the International Passenger Survey, as did my noble friend Lord Hodgson of Astley Abbots. Prior to April 2020, the Office for National Statistics used this to measure migration but it is important to note that, as your Lordships have heard, it is no longer used for that. While the noble Lord, Lord Green of Deddington, calls in effect for the reinstatement of the IPS, I have to advise the House that it was the ONS that concluded that the IPS had failed to meet changing user needs. It did not tell us what we needed to know about migrant patterns or give us enough detail to get a robust understanding of migration. I happily adopt the useful points made in this regard by the noble Lord, Lord Paddick.
As acknowledged by the noble Lord, Lord Green of Deddington, the IPS was paused during the pandemic. The Office for National Statistics is instead working on producing statistics that will tell us more about migrant patterns. This is a work in progress but it should better meet the needs of policymakers. It is experimental statistical work, and we do not yet know whether it will provide robust answers, but the Home Office is committed to supporting ONS statisticians in exploring every avenue. We need to ensure, as I think the House agrees, that we have a clear understanding of such issues and their implications for the data before we publish anything or we risk doing precisely what the noble Baroness, Lady Fox of Buckley, said we risked: misleading the public and undermining faith in statistics, rather than enhancing the public’s understanding of such important matters.
In relation to Amendment 81, the noble Lord, Lord Coaker, from the Opposition Front Bench and others have pressed us on the alteration or the presentation of small boat statistics. Following advice from the independent UK Statistics Authority on making sure statistics on small boat crossings are published in an orderly way, the Home Office published a new statistics report on irregular migration to the United Kingdom. The report, which includes statistics on those arriving across the channel in small boats, was published for the first time on 24 February, covering data up to December 2021. We will update on a quarterly basis.
The decision to publish small boats figures in a quarterly report ensures regular statistics are released in an orderly, transparent way that is accessible to everyone, meeting the principles set out in the code of practice for statistics. The approach has been particularly important in allowing us to present small boats data in the wider context of longer-term trends, other methods of irregular entry and the immigration system more widely, and hence to provide statistics on a more sound basis. Where it is clearly in the public interest to have more frequent releases of information, we will consider this, as we have done with the EU settlement scheme, on which we publish statistics monthly.
In the case of small boats, publishing frequent updates will not provide sufficient time to collate the data collected in the field by operational staff and integrate that with the information from the asylum applications. Nor will it allow us to perform the robust assurance processes we undertake for our wider published statistics. This increases the risk of incomplete or incorrect data being put into the public domain.
The motivation for these changes is not to obfuscate or conceal. It is an attempt to provide more useful statistics —not to hide figures but to provide more assured data. Given that assurance, I ask the noble Lord and the noble Baronesses to withdraw their amendment.
Baroness Neville-Rolfe (Con)
My Lords, I thank my noble friend the Minister for his comments, although I have to confess a sense of disappointment. Cutting resources and costs devoted to immigration data, whether by the ONS or the Home Office, may prove to be a false economy, and I am not convinced of the case for moving to quarterly reporting on small boats. It feels a little bit like hiding the story.
However, I am grateful to all noble Lords for their welcome support. I think we are all agreed on the need for accurate and reliable data on asylum and immigration, and on small boats and both directions of travel. Like the noble Baroness, Lady Fox, we should respect the principle that sunlight is a powerful disinfectant. It should help to build trust but, for now, I beg leave to withdraw Amendment 80.
Lord Coaker (Lab)
I will speak briefly in support of the amendment in the name of the noble Baroness, Lady D’Souza; it is a really important amendment, which goes to the heart of the matter. Whichever way you look at it, there are Afghans who helped us who cannot relocate to the UK; that goes to the core of the importance of the noble Baroness’s amendment. The noble Baroness, Lady Coussins, has given us some examples and the noble Baroness, Lady Smith, reminded us of the obligations that we continue to have. What assessment has the Home Office made, with the Ministry of Defence and the Foreign Office, about the number of people they would have expected to help who are still trapped in Afghanistan? What is the current situation there?
The amendment in the name of the noble Baroness, Lady D’Souza, seeks to extend that eligibility to others who may be at risk from the Taliban-controlled Government in Afghanistan. We have a duty to help those who helped us; we all accept that, but what is the current situation? What are the routes available, and why would the Government not accept the amendment? We all agree with the principle but we know that problems still exist. An explanation would be extremely helpful; even at this late hour, this amendment enables us, once again, to ask the Government the extent of the problem and what they are going to do about it.
Baroness Williams of Trafford (Con)
My Lords, I apologise for being slow to rise; I was frantically writing down the points made by the noble Lord, Lord Coaker. I will perhaps answer the last question first on how many are yet to come. That is a very difficult question to answer; I do not think that anyone would pretend to know. I can give an answer the other way round in that ARAP has already seen over 8,000 people relocated to the UK, many as part of the Operation Pitting group who were safely evacuated from Afghanistan last summer. Eligibility has actually been expanded, not reduced. I am not sure which noble Lord said that it had been reduced, but it has been expanded several times since it was launched: first to include people who had resigned from service, then to include people who had been dismissed for all but serious or criminal offences, and then in December last year to include people who had worked alongside rather than directly for HMG, and their non-Afghan family members.
The ACRS opened on 6 January this year; it is up and running. The noble Baroness, Lady Smith of Newnham, spoke earlier of an almost dismissive comment about the ACRS. I do not think that she was referring to me—I hope she was not.
Baroness Smith of Newnham (LD)
No. The person who was unable to answer the question was the Secretary of State for Defence, on the radio this morning. He basically said, “It is a Home Office matter and, by the way, we are rather too busy with Ukraine.” That was the impression that he gave.
Baroness Williams of Trafford (Con)
It is a Home Office matter, so he was absolutely right on that, but it remains very important. Putting Ukraine into strong focus does not take away from our concern for what is happening to the people of Afghanistan. I doubt that it is getting any better; possibly it is getting worse. They still need our help and support.
On ARAP, the Home Office works with the MoD and the FCDO to ensure people’s safe passage here. I appreciate the sentiment behind the amendment, which seeks to widen further still the eligibility criteria, but it is not necessary to put the suggested changes in primary legislation. The Immigration Rules are designed to be altered where needed, with the approval of Parliament, to enable us to make changes such as those I have just been talking about. Having them prescribed in primary legislation would prevent the Government responding quickly where changes are required.
In any case, the specific changes put forward here are unnecessary. The ARAP rules as drafted, and changed as recently as December, provide us with the requisite flexibility to allow all those who made a substantive and positive contribution to the UK’s objective in Afghanistan, either directly for or alongside a UK government department, and who are now at risk as a result of that, to come to the UK. This has always been the intention of the scheme, and that is what is being delivered.
On additional family members, the ARAP rules reflect the wider immigration system in that principals can be joined by spouses, civil partners, durable partners and children under 18. It is right that they are consistent with other routes to the UK. In June last year we published guidance on how additional family members can join principal ARAP applicants here outside the rules, where there are specific levels of dependence or risk. This option has been widely used, and by definition provides us with greater discretion than having prescriptive criteria set out in the rules.
Security checks are carried out by the Home Office after the MoD has approved them. On JRs, the Home Office overturns MoD grants only ever on serious national security grounds.
The ARAP scheme has been a huge success. It has provided resettlement to more than 8,000 people already, with a similar number yet to come. The rules in place strike the right balance between providing support to those who need and deserve it and protecting the finite capacity of this country to resettle those in need. I hope the noble Baroness will be happy to withdraw her amendment.
Baroness D'Souza (CB)
My Lords, I thank the Minister, as always, for her answer. I think the most recent pronouncement from the Home Office on the ARAP scheme was that it would in future include only Afghan citizens who were explicitly involved in promoting British values and policies, which necessarily excludes an awful lot of people who worked for British companies but without necessarily being seen to be explicit in promoting their values.
Secondly, the Minister said that she did not feel it necessary for this to be in the Bill, but I feel strongly that unless these criteria are in the Bill they will never remotely happen, and therefore it is important that they be included. I feel that the ARAP scheme continues to be somewhat thin, a little confused and confusing and somewhat pusillanimous, but in view of the hour I beg leave to withdraw the amendment.
Lord Coaker (Lab)
My Lords, I will just make a couple of remarks about this amendment from the noble Baronesses, Lady Hamwee and Lady Hollins, which I support. It is a shame that we are right at the end of the evening—or in the middle of the night, or in the morning, or whatever—because it is one of those amendments that raises a number of really important questions for the Government. It is really quite an appropriate way—not at this time—to end the Report stage, because it encompasses so much of what has been debated on the Bill so far.
We are talking about people who are traumatised, fleeing war, risking their lives; people who have lost their homes and loved ones, experienced extreme violence, and children who have been trafficked and exploited. One of the criticisms throughout the passage of the Bill so far is that we are debating measures that we believe would remove support from these people, damage their credibility, penalise them for not providing evidence neatly to a deadline, as we heard earlier, and make it harder, for example, for modern slavery victims to report abuse. That is a point of difference between us.
I am sure the Minister will say that of course, people will take account of trauma, and they will interview, meet and discuss such issues with these individuals and support them in a way which reflects that. But what this really important amendment is driving at is the absolutely essential need to have a trauma-informed approach. If the amendment does nothing else but remind those who work with victims and survivors that that sort of approach is the best way forward, then it has served its purpose.
Baroness Williams of Trafford (Con)
I thank noble Lords for their comments. I say to them, in particular the noble Baroness, Lady Hollins, that the impact of traumatic experiences is writ large throughout the whole decision-making process in the asylum system. For example, the asylum interview policy guidance includes a specific section on
“Victims of torture or other trauma”,
and this supports interviewers to create a suitable environment for claimants who have experienced trauma to explain their claim. The impact of trauma has also been carefully considered in the drafting of the Bill.
In relation to modern slavery and human trafficking, we are acutely aware of the trauma that victims of modern slavery may experience, and already recognise the impact that this trauma might have on a potential victim’s ability to even recognise themselves as a victim or indeed be identified. We are committed to identifying victims of modern slavery as quickly as possible and ensuring that they receive support as early as possible too.
The effects of trauma are already considered as part of the decision-making process and included in the current modern slavery statutory guidance of the Modern Slavery Act 2015, and they will continue to be applied in decision-making. There is a code of conduct for all professionals working with survivors of human trafficking and slavery, published by the Helen Bamber Foundation, and The Slavery and Trafficking Survivor Care Standards, produced by the Human Trafficking Foundation. We will build on this approach in updated published guidance, ensuring that decision-makers have the tools to recognise the effect that traumatic events can have on people’s ability to accurately recall, share or recognise such events. This will give decision-makers the flexibility to take a case-by-case approach and the tools to recognise the possible effect of exploitation and trauma and ensure that decisions are based on an understanding of modern slavery and trafficking.
We will also continue to engage with the six thematic modern slavery strategic implementation groups, bringing together government, the devolved Administrations, NGOs and businesses. We recognise that modern slavery remains a rapidly evolving area, and it is very important that the guidance be continually updated to ensure that it is reflective of current policy and practice.
In summary, I hope that I have explained that trauma-informed decision-making is writ throughout the whole asylum system process, and I hope the noble Baroness will be happy to withdraw her amendment.
Baroness Hamwee (LD)
My Lords, this noble Baroness will withdraw my amendment but not that happily, I am afraid. It refers not only to interviews and so on but to policy-making. If it is actually incorporated in policy-making, why have we, during the course of the Bill, been discussing how delays are treated and late evidence? Only today—or yesterday—we have discussed inconsistencies in evidence. The amendments are aimed at the whole of immigration control, which would include, for this purpose, asylum seekers as well as slavery and trafficking.
I am afraid that the words may be there on paper—and my words can only be on paper—but I have had the clear impression, not only during this Bill, that the process and the policy-making are not trauma-informed. I do not know how many Members still remain in the building on the government side, but it would be inappropriate and have no effect to tax the patience of those who remain by dividing the House. I beg leave to withdraw the amendment.
“(aa) sections (Visa penalty provision: general), (Visa penalties for countries posing risk to international peace and security etc) and (Visa penalties under section (Visa penalty provision: general): review and revocation) (visa penalties in relation to countries posing a risk to international peace and security etc);”Member’s explanatory statement
This amendment provides that the provisions for imposing visa penalties introduced by the three new clauses in the Minister's name relating to visa penalties will come into force on Royal Assent.