Immigration (Health Charge) (Amendment) Order 2018

Baroness Lister of Burtersett Excerpts

Wednesday 28th November 2018 Lords Chamber

[Lord Hylton (CB)]

My Lords, the Refugee and Migrant Children’s Consortium is deeply concerned about this order, which doubles the health surcharge. These concerns are, I suggest, important because of the interaction with other charges. In the past, people who were here legally but with uncertain future residency could expect to remain after six years, with good behaviour. Now they will be granted only two and a half years in extensions and thus may have to pay over £6,500 just to remain, as the noble Lord, Lord Rosser, pointed out. On top of this, they may have to find £2,000 for an immigration health surcharge, in what one might call a double whammy. This is particularly hard on those on low earnings because of their uncertain status. They are also doubly taxed if they suffer PAYE and national insurance on their wages.

The noble Lord, Lord Paddick, rightly mentioned the case of nurses from the Philippines. Ill health, or health at all, may thus become a cause of homelessness if rent arrears lead to eviction. The Government may say that there are exemptions for some. However, children in care are exempt, but not children who live with their natural family. A family with four children may have to pay £8,100 on several occasions. The situation may be even worse if the family is also paying fees to register for British citizenship. An impact assessment has been published, but it makes no reference to working parents and their children.

This is an anti-family measure. Her Majesty’s Government should withdraw this order and think again. They must consider its impact on those least able to pay and not just on fat cats and non-doms. Will they please also rethink the exemptions? I support the amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to speak in support of the amendment moved by my noble friend Lord Rosser, particularly its reference to those who came to the UK as young children. I apologise if I repeat some of the arguments already made, but they bear repetition. I am grateful to the Refugee and Migrant Children’s Consortium for drawing to our attention the implications of doubling the surcharge for children and young people making immigration applications from within the UK on the basis of prior long residence in the UK, many of whom are vulnerable and living with parents who cannot possibly afford this surcharge.

I am struck by how the Government constantly refer to it as a charge for “temporary migrants”. The evidence base attached to the statutory instruments says that. The Minister’s Written Answer of 14 November to the noble Lord, Lord Jones of Cheltenham, said it. The Minister for Immigration said it when introducing the statutory instruments in committee in the other place, and this afternoon the Minister constantly used the term “temporary migrants”. As my noble friend said, these children are not temporary migrants. Many have grown up here, look to make a future here and have a legal right to do so. Why are they and their parents being expected to pay a surcharge which is designed for temporary migrants? I would be grateful if the Minister could answer that.

As we have heard, when added to the fees that families are already required to pay for their children to acquire indefinite leave to remain, the total bill over a 10-year period will come to more than £10,000.

Last week, the Parliamentary Under-Secretary of State for Children and Families made a Written Statement to mark the anniversary of the UN’s adoption of the Convention on the Rights of the Child. He stated:

“The UK is a proud and long-standing signatory of the United Nations convention on the rights of the child … and this Government remain fully committed to the promotion and safeguarding of children’s rights.


The UNCRC sets out an enduring vision for all children to grow up in a loving, safe and happy environment where they can develop their full potential, regardless of their background. This Government share that vision and are dedicated to providing the best possible opportunities for all children but especially those who have the hardest start in life”.—[Official Report, Commons, 20/11/18; col. 21WS.]


Will the Minister explain to your Lordships’ House how doubling the surcharge on top of the exorbitant fees these children and their families already face squares with that very positive vision?

According to the consortium, the cumulative cost of the fees and surcharge is,

“seriously impacting on the quality of children’s lives, affecting their development and forcing families into long-term poverty”.

Do the Government know that or even care, given that they have not even bothered to make any reference to the potential impact of the surcharge increase on children and young people and their rights in the impact assessment provided? Will the Minister undertake to rectify this omission and at the very least ensure that a child’s rights impact assessment is provided retrospectively and, perhaps more importantly, in all future regulations relating to both immigration and citizenship fees and charges affecting children? This is not the first time that we have had regulations of this kind without any assessment of the impact on children.

--- Later in debate ---

[Baroness Williams of Trafford]

I think we will have a disagreement on a point of principle, but if the noble Lord could let me outline the Government’s position—I will certainly take interventions at the end—I will explain why temporary migrants coming to this country get a fair deal.

A number of noble Lords have raised the issue of NHS professionals and how they ought to be exempt from the charge. The Government fully recognise the contribution that international healthcare professionals make to the UK, but it is only right that they also make a proportionate contribution to the long-term sustainability of the NHS. In that regard, NHS professionals are in the same position as other providers of essential public services, including teachers.

I recognise that there are concerns about the financial impact on nurses. However, the answer is not to exempt nurses from the charge but to increase their pay. This is happening. All NHS nurses will benefit from a pay increase as set out in the Agenda for Change framework. It is important to remember that the charge offers access to healthcare services that are more comprehensive and at a lower cost than those in many other countries. Most professionals who choose to work overseas need to have the appropriate medical insurance in place, which is the point that I made to the noble Lord.

Paying the charge ensures that the income generated goes directly to NHS services, helping to protect and sustain our world-class healthcare system for everyone who uses it. I am conscious of the concerns regarding the combined cost of the charge and visa fees. However, the charge is set at a competitive level and will remain low compared to the potential benefit, which is free access to the NHS. It offers better value than private medical insurance where the premiums are more expensive. As a matter of interest, I looked at the average insurance cost for the average American, which is $320 per month—significantly more than we would expect to pay. The Government are clear that migrants must pay the charge when they make an immigration application and should plan their finances accordingly. The costs of both the health charge and the application fees are available online and should not come as a surprise.

Many noble Lords spoke about vulnerable groups. We are committed to ensuring that vulnerable groups can access the NHS without charge. There are several groups applying for leave to remain in the UK who are exempt from the requirement to pay the immigration health charge as set out in the Immigration (Health Charge) Order 2015, and they continue to apply. They include people who apply for leave to remain relating to an asylum or humanitarian protection claim, and would absolutely include people who the noble Lord, Lord Hylton, spoke about, such as refugees, victims of modern slavery and children in local authority care.

Those who are exempt from paying the immigration health surcharge or who have the requirement waived are treated the same as those who have paid it, so they are entitled to virtually all NHS care free of charge. Noble Lords, including particularly the noble Baroness, Lady Lister, and the noble Lord, Lord Rosser, talked about how the requirement to pay up front could discriminate against those on low incomes. As I have said, the charge is set at a competitive level and is low compared with the potential benefit of free access to the NHS. Migrants are aware of the rules when applying for a visa, including the need to maintain and accommodate themselves in the UK, pay the health charge—and ensure they plan their finances accordingly. As I have said, and as noble Lords have mentioned, there are exemptions available.

A number of noble Lords talked about children. I am aware of the concerns raised about the impact of increasing the charge on children. Children are as likely as adults to use NHS services; as such, it is only fair that their parents or guardians contribute to the cost of their care. The Government continue to ensure that those who are most vulnerable are protected. Where an application fee is waived on destitution grounds the surcharge is also waived and, as I have mentioned, exemptions are in place for children in local authority care.

The noble Lords, Lord Paddick and Lord Rosser, talked about nurses.

[Baroness Lister of Burtersett]

The Minister is moving on to another issue, but could we stick with children for a moment? A number of noble Lords made the point that these children are not temporary migrants. At the outset, following an intervention, she said she would explain how temporary migrants get a fair deal. Then she said that migrants are aware of the rules when applying for a visa—but we are talking about children who are here, who have been here for some time, and who want to stay here. Could she please address that point?

[Baroness Williams of Trafford]

If you intend to be here temporarily, you apply for a temporary visa and you are captured by the immigration health surcharge, but clearly if you have indefinite leave to remain or are a citizen of this country, the health surcharge no longer applies to you.

[Baroness Lister of Burtersett]

But the point is that, to get leave to remain, people have to pay over 10 years and, as noble Lords have said, that amounts to over £10,000 when you add in this new surcharge. Therefore, it is making matters very difficult. It is a Catch-22 situation, is it not? How do the children get to show that they need to remain if they cannot afford it and the ability to afford it is being reduced by the health surcharge attached to the fee?

[Baroness Williams of Trafford]

My Lords, in estimating the charge, we estimated the cost of providing healthcare to someone who is here temporarily. The cost was estimated at £470 per person. To answer the point raised by the noble Lord, Lord Rosser, we decided to set the charge at £400 and not at full cost recovery because we recognise the contribution that migrants make to this country. We have not set the charge above cost recovery, as the committee had suggested.

I realise that the surcharge might make an application very expensive but we think that it is proportionate, given the access to healthcare that people will avail themselves of, and of course it is considerably cheaper than if they were to have private healthcare insurance. I am not decrying the fact that it might be expensive for a family—I appreciate that—but it is significantly cheaper than if they were to have private healthcare insurance, and of course the people concerned generally come here to work. I do not decry the fact that it is expensive; I am saying that, first, it is significantly cheaper than what we might pay for private healthcare as migrants going to any other country and, secondly, the service that they will get from the NHS once they have paid the surcharge has to be taken into account.

[Baroness Lister of Burtersett]

I am sorry to push it, and I promise not to do so again, but a number of noble Lords have pointed out that there is no child rights impact assessment, even though I think that one was promised in response to a Written Question. Can the noble Baroness undertake to take back to the Home Office the concern raised here so that in future, whenever regulations affecting children are brought before us, the impact assessment will include a proper assessment of the impact on child rights and not the cursory words to which the noble Lord, Lord Russell, referred?

[Baroness Williams of Trafford]

I can certainly undertake to take this away and provide for the noble Baroness and other noble Lords a more fulsome illustration of the impact. I have an illustrative example of a nurse and I can write to noble Lords with that.

--- Later in debate ---

[Baroness Williams of Trafford]

I will. I will not give him an adequate response, but I will tell him why; if that is okay.

The noble Lord, Lord Rosser, asked why the charge was set below cost recovery levels. I think I have answered that. He asked why the estimate in 2015 of £800 per person is so different from what we have now. It is because in 2015 it was just that, an estimate. We can now give an actual figure, given that people actually use the health service. The noble Lord also asked why we decided to double it on the basis of Department of Health and Social Care analysis. He will know that we made a commitment before the 2017 general election to triple the surcharge. We have not; we have doubled it. It was because we had made a manifesto commitment that we did not consult on the issue.

The noble Lord also asked about EU citizens. We are in the process of negotiating reciprocal healthcare arrangements with the EU. We have reached agreement on citizens’ rights that will protect EU citizens and their family members who are resident in the UK by the end of the planned implementation period on 31 December 2020. We have made it clear that the immigration health surcharge will not apply where EU citizens make immigration applications during the implementation period after the UK leaves the EU. We will set out our plans for the future border and immigration system in a White Paper later this year, which, noble Lords will work out, has not long left. Another noble Lord asked that question. I will not pre-empt or trail the White Paper with further detail at this stage.

We have been through the double taxation argument. I do not think that the noble Lords who asked about it agree with me, but I have made the point that the charge is fair not only to migrants but to UK national and permanent residents who have or will make a greater contribution to the NHS over their working life.

The noble Lord, Lord Paddick, and the noble Baroness, Lady Jones, talked about the compliant environment. This is nothing to do with the compliant environment. The charge is intended to ensure that temporary legal migrants make a fair contribution to the cost of their healthcare in the UK. In contrast, the compliant environment is a suite of compliance, deterrence and data-sharing measures that form part of our overall approach to deterring and tackling illegal migration and protecting public services.

The noble Baroness, Lady Lister, asked why children do not feature in the impact assessment. This is because it is at a macro level rather than an individual level. I know she does not like that answer but individuals are fully catered for in the system of fee waivers and exemptions, and a child is as likely to need healthcare as an adult.

[Baroness Lister of Burtersett]

I know I said I would not come back to this issue but no impact assessment deals with individuals; they deal with groups. An equality impact assessment would deal with equality groups. A child’s rights impact assessment is supposed to inform us, not whether they are more or less likely to have healthcare, but what the impact is going to be on the rights of that child. All I was asking for was an assurance that future regulations have a proper child rights impact assessment as a part of them.

[Baroness Williams of Trafford]

I take the noble Baroness’s point because in everything we do with law, we have to consider the rights of the child. That is a basic requirement on the Government. It may be implied, it may not be, but I entirely take the noble Baroness’s point.

The noble Lord, Lord Rosser, asked me about undocumented children having to make four applications over 10 years at over £10,000. These applicants fall within the scope of specified human rights applications for which fee waivers are available—we have gone over that point—but, of course, parents may apply for the fee waiver for the child.

We have produced the policy on equalities assessment and will provide it to Peers who have spoken in this debate and place a copy in the House Library. I cannot stand at the Dispatch Box and say that it includes children. I suspect from what the noble Baroness says that it does not, so I go back to my previous point.

The noble Baroness asked about the chief inspector’s report and when it will be published. The immigration fees and the surcharge are obviously two separate things. The Government made a manifesto commitment to increase the surcharge and it is important that we deliver on that.

The noble Baroness also asked about the proportion of applicants receiving a waiver—this goes to the point made by the noble Lord, Lord Russell of Liverpool—but we have not published that information. However, we are reviewing the process because, as time goes on, these issues necessarily become more complex. I know that does not answer entirely the point made by the noble Lord, Lord Russell, and the noble Baroness, Lady Lister, but we will be reviewing that.

Brexit: Economic Effects

Baroness Lister of Burtersett Excerpts

Wednesday 21st November 2018 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, in a statement last week, the UN rapporteur on extreme poverty and human rights said that Ministers were treating,

“the impact of Brexit on … poverty”,

as “an afterthought”. What assessment are the Government making of the likely impact of Brexit on the very high poverty levels in this country?

[Lord Bates]

Many people looked at the special rapporteur’s response, but also at the fact that the number of people in poverty has been steadily falling, that the number of children in poverty has been steadily falling, that employment is at record levels, that growth is on the up, that inflation is on the down, that our exports are rising and that growth and opportunity are there for jobs and education—which are the best routes out of poverty.

Domestic Abuse

Baroness Lister of Burtersett Excerpts

Monday 19th November 2018 Lords Chamber

[Baroness Williams of Trafford]

I take this opportunity to thank my noble friend for all the work she has done as Victims Commissioner and for the 14 recommendations that she put to government. As I said in my Answer to the noble Lord, Lord Bassam, the Government will respond to the consultation very shortly. I look forward to engaging with her extensively as the Bill goes through this House.

[Baroness Lister of Burtersett (Lab)]

My Lords, what discussions has the Home Office had with the DWP about the implications for the domestic abuse strategy, particularly the part about economic abuse, of the harmful so-called welfare reform policies in the light of the concerns raised by the Home Affairs Select Committee?

[Baroness Williams of Trafford]

I thank the noble Baroness for her question and for the very real concerns she raised about welfare benefits. I assure her and the whole House that the changes in the benefits system will not cause a reduction in support levels for victims of domestic violence: that would be completely counterintuitive to what we are trying to do. I do not know whether she was referring to split payments, but if an individual suffering domestic violence puts in an application for a split payment, the DWP will support them in that.

Immigration: Appeals

Baroness Lister of Burtersett Excerpts

Tuesday 6th November 2018 Lords Chamber

[Baroness Williams of Trafford]

It is a shame the immigration department is not at the Dispatch Box. I agree with the noble Lord; we have had several discussions on this. My right honourable friend the Immigration Minister is absolutely aware of this and is trying to make improvements in the process. What the noble Lord and I have been talking about is that the process is not entirely clear in some of these cases.

[Baroness Lister of Burtersett (Lab)]

My Lords, will the review of Home Office culture and practices instigated by the Home Secretary include the “hostile”/“compliant” environment policy? If not, it is unlikely to have much impact on decisions on immigration matters.

Immigration Detention: Shaw Review

Baroness Lister of Burtersett Excerpts

Tuesday 24th July 2018 Lords Chamber

[Baroness Williams of Trafford]

That sounds ominous —I am having my holiday.

I will go first to the noble Lord, Lord Rosser, who asked why there was a delay in publishing. I have probably trailed this on several occasions, when I said that Stephen Shaw had published his report and we were considering it and would respond in due course. We have rightly considered what is, as noble Lords have said, a big tome, before responding to it today. I hope that the noble Lord and the House do not see any conspiracy in the fact that it has been responded to on the last day.

The noble Lord said that the Government’s efforts had no impact on vulnerability. Stephen Shaw acknowledges real progress and said that it would be folly to abandon our reforms now. The adults at risk policy has certainly strengthened our focus on vulnerability and on the existing presumption against the detention of those who are particularly vulnerable to harm. However, I agree, as does my right honourable friend the Home Secretary, that we need to do more. That is why we will differentiate more strongly between vulnerable cases to ensure that the most complex get the attention that they need, building on the progress that has been made, to provide greater protection for the most vulnerable.

The noble Lord made the point that half the people detained are released and asked whether detention was therefore right in the first place. We would all like the proportion of detainees who are removed to be higher and we are tackling barriers to that. However, people may be released from detention for a wide range of reasons: by the courts, by appeal or by other legal proceedings, or there might have been a material change in their circumstances. That does not necessarily mean that the original decision to detain was inappropriate or wrong.

The noble Lord talked about time in detention being over six months. The Government totally agree that we should detain people for the minimum amount of time, consistent with their removal. Continuing challenges on documenting individuals and late appeals are an issue. The issues of foreign national offenders and public protection also remain important considerations.

I shall have to gallop through my replies. The noble Lord, Lord Rosser, referred to problems with additional beds. He will have heard today that my right honourable friend the Home Secretary has announced that there will be no more than two beds to a room. He also talked about the detention of pregnant women. Decisions on whether or not to detain individuals have never been predicated on absolute exclusions for any particular group. Being pregnant is not of itself a vulnerability, but I understand where the noble Lord is coming from on that. He mentioned indefinite detention. The Government are committed to getting more evidence on this issue into the debate. He will have heard what I said about my right honourable friend the Home Secretary carrying out a review into that and publishing its findings.

The time has run out extremely quickly. I do not know whether that is because noble Lords spoke for too long or because I did, but I have a number of unanswered questions, to which I will reply in writing and place a copy in the Library.

[Baroness Lister of Burtersett (Lab)]

My Lords, I return to the issue of pregnant women, which was of particular concern to your Lordships’ House when we considered these matters during the Immigration Bill—indeed, we voted for an absolute exclusion following Stephen Shaw’s original recommendation. In his report he quite mildly said that it would “assist” decision-making if the default position were to be an absolute exclusion of pregnant women from detention. The figures show that between July 2016 and January to November 2017 there were still 73 pregnant women detained, of whom 60 were released. For only 15 was there any case for detention. Will the Government look again at the question of an absolute exclusion?

On vulnerability, I am not quite sure I understand the Minister’s reply—I appreciate that she has had to move quickly. Have the Government accepted the specific recommendations 11, 12 and 13 in the report on adults at risk? In particular, will they consider the merit of the UNHCR vulnerability screening tool, which a number of voluntary organisations have recommended?

[Baroness Williams of Trafford]

I am glad that I have got some more time because the noble Baroness, Lady Lister, has nicely segued into some points I was going to make.

On pregnant women—I have made this point many times before—being pregnant does not of itself make you vulnerable. However, I understand where she is coming from.

On vulnerable detainees in general, the noble Lord, Lord Rosser, made the point that the policy was not working. In fact, Stephen Shaw described the adults at risk policy as a work in progress. We all agree that there is more to be done to make sure that the most vulnerable and complex cases get the attention that they need. As to rule 35, which reports on possible cases of torture and which noble Lords have criticised in the past, we will look again at how we can improve on it while avoiding abuse of these processes. We will pilot an additional bail referral at the two-month period—which comes back to the point made by the noble Baroness, Lady Hamwee.

The adults at risk policy requires a case-by-case assessment of the appropriateness of the detention of each individual. The policy means that vulnerable people are detained only when the vulnerability factors are outweighed by immigration considerations. So I do not agree with the noble Lord’s point that the policy is not working, but we need to continue with the progress that has been made so as to ensure that vulnerable people get the help that they need.

[Baroness Lister of Burtersett]

Will the noble Baroness tell me whether recommendations 11, 12 and 13 in the Shaw report have been accepted, because it is not clear from the Statement that they have? In particular, will the Government consider the merits of the UNHCR vulnerability assessment tool?

[Baroness Williams of Trafford]

Perhaps I might come back to the noble Baroness on this, because obviously I have pulled out some of the highlights of the report and I would not want to give her any details from the Dispatch Box that I am not certain about. So I will write to her on that point.

Immigration (Guidance on Detention of Vulnerable Persons) Regulations and the Detention Centre (Amendment) Rules 2018

Baroness Lister of Burtersett Excerpts

Wednesday 27th June 2018 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I will not beat about the bush. The purpose of my regret Motion is to ask the Minister whether the Government will consider the immediate withdrawal of these two statutory instruments before they can do harm to certain vulnerable individuals, and until a number of preconditions, of which the Home Office has been made aware and which I will outline, have been completed. Statutory Instrument 410 introduces the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016, enacting the draft updated guidance contained in the Immigration Act 2016. Statutory Instrument 411 introduces a new definition of torture into detention centre rules. Together, they provide the statutory footing for the adults at risk framework, introduced in September 2016 to improve safeguards for people who are particularly vulnerable to harm in detention. As neither instrument is due to come into force until 2 July, there is still time to withdraw them and initiate the alternative action that I will put forward. If this appears a little tight on timing, I should explain that I tabled my Motion some weeks ago, but its date was confirmed by the Whips’ Office only last week. The remainder of my contribution will be an explanation of why I am making this request.

In a recent debate on the vulnerable persons resettlement scheme, tabled by the noble Lord, Lord Scriven, I mentioned that the Independent Asylum Commission, which reported in 2009 and of which I was a commissioner, characterised the attitude of the Home Office to any asylum seeker, or indeed any outside advice or information, as a “culture of disbelief”. This was triggered by our hearing of a Sri Lankan victim of torture whose case was not believed by the Home Office, which resulted in him being sent back to Sri Lanka, where he was tortured again. Luckily, when he returned here for the second time, his case was believed.

In 2015, in response to growing concerns about the use of immigration detention, the Home Office commissioned Stephen Shaw to carry out a review of the welfare of vulnerable people in immigration detention. In his report he highlighted the lack of safeguards for vulnerable detainees and recommended a drastic reduction in the use of immigration detention. The Immigration Minister’s broad acceptance of Shaw’s recommendations was given statutory footing in Section 59 of the Immigration Act 2016, the purpose of which is to ensure that all individuals, particularly those who are vulnerable to harm if detained, are identified and protected. In the event, neither statutory instrument, nor the adults at risk guidance, delivers that purpose.

The proposed definition of torture is far too complex to be easily applied by Home Office caseworkers and doctors in the identification of vulnerable persons, and its concepts are clinically nebulous. For example, it invites doctors to make subjective judgments as to whether a victim did enough to resist ill-treatment or whether he or she was sufficiently robust to cope with it. Extracting the necessary information will require intrusive investigation of a vulnerable person that far exceeds the safeguards and the standard of proof that applies. In particular, the concept of powerlessness is ill suited to the determination of vulnerability to harm in detention, as both doctors and caseworkers will struggle to form a consistent and fair interpretation of such complexity.

The definition in SI 2018/411 seeks to distinguish between torture and ill treatment. That is an important distinction in international law, but entirely unnecessary and inappropriate when identifying those vulnerable to harm in detention. Even when applied correctly, the definition will exclude a whole cohort of victims of severe ill treatment who do not fall within the indicators of risk. These include victims of interpersonal violence on grounds of race, ethnicity, sexuality, tribal groups, blood feuds or clan origins, none of which presents an obvious situation of powerlessness in relation to the perpetrators of violence.

In fact, the adults at risk guidance has raised the threshold for a decision not to detain by increasing the evidentiary burden on vulnerable individuals. Under the previous policy, and not subject to the culture of disbelief, victims of torture needed only to show independent evidence of their history of torture in order to be considered unsuitable for detention, except in very exceptional circumstances. The new guidance, however, includes an additional requirement to present specific evidence that detention is likely to cause harm in order for release to be seriously considered. That evidence is extremely hard to come by before harm has actually occurred. By introducing a much wider range of immigration factors that have to be considered before a decision not to detain can be justified, the guidance has also weakened the protection offered to vulnerable people.

A number of NGOs working with immigrants immediately raised serious concerns about the adults at risk guidance, including the changes to the definition of torture, which previously had been based on case law and was not defined in government policy. This had been proved to be wide enough to include victims of torture, who, evidence showed, were particularly vulnerable to harm in detention. The charity Medical Justice and seven detainees challenged these changes in the High Court, the judge finding them to be unlawful and ordering their suspension. In addition, the judge instructed the Home Office to review and reissue the policy in a reasonable time, but did not place any obligation on the Home Secretary to define torture in the updated policy.

In parallel with this, Stephen Shaw carried out a second review—this time, of the Government’s progress towards fulfilling the recommendations in his first—which he delivered to the Home Secretary at the end of April this year. Despite promises that it would be published by the end of this month, it has still not appeared. Indeed, the Minister, who had clearly seen it when he responded to a recent Early Day Motion on the subject in another place, did not disclose any of its conclusions or recommendations to those taking part in the debate, which left them in the dark as to what he was saying. He also back-pedalled on the promised date of the report’s publication. Therefore, I ask the Minister to clarify the situation regarding the date of publication of Shaw’s second report and to tell the House when we can expect both it and the Government’s response.

The statutory instruments were laid before Parliament on 27 March this year, following a wholly inadequate and expedited consultation on the new definition of torture with a limited group of NGOs. They cautioned that no further definition should be considered in isolation from the necessary revisions to other elements of the safeguards, such as detention centre rules and the adults at risk guidance. They also asked the Home Office to await publication of the second Shaw review, to allow consideration of his findings before laying changes before Parliament. Their cautions were studiously ignored. I cannot help contrasting the Home Office’s unseemly rush to publish what is so clearly flawed with its unseemly procrastination over the short-term detention rules, taking over twice as long as World War II to publish in 2018 something originally promised in 2006. The noble Lord, Lord Dubs, whose letter on immigration of 28 March I co-signed, was also studiously ignored when he proposed the same action.

So what to do about this mess? As I put to the Minister at the start of my contribution, the statutory instruments should be immediately withdrawn and any changes to existing policy regarding the safeguarding of victims of torture or ill treatment postponed until after the publication of the second Shaw review, and subject to a proper consultation, subject to government guidelines. There is no need to define torture in either the adults at risk guidance or detention centre rules, so the proposed definition should be withdrawn from both. The broad range of immigration factors used to justify detention of those identified as being particularly vulnerable to harm should be replaced by a return to the previous threshold of very exceptional circumstances. There should be no need for a victim of torture or ill treatment identified as likely to be vulnerable to harm in detention to demonstrate any further why he or she is likely to suffer harm in detention. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for bring forward this regret Motion on such an important subject. He has already made the case against the new definition of torture in the regulations extremely persuasively. I shall simply do two things: first, ask the Minister some questions; and, secondly, underline why this is so important.

In her letter to me of 24 April drawing the regulations to my attention, the Minister acknowledged concerns raised by some NGOs about the Government pressing ahead with these changes in advance of the publication of Stephen Shaw’s review into the implementation of his previous report into the welfare of vulnerable people in detention, already mentioned. She sought to reassure me that the changes made at this point are,

“purely for the purposes of implementing”,

the High Court judgment on the definition of torture. But that is no reassurance at all; it is the very fact that this judgment is being implemented in this way that concerns the NGOs that have years of experience of working with people who have suffered torture.

Even if the Home Office were correct in its view that it needed to act swiftly, why did it need to do so by introducing a new definition of torture in the face of well-grounded objections from these organisations? As the noble Lord, Lord Ramsbotham, said, the High Court did not require a new definition of torture in response to its decision. Why could not the Home Office revert to the status quo ante until after the publication of the Shaw review and then consider the question as part of the wider review of the treatment of vulnerable people?

The same question was asked by my honourable friend Joan Ryan MP at the end of the debate she initiated in the House of Commons on 14 June. However, the Minister, while acknowledging that the current adults at risk policy is far from perfect—which is welcome—did not really answer the question, even though she said that she would. She said she was not seeking to turn the clock back without explaining why, in answer to Joan Ryan’s question, and I would be grateful if the Minister could do so now.

In doing so, could she also explain why the Home Office has seen fit to disregard the views of organisations such as Freedom from Torture and the Helen Bamber Foundation, which know more than anyone about the cruelty of torture and its terrible effects? It is the evidence from these and other organisations, such as the BMA, Women for Refugee Women and, most recently, the British Red Cross, that underlines why this Motion is so important.

I find it difficult even to imagine what it must be like to have been be subjected to torture. It is too easy for it remain a rather abstract concept and to lose sight of what it means to have been deliberately harmed by a fellow human being with often devastating consequences. Yesterday I attended the 10th anniversary celebration of Survivors Speak Out. One of those survivors spoke of his time in detention. He said, “We have already suffered so much”, and compared the experience of detention with the torture that he and fellow survivors had lived through.

In its report on health and human rights in immigration detention, the BMA noted:

“Pre-exposure to trauma is a key contributor to the rates of mental health problems in the detained population. One theme that emerges from the literature is that of the ‘retraumatisation’ detention can cause—in particular for those who may have experienced trauma in the form of detention or at the hands of authority figures in their home country”.


It also noted that the detention environment can be particularly retraumatising for LGBT individuals who have faced persecution and women who have suffered sexual assault and gender-based violence.

--- Later in debate ---

[Baroness Williams of Trafford]

I will get on to when it will be published. I am simply saying that officials kept the team informed of the work they were doing to implement the new definition while they were engaging with NGOs. We will carefully consider all of Stephen Shaw’s recommendations, as we did last time, and take them into account when we review detention centre rules, including the operation of the rule 35 reporting mechanism later this year. We will publish his report with a full government response before the House rises in July, in answer to noble Lords’ questions.

As I said, the current imperative is to ensure that, in the light of the court’s very clearly expressed view, we implement a lawful and effective definition of torture for the purpose of the adults at risk policy. There is no reason to delay this. It is separate to, and not dependent on, Mr Shaw’s report.

It has been suggested that the new definition of torture in the context of immigration detention is too complex to be applied by caseworkers and doctors. I do not accept this. It fully reflects the guidance handed down by the High Court. The court, in turn, had the benefit of a large amount of expert and clinical evidence, much of which was submitted by the litigants, Medical Justice. So there is no reason to believe that caseworkers and doctors will find the definition of torture set out in the statutory instruments too complex.

The noble Baroness, Lady Lister, asked whether the consultation with NGOs was sufficient. There was no legal obligation to run a consultation, but officials willingly engaged with them on the definition of torture and on caseworker guidance and training.

The noble Baroness, Lady Hamwee, asked—

[Baroness Lister of Burtersett]

I think the Minister might be getting us a bit mixed up, because the noble Baroness, Lady Hamwee, spoke more about consultation. What she wanted to know, and therefore what I will ask now, is: what was the response? That was not made clear in the Explanatory Memorandum. The response to us was that the organisations are very unhappy about this, which is why this Motion has been brought this evening.

[Baroness Hamwee]

Perhaps I may come back on that. I quoted the paragraph on the consultation outcome because the implication of the Home Office saying it has considered comments from the NGOs is that there is no difference between them, or at least nothing substantial, and that we should not be worried about whether the NGOs made critical comments—which we have discovered they did.

Home Office: Immigration

Baroness Lister of Burtersett Excerpts

Monday 18th June 2018 Lords Chamber

[Baroness Williams of Trafford]

The case raised by the noble Lord is obviously very sad, but he will understand that I cannot comment on individual cases, other than by saying that 94% of straightforward asylum claims are processed within service standards. However, we are committed to reaching asylum decisions as quickly as we can, while ensuring that those often complex cases are given proper consideration. He talked about appeals, and I do not disagree with him: we wish that the appeals rate was better. However, I am sure he understands that quite often information is brought at the last minute which enables an appeal to be granted.

[Baroness Lister of Burtersett (Lab)]

My Lords, given the support last week from around the House during the debate on a Motion on this, what steps are the Government now taking to ensure that no child who belongs in this country is dragged into the immigration control system because they cannot afford the fee to register their entitlement to citizenship, which the Home Secretary himself described as “huge”?

Immigration: “Right to Rent” Scheme

Baroness Lister of Burtersett Excerpts

Wednesday 6th June 2018 Lords Chamber

Asked by

[Baroness Lister of Burtersett]

To ask Her Majesty’s Government what assessment they have made of the impact and effectiveness of the “right to rent” scheme following the most recent report of the Independent Chief Inspector of Borders and Immigration into their “hostile environment” measures, An Inspection of the “Right to Rent” Scheme.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the Government have undertaken to reconvene the landlords consultative panel and to work with it to monitor the operation and impact of the scheme. We continue to raise awareness in this sector to promote compliance and in the past year the right to rent guidance has been viewed online nearly 450,000 times.

[Baroness Lister of Burtersett (Lab)]

My Lords, that is welcome news and it is also welcome that the Government are reviewing their hostile/compliant environment regime, though it is not clear to what extent that will include a proper, thorough review of right to rent schemes. In view of the inspector’s damning observations that hitherto there has been no attempt to measure its impact and that it has yet to demonstrate its worth, plus evidence from the Residential Landlords Association and others of discriminatory consequences, will the Government now suspend the scheme until they have conducted this proper, thorough evaluation that the inspector and others have called for?

[Baroness Williams of Trafford]

My Lords, the Government have no intention of scrapping the scheme. The first phase of the scheme, in the West Midlands, was subject to evaluation by Home Office Analysis and Insight to test its impact on discrimination, vulnerable groups and homelessness, as well as its impact on the sector and local authorities. The Home Office report published on 20 October 2015 found no evidence that the scheme was having any adverse impact on any of these. It is important that noble Lords note that the right to rent scheme is relatively new. It should not be seen in isolation but as one of a number of provisions that deter illegal immigration and restrict the number of illegal migrants establishing a settled life in the UK.

Immigration Applications

Baroness Lister of Burtersett Excerpts

Wednesday 16th May 2018 Lords Chamber

[Baroness Williams of Trafford]

I do not have the Companion with me, so I will leave that for another time. The noble Lord rightly makes a point about the number of appeals increasing. Actually, they went down slightly in the past year, but the number of applications is increasing over time and that is something to be mindful of. He also asked about better decision-making. I have several things to say about that. First, the average age of appeals being determined by the First-tier Tribunal is, according to HMCTS statistics, 50 weeks. That is a considerable length of time. The latest data on win rates is certainly not where we would like it to be.

Appeals are allowed for a variety of reasons. Often it is because new evidence is presented before the tribunal that was not available to the decision-maker at the time. Often, the information is presented very shortly before the hearing and too late for the Home Office to withdraw the case. But one specific reason for the higher rate of allowed appeals is that many cases going through the appeal system are now quite old. The average age of a human rights case is over a year. In that time, often appellants have built up new rights.

[Baroness Lister of Burtersett (Lab)]

My Lords, given that we heard on the news last night that over 60 of the Windrush generation may have been wrongly deported, and the recent observation of the UN special rapporteur that shifting from the rhetoric of a hostile environment to one of a compliance environment will have little effect if the underlying legislative framework remains intact, will the Government now review that legislative framework as a matter of urgency?

[Baroness Williams of Trafford]

I will refer to the cases that the noble Baroness asked about—63 people who may have been wrongly deported. As the Home Secretary said, the department has been checking records back to 2002, some 16 years ago, when electronic records began, looking at all removals and deportations of Caribbean nationals aged 45-plus. So far, 63 cases have been identified where Caribbean individuals could have entered the UK before 1973. This means that, of the 8,000 total deportation and administrative removal records that came up, so far there is a focus on 63 because something in their record indicates that they could have entered before 1973. Of those, there are 32 foreign national offenders and 31 administrative removals. So it does not mean that 63 people have been wrongfully removed or deported; it is the number of cases that merit further investigation. But I thank the noble Baroness for bringing that point up.

Refugees (Family Reunion) Bill [HL]

Baroness Lister of Burtersett Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 11th May 2018 Lords Chamber

I am pleased that the noble Lord accepts the premise of the Bill that families belong together and that our country has a moral duty to recognise them. Accepting the thrust of the Bill and in the light of what I hope he will read as reassurances, I hope that he will accept that the amendment would not be appropriate.

[Baroness Lister of Burtersett (Lab)]

My Lords, I oppose the amendment, which has already been ably opposed by the noble Baroness, Lady Hamwee. I apologise that I could not be here on Second Reading, because I strongly support the Bill. The noble Baroness spoke about the importance of family reunion to integration. I was a member of the inquiry set up by the All-Party Parliamentary Group on Refugees into integration, and I shall say a little about what we found, because I think it is relevant as we discuss the amendment.

The evidence that we received from a wide range of organisations underlined the psychological impact. Here I am talking particularly about the psychological impact on minors who are not allowed to bring any family into the country. Then there are refugees who are here, who have families still in conflict areas or who are still at risk, who are worried sick about what is happening to their families. On the children not allowed to reunite with parents and siblings, Coram Children’s Legal Centre said that it would continue the trauma and suffering of separation and loss. A number of people brought home to us the general impact on integration—that barriers to family reunion create barriers to integration. It is in all our interests that refugees are able fully to integrate into our society. In our findings and recommendations, we argued that,

“successfully being reunited with family members is an important step in helping refugees to integrate”.

We also argued that,

“the definition of family in the Immigration Rules remains very restrictive. Additionally, the lack of family reunion rights for unaccompanied children is a barrier to their successful integration”.

We recommended that they should be allowed to sponsor parents and siblings.

The noble Lord, Lord Marlesford, spoke about statistics and numbers, but we are talking about people. The noble Baroness, Lady Hamwee, rightly said that we were not talking about immigrants—although, of course, migrants are also people. We are talking about refugees, and she gave some very pertinent potential examples. I ask the noble Lord, Lord Marlesford, to think back to when he was an adolescent and put himself in their shoes—a young man who has left his country, for whatever reason, as a refugee. He is here in a strange country, his parents are still in danger, and he has two younger siblings, also in danger. How would he make the choice? Surely, to be asked to make a choice like that as a young person would just increase the psychological suffering. Whoever you chose, you would feel that you had left behind your mother, father, brother or sister, and you would live with the consequences. You would feel guilty about the people you had left behind, rather than those you had been able to bring in. That would increase the psychological trauma and suffering for these young people. We have to try to put ourselves in the shoes of people who are in a really difficult situation. To ask a young person in particular—but anyone, actually—to make that kind of choice about their family as to who they would save or not save is inhumane and cruel.

[The Earl of Listowel (CB)]

I speak in support of the Bill and against the amendment. I recognise the concerns that the noble Lord, Lord Marlesford, has raised about pressures on public services, but these children will be in care, so they will need a foster carer or perhaps be in a children’s home. If they have a family member with them, the public purse will benefit in that regard.

From a humane point of view, I worked in a hostel once a week over a period of time and saw a young girl from Afghanistan, and she was always quiet and depressed. She spoke no English—she spoke only a very limited dialect of her language, and the only other speaker was somewhere way off in the East End, so she was very isolated. One evening I arrived and she was in tears, because she had had news that the town that her parents lived in was being shelled, and she was concerned about them. The examples given about the hardship and emotional trauma for these young people ring very true to me. Simply from a humane point of view, anything that can be done to reunite these children and young people with their parents has to be welcomed, so I support the Bill.