Immigration and Nationality (Fees) (Amendment) Regulations 2022
(Limited Text - Ministerial Extracts only)
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Lord Ponsonby of Shulbrede (Lab)
My Lords, I too thank my noble friend for moving this regret Motion. She has done so comprehensively. Many of the questions she asked are more detailed than the ones I have written down here. I look forward to the Minister’s answers. I also pay tribute to the “terriers united” club and its aspirant members—I nominate the noble Earl, Lord Dundee, as he tried to speak in this debate but unfortunately was unable to.
An interesting aspect of this debate is the other debates we are having in this House about our relationship with international treaties. The changes we are talking about have been brought about by our court system, which considered the policy in detail and found that it did not meet our obligations in the best interests of the child—namely, Article 3 of the UN Convention on the Rights of the Child, which has been in force for about 20 years.
In this instance, the Secretary of State has been guided into action by the courts to protect the rights of British children—and they are British children. They are entitled to British citizenship. We are talking about a registration, not an application. Of course we welcome the exemption for children who are being looked after by local authorities. This is a key change which has been campaigned for over many years. This and the introduction of the fee waiver in certain discretionary cases are significant changes and improvements.
I will be interested in what the Minister says about how many children who are entitled to British citizenship register that citizenship each year. What is the scale of this issue? Also, we have heard questions about the decision to continue charging the majority of children extremely high fees, but how will the waiver operate in practice? What is the expected timeframe for an application for the waiver to be considered? The published guidance sheds no light on this. It simply says:
“No specific service standards apply to the assessment of whether the applicant qualifies for a fee waiver. However, caseworkers must make reasonable efforts to decide such requests promptly”.
This leads me to the question of what training caseworkers will have. We have heard about the complexity of the guidance. The noble Lord, Lord Russell, asked whether there might be any specialist training. My noble friend Lady Lister asked whether the complexity of this process might be reviewed.
I want to dwell for a second on the point made by the noble Lord, Lord Paddick, about young people who find themselves in the court system—whether, if they get a sentence of 12 months or more, they could be deported, and whether that could be exacerbated if they have not registered for British citizenship. I occasionally see this situation in youth courts. I do not know how the cases are resolved but it is not that unusual to have young people in court who have citizenship issues and modern slavery issues as well as the offences which the court is dealing with. They have extremely complex lives, and they are often accompanied by a number of professional advisers to try to resolve their issues. I will be interested in what the Minister says about the possibility of deporting young people who have an entitlement to British citizenship but have not registered, if they receive a court sentence of 12 months or more.
I conclude on the central question, which has been asked by all noble Lords who have spoken in this debate: whether the Home Office will commit to publishing its assessment of children’s best interests and how this policy fulfils our obligations under international law.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I thank all noble Lords who have spoken in this debate, particularly the noble Baroness, Lady Lister of Burtersett, whose club of the terriers is growing. There is now a waiting list for applications. I do not know what the criteria is for joining but I wish her well. I can only admire her persistence. She speaks powerfully on this matter, and the Government recognise the continued strength of feeling on it.
As noble Lords have heard, the Government laid legislation on 26 May introducing changes intended to improve access to British citizenship for children who may face issues in paying the application fee, which since 2018 has, as she said, been set at £1,012. These changes include the introduction of a discretionary fee waiver on the basis of affordability, as well as a fee exception for children who are looked after by a local authority. The regulations also maintained the fee at the existing level, to support the continued funding of the borders and migration system. I will come to the numbers on that shortly.
I am glad that the noble Baroness welcomed the changes introduced by the regulations, which, as my honourable friend the Parliamentary Under-Secretary of State for Safe and Legal Migration outlined in his Statement of 26 May, the Government believe represent a positive step in better supporting children to obtain citizenship. I am also pleased that these changes are already beginning to have an impact, with the department having now received hundreds of waiver applications since the provision came into effect on 16 June and with the first waiver grants having already been made. The noble Lord, Lord Ponsonby, asked how many applications there had been in previous years. I will have to get back to him on that, but I think it is a pleasing outcome.
In engaging on these changes, we have initially focused on reaching out to local authorities to increase awareness of the fee exception for children in care through several channels, including the local government bulletin, the Government Communication Service’s local network and the Local Government Association. We are also engaging directly with local authorities through established channels, as we did for the EU settlement scheme. More broadly, we are reaching out to organisations that work with children through the department’s established stakeholder networks to raise awareness and answer questions on the new provisions. We continue to explore further opportunities for engagement, so I am grateful for the points made.
Engagement will be informed by ongoing monitoring of the take-up of the waiver, which is very important, and the fee exception against forecast, including the rate of applications and grants. We will look at whether there are gaps in the spread of applications across local authority areas, to see where further direct engagement on the fee exception in particular would be beneficial. There are currently no specific plans to report to Parliament on these points, but we are open to providing further updates and will consider the best mechanism for doing this.
The noble Baroness raised concerns about the detail of the policy and supporting process. The paper application form has been developed to align with the online form to ensure consistency in the evidence required from individuals across different application routes. Where possible, we encourage applicants to apply online as it offers a more intuitive and customer-friendly experience, but the paper option is there for those who need it. I take the point made by the noble Lord, Lord Russell of Liverpool, about making it shorter and we are open to feedback.
Caseworking guidance has been developed to support a robust assessment of an individual’s financial circumstances. This ensures that waivers are granted only to those who genuinely need them, thus helping to protect the department’s finances and ensure that publicly funded resources are allocated effectively. It also aligns with the guidance published for other affordability-based waivers offered by the department, ensuring consistency in the test applied across different customer groups. Where it is clear that applicants face issues of affordability—for example, where the individual might face destitution—I assure noble Lords that there will not be an onerous focus on the evidence required.
Regarding the specific question raised about asylum support allowance, it is important to note that this is included as a guide for caseworkers in assessing essential living costs. It is only one part of an assessment to consider whether paying the fee would result in a child’s need not being met.
On the very important question of training, caseworkers undergo specialist training before considering cases, and complex cases can be escalated to caseworking conferences or to senior caseworkers to ensure that consistent and fair decisions are made.
We are, as I said, open to feedback on the guidance and application process, and to considering where appropriate improvements could be made. I hope that the initial figures around the take-up of the waiver will provide some reassurance that it is reaching its intended beneficiaries.
Baroness Williams of Trafford (Con)
Yes, the noble Lord, Lord Paddick, also asked about that. I suspect it depends on the case in question.
Lord Russell of Liverpool (CB)
I asked a specific question. Can the Minister come back, if not today then in writing, about the amount that the Home Office is expending in legal fees in some of the challenges? I think she mentioned that the difference between the cost of the child applications and the amount being charged is about £23 million or £25 million a year. I would be very interested to know how the legal fees per annum compare with that, if possible over the last five years.
Baroness Williams of Trafford (Con)
I apologise to the noble Lord that I do not have those figures to hand. I also beg to ask the question the other way: I assume the amount that litigants are spending on legal fees is quite significant as well.
Baroness Lister of Burtersett (Lab)
My Lords, I thank all noble Lords who have spoken. I think they have amplified the case I have made very well indeed. I was struck in particular by the number of noble Lords who pointed out that this is about the morality of what is happening here. I will come on to what the Minister said, but I do not think her response really addressed the fundamental moral question that underlies so many of what may be practical technical points. That is at the heart and why we keep coming back to this issue.
I am very pleased to have a new member of the terriers. There is no waiting list and no fee, I can assure noble Lords. I am also very grateful to the noble Earl, Lord Dundee, who was not able to speak. It was a shame because I think there was confusion about when we were starting. I am pretty sure he was going to speak in support of the Motion—he is nodding—so we can take that as further evidence of cross-party support.
I thought the noble Lord, Lord Russell of Liverpool, made a very good point about training. The Minister said there is training, but how can you train people to work with, as I said, the deep ambiguity at the heart of this guidance? They are being pointed to meeting the fees and making sure that children’s needs are being met, yet at the same time they are being guided—all right it is guidance, but if they do not follow it, what do they follow in terms of assessing people’s expenditure and so forth? We heard from the noble Lord, Lord Paddick, just how minimal that is. This is not what we expect people to be able to spend as members of our society. They are our fellow citizens. The Minister talked about destitution. This is not about destitution. You should not have to be destitute to have help with the fees.
I very much appreciate the detailed response from the Minister. I think there are a few chinks of light in it. She said that the Home Office is open to comments on the guidance and the forms and so forth. I have asked that the PRCBC should be able to sit down with officials and go through the form—because it has so much expertise in putting in these applications—just to see whether we can make it less forbidding. I take heart from the fact that there have already been a number of applications. This shows the latent demand is there, with people who have been waiting because they cannot afford to pay the fee, but I suspect there are many more who would be put off.
Like the noble Lord, Lord Russell of Liverpool, I would find it incredibly difficult to fill in that form and provide that kind of information about my expenditure—I quail at the thought of having to do it over six months, on average—so I hope that one practical thing that emerges from this debate is that the form will be looked at again, together with the people who really know what this is all about and have so much experience of applying.
Although the Minister said that there were no plans to report back to Parliament, she seemed open to thinking about how that could be done. It would be helpful. As I said, we are not going away and we want to know how it is working and whether it is working well. Although I will still regularly question the level of the fee, it is not such an issue if we are happy with the affordability waiver.
At the end, the Minister said something about the complex balance of considerations. It is one thing for Ministers to talk about it, but caseworkers are being asked to consider that complex balance of considerations. That is unfair on individual caseworkers. However much training they get, it is unreasonable. The Government did not answer my plea that they delete from the form the reference to weighing up the implications for the border system. An individual caseworker should not have to weigh that up against the needs of the child, so I ask the Minister specifically to look again at that sentence. It is one thing for us to debate it here in Parliament but another for caseworkers to have to take that into account.
I am very disappointed that the Minister resisted what a number of noble Lords asked: that the best interests review be published. Although she said a bit about it, we need to see exactly what went on and the thinking behind the assessment that came out of it. Obviously, I will want to read what she said.
I will not seek the opinion of the House at this point, because what we wanted to do was to lay out the issues and give warning that we are not going away and will seek other opportunities. As I said before, the terriers will yap at the heels of the Home Office until they are satisfied that children’s best interests are genuinely being met. For the time being, and unless any noble Lord thinks I have left out something crucial, I beg leave to withdraw the Motion.