Drugs Policy

Baroness Hamwee Excerpts

Monday 13th June 2016 Lords Chamber

[Lord Ahmad of Wimbledon]

The right reverend Prelate is right to raise this concern. Issues of stop and search have been prioritised; I recall that my right honourable friend the Home Secretary has specifically focused on this area. I believe that, although in 2009-10 stop and search was about seven times as likely for someone of black ethnicity, that has fallen to four times more likely—but that is still four times more likely than anyone else.

[Baroness Hamwee (LD)]

Does the Minister agree that it is significant and a very progressive step that possession of a new psychoactive substance under the Psychoactive Substances Act is not a criminal offence? Does he not think that that is something that we should extend and build on with regard to other drugs?

[Lord Ahmad of Wimbledon]

I know that the noble Baroness was a very active participant during the passage of the Bill, and she is quite right to say that this is about not penalising possession but tackling the people who provide and supply such drugs. That is where the clamping down has occurred, and it is proving effective. On the other question, we continue to review and see the evidence, and we will be led by the evidence.

Immigration Bill

Baroness Hamwee Excerpts

Tuesday 10th May 2016 Lords Chamber

[The Lord Speaker (Baroness D’Souza)]

The original Question was that Motion A be agreed to, since when Amendment A1 has been moved to,

“leave out from ‘House’ to end and insert …‘do insist on its Amendment 84’”.

The Question, therefore, is that Amendment A1 be agreed to. I should inform the House that if this amendment is agreed to, I cannot call Amendment A2 by reason of pre-emption.

[Baroness Hamwee (LD)]

My Lords, many of your Lordships will have negotiated a variety of agreements and arrangements, been involved in the toing and froing of proposals and counterproposals, and experienced the feeling of, “Okay, enough, let us move on”.

I do not equate that with this issue. I am realistic enough to understand where the Government have got to, but it is not far enough. From my privileged, comfortable position, compared with the asylum seekers, the subject of these amendments, I cannot leave it there. I do not feel, in the words of the noble and learned Lord, that I have done my job and done more.

I want to make it clear that I support the noble Lord, Lord Ramsbotham. To deprive an individual of liberty for the purposes of immigration control should be an absolute last resort. It should be comparatively rare and for the shortest possible time. At the last stage but one of this Bill, the Government introduced their amendment for automatic judicial oversight. We heard then references to detainees still being able to apply for bail and to access legal advice at any time, and so on. That painted a picture which, though technically correct, did not accord with the realities described to me over the years.

The noble and learned Lord introduced the automatic hearing after six months as a “proportionate response”, and said that earlier referral might result in work for both the tribunal and the Home Office at a time when an individual’s removal from the country was planned and imminent. So I was pleased last night that the Minister in the Commons, “after careful consideration”, moved a reduction from six months to four months to reflect the fact that the vast majority are detained for fewer than four months.

At the end of last December, on the latest figures that we have, 2,607 people were detained. Of these, 530—roughly 20% of the detainee population—had been detained for less than four months but longer than two months. Those are the numbers that my amendment is about, although they are 530 individuals, not just faceless numbers.

The impact of immigration detention, which is not a sanction—it is not punishment for wrongdoing—is considerable and reference has rightly been made to the particular impact on mental health. I look forward to Stephen Shaw’s further work and hope that it will ameliorate conditions, but there must always be a significant impact. I do not know, though I can speculate on, the Government’s reason for moving from the proportionate six months to four months, but if they can move, I suggest they can move further. In the mix of assessing what is proportionate, the impact of administrative detention must be a significant factor. Let us reduce it as much as possible. That is why I propose two months.

I take this opportunity to say, too, that in all this I do not want to lose sight of the objective of improving the whole returns process. Alternatives to detention with case managers who are not decision-makers would be more humane, less costly and more efficient. There is plenty of experience of that in other countries. An improved returns system would reduce the burden on tribunals and the Home Office. It may be trite but it is true that efficiency is much of the answer. I hope noble Lords will be sympathetic to my proposal to reduce it still more, and take us further on the journey that the Government have led us on with regard to the period when there must be an automatic judicial oversight of each individual’s position.

[Lord Rosser (Lab)]

In the Commons last night, the government Minister confirmed that the Government accepted that there should be judicial oversight of administrative immigration detention, and that was why they had previously tabled a Motion, the effect of which would be that individuals would automatically be referred to the tribunal for a bail hearing six months after their detention began, or, if the tribunal had already considered whether to release the person within the first six months, six months after that consideration.

That amendment was not accepted in this House, which again carried a Motion providing for a 28-day period of administrative immigration detention, after which the Secretary of State could apply to extend detention in exceptional circumstances. The Commons has again rejected the amendment from this House and has instead passed a government amendment reducing the timing of an automatic bail referral from six to four months, since, apparently, the vast majority of persons are detained for less than four months. Will the Government confirm that that bail hearing after four months of detention will be automatic and will not depend on the individual in detention having to initiate the application?

This is an issue which this House has already sent back to the Commons twice. Consideration obviously has to be given to the role of this unelected House in the legislative process as a revising Chamber, inviting the Commons to think again in a situation where the elected Commons and the Government have made some movement—albeit not enough to meet the views of this House—on the length of administrative immigration detention without automatic judicial oversight.

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[Baroness Hamwee]

My Lords, I support the noble Baroness, Lady Lister, although I would say to her that there are rules about transporting animals.

In the Commons, as the noble Baroness said, the Minister referred to—and indeed relied on—the guidance providing for “very exceptional circumstances” to meet expectations. However, guidance can of course be changed much more easily than primary legislation, and it is easier not to follow. I share the concern of the noble Baroness that the legislation must not weaken the process.

I was also puzzled to read in the government amendment that the person who authorises the detention —I shall come back to that—must have regard to the woman’s welfare, not, as the Minister said last night at column 486 of Hansard, “due regard”. As we have heard, the current equivalent guidance is not effective enough and I do not see that there will be any impact from putting pregnant women into a separate category within the guidance. I agree with the point made by David Burrowes and the noble Baroness about Amendments (a) and (b), rather than (a) or (b). I, too, had two points of concern about interpretation. The noble Baroness has referred to the phrase “apart from this section”. I read this as applying to the person with the power to authorise, but I do not know what,

“a person who, apart from this section”,

means. I hope the Minister can help me.

The other question concerns the term “shortly” in paragraph (a) of Amendment 85E. The Secretary of State needs to be satisfied that,

“the woman will shortly be removed from the United Kingdom”.

In this House we are accustomed to the term “shortly”. It is something of an Alice in Wonderland term: it means what it is meant to mean on the occasion when it is mentioned. Will the Minister help us by providing greater precision?

[Lord Winston (Lab)]

My Lords, I shall detail the House only briefly. I am most concerned about this issue. I fear that the Government have completely overlooked a very important point. You are not just detaining a pregnant woman, you are detaining the foetus inside that pregnant woman. The effect on that foetus is something about which science is increasingly concerned. The recent science of epigenetics tells us clearly that the foetus at certain stages during pregnancy is extremely vulnerable to the environment of the mother. Indeed, I have been involved in this area of research at Imperial College, and I shall refer briefly to research going on not only at Imperial but at the University of Singapore, which I shall visit later this week, and McGill University in Canada, among other places.

It turns out that at a certain stage in pregnancy, if a woman’s stress hormones, particularly cortisol, are raised, the effect on the foetus may be profound. Working after the ice storm in Ontario some years ago, Michael Meaney undertook cognitive tests on infants aged five, who had effectively been interned within their own houses because of the darkness and lack of electricity over a period of time. He found significant cognitive impairment. There is also some evidence that after massive stress to the mother, some children may behave aberrantly when they grow up —particularly, for example, being more aggressive.

Unfortunately, at this stage the science is not absolutely clear but there is a massive amount of evidence from work on rodents and some other animals. The evidence from human work is increasingly that certain stages of pregnancy—for example, once the foetus is identifiable in the uterus, usually at around 22 to 26 weeks—are a particularly vulnerable time. That is when stressing a woman may have a severely adverse effect.

For that reason, the Government need to recognise that they may be responsible for a heritable effect on that child and possibly even on the grandchildren of the mother. Until that is firmly worked out, I beg the Government to consider that internment, if it must be done at all, must be done only under the most serious circumstances. We cannot go back for women who have previously been detained in prison and other places, but in future we must make sure that we make law which is humane and amendable, so that we cause the minimum amount of damage to future generations.

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[Lord Keen of Elie]

With respect, the noble Lord makes my point for me. It is questionable whether there is any distinction to be drawn between exceptional, properly understood, and very exceptional or most exceptional. That is what lies behind the manner in which this provision has been drafted. Nevertheless, to dispel doubt in the minds of others, it has been said in the guidance that, as a matter of policy, the term “very exceptional” may be applied when approaching the application of this provision to the detention of pregnant women.

[Baroness Hamwee]

My Lords, with the leave of the House, I wish to pursue this issue. There must be a difference, otherwise it would not be necessary to use the word or the distinct phrases. Are the Government not in danger of falling foul of their own legislation by applying guidance that is different from the legislation?

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[Lord Keen of Elie]

I had rather summed up, but I can say to the noble Lord, Lord Winston, that of course there are elements in the journey of such a person that will cause stress. Detention may be a factor in that but, in the round, we have to come to a reasoned conclusion as to how we deal with unlawful entry into the United Kingdom.

[Baroness Hamwee]

Can I make the Minister an offer? He is obviously as uncomfortable as I am with the drafting of this clause. Can we find a way in which to get it to mean what—whether we like it or not—he is telling us that we ought to understand it to mean early in the next Session? Let us tack it on to something that will come to us fairly shortly.

[Lord Keen of Elie]

With respect to the noble Baroness, “It means what I say—it does not say what I mean” may be her line, but that is one that we shall take into consideration.

Refugees: Unaccompanied Children

Baroness Hamwee Excerpts

Tuesday 10th May 2016 Lords Chamber

[Lord Keen of Elie]

I can give no such assurance. The position of these children when they reach the age of 18 will be assessed and their right to remain will be determined by reference to the country from which they arrived and also by reference to whether it is fair, reasonable and safe for them to return.

[Baroness Hamwee (LD)]

Are the Government in communication with the Government of Canada, who are working with civil society? For instance, Canada has a private sponsorship of refugees programme, whereby sponsors can provide financial and emotional support for a period—usually a year—and the joint assistance programme, partnering with organisations to resettle refugees with special needs.

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

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”.

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[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.

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[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.

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[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

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.

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[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.

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[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

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?

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[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.

--- Later in debate ---

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.

--- Later in debate ---

[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.