Immigration Bill
Baroness Hamwee Excerpts(10 years, 6 months ago)
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Lord Avebury (LD)
My Lords, the Immigration Law Practitioners’ Association has pointed out that this is a meaningless amendment because a tribunal would not be able to consider a matter that was not within its jurisdiction in any case. It is disappointing that the Government have not noticeably reflected, as my noble and learned friend assured me they would, on the alternative suggestions made by my noble friend Lady Berridge, on this clause, and supported by several noble and learned Lords, to give effect to the recommendations of the Joint Committee on Human Rights in its eighth report. Your Lordships were almost unanimous in condemning a proposal to allow one of the parties to an appeal to instruct the tribunal on what matters it can or cannot consider.
My noble and learned friend the Minister did not challenge the assertion that the tribunal had not allowed abuse of its own process in the past or had treated the Secretary of State unfairly, or that the existing process was inefficient. There was no suggestion on Report that the Government had raised any concern in the past over this alleged problem, but if we concede that there might have been cases in which a new matter—which is only to be defined in guidance, as we heard—was raised, that still does not mean that your Lordships should agree to grant this sweeping power to allow the respondent to veto the consideration of the new matter, even when the reason for its last minute appearance was the difficulty in getting hold of the presenting officer, as in one of the cogent examples given by my noble friend in introducing her amendments. In such cases the presenting officer who may have been unable to get instructions from senior counsel overnight can ask for an adjournment. My noble and learned friend did not say that he knew of any instance when such a request had been refused.
My noble friend said that she thought satellite judicial review went against what the Government were seeking to achieve, but that would still be the only way of challenging a decision by the Secretary of State to prohibit the use of a proposed new matter, after the amendment that is now before us. I asked my noble and learned friend whether the Government had made any estimate of the number of judicial review cases likely to be heard as a result of this provision and what would be the estimated reduction in the savings expected from it. I received no answer. I certainly agree with the suggestion made by my noble friend just now that a record should be kept of such cases.
The main reason why the Government insist that the Secretary of State should have this power seems to be, as we have heard, that she is the primary decision-maker of right on these applications rather than the late arrival of new matters, some of which is due to the inaccessibility of the Home Office. Nobody argues with that in principle, although my noble friend Lady Berridge pointed out that the Secretary of State had, in effect, voluntarily abdicated that role by allowing officials to make such a large number of wrongful decisions at first instance.
Even if that problem is solved, there remains a serious objection to what the Government propose. The fundamental principle of the rule of law is the right to a fair trial. In his wonderful book, The Rule of Law, the late noble and learned Lord Bingham emphasised that the right applies to,
“adjudicative procedures of a hybrid kind … proceedings in which one or more parties may suffer serious consequences if an adverse decision is made”.
He goes on to mention a recent case in the Supreme Court in Canada, where the Chief Justice, delivering the unanimous judgment of the court, said that,
“a fair hearing requires that the affected person be informed of the case against him … and be permitted to respond to that case. This right is well established in immigration law”.
Thus, if the applicant is denied the right to present what may be a crucial piece of evidence, he is denied the right to a fair trial. That right trumps the Secretary of State’s right to be the primary decider. This amendment, leaving Clause 15 effectively untouched, does not cover the mischief dealt with so effectively by my noble friend Lady Berridge.
Baroness Hamwee (LD)
My Lords, my noble and learned friend responded extremely speedily to my bank holiday inquiry, and I am grateful to him for that. The points about whether consent should be required for the tribunal to consider a new matter have been covered quite thoroughly, but I would like to mention the question of guidance. I was curious that this is guidance, because it must be guidance by the Home Office, and therefore the Home Secretary, to the Home Secretary. I would have understood had it been called a code of practice. The title does not really matter: it is the content. I wonder whether there is any distinction between the two.
Having seen the letter to the noble Baroness of 29 April, it seems to me that the way the guidance is described comes quite close to the exercise of discretion. I am aware that I have not put a question mark at the end of any of that, but I felt that I wanted to make those points.
Lord Woolf (CB)
My Lords, may I be forgiven if, despite my discourtesy in not being here earlier, I say a few words on this matter? It is very important, not only for the principles that noble Lords have clearly expressed already, but purely from a practical point. I urge the Government to think again about this, based on the experience of dealing with immigration cases for the majority of my career in the legal profession. The repeated use of the justice system to obtain delay was always a problem. I understand the motivation of the Government all too well, but that does not justify the departure from principle about which we have heard.
However, this is the point that I am most anxious to make. In reality, if the first tribunal before whom this matter is happening does not have the power to say what the procedure will be, that will create a lacuna which will be exploited more and more frequently by those who realise that they just need to make a new point and the Government’s representative will have to ask for adjournments so that he or she can take instructions on what action to take. Not only is this wrong in principle, it will create an undesirable position. Although it is not intended, it will undermine the status of those who adjudicate on these matters. More and more immigration matters are now being dealt with outside the High Court, so we should not be undermining that status but supporting it.
I urge the Government to take this away again. I do not think that they have met either the problems of principle that were raised on the last occasion that this was discussed or, more importantly perhaps, the practicalities of sitting on a tribunal and having to deal with applications. As an adjudicator, if you are in doubt about the right course to take, of course you can always adjourn. Most legal systems are plagued by unnecessary adjournments. In my view, what the Government are creating here is unnecessary scope for adjournments. Even if there is just the ability to make applications—you can never stop them—they will result in adjournments, which I would have thought is the last thing the Home Office wants.
Baroness Hamwee
My Lords, with the leave of the House—I know that it is unusual to speak at this stage—I promised my noble friends that I would say something at the appropriate point. It will have been an open secret to your Lordships that a number of us on the Liberal Democrat Benches have found these issues particularly difficult. The negotiations within our little group were sometimes quite difficult, because these are difficult issues.
I am sure that in the next Session we will tax my noble friend the Minister with matters that are mostly outside the scope of the Bill but which some of my noble friends showed considerable ingenuity in raising. I thank the Minister personally for his generosity, including extraordinary generosity with his time and his patience.
Immigration Bill
Baroness Hamwee Excerpts(10 years, 7 months ago)
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Baroness Hamwee (LD)
My Lords, I too applaud the determination of those who have brought this matter before the House again. Having seen that the Government were trialling an advocacy support arrangement across a number of different—and, in some cases, clearly obvious—authorities, I tried to find details on the Home Office website. I could not. Nor could I find anything on any of the local authority websites that I tried. However, if I am right in thinking that the trial follows on from the recently concluded draft regulations on care for unaccompanied and trafficked children, and that the provisions to be trialled reflect what is said in that consultation, I must say that I was disappointed in the lack of robustness in what I read there.
There is comparatively greater robustness in the amendment. The consultation said that the local authority should facilitate access to independent advocacy support where required. I note that the amendment requires the appointment of a guardian with defined responsibilities. The noble and learned Baroness has talked about the powers that go with those responsibilities. I am not sure that they are as explicit in the amendment as I would like, but they are implied. She clearly distinguishes between the social worker support and guardianship. I am aware that the pre-legislative scrutiny committee took evidence on this.
I ask the Minister to describe what is to be trialled—starting, I believe, in July—and also whether he can point noble Lords to where we can read more about this. I am concerned about the timing and how this will fit in with the proposed modern slavery Bill. I understand that the trials will run for a period of six months from July. There will then, quite rightly, be an evaluation. Perhaps the Minister can tell us who will do the evaluation. This is not intended to be an attack on the Minister in any way, but I do not think that the Home Office is necessarily the best department to evaluate this; it is really a cross-departmental matter. The evaluation must be considered and discussed with local authorities and a wide range of agencies. How long will that take? If the evaluation comes to the conclusion that there should be guardianship, will the modern slavery Bill include enabling provisions that will allow this to be fleshed out in regulations? How will this provision actually be achieved, given that the exercises that I have talked about must take us very close to May of next year and the end of the next Session?
The Minister has been extremely generous of his time in discussing the Bill. If this amendment is not accepted—it seems a little impertinent of me to seek to usurp the position of those whose names are attached to it, and I am not doing that—it would be very helpful if, following today, we could unpack the detail of it so that the Government can give a clear indication of where they have concerns, rather than just awaiting the result, as they will evaluate it, of the proposed trial starting in July.
Lord Quirk (CB)
My Lords, although I share some of the misgivings already expressed, including that of the noble Baroness, Lady Howarth, particularly in relation to the role of volunteers in this important matter, I find myself at present very much in support of the amendment. However, I wonder whether I could be given clarification in respect of proposed new subsection (8)(b). Clearly—or at least it seems clear to me—the intention is that the child trafficking guardian ceases to occupy that role if the child ceases to be domiciled in the United Kingdom. The subsection says something much fuzzier and possibly open to mischievous interpretation with its wording,
“if … the child leaves the United Kingdom”.
Perhaps in responding to others who will be asking questions for clarification, the proposers could take that small point on board.
Baroness O'Loan (CB)
My Lords, I spoke on the first day in Committee but was unable to attend on the day this clause was discussed, as I was recovering from surgery. Nevertheless, as a member of the Joint Committee on Human Rights, I have put my name to these amendments because it is profoundly important that the Bill which comes to be enacted following your Lordships’ deliberations takes into account the issues which arise. As the noble Baroness, Lady Lister, has said, this would most effectively be done through the amendment of the noble Lord, Lord Pannick.
The outstanding issues have been graphically illustrated by the noble Baroness, Lady Lister, but I will refer very briefly to them. The Government have so far declined to provide any indication of the number of people whose citizenship was taken away from them while they were abroad, on the basis that they are all cases in which the information on which the Secretary of State relied was information which should not be made public. The Government say that they are “unable” to put the numbers into the public domain,
“for reasons of national security and operational effectiveness”.
However, I do not believe that the release of this number, or of many other numbers, will in any way impact on national security.
The Government also indicated in their response that it is anticipated that the new power will usually, and possibly always, be exercised on the basis of closed material. As noble Lords will recall, this is not a procedure which has commended itself to many and is one which carries with it the risk of unfairness. The Joint Committee remains concerned that exercising the power,
“in relation to naturalised British citizens while they are abroad … carries a very great risk of breaching the UK’s international obligations to the State who admitted the British citizen to its territory”.
The first two amendments to which I put my name, Amendments 56ZA and 56ZB, therefore seek to ensure United Kingdom compliance with our international obligations and to ensure the adequacy of the safeguards against arbitrariness in decision-making by requiring that, if it is to be done,
“the deprivation of citizenship is a necessary and proportionate response to such conduct”.
The Joint Committee on Human Rights does not accept the Government’s argument that the clause is compatible with its international obligations to countries that have admitted British citizens whose citizenship is subsequently removed.
The Government assert that out-of-country deprivations of citizenship do not engage the European Convention on Human Rights because it does not apply extraterritorially other than in exceptional circumstances. However, the case which they propose as an authority for this view is by no means an authority for the broad proposition that the ECHR is not engaged by an out-of-country deprivation of citizenship that leaves an individual stateless, as the case itself did not concern a deprivation which left the individuals concerned stateless. Moreover, there have been cases involving extraterritorial jurisdiction. I point your Lordships to the East African Asians case, in which the UK was found to have breached the right not to be subjected to “inhuman or degrading treatment” in Article 3 of the ECHR when it removed the right of abode in the UK from British citizens. Were Parliament to enact Clause 60 as drafted, it would be the first measure adopted by the UK in recent years that gave rise directly to an increase in the number of stateless people in the world.
Amendment 56ZC is about retrospectivity. The noble Baroness, Lady Lister, has already made the point that, under current law, a naturalised British citizen who does not also have another nationality is not liable to being deprived of their citizenship. Yet that is what the Government assert. The law says that they cannot be made stateless by deprivation of UK citizenship which has been conferred. The amendment seeks only to ensure that a person could not lose their citizenship as a consequence of actions which they were unaware could result in such loss, particularly since the information and intelligence which will lead to the decision-making will, in most cases, be withheld from them through the closed procedure.
The final amendment is about children. The Government do not consider an amendment such as this necessary to ensure that the best interests of any children affected are treated as a primary consideration. The Government cite the “children duty” in Section 55 of the Borders, Citizenship and Immigration Act 2009 as applying already to the Secretary of State’s decision-making in respect of deprivation decisions. However, as the noble Baroness has already said, the Section 55 duty applies only to children who are in the United Kingdom. It does not apply if the children affected, who may be British citizens, are abroad at the time, as they very well might be when the power is being exercised in relation to an individual who is abroad at the time of deprivation. Amendment 56ZD is very simple. It seeks to extend the duty in Section 55 of the Borders, Citizenship and Immigration Act to children who are outside the UK at the time when the Secretary of State makes the decision affecting them. Can the Minister explain how else such children could be protected?
Baroness Hamwee
My Lords, I have Amendments 57A and 57B in this group and share the concerns that have been expressed about the substance and transparency of the new clause and what the point of it is. In Committee, I asked that question rhetorically. I now ask—I hope it is not a rhetorical question—why we should not use a TPIM, as we have that legislation on the statute book. The conduct of the individuals concerned seems to fall into the same area, and this indeed raises the same issue—that the individual has not been prosecuted. If TPIMs are not to be used, it is bound to raise the suspicion that the power will mainly be exercised when an individual is out of the country.
The charitably funded Bureau of Investigative Journalism has identified 17 cases, mainly through FoI and court records, in 15 of which the individual was overseas at the time of the deprivation under the provisions as we now have them. If these individuals are regarded as such a high risk, I think we can assume that, having lost their status, they would be subject to close surveillance, certainly if they are in this country. If they are overseas, that might raise even wider matters.
I understand from officials—I thank them as well as the Minister—that if an individual, having been made stateless through this procedure, is in the UK, he will have limited leave to remain. I was referred to the relevant Immigration Rules. Under paragraphs 404 and 406, a person who is,
“a danger to the security or public order of the United Kingdom”,
will be refused leave to remain. Can the Minister tell noble Lords whether that person is then disqualified from leave to remain and what happens to him?
I understand from the old UKBA casework instruction on restricted leave that that will apply, and that restrictions and conditions can be imposed, including a residence restriction. Noble Lords will recall concerns about residence restrictions under the old control order regime. One of the concerns about those restrictions was the impact on the family of the individual subject of an order. Can the Minister explain what will happen to the family of an individual if, on the one hand, he is in this country and if, on the other, he is abroad? Does the family qualify for leave to remain in the circumstances of the individual being a danger to security or public order, as I have quoted? I mention all this because the impact on families was a concern about control orders, TPIMs and terrorist asset-freezing. Reporting on that has been a component in reviews, which we have seen, by successive independent reviewers.
The Bureau of Investigative Journalism mentioned to me two examples of the impact on families. One was of a Sudanese-born man who lost his citizenship. The bureau told me that a Home Office official said in evidence in court that the Government waited until he was overseas before removing it. He had taken his wife and four children to Sudan for the summer. That left the children effectively exiled as well. The other example was of a British-born man whose youngest son was born here and who remains a British citizen. He has developmental disorders and is dependent on both his parents. His mother wishes to return to the UK for treatment for the son but she cannot do so without her husband. One does not want to be too hearts and flowers about this. The issue that we are being asked to consider is a tough one, but I think that the issue goes wider than just the individuals involved. I asked the Minister whether individuals and a family might be left without resources and so left destitute. Can he share with the House the Government’s position on that, particularly if the deprivation has been made while the individual is abroad?
Immigration Bill
Baroness Hamwee Excerpts(10 years, 7 months ago)
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Lord Sutherland of Houndwood (CB)
My Lords, in support of the excellent and measured speech of the noble Lord, Lord Hannay, and of the other signatories to this amendment, I offer not a speech but a quotation. It runs as follows:
“One of the biggest categories of ‘immigrants’ is overseas students—176,000 last year, over a third of the total. They are not immigrants but they are defined as such because they are here for more than a year … There has recently been a crackdown on the undoubted abuse of visas by some private colleges but the consequence of tightening the rules has been to drive away bona fide students, especially from India, to the US, Canada and Australia. Universities, and Britain, are poorer as a result”.
These are the words of the member of the Cabinet who runs the department that is responsible for universities: Vince Cable. They are not private; they were in the Evening Standard about two weeks ago. I quote them not to make mischief for the coalition Government, because I believe that the country has benefited from the strength of coalition government, but to say that here at the heart of government, the individual responsible for universities and their impact on this country is clearly at odds with what is happening in legislation today. I think that he is right and that his words bear repeating, which is why I happily support the noble Lord, Lord Hannay, and his colleagues.
Baroness Hamwee (LD)
My Lords, I am particularly pleased to follow a reference to my right honourable friend Vince Cable, who has been very energetic in spelling out the value, if I can put it this way, as an import and as an export, of overseas students. I have been worried, and have said so publicly, about the use of the phrase “the brightest and the best” in immigration policy, but I have to say that I did not read my noble friend Lady Williams of Crosby as wanting to cream off the brightest and the best; I do not think that was where she was going.
As has been said, we have a very good story to tell. We are curiously inept in some parts of the system at telling it. The word “perception” has been used, rightly, by a number of noble Lords. We should not get stuck on the overall immigration numbers without disaggregation, but I do not want to repeat all the arguments that I and other noble Lords have made.
I have just a couple of comments on this. I doubt that many people, even in this building, know that the Budget added to the funding of the Education is GREAT campaign, which seeks to attract international students to the UK, and that the number of Chevening scholarships supporting students from developing countries who come here to study is being tripled. I will let those two facts speak for themselves, and I hope they will add a little to the perception.
On tenancies I am very much with the noble Lord, Lord Hannay, and others. I want to make use of this Report stage to come back to some rather focused questions on those amendments.
As I understand it, the health levy or surcharge really is an integral part of the Bill. As the Minister will remind us, in absolute terms it is competitive, and I say that it is very good value insurance. Some anomalies and issues need to be followed up, and others have drawn attention to these. I am reassured by the fact that secondary legislation will, I hope, deal with the detail.
I welcome the student tenancy amendments which my noble friend the Minister proposes but, if I may, I will seek a little more assurance. I was concerned about the numbers and types of properties that students use as accommodation. Given the time, I will try to summarise on the hoof the understanding I have gained from Universities UK. I hope that noble Lords will forgive me. It is important to say that about a quarter of international students are likely to still be living in accommodation which is not within the categories specifically defined so far. The Minister has been very generous with his time in meetings and in correspondence, and he foreshadowed the amendment to the halls of residence test at the previous stage. I would have liked to have seen an exemption which focused on the people—the students—rather than on the property.
I am concerned about the term “nominated”, as are other noble Lords. I hope that my noble friend might be able to say that, although this term is used rather differently in other contexts, here it really amounts to “accredited”. I am sure that the Minister will spell out in his reply that there will be guidance, and there will be consultation on the guidance. Perhaps he might also state that, as well as the accommodation owned by a relevant institution, the halls of residence and the nomination for what we might understand to be a private tenancy, where a landlord is approached by a student and none of those three situations is in place, the landlord can in effect obtain the nomination from the university and come within that exemption.
I, too, am concerned about postgraduates and doctoral students, and I looked at the definitions brought into the Bill from the Local Government Finance Act 2012. I hope that my noble friend will be able to confirm that postgraduates and doctoral students fall within the definitions in that legislation. I hope he may also be able to set out the balance between studying and teaching within the work done by, let us say, a postgraduate student, many of whom also teach, that the Government will expect to see in order for the exemption to apply. I assume that research is regarded as study.
I hope—well, I assume—that the relevant orders following from the Bill will be made by the Home Secretary, because many Secretaries of State come within this whole picture. I have probably taken enough time, and the Minister is aware of my concerns. He looked slightly puzzled at my last comment, but I was thinking of the Secretary of State for Communities and Local Government, who makes the order about who is a student. It is a bit of a jigsaw.
The Earl of Sandwich (CB)
My Lords, I sense that the House wishes to come to a decision, so I shall be extremely brief in making a couple of points. The noble Lord, Lord Cormack, is always so reassuring and we think that he is going to bridge the gap which exists between the proponents of the amendment and the Government, but I fear that this is not the case. This is a serious disagreement.
I shall speak mainly about higher educational institutions in the widest sense. The noble Baroness, Lady Williams, said that she was concerned about the welcome that we are giving to students—the noble Baroness, Lady Warwick, reiterated that. We used to talk about a climate of disbelief in the Home Office a few years ago; now, I think that there is a climate of frustration, interference with and even prejudice against what I might call the lower order of colleges of education and those which are capable of offering places to bogus students, who have rightly to be returned. I am very concerned about the climate in this society that we have.
That gives me, however, an opportunity to say that the Home Office recognises its mistakes. It can correct its mistakes. I had an example only last week where a college in south London with five years of trusted sponsor status, which I have visited, was quite unfairly threatened with the loss of its licence through an association with one of these lower orders of bogus college. It recognised the mistake in the end, but I want to put over that it is a tough environment out there at the moment if you are one of those colleges. Many immigration officers are being put in positions of making educational decisions. I support the amendment; I hope that my noble friend will move it to a Division. The remarks of my noble friend Lord Sutherland were very timely, because this is after all a disagreement within the coalition. It was very welcome to hear the voice of Vince Cable. I am sure that he agrees, as does the noble Lord, Lord Hodgson, that the disaggregation of numbers, although it is not the subject of this amendment, has become almost a separate issue which we should come back to.
Immigration Bill
Baroness Hamwee Excerpts(10 years, 7 months ago)
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Baroness Hamwee
“( ) Before implementing a pilot scheme to preclude the making of a residential tenancy agreement to which a person disqualified as a result of immigration status is party, the Secretary of State shall—
(a) consult such persons as she considers appropriate as to the criteria to be applied in order to assess and evaluate the scheme;(b) lay before Parliament a report on the proposed criteria.( ) The criteria shall include the application of an equalities impact assessment.”
Baroness Hamwee (LD)
My Lords, this is the first amendment in a group also containing Amendment 25 tabled in the name of the noble Baroness, Lady Smith, along with several other amendments in her name. It is clear that there is widespread agreement that the provisions dealing with residential tenancies proposed in the Bill are complicated and risky—complicated in their operation and risky in the scope there may be for discrimination. However, I do not need to re-rehearse our previous debates today.
The Government have been very clear that—I am using a term that I hope will carry less baggage than some—the scheme will be tried out and tested in a single area from October this year, that formal evaluation will be produced, and that decisions on implementation more generally will be taken in the next Parliament on the basis of the evaluation via a negative resolution order. I have used pretty much word for word the language of my noble friend Lord Taylor in Committee on 10 March, which noble Lords can read in Hansard. Because I accept all that he said, I have therefore chosen to build on it.
It will be entirely obvious to the Minister what assurances I am seeking in my amendment: consultation as to the criteria to be applied to assess and evaluate the scheme. I acknowledge that I have of course pre-empted that consultation by reference to an equalities impact assessment. We can all think of a number of criteria, but we can also think of large numbers of organisations and individuals with expertise in the field who could helpfully have an input into the construction of the evaluation programme, and they should have an input. So my amendment proposes that,
“the Secretary of State shall … consult such persons as she considers appropriate”.
That is not a get-out because it is a well understood formula. I should say in parenthesis that I am glad that I have been allowed to say “she” of the Secretary of State and not “they”, which I understand is a new form of drafting that was imposed on me last week. The amendment would then require a report on the proposed criteria to be laid before Parliament, thus, if you like, hedging with precautions in advance. That is what the amendment is about. I hope that the Minister can reassure me that such arrangements as I have included in my amendment or others that are equally as reliable and transparent will be made. My amendment refers to a pilot scheme. I do not use the language of “phasing” or “rolling out” because I do not accept the implication inherent in those terms whereby, after the first application, further operation is unstoppable and that first application is to be in a single area.
I have two major concerns about the amendment of the noble Baroness, Lady Smith. It mentions,
“one or more pilot schemes”.
There could, therefore, be more than one pilot to start with, and we know that in the Commons the proposal similar to that made by those on the noble Baroness’s Benches would apply to a London borough, a local authority and a county in each of England, Scotland and Northern Ireland. Alternatively, it could mean successive pilot schemes, which is rather close to a rollout. I realised this morning that it is ironic that I am more sceptical about this than the Opposition Benches.
My second concern is that the detail of that pilot or pilots would be in secondary legislation because the noble Baroness’s amendments take out all the other clauses dealing with residential tenancies. Therefore, secondary legislation would have to deal with every aspect, every component and—importantly—every exclusion from the scheme. The legislation would have to come to Parliament in the context of a negative resolution order. There would be far less opportunity than we have had in successive stages of primary legislation to scrutinise the detail. In addition—this is a fundamental distinction—we have been able to discuss and arrive at changes, which is not something that one can readily do, if at all, with secondary legislation.
Therefore, a single pilot process—with codes of practice and exclusions, for example, for hostels, refuges and much other accommodation, including student accommodation—is a far less risky route. I am not given to quoting Members of the other House but my honourable friend the Member for Cambridge got it right when he said that if pilots were imposed on more than one area, if they went wrong, they would go wrong in more than one area. I beg to move.
Lord Rosser (Lab)
My Lords, I should like to speak to Amendment 25 and to our other amendments in the group that are consequential.
Before I proceed, the comment that I should like to make to the noble Baroness, Lady Hamwee, is that if, under the terms of our amendment, the Government got it wrong over the pilot, their chances of getting a further extension of their scheme—bearing in mind that we have called for primary legislation if that were the case—would of course be extremely remote. That would be an incentive for a Government who wanted to see their scheme extended to get the pilot right and to get it fair. For that reason, the noble Baroness’s objections to our amendments are, to put it mildly, a bit thin.
This debate relates to the part of the Bill on which we spent the most time in Committee, because many noble Lords had questions about how the provisions would work in practice. However, despite the time spent debating the Government’s proposals, a great many of the questions remained unanswered. We agree with the principle of making it more difficult for illegal migrants to rent property. In Committee, we proposed a new clause seeking to put in place a pilot to be undertaken before the provisions could be put fully into effect.
We have now tabled amendments that would remove the entire chapter and replace it with a power for the Secretary of State to undertake a pilot along the same lines. If the pilot is successful, the Government could then come back to primary legislation to implement it fully. Given the substantial number of concerns that have been raised about the detail of this part of the Bill, and the need to ensure that it works well and receives proper parliamentary scrutiny, this is an eminently reasonable proposition.
A range of organisations have expressed serious concerns about the impact of the proposals on landlords and residential tenancies. The vast majority of landlords—82%—do not support the proposals, according to a survey by the Residential Landlords Association. Giving evidence in the Commons, the chairman of the National Landlords Association said:
“It is going to impose an administrative burden on landlords who are not experts in immigration … The principle of checking identity is not so much the worry as the logistics of how that is done and understanding the documentation”.
In the same evidence session, the policy director of the Residential Landlords Association said that,
“we think that the Bill and its provisions are not workable and will not be effective in achieving the objectives set out”.—[Official Report, Commons, Immigration Bill Committee, 29/10/13; col. 43.]
Of course, one of the key concerns is whether these measures will be workable. The Government have published a draft code of practice for landlords. We asked a number of questions about this in Committee, including: who will be included in the provisions? How will tenants who have never rented out a property know about their obligations in relation to subletting? How will landlords familiarise themselves with, understand and recognise all the potentially relevant documentation?
We also asked questions about enforcement, including: how will it be established that a landlord had acted in breach of their duty? How will the fine be collected? Will provision be made for landlords who repeatedly break the law? Will Home Office staff become overwhelmed as a result of landlords using the telephone notification to the Home Office that they have conformed to the requirements in the Bill as a form of shield?
The Government’s replies on these points were, for the most part, very general and not very helpful. For example, on enforcement, it was stated that the provisions would be enforced,
“as part of the normal business of enforcing immigration law”,—[Official Report, 10/3/14; col. 1653.]
that they would be applied on a “light-touch basis”, and that the Government would be relying on landlords or agents to give evidence that they have complied with the prescribed requirements.
One thing we asked for in the light of these concerns was for the code of practice to receive greater scrutiny, and we are pleased that the Government have listened and require the code to be laid before Parliament and be made by order, but they should have gone further and at least made it subject to the affirmative procedure. We are also pleased by the Government’s commitment that the code will be ready before the first phase of the rollout begins.
A further concern, which we also heard about in Committee from many noble Lords, relates to the impact on vulnerable citizens, including victims of domestic violence, those with chaotic lifestyles, and pregnant women. We know that landlords already avoid renting to groups they perceive as higher risk, and given the difficulty in identifying documents and the potential liability for landlords, it is likely that landlords will want to be on the safe side and ask for a passport in every case, but many vulnerable people do not have a passport.
On this, again, the Minister’s answers were not particularly helpful. He said that the Bill provides,
“discretionary powers for the Secretary of State to authorise a tenant who has no lawful status to rent property”.—[Official Report, 12/3/14; col. 1798.]
How will that work in practice? There is a real danger that people, vulnerable people in particular, will either become homeless or be driven into the hands of unscrupulous landlords.
There is also widespread concern about the potential discriminatory nature of the proposals. These concerns have been expressed by a number of organisations, including Shelter, Liberty and the Catholic Church. We also heard them expressed in Committee. Again, we are pleased that the Government have listened and that the code of practice in relation to discrimination will receive greater scrutiny.
Baroness Hamwee
My Lords, I was never going to persuade my noble friend not to use the words “phased” or “rollout”, but it is the substance rather than the language that matters, I think.
Like the Minister, I hope that the noble Lord, Lord Rosser, was not suggesting that the Government do not have an incentive to get this right. The noble Lord referred in his speech consistently to a pilot, but his amendment still talks about a pilot or pilots in the plural. As I said, one can read that as meaning either consecutive or concurrent—or possibly even both. Much of what the noble Lord said seemed to me to be an argument for what the Government are proposing, but I will thank him for one thing, because I am not normally called thin, so I am grateful for that. The matters for evaluation, to which two noble Baronesses have referred, are extremely important, and I was glad to hear the comments about them.
I do not want to take longer than another sentence or two, but I would say that the account given by the noble Lord, Lord Best, is the best evidence that I could have heard that the procedure that I seek is the one that will actually be followed, given the assurances from the Minister. I would say to noble Lords that I did not know that a formal consultative panel was to be proposed, and I am very glad to hear it. I beg leave to withdraw the amendment.
Baroness Hamwee (LD)
My Lords, I appreciate that the charging arrangements are not ones for this Bill. I simply want to say that many of the concerns voiced by the noble Baroness are ones that we share. We had amendments on issues around this at the previous stage, and we look forward to discussing how arrangements brought in by the Department of Health will be implemented. However, I realise that that is a matter for another day.
Baroness Williams of Crosby (LD)
My Lords, I very much hope that the Minister will have a deep discussion with his colleague, the noble Earl, Lord Howe, from the Department of Health, not necessarily about every single word of this quite lengthy amendment but about the general questions that it raises. I have in my hand a letter from the president of the Royal College of Physicians, Sir Richard Thompson, which was not one of those colleges mentioned by the noble Baroness, Lady Masham, but which raises serious questions about the public health implications unless we can look very carefully at them in the short while before Third Reading.
I think the noble Baroness, Lady Jay, who has played a crucial role in the whole area of sexual diseases, particularly AIDS, would bear out the argument made by Sir Richard. The major point he makes, and it is a very important one, is that there is considerable evidence that people who are invited to clinics, particularly the Doctors of the World Clinic in east London, to be tested for very dangerous and infectious diseases such as AIDS and drug-resistant tuberculosis—which is growing rapidly and now becoming a significant international threat to the good health even of people in relatively healthy countries such as our own—will see even relatively limited financial barriers as reasons not to attend. One of the prime difficulties is that when somebody attends a primary care facility, which is still generally available, or an A&E clinic and is referred on for testing to a hospital or another A&E clinic the real danger is that they will find this a reason not to attend. One has to accept that many people do not want to know what may be wrong with them. They are frightened of learning the results so any kind of hindrance is used as an excuse for not going.
The House will know, because it has had many discussions on infectious diseases and among its Members contains many experts in the field, the lethal consequences of people with AIDS or drug-resistant tuberculosis moving among the community where they live without being aware of the very serious, often lethal, consequences of passing on that infection. Sir Richard points out in his letter to me that one experience of that east London clinic is precisely that. There is a very rapid multiplying consequence of people not knowing what they have or knowing it and continuing to act as if they do not have to be treated. I simply plead with the House, from a non-partisan point of view, to look very closely at this amendment and consider what can best be done about it, in the interests of every citizen of this country and overseas visitors, to ensure that every possible step will be taken to ensure that highly infectious diseases are not passed on to innocent passers-by, friends or members of the family.
Lord Rosser
I am disappointed by the Minister’s reply. In Committee, he said that,
“more should be done to tackle these types of unfair recruitment practices. Ministers will actively consider how best to protect British workers from this type of discrimination and we will seek to bring forward proposals shortly”.—[Official Report, 17/3/14; col. 19.]
We do not seem to have made any progress at all. The Minister is clearly not prepared to pick up what was inherent in my suggestion: that I would be happy to withdraw my amendment if he gave a commitment to come back with the Government’s own amendment at Third Reading.
Baroness Hamwee
I appreciate that I have not spoken in this debate but colleagues around me are confirming what I heard, which was that the Minister told us—for my part, I rather fear it—that we might hear shortly from the Government. Never in the years I have been in this House have I known “shortly” to be as short as a week or two. I have been listening carefully and I understand the problem, which everyone who has spoken on this has acknowledged. I wonder whether to have come back at this stage or be prepared to come back within a couple of sitting days, as it would be at Third Reading, would do justice to the severity of the problem that has been articulated.
The Earl of Listowel (CB)
My Lords, I cannot resist speaking on this because I so admire what the Government are doing in encouraging people in this country into work: the work of the noble Lord, Lord Freud, and the Secretary of State on the introduction of universal credit. We may have concerns about the details of this policy but I think we all recognise that it is vital to encourage people off benefit and into work wherever possible.
I have a very long-standing acquaintance who, unfortunately, has mental health problems. I know him very well indeed. Thanks to the fact that he is taking benefit, he is obliged to work in a charity shop for half a day, four days a week. While this is very much against his wishes, he is being obliged to have contact with other human beings, which, I think, is a way to his recovery. I have to reflect on how deeply demoralising it must be for these people not to be allowed to work and what the consequences may be for their children to have their parents becoming depressed because they have nothing useful to do in their lives.
I hesitate to come in without being better informed about this particular debate, but I have a great deal of sympathy with what the noble Lord, Lord Roberts, and other speakers have said, and I hope the Minister may be able to offer some comfort to them.
Baroness Hamwee
My Lords, in answer to the noble Earl, Lord Sandwich, we need prophets and optimists, and I am glad that we have at least one.
I very much support what my noble friend has been urging us so consistently to do: for reasons of integration; for individuals to keep up skills and be able to practise their English in the context of work; and, of course, for the financial reasons that the noble Baroness has dealt with. Most of all, work is valuable for self-respect and mental health. I do not put the two situations on a par with one another but clearly we all value working: there are a lot of noble Lords in the Chamber this afternoon, and who have been in this building, who could probably have been taking advantage of what I understand has been quite nice weather outside but have chosen to spend the day working.
Lord Hussain (LD)
My Lords, when the Government brought in this law, withdrawing the right of asylum seekers who have been here for more than six months to work, I do not know what they intended to achieve, or what they have achieved so far by having that law. It does not prevent any people coming into the country. It is not an immigration issue at all. We are talking about people who are already in this country, asylum seekers whose applications are being dealt with. Through no fault of their own, their applications are taking longer than six months. We are still saying that they should not be able to work.
This law drives people into deep poverty. They are more vulnerable to exploitation. They should have a right to work, like everyone else, and they should be able to feel proud that they are not living on handouts but working for their families. This is one good thing that the children can be proud of as well. Therefore, the amendment moved by my noble friend Lord Roberts should be supported. I support it. I hope that the Minister will look into this and be sympathetic to the cause of the asylum seekers.
Immigration Bill
Baroness Hamwee Excerpts(10 years, 7 months ago)
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Lord Judd (Lab)
My Lords, I know that my noble friend is anxious to speak on the Government’s amendment so I will leave the main argument to him.
In May 2010, the Government did indeed commit to ending the immigration detention of children. There was a widespread, positive response to this change—and there have been some improvements. Fewer children are detained, and when they are it is for shorter periods. This must be recognised. The Government’s amendments would create a legislative basis for some of these improvements, for example by setting a time limit on child detention in law. However, it is very disappointing that the Government’s amendments do not prohibit or even properly limit child detention. They do not state that detention should be a last resort, as is the current policy, or that detention should be for the shortest possible time. I fear that, in practice, it may become normal for children to be detained for the maximum permissible period, where this is administratively convenient. Amendment 8 seeks to address this concern.
Bail for Immigration Detainees, to which I am sure many of us are grateful for its experience and for what it has shared with us in its helpful briefing, produced Fractured Childhoods, a report on the cases of 111 parents who were separated from 200 children by immigration detention. Children lost weight, had nightmares and suffered from insomnia during their parents’ detention. In 2010, BID dealt with a family whose members were separated for removal. The father was detained when reporting and the mother and young children were asked to make their way to the airport to leave the UK with him the following week. The family had previously complied with the Home Office and reported regularly, as required. Following the father’s arrest, the family did not have access to financial support and the mother was unable to buy food for her children, including milk for her baby. The mother did not speak English and her very distressed eldest child had to translate when an immigration officer telephoned the family. Her younger child began waking up in the night, crying hysterically. The mother was not offered any practical or financial assistance to travel across the UK to an airport, with several young children, for an early-morning flight.
New Section 78A(2)(b) under Clause 2 states that,
“a relevant parent or carer may not be removed from or required to leave the United Kingdom if, as a result, no relevant parent or carer would remain in the United Kingdom”.
This clause envisages that one parent may be split from a two-parent family and forcibly removed from the UK. It also allows that single parents may be removed without children as long as there is a relevant carer remaining with the child.
In many cases, children are likely to be seriously damaged by such separation. In Committee, the noble and learned Lord, Lord Wallace of Tankerness, stated that the separations would occur,
“in exceptional circumstances … for example, where there is a public protection concern or a risk to national security”.—[Official Report, 3/3/14; col. 1125.]
However, the clause does not state that any specific circumstances are needed to justify separation. Amendment 5 would address this concern by providing that families must be separated only where necessary for child protection.
The noble and learned Lord, Lord Wallace, also stated in Committee that families may be split where the presence of one parent,
“was not conducive to the public good”.—[Official Report, 3/3/14; col. 1133.]
This appears to refer to cases where parents have committed criminal offences. However, the fact that a parent has committed, for example, a false document offence is surely not of itself a sufficient reason to deport or remove them without their children.
Clauses 2 and 3 define family returns cases and limit the definition of a “relevant parent or carer” to somebody who is,
“living in a household in the United Kingdom with the child”.
The child may be seriously affected if a parent who is not living in their household is removed and, indeed, may need to leave the UK with them. For example, single parents who are in prison or immigration detention are not living in a household with their child. Furthermore, there will be cases where children living in households with other family members—for example, for financial reasons—would be very seriously affected if their parent were removed from the United Kingdom. Amendments 4 and 6 would remove the requirement for parents to be living in a household with their children in order to take part in the family returns process and would safeguard the welfare of children in the sort of situations I have described.
Current Home Office policy states that unaccompanied children should be detained for removal,
“on the day of the planned removal to enable the child to be properly and safely escorted to their flight and/or to their destination”.
However, Clause 5 would allow for unaccompanied children to be detained overnight for removal, potentially multiple times.
A 28-day period is proposed between families exhausting their appeal rights and enforcement. However, Clause 2(4)(a) states that the removal directions may be set in this period. This would prevent families having a meaningful reflection period. Furthermore, we have to take seriously the evidence that that timeframe is too short for families who have been in the UK for years to consider voluntary return.
Before I finish, I should like to put four specific questions to the Minister. First, why does the Bill not clearly state that child detention should be a last resort for the shortest possible time? Secondly, how will children whose parents are in detention or prison be safeguarded, given that Clause 3 defines a relevant parent or carer as,
“living in a household in the United Kingdom with the child”?
Thirdly, is it not possible that families will be separated on removal in any case where a parent has committed a criminal offence? Does this include cases involving non-violent offences, such as possession of false documents? Fourthly, a 28-day period is proposed between the family exhausting appeal rights and removal. New Section 78A(4)(c) under Clause 2 states that “preparatory action” may be taken in this period. Can the Minister clarify whether this will include detention?
At the outset of our deliberations on Report, perhaps as I put these amendments forward I may be forgiven for saying that we all like to pride ourselves on living in a civilised society. In a civilised society, children and their well-being should at all times be central to our concerns. Indeed, many of our obligations under international conventions and agreements arise from undertakings given by British Governments of both parties. Very often, Governments of both parties were pioneers in the changes and legislation proposed.
Detention can have a serious impact on children, too often irreparably. That can lead to alienation and assist social instability in disturbing ways. It lays people open to manipulation by extremists. That is why, for practical reasons in terms of security not less than anything else, our natural concern for children being at the forefront of all our considerations matters the most. My amendments are intended, transparently, to put our commitment to children in the Bill and put beyond doubt that it will always be the prevailing values and culture that matter most. Legislation of itself achieves nothing but it is there to lay out the values to which we subscribe and to underpin them by the law. That is why it is so important.
Baroness Hamwee (LD)
My Lords, I welcome the Government’s amendments here. I commented on the need for these issues to be on the face of the Bill at the previous stage, as my noble friend said. I sought clarity and certainty, and it is right that those points are in the Bill. I have a number of questions, but I will not repeat the questions that the noble Lord, Lord Judd, has asked—I have just crossed through that bit of my notes—although the questions are no less valid for that.
In Committee, the Minister gave assurances that removal would not happen where the dependency between the individual and the family member was broken, for instance when the former dependant—as he called him—was a victim of domestic violence. Could my noble friend confirm that that would be covered by the new subsection (2B)(b)? I would be grateful if he could say anything about how it will operate when the immigration officer or Secretary of State considers how a matter would have been dealt with had it been put to him or her.
New subsection (2A)(b) refers to a child,
“where P has care of the child”.
I had a look to see what the phraseology was in the draft regulations we were sent before Committee—I presume they will not go ahead now. They referred to “parental responsibility”. I warned my noble friend that I would ask these questions and realise this might be a technical one, but I would be grateful if he could explain the distinction between having care of a child and having parental responsibility. This may be in the same area as the question of the noble Lord, Lord Judd, about not being in the same household. It is certainly related to that.
I want to take advantage of these amendments to say how much I welcome the Government agreeing to pin down provisions for conditions at short-term holding facilities—a matter that my noble friend Lord Avebury raised—and the consultation, which I understand is to be undertaken. However, like other noble Lords, I feel strongly that the 24 hours that is referred to must not become the norm: it is a maximum.
On Amendment 8, in the name of the noble Lord, Lord Judd, how can the term “last resort” be demonstrated practically or legally? Is it a term found in legislation? Certainly, it was used at the Dispatch Box and is in Home Office policy. I warned my noble friend that I was going to ask about that but, since then, I have found the answer. It is used in the United Nations Convention on the Rights of the Child, which is reproduced in Welsh legislation. It is also used in Northern Ireland justice centre rules and—I hope this will appeal to my noble and learned friend who was previously Justice Minister in Scotland—in Scottish primary legislation. I say that in support of the noble Lord, Lord Judd, because I want to pre-empt the criticism that this is not the sort of language one should put in a Bill but is simply descriptive.
Baroness Hamwee
My Lords, the noble Lord has spoken very powerfully about this issue, today and previously. I hope that he will understand the spirit in which I make this point; I make it only in case we find that this is more than a probing amendment. Will he confirm that his amendment to take out this paragraph would still leave the reasonable force—or, as he might say, so-called reasonable force—provision in the immigration legislation because of the way in which the paragraph is worded, which essentially updates the references to the immigration Acts? As I say, I ask that very gently only in case we find that we are faced with a little more than his questions.
Baroness Hamwee
My Lords, when I raised issues about bail and mental health in detention at the previous stage, the Minister gave me assurances about the Home Office policy presumption in favour of release or temporary admission—a “presumption of liberty”, so called. He said:
“Wherever possible, alternatives to detention are used. Detention must be used sparingly and for the shortest period necessary”.—[Official Report, 3/3/14; col. 1163.]
As this is a more focused debate than in Committee, when we had, I think, six amendments and the Minister had to cover a lot of ground, perhaps I may ask him some questions of which he is aware.
Can the Minister expand on the criteria applied for detention or conversely release, and say something about Home Office guidance and case law? The issue of the periods applied by other EU member states has also been raised. Like the noble Lord, Lord Bourne of Aberystwyth, I am curious not just about the periods but the legal systems within which those periods sit and how other countries deal with the “abscond” risk. Although I suspect not, does the Home Office have any profile of those who are detained for more than the 28 days that we discussed previously and the more than 60 days we are considering now?
Finally, I cannot resist sharing with your Lordships a case study from the Movement Against Xenophobia, which is one of the many very helpful briefings that we have received. It refers to a man who had been born in the Ukraine and had moved to Poland. He was unable to get a passport and bought a false passport. He was picked up and imprisoned. One might say, “Fair enough”. After his imprisonment, he was held in detention. Post the imprisonment sentence, the detention was 18 months. Eventually, he was successful in challenging that. The irony is that he was trying to leave the UK when he was picked up.
Baroness Smith of Basildon (Lab)
My Lords, we have heard some extremely powerful speeches in today's debate, especially on the concerns about overlong detention. Some of the individual cases that we have heard about strike the humanity of all noble Lords—to take a phrase from my noble friend Lord Judd. We certainly understand the reasons for the amendment and agree that it should always be the objective to reduce the length of time that any individual is in detention. I would hope that in the vast majority of cases it is possible to deal quickly with the process for individuals or find alternatives to detention. As we have heard, that is in the interests of the individuals detained—we have heard that there are 30,000 detainees each year—and in the interests of the taxpayer.
The comments of the noble Lord, Lord Ramsbotham, and my noble friends Lord Judd and Lady Lister, led to a greater concern about the regime of detention centres and the way in which rules are enforced. We agree that immigration rules must always be enforced, but the responsibility of government is to ensure that all detainees are treated humanely, with high standards and safeguards in place. As this amendment seeks to draw attention to, the process of administrating and assessing claims or arranging deportation should be undertaken as quickly and as fairly as possible.
Long delays and long periods of detention bring with them other problems. I am sure that the Minister is aware of the research undertaken by Women for Refugee Women which illustrates concerns about access to healthcare and support for physical and mental health. Only this week, we heard the extremely sad and distressing account of a woman of 40 who died at Yarl’s Wood detention centre. I was pleased that yesterday the Minister announced an investigation and review into that sad and tragic death.
Will the Minister also confirm that there will be a full investigation into the reports of sexual abuse of vulnerable women at Yarl’s Wood by Serco employees? What action has been taken as a result of the report of the inspector who said that abused and trafficked women are being held at Yarl’s Wood? The chairman of the Home Affairs Select Committee in the other place said yesterday that Serco has confirmed to him that in the past few years seven employees had been dismissed for inappropriate behaviour. The Minister will also be aware that there are ongoing police investigations and criminal proceedings, although Nick Hardwick, in his most recent inspection report, said that—I paraphrase—good progress was being made but more needs to be done. There are real concerns that have been illustrated across the House today.
However, that is not the amendment before us today. This is specifically about the length of time an individual can be held, and we heard examples of overlong detention from the noble Baroness, Lady Williams, and the noble and learned Lord, Lord Lloyd. My concern about the amendment is that it is slightly clumsily worded and does not necessarily achieve what it sets out to do. It has an arbitrary time limit of 60 days. Within that, there is no risk assessment of the issues of whether or not someone is likely to abscond or any assessment of the reasons for the delay.
More importantly, and this gives us the most concern, foreign criminals who have completed their sentences may be detained while they await deportation. That may take a little longer than 60 days to resolve—to get all the paperwork in place, ensure that they are treated properly and make an assessment of where they can be deported to. We would then be faced with the prospect of releasing those who do not have a legal right to be in the UK and who have become convicted offenders who have received a custodial sentence. That could lead to complications in the paperwork or the complex nature of the deportation. If the amendment were passed today as it stands, we could have a difficulty with former offenders who have been held in detention prior to deportation.
Unless I have missed something, there is no process in the amendment to allow for any extension in any circumstances, whether for a genuine risk of absconding or because of deportation for previous criminal offences. There is no qualification at all in the amendment as it stands. Having said that, I think it was my noble friend Lord Judd who used a phrase—which is well worth this House returning to on a number of occasions—about the humanity and the principle of the issue. The noble Lord, Lord Ramsbotham, referred to the amendment being a “stimulus”, because the Government should be aiming to achieve far shorter detention periods.
I fully appreciate that this amendment could focus the Government’s attention on being far more efficient in dealing with cases but there is a risk here, as I have outlined, and I am not convinced that the Government would necessarily take note in that way. I would like to hear some assurances from the Minister that action will be taken to deal with any abuses of the rules and regime in any detention centre. I hope that he will not dismiss the objectives of the amendment before us today because, whatever flaws there may be in the detail, this amendment raises issues of serious concern across your Lordships’ House, as he has heard, that have to be addressed. Although we cannot support this amendment as it stands, we would hope for a very sympathetic and helpful response from the Minister.
The Earl of Clancarty (CB)
My Lords, I apologise to the House for not having spoken before on this Bill. I will be brief. I have put my name to this amendment and want to talk about fairness.
As the noble Baroness, Lady Smith, mentioned, we had an excellent debate on immigration last week in the name of the noble Lord, Lord Steel. Much of that debate was full of individual cases. Someone afterwards said that it was a sad debate because of the frustration felt on all sides of the House for those they knew or knew of who suffered difficulties or injustices as a result of the immigration system or regulations as they currently stand, or as likely from mistakes being made. The large proportion of appeals that succeed is testament to that.
Those who work in the area of our domestic legal process, which has developed over centuries, understand well that the system is not perfect, that it can be improved, that mistakes are made and, more than that, that significant safeguards need to be built in that are, crucially, an open aspect of the system. As a society, we are by and large grown-up and realistic enough to accept that. Surely those principles that currently exist in relation to immigration appeals and have now stood for more than four decades should in the same way be, at the very least, preserved and protected. The Government may baulk at the openness of the tribunal system when so many mistakes are clearly revealed to the public, but if the process is taken back in-house—as it were—as an administrative review, we will lose that openness, independence and accountability that we currently have, as my noble friend Lord Pannick said.
The Government wish to replace the current system with one that will be more complicated and inefficient. In addition to limiting the process, it will fragment it and be desperately unfair for the person concerned because that person would quite rightly—this should be a democratic right—want to hear the entirety of their case presented at a tribunal. I can understand the desire of the Government here. They are under considerable pressure to get immigration right, get a grip on it and put an authoritative stamp on it. However, if that is a spurious authority, which, through lack of independence, institutionalises mistakes—that is what will happen—it will be worthless. Whatever good intentions the Government may have, Clause 15 remains on Report a threat to our fundamental notions of fairness in this country. There is a world of difference between aiming for a perfect system, which is laudable, and attempting to construct in the here and now a system that assumes perfection. If we so significantly limit the right of appeal to tribunals, we will surely set off down the latter, dangerous and misguided, road.
Baroness Hamwee
My Lords, I was not sure whether to speak yet; I was looking for a Bishop. Amendment 14 in this group is in my name and that of my noble friend Lord Avebury. I have been torn over this issue. Of course, the lawyer in me wants to see access to the courts or tribunals but the pragmatist in me says, “Get it right first time”, especially when it is something where arguably the person involved does not start with having rights. I distinguish between human rights interests, family interests and, at the other end of the spectrum, perhaps permission to come and work in a different country. At issue here is a very wide range of types of decision. Also, of course, the pragmatist says, “Find ways to improve the process to get it right”.
I have to assume that the Secretary of State is satisfied on the basis of the current out-of-country process that what is proposed will be “efficient”, “effective” and “fair”—in the words of one of the amendments. I hope that effectiveness always means fairness. I do not know that one can become satisfied that the process is efficient, effective and fair on the issue raised by the possibility of shadow working and the two systems working in parallel. I know that there are different views about that. Frankly, I doubt that it is practicable. At the previous stage, I raised the issue of reviews of procedures and—particularly important to me —independent oversight and reports to Parliament. I welcome government Amendment 12. Could my noble friend confirm, because it does not quite say this, that what is intended is a report on the first year? It says that, “Before the end of” a year the Secretary of State will commission a review.
My Amendment 14 would introduce a two-stage process, the second of which would be the chief inspector reviewing the first year of operation, and the first of which would be an opportunity for Parliament to consider the procedures after the Government have consulted on them. I am grateful to my noble friend for a letter that I received following Committee and which was copied to other noble Lords. I hope that this will be a useful opportunity for him to explain from the Dispatch Box the Government’s proposals for consultation on the proposed rules—a targeted consultation, as I understand it. There might be, if you like, a pre-consultation of noble Lords as to who might be involved in that process. I am sure we would all have ideas as to who could usefully contribute.
Since Committee, I have seen the information given to those who seek an administrative review out of country under the current procedure. I had been concerned about how representations could be made to the reviewer and what representations could be made. I can infer that from the current information but I am sure that there is scope for spelling it out more clearly. That is a matter for the practitioners, really. I was also relieved to see information on something that had popped into my head and bothered me a lot: whether there would be a charge for an administrative review. I see that that is not the case. That reminded me that this is another reason for the Home Office getting it right first time, as it will not be able to get any income from that administrative review. As it were, it funds it—rightly—from its internal resources.
Lord Wallace of Tankerness
My Lords, as the noble Baroness, Lady Smith, indicated, we debated this matter at some length in Committee. We will necessarily go over some of that ground again but I appreciate the opportunity to do so and to inform the House why we believe that it is helpful and a positive development that we should move to this system of administrative review.
Obviously, the noble Baroness’s Amendment 11 would remove Clause 15 from the Bill. In doing so, it would retain the current appeals system, which we believe is too complex and does not provide the most appropriate and effective remedy in each case against refusal decisions. I understand the reservations that have been expressed here—we rehearsed a number of the issues in Committee—about decision quality in immigration cases. First, it is again important that those concerns are seen in context. As I said—and as was once said back to me—the great majority of decisions are not refused in error. The majority of applications are successful. The noble Baroness quoted me on that. Of decisions taken in the United Kingdom, only 10% were refused in 2012. Therefore, when the majority are successful, it is not about an absence of appeals. The noble Baroness asked if some of these decisions had been wrong, too. I suspect we will never know because people tend not to appeal against decisions when they have been successful. Some 51% of that 10% that were refused in 2012 succeeded on appeal. Therefore, 5% of the total decisions taken succeeded on appeal. Of that 5% of decisions, 60% succeeded because an error was made. By my calculation, we are down to 3% of all decisions in managed immigration cases being attributable to an error.
We believe that retaining the current system, as would be the consequence of the noble Baroness’s amendment, would not improve decision quality. It would mean that people continued to wait longer and incur more expense for errors to be corrected than under the system established by Clause 15. Under Clause 15, where a claim based on a fundamental right is refused—I think we heard about some of those under the previous amendment—it can be appealed and the fundamental rights are set out in the Bill. It is right that a full-merits appeal should be available for these cases. Where the claim is not based on fundamental rights, we can indeed show that 60% of cases that succeed on appeal do so because of a working error. It is also worth reflecting that the kinds of cases we tend to deal with are those that are a matter not of judgment but of the application of objective rules. If the rules are met, leave is granted. If they are not met, leave is refused. That type of decision is well amenable to administrative review. As the noble Baroness said, the process will be quicker and cheaper than an appeal.
Immigration Bill
Baroness Hamwee Excerpts(10 years, 8 months ago)
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Baroness Hamwee (LD)
My Lords, first, I think that my noble friend has informed the Minister that we will not be speaking to Amendment 87ZD. We realise that we have made an error in it, for which I apologise to the Committee.
The last amendment in this group, Amendment 87ZJ, is also an amendment to Schedule 9—the part dealing with the grounds for an application. P—the person to whom my noble friend referred—is required to provide a supplementary statement to the Secretary of State or immigration officer setting out new circumstances and additional reasons or grounds, where there are any, as soon as practicable. My amendment would add to an earlier paragraph a requirement for P to inform the Secretary of State of the change in circumstances in order that he is made aware of the need to do so. As my noble friend said, he will probably have no assistance in this, so we are suggesting that the Secretary of State should include this in the notice served on P.
The first of the amendments in the name of the noble Baroness had me looking at Clause 62 this morning. On Monday, the Minister said that he believed in scrutiny. I do, too. I also believe in getting answers to questions on the record. I will whip through my questions quickly and hope that he will be able to whip through his answers quickly, but they are points about which, when fees are being set, I think practitioners as well as parliamentarians will be concerned.
I read the term “specified fee”—which is used, among other places, in Clause 62(7)—as meaning that the Secretary of State will make an order specifying categories of fees which will then be set by regulations. If that is so, can my noble friend indicate the criteria for making some categories subject to an order and some to regulations?
I went on to see in Clause 62(2) that there seems to be a requirement for a fees order for all fees—or are fees to be chargeable outside the functions within subsection (2)? Does “any specified fee” in Clause 62(4) mean each fee specified by a fees order? In that subsection and in subsection (6), which deal with the factors that might apply in setting fees, what factors might there be other than an hourly rate? The drafting suggests that they might be something similar to an hourly rate, but it would be helpful to understand what they might be.
Can the Minister confirm that in Clause 62(6) the rate is in fact an hourly rate? Can he tell the Committee whether—this is perhaps less technical but it is of considerable interest—a calculation that involves an hourly rate will give the position or grade of the officers for whom the rate is charged? Where a fee is intended to exceed the cost, because that is allowed for, will this be made clear in the Explanatory Memorandum to the regulations?
Clause 62(10) provides for exceptions. Can the Minister tell the Committee whether the exceptions might allow for an increase in a particular class of cases or individuals and how exceptions will be determined? I am interested in how Clause 62(10)(b) will work with Clause 62(8). I assume that subsection (10)(b) overrides subsection (8), which requires that a fee should not be less than a prescribed minimum. Why is Clause 62(10)(c), concerning failure to pay, needed? There is a provision relating to this in the next clause. The subsection refers to,
“the consequences of failure to pay a fee”.
What might those be in addition to enforcement of the debt? Might this refer, for instance, to refusing a visa when a future application is made?
Clause 62(12) defines costs. Perhaps we could have an example of the costs that will be covered by a fee that is,
“not funded from public money”.
My imagination did not stretch that far. Finally, Clause 62(13) refers to “particular arrangements” and “particular ways”. Are these terms intended to cover services such as the premium fast-track service? I am grateful to the Committee for its indulgence and particularly grateful to the Minister for dealing with these issues.
Lord Rosser (Lab)
My Lords, the amendment in this group to which I wish to speak is Amendment 81AA, which would require independent legal guardians to be appointed to look after the interests of children trafficked into the United Kingdom. The amendment proposes the insertion of a new clause but this is by no means a new issue. A similar amendment was recently voted on and narrowly defeated during the passage of the Children and Families Bill. The Committee will be aware of the tremendous work of the noble Lord, Lord McColl of Dulwich, who has championed this issue for a very long time, and indeed the work of other noble Lords, including the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Royall of Blaisdon. We have been pursing this matter and the shadow Home Secretary has raised it a number of times.
We are returning to the matter again because it still is very much a concern. At least 450 children were identified as possible victims of trafficking in the past year alone. NGOs and police all say that it is most likely that the numbers of people trafficked, including children, are far higher than the national referral mechanism statistics record. A shocking two-thirds of children who are rescued from traffickers go missing again because the system to protect them is not strong enough.
Most of those children come from countries outside the European Union. They are here alone and have no knowledge of the country that they are in. They often speak and understand little English, and do not know who to turn to or how to find help. In the debate on this issue during the Children and Families Bill, noble Lords heard evidence from research commissioned by the Government, which highlighted the desperate need of trafficked children for specialist, independent support. That research, and the report by the Children’s Society and the Refugee Council, entitled, Still at Risk, which was published in September 2013, recommended the provision of “an independent trusted adult” whose,
“role would be to ensure”,
that all child victims are,
“able to understand their rights, ensure that their voice is heard in decisions that affect them and are supported effectively through the different legal processes that they are engaged in”.
Amendment 81AA would provide such a person.
When this was discussed in the Children and Families Bill, the Government argued that there was no need for new independent guardians for trafficked children since there are a number of professionals with responsibility for supporting a child under the Children Act. They pointed instead to the introduction of draft regulations and statutory guidance which they claimed would address all the faults in local authority care, rendering specialist guardians unnecessary. I suggest that that misunderstands the role of the independent legal guardian.
Child victims of trafficking find themselves in a foreign country and to access help they are expected to deal with many different state agencies; that is, local authorities, social workers, police, investigators, immigration officials and so on. When dealing with each organisation, they must engage with a different set of people and must repeat their story again and again, with all its traumatic details. This process is distressing and unhelpful for a child in unfamiliar surroundings. Children can become alienated and distrustful of those trying to help them, which leaves them vulnerable to retrafficking. Local authorities do not always seem to appreciate that young victims of trafficking often maintain links with the person who brought them to the United Kingdom because they speak the same language. A guardian with legal responsibility for the child would understand the dangers.
The role of the legal guardian is an entirely new role that no existing agency currently provides. That person would be a constant for the child in an ever changing world. They would accompany the child as they relate to all the different state agencies and would also have the right to speak on behalf of the child if the child requests it so that the child does not have to keep repeating their painful story if they do not want to.
Noble Lords will be aware that the Government recently published their draft Modern Slavery Bill but that does not provide for an independent guardianship system, so we are raising the matter again here. There is a growing coalition of support behind this idea. Trafficked children should have access to a trusted and independent advocate or guardian who is legally responsible for them and their interests in order to do what we are failing to do all too often at present; that is, to protect children who are the victims of trafficking in human beings from repeated trafficking and repeated abuse. I hope that the Minister will give a sympathetic response to this amendment.
Baroness Hamwee
My Lords, as the noble Lord has said, the issue of guardianship for victims of child trafficking is one that has support right around the House. When it was raised during the Children and Families Bill, I said in reply to the noble Lord, Lord McColl, that when he first raised this some years ago I had not been persuaded. However, particularly through his arguments, I came to be persuaded of the need, in part from the point of view of someone who has practised as a solicitor and needs someone from whom to take instructions. That is one of the functions that a guardian would fulfil. The draft Modern Slavery Bill, which is the subject of pre-legislative scrutiny, has been drawn up from the point of view of the victim and, like the noble Lord, I think that this would fit absolutely in protecting and assisting victims.
I have a couple of comments about the issues raised by my noble friends with regard to children and young people without immigration status. I first want to draw attention to a report published last year by the ESRC Centre on Migration, Policy and Society at the University of Oxford, entitled No Way Out, No Way In about irregular migrant children. Its summary, which is a tiny part of a report that goes on for many pages, states:
“Our estimate regarding the high proportion of irregular migrant children who are either born or have spent most of their childhood in the UK invites a refocus of public understanding of this population”.
The second issue that I would like to mention is the very uncomfortable reporting that we have seen, not so much of the children to whom my noble friend Lady Benjamin drew attention, although some would fit into this category, but of wonderful young people—just the sort of young people we want to have in this country —who reach the age of 18 and are accepted at university and told they cannot go there. They are told that they need to go “home”. I am not saying that they are any more deserving than the other children in question, but I hope that the Government have been embarrassed by the reports because they should be, just as they are about the reports of the children assisted by Kids Company and others of whom we have heard.
When I tried to draft this clause, I really did not know how to do it. It seemed that so much is a matter for the Secretary of State’s discretion. I hope that when the Minister replies, he can assist the Committee with some clarity about what issues are matters of discretion and how that discretion comes to be exercised.
Baroness Lister of Burtersett
I will speak briefly to Amendments 81, 81AA and 88; they all deal with issues that have been covered recently by reports of the Joint Committee on Human Rights, of which I am a member.
I start with Amendment 88 on legal aid. In its report on the implications for access to justice of the Government’s proposals to reform legal aid, the JCHR was very critical of the application of the residence test to children. We said that,
“we do not agree that the Government has considered all groups of children who could be adversely affected by this test, and we note that no Child Impact Assessment has been produced”.
This is becoming a bit of a pattern, I have to say. The report continues:
“Such groups of children include children unable to provide documentation of residence and those who need help to gain access to accommodation and services … We are concerned that the Government has not given full consideration to its obligations under the second article of the UNCRC … we do not consider that the Government’s argument that cases can always apply for exceptional funding is sufficient to meet UNCRC obligations or the Government’s access to justice obligations. We are sure that the Government does not intend vulnerable children to be left without legal representation. The proposals give little consideration to the access to justice problems that the proposal specifically creates in relation to children, such as the potential complexity and urgency of the cases for which children would need advice and representation, or in some cases, the need to find a litigation friend to assist the child with their proceedings because they have become separated from their families … We do not consider that the removal of legal aid from vulnerable children can be justified and therefore we recommend that the Government extend the exceptions further by excluding all children from having to satisfy the residence test”.
In their response, the Government agreed to extend the exceptions further, but in my view, not far enough. Although any further exception is welcome, it goes only so far and does not meet the concerns of the JCHR about protecting children generally in relation to our obligations under the UNCRC. Having a lot of exemptions just complicates matters and I would have thought it was easier simply to say that it should not apply to children.
Baroness Hamwee
“After section 3D insert—
“3E Extension of leave following revocation
(1) This section applies if a person—
(a) has limited leave to enter or remain in the United Kingdom (including leave that has been extended by section 3C); and(b) the person makes a protection claim or a human rights claim within the currency of that leave or within 14 days of the conclusion of any administrative review of a decision to vary, refuse to vary that leave.(2) the person’s leave to enter or remain is extended during the period when—
(a) the protection claim or human rights claim is neither decided nor withdrawn;(b) an appeal could be brought under section 82(1)(a) or (b);(c) an appeal under that section against refusal of the protection or human rights claim is pending within the meaning of section 104.3F Revocation of a protection status
(1) This section applies if the Secretary of State has decided to revoke a person’s protection status.
(2) The revocation shall not take effect during the period when—
(a) an appeal under section 82(1)(c) could be brought;(b) such an appeal is pending within the meaning of section 104.””
Baroness Hamwee
My Lords, I will speak also to Amendments 87ZE and 87ZF. The first of my amendments would introduce two new paragraphs to ensure that leave continues in the event of revocation on the terms and conditions which have applied while an asylum or human rights appeal is pending. The Bill does not repeal the provisions for extending leave during the period for lodging an appeal or while an appeal is pending once a decision not to extend leave or to revoke has been made. However, those provisions will not function because the provisions on which they bite are being repealed. I acknowledge readily that this is not my analysis and I am grateful, as so many noble Lords have been and no doubt will be during the course of the Bill, to the Immigration Law Practitioners’ Association for this.
I made a point on Amendment 72B on Monday in respect of drivers’ licences but I do not think that the Minister who was replying was able to deal with it. In this situation, it would mean that a person’s presence immediately becomes unlawful, with implications for employment and his employer, education and his university, tenancy, holding a bank account, access to healthcare and so on. I might be wrong about holding a bank account; I think that I mean opening a bank account.
It would also mean that there would be a break in the continuity of his leave, which might have implications for a later application for settlement or citizenship. Schedule 9 provides for leave to continue on the same terms and conditions while an administrative review is pending, so it seems likely that people will make both an application for review and a human rights appeal. There would then be the dual review and appeal—parallel might be a better word—which I know the Government want to avoid. That is my first amendment.
Baroness Smith of Basildon
My Lords, shall speak briefly on these amendments because I have listened to the noble Baroness, Lady Hamwee, quite carefully on them and I share some of the concerns that she raised. Concerning Amendment 87ZA, can I just be 100% sure that I have understood it correctly? The current position is that once a decision is taken not to extend or revoke leave, that leave is extended on the same terms and conditions during the period provided for lodging any appeal or while the appeal is pending. However, the Bill would remove that provision. The noble Baroness is nodding at me, so it seems I have understood it correctly.
Baroness Hamwee
That is as I understand it. Possibly like the noble Baroness, I have had some difficulty following this around the course.
Lord Wallace of Tankerness
I am advised that it is not correct that this Bill means that leave does not continue where an application has been made in time. I think there is a double negative in there. My understanding is that Section 3C of the Immigration Act 1971 provides that where someone makes an application for further leave while they have existing leave and that the existing leave expires before the application for further leave is decided, their existing leave is extended on the same terms until that further application is decided and any appeal against its refusal is no longer pending. That is the existing position. Section 3D of the 1971 Act makes the same provision where someone has existing leave which is revoked, extending leave while they can appeal against the revocation. Schedule 9 to this Bill amends Sections 3C and 3D so that they extend leave also while an administrative review can be brought or is pending. I hope that is helpful. No doubt the noble Baronesses will want to consider it. I think that is the accurate position.
Nothing in the Bill prevents people making protection or human rights claims. We are committed to protecting such fundamental rights but equally, as has been explained on numerous occasions in Committee, we also seek to prevent abuse of the system and to create an improved process. Our concern is that the amendment that my noble friend has moved would undermine both these aims.
Extending leave because a protection or human rights claim has been made following an unsuccessful administrative review would create a strong incentive to make such claims. This would undermine the greater efficiency of the appeals framework in this Bill. There would be an advantage in making a protection or human rights claim just before leave extended under Section 3C of the Immigration Act 1971 expired, even after an appeal at the First-tier Tribunal has been decided. This would create a sequential process where the further claim and any appeal are considered after the other claim has been decided rather than at the same time. It would mean that leave is extended on current conditions for a worker, even when that worker has first sought an extension of leave as a worker and then decides he no longer wants to be in the UK to work but rather wishes to claim asylum. We do not believe that that consequential inconsistency is right.
Inserting new Section 3F into the Immigration Act 1971, as proposed by Amendment 87ZA, would create duplication. Existing Section 3D of the 1971 Act already provides that where leave is revoked, the leave will continue while any appeal against revocation is brought.
I wish to make the important point that, as I said at the outset, there is nothing in the Bill that seeks to stop or prevent people making protection or human rights claims. The Home Secretary will consider and decide any human rights claim made to her and will not remove any person while that claim remains undecided, irrespective of whether they have leave. I hope that is a reassurance that there will not be a removal while a claim remains undecided.
Amendment 87ZE queries the necessity of a consequential appeals amendment. We believe that the consequential amendment is necessary. Schedule 9 repeals the provision establishing a monitor for entry clearance cases with a limited right of appeal. This monitor role is now performed by the independent chief inspector under Section 48 of the Immigration, Asylum and Nationality Act 2006. However, the Bill provides that there will no longer be any entry clearance cases with a limited right of appeal, and therefore Amendment 87ZE would retain an otherwise redundant provision.
With regard to Amendment 87ZF, the Bill simplifies the appeals framework and removes “not in accordance with the law” and “different exercise of discretion” as grounds on which appeals can be brought. Amendment 87ZF would reinstate these as reasons for allowing an appeal, although they are not grounds on which an appeal can be brought. Noble Lords will recall from when we debated Clause 11 that the grounds of appeal under that clause are that a decision breaches the UK’s obligations under the refugee convention to those entitled to humanitarian protection, or is unlawful under the Human Rights Act. These are the relevant grounds for challenging refusals of protection or human rights claims, and, in considering them, the tribunal is considering whether the decision was in accordance with the law. That is the important point in the appeal. Similarly, the UK’s obligations to asylum seekers entitled to humanitarian protection or under the Human Rights Act are not discretionary. There is therefore no exercise of discretion for the tribunal to consider in those appeals that come before it.
I hope that in the light of this explanation and these reassurances, my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, it would be foolish of me to try to continue the debate at this point. I obviously need to read—probably several times—what my noble friend just said and to consider it with those who are far more familiar with the whole raft of immigration legislation than I am. I beg leave to withdraw the amendment.
Visas: Health Insurance
Baroness Hamwee Excerpts(10 years, 8 months ago)
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Lord Taylor of Holbeach
My Lords, my noble friend to some degree misunderstands the reason for the surcharge, which is, as I have said, to ensure that temporary migrants pay a fair contribution towards the health service. It is not intended to be a full cost recovery but, none the less, it will raise in the region of £2 billion over 10 years. Visitors are not covered by this scheme and they will be liable for full cost recovery, which they may indeed choose to insure against.
Baroness Hamwee (LD)
My Lords, I suspect that health insurance for visa applicants would be extremely complicated to administer. Does my noble friend think that there might be something to be said for it if the Government go down the route recently recommended by the Migration Advisory Committee of auctioning about 100 visas a year, with a reserve price of £2.5 million, to get accelerated settlement in the UK? I sincerely hope that they will not go down that route.
Lord Taylor of Holbeach
My noble friend is tempting me to elaborate a policy into a direction in which the Government have no intention of moving at the present time. There is a review of health service charges going on. Currently the recovery of health service charges is a problem. The health service is not getting the income that it should be getting from health service charges, but my noble friend is right to say that the merit of this scheme covering temporary migrants is that it makes a significant contribution and is very simple to administer.
Immigration Bill
Baroness Hamwee Excerpts(10 years, 8 months ago)
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Baroness Hamwee (LD)
My Lords, I have given notice of my intention to oppose the question that Clause 40 stand part of the Bill but, as I hope the Minister knows, this a way of probing the provisions in Clause 40 and of asking, simply, what the problem is with Section 18 of the Immigration, Asylum and Nationality Act 2006, which the clause would amend. In the Public Bill Committee, the Minister, Mr Harper, said:
“it can be difficult to recover the penalty”.—[Official Report, Commons, Immigration Bill Committee, 12/11/13; col. 317.]
I can see that Section 18, as amended, would make it easier for the Secretary of State, but that does mean that the recipient of a penalty is not going to be able to raise a defence. This is not a straightforward, simple debt. It seems that the very fact that it is not a fixed penalty indicates that there may be a range of circumstances in which the penalty is imposed, and some of those may involve mitigating circumstances.
Lord Avebury (LD)
I should like to ask a couple of questions about Clause 40. The Immigration Minister’s faux pas over the “wealthy metropolitan elite”, such as his predecessor who employed a cleaner from Nepal without checking that she had leave to remain, highlighted the inconsistency of people in senior positions of the Government being happy to employ non-EEA citizens themselves while desperately hanging on to the vain objective of reducing net immigration to below 100,000. That target was never within the realms of possibility and it should be scrapped, recognising that most components of immigration and all of emigration are outside the control of government. As the UK is doing relatively well compared with other European countries, we are an attractive destination for skilled workers from the rest of the EEA, and as my right honourable friend Vince Cable pointed out, we are benefiting from their contribution to our economy and in particular to the revenue from direct and indirect taxation that they bring.
However, we are right to deal with irregular migration from outside the EEA, and in particular the 500,000 of those irregular migrants who were lost by the UKBA and are still scraping a living in low-paid jobs—a few of them as cleaners and nannies. My question about Clause 40 is whether increasing the fines on employers who fail to check the credentials of their workers is going to be the answer. Can the Minister say whether the existing powers are being used to their full extent? In November 2012, when Tesco was found to have employed 20 non-EEA students for three times the number of hours allowed, the supermarket was fined £115,000, compared with the maximum of £200,000. In August 2013, the BBC found that since the original power to impose fines on employers was enacted in 2006, two-thirds of the £80 million fines imposed remained uncollected. The Home Office said that some fines might have been reduced or cancelled on appeal, or that some employers could have gone out of business or could have been asked to pay by instalments. How does making the penalty recoverable as if it were payable under an order of the county court, or the equivalent in Scotland or Northern Ireland, increase the probability that the money will be recovered? Can the Minister be sure that increasing the fines will not simply reduce the proportion of money that is recovered?
Earl Attlee
The noble Baroness may make a valid point about the supermarket and the corner shop, but we are talking about operational details here. I will write to her if there is anything that I should add on that point. She may be right that to do what she suggests might make for a more economic system, but it would have the undesirable effect of encouraging a flood of economic migrants through the asylum route, which is why this Government and the previous Government have adhered to the current policy.
Baroness Hamwee
My Lords, perhaps I may add markets to the mix of supermarkets, corner shops and all the rest of it. The noble Earl might find that they are the cheapest of all, but cannot be accessed. I also put into the noble Earl’s mind, perhaps for the future, the therapeutic value of being able to work.
Earl Attlee
The noble Baroness makes an extremely important point. I am well aware of it, which is why asylum seekers are able to do voluntary work.
Baroness Hamwee
( ) “Claim for asylum” has the same meaning as in section 94 of the Immigration and Asylum Act 1999 (interpretation of Part VI).
( ) An appeal is pending for the purposes of this section when it is pending under section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeal).”
Baroness Hamwee
I will speak also to Amendments 72B to 72G. The amendments take us to the clauses on driving licences. The first amendment, similar to one which I moved in respect of bank accounts on Wednesday, would allow people seeking asylum whose claim has yet to be determined—that is, there has not been a decision or an appeal is pending—to be able to drive. The period for which asylum seekers can wait is often considerably more than six months. I mention that in this context because non-EEA nationals are required to have six months’ leave to apply for a British licence.
I am concerned about the people in question seeing skills gradually tail away, not having the opportunity to integrate, not being able to volunteer—we have just been told that that is important, and indeed it is—to use their skill as a driver in a voluntary capacity.
Baroness Hamwee
My Lords, on the first of my amendments the noble Earl said that he could not be any more helpful than he had been previously on the same issue in a different context. I thought that he had been quite helpful, so I suppose that I had better go back and reread that.
Baroness Hamwee
The Minister might have added to the list of items for Report. I will look at what he has said. For the moment, I will say only that I very much regret the turn that the language of the debate has taken this afternoon, with floodgates, and the conflation of asylum seekers and economic migrants. However, we are not debating that, so I will not test the Committee’s patience by taking that further. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, this is a short amendment, which asks a short question. Schedule 7 deals with immigration advisers and immigration service providers and includes paragraphs about fees for registration. Paragraph 3(2)(b) will write into the legislation provision for the waiver of all or part of a specified fee in particular cases. The Explanatory Memorandum to the Bill indicates that the Government “plans”—that is the word used—to use the power to require the Immigration Services Commissioner,
“to waive the registration fee in relation to advisers who do not charge for their services”.
My amendment would put in a waiver in the case of an applicant which is a charity or a non-profit making organisation.
Of course, I do not disbelieve what is in the Explanatory Memorandum, but I would like to have the assurance in the legislation that the small charities and non-profit making organisations, which I suspect limp from one week to the next—I do not say that at all disparagingly—and could use a great deal more funding than they have, can know that they will not be charged for registering to give the advice which many of them so helpfully give. I beg to move.
Earl Attlee
My Lords, I hope that on this occasion I can delight my noble friend Lady Hamwee on this amendment.
Amendment 73A seeks to define the organisations which will benefit from an exemption from paying a registration fee to the Immigration Services Commissioner. I can assure the Committee that there is no intention to add a financial burden to charities, voluntary organisations or other non-profit making organisations that offer immigration advice and services.
The Government understand that if these organisations were to be charged a fee, these measures could restrict the ability of such organisations to provide services and this would have an impact on the availability of free immigration advice for those not able to pay. The intention is to continue the principle of exempting advisers who do not charge a fee for services from paying the OISC a registration fee. The discretion conferred on the commissioner in the original clause in the Bill will be consistent with the discretion that currently exists in determining exempt status.
The current application process for exemption requires the commissioner to examine the type of organisation, its status as a non-profit making organisation and its charging policy. The actions will continue to be carried out and will be part of the new registration application process.
Subject to parliamentary approval, the Government will lay an order, as provided by paragraph 3 of the schedule, to specify that those organisations which do not charge for services will not have to pay fees when they apply for registration or reapply for registration. The Government do not want the Act to include a definition of organisations not required to pay a fee because such a level of detail is not necessary for this legislation and such definitions could be open to interpretation in a manner not intended. I hope I have satisfied my noble friend and that she will feel able to withdraw the amendment.
Baroness Hamwee
My Lords, I am grateful to my noble friend. When I see the statutory instrument, I may be delighted. I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, this afternoon’s speeches have reassured me that I was not misreading the clause when I ended up, time after time, in confusion—not just as to the principle, but as to the point. I would sum up my confusion with three questions to myself. If someone is stateless, it seems he may be allowed to remain in the country, so how is the threat diminished? Indeed, is not any threat increased because of the reaction of the individual and his community against the state’s action? Secondly, what happens to his dependants—are they not likely to become more of a burden on the state? Thirdly, is this one of those occasions when neither Parliament, concerned with the principle, nor the individual, at the sharp end of the practice, is able to challenge the decision—one of those occasions of “If you knew what I know”? We are not thought police, and I was reassured when I read in the clause a reference to a person having “conducted” him or herself in a prejudicial manner—but of course we cannot know about conduct any more than thought.
Like the noble Baroness, I read the report in the Independent today and I thought it a clear example of the impact on someone left stranded. I think he was served with the decision when he was transferring between planes: he was part way—as he would have said—home, and had to return to, I think I am right in saying, Waziristan. However, he was stranded: separated from his community and perhaps family—I do not recall—in the UK, but regarded almost as an outlaw, and, as he put it, in danger from those in Pakistan and Waziristan who regarded him with considerable suspicion. It is a very disturbing story.
Lord Taylor of Holbeach
My Lords, this has been a very thorough debate on a clause which, as the noble Lord said, we owe it to discuss thoroughly.
I start by adding some further perspective to the debate on the deprivation of citizenship. The measures in the Bill to deprive someone of citizenship can be used only against someone who has chosen, as an adult—not as a child—to naturalise as a British citizen. When choosing to seek British nationality they will have taken an oath, or sworn allegiance, to Her Majesty, and pledged their loyalty to this country. Despite this—
Baroness Hamwee
“Reviews of deprivation of citizenship resulting in statelessness
(1) The Secretary of State must appoint a person to review the operation of section 40(4A) of the British Nationality Act 1981 (deprivation of citizenship), (“the independent reviewer”).
(2) The independent reviewer must carry out a review of the operation of the section in respect of each calendar year, starting with the first complete calendar year beginning after the passing of this Act.
(3) Each review must be completed as soon as reasonably practicable after the end of the calendar year to which the review relates.
(4) The independent reviewer must send to the Secretary of State a report on the outcome of each review carried out under subsection (2) as soon as reasonably practicable after completion of the review.
(5) On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.
(6) The Secretary of State may pay to the independent reviewer—
(a) expenses incurred in carrying out the functions of the reviewer under this section, and(b) such allowances as the Secretary of State determines.”
Baroness Hamwee
My Lords, the Minister has just told the House his view on the importance of the scrutiny of legislation. I have never doubted that for a moment. However, I think he probably agrees that one needs to scrutinise the implementation of legislation as well. My Amendment 79A would do that. I think that the noble Lord, Lord Pannick, and I must have tabled our amendments within seconds of one another. When his was printed, I was glad to see that mine was very close to his, and I am glad that he has added his name to mine.
I do not claim credit for any originality of drafting. I have lifted it almost word for word from other legislation that provides for the involvement of the independent reviewer of terrorism legislation. As we are told in the information pack, although the Government do not want to be overly prescriptive about the phrase,
“seriously prejudicial to the vital interests of the United Kingdom”,
they envisage it covering those involved in terrorism or espionage or in taking up arms against British or allied forces. We will all have been impressed by the diligence, the terrier-like qualities and balance shown by the various reviewers who have held the post. I suspect that the current reviewer might undertake the work, whether he was asked to do so by legislation or not. Clearly, this issue is closely related to other legislation and to other steps which the Government might take in response to—or perhaps even before they need to respond to—a terrorism threat. If we are to have Clause 60, we need a clause such as this in order to provide for a review on a periodic basis, the provision of the review to the Secretary of State, and her laying it before Parliament. I beg to move.
Lord Taylor of Holbeach
My Lords, after the passion of the previous group of amendments, I find this a little easier to respond to. The noble Baroness, Lady Smith, has made the point that there is a pre-existing independent monitor, and indeed my noble friend Lady Hamwee referred to the role occupied by John Vine. His role was set up under the UK Borders Act 2007, and he is able to monitor and report on the efficacy and effectiveness of functions relating to immigration, asylum and nationality. That includes the effectiveness of decision-making on deprivation of British citizenship, so it exists already.
This is not an annual review process, and I think that that is probably one of the things we disagree on. With all his independent inspections, the chief inspector is permitted to examine only individual cases for the purpose or in the context of considering a general issue. But it illustrates that in addition to the judicial scrutiny of individual cases—I have explained that the power of appeal still exists—Parliament has already agreed an independent inspection regime which covers nationality and hence the deprivation of nationality.
Throughout the passage of the Bill, the Government have stressed the serious nature of the cases that will be considered under this new power. Clause 60 itself carefully limits the uses of the power to circumstances where an individual’s behaviour meets a new, higher threshold of being,
“seriously prejudicial to the vital interests of the United Kingdom”.
This will ensure that the courts subject the strength of the Government’s rationale for deprivation to close and anxious scrutiny in each and every case. In this case, I do not believe a new independent reviewer is necessary.
There has been a lot of discussion regarding the requirement to publish guidance and how individual cases will be considered, evidenced and decided. As I have said, deprivation is nothing new—it has gone on under this Government and previous Governments. Established practice exists, and guidance is published for fraud and deception cases, for example. Every case is different and will have its own case-specific facts. The core requirement on officials is to assess evidence and circumstances, consult colleagues across government and carefully weigh the evidence before making a recommendation to the Home Secretary. This is central to all cases. The Home Secretary herself reviews and personally signs off all deprivation decisions. Beyond this, there is little additional detail that would necessarily be appropriate, given that matters in cases that will fall under Clause 60 will be to do with national security. More importantly, in every case, the individual will be told the reasons for the decision and there will be a statutory right of appeal to the courts in each case.
I will address the bid for a sunset clause in this matter. The Government have a responsibility to protect the public and to respond to threats, and this clause is aimed at dangerous individuals who abuse their British citizenship and threaten the security of the UK. As I have emphasised, the power will be used only against those who pose such a threat. However, it is impossible to predict as and when these threats will emerge and I do not believe it would be appropriate therefore to time-limit the clause.
As I have said, I hope we have an opportunity to meet between now and Report, and this will no doubt be one of those matters which could be discussed at that stage. In the light of these points, I hope that the noble Baroness will agree to withdraw the amendment and that other noble Lords will not press theirs.
Baroness Hamwee
My Lords, I did not have in mind the Independent Chief Inspector of Borders and Immigration but the independent reviewer of terrorism legislation—I plagiarised the provisions in current legislation on terrorism for this clause—who I think would be the appropriate reviewer to undertake the work. I am not suggesting a new reviewer. This would fit very well with, and ought to be reviewed by, the same person who considers the application of terrorism legislation. However, I do think that there should be a review and statutory provision for it. I am a little puzzled as to why the Government might resist what, in the circumstances of Clause 60, is an extremely mild proposition, but perhaps that is something that we can discuss following this stage of the Bill. I beg leave to withdraw the amendment.
Baroness Hamwee
“(a) after “immigration officer” insert “or designated person”;(b) after “lawfully” insert “and the basis of his entry including if applicable particulars of his visa”;(c) after sub-paragraph (1)(b) insert—“(ba) whether his immigration status has changed during his stay in the United Kingdom,””
Baroness Hamwee
My Lords, Schedule 8 provides for designated persons as well as immigration officers to undertake functions in connection with embarkation checks. The purpose of this amendment is not to question the designated persons but to seek, in a world where net immigration numbers and what individuals have been doing in this country before they leave it are so current, reassurance for the Committee. A section in the Immigration Act 1971 allows immigration officers who are dealing with embarkation to determine the identity of the individual, whether he entered the UK lawfully, whether he has complied with conditions of leave to enter or remain and whether his return to the UK is prohibited or restricted.
From time to time we have alluded to issues such as people coming here as students, then staying to undertake work. This may make the question about someone coming here as a student and then leaving when they leave not necessarily the right one to ask; the issues are a little more complicated than that. I am by no means proprietorial about the drafting and freely admit that it is probably rather clumsy; but assuming that the visa particulars are readily available to the immigration officer or designated person, I suggest that on exit from the UK there is a tie-up with these particulars and on whether the immigration status has changed during the stay here.
The broader question is whether the Government have given thought to whether the current powers are enough to marry up all the information with that which has been gained when the individual has come to the UK and whether they cover the issues that are a pretty hot topic on the question of net migration. I beg to move.
Lord Taylor of Holbeach
The logistics are a matter for detailed planning with the airlines. What the Bill does—what this schedule provides for—is give those people who are responsible for dealing with this work the powers which at present they do not have. Advance passenger information already supports electronic texts on a large number of outward-bound journeys. API will be part of the exit checks solution along with other options, including checks conducted and data collected at the port of departure. These matters are being discussed so that this can be done efficiently, but API is a contributory element of this provision. As to the detail of how it is going to operate in every form of transport—every airport, railway station and port—I cannot possibly say at this stage. The powers of this Bill give those who will be challenged to perform this task the right to conduct those checks. Otherwise the checks would have to be done by immigration officers and we do not consider that this is an appropriate role for the Border Force.
Baroness Hamwee
My Lords, this debate has gone well beyond my amendment. I am not entirely sure that I had an answer to my amendment, but perhaps my concentration lapsed. I beg leave to withdraw the amendment.
Immigration Bill
Baroness Hamwee Excerpts(10 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Best (CB)
My Lords, we return to residential tenancies and come to a group of 12 amendments, of which the first nine are in my name, beginning with Amendment 54ZZA. I apologise for the number of amendments, but I will be brief in setting them out this afternoon. I am helped in speeding up the process by the very helpful points made by the Minister in our Committee session on Monday.
All these amendments are concerned with the practicalities of requiring landlords to check the immigration status of their tenants. We are past the stage of arguing whether the whole idea of imposing this new burden on landlords is a good one; rather, these amendments attempt to make the concept more workable and reduce the unfortunate consequences for tenants that it could create.
Amendment 54ZZA is about letting to students. The Minister made two welcome announcements on Monday. The first heralded the Government’s plans for an initial stage—I hope I am allowed to call it a pilot—in a single place to test the practicalities of the new scheme. The second announcement was that student lettings that are controlled, owned, managed or arranged by a registered educational institution will face no further need for immigration checking by landlords. This is obviously right since the student has been thoroughly vetted already by the higher education establishment.
Capturing the wider definition of what comprises a student letting will need a new form of words. The new clause to come before us on Report may go beyond the scope of my amendment, and the Minister may tell me that Amendment 54ZZA is now quite redundant. But perhaps the Government’s revised measure, which I think will pick up student digs that are lettings in ordinary street properties, may also benefit from the formula in my amendment, which comes from the experts at the British Property Federation.
I will explain Amendment 54ZZA. Sensibly, paragraph 11 of Schedule 3 already excludes specialist lettings to students in higher education, since they have been thoroughly checked by the university or the higher education provider. The Bill exempts traditional halls of residence using the definition that is used for council tax purposes. That definition dates back to 1991, since when there has been extensive private sector provision of purpose-built student accommodation. Amendment 54ZZA extends the exemption from the traditional university halls of residence to embrace privately provided purpose-built student halls—the smart new blocks of student flats now appearing in many university towns and cities.
To avoid going too wide, the amendment specifies that the provider must be a body covered by a code of practice officially approved under Section 233 of the Housing Act 2004. This confines the extension to private sector providers that are properly recognised as managing bona fide student accommodation in partnership with higher education bodies. The amendment avoids the bureaucracy, hassle and duplication of effort for student accommodation providers, who would otherwise have to recheck the status of the students they house when this has been done already by a higher education establishment.
Now that the Minister is willing to extend the exemption for student lettings—I know colleagues will be very pleased with that—I hope that the definition in my amendment covers at least some of the ground. To cover more of that ground, will the Minister comment on the idea put forward by the noble Baroness, Lady Hamwee, on Monday? She suggested that the perfect solution to this problem might be to allow the letter that universities issue to students to exempt them from council tax to also be proof of their exemption from immigration checks. Such an approach would exempt the great majority of students and their landlords, bringing comfort to the many Members of your Lordships’ House who are very keen to ensure that the new measure does not deter overseas students from choosing the UK for their studies.
Let me go swiftly through the rest of my amendments in this group. Amendment 54A would add to the list of exclusions from the Bill’s obligations on landlords, under the list of “excluded residential tenancy agreements”. I know that Crisis has been pleased with some helpful changes already made to the Bill, but tenancies organised for people who are or will be homeless and are placed in the private sector by a responsible body need to go on the list of exclusions in Schedule 3. Organisations such as Crisis are funded by the Department for Communities and Local Government to persuade landlords to take on homeless or potentially homeless people—indeed, the DCLG last week announced extra resources for this valuable work—but, at present, the landlord will still have responsibility for checking the immigration status of these nominees, even though they have been vetted already by the local authority, a charity or a regulated housing association.
The amendment would excuse the landlord from the potential threat that someone whose papers are not in order and who turns out to be here illegally renders the landlord subject to a fine. The arrangements for placing homeless households in the rented sector are extremely important in giving confidence to landlords to take in vulnerable tenants, including those leaving prison, who are perceived to be a high risk. It is not easy to negotiate with landlords who are understandably hesitant to take in people on the edge of homelessness. Telling landlords that they will ultimately carry the can if a household is found later to be here illegally sets up a new barrier. I hope that it is not contentious to exclude placements of this kind from the rigours of the Bill. I hope that the Minister will be able to respond sympathetically.
Amendments 55B, 55D and 55E attempt to head off a major problem with the proposed arrangements: namely, the requirement on the landlord to check the credentials not just of the tenant but of other people who come into the accommodation with the tenant, usually family members. These people are not named in the tenancy agreement and the landlord has no direct relationship with them. Here, the Bill introduces a duty for landlords that goes well beyond the comparable duty for employers. Employers are not required to make inquiries about a potential employee’s family or friends, but landlords will be expected to make thorough checks in relation to other people over the age of 18 who live with the tenant. This is fraught with difficulty and, of all the many reasons that a landlord may avoid getting involved with a particular household and risking a £3,000 fine, this scenario is about the most off-putting. The amendments would remove this extra and unreasonable duty on the landlord and confine the obligation to checking the status of the tenant or tenants who are on the tenancy agreement.
Amendment 55H would remove the obligation on the landlord to notify the Secretary of State of a change to the status of a tenant whom they have already housed. It would take away the need to recheck their immigration status after a tenancy has started. Instead, the landlord would have to reconsider the tenant’s status only when the tenancy ends and the tenant wants to renew it. Once a tenancy has been signed, the landlord clearly would not wish to engage further in these checks, and it seems a step too far to require landlords to look out for and report so-called post-grant contraventions, except when the tenancy comes up for renewal.
Amendment 55R would enable the Secretary of State to give extra time for a landlord who has received a penalty notice to bring forward an appeal if the prescribed 28 days appears in the circumstances to be too short a time. With the complexities involved in these matters, the Secretary of State might well be glad of some flexibility here in the future.
Amendment 56F addresses the tricky issue of the landlord’s obligation to establish whether a person is over 18 years old. We all know that supermarkets find it very difficult to verify a customer’s age when a young person wants to buy alcohol or tobacco. My previous amendments would remove the onerous obligation on landlords to account for the immigration status of people who are not on the tenancy agreement and with whom they have no direct dealings. This amendment is a safety net if the duty to check up on others in a household finds its way on to the statute book. It puts the onus on the Secretary of State to set out an order which makes clear that as long as the landlord or their agent takes specified steps to establish the age of the occupiers, they will not be in danger of being penalised later. Without the amendment, landlords will go in fear of a transgression, despite their best efforts, and the presence of teenage children in a household will present another reason for a landlord not to house a family for fear of breaking the new law.
Amendment 56H is my final amendment. I think it could be helpful in tackling the central problem here: namely, that respectable landlords will henceforth be extremely wary about accepting anyone for a tenancy who just possibly might be a migrant without the correct papers. The amendment shifts the burden of checking out tenants’ credentials to one or more bodies which take on that responsibility and are approved by the Secretary of State for that purpose. Those verifying bodies would no doubt charge for the service, but could make the cost quite modest through economies of scale, dealing with many hundreds or thousands of cases, and would become absolute experts in ascertaining who was and was not an illegal immigrant. As long as the landlord had received the all-clear from the approved body, which might be part of a trade association or a credit referencing agency, the landlord would not need to worry about the new liabilities that they face.
The concept of a body approved by government taking responsibility for a key aspect of the affairs of private landlords is the model used for handling tenants’ deposits. Initially three and now four agencies have been cleared to provide tenancy deposit schemes to deal with all the tricky aspects of collecting and returning deposits. Similarly, the Secretary of State approves bodies to provide ombudsman services to the sector. A similar approval mechanism could lift the burden on landlords struggling to undertake accurate immigration checks and would, I think, reduce the cost to landlords, which may get passed on to tenants if agents are involved, from about £50 a shot to, perhaps, £25.
That measure would be particularly helpful to the Home Office inquiries team, removing a lot of the pressure of fielding queries from amateur landlords up and down the country who would no longer need to bother the Home Office. That arrangement would, I hope, achieve everything that the Government want from this part of the Bill, while reducing a significant financial and administrative burden for the Home Office and greatly reassuring good landlords that they need not turn away people who might just be here illegally, because the checking has been done for them.
I hope that that idea appeals to the Minister, and I am grateful to Richard Jones of the Residential Landlords’ Association for devising it. I look forward to hearing the Minister’s response to the amendments.
Baroness Hamwee (LD)
My Lords, I have three amendments in this group. The noble Lord, Lord Best, has raised a lot of important issues—in some cases as to principle and in some as to workability, with which all of us have been concerned.
On his Amendment 56H, allowing for verifying bodies, it speaks volumes about the views of the Home Office, which we have heard in this Chamber and outside it, that such a suggestion has been brought forward. One sees the comments about the current standards of the Home Office and one looks forward to much improvement, but one can see how such a proposal has come about. I suspect that some such agencies might well grow up outside the statute if we do not provide for them. I can imagine what the Minister may say in response to the amendment—that no third party can be authoritative on this—but I can envisage small landlords casting around for an organisation that can help them with this work.
The first of my amendments, Amendment 56J, is much the same as the noble Lord’s amendment with regard to a person that a landlord thinks is under 18 but in fact turns out to be an adult, for the reasons that the noble Lord has given. Amendments 56K and 56L are to Clause 32. The first would ensure that the Secretary of State could increase only the range of agreements not treated as falling within the scheme—in other words, could increase the range of exemptions but could not bring in through this mechanism agreements that would otherwise fall outside the scheme—while the second would ensure, similarly with regard to occupants, that the Secretary of State could increase only the range of people treated as not occupying premises but could not bring in agreements that would otherwise fall outside the scheme.
I understand that a degree of modification needs to be provided for in the light of experience if the pilot—I shall continue to call it a pilot—proves to be unsuccessful. However, we should understand to whom the scheme is intended to apply at the outset—to whom and to what, I suppose. I am grateful to the noble Lord for raising such a range of issues. He is expressing the concern that we have heard already from all around the House.
Lord Taylor of Holbeach
It is not a question of payment, but of whether that is their principal or main home. If it is not, and they are just a guest for the weekend or for a month, or whatever, that would be a different matter, but if it is the person’s main home, whether there is payment is not relevant to their status. I hope that that is clear.
Baroness Hamwee
On the same point, it is common in leases and tenancy agreements to provide a prohibition against subletting or having a subtenancy. In some of the less formal arrangements that the noble Baroness and I are aware of—I am thinking now about the head landlord and tenant—it may not be normal to provide for that, even though a mortgage company that has lent on property would expect it. I hope that landlords, as we understand them in the normal way, would not be penalised if they had a fairly informal arrangement with a tenant of the sort that would fall within this that did not preclude a subtenancy or sublicence. I hope that I am being clear about that. I can see that there may be more calls on what the landlord should do by precluding the possibility of somebody coming in and lodging or having a sublicence without the landlord himself knowing—and I would not like a landlord to be penalised because of that. It is an allied point; I am seeking for there not to be more requirements on the landlord.
Lord Taylor of Holbeach
I am sorry because, as my noble friend Lord Attlee whispered to me, “You’re wrong”. He is so delicate in these matters. But I am wrong. This transfer of responsibility occurs when rent is paid; when no rent is paid, that is not an arrangement under this scheme. I hope that that is understood, and that it helps to clarify the border as to where the reporting happens.
Baroness Smith of Basildon
I am grateful to the Minister and thank him for clarifying that—we all make mistakes. Does that not seem some kind of a massive loophole in the law—the landlord will have to undertake all these checks to ensure that the landlord’s tenant is a legal citizen of this country and entitled to stay, but the person who is renting the property could then allow guests to stay permanently, with it as their main home and with no payment? It would be possible for a rogue landlord to charge exorbitant rent to one person and for the others to stay for free. There seem to be complications around that, allowing a significant loophole in this legislation, if I am correct—but I may be wrong.
Baroness Hamwee
My Lords, I might add to the complications by pointing to the provision that, although the residential tenancy agreement of rent must provide for payment of rent, it need not be a market rent.
Lord Taylor of Holbeach
Yes, a further elaboration of the point is that the restriction applies only when the person is under an agreement, formal or informal, where the tenant pays rent. The immediate landlord is responsible; if the tenant sublets without the superior landlord’s knowledge, the tenant is responsible for the subtenant. This is quite convoluted language, if I may say so, and it might help noble Lords if I wrote to clarify that point. I see the importance of making it clear where the responsibility lies in these matters; I thank the noble Baroness for raising the issue in the first place and my noble friend Lady Hamwee for her comments.
Baroness Hamwee
(a) an asylum seeker or the dependant of an asylum-seeker as defined in section 94 of the Immigration and Asylum Act 1999;(b) a person provided with accommodation under sections 17, 20, 23C, 24A and 24B of the Children Act 1989 or otherwise under that Act;(c) a person provided with support under Schedule 3 to the Nationality, Immigration and Asylum Act 2002 to avoid a breach of the European Convention on Human Rights;(d) and—(i) an applicant for or a person holding a Tier 4 visa or holding a certificate of acceptance of studies issued by an authority-funded educational institution; or(ii) an applicant for or a person holding a student visitor visa for a period longer than six months;(e) a person who is resident outside the UK and is studying English in the UK who is accommodated in homestay accommodation;(f) ”
Baroness Hamwee
My Lords, Amendment 55A is the first in a group of 12 amendments all about who falls within and outside these provisions. This may be stretching it a little bit, but something occurred to me when listening to the noble Lord, Lord Best, talk about a proposed verifying body. However, I have completely lost my train of thought. I had a really good example to support that proposal and it may come back, but I will move on to the specific amendment.
In Amendment 55A, the first paragraph would provide for not only those asylum seekers whose accommodation is provided by the Home Office—they are covered by Schedule 3—but asylum seekers who make their own arrangements for accommodation. It seems to me that they should be excluded also. On a practical level, the state might be forced to provide for those who could otherwise provide for themselves, which is one of those unintended consequences.
As regards paragraphs (b) and (c) in Amendment 55A, provision is made in Schedule 3 for accommodation from or involving local authorities, but that provision is drafted in terms of the homelessness legislation and does not cover other accommodation such as that provided under the Children Act 1989. Section 17 of that Act is used primarily to support children with their families, Section 20 to support unaccompanied children, and subsequent sections to support care leavers. Where a person is without leave to remain, they will not be entitled to social housing or homelessness assistance from the local authority but in limited circumstances a person at particular risk may be accommodated by social services under relevant legislation because of their disability or ill health.
Paragraph (d) in Amendment 55A deals with students, which I think we will come back to. I suspect that I will be pressing the Minister to go further than the amendments being dangled in front of us may go, but I look forward to seeing them. Lastly, Amendment 55A covers young people accommodated in “homestay accommodation”—I think it should have a capital H—while undertaking language courses.
Amendment 55C would provide that there should be no breach when, after entering into an agreement, a tenant becomes disqualified because of his immigration status. This is a matter that the landlords associations expressed concern about in their evidence to the Public Bill Committee in the Commons. It is a probing amendment through which I seek to understand how a landlord is to ensure that he is not in breach without frequent checks. I think that the noble Lord, Lord Best, referred to this on a previous day. If the landlord is satisfied that the tenant is a British citizen, that is one matter, but if the status is complicated or is not permanent, what is the landlord to do? It seems to me that he must keep on asking, which is impractical.
Amendments 55F and 55J are amendments to Clauses 19 and 21, dealing with excuses—that is the term used—available to landlords and agents. Clauses 19(2) and 21(2) excuse the landlord or agent from paying a penalty, having been given notice of the contravention. There is a world of difference between a contravention and merely not paying the penalty when in fact there was no contravention or, in the case of a landlord with an agent, when it was the agent’s responsibility. Therefore, I am seeking to put the position as I think it should be put, because I do not think that it is just a matter of semantics.
Amendments 55G and 55K are amendments to Clauses 19(7) and 21(7). Similarly, Amendment 55H in the name of the noble Lord, Lord Best, is an amendment to Clause 19(7). These amendments allow me to ask whether it is necessary both to have complied with the requirements during the period and to have notified the Secretary of State without delay. The amendments also enable me to ask whether the phrase,
“as soon as reasonably practicable”,
in these clauses means “without delay” in the eyes of the Government. They are not synonyms in ordinary language. I also ask the Minister to confirm that it is possible to notify the Secretary of State “as soon as reasonably practicable” under subsection (6)(a) without following the route in subsection (7)—in other words, that subsection (7) is not the only way to satisfy subsection (6)(a). I appreciate that this is not language that is holding the Committee riveted at the moment, but these small amendments could be important in practice.
Amendment 55L addresses whether or not the documents need to be “of a prescribed description”. The amendment would mean that any document could be used to prove that a person from outside the EEA had a right under European law to be in the UK or, in the case of other persons, that a document granting leave could be used. In other words, how is immigration status to be proved? I appreciate that in many ways it will be easier if there is a list. However, the list of documents has to be complete and accurate, and I am aware of the frequency of the change in immigration rules, which will affect which documents can be prayed in aid in this situation.
European nationals can bring family members with them. I was thinking about that when we were talking about people who are under or over the age of 18. Those family members may be persons from outside the EU if they have a right to be here and are not under an obligation to possess a document issued by the Home Office. They can apply for one and the Home Office is supposed to provide it within six months. Perhaps the Minister can tell us whether the Home Office wants people falling within this category to apply for documents, as I suspect that that will cause a considerable amount of extra work.
EEA nationals, as a matter of law, should be treated as well as any third-country nationals. It looks as if third-country family members will find it harder to prove their entitlement to be in the UK—even those from a family composed entirely of non-EEA citizens who have visas. There are some small categories of British citizens who do not have passports but can show that they are British through the use of a birth certificate. Is the landlord expected to know that the birth certificate belongs to the individual? The guidance for employers on checking documents, as we have already heard, is very long—more than 80 pages. The amendment probes that area further.
Lord Taylor of Holbeach
My Lords, I do not want to sound complacent because I recognise that this is a cause of anxiety which has been expressed in meetings I have attended. It has also been expressed by other noble Lords in our earlier discussions about the Bill. I do not want to lay too great a store by the codes, but those codes exist, and I do not want to lay too great a store by racial discrimination legislation, which would clearly apply in such circumstances.
What I will do is to ask the right reverend Prelate to accept that this surely applies in connection with employment. I do not know whether the right reverend Prelate feels, as he looks at the nature of people who are engaged in work in this country, that there is widespread evidence of racial discrimination, but I would have thought not. I think it is to the great credit of this country that it is able to welcome people, and this is certainly not a Bill that is designed to make people unwelcome, as long as they have a right to come here and to remain here. That is the principle of this legislation, and I hope the right reverend Prelate will be reassured by that. It is not meant complacently but I believe that, at bottom, the analogy with employer provisions is a good one and leads me to suggest that the particular fear that the right reverend Prelate refers to is not the cause for concern that he thinks it is.
Baroness Hamwee
My Lords, this discussion has confirmed for me the complexity of the provisions, and therefore the advantages in having the sort of verifying body to which the noble Lord, Lord Best, referred in the previous group of amendments. We will come later in the Bill to the position of immigration advisers and tightening up arrangements there. It seems that, as well as rogue advisers, there must be many who are simply incompetent. One could almost say, “Who can blame them?”, but nevertheless I do blame them. Any arrangements which can make it simpler for those who are, as it were, at the coalface to operate will be very welcome. This debate has confirmed that in my mind. My noble friend Lord Avebury has been muttering in my ear about whether case law on employment restrictions applies here. That is another area where I dare say the Minister would say that it depends on the facts, but it is a good illustration of what we may be dealing with.
The Minister said that there was no need for a certified copy of a document, but I was suggesting—I hope—that it could be an option. The reference to the 48 hours to check reminds us all that, in this extraordinary letting market, the property will be gone in 48 hours. The Minister in the Commons talked about the increase in the penalty being based on “aggravating factors”. He said:
“If new information comes forward that demonstrates that, for example”—
I must concede that—
“the mistake was not innocent, but some sort of connivance was involved … it seems only right … that someone looking at the issue afresh should take that into account and reach a conclusion accordingly”.—[Official Report, Commons, Immigration Bill Committee, 7/11/13; col. 272.]
In my mind, that sort of connivance would be a new fact. I would be very happy to look at the language but I am concerned about the deterrent properties of this. I would hope that we might be able to pin that down a little more.
I will carefully read what the Minister said on this as it is a technical point. He referred to the detail of Schedule 3. My noble friend again questioned whether paragraph 8 of Schedule 3 covers the ground that we are concerned about. Going back again to the workability of these arrangements, I must of course read carefully what the Minister has had to say. I thank him for his answers and for what I think he said implicitly. These are detailed points which we might, if it is appropriate, look at again before Report so that we can make sure that anything we raise on Report is justified and not already covered. The Minister is nodding. I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
I start from the position that an informed House is better able to make decisions and judgments on issues. Having said that, I am not sure that I could commit to making a periodic Statement on this issue, although I know that the Home Office will always respond to questions that might seek updated information of this type, and indeed there are other ways in which this House has the capacity to bring the Government to account on policy. At least by promising this Statement I am giving an indication that we are confident that this particular measure will be a success and raise money for the National Health Service, which will be to the advantage of the taxpayers of this country and a bargain for migrants to this country. I hope that my noble friend is reassured by that point.
Baroness Hamwee
My Lords, I am sure that my noble friend is reassured. However, I think that the Committee would also be glad to know—I do not expect the Minister to pin down the detail tonight—the range of issues that will be covered by a Statement. That addresses my noble friend’s point about the data which will be collected. We were quite rightly reminded about the costs of the services, which have not been included in our list. I am sure that there are other points as well. It is the detail that is important and that noble Lords will be interested to know. Perhaps I may leave that with the Minister as something to think about after this stage.
Baroness Williams of Crosby
If my long-suffering noble friend will be kind enough to bear with me for one minute, perhaps I may raise one further point which follows what the noble Baroness, Lady Meacher, said. I think that the Minister said in his response that it was already the case that no charges would be made under the NHS for treating infectious diseases such as AIDS and tuberculosis, and that that would still be true for those who are not permanent residents. I believe that I understood that correctly. It is therefore strange that I have had briefings, particularly from the National AIDS Trust and from bodies concerned with drug-resistant TB, asking that it should be made quite clear that there would be no charges for treatment in the cases of these wildly infectious and very frightening diseases. There is, therefore, something of a conflict of understanding which the proposal of the noble Baroness, Lady Meacher, might go some way towards meeting. However, it is troubling when a professional foundation says something quite different from what I understand we have been discussing and have been told here in this Chamber.
Immigration Bill
Baroness Hamwee Excerpts(10 years, 8 months ago)
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Baroness Hamwee (LD)
My Lords, I may be quite wrong in my recollection, but I remember reading somewhere that only a single consultation with a GP would not be charged for. I hope that I am wrong in thinking that, but if that is the case, I am really worried. It builds on my noble friend’s point about diagnostic testing. I have a wonderful GP, but on the, happily, rare occasions on which I see him, he usually says, “Go to have a blood test and come back”, or “Let’s see how it goes and come back”.
Amendment 66E covers ground that has already been thoroughly covered by the noble Baronesses, Lady Meacher and Lady Cumberlege, about both victims of domestic abuse and persons who are believed to be victims of trafficking. The point about identifying both those groups—not all of them, but many of them, women—is very important. Often, they may not even be suspected of falling within those groups until they see a doctor. Doctors are in the best place gently to investigate how certain conditions have come about, because the patient may not be prepared to disclose the information without being encouraged to do so, and may not have disclosed it to anyone else—possibly not even to a doctor on initial consultation. Although the intention here is good, we have to be clear about how the provision will be implemented, as well as getting assurances that what we understand to be the case will be the case.
Baroness Smith of Basildon (Lab)
My Lords, there is little I can add to the points made eloquently by noble Lords—although, in an all-female debate, perhaps I should say noble Baronesses. Some points are not dissimilar to the principles that we raised on Monday about exemptions on housing issues and the rate of pregnancy and domestic violence. Again, the debate highlights confusion and a lack of clarity. The Government have to accept some responsibility for that confusion and lack of clarity.
The case raised by the noble Baroness, Lady Meacher, and reinforced by the noble Baroness, Lady Finlay, is that victims of domestic violence and victims of female genital mutilation are not just vulnerable but are victims of crime. That is a step further than vulnerable.
I recall that when I was a PPS at the Home Office many years ago, the Government piloted working with A&E departments to identify women who presented with injuries that were likely to be the result of domestic violence, to see whether we could get those cases through the courts and protect the women from being victims again. That was a very important part of A&E working as part of the whole criminal justice system. I worry that women who should present themselves to health services to receive treatment for violent injuries and FGM—the case presented by the noble Baroness, Lady Finlay, was horrific—will be victims of trafficking. We have to imagine the terror of someone who has been trafficked to the UK, often for sex or slavery. They may not speak English; they may not be aware of their legal status; they will have little trust; they will be fearful and in poor health; and they will be worried about going to the authorities in the first place because of worry about their own status.
There needs to be careful thought about how that can be managed. The Minister and the Government have been helpful in saying that victims of human trafficking will be exempt from charges. They have been very clear on that, but much concern has been raised about how to identify those women and help them come forward. What the noble Lord said was helpful, but he needs to say more.
I return to the question of what this means and the complications that other noble Lords have raised. What is the Government’s definition of success here? If their policy is successful, health services will be able to check the eligibility of those who are entitled to free healthcare and, consequently, charge those who are not eligible. The second aim is to draw to the attention of the authorities those who present and do not have a legal right to stay in this country. The point about public health is particularly pertinent here, and I would like to know what the Government are thinking on this and how they identify the problems.
If identifying those who are not legal migrants and reporting them to the authorities means that those people are less likely to report for healthcare, what are the implications for public health if someone has an infectious disease that needs treatment or a condition where a lack of early intervention means more expensive, or even emergency, care? We heard about the case in Northern Ireland. Another case I have been aware of is that of a young woman who had asthma. Simple preventive treatment would have been cheap and easy, but the care later on that was necessary because she had not had that treatment was very dangerous to her health and expensive to the public purse.
The question of far greater cost comes back to the issue of mental health cases. I take the point made by the noble Baroness, Lady Barker, on this. If someone has mental health problems, they are likely to be a danger to themselves and to others. I am sure that it is not the Government’s intention that those people should go without healthcare, but we have to recognise that there are specific obligations in those cases. I am seeking from the Minister an explanation of what thought the Government have given to these issues prior to bringing the Bill forward, and what plans are in place to deal with these kinds of issues regarding the most vulnerable—the victims of crime, those who could be a danger to themselves or to others, and those who could present at even greater cost to the public purse if they do not get the treatment that they need? I am particularly interested in the Minister’s response on this matter.
Baroness Hamwee
“( ) A person is within this subsection if he or she has made a claim for asylum which has not yet been determined by the Secretary of State or has been refused and an appeal against that refusal is pending, and—
(a) “claim for asylum” has the same meaning as in section 94 of the Immigration and Asylum Act 1999 (interpretation of Part VI);(b) an appeal is pending for the purposes of this subsection when it is pending under section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeal).”
Baroness Hamwee
My Lords, in moving Amendment 66G, I will speak also to Amendments 66H, 66J, 66K and 66L. This takes us on to the provisions regarding bank accounts, which is perhaps a slightly drier issue than others we have discussed but is very important.
The Bill prohibits the opening of current accounts for disqualified persons and regulates banks’ operations in this regard. The first of my amendments in this group would provide that someone who has made a claim for asylum which has not been determined, or whose claim has been refused but an appeal is pending, would also be covered by the exclusion. The clause, as drafted, seems to exclude persons on temporary admission. It is most likely that those on temporary admission for a lengthy period are seeking asylum. I do not suggest that many of those will have a lot of free cash and want a current account, but some whose claims have been pending for a long time may be allowed to work in a shortage occupation. I imagine that this is quite rare, but some may even be able to get some money out of their country of origin. Those people ought to be able to have a bank account. How can that be permitted if the clause remains as drafted?
Amendment 66H goes to the definition of a “disqualified person”, whom we are told in Clause 35(3)(b) is,
“a person within subsection (2) for whom the Secretary of State considers that a current account should not be opened”.
I suggest that the Secretary of State should be required in the Bill to act “reasonably”. I certainly acknowledge that, as a matter of law, it may well be that she should act reasonably, but the complete discretion is concerning. We are not told of any criteria on which the decision will be based. The Explanatory Notes state:
“The Secretary of State therefore has discretion as to who should be barred … because there will be some individuals who face legitimate barriers which prevent them from leaving the UK, even though they do not have leave. The Secretary of State may enable these persons to open a current account”.
It is important to have published on the record the criteria on which the Secretary of State will base her decision and what options someone who is not able to open a bank account has to challenge her refusal.
That takes me to Amendment 66J, because I cannot see how one would challenge the decision. Provided that they do not discriminate and act lawfully, banks can refuse to open a bank account as they choose. However, if the Secretary of State can order them to refuse to open an account, I wonder whether she can require them to make a provision for a refusal to be challenged. It is a very homegrown and underdeveloped amendment, but there has to be some means of challenging because the consequences are serious. Being refused a bank account goes to one’s credit status and to an application for a mortgage at a later stage, and a number of other consequences may apply to somebody who should never have been refused in the first place. I am seriously concerned about this.
Amendment 66K is on our old friend in Clause 36(1): “The Treasury may”—or “must” it?—“make regulations to enable” the FCA to monitor and enforce compliance. Might the Government think it right to bring the scheme into force but not have these arrangements made?
Finally, Amendment 66L is on “in particular” in Clause 36(2)(b), which provides that “The regulations may” make certain provision,
“including in particular those mentioned in subsection (3), with or without modification”.
I am not clear what is added or suggested by all that and hope that the Minister can help me on it. I beg to move.
Lord Avebury (LD)
My Lords, at the moment it is entirely at the discretion of a bank or building society to agree to open a current account in the name of a person who requires leave to enter or remain but does not have it. The status checks that the bank would carry out would be to determine whether the applicant was financially reliable rather than what his immigration status was—although if he falls within Clause 35(2)(b), he is unlikely to be acceptable to the bank.
Clause 35 provides that a bank has to refuse to open an account for a person who does not have permitted leave to remain, and who is also labelled on a database operated by an unspecified anti-fraud organisation or data-matching organisation as a person whom the Secretary of State considers should not be able to open a current account. I should be grateful if the Minister would elaborate on the details of the organisation to which the banks will have to refer and how it will be established. It means that there will be some people on temporary admission whom the Secretary of State might consider eligible to open a bank account; the Explanatory Notes say this in fact means individuals facing legitimate barriers preventing them leaving the UK.
However, neither the Bill nor the Explanatory Notes gives any detail as to how the Secretary of State will make these decisions or what rights a person will have to challenge her refusal to let him open an account. Should not an asylum seeker who has exhausted his rights of appeal against refusal but is given further temporary leave to remain be allowed to open a bank account? One thinks of the Zimbabweans who were given temporary leave over many years, many of whom opened current accounts if they satisfied the bank’s conditions. Clause 35 prohibits a bank only from opening a current account in the name of a disqualified person, not from continuing to afford facilities to such a person who already has an account. Will this be made clear in the guidance that no doubt will be given to the banks?
Amendment 66G removes from the scope of the clause asylum seekers whose claim has not been finally determined. Most of these people, as my noble friend said, will be very poor and thus unlikely to need a current account, but even those supported by the National Asylum Support Service under Section 95 of the Immigration and Asylum Act, and who receive payments fortnightly, may not wish to carry around the money they receive. A couple with two children under 16 would receive £357 a fortnight, which is quite a large sum to have in one’s pocket or handbag.
Asylum seekers whose claims have been pending for more than a year and who can find employment in shortage occupations may be allowed to work, and my noble friend Lord Roberts will suggest in later amendments that the right to work should be further extended. These people will need accounts into which their wages can be paid. For that matter, could my noble friend say how many people it is estimated will be prevented from opening accounts under this clause who would otherwise have been able to be accepted by the banks under their own rules? What is the cost to the Government of setting up and managing the database, and what is the cost to the banks of making the checks required?
On a casual inquiry at my own bank, Santander, I was told that it would open an account only for a person who was resident in the UK—rather an incongruous condition to be imposed by a foreign-owned bank. It would mean, if the bank meant it literally, that it would not open an account for an EEA citizen who owned a holiday home in Cornwall or for a foreign student—but perhaps the bank makes exceptions.
An immigration lawyer who deals with a substantial number of immigration cases told me this morning that the banks invariably refuse to open current accounts for asylum seekers and appellants. So the result that the Government are aiming for in these clauses is already being achieved by market forces. However, Clause 37 defines the term “bank” to exclude credit unions, and the London Community Credit Union confirmed to me this morning that it would be prepared to open a current account for an asylum seeker, provided of course that his papers were in order. Will my noble friend confirm that asylum seekers and those who appeal against refusal of asylum will continue to be free to open current accounts at credit unions?
Earl Attlee (Con)
My Lords, I am grateful to my noble friend Lady Hamwee for the clear and succinct way in which she spoke to her Amendments 66G to 66L. These amendments seek to make various revisions to the bank accounts provisions. The objective of these provisions is to make it much more difficult for people to operate in the UK if they do not have the appropriate immigration status to be here.
Amendment 66G would amend Clause 35(2), which sets out the group of people who may be disqualified from opening an account. This amendment would specifically add to this group asylum applicants who have an outstanding claim. I am not convinced that that is what my noble friend intended. However, I can confirm that the policy intention is not to prevent these people opening a current account. The details of persons who are liable to removal and who have exhausted all their appeal rights will be the only ones shared with CIFAS, the specified anti-fraud organisation. By definition, this will not include persons with outstanding asylum applications and appeals.
My noble friend Lord Avebury asked about CIFAS. It is already a recognised checking agency and has been selected because we believe that it is the best organisation to perform this function. I will write to my noble friend with further details about that.
My noble friend also talked about the cost of these checks. First, I make it clear that a customer applying to open a bank account will not notice any difference, as these will just be checks that the banks do electronically with CIFAS. Because they are done electronically with an existing organisation, there will not be significant extra costs.
Amendment 66H would insert the word “reasonably” into the definition of a disqualified person. This amendment is unnecessary. As a matter of general administrative law, the Secretary of State is obliged to act reasonably, as pointed out by my noble friend. If he did not act reasonably, I am sure that he could be challenged in the courts by means of judicial review.
Amendment 66J would create a right to challenge or appeal against the refusal of a bank or building society to open a current account. The refusal of an account for a disqualified person by the bank or building society is mandatory and flows directly from an individual’s immigration status and the Secretary of State’s decision to disqualify the individual from opening an account. It remains open to individuals to apply via the immigration system to regularise their status or appeal through that route as appropriate. We do not need to create a fresh appeals mechanism here. However, I want to provide reassurance that if any details given to CIFAS are incorrect or become out of date, an individual would be able to complain directly to the Home Office. In answer to the noble Baroness, Lady Smith, the prohibition is on opening an account, not having an account. If I am incorrect on that, I will write to the noble Baroness.
If there is an error at CIFAS, the Home Office would then have a legal obligation under the Data Protection Act 1998 to correct it. The Home Office exercises considerable care over the quality of the data it shares with CIFAS and has systems in place to regularly update CIFAS records if someone’s status changes. From over 100,000 cases notified to CIFAS since 2012, I am aware of only one complaint being made to the Home Office.
Amendment 66K would require the Treasury to make regulations enabling the Financial Conduct Authority to make arrangements for monitoring and enforcing compliance. The amendment is not necessary, as I can assure the Committee that we will make such regulations.
Amendment 66L would leave out the words “in particular” from Clause 36(2)(b), which refers to provisions of the Financial Services and Markets Act 2000 to which the aforementioned regulations may apply. The words “in particular” are intended to make it clear that the list of provisions is not exhaustive, and they follow similar provisions in LASPO. The list is simply intended to give a clearer sense of the provisions that the regulations are intended to cover.
In short, my noble friend Lord Avebury expressed concerns about whether these measures were appropriate. These proposals do not breach human rights legislation; they will not impact on a person’s ability to provide themselves with the basic necessities, nor prevent them interacting with the world around them. This measure is necessary and proportionate; it supports immigration control which is a legitimate aim. My noble friend was asking broadly what would be done to ensure that the measures do not have the effect of turning the individuals concerned into vulnerable people. These individuals will still be able to conduct everyday transactions using cash, but I heard the noble Lord express concern about people’s supply of cash mounting up. In the past he has chided me about the relatively limited amounts of money supplied under Section 4 support to failed asylum seekers. The measures will make it more difficult for them to obtain loans and conduct a settled life in the UK, but it will not make it impossible for them to exist.
I hope that I have reassured the Committee that these amendments, while useful for seeking assurance, are not necessary, and I hope that my noble friend will feel free to withdraw them.
Baroness Hamwee
My Lords, to pick up on the phrase my noble friend has just used about cash mounting up, that is not the point that my noble friend Lord Avebury was making. He was talking about the cash that one might have in one’s pocket immediately upon collecting two weeks’ money. It is quite a lot when you receive it but it has to be eked out over two weeks.
Earl Attlee
My Lords, is the noble Baroness talking about support under Section 4 or Section 95? If it is under Section 95, the person will still have an outstanding claim and will therefore be able to open a bank account. If I am wrong on that, I will, of course, write.
Baroness Hamwee
That is helpful. I am grateful. On the issue of the Secretary of State acting reasonably, I was seeking the criteria. I am grateful for the detail of the Minister’s responses. Obviously I need to read them, as one always does, against my questions and against Clause 38, which gives the Treasury quite wide, but not unlimited, powers to amend what will be Sections 35 to 37. The practicalities and practice of this, as my noble friend will understand, concern us. However, I am grateful for the answers and I beg leave to withdraw the amendment.