Immigration Bill

Baroness Hamwee Excerpts

Tuesday 12th April 2016 Lords Chamber

Moved by

[Baroness Hamwee]

1: After Clause 43, insert the following new Clause—
“Information
(1) The Immigration Act 2014 is amended as follows.(2) After section 21(3) insert—“(3A) P may apply to the Secretary of State for written confirmation that the Secretary of State—(a) Has granted, or(b) Will grant,Permission to P in accordance with subsection (3).”

[Baroness Hamwee (LD)]

My Lords, I beg to move Amendment 1. It is unusual, of course, to have a substantive amendment at Third Reading, and I suspect that it is more unusual for that amendment to amend an Act that is already on the statute book. However, noble Lords will be aware that the amendment would not be before us if it had not got past the eagle eyes of the Public Bill Office. The amendment would iron out what seems to be a contradiction about the position as between a letter from the Minister, the noble Lord, Lord Bates, in response to a request under the Freedom of Information Act, which came from the Home Office.

Your Lordships will recall that this Bill extends provisions regarding any tenant’s right to rent, but those who are caught up in this situation are, not entirely, but very often, immigrants. On Report, the noble Baroness, Lady Lister, raised what she called the “Lord Avebury point”. I am very happy to take any opportunity to refer to my late friend Lord Avebury, whose record on these issues I strive to match but will never attain. The point, as she summarised it, is that asylum speakers whose presence is not illegal but who do not have documentary proof are unable to show landlords that they have a right to rent. The noble Lord, Lord Bates, said that he would write to the noble Baroness, and he did so, copying me. He wrote:

“It remains the case that migrants who do not understand whether they may qualify for permission to rent may contact the Home Office to establish whether this is the case”.

That was welcome, but earlier in the same month the Home Office, replying to a request under the Freedom of Information Act, said three times:

“there is no application route for permission to rent”.

It also said:

“It is not a question of a migrant making an application for permission to rent, but rather a status the Secretary of State may consider affording on a case by case basis”.

To explain the problem a little further, Home Office guidance envisages that permission to rent will be granted in cases such as: asylum seekers; refused asylum seekers; families co-operating with the Home Office’s family return processes; individuals on criminal or immigration bail; those within the Home Office voluntary departure process; victims of trafficking or slavery; and individuals with an outstanding out-of-time immigration application, in-country appeal or judicial review. It is also necessary to grant permission to rent where to fail to do so would violate an individual’s human rights.

However, the only way to seek confirmation that a discretionary right to rent has been granted is for the landlord, not the tenant, to request confirmation from the Home Office. During the passage of this Bill, we have debated the processes in place for that and the operation of the checking service. We have also debated the problems about the right-to-rent scheme, which include potential discrimination and landlords who, quite understandably, want to get on with renting their property and will let to those whose status is the most easily ascertained. A landlord may not tell a would-be tenant why he is refusing a tenancy, and the individual might not be aware that he has been denied permission to rent. There is no mechanism to allow an individual to clarify the position, correct any mistakes or give additional evidence. There is no obligation for landlords or agents to request a check from the Home Office. I am sure that almost all noble Lords know, if not personally, then through acquaintance with people who are seeking to rent property in a very difficult market, that the situation for every would-be tenant is emotional and a matter of considerable stress and anxiety and that many people have to go on looking without a good outcome.

The 2014 Act, which is the subject of the amendment, provides at Section 21(3) that a person,

“is to be treated as having a right to rent … if the Secretary of State has granted”,

him,

“permission for the purposes of this Chapter to occupy premises under a residential tenancy agreement”.

My amendment would allow an application for confirmation that the Secretary of State has granted or will grant permission in accordance with the subsection that I have just read out. This is not an academic matter, as I have said; I believe that the noble Baroness, Lady Lister, will share with your Lordships the case of a family with two young children, living in this country legally, who, through circumstances that I suspect are not at all unusual, found that they could not prove their right to rent and therefore found themselves homeless, with their possessions in store and the family in limbo.

My amendment does not seem to be inconsistent with the response to the FOI request because, although I would like to, I am not seeking an application for permission to rent, nor would it be an application that would imply the whole process of going through seeking permission. It would simply be an application to find out whether the individual himself had, or was due to have, permission. I hope that we can clear this up because a lot of people will be affected by it. I beg to move.

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[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, Amendment 1, tabled by the noble Baroness, Lady Hamwee, would, as she explained, provide that a person disqualified by virtue of their immigration status may apply to the Secretary of State for written confirmation that permission to rent has been or will be granted to them. The amendment would amend the Immigration Act 2014, which introduced the right-to-rent scheme. It would work in conjunction with the existing provision, which states that a person who is otherwise disqualified from renting premises as a result of their immigration status is to be treated as having a right to rent where the Secretary of State has granted them permission to occupy premises under a residential tenancy agreement.

I hope that I can persuade the noble Baroness that the amendment is unnecessary and potentially even a step backwards. The Secretary of State is already able to grant permission to rent to people who are otherwise disqualified from renting. This may include migrants without leave who have sought asylum, families with minor children who are in the family returns process or those who face a genuine obstacle to leaving the UK. A migrant may obtain confirmation that they will be afforded such permission by contacting the Home Office, and all a landlord need do then is to contact the Home Office landlords’ checking service with the migrant’s Home Office reference number to confirm that they may rent to that migrant. Following that process will give the landlord a statutory excuse from any civil penalty under the right-to-rent scheme.

Very importantly, this system allows for a swift process, without the need to require a migrant to make a formal application or for them to await written confirmation through the post that they may rent. Our experience since the right-to-rent scheme was introduced on 1 December 2014 is that this process works well. For those reasons, I invite the noble Baroness to withdraw her amendment.

Incidentally, there is no inconsistency between the FoI response and the letter from my noble friend Lord Bates. As I explained, a migrant may already contact the Home Office in order to establish whether they will be granted permission to rent. Existing arrangements are straightforward and work well. I should also mention that the Home Office is in the process of revising its published guidance in response to concerns raised during previous debates. I have no doubt that it will factor in the points made in this debate as well. Once that is done, the guidance will set out even more clearly how a migrant may contact the Home Office. But I suggest that requiring that they make a formal application and then have to await written confirmation may lead to unnecessary delays and in fact would serve no useful purpose.

[Baroness Hamwee]

My Lords, I wish that I were persuaded. The letter from the noble Lord, Lord Bates, said that migrants,

“may contact the Home Office to establish whether this is the case”.

The clear implication there is that the migrant himself may establish the position, not ask the Home Office to make sure that, if and when a landlord inquires, the landlord is given that information.

Of course, I am aware of the landlord’s statutory excuse. I do not want to be too harsh, but I wonder whether the person in the Home Office who has been drafting this has had any recent experience of trying to rent a property. Not that long ago, on the question of the rollout of the 2014 Act, two or three Members of this House explained very clearly that as landlords they, and indeed most landlords, would want to get on with letting and not have gaps in that letting. The information that I and other noble Lords have received is not that the situation is working well—that is not the position. I am glad to hear that there has been some revision of procedures, but it seems to me that by denying that there is a problem, there is denial around looking at how to solve that problem.

It seems to me that this is not considered a big deal. Perhaps I can simply urge the Minister to urge the Home Office to take this as a very serious concern. If there is a different way of assisting tenants—and my goodness, this House is spending a lot of time talking about the housing crisis at the moment—and making the whole process that much easier, avoiding the concerns about discrimination that we have debated in this context at some length, then I urge him to do that. I am clearly not going to make any progress on this now, but I will not let it go: I will keep asking questions about it.

[Earl Howe]

My Lords, I am happy to give the necessary undertaking to the noble Baroness. Indeed, I am sure she will have gathered from what I said that the whole purpose of the scheme we now have is to have a straightforward and rapid process for people to follow, rather than a more labyrinthine paper-based process. Clearly, the information she has received contradicts, at least in part, the information that I have had about how well the scheme works. I will of course ensure that Home Office officials look at any evidence she has which may cast into doubt the efficient working of the scheme.

[Baroness Hamwee]

My Lords, I think the first piece of evidence will be the case to which the noble Baroness and I have referred. I am grateful for that undertaking and beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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[Baroness Neuberger (CB)]

My Lords, I, too, strongly support this amendment. I will speak briefly because much of what I wanted to say has already been said, and said very eloquently.

This is enormously important. As many noble Lords know, we run a drop-in for asylum-seeker families at my synagogue. In talking to some of the women, many of them pregnant, who visit with their small children, one thing that comes out time and time again is how they worry that the situation in which they are living—they are not detained—is so insecure that some of that insecurity may be transmitted to their unborn children. Of course, we know a great deal now about the transmission of anxiety and trauma to unborn children. If we extrapolate from that and from those women talking about it to women detained for what seem to be not very good reasons, it is really important that we have an absolute exclusion on pregnant women being detained. I hope that people will look at the evidence given by the Royal College of Midwives. That made it absolutely clear that unborn children may well be traumatised by the experience. I do not believe that we in this House would wish to take responsibility for that.

[Baroness Hamwee]

My Lords, from these Benches I support this amendment very warmly. In the previous stage of the Bill, as the noble Baroness, Lady Lister, said, we had an amendment dealing with vulnerable people but it was debated alongside and really overshadowed by the amendment on a time limit to detention. The amendment provided that detention should take place only in exceptional circumstances determined by the First-tier Tribunal.

After the amendment was tabled, I was quite embarrassed by the opposition to or considerable doubts about it expressed by a number of organisations for which I have the greatest respect. They told me that we had got it wrong and that we should not provide for any exceptional circumstances in the case of pregnant women. I explained to them that the amendment was expressed as it was because we were trying to approach the Government with an offer of compromise. We hoped that the Government would meet us halfway by agreeing to not a complete exception but the one we expressed in that amendment. The list of vulnerable people was taken from Stephen Shaw’s report, in which—no ifs, no buts—pregnancy means vulnerability. As the noble Baroness said, and I will see if I can get it out without tripping over the word, he spoke of the,

“incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.

His Recommendation 10 was that they should be excluded.

The Government have added what is now Clause 62 to the Bill and there will be guidance; I acknowledge that that will come to Parliament. However, it will be through the negative procedure, and this is another of those examples where we can talk to our hearts’ content but will not be able to alter what is proposed. I was worried when I saw that new clause in the last stage and I worry now about the expression “particularly vulnerable”. I say again: there should be no ifs, no buts.

The Government proposed the adults-at-risk approach that has been referred to. I thank the Minister for his letter, in which he describes the Government’s concern about allowing all pregnant women access to the UK regardless of their immigration status, and therefore access to maternity services. The noble Earl will recall the debates that led up to the health charge being imposed—I suppose it is two years ago now—and that was one of the concerns which was expressed. We now have the health charge.

The letter from the Minister, the noble and learned Lord, Lord Keen, explained:

“The higher the level of risk (and pregnant women will be regarded as being at the highest level of risk), the less likely it is that an individual will be detained”.

He added that the Government’s view,

“is that the best approach is a considered, case by case one which is represented by the adults at risk policy”.

I find it difficult to reconcile the two parts of that—that this is the “highest level of risk” but that there will be a “considered, case by case” approach. I do not think that the Minister can be surprised at the anxiety expressed by the very considerable number of well-respected organisations which are anxious about the policy given their experience of the current policy.

The noble Baroness referred to the all-party group inquiry, of which she and I were members. I turned it up this morning to find the comments that we made then about pregnant women. They included the evidence of Hindpal Singh Bhui, a team inspector at HM Prisons Inspectorate, who said that,

“pregnant women are only meant to be detained in the most exceptional circumstances. And again, we look for evidence of this”.

Of course, I am talking about the historical position. The inspector continued:

“And on the last couple of occasions that we’ve looked, we haven’t found those exceptional circumstances in the paperwork to justify their detention in the first place”.

Our report went on to say:

“We were also told of pregnant women being forced to travel long distances, sometimes over several days, when initially being detained, and failures in receiving test results and obstetric records. In one case, we were told that an immigration interview was prioritised over a 20-week … scan”.

The report continued:

“We are disappointed that the Home Office does not appear to be complying with its own policy of only detaining pregnant women in exceptional circumstances. We recommend that pregnant women are never detained for immigration purposes”.

I see no reason to depart from that but every reason to support it and the amendment.

[Lord Rosser]

I apologise in advance for the fact that my contribution will contain a fair element of repetition of what has already been said but it will be relatively brief.

In his review for the Home Office into the welfare of vulnerable persons in detention, Stephen Shaw recommended that it amend its guidance so that the presumptive exclusion from detention for pregnant women was replaced with an absolute exclusion. Stephen Shaw said in his report that Her Majesty’s Inspectorate of Prisons had told him that in its view there was little to suggest that pregnant women were being detained only in exceptional circumstances. He also said that the Association of Visitors to Immigration Detainees had pointed out that an inspection of Yarl’s Wood had found pregnant women being detained without evidence of the exceptional circumstances required to justify this, with one of the women being hospitalised twice because of pregnancy-related complications. In the light of the evidence presented to him, which he set out in his report, Mr Shaw said that he had not sought further evidence that detention had an adverse effect on the health of pregnant women and their unborn children, since he took this to be a statement of the obvious.

Stephen Shaw also said in his report that he believed that the Home Office should acknowledge the fact that in the vast majority of cases the detention of pregnant women does not result in their removal, and that in practice pregnant women are very rarely removed from this country except voluntarily. Concluding, he said that he was strongly of the view that presumptive exclusion from detention should be replaced with an absolute exclusion.

I hope that the Government will reflect on their apparent decision not to accept Stephen Shaw’s strong recommendation in respect of the detention of pregnant women. It is my party’s policy that pregnant women should not be detained in these circumstances, a view also expressed by Mr Shaw in his independent report to the Home Office. If my noble friend Lady Lister of Burtersett decides, at the end of the debate—and, most importantly, after the Government’s response—to test the opinion of the House, we shall support the amendment.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, Amendments 7, 10 and 11 are all relatively minor and somewhat technical in nature. Clause 63 ensures that a person may be on immigration bail when they are liable to detention, even if they can no longer be detained, and subsections (3) and (4) apply this to people who have been released on bail under the current provisions of Schedule 2 to the Immigration Act 1971. Amendment 7 to Clause 63(5) removes the reference to an amendment being made by subsection (3). This is because, in an earlier draft of the clause, subsection (3) contained an amendment to Schedule 2 to the 1971 Act, but subsections (3) and (4) no longer use that construction.

Amendments 10 and 11 to Schedule 10 ensure that any cross-references in other legislation to immigration bail granted, or a condition imposed, under Schedule 10 will include the rare circumstance when bail is granted by the court, just as if it were granted by the tribunal. I beg to move.

[Baroness Hamwee]

My Lords, I am grateful for the Minister’s explanation but, on Amendment 7, it seems to me that we have never really had an explanation of why it is necessary for these provisions to be made retrospective. The Constitution Committee raised the matter in its report to the House on the Bill, and referred to the Government’s acknowledgement of retrospectivity in the Explanatory Notes, which said:

“This clause is retrospective in its effect because it is intended to clarify the law following a recent Court of Appeal judgment”.

Having read on in the Constitution Committee’s report, I wonder whether “clarify” is the right term. I do not think one can talk about correcting a Court of Appeal judgment, but that is the flavour of what the Constitution Committee had to say. The Government’s response to the committee was that the clause has been remodelled, which does not seem quite to take the point. Could the noble and learned Lord assist the House by explaining why this does not broaden the scope of the Bill and why it is appropriate?

My first reaction on reading Amendments 10 and 11 was to wonder whether the draftsman could not have made a real effort to make them really opaque and difficult to follow. After that rather flippant comment, the serious point is that, as I understand the issue, the Secretary of State is now to have powers over courts as well as the tribunals. The noble and learned Lord is shaking his head, so I look forward to his refuting that. We are bothered, as we have been concerned before, about not respecting the independence of the judiciary. What if a tribunal judge thinks that it is contrary to a person’s human rights to impose the electronic monitoring condition, and the Secretary of State says that it is not contrary to do so? The judge is very conflicted there. What if he or she wants to impose a condition, and considers that it would be practicable to do so, but the Secretary of State says that it is not practicable, so the judge cannot impose the condition? If that meant that the judge did not grant bail to that person, this would be a considerable—and, I think, unwarrantable—interference with the person’s right to liberty. Would the noble and learned Lord expand a little on his explanations?

--- Later in debate ---

Moved by

[Baroness Hamwee]

8: Clause 71, page 62, line 44, leave out subsection (10) and insert—
“(10) For the purposes of subsection (9) a person is unaccompanied who is separated from both parents and is not being cared for by an adult who in law or by custom is responsible for doing so.”

[Baroness Hamwee]

My Lords, Clause 71 provides for the transfer of responsibility for relevant children. A relevant child is defined in subsection (9) as an unaccompanied child, while subsection (10) says:

“The Secretary of State may by regulations make provision about the meaning of ‘unaccompanied’”.

At the previous stage of the Bill, the noble Baroness, Lady Lister, raised the concern that an accompanying adult might not be—I use this phrase non-technically—an appropriate adult. There were concerns about trafficking. The amendment would put into the Bill the definition that is in current Home Office guidance on processing asylum applications by children.

While the amendment is to Clause 71, the same issue might of course arise in respect of Clause 70, the clause that your Lordships agreed on Division regarding the figure of 3,000 unaccompanied children. We will have to see what happens to that provision. In any event, taking a rather narrow technical point about Third Reading, that clause was not the subject of the reassurance from the noble Lord, Lord Bates, that he would put in writing how the term “unaccompanied” would be defined and would operate, and that he would do so by Third Reading. Given the change of Minister last week, I contacted the noble Earl’s office to ask if there would be a letter, and at the point when I tabled the amendment there was not. It arrived around 6 pm yesterday and I read it some time later, and I thank him for it. The letter says that there is,

“no intention to alter the definition”,

for the purposes of this clause. In situations where an asylum-seeking child,

“is accompanied by an adult who is not a parent or relative”,

Home Office officials will,

“verify the identity of the adult and establish the relationship with the child”.

I am not sure whether the relative referred to there is one who by custom has responsibility for the child, otherwise there would be a change from current guidance, although I gather that Home Office guidance is currently being rewritten. What I am really not clear about is why the Bill needs to allow for any flexibility or change in the definition, so it is important to get the position on record.

I was concerned about the reason for leaving the matter open in the way that the Bill does. When I was looking into this at the weekend, I found that the definition used by the Committee on the Rights of the Child is slightly broader because it refers to “other relatives” as well as parents. It occurred to me that it is known that “other relatives” are sometimes traffickers, which is why the wording is not used in the Home Office definition. There may be issues around siblings or other family members. However, it is important that we get the position on the record. It would be preferable to get it into legislation, but at any rate we should understand what the parameters are of the regulations that the Secretary of State might make. I beg to move.

[Baroness Lister of Burtersett]

Once again, my Lords, I am very grateful to the noble Baroness, Lady Hamwee, for tabling this amendment. With her usual lawyer’s quickness, she picked up the point that I raised on Report. As I said then, it is a point that was raised with me by an organisation local to me in the East Midlands, Baca. It was worried because it could not understand why that wording was there. It is perhaps not surprising if groups are worried and perhaps slightly cynical when they come across measures that they do not understand, given that there is so much in legislation that they do not like. So I am delighted that, at the last minute, the letter from the noble and learned Lord, Lord Keen of Elie—not the noble Earl—made it very clear that the definition, as in the amendment, is,

“separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so”.

It is helpful to have that in Hansard because of course your average punter cannot read the letters sent between Ministers and Members of your Lordships’ House. I am sure that the noble and learned Lord will repeat that for the record. Also, like the noble Baroness, I would appreciate an explanation of why this clause is necessary, given that this is, as the letter says, the,

“established definition in the Immigration Rules”,

and it is accepted by the UN. I am glad that through this organisation raising this matter with me, we have some clarity on what is meant by it.

[Lord Keen of Elie]

I am obliged to the noble Baronesses, Lady Hamwee and Lady Lister. As they have observed, there is already an established definition of “unaccompanied” in the present context. It is not in guidance alone; it is in the Immigration Rules, and that is important. The definition states that an unaccompanied asylum-seeking child is someone who—perhaps I may, as suggested, read this into the record—is under 18 years of age when the claim is submitted, is claiming asylum in their own right, is separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so.

Following the commitment given by my noble friend Lord Bates on Report to explain how the definition would operate, I wrote to the noble Baronesses—albeit, as they observed, at the last minute—to confirm that there is no intention of altering the definition of “unaccompanied” as set out in the Immigration Rules for the purposes of the transfer provisions in the Immigration Bill. Furthermore, defining particular categories in primary legislation is not always desirable or even necessary. As your Lordships will appreciate, there are times, particularly in the context of the current migration crisis, when the Government need to respond quickly to changing circumstances.

I should make it clear that at present we have no intention of amending the definition of “unaccompanied”. We would do so only in response to a significant change in circumstances, but it is important that in such circumstances we are able to react swiftly and efficiently. Clearly, regulations subject to parliamentary scrutiny are a more appropriate way to achieve that result than placing something on the face of this Bill.

I reassure the noble Baronesses, Lady Hamwee and Lady Lister, that safeguarding and promoting the welfare of vulnerable children is at the forefront of the Home Office’s work with the Local Government Association and the Department for Education to develop a transfer scheme for unaccompanied asylum-seeking children. I understand the concerns about the definition of “unaccompanied”—it may have unintended consequences and inadvertently place children in the hands of traffickers—but immigration officials working with these vulnerable children are trained to be alert to any signs that a child is at risk of harm or abuse or may have been trafficked. Where an asylum-seeking child is accompanied by an adult who is not a parent or a relative, Home Office officials work with local authority children’s services to verify the identity of the adult and establish the true relationship with the child. If that relationship cannot be verified or there are ongoing welfare or safeguarding concerns, the child will be treated as unaccompanied.

In the light of those points and our recent correspondence confirming that we have no intention of amending the already established definition of “unaccompanied” for the purposes of the transfer provisions, I invite the noble Baroness to withdraw the amendment.

[Baroness Hamwee]

My Lords, that is reassuring. It is difficult to imagine how urgent the circumstances might be that would require a swift change of the definition. However, I am very glad to have the assurances about the position on the record in Hansard, which, as the noble Baroness said, is most easily accessible by those outside this place. I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

--- Later in debate ---

[Lord Rosser]

I take this opportunity—I believe I am doing it at the right place—to express our thanks to all those who have participated in the debates on the Bill, which I believe is now a better Bill than the one that was sent to us from the House of Commons. We are grateful for the amount of information provided by Ministers and the Bill team, for the numerous meetings that have taken place and for the willingness of Ministers to listen to concerns about the Bill and, in some instances, the willingness of the Government themselves to bring forward amendments or place statements on the record to address those concerns. I particularly express appreciation of the work undertaken during the passage of the Bill by the noble Lord, Lord Bates, whose approach, as with that of his Front-Bench colleagues, has I think been appreciated on all sides of the House.

[Baroness Hamwee]

My Lords, from these Benches I add our thanks, particularly to the noble Lord, Lord Bates, who has started on a rather long walk, as my noble friend Lord Wallace of Saltaire said. It is one of a series of admirable walks but the noble Lord’s colleagues have been walking well alongside him, and after him, during the course of the Bill. It feels a little odd to agree that the Bill do now pass, because we are by no means clear what it will provide by the time that it has endured—a word that the noble Lord the Chief Whip might use—ping-pong. We are by no means finished with these issues or with the Bill itself.

[Lord Alton of Liverpool]

My Lords, from the Cross Benches, perhaps I can briefly add a remark to those of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser, particularly in paying tribute to the noble Lord, Lord Bates, whose leave of absence was agreed by the House only yesterday. I was privileged to get to know the noble Lord, Lord Bates, when we served in another place and we remained friends after he left the House of Commons. I was delighted when he was appointed as a Member of your Lordships’ House; I was even more delighted when the Government had the good sense to appoint him as a Minister of the Crown. He has discharged his responsibilities in the House over the passage of time, particularly on the Modern Slavery Act and now on the Immigration Bill, with great distinction. We have huge admiration for the work that he is undertaking, which is to raise the peace pledge and the work of the Red Cross and Save the Children. It touches on many of the issues which we have debated in your Lordships’ House during the passage of the Bill so, before the Bill passes, I am sure that we all add our voices to those which have already been raised in thanking the noble Lord, Lord Bates, for all that he did.