Immigration Bill

Baroness Hamwee Excerpts

Monday 21st March 2016 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I shall speak to Amendment 122A, since my name is associated with it. Some 2,000 refugees are currently arriving in Greece on barely seaworthy boats every day. According to the UNHCR, the majority are now women and children, fleeing the fighting in Syria and around the Iraqi border. Some 4.8 million Syrians have been displaced since the war began.

The existing rules on family reunion simply were not designed to cope with such a mass and, at times, chaotic exodus of people, which tears families apart and potentially leaves individuals in pretty desperate circumstances. Under the Immigration Rules, people granted refugee status or humanitarian protection in the UK can apply to be joined by family members still living in other countries. However, there are a number of restrictions about which family members qualify for family reunion. For adult refugees in the UK, only partners and dependent children under the age of 18 will usually come under the definition of “family”. As a result, families can be left with the invidious choice of whether to leave some members behind.

Amendment 122A seeks to provide an immediate route to reunite, in a managed and controlled way, those families caught up in the crisis. The Secretary of State would specify the numbers to be resettled through the scheme after full consultation with key stakeholders. The amendment would provide for that in a managed way on the basis of current resettlement programmes. It allows British citizens, as well as recognised refugees in the UK, to be reunited with family members through the programme, but, crucially, any number specified would be in addition to the Government’s existing commitments on resettlement.

The amendment does not distinguish between refugee family members who have made it to Europe and those stuck in the region—people do not cease to be part of a family based on where they are in the world. It would help to prioritise those cases of family members who fall outside the existing rules and find themselves in desperate situations. We believe that Britain can do, and should be doing, more in this unprecedented crisis, which the amendment would enable the Government to do through the Secretary of State. Four thousand Syrian refugees resettled a year—none from within Europe—is certainly a start and I do not wish to stand here and suggest that it is not a real contribution, but one is entitled to ask whether it is enough when that number arrives in Greece over the course of just two days.

We support the amendment and we will vote for it if the mover, having heard the Government’s response, decides to test the opinion of the House.

[Baroness Hamwee (LD)]

My Lords, my name is to the amendment moved by the noble Lord, Lord Hylton. I prefer it to the amendment spoken to by the noble Lord, Lord Alton, but either is considerably better than the current situation. If the noble Lord, Lord Alton, decides to divide the House, we on these Benches will be with him. It seems to me that the Section 59 referred to in his amendment is designed for exactly this sort of situation, had anyone been able to envisage it. Children without their parents who have got to the UK alone are refugees, so by definition cannot return to their country of origin, but their being unable to be with their parents is a situation that I am sure no noble Lord would want to envisage.

When we debated the matter in Committee, the Minister gave a number of defences to the current position, including:

“Our policy is more generous than our international obligations require”.

The vote on the previous amendment—a comparison was made in the debate on that between our generosity and that of others—answers that point. The Minister also said:

“Allowing children to sponsor their parents would play right into the hands of traffickers and criminal gangs and go against our safeguarding responsibilities”.—[Official Report, 3/2/16; col. 1881.]

The issue of safeguarding can be argued either way; there are problems of safeguarding whether you do or whether you do not in this situation. I prefer the right reverend Prelate’s logic.

On family sponsorship, where the more distant family of a refugee is here, it seems illogical in many ways not to allow aunts, uncles and so on to sponsor people to come here because it must lead to much faster integration, address the numbers to an extent—given the numbers, we should use what opportunities there are—and be obviously the right thing to do. There would be fewer safeguarding issues in that, although I would not claim that there are none.

Finally, I should not ask a question at this stage unless I know the answer, but I understand that family reunion is a matter of international law—despite my pile of papers I do not have all the detail with me. If the Minister can assist the House on that I would be grateful.

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[Baroness Hamwee]

I may have missed it, but the noble Lord, Lord Hylton, asked the Minister whether he had an update on the figures for grants outside the rules on the basis of exceptional, compelling, compassionate circumstances. The year before last it was 12. Can the Minister tell us the updated figure?

[Lord Bates]

I do not have those updated numbers, but I will be happy to write to the noble Baroness. I mentioned a figure of 21,000, but that referred to the whole group of family reunion cases that came to the UK between 2011 and 2015.

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[Lord Elton (Con)]

My Lords, whether this amendment is carried or not, it must be clear to a Government who refer so often to our Judeo-Christian heritage that they cannot simply stay where they are thereafter. There must be an acknowledgement of what is going on. The truth must be recognised and must be brought to the attention of the world by this country and the many others that are already committed to it.

[Baroness Hamwee]

My Lords, I have a couple of sentences on behalf of these Benches. This may be the first time that my thought processes have followed exactly those of the noble Lord, Lord Forsyth, but I had concerns about the format, if you like, of this amendment. I would much prefer to be addressing the matter on an international basis through the UN, but then I, too, found Article 8 of the convention, which provides for contracting parties to call on the UN to take action. In the light of the growing call around the world for the recognition of what is going on as genocide, it seems to me that it is absolutely right that we should take this opportunity, whatever the technicalities of the amendment.

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[Lord Dubs (Lab)]

My Lords, Amendment 122 is concerned with individuals who helped the British Army and general British interests either in Iraq or Afghanistan, and who are now refugees or, as it were, want to be categorised as refugees. I am indebted to a small NGO called Help Refugees for the advice and information it has given me.

The amendment refers to individuals who are now in refugee camps—they may be as far away as the Middle East or they may be in Calais, where some have been identified. These are persons who worked with Her Majesty’s Government in Iraq and Afghanistan. They may have worked on the Kandahar air base, as translators and interpreters, or as radio operators. These are people who have sufficient evidence to indicate that they worked in that capacity, helping the British Army and other British interests.

These individuals have now suffered from quite serious threats, and I have got some information from a couple of them. One individual who acted as a logistics officer and was involved in liaison contact between British forces and local interests, and who helped train the Afghan military and other companies, said: “I had phone calls saying that I had to stop working with them and, ‘If you don’t stop working with them, you will be killed’”. Another individual, working at the Kandahar base in Afghanistan, said, “As you know, the situation is very bad for those who have worked with the foreign forces—the Americans, the British—and those who are interpreters or translators. Their life is in danger in Afghanistan. Everywhere the Taliban are present in each province, so if they know that you have worked with them they will elect to kill you. Everybody knows this. This is the truth. Nobody can ignore it”. “Have you personally had any threats?”, he was asked. “Yes, when I was there, I was getting calls saying, ‘Leave this job or I will kill your family. I will kill you if I find you’. It was very hard for me”. “Were you getting many of these phone calls in a week?” “Two or three times, yes”. These are individuals who worked with us and to whom we surely have some responsibility. My argument is that we should give effect to that responsibility through this amendment.

There is a difficulty in that two different schemes are in existence which do not quite fit the bill: there is an Iraq policy and an Afghan policy. It is clear that the Iraq policy is a better one and the Afghan policy has helped only one particular individual. What I am suggesting in this amendment is that we should have a more far-reaching policy which helps all the individuals who I have described. The idea is that if they can be identified—and this is a departure from the present policy—as coming under the various categories as set out in proposed subsection (1) they would be entitled to come to Britain and then claim refugee status here. So we meet some of the difficulties that the Minister referred to in responding to the previous amendment.

This is a modest amendment which would meet a certain obligation that we have. If the Government feel that they cannot accept the amendment, there are things they can do to meet the need. I would like an assurance from the Government either that they will accept the amendment or that they are prepared to say that they will do what they can, and describe it, to help the individuals concerned and make accommodation for them outside the statute. I would be happy about that, but we have to do something for these people. Some of them are in the camps in Calais. They have been neglected and forgotten by the world, and they worked for us. They helped us at a critical time in Afghanistan and Iraq. I beg to move.

[Baroness Hamwee]

My Lords, I have added my name to the amendment. The whole of this Bill raises moral issues, and it was the simple rightness of this proposition that led me to sign the amendment.

The Daily Mail has been campaigning on this issue and recently highlighted the case of one interpreter who was injured by a bomb and accused by the Taliban of being a spy. He was at that time waiting for the UK Government’s support unit to consider his application to be relocated to the UK. He said, “They told me that after five days they would interview me but after five days I was still waiting and they said the programme has not started yet. Then they said maybe 2014, maybe 2015, but I could not wait that long, it was my life at risk”. We know that hard cases make bad law, but do they invariably make bad law? Do they not sometimes point us to what should be good with the law? The dangers to these staff and their families at home are now obvious, as they were obvious when they provided assistance.

The Minister for the Armed Forces in a Statement last August spoke of the UK team,

“which investigates thoroughly all claims of intimidation. When necessary we will put in place appropriate measures to mitigate any risks. These range from providing specific security advice, assistance to relocate the staff member and their family to a safe place in Afghanistan, or, in the most extreme cases, relocation to the UK”.

There are others in the Chamber who can speak with much more authority than I can about whether giving advice and relocation elsewhere within the country is realistic or effective.

I will finish by saying simply that it took a long campaign to recognise the contribution of the Gurkhas to this country, which was supported by David Cameron before he was Prime Minister. I think that we should put right the position for the individuals who are the subject of this amendment now.

[Lord Ashdown of Norton-sub-Hamdon]

My Lords, the hour is late and no doubt the House does not want to sit for too long. This is an issue on which I have campaigned for the best part of 18 months. My instinct is to speak at some length to outline the individual problems that affect Afghan interpreters, but I do not think that this is the moment to do so. I shall try to be fairly brief in supporting the noble Lord, Lord Dubs, in his amendment.

The amendment cannot be seen except in the context of the United Kingdom’s policy towards Afghan interpreters. As the noble Lord, Lord Dubs, has said, a significantly more disadvantageous set of regulations applies to Afghan interpreters than existed in relation to Iraqi interpreters after the Iraq war. That is an injustice by itself, but let us leave it to one side. As my noble friend Lady Hamwee has said, this is an issue on which the Daily Mail has campaigned—no weeping liberals they, as we know. The newspaper has described the Government’s policies in respect of those to whom we owe a duty of recognition and honour as dishonourable and shameful. I do not often agree with the Daily Mail, but I certainly agree to the use of those adjectives.

I suspect that I am probably the only person in Parliament who not only has been an interpreter—not, I hasten to say, in operational conditions—but has used interpreters, in that case in operational conditions and sometimes moderately dangerous ones. Many of those who served with the front-line units were the bravest of the brave. If there is a front line, they are on it because they have to be; British soldiers cannot do their job unless they are. If there is action, they had to be there too, otherwise we could not do the task that Her Majesty sent us to Afghanistan to fulfil. When the patrol returns the soldiers go into a protected base, but not the Afghan interpreters. They have to spend the night with their families in their communities. Their families are not 10,000 miles away in safety. They too live in the community and are subject to the threat of the Taliban. They came almost by the month for every one of those 13 years and now they come virtually by the day to individual Afghan interpreters, who are beaten up and their families threatened. I have heard so many stories of this that I can barely remember the individual details.

The Afghan interpreters who served day in and day out in active service in the most hostile and dangerous positions, sometimes even with the Special Forces, do not go back after six months. They have stayed in the country for every single one of the 13 years of the Afghan conflict. Now—I have to say it bluntly—we have abandoned them. I do not think that there is a single squaddie or serviceman who served in Afghanistan alongside these interpreters who did not love them, who did not admire them, and who did not think that every single one of them on front-line duties bore a burden of risk greater even than many of our own soldiers because they had borne it for longer. And yet we have abandoned them. It is a shameful policy that shames the Government and, in my view, the nation as well.

The Government’s refuge in this, and we may well hear it from the Minister, is that they have set up their package. There are obligations of duty, honour and service here. Our soldiers could not have operated without the service of these men. They simply would have been useless. The next time our servicemen are asked to go into battle on behalf of our nation and we seek a local interpreter, given the way that we have abandoned them and in the light of the way we have treated them, what kind of response do noble Lords imagine they will get?

The Government believe that all their obligations to these brave men can be fulfilled by the Afghan intimidation scheme. When I understood that the scheme would be put into operation in the next Government, I expressed my opposition to it. I thought that it was the wrong scheme. But if it had been applied with good will, so that the burden of presumption was that the Afghan interpreter would, in the face of intimidation and threat, be allowed to return to Britain, maybe this would have been a reasonable policy—inadequate, flawed, but maybe just about acceptable. But it is not. Almost none of those who have suffered from mortal intimidation from the Taliban have been housed and not a single one has been allowed to return to Britain in the years since this Government have been in power. This policy is already flawed. It is very difficult to understand why it has been enacted with such little generosity and duty of honour, except that those interpreters, along with the honour of our country, have been sacrificed in this Government’s obsession to do not what is right but what is necessary to outflank the revolting prejudices of the right wing of the Conservative Party and UKIP.

This is a shameful policy, the price of which will be paid in the standing not only of our nation but of our own troops, when they seek to draw in the services of interpreters in the future. If we vote for the amendment we can at least make amends in this Bill for three or four years of complete failure to live up to the role that these men have played on behalf of Her Majesty and of our nation in a conflict of our choosing, and who have placed their lives at risk in doing so.

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[The Lord Bishop of Norwich]

My Lords, the situation of most young adults in this country reveals why this group of amendments is needed. I am glad to add my name to it and pay tribute to the noble Earl for his introduction. In 2015, half of all young people aged 21 in this country and 40% of all 24 year-olds were still living with their parents. As many Members of your Lordships’ House will know from personal experience, even adult children who have left home often return when need arises. Indeed, my own personal experience of adult children is that territorial control of bedrooms continues even when they have got married or have their flats elsewhere—I am thinking of introducing a bedroom tax in Bishop’s House in Norwich.

Children in care are not somehow exempt from the societal pressures of this age. In this regard, the Government recently changed legislation so that all care leavers can stay put in foster placements until they are 21, which is a recognition of a massive shift in our society and is good for their welfare. The current system of leaving care is designed to keep contact with young people, wherever they end up.

Care leavers who have exhausted their appeal rights and find themselves alone in this country face the same difficulties as other children leaving care but additional ones as well: isolation, loneliness and fear are common. They have often suffered abuse, violence and trauma earlier in their lives. Migrant care leavers need help from their corporate parents to gain access to legal advice and representation in relation to their immigration status.

Research for the Children’s Commissioner, published 18 months ago, included interviews with care leavers who had become appeal rights exhausted. They had a pervasive sense of fear, anxiety and depression. Some said that they contemplated suicide. The experience of friends hardened their resolution to remain in the UK. One young person said of this friends that,

“one of them is currently in a detention centre, one was sent back years ago, and one was sent recently, sent back to Afghanistan … but he is in a big trouble. His father is telling him to join the Taliban”.

This amendment is necessary because such young people undoubtedly continue to need support, whether it is to make sure that returning them to their country of origin is truly safe or to work with them in preparing them to return with assistance and proper support, without the need for enforcement. I hope that the Minister will look sympathetically on this group of amendments.

[Baroness Hamwee]

My Lords, I have added my name to these amendments and I was planning to say nothing more than that I agree with everything the three previous speakers have said. However, the point made by the noble Baroness on definition seems to need clarifying. When the Minister has considered that, if there seems to be any doubt that has to be resolved in correspondence, it should be resolved in the Bill at Third Reading. If there is a problem, that is where the resolution needs to be.

[Lord Bates]

My Lords, I thank the noble Earl, Lord Listowel, for moving the amendment. He is one of the Members of this House whom we all greatly admire. He focuses on a particular area that he cares passionately about—namely children, particularly children in care, and seeks to introduce their voice into all pieces of legislation that go through your Lordships’ House. That is to his credit and we appreciate him in that spirit. My officials and I were grateful for the opportunity to meet with the noble Earl about his amendment, and I know that James Brokenshire, the Immigration Minister, was grateful to have the meeting with the Alliance for Children in Care and Care Leavers on 8 March.

The noble Baroness, Lady Lister, invited me to write another of my famous letters. I was particularly proud of the one that we wrote on 11 March following the meetings and the consultation. Not only did we listen to the concerns that were raised, but on page 4 we went into some detail about how we would respond to those concerns. We said that we would look at how provision should be geared to what the local authority is satisfied is needed to support a person through their assisted voluntary return or forced departure. Let us just be clear for those who may not have followed all the aspects of this issue. We are talking about people in local authority care who, after various appeals for leave to remain, are deemed to have no legal right to be here, and furthermore—this is very important from the perspective of the noble Baroness and the right reverend Prelate—there is no barrier preventing their return. These are important provisions to bear in mind in relation to the group that we are talking about.

I emphasise that the great majority of care leavers are not affected by the changes in Schedule 11, including those with refugee status, leave to remain or an outstanding asylum claim or appeal. They will all remain subject to the Children Act framework. Under new paragraph 7B of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, this also includes those who have been refused asylum but have lodged further submissions on protection grounds that remain outstanding, or who have been granted permission to apply for a judicial review in relation to their asylum claim.

Under new paragraph 2A of Schedule 3, the Children Act framework will also continue to cover those awaiting the outcome of their first application or appeal to regularise their immigration status where, for example, they are a victim of trafficking. This means that the young adults affected by the changes in Schedule 11 will be those who have applied for leave to remain here on asylum or other grounds but have been refused, and who the courts have agreed do not need our protection, have no lawful basis to be here and should now leave the UK.

I shall now deal with the points referred to by the noble Earl and the noble Baroness. It is possible for individual cases supported by local authorities under the new 2002 Act framework to continue in a foster placement or to be supported by a personal adviser where the local authority considers this to be appropriate. That is an important safeguard.

The noble Baronesses, Lady Lister and Lady Hamwee, asked about the meaning of “unaccompanied” in Clause 64(10), concerning the transfer of unaccompanied asylum-seeking children. We understand the concern to ensure that all relevant cases are properly safeguarded, including victims of trafficking. We will set out in writing how we intend “unaccompanied” to be defined and how it will operate. My notes do not say when that will be, but it will be done by Third Reading. That is an important point and I am grateful that it has been raised.

The noble Baroness, Lady Lister, asked about care leavers being dispersed across the country. These cases will qualify for Home Office support under new Section 95A only where they are failed asylum seekers facing a genuine obstacle to departure from the UK. It will be possible in these cases for the person to remain in local authority accommodation funded by the Home Office—for example, while they await a travel document from their embassy. We will develop appropriate guidance with the Department for Education on those cases. I am sure that the views of the organisations that the noble Baroness referred to will be valuable in formulating that guidance, and would be appreciated.

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[Lord Teverson (LD)]

My Lords, I shall not keep the House for a great deal of time. This is an issue which I believe to be fundamental, which is why I have brought it back on Report. I thank my noble friend Lady Hamwee for having simplified it down to its basic elements so that we get to the crux of the matter.

When we talked earlier this evening about bringing together families who were asylum seekers, it was interesting how the Minister agreed, as he obviously would do, that it is much better that asylum families are able to live together. I think that what is not recognised or realised by the vast majority of the population is that we do not in many circumstances allow British citizens to live together with their spouse or civil partner. There are many instances where British citizens who have married are not able to bring their spouse or civil partner to this country to live with them, or if they are abroad and wish to do that, they are effectively exiled. If they have children, who are then usually entitled to British citizenship, those younger citizens are also effectively exiled from their country of citizenship.

The reason for that is the requirement of a certain income per annum for the British citizen over a period of time to enable them to live with their chosen civil partner or spouse. It seems fundamentally wrong that we as British citizens are constrained about who we are able to marry or enter a civil partnership with and are unable to live in our home state. Not only is that fundamentally wrong; it is discriminatory in terms of income levels, with those in certain professions or work or those in certain regions less likely to be able to live with their spouse or civil partner in the United Kingdom, with their family, than are those in other trades and professions and other regions.

For a party and a Government who believe that family is of fundamental importance and for a party with many libertarians among it who believe in the freedom to marry and live with who you wish as long as it is not a sham marriage—clearly those exist, and the amendment takes that into account—I have brought this amendment forward again. I believe that there is a fundamental discrimination and a fundamental injustice in terms of what British citizenship should mean and the liberties that this country should offer to its citizens. On that basis, I beg to move.

[Baroness Hamwee]

My Lords, at the previous stage my noble friend and I tabled an amendment that sought to change the financial thresholds that currently apply to spousal visas. The Minister gave as one argument for the threshold the need to protect families, saying that the Government want to see family migrants thriving here, not struggling to get by. But separation does not help people to thrive. The Minister thanked my noble friend for raising our sights at that point by talking about love. So instead of another amendment on financial thresholds, my noble friend and I have decided to say what we mean, which is this: do not set a financial threshold on love.

[Lord Green of Deddington]

My Lords, the amendment simply deletes a key requirement in a spousal visa. Noble Lords will remember that the Migration Advisory Committee was invited to make recommendations on what should be a threshold. I take the point that the noble Baroness would not like a threshold at all, but the recommendation was £18,600 as the level at which no income-based benefits were paid. The level at which the overall costs to the Exchequer would be zero was £40,000. That gives an indication of the cost to the taxpayer of abolishing this income requirement. It is surely not right that the taxpayer should be obliged to subsidise at such a considerable level the arrangements of other people. This amendment would drive a coach and horses through that requirement, and I hope that it will be opposed.

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[Baroness Warwick of Undercliffe (Lab)]

My Lords, I will speak in favour of the amendment in the name of the noble Lord, Lord Wallace, to require the Home Secretary to make exemptions from the immigration skills charge for certain cases. I declare an interest as a member of the councils of UCL and of Nottingham Trent University.

The problem which the Government claim the charge is intended to fix is the underinvestment in the skills of our young people, particularly by employers. I do not think many in this Chamber would disagree with that. Action is certainly necessary on this; employers should be incentivised to invest in skills. However, like the noble Lord, Lord Wallace, I wonder how this charge will interact with the apprenticeship levy, and whether it might be more sensible to proceed with that vehicle as the primary means of increasing investment in apprenticeships and perhaps other forms of education and training. It would be useful if the Minister would comment on that.

The Government have suggested that the charge seeks to disincentive employers who perhaps too readily recruit from overseas in preference to training the domestic workforce. However, the Government have, on many occasions in debates in this House, commented on the impact of immigration on our higher education and research communities and made clear that they do not oppose the UK attracting the brightest and best from around the world to study, teach and research, and to help us to develop an innovative and growing economy. It is difficult to square this commitment with a charge that punishes employers for doing precisely that, particularly if this were applied in blanket fashion without appropriate exemptions.

The amendment also seeks to exempt the appointment of health professionals from the scope of the charge. It is worth pointing out that in many cases in the health sector the supply of suitably qualified candidates in the domestic workforce is at least in part dictated by government policy. To levy a charge on NHS trusts recruiting from overseas, when the number of qualified doctors, for instance, is entirely determined by government quotas, does not seem a sensible approach. It seems particularly perverse that these two sectors will surely be among the most heavily hit by the proposed charge if no exemptions are allowed for.

I accept that the Government have not yet set out their precise plans on this matter, and I understand that they will shortly set out their response to the Migration Advisory Committee’s report on tier 2 migration. I urge the Minister to give some reassurance to the House—and to the health, education and research sectors—about what provision will be made for these sectors.

[Baroness Hamwee]

My Lords, my noble friend filleted his remarks rather skilfully. I have been trying to do the same, but I think they are going to come out a little disjointed. I am sure we will be told that we will have the opportunity to scrutinise the proposals when regulations are laid. However, I think we know that we can debate but not scrutinise effectively when we have unamendable regulations.

In the public sector generally, particularly the health and education sectors that are publicly funded, I wonder whether there is a risk that the charge will in effect be recycled back into the sector—less all the administrative costs that are lost along the way—if the sector can actually train via apprenticeships. That is not, of course, the case for doctors and many other front-line healthcare professionals. Yesterday, when I was preparing a very much longer speech than this, I wondered about the logic of a charge whose effect may well be to reduce the contribution of skilled workers because employers will simply not be able to afford them. We may be left in a worse position than we are in now. Undoubtedly, we should have enough information to be able to debate these very significant proposals, at the stage of primary legislation, in an effective, possibly even constructive, fashion. It is very disappointing that we are left without that possibility.

[Lord Green of Deddington]

My Lords, I very much agree with the thrust of the contribution of the noble Lord, Lord Wallace of Saltaire. I think he was absolutely right.

Immigration Bill

Baroness Hamwee Excerpts

Monday 21st March 2016 Lords Chamber

[Lord Scriven (LD)]

My Lords, I rise to make two brief points. The first is in response to the noble Lord, Lord Lawson, who talked about anyone over the age of 12 not being vulnerable. I find that a quite incredible thing to say, not just in the sense that 13, 14 and 15 year-olds are vulnerable, but because when we talked about votes for 16 and 17 year-olds in your Lordships’ House, people on those Benches were saying that 16 and 17 year-olds were not mature. So there is a form of hypocrisy here in terms of the age of those who are seen as vulnerable.

My second point is that it is a complete nonsense to suggest that this amendment from the noble Lord, Lord Dubs, would act as a pull factor. It suggests that parents and children are sitting in a war-torn part of the world and suddenly say that because 3,000 children have been accepted into the United Kingdom they are going to send their children here. People are fleeing because they fear for their children’s lives and their own lives, not because of some rational thought about what is being said in the sanitised, oak-panelled walls of this Chamber.

I end by saying this. I was brought up to do the right thing, not necessarily the easy thing or the technical thing about the territorial boundaries of where a child in need is. The amendment moved by the noble Lord, Lord Dubs, is the right thing to do. It is the moral thing to do. It sends a message about the morals of this country: that we open our hearts and our arms to those in greatest need. We do not turn our backs on vulnerable children.

[Baroness Hamwee (LD)]

My Lords, on behalf of these Benches, including my noble friends who have managed to restrain themselves from speaking—that is probably all of them—I want to say that the word “vulnerable” is overworked but entirely apt; this is not just about the youngest children. I have heard it said that a 14 or 16 year-old who has made his way from Afghanistan or Eritrea all the way across Europe is not a child. Well, he will certainly have had a lot of life experiences. Children come in a lot of shapes, sizes and ages, and a 14 year-old who is caring for his eight year-old brother still has the needs of a 14 year-old. The number of children who have disappeared must give us more than a hint of the abuse, exploitation and trafficking to which children can so easily fall prey. Even those who have not disappeared are unlikely to have avoided abuse and criminality entirely.

The Government have also claimed, although I do not think it has been referred to today, that accepting unaccompanied children risks separating them from their families. But the proposal, as I understand it, would apply to children who have been registered by the UNHCR as having no identifiable family in Europe or in their country of origin.

I turn to the pull factor. I will simply put it this way: there are so many push factors that we do not need to think about the pull factor. Something that has shocked volunteers working in northern Europe is the number of children involved, including some very tiny ones—their ages vary somewhat between the camps. This is not to deny the importance of assisting those who are in the camps in the Middle East, but to accept this amendment would be to acknowledge the huge public concern. When the noble Lord, Lord Dubs, referred to the contribution of refugees welcomed almost 80 years ago, I could see the nods of agreement right round the Chamber.

As to the mandatory nature of the amendment, I agree that it is not desirable to use legislation for a purpose for which it is not needed, but it would not have taken the form of an amendment if the Government had shown more movement towards the objective. Although the children in question may have rights in another European country, the situation surely is such that the UK should take the lead towards some sort of resolution.

I mentioned abuse, exploitation and trafficking. The noble and learned Baroness, Lady Butler-Sloss, did not mention the Modern Slavery Act, but I suspect that it was in her mind. The Government are proud of that legislation, which addresses exploitation, abuse and trafficking. Let us join up the dots.

Immigration Bill

Baroness Hamwee Excerpts

Tuesday 15th March 2016 Lords Chamber

Such disregard for the best interests of a child could easily become even more commonplace as a result of the passage of this legislation. What was the impact of the already-existing duty of the Home Secretary to have concern for the best interests of the child in this case? Given that duty, what is the significance of government Amendment 145? What will be the means of giving it effect? Surely we can look at how to give this government amendment more substance between now and Third Reading, if for any reason Amendment 114 is not acceptable. How do we give each child a place and a voice within this process, as well as making sure that the details of any decision will be clearly set out? Surely, every child does still matter.

[Baroness Hamwee (LD)]

My Lords, I support my noble friend Lord Roberts of Llandudno, who reminds us of the moral obligations that we have to a child or someone who is not quite a child any longer in the eyes of the law, when in effect the state has been that child’s parent up to the age of 18.

I am glad that the right reverend Prelate went ahead of me, as he said much of what needs to be said. I find the “deport first, appeal later” policy—as it has come to be called—difficult to tackle because I dislike the whole thing so much and am very frustrated that we have to approach it crab-wise because of it being a manifesto commitment. However, this does not at all detract from the importance of recognising how children’s interests can properly be dealt with in the way that this amendment seeks to do.

The right reverend Prelate said that he was concerned about the Government’s Amendment 145. However, I oppose Amendment 145, as by saying that Section 55 applies, all it does is put in doubt the application of Section 55 in other circumstances unless it is said that Section 55 applies. That is nonsense. The noble and learned Lord will appreciate that that cannot be what is meant and I hope he will appreciate that there is a danger, however good the Government’s intentions, in trying to confirm the application of Section 55 to us in this way, although I do not wish to be bought off by that.

I think the right reverend Prelate said that the child’s “voice” needs be heard. That struck me very much in the helpful briefing from the Refugee Children’s Consortium, in which it says:

“Crucially, there is … no mechanism by which children’s own views are systematically”—

the word systematically is probably important—

“considered by the Home Office”.

I appreciate that the Minister is bound not to be able to accept this from the Dispatch Box, but the consortium has told us that,

“best interests assessments are rarely conducted in any meaningful way, if at all. The Home Office routinely takes as their start and end point that the children’s best interests are met by being with both parents. They rarely, if ever, consider the child’s current circumstances, their likely future circumstances, the child’s own views”—

as I said—

“the parents’ likely circumstances on return and how they will impact on the child before making a decision”.

It also tells us:

“There is also no evidence that the Home Office proactively seek to find out whether any of the children within a family liable for removal might have a right to British citizenship”.

For all those reasons, and the four pages of briefing which Ministers can see me dangling, I very much support Amendment 114.

I have some amendments in this group in my name and that of my noble friend Lord Paddick. Amendments 113A and 114A deal with the position if, having been deported, an appeal is successful. The individual will have been made to leave the UK only temporarily, as it will turn out, against his or her wishes. I understand that there is guidance in connection with deportation that consideration must be given to the Home Office paying for the journey back. I would say in parenthesis that regard must be had to the quality of the Home Office decision. I do not know whether the noble and learned Lord can tell the House how the quality is assessed: is it a matter of comments made by the tribunal? It also occurs to me that if an appellant is not legally represented, will he know whether to raise the issue of payment for return to this country? In any event, my amendments are not about deportation, they are about administrative removal. If the administrative removal is wrong, the Administration should bear the costs of return to the UK.

Amendment 113B would prevent the certification of cases of persons with the characteristics specified in the amendment, so that such a person could not be required to leave the UK while the appeal was pending. The Minister will recognise how that aligns with cases of people who are vulnerable—if not “particularly” vulnerable, to use the word in Amendment 86. They are children, care leavers, persons with mental illness or learning disabilities, people who have been trafficked or enslaved, people who have claims based on domestic violence or are overseas domestic workers. For reasons which we spent some time on when debating the previous group of amendments, Ministers will understand our concern to pay particular attention to the need not to expose people who have such characteristics to the possibility of further damage.

[Lord Ramsbotham (CB)]

My Lords, I have added my name to Amendment 114 for two reasons. Proposed new subsections (4) to (6) seem to reflect all the experience of the practitioners on the ground with whom I have been in contact, but I was particularly keen on proposed new subsection (7), because the need for a written plan for the child resonates with the education, health and care plans which the Department of Health and the Department for Education require to be prepared for every child with speech, language and communication needs or special educational needs. So such a plan is already part of the structure for children in the United Kingdom.

I was particularly struck by a visit to a secure children’s home called Orchard Lodge, sadly now closed down, which was then run by Southwark council and provided particular help for traumatised children with mental health problems, many of whom were the very people covered by these amendments. They were immigration and asylum seekers who had suffered extraordinary trauma during the conditions that brought them to this country, and they needed help—but that help needed to be structured, co-ordinated and planned. Therefore, I particularly support the amendment tabled by the right reverend Prelate the Bishop of Norwich and hope very much that, in accepting it, which I hope that the Minister feels able to do, he will reflect on the model for the plans that he calls for.

--- Later in debate ---

[Lord Keen of Elie]

I wonder if I may be permitted to correct the noble Lord, Lord Rosser: it is the court’s interpretation of the obligation, as is found in the case of SS (Nigeria) in 2014. It is on the basis of that judicial interpretation of the obligation that the Secretary of State proceeds. I am obliged to the noble Lord for the question.

[Baroness Hamwee]

Before the Minister sits down, he referred to guidance with regard to payment for the return of an appellant following a successful appeal. The guidance that I referred to relates to deportation—inevitably, because that is the current position. Is the Minister saying that equivalent guidance is to be provided in the case of appellants in this situation?

[Lord Keen of Elie]

I am not in a position to immediately answer that question but, if I may, I will write to the noble Baroness on that point.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I was unaware of this situation until earlier stages in the Bill. Like the right reverend Prelate, I do not need to stress the concern; the noble Baroness has done so very effectively. She is absolutely right that this should not be left in the too-difficult-bureaucratically tray. It is an appalling situation and one that I cannot believe any politician would wish on—I was going to say the recipients, but they are not the recipients. That is the whole problem.

My noble friend’s name has been left off, but I tabled Amendment 118 in this group, which is about the issue of vouchers and cash payment, relating to both Sections 95 and 95A. The amendment, I hope, responds to the Minister’s comments in Committee to a similar amendment. At the time he said:

“The legislation needs to be flexible enough”.—[Official Report, 3/2/16; col. 1831.]

He referred to the fact that support is sometimes provided in the form of accommodation or services.

My amendment would provide that, as it were, the default is cash support for reasons of dignity. I do not think that I need to spell all this out again. We have covered it previously, and to me it is entirely obvious that it is undignified to be given support other than in a form that you can choose to spend—to an extent, as obviously there are many essentials to cover, but you can make your own choices. That is fundamental to human dignity, but it is also a matter of practicality.

My noble friend Lord Roberts of Llandudno referred earlier to the shop that had been established, I think on the Park Royal industrial estate, where everything was on sale for 25p—then it was going to go up to 50p, and then £1. The response was that we should see whether the shop will take the card. That does not respond appropriately to the point.

My amendment would specifically provide an answer to the Minister’s points in Committee that support can be in the form of accommodation or services or, in exceptional circumstances, vouchers, which can be exchanged for goods and services, or a card entitling the holder to goods or services, but primarily in cash.

I wonder whether I can ask the Minister a question on one of his amendments in this group. Amendment 127 refers to,

“a person under the age of 18 who is unaccompanied and who … has leave to enter or remain … and is a person of a kind specified in regulations”.

I realise that that wording is also included in Clause 64(9) but I also realise that I have no idea what,

“a person of a kind specified in regulations”,

might be. I hope that when the Minister addresses that amendment he can explain what a person of a particular kind might be. What sort of kinds are we talking about?

[Lord Roberts of Llandudno]

Following what my noble friend Lady Hamwee said, I will add the word “choice”. If you have a card or a voucher you have to go to certain outlets—usually the middle-range outlets, not the cheaper shops or the bargain shops. When you get only £36 a week, you have to spend your money very carefully indeed. I enjoy cheese biscuits. I forget the name of the make now; they are cheddar biscuits. Perhaps other Members do as well. I can go to a shop in Llandudno and the marked price is £1.39. I buy them sometimes. If I go to a pound shop they are two for £1. There is a massive difference between what you can buy from a shop that has possibly only limited goods on sale and from one of the ordinary shops—I will not mention them; no publicity this evening.

We are denying people the choice and ability to look after themselves and their families in the best possible way. We spoke earlier of the best interests of the child. I suggest that the best interests of the child here is that the parent can use the money and the value that they have in the best possible way, and is not limited to a certain number of shops. It should be open if you have cash in your hand. You should not be embarrassed at the till because your card is overspent; you will know exactly what you have. I have said this many times to the Minister: we always seem to have a great friendly understanding, but I never got my way on store cards. I am sure that there is the possibility in the Bill to look after the best interest of the child and those who have this benefit. I urge the Minister to accept my noble friend Lady Hamwee’s amendment. It is in only exceptional circumstances that a card or voucher is used; usually it is a cash benefit that they can spend in whatever way they want.

Immigration Bill

Baroness Hamwee Excerpts

Tuesday 15th March 2016 Lords Chamber

Moved by

[Baroness Hamwee]

59: Clause 37, page 23, line 14, leave out “and second” and insert “, second and third”

[Baroness Hamwee (LD)]

My Lords, my noble friend Lord Paddick and I have a number of amendments in this group. Underlying all of them is a concern about all the so-called right-to-rent provisions—and indeed those provisions in the 2014 Act—and our view that there should be much longer experience of the current regime before criminalising non-compliance with it. My Amendment 67, which is more specific than Amendment 66, in the name of the noble Lord, Lord Rosser, and more robust, in particular deals with this. Noble Lords will be familiar with the short piloting of the requirements in the 2014 Act, the announcement of their rollout beyond the West Midlands pilot area before the six-month pilot came to an end and the publication of the evaluation of the pilot merely hours before these clauses were debated in Committee in the Commons.

My Amendment 67 picks up on concerns and criticisms of the scheme from the evaluation by the Home Office and on work done in particular by the Joint Council for the Welfare of Immigrants. The proposed new Section 33C(8) lists issues which were highlighted and which would be impacted. The amendment would require an independent assessment,

“based on information from a representative sample”.

The 2014-15 pilot was much criticised on this score, as it comprised substantially students, with few people who actually moved during the period, so they had not experienced the new rules.

My amendment would also require an assessment over an adequate period, with publication not before five years from the start of the pilot. Noble Lords will also be aware of the panel co-chaired by the noble Lord, Lord Best, which continues to oversee the scheme and which has instigated changes. I do not for a moment doubt what the noble Lord, Lord Best, has told us of the workings of the committee, but since the minutes of its meetings are not published, we are not able to look at them in the way that we would want to. The evaluation should of course be based on rigorous data collection.

The regime affects tenants and would-be tenants, landlords and landlords’ agents, and when it was rolled out some months ago there were very many negative comments. It was interesting that when we had a debate a couple of weeks ago in this Chamber, it was apparent that some Members of your Lordships’ House who were landlords did not know of the requirements. So it seems to us that the scheme should be as dependable and defensible as possible before a landlord becomes liable to be criminalised, and this amendment allows for that. Criminalisation is very significant: a fine is qualitatively different from a civil penalty of the same amount.

Our Amendments 59, 60 and 61 would protect landlords. New Section 33A, which we are presented with in the Bill, sets out two conditions or matters which would give rise to an offence. My amendment would add a third—that previously the landlord should have been required to pay a penalty, so that a landlord is not liable to be criminalised on the first occasion he infringes. I am aware of course that there would be an assessment by the Crown Prosecution Service as to whether it is in the public interest to prosecute and so on, but I simply do not think that an individual in that situation should be subject to criminalisation. The Minister may respond by saying, “What about the flagrantly bad landlords—those who overcrowd, force people into substandard conditions and so on?”. But we have other housing legislation and we should not be using immigration legislation to deal with this abuse.

The second condition deals with premises being—including becoming—occupied by an adult who is not qualified to have the right to rent and the landlord’s knowledge. I hope that the Minister can explain whether there is a distinction between the obligations of a landlord and of a landlord’s agent, because the equivalent provision in the 2014 Act, at Section 22(6), requires reasonable inquiries to be made. I find it difficult to see how this fits with new Section 33A.

The Minister’s Amendment 62 does not deal with the positive action of authorising occupation. If we are not to have that, I support Amendment 65, tabled by the noble Lord, Lord Howard of Rising. The defence of having taken reasonable steps to terminate the tenancy within a reasonable period is an improvement, as far as it goes, but that is not nearly far enough. What is reasonable is to be determined by the court, which is fine, but having regard to the Secretary of State’s guidance, which, to me at any rate, is not fine. My Amendment 63 would remove new subsections (5B) and (5C). What is reasonable should speak for itself, and the courts are not short of experience in assessing what is reasonable. But if something is reasonable only subject to certain matters, they should be set out in legislation, not unamendable guidance—or at any rate guidance that will be amendable by the Government and will not be certain.

Amendments 67A to 71 deal with evictions. The new section in Clause 38 is headed, “Termination of agreement where all occupiers disqualified”. In the Commons Public Bill Committee, the Minister said that Home Office notices would be issued only when it is clear that all the occupiers are illegal migrants. I do not doubt that that is the intention, but I am concerned that new Section 33D(2)(b)—I apologise to noble Lords for all the cross-references—might be read as referring to particular occupiers, as long as they were the subject of notices, especially as in the preceding paragraph, paragraph (a), there is a reference to “all”.

--- Later in debate ---

[Lord Bates]

It is absolutely right for the noble Earl to draw attention to that. I certainly give him that undertaking. We will bear in mind those particular points precisely when we construct the guidance which will be laid before Parliament.

[Baroness Hamwee]

My Lords, I am grateful to everyone who piled in on this. Again, there is an awful lot that we are not going to agree on—but I will not repeat all the arguments I made in moving my amendment. However, I should make it clear that I was asking not about publication of the Home Office’s evaluation but about the work of the panel of the noble Lord, Lord Bates. I think that that is a separate issue.

[Lord Bates]

The noble Baroness raised that point in Committee. I went back to James Brokenshire and asked him whether the minutes could be published. That issue will be raised at the next meeting of the consultative panel. Because other private sector groups are involved there is, of course, a need to get their permission before any action of that kind could be taken. But that issue will be on the agenda for the next meeting of the consultative panel.

[Baroness Hamwee]

I am glad to hear that because it means that the last hour may not have been in vain. I still have concerns about mandatory conviction, discrimination—whether because or in spite of my intermittent Mancunian accent, I am not sure—and criminalisation. My amendment and that of the noble Lord, Lord Rosser, cover very much the same ground and we have discussed this. He asked for sympathy from the Minister. He always gets sympathy from this Minister. Therefore, I assume that he will not lead the troops to support the continuing pilot, if you like, which is the subject of both our amendments. Therefore, very sadly, as I do not want to take up the time of the House, I beg leave to withdraw the amendment.

Amendment 59 withdrawn.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I will confine myself to one question and to thanking the noble and learned Lord for that remarkably succinct explanation of several pages of amendments. I am sure it will bear reading and rereading. I think that he has answered my question, but I just want to be sure. What happens if electronic monitoring cannot be imposed, for instance because of mental health concerns or some other human rights issue? I think that he said that bail could—or indeed would—still be granted. That is the central question.

[Lord Keen of Elie]

I am obliged to the noble Baroness. The answer is that, in those circumstances, bail could still be granted. It will be dependent on the individual conditions that arise in a particular case. But I make it absolutely clear that it would still be possible for bail to be granted in such circumstances.

--- Later in debate ---

[Lord Hylton]

My Lords, having spoken on this subject at Second Reading, and having visited two removal or detention centres more than once, I support what the noble Baroness, Lady Lister of Burtersett, was saying about the categories of people who should never be detained. I draw particular attention to those with serious mental health issues or post-traumatic stress. Surely, if they are at risk of injuring either themselves or other people, they should not be in these detention centres. They should be in secure psychiatric wards. So I hope that the Government will take very seriously what the noble Baroness was saying.

[Baroness Hamwee]

My Lords, my name is on the amendment. I made a lot of notes as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, was speaking, but I do not think that, having been given his conclusion, I need to deal with all of them. I am well aware that there is opposition to the clause from a number of organisations which do not want to see any exceptions at all. That seems to me to have been the burden of their concerns.

The short point is that the system is not working. We do not live in a perfect world. If we were to create other rules that one might say would support the system as we now have it, I do not believe that they could be made to work. The then Chief Inspector of Prisons commented on how many of the detainees were released back into the community, which poses the question: if they are suitable to be released back into the community, why do they need to be detained in the first place?

The Government’s position is a presumption that an “adult at risk” will not be detained. Our presumption is against detention for more than 28 days, so we start at the other end. It is unambitious to say—as the Government do—that they expect to see a reduction in the number of those who are at risk in detention and that they will be there for reduced periods. The Written Ministerial Statement which the Government published in January categorises the issues in a way which worries me, separating risk and vulnerability from healthcare. Care and assessment are very closely allied, and I suggest, for instance, that a victim of sexual violence may not be able to explain to a healthcare worker that this is her experience until after quite a long period of treatment. Therefore, looking at the Government’s approach to this, I am concerned.

We already have Rule 35 of the Detention Centre Rules, whose purpose is,

“to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention”.

It is not working. We have that now and there is a great range of problems—in view of the time I will not go through them but I hope that noble Lords will understand that the all-party group, of which I was a member, heard a good deal of evidence from medical professionals about the problems with Rule 35. Therefore, if that rule does not achieve what is needed, will guidance—the Government’s Amendment 86—achieve it? I fear that it will not.

Amendment 85 aims to flush out the Government’s view of the conditions of vulnerability listed by Stephen Shaw in his report. It says that a vulnerable person should not be detained unless there are exceptional circumstances, as determined by the tribunal. The Government’s answer will, no doubt, be in Amendment 86, which talks about particular vulnerability—someone being particularly vulnerable to harm if they are detained. We start from the premise that vulnerability is vulnerability, full stop.

There is so much more one could say; I wish I could but I will not. I support the amendment.

[Lord Rosser]

The noble Lord, Lord Ramsbotham, has made a powerful case in support of Amendment 84, to which my name is also attached, and I do not intend to repeat all the points. The amendment is intended to provide for judicial oversight if a person is to be detained for a period longer than 28 days. If the noble Lord, having heard the Government’s response to Amendment 84, decides to test the opinion of the House, we will vote in support.

Immigration detention is a matter of concern. For the person detained it is detention for an indefinite period, since they are not given a date when it will end. Their life is in limbo. A recent all-party group inquiry into immigration detention heard evidence that detention was in some ways worse than being in prison, since at least people in prison know when they will get out. There is medical evidence that it causes anxiety and distress, not least among the more vulnerable groups. The all-party inquiry to which I have referred heard from medical people with knowledge in this field that the sense of being in limbo and the hopelessness and despair it generates lead to deteriorating mental health. One such witness said that those who are detained for more than 30 days have significantly greater mental health problems.

For his report for the Home Office into the welfare in detention of vulnerable persons, Stephen Shaw commissioned a review by Professor Mary Bosworth of the evidence linking detention with adverse mental health outcomes. Mr Shaw said that he regarded her view as a study of the greatest significance. Two of Professor Bosworth’s key findings were: first, that there is a consistent finding from all the studies carried out across the globe, which were from different academic viewpoints, that immigration detention has a negative impact upon detainees’ mental health; and, secondly, that the impact on mental health increases the longer detention continues.

In his conclusions, Mr Shaw stated:

“Most of those who have looked dispassionately at immigration detention have come to similar conclusions: there is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform”.

He ended by saying:

“Immigration detention has increased, is increasing, and—whether by better screening, more effective reviews, or formal time limit—it ought to be reduced”.

In the first three quarters of 2014, 37% of those detained were detained for longer than 28 days. Home Office guidelines are that detention should be for the shortest possible time and should be used only as a genuine last resort to effect removal. Yet despite centres being called “immigration removal centres”, most people who leave detention do so for other reasons than being removed from the United Kingdom. According to government statistics, more than half the detainees are released back into this country.

There could surely be some scope for a wider range of community-based alternatives to detention, enabling more people to remain in their communities while their cases are being resolved or when making arrangements for them to leave the country. The family returns process, which is designed to reduce the number of children detained, has resulted, according to the Home Office’s own evaluation, in most families being compliant with the process and no increase in absconding.

I note the views expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and his reason for not supporting but also, as I understand it, for not opposing this amendment if it is put to a vote. If Amendment 84 is passed by this House, the Government also have the option, if they choose to take it up, of putting an amended proposition as the Bill goes through its remaining parliamentary stages.

Amendment 84 does not of course put a time limit on immigration detention but it would ensure that a decision to continue to detain after 28 days was a judicial decision dependent on the Secretary of State having to make the argument that the circumstances of the case concerned required extended detention. The amendment does not preclude or prevent detention going beyond 28 days but it means, in a country where we uphold justice and the right to liberty, that at least after a period of time the decision to continue to detain has to be a judicial one, not an administrative one. Surely this House can support that.

Immigration Bill

Baroness Hamwee Excerpts

Wednesday 9th March 2016 Lords Chamber

Finally, Amendment 38 repeals Section 55 of the Modern Slavery Act 2015 and the duty on the Secretary of State to consult on the role of the Gangmasters Licensing Authority. This is redundant with our recent consultation and the publication of our response. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have Amendment 154 in this group. The Minister has referred to the large number of government amendments and I accept that many of them are in response to comments made in Committee, although I am not sure that that could apply to the 46 amendments in this group. At the last stage, there was a good deal of comment about the number of government amendments laid at a relatively late stage of the Bill. These further amendments are not so much a response to the Committee as continuing the substantial development of the issues. The Minister may know that there has been some pressure on us to argue for recommitment of these clauses so that we can look at them calmly as a whole. That would have been the right thing to do. I canvassed a little on that but I detected not a lot of enthusiasm and I accept that we have limited time, so I will not spend time this afternoon arguing for recommitment. But I wanted to put that point on the record.

The first amendment is not the biggest but let us start at number one. I do not begrudge a pension for the director of labour market enforcement, but the amendment has puzzled me. I had a look at the Modern Slavery Act to see what was provided for the Independent Anti-slavery Commissioner and it does not refer to a pension. Given that it is not that unusual to appoint someone to a post which focuses on an issue, under the umbrella of a department but something new and quite discrete, is there not by now a standard formula for the appointments of such postholders? Does the wheel have to be reinvented a little differently each time?

By far a bigger issue is the reporting lines. The director deals with organisations that also have departmental reporting lines and which are now on the receiving end—that is a deliberate choice of phrase—of the provision of the strategy and the intelligence hub. On the charts with which we have been provided, there is no arrow in the reverse direction to show the contribution of those organisations. The Minister has heard me say this before, but this is particularly an issue for the Gangmasters Licensing Authority, the board of which is almost airbrushed out; it is hardly acknowledged. The director himself or herself has two masters in the form of two Secretaries of State with differing and possibly incompatible priorities. The Home Secretary is concerned with enforcement while BIS is concerned with deregulation, and I believe that it is to be BIS that will host and fund the director. An even bigger issue is that of resources for the functions and duties on which the amendments elaborate. The GLAA is to have new, extended functions and duties, and we need to be assured that adequate resources will be in place over the spending review period.

Amendment 2—I assure noble Lords that I shall not go through every amendment—seems to go into quite a degree of detail. Surely the detail of how one does something, which in this case is the obtaining and providing of information, should not have to be in legislation in this way. As long as the director has the power to require information, should that not be enough? The strategy will now propose annually the information that is to be provided and,

“the form, and manner … and frequency”.

The more you spell out in legislation, the more you have to spell out. Having gone a little way down this road, you realise that if you have done that, you need to spell out the other as well.

Amendment 21 refers to a court in a “part” of the UK. The Minister should be aware that I was going to ask this question: what is a part of the UK in the case of a court? Is it a country or is it a jurisdiction, which of course is not the same as a country in the case of the law and the courts because England and Wales are a jurisdiction. Is it a county or a town? It would be helpful to know which it is.

On the information gateways set out in Amendment 8 and subsequently, again I am not sure why it is necessary to provide for information to be disclosed to “a relevant staff member” and then to define who that is. If the director asks for information, surely any staff member is working on behalf of the director. This may be something technical related to the Data Protection Act and noble Lords may think that I am being spectacularly pedantic in raising it, but if someone gets it wrong, there are consequences. If an irrelevant staff member, as it were, seeks information, what is the status of that?

I have comments to make about what seems a very narrow gateway in terms of control and the time-consuming and cumbersome nature of it, but I would particularly like to ask what consultation has been undertaken on these provisions about information with the Information Commissioner, the commissioners appointed under RIPA, which is not yet RIP, and with the bodies concerned. I ask because there are issues about bureaucracy, protection and confidentiality—health bodies are involved here so I assume confidentiality has been considered—and I wonder whether the Home Office might produce a flow chart showing who must provide what, for what purpose and to whom, and whether it can then be used by the recipient for that purpose or another purpose?

Finally, my Amendment 154 would change the title of the Bill. A third of its clauses now deal with the labour market. There have been very significant additions since the Bill started life in the Commons. It seems to me—this is a substantive point and, I know, one of real concern among organisations—that it would be appropriate to call the Bill the immigration and labour market Bill. There were several amendments throughout the passage of the Bill to the effect that labour market matters are not confined to immigration. Indeed, they are very much wider than immigration. It is important not to badge the GLAA, the stand-alone body, as an immigration enforcer, and important not to adopt the mindset that immigration should be the driver of dealing with labour market abuses, or that labour market abuse is confined to illegal immigrants.

[Lord Alton of Liverpool (CB)]

My Lords, I intervene briefly—I know that there are more substantive issues that the House will want to move on to fairly soon—simply to place on record my consternation that in Committee we decided to invent a whole new authority, the GLAA, yet here were are on Report with more than 100 new amendments. Ministers are damned if they do and damned if they do not. I recognise that we have a Minister who listens carefully to debates in your Lordships’ House. Indeed, he has a rollercoaster of meetings outside your Lordships’ House. His energy and willingness to listen are much to be commended, but could he distinguish for us which amendments have arisen as a result of consultations with and suggestions from outside organisations and Members of your Lordships’ House, and which are government amendments that are necessary to put right things that were not considered in Committee?

Would he also not agree that it is not good to make legislation on the hoof? In Committee I contrasted it with the way he dealt so impeccably with the modern slavery and human trafficking Bill, which had enjoyed pre-legislative scrutiny from Members of both Houses prior to being introduced in another place, and which was dealt with with great diligence by Members of both Houses and in an exemplary manner by the Minister himself. Surely that is the way we should enact legislation. But the Immigration Bill has completed all its stages in another place. It has now come here and he has introduced whole new clauses without any pre-legislative scrutiny or consideration of them in another place.

If we are honest, there has not been much consideration here. We pride ourselves, do we not, on being a House that scrutinises legislation in great detail, line by line and clause by clause? I honestly do not think that we can say we have done that with these clauses. Personally, I do not understand all the implications of the amendments that have been introduced. Although I am grateful to the Minister for the compendium of letters and detail that he sent us this morning, the idea that one could have read it all in advance for today is, I think he would agree, pretty unlikely.

So all I am doing is appealing to the noble Lord to look at the way we have dealt with this and ask officials whether it would not have been better to come forward at an earlier stage, or wait for another opportunity. I also put in an appeal at least for post-legislative scrutiny. If there is to be no sunset clause in the Bill, can we at least have an undertaking from the Government that we will revisit these clauses especially in 12 months from now to see how they work?

I have one other question for the noble Lord on resources. He will recall that at meetings held on the periphery of your Lordships’ House I questioned the level of resources available to what was the Gangmasters Licensing Authority, soon to be the GLAA. I know that he is deeply committed to tracking down those who exploit labour, who are involved in human trafficking and all the dreadful things that have been rehearsed at earlier stages of this and previous legislation. Is he really confident that there are sufficient resources? Given the research done by universities such as the University of Durham into the funding of the GLA, does he think that those resource problems have been overcome?

--- Later in debate ---

[Lord Bates]

I shall do my best to address the point, and I hear what my noble friend says. He talked about the lack of pre-legislative scrutiny of the Bill, but of course there were two days of evidence-taking sessions in Committee in the Commons, which were all published and which actually helped us greatly in shaping many of these government amendments.

However, the Bill is particularly about protecting, if you like, in two ways. The first purpose of the Bill is to create some discomfort for those who are illegally in the UK so that they cannot have a normal settled life while they are actually trespassing on our laws and are here illegally. The other area, which I think should carry a great deal of support, is about making sure that those people who are here legally are treated properly. In that sense, putting those things together, we believe that the Title of the Bill still stands. I accept that there is an argument or debate on that, but I have made my response to that.

[Baroness Hamwee]

My Lords, with the leave of the House, I asked the noble Lord about a court in “a part” of the country, but I do not think that he has answered that question.

[Lord Bates]

I did not answer that, and it was a good question. There is a court in another part of the Chamber which is rushing advice to me, which will save another letter. In Amendment 21, what does the reference to a court in a “part” of the UK mean? Part of the UK in the context of these provisions on court proceedings means jurisdiction—whether the court is in England and Wales, in Scotland or in Northern Ireland. I hope that is helpful.

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[Lord Rosser]

We have amendments in this group. First, I thank the Government for their amendment, which means that the offence of illegal working is committed only by a person who,

“knows or has reasonable cause to believe”,

that they are disqualified from working by their immigration status. It is different in wording from our amendment, which refers to a defence of having a “reasonable excuse” for working when disqualified from doing so by immigration status. I am certainly no lawyer, but I suspect that our amendment might provide a broader range of people with a defence than the government amendment. However, since the Government have taken on board the case that has been made for providing a defence to the offence of legal working, we do not intend to pursue this point any further.

We have previously argued the case for deleting the intended new offence of illegal working from the Bill, and we are associated again with an amendment to that effect. Not a single person could be prosecuted under this new offence who cannot already be prosecuted under existing offences; it is already a criminal offence under the Immigration Act 1971 to enter the UK without leave, when leave is required, and to overstay or be in breach of a condition of such leave. The Government’s argument for a new criminal offence of illegal working is that they believe it will provide an increased likelihood of seizing earnings through confiscation orders made under the Proceeds of Crime Act 2002. The Government can confiscate relevant sums from those who work in breach of the terms of their existing stay under the 2002 Act but cannot do so for those working illegally, and the Government wish to close the gap. However, government figures indicate that the 2002 Act is not typically used for offences of working in breach of conditions, although it is deployed in cases involving other immigration offences. The government figures indicate that only 16 confiscation orders were made under the 2002 Act in 2014-15, and none of them followed criminal convictions for working in breach of conditions.

As I understand it, proceeds of crime proceedings are apt to be lengthy and costly, and the Crown Prosecution Service guidance on proceeds of crime says that it should prioritise,

“the recovery of assets from serious and organised crime and serious economic crime”.

I suggest that there would be few cases in which it would be cost effective or in the public interest to pursue confiscation proceedings to seize wages earned as a result of illegal working as proceeds of crime. However, there must be a distinct likelihood that the existence of the offence of illegal working will be used as an additional threat by those abusing or taking advantage of trafficked or enslaved persons to discourage them from going to the authorities, or indeed to coerce such people into exploitation in the first place. Yet one objective of the Bill is to encourage people who are being exploited to come forward. A trafficked or enslaved person who knows that they are not permitted to work will of course have no defence under the government amendment of “reasonable cause to believe”. So it is quite possible that the new offence of illegal working will on the one hand raise little or no additional money under the 2002 Act, and on the other hand, by providing the threat of prosecution for those exploiting vulnerable people who should not be in this country, be a further means of discouraging them from coming forward to the authorities. I very much hope that the Government, even at this late stage, will be prepared to give further thought to the wisdom of introducing this new offence of illegal working.

[Baroness Hamwee]

The Minister said during the previous stage that the amendment that would insert “without reasonable excuse” would introduce considerable ambiguity and risk successful prosecutions. The amendment is down again today. We should consider it. The courts, the CPS and the police often have to assess whether something is reasonable so, as I read it, the amendment tabled by the noble Lord, Lord Rosser, is a matter not of ambiguity but of judgment, although I concede that if it was strict liability there would be no need of judgment.

For the reasons that the noble Lord gave, the reasonable cause—I accept that that is a more normal formula—in the government amendment is welcome, but I do not believe it goes far enough to provide a defence to someone who knows that he is illegal but who has been abused and exploited, perhaps at a lower level than is covered by the Modern Slavery Act. If it is within the Modern Slavery Act, the defence kicks in only after there has been a charge. I do not think I am alone in preferring to see a charge not even getting off the starting block.

Our Amendments 49 and 50 are in response to the Minister’s explanation in Committee that the clause is largely driven by the wish to bring it within the Proceeds of Crime Act. He assured the Committee that the Proceeds of Crime Act would not be applied to inappropriate targets:

“We are talking here about people who have on their person a significant amount of cash in excess of £1,000”.—[Official Report, 18/1/16; col 626.].

I took those words literally and our amendments are an attempt to reflect them because, if that is the policy, the legislation should say so. I accept that the CPS guidance is to prioritise the recovery of the proceeds of serious organised crime and serious economic crime and that the confiscation order must be proportionate, but to create an offence with the risks which have been referred to and which I will come to in a moment seems an inappropriate direction in which to go if there is such a clear view on the part of the Government about when it will be used.

We remain extremely concerned about Clause 32 as a whole, and my noble friend Lord Paddick and I have our names to Amendment 52 to leave it out because of the danger of an increase, not a reduction, in exploitation. As we discussed on the previous group, the Bill is about more than immigration. If you fear prosecution and imprisonment, is that not a greater deterrent to standing up for your rights? Someone working without the right to do so should not be exploited any more than someone with the right, but we think that the new offence may carry far more risks than it solves problems.

I suspect that the new offence, or at least casting it in this way, is probably quite totemic for the Government but, given the risks of applying the Proceeds of Crime Act, surely there are other ways to deal with the issue, such as the existing offences that the noble Lord, Lord Rosser, has referred to, rather than by giving abusers and exploiters even more ammunition and ways that they can say to workers, “We can really cause trouble for you. You are in a situation that you can’t get out of, and you are in terrible trouble if you try to go to the police, squeal on us or whatever”. Given that existing offences could be used to prosecute everyone who would fall within the new section, we remain unpersuaded that it is appropriate to include the clause in the Bill.

[Lord Mackay of Clashfern (Con)]

My Lords, in relation to the point made by the noble Lord, Lord Rosser, as against the clause as introduced, the virtue of the clause as amended by the government amendment is that the prosecutor would have to prove that the person in question knew or had reasonable cause to believe that he was disqualified, whereas in Amendment 46, which was proposed by the noble Lords, Lord Rosser and Lord Kennedy of Southwark, the onus would be the other way: in other words, the defence would have to prove that the matter was done without reasonable cause. I think that that is the nature of the law in this matter. So in a sense the government amendment has greater protection for the person alleged to have committed the offence than Amendment 46 would have done.

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In these circumstances, the current policy cannot be described as fair and reasonable. Nor is it sustainable. Those supporting this amendment include the General Synod of the Church of England, the Greater London Assembly, and many city councils including Liverpool, Manchester, Bristol, Swansea, Coventry and Oxford, the Joint Council for the Welfare of Immigrants, Still Human Still Here and the Refugee Council. Those of us who have pursued this argument from across the political divide and tabled this amendment passionately believe that Parliament should provide asylum seekers with a route out of poverty and an opportunity to restore their dignity by providing for themselves if their claims have not been decided within six months. It is underpinned by the belief that it is in the interests of both the individual and the community to build our house together. It asserts the principle of self-help, non-reliance on benefits, the duty to work, a removal of a burden on taxpayers and a repudiation of enforced workhouse destitution. In moving the amendment today, I hope that it will find favour with your Lordships and the Government. I beg to move.

[Baroness Hamwee]

My Lords, the noble Lord, Lord Rosser, who was to speak next, is indicating that he would like me to follow. I am extremely happy to support the noble Lord, Lord Alton, as we all do on these Benches. My colleagues in the Commons tabled an amendment to similar effect, and the noble Lord, Lord Alton, will be aware that this is a long-standing Liberal Democrat policy. Not so long ago my noble friend Lord Roberts of Llandudno had a Private Member’s Bill to this effect and has made countless other attempts to change the policy, even on one occasion when I asked him not to because I did not see any prospect of our winning at that time, and thought that perhaps we might not take the time of the House. But given the support of the Labour Front Bench for the amendment on this occasion, I am extremely optimistic.

I have been trying to work out what among the various briefings we have received has not been covered by the noble Lord, Lord Alton, and of course most of it has. I do not want to weary noble Lords with too much repetition, but it is worth emphasising that if the decision-making process of the Home Office was as efficient and quick as we are often told it is or is about to become, this would not be an issue at all. I tabled a stand-alone amendment at the previous stage about the requirement for asylum seekers who currently can seek permission to work after 12 months being limited to the shortage occupation list. When I looked at the list, I was really concerned that it amounted to no sort of right at all, given that asylum seekers’ existing qualifications would not be recognised in those occupations.

The noble Lord, Lord Alton, mentioned community cohesion, but I will use the word “integration” instead. Either as a society we say to people coming here, “We are putting up barriers against you”, or when we look at their claims for asylum—the word “asylum” is important in this context—we recognise that there are moral obligations regarding integration into our community. Seeking asylum is a two-way process—a contract, if you like. It is both an obligation on the part of the host country to provide asylum when properly sought and an obligation on the part of those who come here wanting sanctuary to become, in their particular way, a part of our society. Integration is therefore a hugely important aspect.

If people have the opportunity to work and if their English is not good, they will be able to practise their language skills. After all, language teaching is not easily available at the moment. However, it is remarkable how many of those seeking asylum are amazingly good at English. We should gather them up and get them working as quickly as possible using their skills both with language and in various sectors. In this way people can acquire new skills and social contacts. Looking around the House, every noble Lord taking part in this debate will be aware of how our opportunity to work after retirement age supports our own physical and mental health. I would apply that to asylum seekers as well.

I end by referring to the route out of poverty and the opportunity to regain dignity that this amendment offers, and I am delighted that these Benches will be supporting the noble Lord.

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[Lord Hylton (CB)]

My Lords, most employers who visit the United Kingdom, bringing their domestic workers with them on a tied visa, behave decently. A minority, however, do not. That is why since the early 1990s cases have been coming to light of unpaid wages, payment of less than the national minimum, withheld passports, no free time, intolerable conditions and physical and mental abuse—even rape. Because of these, I commend to the Minister the brief that I received today from a group of lawyers called the Anti Trafficking and Labour Exploitation Unit. They cite two cases of awards of more than £250 million but warn of the difficulties and delays in taking cases through the national referral mechanism. They also criticise delays in obtaining residence permits from the Home Office.

Before going further, I thank the last Government for appointing Mr James Ewins QC to review the working of the visa. I am grateful to him for his recommendations, which we discussed briefly in Committee on 20 January. I thank the Minister for saying then that there was a problem to be addressed because of the special vulnerability of these workers, living as they do on their employers’ premises. I also thank the Minister for arranging several meetings, including a large one at the Home Office with the reviewer and the anti-slavery commissioner. The Minister has shown throughout that he listens and wants to conciliate. He has carried out his commitment by getting the Home Office to produce a three-column Written Statement dated 7 March.

The Statement candidly admits that the Government have taken the advice of the anti-slavery commissioner rather than implementing in full the recommendations of the review. The weakness of that decision is, first, that it allows the domestic workers to find alternative employment only during the balance of their original six-month stay. In practice, that is likely to be just a few months or weeks. Few employers will want to take someone for such a short time—all the more if they have no references from an employer here. There is therefore a serious risk that the worker leaving their original job will become destitute and then be deported. The Government have failed to produce, in the very words of the Statement,

“an immediate escape route from abuse”.

They have gone back on the strong hopes of Karen Bradley MP, who was the Conservative Minister in 2015 and who wanted the review recommendations to be implemented.

The second weakness is that the Minister in Committee and in the recent Statement relies heavily on the national referral mechanism, which was never designed to deal with the problems of tied domestic workers. They enter this country perfectly legally with their employers, whereas most trafficked and enslaved people come in illegally or as sham visitors or students. Some slaves may have been trafficked within this country, usually from one brothel to another. I therefore ask: how many overseas domestic workers’ cases has the NRM handled? How many employers have been prosecuted or banned from importing domestics as a result? Lastly, have some workers received compensation or extensions of stay as a result of the NRM? One can say that the mechanism is not entirely relevant to the wrong we seek to address; it is not suited to important hardships that may be less than crimes. How are workers even to know that the NRM exists?

I now come to Amendment 58 itself. This proposed new clause amends the Modern Slavery Act to give full effect to the recommendations of the Ewins review of the ODW visa. It gives clear directions about the changes needed to the Immigration Rules, which currently tie the incoming domestic worker to a single named employer, thus making them highly vulnerable to abuses and exploitation and, sometimes, to conditions of complete slavery. This amendment is better than the one that I spoke to in Committee; it does not provide for indefinite leave to remain but specifies not less than two and a half years. This is made up of the original six months provided by the tied visa plus a further two years, which Mr Ewins considered necessary to enable the worker to find alternative domestic work. Proposed new subsection (2)(b) would require changes of employer to be registered with the Home Office, thus keeping track of the worker and making action possible against some employers. Proposed new subsection (6) meets a most important Ewins recommendation, namely that domestic workers who stay here for more than six weeks should have group information sessions. This gives a chance to check that the national minimum wage is paid, that passports are not withheld, and that conditions are generally reasonable.

I have outlined the purpose of our amendment, which, I submit, is better and more tightly drafted than those previously discussed. The scandal of abuse, exploitation and slave-like conditions has gone on for far too long, with impunity, and in the most prosperous parts of London. This scandal has been strongly criticised by voluntary groups, churches, law centres, trade unions and some Members of the other place. Now is the time to improve the Modern Slavery Act so that this country can hold up its head, safe from reproach because it has done everything possible to end an admitted wrong. I beg to move.

[Baroness Hamwee]

My Lords, I find myself preceding the noble Lord, Lord Rosser. Again, I am delighted to support this amendment and that my noble friends are doing so.

The government Statement, with its proposals as to how to respond to James Ewins’s report, does not seem to redress the power imbalance which he identified in his report. I must not let the opportunity go by—I should have started by saying this—without congratulating the Government on appointing Mr Ewins and congratulating Mr Ewins on his splendid report. The Government’s Statement, to which the noble Lord has referred, was at first attractive. I changed the notes to my colleagues last night after I had read through it again, thought about it more and become, I am afraid, less attracted to it. I am not persuaded that without a right to apply for an extension to the visa—for the reasons that Mr Ewins gave, which I will come back to—the Government’s proposals will work. That proposal seems to be the linchpin. His recommendation is to entitle overseas domestic workers to be granted the right to change employer but also to provide for annual extensions provided that they are to work as domestic workers in a private home for up to two and a half years in total. He says in his report that he considers it,

“both impractical and invidious to discriminate between seriously abused, mildly abused and non-abused workers”,

and that,

“there is a real possibility, perhaps likelihood, that many overseas domestic workers will not avail themselves of that right … for those who are abused in any way at all, the universal right will give them a real and practical way out of that abuse without the current possibility of a subsequent precarious immigration status and threat to livelihood”.

He acknowledges that,

“an unintended consequence may well be that there are those who avail themselves of the universal right without having suffered any abuse at all”.

However, referring to pre-2012 figures, he says that the number of workers is likely to be low, and that,

“by legitimising their status, they will continue working, paying tax, and will be visible to the UK authorities during their extended (but limited) stay”.

With all the work done with overseas domestic workers over the last few years we have learned that that visibility is very important. To come to the balance, this takes us back to some of the arguments made on the last amendment:

“Such an unintended consequence is of limited detriment compared to the benefit of the central intended consequence”.

The second major recommendation is with regard to information sessions. Like the noble Lord, I was glad to have the briefing from the Anti Trafficking and Labour Exploitation Unit, which, on the basis of its experience, has described to us that the complexity of the information that is required needs what Mr Ewins proposes more than what the Government propose. It considers that most domestic workers, faced with items that would be included in those information sessions—which it enumerates over a third of a page of bullet points —would choose to stay in abusive situations rather than take the risk of escaping. As it says, the right to change employer is not clear, concrete and simple. It also comments about the national referral mechanism, which is of course a part of this whole picture. As I say, I congratulate the Government on having appointed Mr Ewins and having made an attempt, which I recognise, to meet the situation with the Written Statement a few days ago, but we are not there yet.

I am very pleased to support the amendment moved by the noble Lord, Lord Hylton. This House has shown on previous Bills and in previous Sessions its concern for this group of workers. I hope that we will do the same again tonight.

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[Baroness Hamwee]

Mr Ewins’s report, and his presentation at that meeting and on other occasions, was very impressive. Has the Minister discussed with him the balance between the prosecution of employers—who in this case, as I understand it, are domestic individuals and not gangs of traffickers—and the protection of individuals? Mr Ewins proposed extending the visa. Does the Minister know Mr Ewins’s view on whether taking the route proposed by the Government instead will mean that more victims will come forward than do at present?

[Lord Bates]

More will come forward than do at the moment. We are implementing the vast majority of what James Ewins recommended. He recommended, supported by Kevin Hyland, that there ought to be information meetings. It will now be a requirement that that will happen within 42 days. We are flexible on that, and if it needs to be sooner, we will look at that very carefully. The reality is that to qualify for this visa people will have to sit down with somebody who is independent—not from the Home Office or the Government—who will ask them if they understand what their rights are. These are unprecedented protections that have been put in place by the Government, alongside the Modern Slavery Act—we are leading the world in this area. I urge the noble Lord to think very carefully about the safety of people and the ability of the police to prosecute those who are carrying out this heinous abuse of the most vulnerable people in our country.

Asylum: Processing of Applications

Baroness Hamwee Excerpts

Wednesday 2nd March 2016 Lords Chamber

Asked by

[Baroness Hamwee]

To ask Her Majesty’s Government what is their assessment of the amount of training required by employees on temporary contracts who process asylum applications, including gap-year students.

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, all members of staff who make decisions in asylum cases, whether on temporary contracts or otherwise, receive the same level of training. This includes a dedicated five-week foundation training programme that includes training on international and domestic law and safeguarding issues.

[Baroness Hamwee (LD)]

My Lords, the decisions that people dealing with asylum applications have to take are very sensitive and complex. Would the Minister agree that they require skills such as critical analysis, sensitivity and maturity? Is it appropriate for young people—by definition students, as referred to in the Observer article—to be taking such decisions? Is there likely to be an extra cost to the Government from incorrect decisions being taken by people who do not have those attributes?

[Lord Bates]

I can understand the concern, because these are very sensitive issues that people are being asked to deal with. But I can reassure the noble Baroness that out of the 290 decision-makers currently looking at cases, two are undergraduates in law. Under this scheme we have often looked in particular at people who have an interest in law—perhaps with the possibility of their coming in to become decision-makers in future—who might get some experience doing that. They have their induction course with all of that but, crucially, they also have mentoring. An experienced person must sign off on all decisions taken by that individual. That is a very important safeguard which I hope will reassure noble Lords.

Immigration Act 2014 (Commencement No. 6) Order 2016

Baroness Hamwee Excerpts

Wednesday 24th February 2016 Lords Chamber

Moved by

[Baroness Hamwee]

That a Humble Address be presented to Her Majesty praying that the Immigration Act 2014 (Commencement No. 6) Order 2016, laid before the House on 11 January, be annulled (SI 2016/11).

Relevant document: 22nd Report from the Secondary Legislation Scrutiny Committee

[Baroness Hamwee (LD)]

My Lords, when the requirements to check immigration status were introduced into what became the last Immigration Act, they were known as the tenant’s right to rent. Initially our concerns were about issues such as the potential for racial discrimination and a dislike of using legislation to send a message. However, tonight I will talk also about the landlord’s right to rent in the sense of hurdles to letting, which we see in these regulations and in the Act with provisions that require landlords to be part of our border enforcement.

It is no secret that the requirements were included in the 2014 Act. Following negotiations between the coalition partners, the Liberal Democrats agreed to their inclusion in that legislation on the basis that there would be a pilot—

“a carefully phased approach to implementation”—[Official Report, 3/4/14; col. 1089.],

to quote the then Minister. He said that the rollout would allow proper evaluation to ensure that the scheme delivered its objectives without unintended consequences. I am sure that it was not intended to have such an impact on legal immigrants and British citizens. Whether one calls it a pilot, phasing, a rollout or a pathfinder, it is common sense to evaluate and assess experience and, where necessary, to adjust provisions.

However, the Prime Minister announced a nationwide rollout from the West Midlands pilot immediately on winning the 2015 election while the pilot was still in progress. Indeed, the Home Office’s evaluation was published only on the same day as the Pubic Bill Committee in the Commons took evidence on the current Immigration Bill, which extends the provisions from civil sanctions to criminal penalties. So, noble Lords may understand why we regard this as about using legislation to send a message.

My Motion would stop the rollout. Labour has a Motion to Regret calling for more consultation. I do not believe that it is more consultation that is needed—it is more evidence and more experience of a limited scheme. I cannot hide my disappointment that the Labour Front Bench will apparently not support us in our Motion, particularly given that the Labour Front Bench in the Commons was keen to support Tim Farron’s equivalent Motion to Annul. One aspect of scrutiny—this House’s job—is to consider the workability of the Government’s policies. To quote again from the Minister’s assurances in 2014: “Checks”—that is checks on prospective tenants—

“should be light touch in nature and workable, without creating additional burdens and costs”.—[Official Report, 10/3/14; col. 1651].

He also said that the scheme need not “introduce excessive bureaucracy”. I do not think that that would resonate with the letting agent whom I heard interviewed on Radio 4’s “You and Yours” programme. What he said was: “I have become an immigration officer”. Indeed, he has become an immigration officer who is liable to civil penalties and who, under the current Bill, will face criminal sanctions.

Landlords have to make reasonable inquiries as to the immigration status of all the occupants before letting a property. Well, it is not actually that easy. I have been through the material on the Home Office website. The user guide is 39 pages long and there are 12 hyperlinks—there may be more; I may have miscounted —plus a code of practice plus a short guide. There are 25 types of document which may show immigration status, more if there has been a name change. These have to be examined and copied. And not all of them are invalid if the expiry date has lapsed.

A checking agent on the same programme said that there are 400 documents in the EU that would support the right to rent. Leaving aside unfamiliar documents, how easy is it to spot fakes? Last week, the court to which Ryanair successfully appealed against a fine for not spotting forged Greek passports—neither had the Spanish border force, as it happens—said that the way that regime was operated by the Home Office,

“offends fairly basic concepts of justice and indeed the rule of law”.

Landlords are not trained to spot forgeries. Indeed, the Residential Landlords Association found that more than 90% of landlords who were surveyed had not received information from the Government about rent checks, and 72% did not understand their obligations. All this from a Government who are keen on deregulation.

Yes, a Home Office inquiry line is available during office hours. But no messages can be left out of hours —I know because I phoned it out of hours. Most tenanted property is let by landlords with only one or a very few properties, and I dare say that many viewings are outside office hours in what is a very fast-moving market.

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[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, I thank all those who have spoken in this debate. I begin by putting on record that my wife is a small-scale private sector landlord; I want to draw that to the attention of the House.

In considering these matters, I draw your Lordships’ attention to the fact that we had a substantial debate on this issue on 20 January on Amendment 148 to Clause 13, which was from, as I recall, the noble Baroness, Lady Hamwee. That went on for some time and raised many of the issues that have been raised today. If, because of the hour, I touch on a number of the issues lightly as we go through, I think it will be helpful for those who have genuine concerns about this to look again at the Official Report for the second day of Committee, and I am sure we will have the opportunity to revisit this on day one of Report on 9 March. For those reasons, I trust that the House will bear with me if I try to deal with some of the headline issues that perhaps have not been raised before.

First, I shall deal with the context of this measure. The context to legislation is very important. This is a commencement order, Commencement Order No. 6, for a piece of legislation that was passed by the coalition Government. The changes about which many concerns have been raised relate to the Immigration Bill currently going through your Lordships’ House but this relates firmly to the Act that was passed by the coalition Government.

It has to be said that the notion that landlords should have a duty to check that those to whom they rent properties are legally entitled to be here was first introduced by the then Labour Government in the Immigration and Asylum Act 1999, which introduced a duty on social landlords to undertake checks to ensure that they were letting properties only to people who had a legal right to be here. This measure simply extends that further across.

We are of course talking here about human beings and I think that we all recognise the humanity of this, but we are also talking about real problems that are faced in this country. We talk constantly about pressures in the housing market, and it could be that part of that pressure is because a number of properties in the private rented sector are currently rented out to people who have no legal right to be here, which means that they are here illegally and therefore breaking our laws. The question is: should we as a Government, and indeed as a Parliament, be endorsing and basically offering protection to people with no legal right to be here, who are breaking our laws and abusing our hospitality and should leave, to the potential disadvantage of people who are legally here and entitled to rent a property? That is the first point.

The second point, to which a number of issues relate, is on the timing, and I recognise that that is a key point. The original announcement about the pilot exercise was in September 2014—I am looking at the noble Lord, Lord Best—and the original pilot or phased introduction was undertaken some time ago. I readily accept that it was undertaken as a concession to arguments made, not least by the noble Lord, Lord Best, at various stages during the passage of the Immigration Bill through your Lordships’ House. The pilot was set up in the West Midlands, which is the second largest conurbation in the UK and quite an ethnically diverse area. It was therefore deemed to be an appropriate setting in which to test out how this would work. On top of that, an independent panel was set up, which of course the noble Lord, Lord Best, co-chairs. The panel includes representatives from the British Property Federation, the Residential Landlords Association, which has been referred to, the National Approved Letting Scheme, the UK Association of Letting Agents, the Association of Residential Letting Agents, the Royal Institution of Chartered Surveyors and the National Housing Federation. It also includes Shelter, Crisis, Universities UK and, crucially, on the element of discrimination, the Equality and Human Rights Commission.

Why, then, was the decision taken to do this—a point which the noble Lord, Lord Rosser, rightly sought clarification on? The answer is that it was in the Conservative Party manifesto. We stood at the election and our manifesto said that we would clamp down on people who are here illegally to stop them being able to work, rent properties, open bank accounts and obtain driving licences. We said that we would do all those things. Therefore, when we were elected by the people to do that, we announced that we would get on and do it. This is not happening across the country, to take the point made by the noble Baroness, Lady Lister. We introduced it in the West Midlands and that pilot has now been running for over a year, during which we have been gathering the evidence of how it has been operating and evaluating it. This order will enable it to be rolled out to the rest of England but of course further orders will be required for it to be rolled out into Scotland, Wales and Northern Ireland.

On the timing, I took on board the points that were made by my noble friends Lady Gardiner, Lord Hailsham and Lord Cathcart, among others, who were concerned about the time it takes to get documents. That is why a lot of this information can be checked online: there is an online checking service, which is not a premium service, as we said the previous time we discussed this, but a local-rate number that people can ring up. At the moment, that government service delivers 100% as regards its target time, turning work around in 48 hours. When people obtain references at present when a landlord lets out a property, surely they want to establish whom they are letting out the property to. They require some identification and may require proof of employment, with a reference from the employer or from previous landlords. All of that takes time. This part simply checks that the person who is there is legally entitled to be in the UK, and I would have thought that that would be a standard part of due diligence that should be happening in most cases. Therefore that element is there.

I recognise that we all have a deep concern about discrimination in the housing market. That was one of the reasons why the mystery shopping exercise happened there. That sounds like a trivial thing, but it is an established procedure used by all retailers around the country. We used an external firm to undertake the exercise and half the visits were undertaken by BME couples, who were seeking accommodation. What they identified was, sadly, that there is still discrimination— that we know—but that the discrimination levels experienced in the West Midlands control area or pilot area were similar to those in the other areas being used as a comparator. We have to make sure that landlords are more aware of the duties that they already have under the Equalities Act 2010 and the racial discrimination Act of 1965 to ensure that there is no discrimination.

The discrimination point is a key area. We are determined to go much further on this and I know that the independent panel is keen to do that as well. We are updating the code of practice to ensure that landlords know their duties and obligations to ensure that properties are fairly let to people, irrespective of their background. We have done that with great assistance from the Equality and Human Rights Commission, which of course is part of that panel.

A number of noble Lords referred to asylum seekers and refugees. The legislation exempts refuges, hostels and student accommodation, and, where there are vulnerable people who may have lost documents and what have you, there are special procedures to ensure that they are protected.

The target of this legislation is two groups of people. The first group is those who have no right to be here and should leave, and therefore should not be occupying premises that should be made available to people who have a legal right to be here. The second group, as the noble Lord, Lord Best, was right to point out, are the unscrupulous landlords who charge extortionate rents for appalling accommodation—I have seen reports on that type of accommodation that people are actually living in. These are the people we have in our sights. All a landlord needs to do is undertake a basic check of the documents and keep a copy of them. They then have a statutory defence that they have complied with the law.

A number of very specific points were raised. Perhaps, if the House will allow me, I can undertake to cover those in communications. We are having ongoing conversations about this: we have had several meetings at the Home Office and other meetings. We are going to come back to this. There are some areas where I think we can get some movement to make sure that there is greater reassurance. However, this particular element relates to legislation from 2014 for which there has been a pilot and a phased introduction. We are confident that the safeguards are in place, but it will continue to be kept under review. Therefore, I commend the commencement order to the House and urge the noble Baroness to reconsider pressing her fatal Motion.

[Baroness Hamwee]

My Lords, I am conscious of time. I hope that in my opening speech I managed to anticipate many of the points that have been made in the debate, and I shall not seek to repeat them. What I had not anticipated was hearing the real-life experiences of three landlords on the Benches opposite. I thought it was very telling when they shared with the House that they became aware of the requirements through their membership of the House. Their talk of real experiences reminded us of the concern of landlords about voids and losing rents, and the inevitable and unintended discrimination that may occur because of the situation.

It is right that I respond briefly to the noble Lord, Lord Best. No one could doubt the work that he has put in to this or that the panel that he co-chairs takes the issue very seriously. However, the Home Office evaluation, which took place some time ago, demonstrated many of the problems. The panel continues to work but we do not know publicly what its conclusions are and what its continuing work is. Perhaps I may summarise the noble Lord’s view as being that the burden on landlords was exaggerated. The Residential Landlords Association has made its views quite clear and it supports the Motion.

The pilot was introduced as a result of negotiations between the partners in the coalition Government in 2014. That negotiation was the basis of the inclusion of the provisions in the Bill at that time. Several noble Lords have quoted the assurances that were given about the evaluation. We were told that there would be a proper one based on a big enough trial. The then Minister said:

“Any decisions on a wider rollout will be taken in the light of the evaluation after the general election during the next Parliament”.—[Official Report, 3/4/14; col. 1090.]

However, the decision was taken immediately after the election before the pilot had even been completed.

I agree that immigration legislation should not be used to crack down on bad landlords. We should use other means for that. Nor do I think that we should lay problems in the housing market at the door of illegal immigrants. Hardly a cigarette paper can be put between the points that I made and those made by the noble Lord, Lord Rosser, who I think used even stronger language than I did, but I think that his argument is, “We shouldn’t behave badly. We should accept that this is policy but ask the Government to think about it all again”. However, if we cannot ask the Government to think about it on the basis of a pilot on which there has been a report, and if we cannot amend the order, how do we do our job? I think that our job is to show our view of the position so far, which is, as I said, that the requirements should not have been rolled out beyond an inadequate pilot. I wish to test the opinion of the House.

Immigration Bill

Baroness Hamwee Excerpts

Tuesday 9th February 2016 Grand Committee

Given my experience as a former director of Oxfam, I could speak at some considerable length about situations of this kind, but my concluding point is that what we have to get straight in our politics is that we will be judged as a generation of politicians—Governments and Oppositions will be judged—by the priority we give to recognising that we are a totally interdependent global community. What is relevant and important is to be seen in the strength of our commitment and drive in the contribution we make to the whole cause of effective international governance and action. I am afraid that, in too many spheres, our record has been one of dragging our feet, being at the end of the queue and always talking about the problems. Of course there are problems, and practical problems at that, not least pressure on the domestic community. But, for goodness’ sake, the message should be: in the name of humanity, of all the values we proclaim and of Christian civilisation, which we talk about a lot, we have to do something. Yes, we will have to face the problems, but the message should be: what are we doing and how much can we do? How much, by our own example, can we generate a greater response on behalf of humanity as a whole? It will be by our example of positive attitudes and a determination to do most, not just what is possible to manage, that we will have influence on policy across the world.

[Baroness Hamwee (LD)]

My Lords, much has been said about the part played by modern communications in the current conflict. Part of that is that we cannot claim ignorance of what is happening. The media, NGOs, colleagues and friends—I, too, have friends who have undertaken voluntary work in northern France—make so abundantly clear what is happening that we cannot escape that information.

I want to pick up on a couple of points that are used as arguments in this debate. One is the idea that children should be kept in their own region and culture, among people from similar backgrounds. Leave aside the variety of people who are volunteering to help children, is it better for children to stay in the region or to be alive, with shelter, not being abused or trafficked, and with access to food, education, health services and so on? Do we keep children in the region so they can be reunited with their families?

I am not persuaded that the administration and the records that will be available if they stay in the region will be better than they would be if the children were brought to this country through a government scheme. I am sure the records will be kept very carefully. I have seen somewhere that the UNHCR regards the chances of relocation if children are brought to this country as still being high. On the question of family reunion—children who are refugees in their own right have rights—it is said that this is, in fact, an underhand way of getting the rest of the family into the UK by sending the children on ahead. I simply do not believe that that is likely except, perhaps, in a very small handful of cases. In any event, the children have rights.

In previous debates I have acknowledged the difficulties in finding foster parents. I know what is said about all the volunteers: there is a general shortage of foster parents for British children. Maybe this will break some sort of logjam. I acknowledge the support that will be needed for foster parents and for local authorities. It is very important to recognise all that because people who are dealing with these children will be dealing with very sensitive, difficult, delicate situations and children who, almost inevitably, will have been damaged. We hope that this is an exercise in not damaging them further.

Like other noble Lords, I have been fascinated by the extracts from Hansard from 1938 and 1939. Not only are the arguments those that are being used today but the ancestors of a number of current Members appear in them. The then Earl of Listowel pointed to a precedent on which Her Majesty’s Government had acted before: the work of the International Red Cross in the south of France. Our shared heroine, Eleanor Rathbone, said:

“We are apparently willing to abandon them”—

the refugees—

“to the danger of being handed over to their deadly enemies rather than risk a few thousand pounds in bringing them over. I know that the Under-Secretary has sympathy in this matter, and I appeal to him to do something to speed up the mechanism and to relax these regulations … Cannot we risk a few thousand pounds rather than abandon these people to the terrible fate that may possibly await them? I feel that in this small matter we may appeal with some hope of success for the Government to adopt a more farsighted and generous policy than heretofore”.—[Official Report, Commons, 31/1/1939; col. 151.]

The leader of the Liberal Democrats, Tim Farron, has been very clear about our party’s stance on this and has been a part of the call for the Government to enable this number of children to be brought here. He has done so because, as the noble Lord, Lord Judd, said, it is right. However, this is not a party-political issue. What is most important is that this has caught the public mood of the moment and we should go with it.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am pleased to support my noble friend. The Government are to be applauded for the aid they are giving directly to the region and their recent statement regarding resettling some unaccompanied children, mainly from the region. However, as Heidi Allen MP said on the “Week in Westminster” on Sunday, no amount of such aid can help those in Europe now. In a recent Commons debate on child refugees in Europe, Sir Eric Pickles—not someone I normally quote in support of an argument—said that while the Government are quite right to keep children in the region,

“we are where we are. There are children at risk, and I urge the Government to look carefully at that”.—[Official Report, Commons, 25/1/16; col. 41.]

Perhaps, more accurately, we should say these children are where they are. Refusing to help them is not going to result in them returning to their homelands. Instead, they are stuck in appalling conditions. The International Development Committee took up Save the Children’s recommendation that we should take 3,000 unaccompanied children. It made a very strong recommendation in support of that and called for urgent action from the Government on it. The committee warned that children are prey to exploitation by people traffickers—the very thing that the Government say they want to avoid by supposedly not encouraging children to make the perilous journey to Europe.

Ministers rightly say that any action to assist unaccompanied minors must be in the best interests of the children and that this is their primary concern. But how can it be in the best interests of unaccompanied children to be left to fend for themselves in the camps of Calais and Dunkirk without hope and, as we have already heard, at the mercy of hunger, cold, exploitation and people traffickers? Like my noble friend Lord Dubs, I am not totally clear what the Statement of 28 January promised. In particular, can the Minister confirm that, as Save the Children says, it is intended to try to reunite lone child refugees who are already in Europe with families in the UK? If so, that is welcome, but can he say exactly what is intended and how many children he expects will be helped in this way?

Finally, I take this opportunity to ask the Minister about a report in the Independent on Sunday that the Council of the EU is discussing measures that could have the effect of criminalising individuals and charities that help Syrian refugees, including children, when they arrive on the European mainland—in particular, on Greek islands. The noble Lord, Lord Roberts, talked about what we owe those people, who are doing amazing humanitarian work. Can the Minister give an assurance that the Home Secretary will oppose any such measures? The very suggestion that such humanitarian action could be equated with people smuggling is, frankly, quite abhorrent. I hope that the Minister can assure us that the report is unfounded—I do not necessarily believe everything that I read in the newspapers but this is an opportunity to check it out—and, if it is not unfounded, that the Home Secretary will vigorously oppose any such move.

In the mean time, I hope that the Minister—I agree with what has been said; I know that he is a Minister who listens and cares—will be able to give hope to children who need it. I hope, too, that, even if it is not a final response to my noble friend, he will be able to give a response that at least leaves the door ajar.

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[Lord Green of Deddington (CB)]

My Lords, I would like to inject a note of caution into the debate, which has been a little one-sided. I am sure the noble Lord, Lord Dubs, is right in suggesting that there is widespread support for refugees, and especially children. Nobody is more qualified to say that than he is. The question is how to do it, and that needs a little bit of thought. The proposal is to relocate 3,000 unaccompanied children from Europe, and that is entirely understandable. It is entirely right to offer refuge where that is in the best interests of the children. However, I think I have a slight difficulty over the suggestion that these children should be selected from those already in Europe. The reason for that is this: there is some risk that it would encourage families to send their children in advance in the hope that that would later open the door, as it were, for the rest of the family to claim asylum.

The noble Baroness, Lady Hamwee, did not seem to think that there was very much in that, but there is some evidence from Sweden that that has been the case, and we have had some experience with Albania, when a very large number of families got the idea that, if the children went first, they could follow. We need to be careful of that, and conscious that this could become a selling point for people smugglers in the camps around Syria itself.

Let us take orphan children, by all means, but I rather think it might be better to take them from the camps around Syria and to do so on UNHCR advice. We are doing that already with families, and I do not see why we should not extend that—indeed, I believe we should extend it—to orphan children in those camps. The UNHCR could provide an objective account of those children’s circumstances and take a view as to whether there was perhaps a better solution involving the child’s extended family. Remember, extended families in Syria are very close, very strong and very important. I suggest that we would do better to reinforce our work with the UNHCR. By all means increase the numbers, but let us be quite sure that we do it in a way that does not have a downside attached to it.

[Baroness Hamwee]

My Lords, before the noble Lord sits down, am I to understand from what the noble Lord said that his concern is about where the children may be coming from rather than the numbers? It would be encouraging to hear him say that he thinks that 3,000 is not wrong.

[Lord Green of Deddington]

My concern is that, if we are not careful about this, we might encourage families to send children on ahead. We need to look at that very carefully because those children would be at exactly the same risk as those already in Europe now. It is a very difficult and sensitive area. There are almost instant communications between child refugees and the adults in their families. If you open a door and give the impression that, “Get your kids as far as Rome and the Brits will have them”, then the risk is that we will make a bad situation worse, if that were possible.

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[Baroness Hamwee]

My Lords, the Minister talked about the situation within Syria and potential relocation within Syria. Is he able to say a word about what seems to be quite a fast-changing situation, where the places to which the Syrian population might go are being bombed, starved or both almost out of existence? The situation changes fast. It would be useful to have on record whether the Government’s thinking is moving equally fast.

[Lord Bates]

It is a fast-changing situation and needs to be balanced with what we are talking about, which is wanting to ensure that we do the greatest good for the greatest number of people in need. We should also bear in mind when we talk about 3,000 children that there are currently 2.1 million children who are refugees from Syria, so 3,000 in addition is a relatively small number. You can help more in the region. I do not want to sound heartless: we talk about 3,000 people in this amendment, but our aid is providing 15 million food rations already, supporting 600,000 families, educating or supporting in education 227,000 children and providing 2 million medical interventions. I am not expecting people to say, “That’s fine, then”. The pressure needs to be maintained. It is a great humanitarian crisis and this place should be putting pressure on the Executive to take further action. I hope from what I have set out that I can go as far as to say that the Government are taking this seriously. We are not unmoved by it and Britain is doing a substantial amount of which we can be proud.

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[Lord Shipley (LD)]

My Lords, I am a signatory to the amendment. It is an extremely important issue because the assumption is that the code of practice and the public sector equality duty will be sufficient in this case. Clause 47(8), which I have reread a number of times, makes it very clear that somebody in a customer-facing role should speak fluent English. The Department for Work and Pensions has accepted British Sign Language as a language since 2003. We do not want to permit any confusion to arise, and the way to solve this is simply for the Government to accept the amendment because it makes it absolutely clear that British Sign Language is an acceptable language and that it is not just a question of an employee having spoken English.

I hope that the Minister will understand that there are some 70,000 people in this country for whom British Sign Language is their first language. As the noble Lord, Lord Swinfen, made clear, this is not just about those employed in a customer-facing role; it is about how you respond to customers who want to speak to somebody who can communicate through British Sign Language. I hope that the Minister will not see this as some kind of bureaucratic minor matter, as it is very important in terms of the public sector equality duty. It cannot simply be left to a code of practice when it should be written clearly in the Bill so that there is no doubt about how public sector bodies should respond.

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I have three amendments in this group: Amendments 242C, 242G and 242J. Before I come to them, I shall say that I support the amendment on British Sign Language. My noble friend Lady Humphreys is in her place. She heard the confirmation about the Welsh language and welcomes it. I say that in the context of wishing this clause were not here at all. I appreciate that there was a line in the Conservative Party’s manifesto for the previous election and that is why I have not sought to take these clauses out altogether.

The impact assessment on these clauses confirmed my anxiety about their potential for encouraging discrimination and harassment. It says:

“The policy objective is to ensure a sufficient standard of fluent English is maintained and can be enforced … This is intended to improve the quality, efficiency and safety of public service provision and support taxpayers confidence they are receiving value for money”.

So far, so good.

“This proposal is expected to support current priorities for the management of immigration into the UK”.

I have littered questions marks, the word “prejudice”, an exclamation mark and the word “tangentially” around that statement.

We would prefer to take these clauses out altogether, but the first of our amendments looks at the provision for expanding the requirements into the private sector. It is a probing amendment, and I hope that the Minister is aware of the questions that I intend to ask. If this is of such concern, why, in a service context where so many public services are provided on behalf of the Government by the private sector, does the Bill not immediately extend to services which are contracted out? Will there be changes to the requirements as they affect contractors? Has consultation taken place with the private sector? Will there be a single code of practice? Since so much is outsourced, it seems odd if work which is outsourced is not covered, but I wonder whether the private sector will be happy with this as a requirement. I am interested in the consultation.

Amendment 242G is on the code of practice, which under Clause 50 may make different provision for different purposes. I have suggested,

“and for different roles or descriptions of roles”.

It may well be that the Minister will confirm that that is within Clause 50(6) because there are clearly different things that people in the public sector do in different roles or may need to do. The impact assessment states that the code,

“will be flexible enough to account for the differing requirements and existing arrangements of different public sector bodies”,

but it would be good to have confirmation that the legislation allows for that.

Amendment 242J would require a review within five years. I ask the Committee to understand this amendment in the context of my initial remarks. Noble Lords will understand from the points that I have listed in the amendment the matters with which I am concerned:

“the extent and types of authority subject to the requirement; … the standard required; … procedures for complaints”—

it has been pointed out to me that it is sad that requirements are being put in place and that it is felt necessary to have a complaints procedure designed from the beginning—

“direct and indirect discrimination which has or may have arisen; and … the resources required to meet this requirement”.

The Race Equality Foundation says,

“the draft code is poorly drafted, poorly structured and … there is nothing to prevent users of public services making complaints on the basis of accent and appearance. These provisions may encourage, and semi-legitimise, racially-motivated harassment under the guise of challenging someone’s ability to speak ‘fluent’ English. There is already evidence on the greater likelihood for black and minority ethnic people to be subject to the disciplinary process in public services”.

It is obviously concerned about these requirements expanding that likelihood.

The Institute of Equality and Diversity Professionals was very moderate in its language:

“No amount of guidance in the draft Code of Practice can save what is an irredeemably unworkable scheme”.

It talks about:

“The opportunities for directly and indirectly discriminatory, and harassment, claims”,

and reminds us that harassment is a form of discrimination under EU equality law. It asks about the constitutional basis. I think I would ask about the evidence base.

The institute also points out that:

“The use of the terms ‘high standard of English’ … and ‘fluency’ indicate a ‘mother tongue’ proficiency, which is not permissible in EU law”.

Another of its comments says,

“these measures will leave public bodies open to extensive litigation, primarily on grounds of race and ethnic origins, but also on grounds of disability, in relation to … discrimination and harassment claims”.

I said—I think at Second Reading—that I regard the ability to communicate as important, indeed essential, in the public sector, as in all other parts of life, but I cannot be the only person in this Committee who has encountered someone whose English is perfect but who cannot make themselves understood.

[Lord Rosser]

I will listen with interest to the Minister’s response to my noble friend Lady Lister’s amendment. As far as I understand it, the Government will accept British Sign Language—or at least they are saying it is provided for in the code—but they do not wish to put that in the Bill. I will wait with interest to see why that is unnecessary or undesirable since I am not quite sure at the moment what the answer is.

I also want to pursue the point made by the noble Baroness, Lady Hamwee. I am sure the Minister will put me right if I have misread this, but the language requirements refer to public sector workers. I take it that means that any private sector organisation with customer-facing roles will not be covered by the Bill. I ask the same question as the noble Baroness. Why is this being geared to the public sector alone? I do not know that I have particular enthusiasm for seeing it apply across the private sector since I have some of the reservations, subject to what the Minister may say, about the extent to which this could lead to some discrimination. No doubt the noble and learned Lord will explain how it is going to work. As I understand it, the definition of speaking fluent English is laid out in the Bill:

“For the purposes of this Part a person speaks fluent English if the person has a command of spoken English which is sufficient to enable the effective performance of the person’s role”.

Who will judge that and decide whether their English is sufficient? Is it open to somebody to complain that that criterion has not been met? If so, what then happens?

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[Lord Keen of Elie]

It appears that, although we each purport to be speaking fluent English, we may not be communicating with each other as clearly as might be the case. In circumstances where a person employs British Sign Language and there is a customer-facing individual available to communicate with them in British Sign Language, the person communicating in British Sign Language will either have with them a British Sign Language interpreter or will be able to communicate in British Sign Language and speak fluent English.

[Baroness Hamwee]

My Lords, I think there are two different debates going on. To pick up the point made by the noble Baroness, Lady Lister, the explanation given by the Minister about how this would work is, to me, intelligible, but it does not reflect the words in the Bill because it suggests that the person who is working in a customer-facing role is the interpreter, not the person who is doing the substantive job. If the Government’s concern is that the drafting is not invented here, I hope that they can find a way of explaining that there are two roles in the situation which the noble Baroness set out.

[Lord Keen of Elie]

I wonder whether I may respond briefly to that and then make a further observation. In circumstances where somebody is in a customer-facing role and uses only British Sign Language, they will, as a matter of practice and pursuant to the Equality Act 2010, have available to them a British Sign Language interpreter. So they will be communicating in a customer-facing role, together with a British Sign Language interpreter.

I do not accept the interpretation of the clause that has been advanced by the noble Baroness, Lady Hamwee, but, having regard to the considerations of time, if nothing else, I will take this matter away and reflect upon the observations that have been made.

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[Lord Keen of Elie]

I am obliged to the noble Lord. He will appreciate that I, too, am concerned about whether it is necessary for such a provision to appear in the Bill. Our view is that the point made by the noble Baroness, Lady Lister, is an important one but that it is already accommodated by the terms of the Bill. However, as I said, I will reflect on that.

I turn to the observations made by the noble Baroness, Lady Hamwee, in addressing Amendments 242C, 242G and 242J regarding the implementation of the various duties, as well as the observations made by the noble Lord, Lord Rosser, on the question of public sector workers.

Beginning with Amendment 242C and the question of public and private sector workers, I shall seek to allay the concerns of the noble Baroness but will resist the amendment. We have no desire at this time to lay regulations before further consultation. At present, the Government are committed to carrying out an open consultation before calling on the reserve powers to expand the scope of the duty to the private and third sectors. That is why the provision is expressed in its present form.

The government response to the open consultation, which is scheduled to be made available to noble Lords for our Report stage discussion, will provide preliminary views on this matter. At present, the responses are quite balanced. Many welcome the expansion specifically for the safety and comfort of patients in the social care sector, for example. Others are understandably concerned in case any costs of enhanced recruitment practices have to be passed on to public authorities which are contracting. We do not accept that such costs will increase. Public authorities can simply make job descriptions more specific; there is no need to increase costs. So we do not consider it necessary at this stage to contemplate the proposal in Amendment 242C.

Regarding the noble Baroness’s second amendment, Amendment 242G, I seek to provide reassurance that the principal focus of the code of practice underpinning this duty will be to assist public authorities in setting language expectations for different job roles. I hope, therefore, that she will agree that there is no need to provide for this in the Bill, as it will be an element of the code of practice.

I am conscious of the variations that may occur so far as fluency in language is concerned. Indeed, as a Scot, it is a matter of particular concern to me as well. Clearly fluency will be determined by the employer—and, in this context, by the employer alone.

[Baroness Hamwee]

My Lords, to be absolutely precise about this, I hear what is intended regarding the code of practice but can the Minister confirm that,

“different provision for different purposes”,

encompasses my point about different roles? That is the wording in the Bill.

[Lord Keen of Elie]

I can indeed confirm that. That is the purpose of the provisions in the code of practice.

[Baroness Hamwee]

I am grateful.

[Lord Keen of Elie]

I quite understand the spirit of the noble Baroness’s third amendment, Amendment 242J. The Government intend to review the implementation of this policy. We will commit to doing so in the government response to the recent consultation on the draft code of practice.

On further inspection, the details of the report described in the amendment appear to impose a significant reporting burden on public authorities. The Government’s review will certainly look to cover the principles of the recommendation, such as setting proportionate standards for job roles and avoiding cases of discrimination, because these were the main areas of concern voiced by respondents to the recent open consultation. So these points will most certainly be addressed in that context. Regarding the position of Network Rail, if there are public sector workers there, they will be covered by the initial provisions. As they move into the private sector, they will be covered by the further provisions that will be brought forward following consultation. I hope that reassures the noble Lord, Lord Rosser. I do not understand that there are any provisions regarding the National Health Service in the Bill. In these circumstances, I invite noble Lords not to press their amendments.

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[Lord Bates]

My Lords, Clause 55 provides a power to raise the charge, but details about the rate and scope of the immigration skills charge will be set out in regulations to be laid before the introduction of the charge. At that point there will be an opportunity for an informed debate on the details within the regulations. There are likely to be legal implications of introducing exemptions which will require careful consideration.

The Migration Advisory Committee published its review of tier 2 migration on 19 January, and the Government need time fully to consider the evidence about the likely impact of different rates on different types of organisation. As well as the Migration Advisory Committee’s findings and recommendations, we wish to consider other evidence from stakeholders and any legal implications before recommending the rate at which the immigration skills charge could be set and whether any exemptions should be applied.

The Government believe in consulting those affected by the proposed changes. The independent Migration Advisory Committee carried out detailed stakeholder consultation as part of its review of tier 2 migration. In addition, this Government have welcomed discussions with, and received evidence from, a large number of businesses and representative organisations. The process will continue and will, of course, take into account the representations that have been made today by the noble Lord, Lord Wallace, and those received from academic institutions both by me directly and by other colleagues.

As for consulting on the changes, since the announcement in May, we have been consulting employers and business leaders across the private and public sectors to get their views on the immigration skills charge. This will continue. In addition, the Migration Advisory Committee conducted a review of tier 2 with the remit to advise government on restricting tier 2 to genuine skills shortages and highly specialised experts. As part of this review, the MAC considered evidence from employers on the immigration skills charge.

As to the impact on healthcare, which the noble Lords, Lord Rosser and Lord Wallace, asked about, no decision has yet been made. The details of the charge will be set out in regulations, which will be subject to the affirmative procedure. Therefore, there will be an opportunity for a full debate at that point.

The Government have not said that the immigration skills charge will fund the 3 million apprenticeships; rather, they have said that the immigration skills charge will contribute towards skills funding. The level of the charge has not yet been set. The Government are also proposing an apprenticeship levy, not linked to migration, which will go towards apprenticeship funding. The Migration Advisory Committee recommended a figure of £1,000 per year, which is large enough to raise a reasonable amount of revenue and have an impact on employer behaviour.

That is at the core of what this is about. As the Prime Minister said at the outset, it has been far too easy for some businesses to bring in workers from overseas rather than take the long-term decision to train the resident workforce in the UK. We need to do more to change that, and that is the rationale that is driving this. We are proposing that a charge be enabled through this legislation, and we are continuing to consult because we are not unmoved by the noble Lord’s argument that the level at which this is set and those to whom it is applied will have significant implications. Therefore, we need to get that right.

The noble Lord slightly chastised us by saying that we used to have a policy of attracting the brightest and the best. Of course, there is only one thing better than that, and that is to actually grow the brightest and the best here. That is what this policy is designed to do. More details will follow and the House will have an opportunity to scrutinise those when they are presented.

[Baroness Hamwee]

My Lords, before my noble friend responds on our amendments, I wonder whether the Minister can advise the Committee how noble Lords should deal with this when further government thinking becomes clear. As he well knows, we can scrutinise to our heart’s content but we cannot actually do anything about what is in regulations.

I thought that the Minister said at the beginning of his response that there had not been a decision and that this was permissive of regulations, but at the end he confirmed that this is what is in the Government’s mind, which is obviously common sense. However, by bringing forward such a significant new policy proposal as this, having given the Commons five minutes to debate it, as my noble friend said, I do not know how we can really deal with this just through regulations.

[Lord Wallace of Saltaire]

That is precisely what I was about to say. At present, the House is extremely nervous about allowing the Government to legislate by regulation for very obvious reasons based on what has recently happened. Having listened to the Minister, the words “pig” and “poke” come very much to mind. We are being asked to accept something on which the Government have not quite made up their mind about how it will work. They have not yet managed to consult, but if we pass this they will produce some regulations when they work out what they want to do. If we are no clearer than that when we get to Report, it will be very difficult to persuade any of the major groups in the House, apart from the Conservatives, to accept something so unclear.

The noble Lord, Lord Green, and I agree strongly on one thing in the migration debate—that better training and education in Britain are absolutely part of what we need to have—but that should not replace the circulation of highly skilled and intelligent people which is a vital part of our research network in medicine, STEM subjects and elsewhere. If we are beginning to block that, which this suggests it will do, we will damage our standing in the global academic and intellectual world. That is what universities are most concerned about at present. We absolutely need some assurances on that. Last week, I was talking to a vice-chancellor in Wales who was not aware of the implications of this proposal. As the Minister will know, the academic lobby in the Lords is not entirely without a degree of influence. I will do my best to make sure that it is aware of it by the time we get to Report.

There are some large issues here about the private and public sectors, including the question of how we persuade the private sector to invest more in training. This is a Government who need a rather more active and concerned labour market policy. Someone said to me last week that further education funding is about to fall off a cliff. If the Government are looking to further education colleges to help to train apprentices, this proposal is not a good thing to do as part of a whole-government approach.

This proposal suggests that some young man aged 23 in either Policy Exchange or the Institute of Economic Affairs, with a first from some university or other, has written it at speed and the Government have swallowed it. There have been previous occasions in other Governments when those sorts of things have happened. This clearly has not been thought through. If the Government can publish some more detail on what they have in mind by Report, we might be able to make some progress. If they do not know by Report what the details of the policy will be, the House will find it very difficult to accept the proposals in the way the Government have put them before it.

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[Lord Bates]

Her Majesty’s Government’s position is always credible and defensible. Most people would recognise that this is a sensitive area, but the UK has taken a very strong stand in the international community on tackling money laundering. It does that consistently through raising matters at the G20, which is a prime vehicle for operating on this, and through the OECD, which has its regulations as well. We will continue to do that. I would have thought that everybody would welcome the fact that the Prime Minister is taking this leadership and wanting to see how further things could be done. It is absolutely the role of this House to apply pressure to the Executive to make sure that they are living up to the arguments and principles that they seek that others observe.

[Baroness Hamwee]

Can I add a tiny bit of extra pressure on the Executive between now and Report and ask whether the Government have information about the effect on housing numbers and housing prices as a result of this policy? That might be quite difficult as a lot of it will be anecdotal, but it is a jolly big anecdote along the south bank of the Thames, with units that are sold off plan and will probably remain empty. There is a great deal of concern about the impact of the role played by those taking advantage of this route on the housing shortage and on housing prices.

[Lord Bates]

Housing is outside the scope. I know that the effect on the housing market will be an interesting point of research, but we are focusing on the visa that is primarily targeted into government gilts, or loan stock or equity in UK-registered corporations. Those are the bounds of it. I mentioned that we have taken action before. This will probably excite even more attention, but due to EU law on free movement of capital, the Government believe that there would be legal difficulties in treating residents and non-residents differently by, for example, restricting purchases or charging a higher rate of tax.

I have said what I have said. I am quite genuine. A point has been made. I should just temper the Committee’s expectations because I spent the first two pages of my speech defending the scheme, saying that it was important to send out the message and that these investors were coming. I do not accept the generic term of “dodgy” with “investor”. A lot of investment into this country has been of immense value in providing jobs and wealth to the people who are here. However, I will go away and reflect on the points that have been raised about the specific working of the scheme and come back on Report where those arguments can be tested.

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Moved by

[Baroness Hamwee]

242T: Clause 56, page 50, line 3, at end insert “but only when a fast-track exercise of function is provided and if the excess is applied to reducing the cost of the normal exercise of the function.”

[Baroness Hamwee]

My Lords, I hope this will be quick. This is a probing amendment. Clause 56 is about fees, not really about immigration, although some of it might be. The issue I would like to probe is about passports, not immigration. Clause 56 (4) provides that there may be fees which exceed the cost of “exercising the function” in question. I would be grateful if the Minister would explain to the Committee what is proposed and what lies behind this. Is it about a premium service, rather along the lines of the premium visa service? From time to time, over the years, I have heard complaints about that among the business community—probably not voiced directly to the Government. They are having to pay premium fees for what should be the basic standard service. Is there anything that the Minister can say about customer satisfaction on this? It is worth spending a minute or two getting on record the Government’s explanation of payment over and above the cost of providing proof of citizenship. I beg to move.

[Lord Bates]

My Lords, the passport fee provisions in the Bill require that all Home Office passport-related costs are fully reflected in the fee structure. That means we can recover the costs associated with processing UK passengers at the border through the passport fee. This is reflected in our spending review settlement. They also allow for a surplus on optional, premium and fast-track services, which we intend to use to help protect the quality of, and fee for, the standard passport service and, over time, reduce the standard fee. We do not intend to generate surpluses to fund other unrelated Home Office activity. Premium or fast-track service delivery is currently, and will continue to be, based on insight into and awareness of customer expectations and needs. In future, we intend to set fees for premium services at a level which ensures that they are economically viable to the customer and ensure that Her Majesty’s Passport Office can recover the cost of the services delivered, while protecting and maintaining the standard passport service.

The services and fees will be set out in regulations. As set out in the existing Clause 56(1), fees are set to meet the cost of such functions associated with the issuing of a passport or other travel documents. They will require approval from Her Majesty’s Treasury and Parliament. Therefore, the regulations do not provide for fees to be set at a level deliberately aimed to achieve an excess or surplus on the overall service. The regulations would provide for the fee for specific premium elements of the service to be charged above cost, but any income derived from that would be required to be used to maintain or reduce the cost of other services provided within the overall passport function.

Although I recognise that this is a probing amendment, the proposal would not work, first, because the use of fast-track services is a matter of individual customer choice and therefore subject to fluctuating demand. Unplanned surpluses, or even deficits, may therefore materialise in-year. Secondly, and more importantly, the level of fees for individual services should be determined by the overall cost of delivering the whole passport function, not the other way around. Our ambition is for the standard passport fee to remain at the current level initially and to fall over time as the cost of passport functions is reduced. This will be achieved through transforming delivery through digital and online services, complemented by the customer’s ability to choose the access services with an appropriate level of fees to reflect the higher level and speed of service provided. I hope that, with that explanation, the noble Baroness will feel able to withdraw the amendment.

[Baroness Hamwee]

My Lords, having listened to that explanation, it seems that the amendment pretty accurately reflects what the Minister has been saying, but I will not spend time on that now. Since we are talking about passports, does the Minister have in his brief the target time for the issue of a passport on application at the moment—which I presume is the standard service—against which a premium service will be designed?

[Lord Bates]

It is five days for domestic and 14 days for overseas. There are, of course, some elements of variance, but those are the standard times.

[Baroness Hamwee]

That is helpful, because to issue a passport in less than five days strikes me as going some, though perhaps it may not be so difficult if it is a renewal. I shall be interested to see what the premium service purports to offer. I might be about to hear.

[Lord Bates]

The premium service is four hours: well worth the money.

[Baroness Hamwee]

I might hand it over to the noble Lord, Lord Green, to interrogate. What checks are undertaken for that? I beg leave to withdraw.

Amendment 242T withdrawn.

Immigration Bill

Baroness Hamwee Excerpts

Wednesday 3rd February 2016 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I shall speak to Amendment 231, to which I have added my name, but I would be more than happy if Amendment 234 were to be accepted because I acknowledge that we need to act as quickly as possible to enable family reunion. My noble friend Lady Kennedy of The Shaws talked about the experience of her husband’s family in the 1930s. It was very similar in my own family. My father came as a young man to this country from Nazi Germany in the early 1930s and his parents, my grandparents, were allowed to join him in the late 1930s having escaped to Palestine and then coming to this country, so the question of family reunion has great personal significance for me.

ILPA has provided us with extracts from parliamentary debates in the 1930s and 1940s, and I was particularly struck by a speech by the then Earl of Listowel, who said in 1939:

“There is a common assumption underlying this debate … that these refugees are a common responsibility of every civilised nation, and that each country has to play its part, according to its economic resources and according to its opportunities for offering temporary asylum or permanent refuge, in providing the means of life for these helpless and persecuted people. The question surely that is before our minds first and foremost this afternoon”—

they probably did not go quite as late in those days—

“and is naturally one that confronts every member of the British Legislature is: Is this country really making its rightful contribution?”.—[Official Report, 5/7/1939; col. 1026.]

The answer today has to be no. We are not playing our part according to our economic resources when compared with poorer countries in the region on the one hand and richer countries such as Canada and Germany on the other.

While I very much welcome recent government concessions, I fear that they do not go nearly far enough. This is the message of, for example, a statement made by more than 300 eminent lawyers last autumn who, among other things, called for the establishment of safe and legal routes to the UK from both within and outside Europe. One element of that, they argued, would be humane family reunion policies such as allowing child refugees in the UK to be joined by adult family members. This would help avoid the tragedies that continue to occur in the Mediterranean where already this year 149 people have died trying to cross, according to Save the Children. Just this week over 120 leading economists have sent a similar message in an open letter to the Prime Minister.

The British Red Cross writes of heart-breaking cases it encounters of separated families not covered by the existing rules, such as the two Syrian brothers who wanted to be reunited with their mother stuck in a camp in Iraq, having been recently imprisoned in Syria. She was alone with no family and in a second country but did not qualify for family reunion. I know that the Government’s argument is that if refugee children were entitled to bring their parents into the country, it would act as an incentive to send children on ahead to secure leave. But as ILPA points out, these children are given leave to remain not because they are children but because they are recognised to have a claim as refugees. While parents understandably prioritise getting their children to safety, surely it is cynical to believe that they would deliberately put their children in the hands of smugglers to make such a dangerous journey alone as a ploy to get entry themselves. As Save the Children put it, we are talking about:

“A terrifying push, not an enticing pull”.

It reminds us of children’s rights under the UNCRC to remain with or be reunited with their family.

The Government claim to be the party of the family. In the guidance on the family test, the list of,

“relationships at the heart of family life”,

as it puts it, includes a wide range of family relationships, including extended families. Yet the Government take the most narrow and exclusionary approach to family relationships when it comes to the reunion of a particularly vulnerable group of families. I believe that if the Government were to accept one or other of these amendments, or bring forward their own amendment on Report, this would be widely welcomed.

[Baroness Hamwee (LD)]

My Lords, as my name is to Amendment 234, I will give my story of doctors—I am thinking of the example of the noble Baroness, Lady Kennedy—who left the country because of our family visa restrictions. I did some work on family visas in 2013, a year after the current rules were introduced. I felt as if I had almost physically been hit between the eyes when I realised that these rules were applying in situations which noble Lords have described. It is possible for the Government to grant visas on the basis of exceptional, compelling or compassionate circumstances outside the rules. The Minister will recall his Written Answer to my Question that disclosed that the number of applications granted outside the rules was 77 in 2011 and by 2014 had declined to 12.

The basis of these amendments, and the fact that we do not believe that this would be a pull factor, has already been covered. I shall try not to repeat too much of what has been said. I am very aware that it is not sensible to seek to make too many arrangements on the basis of anecdotes and very individual circumstances—hard cases, bad law, and all that. But there are so many stories. The Guardian published an article about two British citizens who had been granted refugee status and then become citizens, but could not bring their family members to the UK because of the income threshold that is part of the family visa rules. They are actually living with their wives and children in a camp in Dunkirk. Those who have seen the conditions in that camp will be appalled that that has come about.

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Moved by

[Baroness Hamwee]

232: After Clause 38, insert the following new Clause—
“Families of British citizens and other persons with leave to remain
(1) The Secretary of State shall, within six months of the passing of this Act, amend the Immigration Rules regarding any person who satisfies the conditions in subsections (2) and (3), in the ways specified in subsection (4).
(2) The first condition is that the person is applying for—
(a) entry clearance to the United Kingdom,(b) leave to remain in the United Kingdom, or(c) indefinite leave to remain in the United Kingdom.(3) The second condition is that the person is applying as the non-European Economic Area national partner or dependent child of a person who is—
(a) a British Citizen,(b) present and settled in the United Kingdom, or(c) in the United Kingdom with refugee leave or humanitarian protection.(4) Immigration Rules shall specify that, for a person who meets the conditions in subsections (2) and (3)—
(a) the minimum annual income requirement shall be—(i) for a partner, the equivalent of one year’s salary (net of tax and national insurance contributions, and allowing for four weeks’ holiday) at the rate of the national minimum wage in effect at the time,(ii) for one child in addition to the partner, the additional sum of £2500,(iii) for each further child, the additional sum of £2000, and(b) subsidies and financial support (including the value of accommodation provided) shall be applied towards the calculation of income.”

[Baroness Hamwee]

My Lords, Amendments 232 and 234AA are in my name and that of my noble friend Lord Paddick. They stay on the issue of family visas, although not necessarily in the context of the refugee crisis. My noble friend Lord Teverson is going to remind us about “the party of the family” and marriage in the current context.

As I mentioned, I was involved in work on the impact of the family visa rules that were introduced in 2012. The situation has not eased since. In a search for a solution, my own thinking has developed only as far as, “These rules will not be changed until a Cabinet Minister’s son falls in love with a woman from Costa Rica and wants to bring her to live here”.

The rules apply to refugees; they apply to people who are far from being in a refugee situation. They are academics and businesspeople: people from a wide range of backgrounds and in a wide range of situations. It has to be said that many of them would bring a great deal to this country. A comment that I have heard from so many people who, because of the rules, are unable to live as a family in this country is: “I am a British citizen and I pay tax. Why is this happening to me?”. Families are separated and children are not living with both parents as a result of these rules, which must have an impact on a child’s development.

There are situations where, if the rules were not as they are, savings would be made for the state. I remember a gentleman from a low-earning area with a 17 year-old daughter, from his first marriage, with developmental problems. He married for a second time, to somebody really dodgy—a teacher from Canada, and because he could not meet the threshold, he could not sponsor her to come here. I understand that a lot of spouses are being refused visitor’s visas now, because it is not believed that they will leave at the end of a visit. In the case of the couple I have just mentioned, the last I heard was that she was detained when she arrived here and was in Harmondsworth. She had to stay over two or three nights because her physical reaction to what was happening to her meant that she was not well enough to be returned.

The financial threshold in place is beyond the means of something like half of the British population. The provisions which we are proposing in subsection (4) for the income requirement are, instead of £18,600,

“the equivalent of one year’s salary”.

I have spelled that out a little by saying,

“for a partner … at the rate of the national minimum wage”.

Then there are figures, which I accept are arbitrary, that would allow for children and for third-party support, because there are many examples of where families would help. The amendment says that,

“subsidies and financial support … shall be applied towards the calculation of income”.

The cost of the application is also of course an issue. During the debate on the last group of amendments, I read out a letter that I had just received. Because my name has been associated with some work on this, I quite often get letters and emails from people asking me to help and telling me of their situations. I will read just a little from the most recent, which came from a gentleman yesterday. A British citizen who had been living in Argentina, he came over here to a job. His wife and three year-old daughter were in Argentina, and when he tried to bring them over, he discovered the problems. He says:

“I understand the importance of doing everything by the books and would be ashamed to do it any other way. The difficult situation for me to understand here is how, being a British Citizen, should I have to wait for nearly a whole year without seeing my wife and daughter”.

He says that it is,

“unexplainable to a 3-year-old … All the thousands of pounds paid can be made with hard work but the time lost is never coming back”.

The second of our amendments refers to adult dependent relatives. As I said in the previous group, that route has now become more or less theoretical. The noble Baroness, Lady Kennedy, mentioned the gain to this country from two daughters of a refugee qualifying as medical practitioners. The story I have to tell, which I dare say the Minister has heard me tell before, is of a woman who could not bring her elderly parents over from Singapore. She was a consultant in the NHS, so she decided she should go there to look after them. Her sister, also a senior person in the NHS, thought it was unfair to leave all the burden on her sibling and went out as well, and then the husband of one of them, also a consultant in the NHS, went out to join them. Those are three senior people lost to the NHS because we cannot somehow sort this out.

I am very aware of the time; I am also aware that I am not bringing any new points to the Committee because, by definition, they are not new: this has been going on since 2012. That does not diminish the importance of the matter, and I beg to move.

[Lord Teverson]

My Lords, I speak to my Amendment 239A, and I very much agree with all the points that my noble friend Lady Hamwee just made.

It is quite obvious to all of us that we live in a global society. We welcome that, we participate in it and encourage it. We study abroad, we work abroad and we are proud that Britain is an outward-looking nation. As part of that, our sons and daughters and other relatives go out as students, to work and for leisure to other parts of the world—we are not just part of the European Union. It is quite appropriate in February, the month of St Valentine, to say that they occasionally fall in love—I expect that some Members of the House have come across that—and get married. All too often, when deciding to take that step, they do not think about the practicalities. They do not think about the fact that they might not be able as a couple, as a family—in future, as a larger family—to live back in the United Kingdom because of that decision.

As my noble friend said, I have made that point before, so I too shall be brief. It seems to me fundamental, perhaps more so to those on the Benches opposite than anyone else, that family life is sacrosanct. Subject, clearly, to the legal restrictions in the Marriage Act and elsewhere, which we all accept, a British citizen should have the right to marry whom they want, and then be able to live with their spouse or civil partner back in their home in the United Kingdom, should they wish. That right should not be discriminated against by income; in effect, that discriminates against certain ages, those in certain parts of the country or in certain occupations more than others, and perhaps on gender as well. People should have that freedom. If anything should be the birthright of us as proud citizens of the United Kingdom, it should be that. That is the simple thing that my amendment tries to achieve. That was all swept away in 2012, during the period of a coalition Government— unfortunately, as far as I am concerned.

Since I have got involved in this issue, I can name all sorts of instances of people affected by this who have come to me on the internet. Most recently, there was a young man whose family live near me in Cornwall and who is working for a British company out in South Korea. He has married a Korean national and is unable to come back. He earns a lot of money out there, and she is very capable as well, but because of the rules they cannot come back together. That is completely wrong. There are an estimated 33,000 people in that position.

This problem does not make a huge difference to migration figures, but if the Government ever introduce a British Bill of Rights, please make this right No. 1. I ask the Minister to look at this again, think about the principles that the Government espouse so well in this area, listen to that rhetoric and correct analysis about the centrality of the family and family life, and change this policy area so much for the better in the Bill.

--- Later in debate ---

[Baroness Hamwee]

My Lords, what better way of integrating can there be than living with a British citizen? I am genuinely quite puzzled about that. The arguments are financial ones; this is the price of family—or, indeed, the price of love. I do not think that the central, fundamental point is being addressed. As for restoring confidence, that is not the experience that I have from the many representations from and on behalf of British citizens who say that we are taxpayers as well—if that were necessary to support the argument. Of course, I am not going to seek to press the point or prolong the debate now, but it is one that we will keep coming back to.

I am very glad that my noble friend Lord Teverson sought to make the argument on a more elevated plane than I have, by addressing the central philosophical point, which is very important. Although I deplore the phrase—and I have told my noble friends to chuck me off the Front Bench if I ever use it in this Chamber—are marriage and family not among the British values? I beg leave to withdraw the amendment.

Amendment 232 withdrawn.

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[Lord Judd (Lab)]

My Lords, apart from all the powerful arguments of support that have been put forward, the speech by the noble Baroness, Lady Cox, is one that we must all take particularly seriously. No one in this House has put their own life more on the line on issues of this kind than she has, and she has consistently done that with great courage. When she comes to us and says, “Please take this one step that would help, in terms of all that I have experienced”, we must take that seriously. I also feel very deeply that there is a real crisis in credibility with populations across the world. Governments speak with great rhetoric about these issues, but sometimes fail to provide the practical evidence that that rhetoric adds up to anything. Here is a chance to demonstrate that we mean what we say.

[Baroness Hamwee]

My Lords, from these Benches I support the amendment. When I first started going to ceremonies to mark Holocaust Memorial Day, what struck me most were the current examples that were used and of which we were reminded. Each year a theme is chosen and it is salutary to realise how topical those themes are. This is topical. There are many groups of people who are the subject of the treatment which has been described, and it has been notable during debate on this Bill how many noble Lords have referred to the experiences of their families. We may not be directly related to the people who are in such a situation, but as noble Lords have pointed out, we are all part of that one family.

[Lord Wigley (PC)]

My Lords, I had not intended to intervene in this debate either, but having listened to the noble Lords, Lord Alton and Lord Forsyth, and others, I cannot help but raise a voice on behalf of the Christian community. We are to a greater or lesser extent Christians in this country. We may not be very good Christians, but the idea that we cannot intervene on behalf of a Christian community because we might be discriminating strikes me as being absolutely unacceptable and appalling. I hope that the Government will take close notice of that and think about this serious issue.

--- Later in debate ---

Moved by

[Baroness Hamwee]

236ZF: Clause 39, page 41, line 17, after “may” insert “, having consulted the Secretaries of State with responsibility for children and for communities and local government,”

--- Later in debate ---

[Baroness Hamwee]

My noble friend Lord Paddick and I also have Amendments 236ZG, 236ZH and 236ZJ in this group standing in our names. The noble Lord, Lord Wigley, will be glad to know that we have not cut out his amendments on the position of the devolved Administrations.

Clause 39 is a relatively new clause drafted by the Government to address the situation of certain local authorities coping with very large numbers of children—the relevant children for the purposes of the clause—who are in need of care, supervision and protection in the current circumstances. These amendments are essentially probing. I preface my remarks by saying how much I understand the dilemma that both local authorities and central government are facing in trying to address all this. I know that they are working together to try to find the best arrangement.

Amendment 236ZF is not traditional drafting, and I do not defend it in that way, but it deals with the regulation-making power about arrangements under this clause, which provides that the Secretary of State may make further provision by regulations, as is usual. I know it is normal to refer simply to the Secretary of State but there are clearly a number of Secretaries of State who should have a role in these arrangements. I rather doubt that the Secretary of State for the Home Department should be the one taking the lead. I appreciate that that is not necessarily implicit in the way that the clause is drafted. The amendment refers to consultation with:

“Secretaries of State with responsibility for children and for communities and local government”,

who clearly are involved, and I would be grateful if the Minister could explain how the situation is being addressed across government.

Clause 42 allows the Secretary of State to prepare a scheme to transfer responsibility from one local authority to another. Amendment 236ZG would provide that:

“Before finalising the scheme, the Secretary of State must consult the local authorities to which the scheme relates”.

I am sure we will be given assurances about this. We tabled this amendment because we are instinctively unhappy about the notion of a Secretary of State having a power of direction over local authorities. Clearly, the best way to deal with these problems is through discussion and coming to arrangements, compromises and so on by the local authorities concerned. Again, I seek some reassurances from the Minister about the Government’s approach.

Amendment 236ZH would provide that the scheme for the transfer should,

“specify the provision of resources”.

We are talking about a very resource-intensive exercise. The Local Government Association is being very moderate in its language referring to this but clearly it is a concern for local authorities. Indeed, it is because of the strain on Kent in particular that the Government have now produced these proposals.

We tabled Amendment 236ZJ to seek assurances that the points raised in a proposed new clause on the best interests of the child will be carried through into guidance and practice, even if they are not spelled out in the Bill. These issues are already in guidance in respect of other situations and provide that the child’s best interests are considered in any decision to move a child to a different local authority. They spell out some of the factors that would weigh against the child being moved, such as having lived in the initial authority for some time, having family members or other relationships in the first authority, that the processing of the child’s asylum or immigration application has started, that a legal representative in the first authority has been instructed, and that the child is established in education there. Regard should also be had to,

“the availability of legal advice and representation … in the second authority”,

and,

“the availability of services in the second authority to meet the religious and cultural needs of the relevant child”.

As I say, these issues are well understood and in guidance relating to other situations. I look forward to the Minister giving assurances. They should not be very difficult to give, particularly on that last amendment. I beg to move.

[Lord Wigley]

My Lords, I wish to address myself to Amendments 237 and 238, which are linked with this group. I apologise—I almost interrupted a little earlier when I thought that we were rushing forwards in a way that had overtaken my amendments.

The noble Baroness, Lady Hamwee, referred to the Secretary of State having power of direction over local government. My concern is with the implication of Clause 43: that the Secretary of State may have powers of direction not just over local government but over the national Governments of Wales, Scotland and Northern Ireland. If we are indeed to have the respect agenda to which the Government have made much reference over recent months, then in so doing there should quite clearly be a question of prior consent before that is taken on board.

Amendment 237 would insert the words,

“if consent to such application has been granted by the National Assembly for Wales, the Scottish Parliament and the Northern Ireland Assembly respectively”.

I would have thought that was basic common sense. I would also have thought that this is the way in which the Government would have wanted to act. The provisions in these amendments may be covered elsewhere, in some way which I have not picked up, but if they are not I suggest strongly to the Government that some such provision should be built in. In any case, to what extent have the Government had any discussions with the Governments of Wales, Scotland and Northern Ireland with regard to the implementation of these provisions? I would be very interested to know that.

I should emphasise that the question of children’s policy has been uppermost on the agenda of the National Assembly for Wales. Our Children’s Commissioner was among the first in these islands and a lot of attention has been given in public policy to ensuring that children are uppermost in our thoughts. I have no doubt at all that the National Assembly for Wales—and, I am sure, the Scottish Parliament and the Northern Ireland Assembly—wants to play a constructive and positive role in helping in these circumstances. But it should be by partnership, not by direction, and I would be very interested to hear the Minister’s response on that point.

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[Lord Bates]

Yes, that is something that I am happy to undertake to do. To clarify the situation, the six local authorities I referred to were just for the Kent dispersal scheme. It is invidious to single out particular local authorities. I was making the more general point that it would be wonderful if more local authorities came forward. We certainly want to ensure that the generous offers made, to which the noble Lord referred, are fully explored, so that help can be provided where it is offered.

[Baroness Hamwee]

My Lords, it might be invidious, but I am going to do it, although in a related context. On the call for local authorities to assist with providing accommodation for refugee families, I am ashamed that the leader of my local authority of Richmond upon Thames explained that it was not possible to assist because it is not a housing authority. I think that that is using technical language which could be applied very widely across the country, but has not deterred others.

The statement from the Local Government Association on the current position, issued especially in response to the calls for admitting 3,000 unaccompanied asylum-seeking children, starts by calling for the programme to focus on family reunification, which takes us back to debates we just had. The statement refers to the current financial arrangements for taking on full Children Act responsibilities and funding the leaving care support. It says that these are currently due to expire at the end of March. The statement was dated 27 January and I would guess that the Minister has no further news about that—he shakes his head. Clearly that is worrying the LGA and it must worry us all. Of course, I agree that reaching a consensus and partnership—the word I was struggling for before—is the most important way of addressing this. As I have said before in this Chamber, the costs would be considerable. There is the shortfall in the number of foster carers. Whatever the number of altruistic people who offer to take children, there is no avoiding the cost of support for them in undertaking an extremely difficult job in looking after these children. The LGA also says that a regional approach to resettling refugees rather than a case-by-case model controlled centrally would be more effective in utilising the funding for local authorities to support resettlement.

The Minister answered Amendment 236ZF but I do not think he said whether those factors will be included in guidance. Given the hour, I will not ask him to continue—but he made a sort of semaphore indication that he will write on that point. I am grateful for that. I beg leave to withdraw the amendment.

Amendment 236ZF withdrawn.

Immigration Bill

Baroness Hamwee Excerpts

Wednesday 3rd February 2016 Lords Chamber

[The Lord Bishop of Norwich]

My Lords, I rise from these Benches to support Amendment 227 in the name of the noble Lord, Lord Rosser, and others.

The briefing note on Clause 34 to which the noble Baroness, Lady Lister, referred is a model of clarity. It was certainly very informative to me. It made clear, as the noble Baroness said, the statutory duty on the Secretary of State,

“to have regard to the need to safeguard and promote the welfare of any child in the UK who … may be affected by any immigration decision”—

that duty is not in doubt—and that,

“the best interests of the child are a primary consideration”.

While I understand that a primary consideration may not be the only one, I do not understand how a primary consideration can be set aside even if it is in some way qualified. If it is trumped by other factors, it does not seem to be a primary consideration. So there must be a risk that Clause 34 unamended could undermine the Secretary of State’s statutory duty.

I do not doubt the Minister’s and the Government’s best intentions here, but there is widespread concern among organisations such as the Children’s Society, as the noble Lord, Lord Alton, said, which deal with vulnerable children on a daily basis, not least about the Home Office’s capacity to cope with an unamended Clause 34. Without an adequate process to determine the child’s best interests,

“children could be returned to countries and circumstances where they may be at risk of serious harm including sexual abuse, neglect … violence, forced marriage”,

and so on. There is plenty of research to indicate the way in which separation from a parent when vulnerable causes long-term harm to a child’s developmental and emotional well-being. We should not be making such separations more commonplace.

The Home Office briefing argues that appeals from abroad have been effective and fair but, as we have heard, the cuts in legal aid for immigration cases are bound to undermine the capacity of families to put forward evidence, and the danger of not knowing the facts in an appeal must surely grow.

I have been talking generally about the impact of all this, but of course it will always be experienced in particular. An example given by the Children’s Society vividly illustrates the risks. A woman came to the UK 16 years ago to escape forced marriage. After an agent stole her documents, she lived under the radar and now has three children aged 11, seven and two. She received help from the Coram Children’s Legal Centre two years ago—pro bono—to make an application for leave to remain on Article 8 grounds. It was refused, largely because it was said that the family could return to the woman’s country of origin. She appealed and had to wait more than a year for the appeal to be heard, apparently because of a “shortage of judiciary”. The children speak only English; the older two are doing well at school and the eldest child, I understand, is now eligible to register as British.

Under the Bill’s provisions, this woman and her family could have been removed from the UK for more than a year while waiting for her appeal. The children would then have lived in a small African village with their estranged maternal grandmother, with whom they do not have a common language. Their schooling would have been interrupted, since there is no teaching in English locally. The youngest child would have been at risk of female genital mutilation in a place with limited health services. The removal of the eldest child from Britain, the only country he has ever known, would have made him ineligible to register as British since it would have happened just before his 10th birthday.

I want to believe that this family would have benefited from a Home Office caseworker’s laborious and careful sifting of all that evidence, resulting in a recommendation that the family should stay here. But how can this be guaranteed without some amendment of Clause 34? We need full and proper scrutiny before we deport such families or children. I hope that the Minister will offer us some comfort that these points have been heard.

[Baroness Hamwee (LD)]

My Lords, from these Benches we support Amendment 227 and the opposition to Clause 34 standing part of the Bill. I will not speak to Clause 35.

The right reverend Prelate has just mentioned legal work provided pro bono. I would like to take this opportunity of echoing a comment made by the noble Lord, Lord Faulks, from the Dispatch Box the other day when he repeated an Answer to a Question on legal aid. He said that there are a lot of legal firms which are not “ambulance chasers”. Those firms do terrific work in very difficult circumstances, and many of them are engaged in this sort of work.

The noble Baroness, Lady Lister, referred to comments on the last Bill from the Joint Committee on Human Rights. The committee, of which I am a member, has drawn the attention of the House again to particular difficulties which might be faced by appellants if a non-suspensive appeals regime is extended in circumstances in which judicial review is the only means of challenge. This could mean that families with meritorious Article 8 claims are subjected to extensive separation. I think that she also referred to the report of the Constitution Committee, which commented among other things—there were two or three pages on this—on the practical extent to which legal aid is perhaps not likely to be available in respect of judicial review challenges to certification decisions.

We use the term, “Deport first, appeal later”, but of course it is not quite that. It is “Be deported and appeal later”, or deport first and then be appealed against in a situation in which the appellant can apply only in a way that the Court of Appeal and the Solicitor-General have acknowledged is less advantageous—that is the term used in the court. The noble Lord, Lord Rosser, referred to this and it is certainly less advantageous for the appellant or potential appellant. There is difficulty in paying for legal representation and liaising from abroad with legal representatives—if you can find any who can help in the circumstances—difficulty in obtaining, submitting and giving evidence, and difficulty for the tribunal in assessing evidence.

The human rights memorandum published by the Home Office said that,

“there is no intention to apply this power to cases relying on Article 2 and 3 rights”,

and that,

“case law … makes plain that where there is an arguable Article 8 claim, there needs to be the effective possibility of challenging the removal decision”.

If Clause 34 has to remain, it would be good if it could somehow refer to what is in that ancillary documentation.

It struck me during discussions about this how difficult it is to certify a negative. It is almost as difficult as proving a positive. The Secretary of State has to certify a claim, as we have heard, if she considers, first, that removal is not unlawful and, secondly, that the appellant would not face a real risk of irreversible harm. I am sure that the Minister will, as the noble Lord said, refer to the recent Court of Appeal case which ruled that the regime was lawful. However, that was in the context of deportation, and the fact that it was lawful does not make it right.

There is no equality of arms and a perversity about this. As the Law Society has pointed out,

“the spouse of a national of any EEA”—

European Economic Area—

“member except the UK would retain a full in-country right of appeal … whereas the spouse of a UK national”—

not the spouse of any national of any other EEA member—

“would have to leave the country”.

[Lord Ramsbotham (CB)]

My Lords, I am proud to be British and was both proud and privileged to serve for nearly 41 years in the British Army. But I have to admit that I am not proud of much of the thrust of this Bill, which seems to be based on the assumption that every would-be immigrant or asylum seeker is illegal, and should be treated as such. That is akin to regarding everyone awarded a prison sentence as being a combination of mass murderer, armed robber, rapist, arsonist and paedophile, and treating them accordingly. The vast majority of would-be immigrants and asylum seekers are legal, which should be the default thrust of any regulatory legislation.

On 12 July 1910, the then Home Secretary, the 36 year-old Winston Churchill, winding up a debate on prison estimates, said that the way in which any country treated crime and criminals was the true test of its civilisation. He could well have added immigrants and asylum seekers. On Monday night, I heard the noble and learned Lord, Lord Keen of Elie, read from his brief an assertion that:

“The Government already have a raft of guidance and standards in place for ensuring that the regimes in detention centres operate at appropriate levels and in the interests of the welfare of detainees”.—[Official Report, 1/1/16; col.1696.]

In view of my experiences while inspecting them, I thought of Churchill and was completely flabbergasted. Has no one in the Home Office paid the slightest bit of attention to inspection report after inspection report, which point out that what the Minister described as,

“a raft of guidance and standards”,

is not subject to any meaningful oversight? For “appropriate”, he should have said “'wholly unsatisfactory”. So stunned was I that I totally failed to ask the Minister what the word appropriate meant, and who in the Home Office was responsible and accountable for allegedly ensuring the operation of such regimes, and whether their reports could be made available to noble Lords.

That was bad enough. But Clause 34 is so far outside the rule of law, let alone what decent people regard as civilised, that I am ashamed to think that anyone British was responsible for the concept, let alone its inclusion in the Bill. I know that the Court of Appeal has ruled that the imposition under the Immigration Act 2014 of out-of-country appeals in deportation cases is legal, but such appellants have committed serious crimes and received substantial prison sentences before being deported. How can any Home Office Minister seriously bring forward so draconian a proposal for those whose presence in the United Kingdom is entirely legal knowing that, currently, 61% of immigration appeals are either allowed, remitted for the Home Office to retake its decision or acknowledged by the Home Office to be flawed before a hearing? This means that 61% of those whom Ministers intend to force to make their appeal from abroad will have legal grounds for compensation, which is bound to add up to more than the cost of continuing to do the decent and civilised thing.

Included in the 61%, as the Solicitor-General acknowledged to the Committee and the other place, is an appeal success rate of 42%, which the latest figures from the Asylum Support Tribunal show to have risen to 44%. On what grounds do the Government think their proposal to force legal, as well as illegal, potential appellants to leave the United Kingdom before appealing against such appalling and proven faulty decision-taking is justified, appropriate and civilised?

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[Lord Keen of Elie]

It is not immediately apparent to me that it is applicable to this proposal, but in this context one has to bear in mind that a primary consideration is the interests of the child or the children. To that extent, what might be regarded as an aspect of the family test is being applied. That is always a primary consideration. There are circumstances where it may be appropriate for the children to accompany a person out of the United Kingdom, and there may be no difficulty about that. There may be circumstances in which it is appropriate for the children to remain with a parent or carer within the United Kingdom. If there are circumstances where they will have no parent or carer within the United Kingdom and it would not be appropriate for them to leave the United Kingdom, again, there is the safety net of the certification, dealt with in Clause 34, as there is under the existing legislation. To that extent, it appears to me that the matter is dealt with.

The noble Baroness went on to mention again the interests of the child and to ask how many children would be affected by this. It is not possible at this stage to say. On the basis of unofficial and informal figures, I understand that no child has been certified for an out-of-country appeal under existing legislation. Of course, the present amended legislation has been in force for only a short time, since 2015, so it is difficult to discern figures from that.

The right reverend Prelate the Bishop of Norwich referred to particular cases. I hope that I have addressed his concerns. If there was such a serious risk to a child as he alluded to, it appears to me that, with respect, the safety net in Clause 34 would apply.

The noble Baroness, Lady Hamwee, referred to difficulties in producing evidence in the context of an out-of-country appeal. I do not accept that it would be materially more difficult to produce evidence in these circumstances. We are talking about an appeal to a specialist tribunal that is well equipped to decide the form of evidence it requires in a particular case. As I mentioned, when dealing with a case that is going to arise largely on the basis of Article 8 of the convention, if there is to be a convention appeal, one is concerned with family links with the United Kingdom, which are going to be spoken to by persons within the United Kingdom. In so far as there is any factual issue to be addressed by an appellant, it can be done in writing, by video link or even by telephone. That may appear less satisfactory than taking oral evidence but, as the noble Baroness may be aware, it is far from exceptional for appellants not to give evidence in such appeals before a tribunal. It is certainly far from exceptional for appellants not to give oral evidence in such proceedings.

[Baroness Hamwee]

My Lords, I am grateful for that. I did acknowledge the Court of Appeal decision, but I said that in our view it did not make the situation right. However, do the Home Office or the Tribunal Service give information or even assistance to appellants who are outside the country—as a minimum, information on how they can set about dealing with an appeal from outside the country?

While I am on my feet, the Minister credited me with a comment about the best interests of the child which I think came from the noble Baroness, Lady Lister. I have an amendment on that later so it is understandable that he might have thought that I was going to say what I will be saying.

[Lord Keen of Elie]

I am obliged to the noble Baroness. Without the benefit of second sight, I cannot say whether I thought she was going to say what she had not said but was planning to say later—but I acknowledge that the original comment came from the noble Baroness, Lady Lister.

[Lord Keen of Elie]

I acknowledge the observation made, but I cannot comment on the particulars of such a case. What I can say is perhaps only related and not directly on point. Part of the thrust of the next part of the Bill is to address the time taken for appeals to be processed. That matter will be addressed by my noble friend Lord Bates in due course. In general, it is hoped that appeal processes in simple cases will not exceed six months and even in complex cases will not exceed 12 months, so that there will not be the degree of separation that has been alluded to, even in cases where one child perhaps goes out of the United Kingdom and another remains in the United Kingdom. I rather suspect that that would be an exceptional case—albeit it is amazing when you read the facts of some of these cases just how diverse the family arrangements can be.

[Baroness Hamwee]

Is the noble and learned Lord able to answer the question I asked?

[Lord Keen of Elie]

The noble Baroness asked about communication of out-of-country appeals procedures. I do not have that information immediately to hand. I am aware of the tribunal regulations. Perhaps I could undertake to write to her to outline what the guidance is.

My research has come to a conclusion already. There is published guidance on the GOV.UK website on how to appeal from overseas, so it is there. I knew that it existed but I was not aware that it was actually on the website. Whether further steps are taken with regard to this matter, I cannot say. If in fact there is something over and above the website, I will write to advise the noble Baroness.

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[The Lord Bishop of Norwich]

My Lords, I support Amendment 230 in this group. My colleague, the right reverend Prelate the Bishop of Southwark, spoke at Second Reading of his concern about the architecture of Clause 37 and Schedule 8. I share his belief that the reduced weekly support of £36.95 per person, to which the noble Lord, Lord Rosser, referred, for an asylum seeker under the current system is inadequate. Where that financial provision is refused, it is subject to a right of appeal. I note that in nearly two-thirds of such appeal cases, the appeal is successful or the refusal is withdrawn.

There seems to be an inexorable but ultimately self-defeating utilitarian logic in government policy in this area. The argument seems to be that when an asylum seeker’s application is refused and an appeal is unsuccessful, there is no further need for or right to any financial support. It seems to be assumed that this will be an incentive in itself to leave the United Kingdom. I fully understand the Government’s desire to maintain the integrity of immigration control by ensuring removal, whether voluntary or not, but I wonder how effective this policy will be.

As we have heard, the criteria under the new provisions for any financial support in such situations are destitution and genuine obstacles to leaving the UK, and there is then no right of appeal. What constitutes,

“a genuine obstacle to leaving the United Kingdom”,

is not defined, although it could appear in the Bill rather than be left to regulation. In another place, the Minister expressed hope that greater engagement with failed claimants would lead to many more voluntary departures. He said that under existing legislation such engagement led to 377 people leaving between April and October last year.

The Refugee Council notes that this engagement often went on over months and involved many meetings with families and case conferences. Such experience suggests that a significant period of grace, with some financial support, in such cases is both necessary and constructive. I may have misunderstood but the Bill’s existing provision seems inimical to developing this practice and may well undermine its very aim. Scrutiny of the existing system—one which, after all, involves rather modest financial maintenance—shows that on appeal there are a significant number of corrected decisions. That is why, if the provisions of Clause 37 and Schedule 8 are conceded, they ought to be subject to appeal. I hope the Minister may be sympathetic.

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I have added our names to the objections to Clause 37 and Schedule 8 standing part, and we have a number of specific amendments in this group.

I will deal with what I have noted as minor amendments —although one of them is not that minor—before coming to the more general point. My Amendment 229ZD deals with “further qualifying submissions”. The provision requires them to fall to be considered by the Secretary of State under the Immigration Rules, which I saw, when I was looking for various things on the GOV.UK website, are described as legislation. But, as noble Lords will be very well aware, they are not subject to parliamentary scrutiny. The purpose of the amendment is to ask about the process for scrutiny, if any, of current and future amended rules and the application of these to the schedule.

The provision that is the subject of my probing Amendment 229ZE merely changes “claim for asylum” to “protection claim”. My amendment would omit “as may be prescribed”, which applied to the claim for asylum under the previous legislation. I found that slightly odd in the context, but I wonder whether there has been any experience of a prescription claim under the legislation. Perhaps the Minister can flesh that out a bit.

The last of these three specific amendments, Amendment 230ZB, is much more material. Schedule 8 provides for support not to be in the form of cash. The experience of the Azure card is not a happy one. I can just about see that vouchers for certain services might be defensible. Vouchers for goods require the recipient, in effect, to shop in places which are not convenient, do not provide what may be sought within a particular culture and are not the cheapest. In particular, they cannot be used in a market. They may mean travelling to a place where vouchers can be used but vouchers are not available for travel. Getting to essential appointments, such as medical and legal appointments, becomes a huge problem. Children are affected not only through hunger but because the card does not cover things such as school trips or, as I say, travel fares. We have had evidence that the payment system affects people’s mental health—I am sure that this is not news at all to the Minister. It affects their ability to maintain relationships and to participate in social, cultural and religious life. Not every cashier in shops where the card can be used is properly trained, so embarrassment can be caused. The card can generally be a source of stigma because it singles out the recipients.

On Clause 37 and Schedule 8, reference has been made to the current Section 95 regulations. When I was preparing for my Motion to Annul those regulations in October, I was shocked to read how minimal was the provision for essential living needs. One of my noble friends commented to me afterwards that it was obvious from the expressions on several faces opposite, where a number of the Minister’s colleagues were sitting, that they were shocked by what they had heard. The Official Report does not record facial expressions but on that occasion I felt, as I have sometimes felt on others, that the Minister may not be a particularly good poker player.

I was very critical on that occasion of the methodology used to assess essential living needs, which in the case of a child could hardly be called an assessment. It does not include nappies, formula milk and other items specifically for babies. There was a very blunt tool for applying the approach of economies of scale. By just using that rough and ready term, without any disaggregation or analysis, the adult rate was applied. Of course I did not win when I then put the matter to the vote—the regulations have been in force since August—but one outcome was some discussion both privately with the Minister and during the debate about consultation with the NGOs and others who work in the field on periodic reviews of the support rates. The Minister said:

“We would certainly welcome evidence and data”.—[Official Report, 27/10/15; col. 1160.]

That is not of course in the context of the new Section 95A, but it is relevant, and I hope that the Minister can give the Committee an assurance about the process of arriving at the rates.

--- Later in debate ---

[Lord Bates]

I am happy to set that out in a little more detail. I think it would be helpful to say how we envisage that working. The plan is for the family engagement officer—who is a key figure in this, working with the family to manage their return—to have cognisance of their circumstances not only while here but when they return, so that will be taken into account and will be something that we look at. I will write more on that; I am happy to do so.

[Baroness Hamwee]

My Lords, while we are on this subject, the noble Lord, in response to my Amendment 233, talked about the current process. The amendment was tabled after discussion with the Red Cross in particular and other organisations that commented on the need for the items set out in the amendment, namely,

“a caseworker … a named point of contact … and … legal advice”.

The part of the amendment dealing with a review refers to,

“the level of financial support provided to failed asylum seekers when they leave the United Kingdom, and … the level of contact with organisations in the country of return necessary for the welfare of the failed asylum seekers”,

which was very much the point my noble friend was making. The Minister has just described a caseworker and named person. I am not clear whether this is intended to be a change from the current process or whether his notes are defending the current process. If it is the latter, the comments I received which led to this amendment indicate that the current process, which the Minister described, is not working.

While I am on my feet, I am afraid I must take the Minister back to the Azure card. He said that, generally, support would be in the form of accommodation and cash. What are the exceptions to that?

[Lord Bates]

First, I am a huge admirer of the work of the Red Cross and pay tribute to all that it does in this area. The noble Baroness referred to my charitable endeavours over the recess. Last year, I raised £90,000 for projects for the International Red Cross in China. My response to the point about the Red Cross study is that we are engaging with it. Home Office officials are in contact with the Red Cross and we are working through its recommendations, which I have read. There is some question—which we need to understand better—about the cohort. I think that the Red Cross looked at some 60 case studies. The majority—all but five or six, I think—were failed asylum seekers, but there was not really sufficient explanation of why they had failed. Suffice to say that we take this very seriously. We want to engage with organisations such as the Red Cross so that we move forward sensitively.

I have said that I will write on the point about the Azure card and perhaps I could include the exceptions. With that, I hope that noble Lords will accept my explanation and withdraw their opposition to the clause standing part.

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[Lord Judd (Lab)]

My Lords, I add my warm support to my noble friend in moving this amendment. For any of us who have been exposed to the realities of the situation, it is impossible to forget the mental turmoil that is so often present in the case of the person going through the process. The minds of those who have suffered torture are already in a pretty twisted and confused state. Just trying to cope with the procedures is physically and mentally exhausting. That is aggravated, frankly, because sometimes they have been through all the injustice of ill-prepared cases against them by the Home Office, which were subsequently totally dismissed as unacceptable, allowing the person to acquire asylum status. All this adds to the psychological pressure.

The other thing that strikes me—both the noble Lord, Lord Alton, and my noble friend referred to this—is the amount of arbitrariness in this process. Some come up against wonderful people in the community. I can think of a case not very far from where the Minister lives where there was a wonderful amount of support forthcoming for the couple concerned, and they roped me in on it, but all the time I was thinking, “But what about all those who do not have this support?”. It was bad enough for them.

Let us consider the arbitrariness that people encounter at the appeal stage in terms of the procedures in court. I was present for this couple’s case, and indeed I was called as a witness. The judge was simply incompetent, but fortunately for this couple, they had a superbly good lawyer to present their case. She was able to shred the case brought by the judge almost within minutes. What was again constantly in my mind was the fact that the couple were fortunate to have the support of a wonderful family and an excellent lawyer, someone who was commended by her own profession for her work, but what about all the others? This indicates that we need to look closely at what is realistically possible.

To be fair, I should add that when I became involved in this case, I was given a lot of helpful support by the Home Office. It was obvious that some people there were unhappy about the situation and they were trying to help. But only a minority of cases have the good fortune of the kind intervention of others. We cannot take the business of fairness lightly and we must be able to think ourselves into the shoes of the people going through this process—what they have been through, what state their minds are in and how capable they are of coping with what is required of them during the period of transition. I hope that the Minister, who I know is an extremely fair-minded man, will listen carefully to the plea of my noble friend and resolve this.

[Baroness Hamwee]

My Lords, our Amendment 229 also addresses the issue of people who have been granted refugee status, humanitarian protection and various forms of leave to remain accessing mainstream benefits. I am sure that being able to work, and as a secondary to that being able to access mainstream benefits and accommodation, is what people in this situation want. They do not want to be supported. But delays in the Home Office in issuing biometric residence permits and delays at the DWP in issuing national insurance numbers so that people can get identity documents and thus establish a claim to benefits mean that the system is not working as it should.

Our amendment would not make as many changes as its length might suggest. The relevant addition to the definition of when,

“a claim for asylum is determined”,

are the lines,

“and the claimant or dependants of the claimant do not appear to the Secretary of State to be destitute”.

In other words, adding that in as another condition to be met, as it were. I can understand that it must be much easier to have an automatic time trigger for these things, but we have heard throughout the debate on this Bill how matters are considered on a case-by-case basis, and it seems that this is another occasion when that consideration should be applied.

[Lord Bates]

My Lords, I thank the noble Baroness, Lady Lister, for moving her amendment, and the noble Baroness, Lady Hamwee. In the interests of time, perhaps I may first draw the attention of the Committee to my letter of 21 January and in particular to the accompanying document, Reforming Support for Migrants Without Immigration Status: The New System Contained in Schedules 8 and 9 to the Immigration Bill, and specifically to pages 10 to 12 which deal with the handover situation of people on support from the Home Office and moving them on to a local authority, and how that system can be improved.

The noble Lord, Lord Alton, who I respect enormously for his humanitarian instincts, as I do the noble Lord, Lord Judd, referred to the British Red Cross report. It was published on 13 January, I think, which is fairly recent in terms of government decision-making. We are engaging with the charity and we will have more to say on the report in due course.

At the heart of what the noble Baroness wants is whether we will agree to a meeting to look specifically at this issue. The next group of amendments is a significant one about children leaving care. I was going to suggest that we should have a meeting on that issue, which the noble Earl, Lord Listowel, will probably find very helpful. I am happy to incorporate this specific point into that wider meeting, given that we already have five meetings coming up before Report. If that is helpful to her, I shall restrict my remarks to drawing attention to the document I have just mentioned and agreeing to combine this issue with those to be addressed in the meeting as a result of the next group of amendments.

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[Baroness Hamwee]

My Lords, I have my name to a number of the noble Earl’s amendments. We have all received a considerable amount of briefing material. He just referred to the work of the Children’s Commissioner. I will use that as the basis for questions—not even that: I will simply read out some of the key questions that it is said need answering. There will be a certain amount of overlap with the noble Earl.

Will the statutory guidance on transition be revised as a result of changes made in the Bill? The noble Earl referred to that. We are all concerned about young people missing from care. The Children’s Commissioner asked:

“Will transfers from local authority accommodation to Section 95A accommodation by adult migrant care leavers be monitored to look at the impact the policy is having on the missing figures and to determine whether the new arrangements have been successful in encouraging former unaccompanied children to leave the UK?”.

I share the noble Earl’s observations about the likelihood or otherwise of these children going back.

Will the Minister clarify what happens to failed asylum seekers without status turning 18 who make further submissions under the Immigration Rules, resulting in either the grant of leave or acceptance of the further submissions as a fresh claim for asylum? Will this group return to being eligible for leaving care support from their former local authority? Will the Minister clarify what provision—whether under the Children Act 1989 or under Schedule 3—will be available to care leavers with no status who do not have a pending non-asylum application or appeal when they turn 18?

Our amendments in this group are all small probing amendments. As I know that the Minister’s briefing will refer to them, I will mention simply three types of amendments. One refers to an “application … of a kind”. This phrase occurs in two places in government Amendment 234G. Does that application of a kind refer to the leave which is applied for? I think that it probably does, but I was not sure about that.

A couple of our amendments seek to replace “may” with “must”. I am beginning to think that I might seek a debate just on this issue; I think that most Members of the House would take part in it. These provisions are about making regulations. The Minister will no doubt tell me that they will be made and therefore I do not need to worry. However, I do worry about these things.

Amendment 234X concerns regulations to be taken into account in making a determination with regard to accommodation and subsistence in new paragraph 10A of Schedule 9 to the Bill. New sub-paragraph (7) states that the regulations may specify factors which the person who is to take the decision,

“may or must take into account in making a determination”.

I would like to take out the words “or must”. I find it a very curious thing to give discretion to somebody to make a determination and then have two categories of factors to be taken into account, some of which the person may take into account and some which he must take into account. If you are giving somebody the job of making a judgment, I do not think that the judgment should be fettered in this way. However, the main points have already been made by previous speakers.