Immigration Bill

Debate between Baroness Hamwee and Lord Bishop of Norwich

Monday 21st March 2016 Lords Chamber

[The Lord Bishop of Norwich]

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

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

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

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

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

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

[Baroness Hamwee]

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

Immigration Bill

Debate between Baroness Hamwee and Lord Bishop of Norwich

Wednesday 3rd February 2016 Lords Chamber

[The Lord Bishop of Norwich]

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

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

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

that duty is not in doubt—and that,

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

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

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

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

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

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

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

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

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

[Baroness Hamwee (LD)]

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

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

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

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

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

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

and that,

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

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

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

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

“the spouse of a national of any EEA”—

European Economic Area—

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

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

“would have to leave the country”.

--- Later in debate ---

[The Lord Bishop of Norwich]

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

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

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

“a genuine obstacle to leaving the United Kingdom”,

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

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

[Baroness Hamwee]

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

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

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

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

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

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

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

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