Immigration Bill

Baroness Lister of Burtersett Excerpts

Monday 1st February 2016 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I was pleased to add my name to these amendments. They strike me as being reasonable and modest, and a very strong case has already been made by the noble Baroness, Lady Doocey, and the noble Lord, Lord Alton. ILPA also makes the case for allowing payment to be made by instalments:

“The sum at stake, the £200, £150 for students may appear modest. It is not. Factor in that it is a payment per year, that there will be a levy for each family member and then consider average earnings in different countries and exchange rates with the UK and it acts as a bar to entry … Any health levy payable prior to arrival risks presenting a barrier for those nationals of countries where earnings are low and currencies weak relative to the UK. Similarly if a person must pay the levy for their entire period of leave up front: to do so exacerbates the effect of existing disparities”.

The Anti Trafficking and Labour Exploitation Unit has provided a case study which again illustrates the difficulties that upfront payments can create for low-paid workers:

“F is a domestic worker from South Asia. She has leave to remain granted under the rules for domestic workers in place before April 2012. In 2015 she sought to extend her leave to remain. She faced an application fee of £649 and a health surcharge of £200 so a total of £849 to pay up front. This was more than her monthly wage of £800. From our experience, someone working in a minimum wage job is virtually certain to have their application for fee remission refused, even when human rights is the main focus of the application, which is not the case for domestic worker visa extensions who could not therefore hope to be given a fee waiver. F had to borrow the money from her employer which on this occasion was possible. Not all employers would be willing to assist in this way”—

I suspect that rather few employers would do so. It continues:

“For a domestic worker to find that much money up front inevitably necessitates borrowing, which can put a vulnerable person further at risk. To save that much money each month can be a huge task for someone on a minimum wage income but is more manageable than an upfront payment. The fee for such applications will go up to £811 in 2016 in addition to the health surcharge”.

I suspect that all of us in this House live pretty comfortably, so for us to make a payment like that upfront is something that we probably do not even think about. It might just be a slight nuisance. We must put ourselves in the shoes of someone for whom making such an upfront payment is a huge burden, and something that seems impossible to comprehend. The difference it would make to them to be able to pay in instalments is enormous. It is important that we try to think what it means to the people for whom we legislate.

The exemptions also seem to me very fair. I was going to make reference to the UNCRC, but the noble Lord, Lord Alton, has already made it. There are questions about whether charging children is compatible with those provisions. To exclude victims of domestic abuse would simply build on the existing exemptions under the destitution domestic violence concession, without introducing a new principle. On the question of destitution, the briefing that I had from the Caritas Social Action Network gave the example of someone who was not considered destitute for this purpose because they had £60 in their bank account, but they were homeless. Perhaps I should know the answer, but will the Minister tell us the criteria for destitution when deciding on such cases? I hope that he will look kindly on these very reasonable, very modest and very just amendments.

[Lord Hylton (CB)]

My Lords, I support these two amendments—in particular, where they deal with exemptions for children who cannot be expected to have large earnings and for victims of domestic violence. May I suggest to the Minister that he consults on this his noble friend Lady Anelay of St Johns? After all, she has worldwide responsibilities for protecting women in particular but also, no doubt, children against violence, whether domestic or arising from wars and civil conflicts. It would be paradoxical for us to go to considerable lengths to get better worldwide protection while diminishing it or removing it from people here.

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Multiple payments would also require significant changes to the IT system which is an integrated part of the online immigration application process and which currently has no mechanism for visa applicants to make further payments at a later stage without manual intervention. It would be difficult, complex and costly, therefore, to enforce payment of the charge once the visa had been issued, and would put at risk some of the income generation necessary for our health services. Some noble Lords have, during the debate, noted that Home Office resources are limited. We should not divert valuable resources away from the important task of dealing with those illegal migrants who do most harm to our society to manage what would be an overly complicated surcharge payment system.

[Baroness Lister of Burtersett]

I may have misinterpreted what the noble Lord said, but I think that he used the phrase “simpler than requiring instalments”. However, it is not the intention of the amendment to require instalments but rather to allow them to be used in what may be a very small number of cases—I do not know whether that is the case—of people who simply cannot pay upfront. Has he made any estimate of what proportion of people are likely to ask to pay by instalments, because I do not think it is assumed that that would be the default position?

[Lord Bates]

If you offered interest free credit in the commercial world, I guess that probably most people would take advantage of it. Therefore, the cost might be quite significant, unless the noble Baroness is proposing an additional charge for accessing the system through an instalment process, which I do not think she is. The points I made earlier related to the current system. I have not just arrived at this point, as it were. When the noble Baroness, Lady Doocey, raised this issue with me—the week before last, I think—I checked with officials and looked at the system. I was told that it is very difficult because at the moment everything is up front—the costs and everything—and the boxes have to be ticked in order to move on to the frame. As I say, we are not making a spurious objection to the measure. I have more to say on that, but I will now address Amendment 177.

Amendment 177 seeks to exempt children and victims of domestic violence from the charge. Following extensive debates in Parliament during the passage of the Immigration Act 2014, the Government put safeguards in place to protect vulnerable groups. The Immigration Act 2014 provides the Secretary of State with the power to exempt certain categories of applicant from the requirement to pay the immigration health charge. These categories are listed in Schedule 2 to the Immigration (Health Charge) Order. Current exemptions include children who make an immigration application or who are looked after by a local authority and a person who applies for limited leave under the Home Office concession known as the destitute domestic violence concession. In the case of the latter, these are individuals who are here as partners of British citizens who are settled here, and can consequently apply for settlement. Individuals who are in the UK for less than six months or who have not paid the charge can still access NHS services, although some of these might be chargeable. However, a key principle of the NHS is that medical treatment which is urgent or immediately necessary in the judgment of a clinician is never withheld from anyone, irrespective of their chargeable status.

Furthermore, since April 2015, treatment that is needed as a consequence of domestic violence is exempt from charge to all overseas visitors, regardless of whether or not they have paid the immigration health charge. This includes both physical and mental health needs. The only stipulation is that the visitor has not come to the UK for the purpose of seeking that treatment.

Immigration Bill

Baroness Lister of Burtersett Excerpts

Wednesday 20th January 2016 Lords Chamber

[Lord Green of Deddington]

Well, they come in on a tied visa and then they do a runner and go and work for somebody else. The employer then goes back to his home country and puts in a visa next year for a new servant; he will claim, no doubt, that the servant has been working for a year, because that is one of the requirements, and come with his next servant. So the numbers will certainly increase. If you produce a loophole in these matters, they will increase very fast.

[Baroness Lister of Burtersett (Lab)]

My Lords, I hope that we are not moving from waiting for Ewins to looking for loopholes. I was a member of the Joint Committee on Human Rights at the time of the legislative scrutiny of the 2014 Bill. As the noble Lord, Lord Alton said, this is a matter of human rights. Not only did we say that the removal of the right of overseas domestic workers was a backwards step but we noted that the 2012 regime had been cited internationally as good practice.

I am not going to make a great speech, because I think the case has already been made admirably by other noble Lords. But my noble friend Lord Rosser pointed out that the Minister in the Commons towards the end of the last Government, but a member of today’s governing party, said as a statement of intent that whoever was in government would implement the review’s recommendations. I simply do not understand why this very important report, which we were all waiting for and for which everything had to be suspended to see what it said, was presented to the Government nearly three months ago with a sense of urgency to it, yet we do not yet have the Government’s response to it, even though we have started Committee stage of this highly relevant Bill. Why do we not yet know the Government’s response and how quickly will we know it—and will it be in the spirit of the statement made by Karen Bradley in the Commons last March?

[The Earl of Sandwich (CB)]

I add one more voice from these Benches in support of the amendment. My noble friend Lord Hylton has already reminded us that the amendments in some form have already been won in this House. The Minister will already understand the strength of feeling on these Benches—with, obviously, some notable exceptions. The Ewins recommendations have sharpened them up, recommending the three-month temporary visa. I tend to support my noble friend’s wider amendment. The evidence being already on the record from Kalayaan and others, I shall not repeat any of that, but has the Minister seen the evidence from Justice for Domestic Workers, in its survey of last August, I think, in relation to the ILO convention 189? I shall give some brief illustrations: 72% of these—mainly—women feel that they have been required to work while they are unwell, while 94% say that they are injured while they are at work, by falling over and so on. One has to appreciate the depth of the suffering of these individuals—but I shall not go on about that. Case studies show how vulnerable they are and how wary they are of seeking help from any authorities, including consulting the NRM, where they should be going. I suspect that the Home Office, like my noble friend Lord Green, sees these amendment as holes in the dyke, carrying risk. But we have to give these domestic workers a way out of their situation in such a way that it will not open the gates to more migration. That is where the Ewins recommendations come in: the workers have to pass the test of exploitation. I see no reason why their case cannot be singled out from the rest.

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[The Lord Bishop of Southwark]

My Lords, Amendment 134, which I wish to support, is simple, just and proportionate in its aims. I accept that Home Office officials must, in the discharge of their duties in this area, deal with barriers of language, emotional distress, the fear of authority, the complexity of people’s lives and, on occasion, deceit. All this takes time. However, it is far from unknown for applicants for asylum to wait months or even years for a substantive decision in their case. This subjects them to a fearful limbo, with limited means of support and the background anxiety of not knowing for a very prolonged period what the outcome will be. Furthermore, we know from the experience of our own citizens the deleterious effects of prolonged inactivity on their emotional and physical well-being, and how this can erode an individual’s skill base.

The European Union’s reception conditions directive, which came into force last July, recognises this and requires of all EU countries—except Ireland, Denmark and the UK, as the noble Lord, Lord Alton, was saying—that asylum seekers waiting nine months for a decision may work. Germany has responded, interestingly, by legislating for a three-month threshold.

It is the policy of the Church of England, by resolution at its General Synod in February 2009, that all asylum seekers should be granted permission to seek employment. If the Government brought forward their own amendment with a threshold of nine months rather than six, as here, I could accept that. What is manifestly unfair is excluding such individuals from the world of work for an indefinite period, as at present. This amendment, with its threshold of six months, is not an invitation for migrants to enter the UK job market by an easy route. It could not be, with that sort of threshold. It is a measured and fair response to a manifestly unfair and damaging exclusion. I support the amendment in the name of the noble Lord, Lord Kennedy of Southwark, and others.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am pleased to be able to speak in support of the amendment tabled by my noble friends on the Front Bench. Indeed, I, too, am delighted that this is now my party’s official policy.

The right to work—or, perhaps more accurately, the right to be allowed to undertake paid work—is a human right enshrined in the Universal Declaration of Human Rights and incorporated into human rights law as part of the International Covenant on Economic, Social and Cultural Rights, which recognises,

“the right of everyone to the opportunity to gain his living by work”.

After the Second World War, TH Marshall wrote that in the economic field, the basic civil right is the right to work. More recently, in 2007—long before I came to this place—the Joint Committee on Human Rights described the denial of the right to work as part of a deliberate policy of destitution, in breach of asylum seekers’ human rights.

The all-party parliamentary inquiry into asylum support, mentioned by the noble Lord, Lord Alton—of which I was a member—talked about how asylum seekers who are not able to undertake paid work lose skills and are unable to provide a role model for their children, and about the impact on their self-esteem, self-confidence and mental health. All this has a damaging effect on their children. A Freedom from Torture report on poverty among torture survivors states:

“Many questionnaire respondents, and most participants in client focus groups, highlighted the importance to them of having permission to work while their asylum claim is decided as a means of supporting themselves and being self-reliant. Indeed, the lack of permission to work for asylum seekers was a major theme of discussion and the key change that focus group respondents called for, although they also recognised that many torture survivors”,

may not be “well enough to work”.

A letter to the Independent at the end of last year asked why asylum seekers are not allowed to work in the UK. It pointed out:

“We have skills to contribute: some of us are doctors, nurses, carers, teachers, builders. But these skills are wasted and deteriorate while we wait for a decision on our asylum applications. We want to contribute to the UK economy and to be part of this society”.

Much of government social policy, whichever party is in power, is premised on the principle that paid work is the primary responsibility and the most important contribution that people make to society, summed up in the rather tired mantra of “hard-working families”. Why should asylum seekers be denied the opportunity for a whole year of joining the happy ranks of hard-working families in the labour market—and even then joining only on very restrictive terms? The evidence shows that this impedes integration. The Home Office’s own research shows that delayed entry into the labour market can cause problems even when refugee status is then granted, leading to high levels of unemployment and underemployment.

We have already heard about what happens in other European countries. My understanding is that most of these countries have fewer applications for asylum than are received in the UK, which does not support the argument that providing the right to work acts as a pull factor. The lack of impact on the number of applicants is confirmed by a study of OECD countries. Indeed, after our last debate on the issue, the then Minister acknowledged the paucity of hard evidence to support the Government’s case. Moreover, as Still Human Still Here argues, it is not very likely that economic migrants would draw themselves to the attention of the authorities by making an asylum claim, so that they might be able to apply for permission to work in a whole six months’ time.

The danger is that asylum seekers will end up in the shadow labour market, facing the kind of exploitation we discussed earlier in the context of undocumented migrants. Indeed, can the Minister say whether, if they do take paid work, they could be caught by Clause 8 —criminalised for working illegally even though they are legally in the UK awaiting a decision on their asylum claim?

I fear that Governments are often timid with regard to the rights of asylum seekers, for fear of public opinion. However, surveys by the IPPR, and the British Social Attitudes survey, show that there is public support for allowing asylum seekers the right to work. The Joseph Rowntree Charitable Trust, in an inquiry into destitution among asylum seekers a few years ago, said:

“Overwhelmingly, giving asylum seekers the right to work was the favoured solution identified”,

by those who gave evidence.

As has been said, we have debated this issue a number of times in your Lordships’ House, even in just the five years that I have been here. Since the previous time we debated it, the financial position of asylum-seeking families has worsened because of the savage cut in asylum support for children. So the cost to them of not being able to undertake paid work is all the greater now, with damaging implications for their mental and physical health and that of their families. I urge the Minister to take this amendment away and think about whether the time has not now come to concede this most basic of human rights.

[Baroness Ludford]

I, too, welcome the support of the Labour Party and its conversion to this cause. It is hugely important and significant. All the considerable benefits of a change in policy have been cited, and I do not need to enumerate them. They are so powerful, and there are only benefits—there are no costs, quite honestly, associated with this policy, except possibly a political one. That is no doubt what the Government fear. So I want to propose a rebranding exercise: to position this not so much as the right to work as the obligation to work—a requirement to work, except for asylum seekers who, for reasons of age or health, cannot do so. We could reframe it in those terms, as we do in the field of welfare. Indeed, a Liberal Democrat policy document from two years ago did exactly that. Why not talk about an obligation on fit asylum seekers to use their skills to benefit themselves, this country and the taxpayer? I think that you would also see a different approach and a different perception from the public, as well as, one hopes, from the Government, if that rebranding were to take place.

Immigration Bill

Baroness Lister of Burtersett Excerpts

Wednesday 20th January 2016 Lords Chamber

[Earl Cathcart (Con)]

My Lords, I support the amendment about delaying the rollout of the pilot scheme. This seems to focus on the likelihood of landlords potentially asking all those with foreign names or accents for evidence of their right to rent. I thought that the whole point of a pilot scheme was to ensure that what was being put forward was actually working as intended. However, as mentioned by the noble Baroness, Lady Hamwee, the Joint Council for the Welfare of Immigrants found that two-thirds of landlords had not fully understood the code of practice on preventing illegal immigration or indeed the code of practice on avoiding discrimination, and that 50% of those who had been refused a tenancy felt discriminated against, while 40% of tenants in the pilot area had not been asked for any identity documents. That is hardly a resounding success for the pilot scheme, yet the Government want to roll out this contentious scheme across the country next month. That cannot be the right answer.

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak in support of Amendment 151 in particular. The pilot scheme has done nothing to allay all the fears that have been voiced by many organisations that the policy will have unintended, discriminatory consequences, for the reasons given by the noble Earl, Lord Cathcart, and the noble Baroness, Lady Hamwee.

The noble Baroness, Lady Hamwee, referred to the JCWI’s independent evaluation. I would be interested if the Minister could tell us what view the Government take of its evaluation alongside the pilot that they have prayed in aid to suggest that everything is fine.

At Second Reading I made brief reference to concerns raised by the charity Rights of Women about the possible implications for women fleeing domestic abuse. I will quote more extensively from the briefing it sent, because it is important. Rights of Women, as noble Lords may know, is a charity which specialises in supporting women who are experiencing or are at risk of experiencing, gender-based violence, including domestic and sexual violence. It says it is,

“deeply concerned that the ‘right to rent’ scheme will place already vulnerable migrant women who have experienced domestic violence at further risk of harm as a result of a scheme that creates barriers to accessing private … accommodation … Many women, including British citizens, experiencing violence in their relationships will have been deprived of access to important documents, such as passports and biometric residence permits, necessary to prove their right to rent and therefore these provisions will have a disproportionate effect on women fleeing abusive partners or other perpetrators of abuse regardless of their nationality.

Furthermore, women with limited leave to remain in the UK on the basis of their relationship with a British or settled person are dependent on that relationship subsisting for the continuation of their leave; when the relationship ends their immigration leave is at risk and women need to take steps to regularise their status in another category. Women who have fled abusive partners often need time to recover from their trauma before starting to address matters such as regularising their immigration status. It is not uncommon for a woman to find out much later after the breakdown of a relationship due to violence that unbeknownst to her the Home Office has curtailed her leave after her abusive partner informed them of the relationship ending. Without receiving notice of a Home Office curtailment decision, a woman can find herself without leave in the UK, unable to work or access housing.

Many of the vulnerable migrant women we advise on our telephone legal advice line have left or are trying to leave abusive relationships. Of these women a significant proportion are presently undocumented though either have an existing right to reside in the UK under European law or have a strong basis on which they can submit an application to the Home Office for leave to remain. The ‘right to rent’ scheme places these already vulnerable women at further risk by preventing them from accessing their own safe private rented accommodation due to a lack of documentation”.

These women will then be,

“at risk of homelessness, renting from exploitative landlords, returning to abusive partners or being forced into entering exploitative relationships”.

The charity gives a couple of case studies which illustrate the very likely problems that could occur, which I will not cite now given the lateness of the hour. However, I will ask: how does this fit in with the Government’s laudable strategy to end violence against women and girls?

[Baroness Sheehan (LD)]

My Lords, I lend my support to the remarks made from all sides of the Chamber in support of Amendments 151 and 159, which would provide for a proper evaluation of the right-to-rent scheme before we roll it out nationwide.

I have spent a fair amount of time volunteering with a local charity for homeless people in Wimbledon called Faith in Action. On one occasion I was asked to help a person whose documents had been stolen—an occupational hazard when you are a rough sleeper. It was a lengthy and frustrating morning and afternoon—and quite expensive to boot—and I was not successful in tracing the documents on that occasion. I say this because it is clear to me that homeless people, foreign nationals and those from a black and ethnic minority background who have a right to rent but are not in a position readily to produce the necessary documents will be excluded from the rental market as landlords inevitably become more risk-averse in the face of the harsh penalties that could be incurred.

A number of people have talked about the many different organisations that have put forward their case strongly and well. Crisis—a national charity for single homeless people and a member of the Home Office panel—is one of them. It states that, according to an evaluation of the Immigration Act 2014 in Birmingham, which other noble Lords have mentioned, six of the local charities surveyed said that people they represent have become homeless as a result of the scheme, while interviews with landlords found “potential” for discrimination. They, of course, are not alone in those findings. The Law Society raises similar concerns, as does Liberty. To that list I can add Shelter, St Mungo’s and the JCWI. In fact, any charity that works on the ground with homeless people or supports immigrants’ welfare will say the same.

So I can do no less than lend my support to Amendments 151 and 159. Surely it makes sense to delay implementation of the offences contained in this Bill and the rollout of the right-to-rent scheme until independent evaluations of the associated risks have been carried out.

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[Lord Deben]

Can I come back to single rooms that are let in a house? I have said to the Minister that I am perfectly happy to go along with him if I could know that we have looked at this particular issue. As far as I understand, we have not got very much evidence about the interaction between this legislation and people letting rooms in their own house. Do we know how many people have been interviewed on this? Do we know that it does not have the effect that I fear it has? If he can show that to me I will withdraw entirely but I just want to know and I am not sure that the evidence is there.

[Baroness Lister of Burtersett]

To save the noble Lord from jumping up and down, our concern is that this could affect some people who have a perfect right to be here, such as British citizens—this is part of the point that the noble Baroness was making about people who are homeless. Vulnerable and disadvantaged groups—I talked about women fleeing domestic violence—may simply not have the evidence. A landlord who is in a hurry, and if there is great competition for space, is more likely to take the person who has all the documentation right at hand. It is not just between people who are not supposed to be here and people who are, because actually other groups are vulnerable to the unintended discriminatory consequences as well.

[Lord Bates]

I hear that. I am making the point that private sector landlords, in doing their due diligence on the person they are renting to, will already require a great deal of detail or proof of who they are and that they have a right to be here. It would surely be in their own interests. If they were letting out their property to someone who had no legal right to be here, they might find that that person disappears and they are left out of pocket. This is eminently sensible in terms of due diligence on the behalf of landlords, as well as being widely consistent with making it more difficult for individuals who are here illegally to operate, in terms of bank accounts, driving licences and employment. The evaluation found very little evidence that British citizens with limited documentation were experiencing problems as a result of the scheme.

With regard to the unacceptable burden of checks, landlords are being asked to take responsibility for ensuring that prospective tenants have a right to rent in the UK by carrying out simple document checks; where necessary, in a small number of cases, making a report to the Home Office. This supports the work of the Government to make it more difficult for illegal migrants to reside here unlawfully and to stop them accessing services to which they are not entitled.

The noble Baroness, Lady Lister, mentioned domestic abuse. She said that victims who do not have documents will struggle. In August 2015 the noble Baroness, Lady Williams of Trafford, announced a £3 million fund for 2015-16 to address any gaps in the provision of specialist accommodation-based support for victims of domestic abuse.

The noble Lord, Lord Deben, asked who should be checked. The answer is any adults who will be taking up the accommodation as their main or only home in the UK. This means all adult occupants, not just those who may be the named tenants.

The noble Baroness, Lady Sheehan, asked about evidence of stolen documents. If a document is stolen, a letter from a UK police force confirming that the holder is the victim of a crime and personal documents have been stolen, stating the crime reference number and issued within the past three months, would be acceptable.

I have covered the point on domestic violence. The Home Office will be aware of who is applying for leave to remain under paragraph (289A) of the Immigration Rules as a victim of domestic violence. It will refer to the national referral mechanism to ascertain who has been the victim of human trafficking. Permission to rent will not be denied to such persons.

In answer to another point made by the noble Lord, Lord Deben, the landlords’ survey included a broad range of landlords with different sizes of properties and portfolios. Focus groups also included small-scale, informal landlords, including those renting a single room. I was asked about fees. The report noted:

“However amongst the focus groups with informal tenants it was suggested that the charging of fees by some agents was common practice. This was not due to the Right to Rent scheme, but had been a long-standing practice—especially in areas where demand exceeds supply”.

I think that I have covered the points about homelessness and students. I say to the noble Baroness, Lady Sheehan, that we have worked with Crisis and Shelter in developing the list of acceptable documents for the right-to-rent checks.

Immigration Bill

Baroness Lister of Burtersett Excerpts

Monday 18th January 2016 Lords Chamber

However, I would like to see the back of this altogether. I hope that at least making that point on these clauses will not be relevant because we might not be considering them for much longer. One lives in hope.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support the opposition to Clause 8 standing part of the Bill and I also support Amendment 63. At Second Reading a number of noble Lords expressed fears about potential exploitation as a result of Clause 8, reflecting the worries of organisations working on the ground. The Minister tried to reassure us that our fears were unfounded, but the range of organisations that are worried about it must give cause for concern. Also a number of organisations, including the Law Society, have stated that the clause is unnecessary. The Law Society argues that,

“the creation of parallel criminal offences is wrong in principle and creates confusion”.

My noble friend Lord Rosser raised the point about the disparity between the defence of reasonableness that is available to employers not being available to employees who are accused of illegal working. That was a point which was raised in the Public Bill Committee by more than one Member, but as far as I can see it was not addressed by the Minister there in his response, so I hope that the Minister here will be able to say something about it today. Why is there no parallel defence for employees?

As well as the risk of exploitation, I am concerned that the state will in effect be exploiting undocumented workers when it seizes their wages. I am not a lawyer, but it seems to me as a lay person that there is a distinction to be made between the confiscation of assets that are the proceeds of a crime such as stealing, burglary or fraud and those that are the result of the criminalisation of the sale of one’s labour. In support of my rather basic lay understanding, I pray in aid ILPA’s briefing. It points out, as did my noble friend Lord Rosser, that,

“the Crown Prosecution Service Guidance on the Proceeds of Crime says that it should prioritise recovery of assets from serious organised crime and serious economic crime”.

Surely we are not talking about that here. ILPA continues by stating that:

“A confiscation order must be proportionate to the aim of the legislation, which is to recover the financial benefit that the defendant has obtained from the criminal conduct … The purpose of the legislation is not to further punish the offender by fining them, or to act as a deterrent. If the confiscation order is not proportionate then it will be a violation of the right to peaceful enjoyment of property under Article 1 of Protocol No. 1 to the European Convention on Human Rights”.

It would appear that potentially an important human rights issue is being raised here.

The noble Baroness, Lady Hamwee, referred to the experience in Italy. Another aspect of that was put by the organisation FLEX in its briefing, which states that evidence from that experience,

“demonstrates the impracticality of attempts to seize undocumented workers’ assets. Under an ‘irregular migration offence’ provided for in the ‘Bossi-Fini Law 2002’ undocumented workers could be fined for working without documents in Italy. This offence was ultimately repealed in 2014, one of the reasons for which was the heavy bureaucracy and limited success associated with gaining financial penalties from undocumented workers”.

On both principled and potentially human rights grounds, as well as practical and pragmatic grounds, I really do believe that the clause should not stand part of the Bill.

[Lord Green of Deddington (CB)]

My Lords, I thought that the noble Lord, Lord Rosser, made rather a good case for inserting the words “without reasonable excuse”, and I certainly agree with the noble Baroness, Lady Hamwee, about voluntary work. But perhaps I may raise a wider issue. Making illegal working a specific offence will fill a gap, as the noble Lord, Lord Bates, pointed out in his helpful letter of 8 January. It means that those who have entered illegally or who have overstayed their visas could now be prosecuted for working in the UK.

When I gave evidence to the Public Bill Committee of the other place, a former DPP said that in practice he had not known of a case where it was necessary to have this law because other provisions could be brought to bear. However, impressions matter. The present situation must be an excellent selling point for anyone who happens to be a people smuggler. Indeed, at this very moment there are literally thousands of young men camped near Calais. They are there because they believe that if they once get into the UK they can work illegally and send home what to them are very substantial sums of money. If detected, they can claim asylum and be here for a considerable period longer.

The fact that working illegally in the UK is not even an offence sends out entirely the wrong message, as the Mayor of Calais never tires of telling us. She is right; we should change the law. This is about deterrence and it is especially important in present circumstances.

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

My Lords, the Government have four amendments—Amendments 65, 68, 69 and 70—in this group. I shall speak to the amendments and then come back to the very legitimate points that have been raised and questions posed. I shall respond to them in turn.

Noble Lords are familiar with the reason why the Government are creating the offence of illegal working: to address a genuine gap in the law which currently impedes our ability to address the economic incentives behind illegal work where they exist. It is against this explanation and the safeguards to ensure its appropriate use that I turn to the amendments that have been tabled.

The Government have carefully considered the amendment to introduce the defence of “without reasonable excuse”. However, we believe that this introduces considerable ambiguity. Introducing such a wide defence risks making it very difficult to achieve a successful prosecution. The Government have also considered the amendment to remove voluntary work from the ambit of the offence. However, we believe that this is unnecessary because someone undertaking genuine voluntary work would not be working under the purposes of a contract. Therefore, genuine voluntary work is not caught by new Section 24B(9), introduced by Clause 8, and it therefore falls outside the ambit of the offence.

I share the concerns of noble Lords who want to ensure that this offence is used appropriately. The offence is not aimed at the victims of modern slavery, where the statutory defence in Section 45 of the Modern Slavery Act will still apply, as will common-law defences, such as duress. The circumstances of someone’s illegal working will be taken into account by the CPS and prosecutors in Northern Ireland and Scotland when deciding whether it is in the public interest to prosecute.

I also urge noble Lords to see the creation of this offence in the context of other measures in the Bill and elsewhere to increase the protection and support for victims of slavery and trafficking, strengthen enforcement against exploitation through the creation of the Director of Labour Market Enforcement and taking tougher action against employers of illegal workers.

We should remember that individuals with an irregular immigration status are already likely to be committing a criminal offence, regardless of whether they are working. The Government’s policy remains unchanged and they will continue to seek the removal of illegal workers from the UK, and prosecute only where the CPS or prosecutors in Northern Ireland and Scotland consider that their prosecution is in the public interest. This remains the right approach. The new offence, however, will serve as an important deterrent to illegal economic migrants and close a gap in the Proceeds of Crime Act powers, which do not necessarily require a conviction.

I have listened carefully to noble Lords’ concerns regarding the strict liability nature of the offence. While I am of the opinion that there are sufficient safeguards to ensure that the offence is used appropriately and that victims of modern slavery are protected, I can assure noble Lords that I will reflect very carefully on today’s discussions and the points which have been made ahead of Report.

I now turn to the offence of employing an illegal worker in Clause 9 of the Bill. The Government’s intention in using “reasonable cause to believe” as the test is to provide a more objective test for the existing offence of employing illegal workers and so make the offence easier to prove. The test is intended to capture those employers who have wilfully turned a blind eye to someone’s immigration status when employing them so that the employer cannot be said to have known.

Introducing a test of recklessness would not resolve the difficulties in establishing an employer’s state of mind that the Government are seeking to address in the Bill. This is because the test of recklessness would remain subjective, requiring proof that the employer foresaw a risk that the person had no right to work, yet went on to take that risk and employ them.

The test of reasonable cause to believe is not the same as negligence. The intention is to continue to apply the civil penalty sanction to those employers who are simply negligent—that is to say, who act without reasonable care and skill—in terms of not checking a person’s right to work, or not doing so correctly.

The Government’s amendment requires an employer positively to have a reason to believe that the individual cannot accept the employment. It will enable prosecutions to be brought against employers who choose not to undertake the necessary checks because they have reasonable grounds to believe that such checks will reveal that the employee has no right to work. This is in addition to the Government’s intention to continue to prosecute those who we can show actually know that someone has no right to work here, as we can do now under the current wording of the offence.

I now turn to some of the points raised during our debate. The noble Baroness, Lady Ludford, asked about the projected size and suggested that the sums that we were talking about were fairly minuscule. I refer noble Lords to my letter to the noble Lord, Lord Rosser, on 8 January, to which the noble Lord, Lord Green, referred. On page 2, it says:

“In 2014-15, the courts approved the forfeiture of cash totalling £542,668 seized by immigration officers. Following criminal convictions for immigration-related offences courts ordered the confiscation of assets totalling £966,024. We expect that in-country seizure could double with the use of the extended powers enabled by the new illegal working offence”.

Therefore, I do not think that these are inconsequential amounts—£1 million is quite a substantial amount. It is twice the budget of the relevant employment agency body. As I say, these are significant sums.

There is a slight sense that we were looking at destitute, highly vulnerable people, and that they would be the target of these initiatives. We are talking here about people who have on their person a significant amount of cash in excess of £1,000.

[Baroness Lister of Burtersett]

I am sorry to interrupt but I meant to mention that because I saw it in the noble Lord’s very helpful letter. But where is it in the legislation? I looked for it but I could not find any reference to a £1,000 limit or anything. I wondered whether I had missed it.

[Lord Bates]

It comes under the Proceeds of Crime Act. What we are doing here is simply drawing that element into line. The accusation appears to be being made that somehow the Government are targeting people who are here illegally. Of course, if they are here illegally, they should not be here and they should rightly be removed. However, it is odd that under the legislation to which I referred, we can currently prosecute those who have permission to be in the UK and are working in breach of their conditions. We can confiscate the relevant sums under the Proceeds of Crime Act for those who are legally here in breach of their conditions. However, if someone is illegally here, or they have overstayed, we cannot do that. Noble Lords will need to comment on that themselves. However, if they believe that this provision is too punitive for people who are working illegally in this country, they ought also to say—I am not inviting them to do this by Report—that people who breach the terms of their existing stay in the country, such as students who work beyond the hours legally allowed, ought to be exempt as well. The fact that there is one rule for people who are legally here but breach their conditions, and another for people who are illegally here, seems to me wrong as there is a gap. We are trying to close that gap.

Refugees: Eritrea

Baroness Lister of Burtersett Excerpts

Tuesday 12th January 2016 Lords Chamber

[Lord Bates]

In response to the noble Baroness, Lady Kinnock, there was, on 15 July last year, a response from the Government, by my noble friend Lady Anelay, to that specific report. One of the problems with that report was that the rapporteur, disgracefully in our opinion, was not given access to Asmara and could not go to Eritrea to engage and find out for herself. That is why the dialogues that have been undertaken by Foreign Office officials and James Brokenshire are so important in establishing what is happening on the ground and in holding the Eritrean Government to account on the commitments that they have given.

[Baroness Lister of Burtersett (Lab)]

My Lords, can I go back to the Question of my noble friend Lady Kinnock? The proposal to resettle 3,000 unaccompanied refugee children is not a new one. On 2 September, the Prime Minister said that the Government would discuss it further. On 2 December, he said that they would think about it some more. Yet here we are, a further month on. I plead with the Minister to inject some urgency into these discussions. Every day that a positive decision is not taken, more children are left vulnerable to trafficking, to the cold, to disease or even death.

[Lord Bates]

When we hear about this situation, as when the Prime Minister heard about it, the immediate instinct is to think that there are, somewhere, 3,000 unaccompanied children waiting to find placement. Of course, 3,000 is an estimate of the total number, and where they are in the system is clearly a matter to be defined. We think that the way to do that is through the Dublin regulations and by making sure that they are properly recorded when they arrive in the UK. It is worth noting that the conclusion to that report said:

“We strongly commend DFID for setting an exemplary standard in its commitment to funding humanitarian assistance to address the Syrian crisis”.

That is part of the solution, but there is more to be done, and the Prime Minister will make an announcement on his review when he has examined all the facts.

Immigration Bill

Baroness Lister of Burtersett Excerpts

Tuesday 22nd December 2015 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, it feels like déjà vu all over again. Not only are we faced with a very similar set of measures to those in the 2014 Act, but also the Bill includes a second savage cut in asylum support this year and, yet again, a parallel consultation is taking place on charging migrants for healthcare, including some emergency treatment. We still await time limits on detention. As if the 2014 Act did not create a hostile enough environment for so-called illegal migrants—a term that bodies such as the General Assembly of the UN committed not to use; I will refer instead to “undocumented” migrants because no person is illegal—organisations on the ground warn that this Bill will make Britain an even more hostile and suspicious place for all migrants and their descendants.

I am grateful for the bumper bundle of official information that appeared on my desk last week, but the sunny picture it paints bears no resemblance to that detailed in the copious briefings we received, for which I am also grateful—though I will not be able to do them justice. Instead, they point to a Bill that spells discrimination, exploitation and destitution.

A number of provisions could give rise to discrimination. As the Conservative MP Richard Fuller warned,

“the problem is that it is very difficult for someone to see that a person is an illegal immigrant. What they see is someone who is different”.—[Official Report, Commons, 13/10/15; col. 196.]

He asked whether the Home Secretary accepted that within this law there was the potential for discrimination to be increased if this was pursued too aggressively. The Home Secretary’s reply provided no reassurance. In the name of combating exploitation, some of the Bill’s provisions are likely to increase it, as we have heard, and, as has been argued, the withdrawal of the asylum support from appeal-exhausted families with children will without doubt mean destitution for all too many of them.

It was my original intention to speak solely about asylum support as I feel so strongly about this, particularly following the shabby and shameful cut in support for children that we debated in October. However, I am increasingly alarmed by other provisions, particularly the likely implications for children, whose best interests would appear to be far from paramount, and for women. I shall flag up some of these other concerns.

First, I shall speak on Clause 34, known as “Remove first, appeal later”. In its two reports on the last immigration Bill, the Joint Committee on Human Rights, of which I was then a member, raised serious concerns on human rights grounds about out-of-country appeals. This provision now goes further. As we have heard, Justice is one of numerous organisations warning about the human rights and rule-of-law implications as access to justice is impeded. There are also concerns about family separation and fears that the best interests of the child will not be given primary consideration as required by the UN Convention on the Rights of the Child, despite the Minister’s reassurances.

Rights of Women is worried about the implications for women migrants who have left abusive partners but who do not qualify to remain under the normal domestic violence rules because of their status, which is a common occurrence. Rights of Women fears that:

“A mother seeking to remain in the UK as the parent of a child who is wrongfully refused by the Home Office faces the prospect of leaving her child in the UK with an abusive father or taking her child with her forcing them to leave behind a network of friends and family, abandoning their schools and communities and being forced to live in a country where in many instances they have no ties, no understanding of the language or culture”.

It points out that this upheaval could last for months or longer.

I and other noble Lords raised fears about the potentially discriminatory impact of the right to rent scheme during the passage of the 2014 Bill. The Home Office’s gloss notwithstanding, I am not reassured by the findings of the pilot, which in my view do not allow us to conclude that our fears were unfounded, particularly in the light of JCWI’s independent evaluation, which reinforced those fears. Rights of Women warns that its extension and intensification could disproportionately affect women fleeing abusive partners, regardless of their nationality.

With regard to discriminatory effects, will the Minister give an assurance that the new language requirements for customer-facing public sector workers will not be used against those whose first language is British Sign Language, and commit to include a clear statement to that effect in the code of practice, as requested by Sense?

Turning back to the right to rent, there are also fears that it would make undocumented migrants more vulnerable to exploitation by rogue landlords. Similarly, as we have heard, the criminalisation of undocumented workers who undertake paid work makes them more vulnerable to exploitation in the workplace, thereby undermining one of the Bill’s aims. Exploitation can also be one result of the removal of asylum support from appeal-exhausted asylum seekers unless they can demonstrate destitution and a genuine obstacle to leaving the UK. The danger is that, counterproductively, adults and children disappear into the shadow economy or even are subject to sexual exploitation. Despite widespread opposition to the use of prospective destitution to incentivise voluntary return, the Bill steamed ahead with the original proposal just six days after the consultation closed.

The language of “incentives” is constantly used as justification, as if asylum seekers personified economically rational man in their decision-making. Such thinking was challenged by a Centre for Social Justice working group some years ago, and the overwhelming evidence from organisations working with asylum seekers shows just how misplaced it is. For example, Women for Refugee Women writes that,

“parents who fear for their own and their children’s safety will not be swayed to return to their home countries by the threat of being made destitute, or actual destitution”.

Not one of 45 women that WRW spoke to in a 2012 study felt able to contemplate voluntary return, despite facing destitution. That still held true when it spoke to 30 of those women a year later.

Women can face particular problems in getting their need for protection recognised when it arises from sexual persecution. My concern about this provision is heightened by the absence of any appeal rights, as we have heard, which again raises serious human rights and rule-of-law issues. It has been justified on the grounds that whether or not there is a genuine obstacle to leaving is a straightforward matter of fact, but judgments have to be made on facts pertaining to both this and the other criterion for destitution. ASAP’s analysis of decision-making on destitution under the existing scheme suggests that serious injustices could result.

More detail about what constitutes a genuine obstacle will be contained in regulations, as will the level and type of support to be provided for those who qualify and the length of the grace period, although I am pleased to say that the Home Office has recognised the strength of representations that 28 days is just too short in family cases. When will the draft regulations be published? Can the Minister give us a firm reassurance that at the very least an Explanatory Note of the contents will be published before Committee?

The Home Office has been more willing to respond to local authority concerns by severely restricting access to local authority support. The result is graphically described by ILPA as,

“a series of tatty ‘safety’ nets, each full of holes”,

through which it would be all too easy to plummet. There are also limitations on support for care leavers subject to immigration control, who are referred to as “adults” as though somehow the vulnerabilities faced by care leavers who turn 18, long recognised in law and policy, will magically dissolve.

I have received many emails from organisations and individuals asking me to speak today because of their concerns, particularly around asylum support. One of them, a Quaker,

“saddened by the increased dehumanisation”,

of policy-making in this area, wished me,

“strength in maintaining your opposition to the Bill in its present form”.

We owe it to them and, more importantly, to all those who stand to be affected by this wretched Bill to improve it and prevent the discrimination, exploitation and destitution that it threatens.

Domestic Violence

Baroness Lister of Burtersett Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Bates]

There is a particular group called Imkaan which works in this area with BME communities and they are represented on the national oversight group which the Home Secretary set up to advise her on improving her response across government to domestic violence.

[Baroness Lister of Burtersett (Lab)]

My Lords, the Justice Select Committee found that more than a third of the victims of domestic violence were unable to get legal aid because they could not provide evidence that such violence occurred within two years of their application. The Government responded with only a very minor reform. Will they now review the situation with a view to extending the time limits and, if not, why not?

[Lord Bates]

Certainly in relation to legal aid there is a merits test to go through. I understand that in cases of domestic violence there is a more generous provision than in other areas. There is an important new provision coming out in which we are going to refresh the cross-government strategy on tackling violence against women and girls. That will include some elements of new legislative responses which are available and being considered by the Government.

Asylum Support (Amendment No. 3) Regulations 2015

Baroness Lister of Burtersett Excerpts

Tuesday 27th October 2015 Lords Chamber

All too often for these desperate families it is a case of no money, no house, no permission to work. In the 21st century, in the fourth-richest country on earth, people are being reduced to absolute destitution, not by accident or personal tragedy but by deliberate act of policy—and we should therefore certainly reconsider these regulations today by supporting the Motion in the name of the noble Baroness, Lady Hamwee.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support the noble Baroness, Lady Hamwee, and my noble friend Lord Rosser. I apologise if I cover some of the same ground. I am particularly grateful to the noble Baroness for having moved so quickly to ensure that we were able to debate these regulations. I believe that your Lordships should oppose them on two main grounds: the manner in which they were introduced and the impact that a cut of £16 a week in the allowance for each child will have on a particularly vulnerable group of children and families, as is spelled out in the regret Motion.

As we have already heard, these regulations replicate regulations that were originally laid on 12 March, just a fortnight before the end of the last parliamentary Session. To my knowledge, no Statement, oral or written, was made to Parliament that the regulations had been made, despite the significant change in asylum support policy they represent and despite the considerable interest in that policy that had been expressed, particularly in your Lordships’ House. As I understand it, the stakeholder forum of voluntary organisations working with asylum seekers was informed on 23 March, just two weeks before the regulations were due to come into force. I learned of the regulations the following day by pure chance. No other parliamentarian whom I contacted, Front Bench or Back Bench, knew anything about them. It is thanks only to the behind-the-scenes intervention of the former MP Sarah Teather, who was a great parliamentary champion of asylum seekers, that they were withdrawn as they had not been agreed by the coalition partners.

It was shoddy behaviour on the part of the Home Office to sneak out controversial regulations in this way at a time when Parliament could do nothing about them. I do not address this criticism to the Minister, because I am quite sure that he personally would not have countenanced such behaviour. However, I hope that he will relay to the Home Office our dismay at it.

Although the official reason given for the withdrawal of the original regulations was “further reflection”, the suspicion was that they would be relaid in the new Parliament, so I tabled a Written Question to ask whether the Government planned to do so. The response on 8 June was that:

“The matter is under consideration”.

Five weeks later, identical regulations were laid just a week before the House rose for the Summer Recess. Therefore, once again there was no time for them to be debated before they came into effect in August. It is difficult not to conclude that this was deliberate.

Not surprisingly, the Secondary Legislation Scrutiny Committee, as has already been referred to, was pretty scathing. It found “unconvincing” the explanation given for an instrument containing such a “controversial policy change” being laid “so close to a recess”. It expressed its disappointment that,

“gaining an understanding of the … background”,

to the policy change required such,

“persistent questioning of the Government”.

One aspect of the background to the policy change that was not addressed is the consistent picture painted by organisations working with asylum-seeking families of the severe poverty and hardship they have experienced living on the existing allowances. As we have already heard, these were set in 1999 at 70% of income support rates. However, since 2011, they have been frozen, resulting in a cut of nearly 7.5% in their real value.

Income support rates are far from generous. A study of the cost of a child for the Child Poverty Action Group by Loughborough University’s Centre for Research in Social Policy—I declare a double interest as the honorary president of the CPAG and emeritus professor at Loughborough—concluded that,

“a family on benefits is left well over a third short of being able to afford a socially acceptable minimum”.

Back in 2010, before the rates were frozen, Still Human Still Here analysed the basket of basic goods used by the Joseph Rowntree Foundation for its minimum income standard research but stripped it down to include only goods needed to avoid what it termed “absolute poverty”. It concluded that 70% of income support was the absolute minimum necessary to meet asylum seekers’ basic needs.

We have already heard about the research conducted by Refugee Action. Respondents to that research expressed deep concern about the impact that deprivation was having on the health, well-being and physical development of their children. The point was made that, whereas income support recipients might be able to turn to family or social networks for help in getting by, this was rarely an option for asylum seekers. Overall, its conclusion was that the support system,

“fails to meet essential living needs or ensure a dignified standard of living for those in its care”.

In 2013, I sat on an all-party parliamentary inquiry into asylum support for children and young people, chaired by Sarah Teather and supported by the Children’s Society. We were shocked by some of the evidence received of the hardship faced by asylum-seeking families. We took evidence from a range of experts, social workers, local authorities and families themselves and concluded that the current levels of support provided to families are too low to meet children’s essential needs. Furthermore, these rates do not enable parents to provide for their children’s wider needs to learn, grow and develop, especially if they have a disability.

It is difficult to square all this evidence with the Home Office’s conclusion that the previous levels of asylum support for families with children,

“significantly exceed what is necessary to meet essential living needs”.

This conclusion is based primarily on ONS expenditure data for the lowest 10% income group, supplemented by various other data on the cost of essential items. But taking expenditure data for the lowest decile begs the question as to whether people at that level of income are able to spend enough for a healthy and decent life—a point made by the Secondary Legislation Scrutiny Committee. We know that many of those living on a lower income are not able to afford an adequate diet. It therefore does not provide an appropriate benchmark for costing a healthy diet. Also, I am not convinced that the adjustments made to the ONS data take adequate account of the extra costs involved for people new to the country, often living in poor accommodation.

The advice that I have received from Donald Hirsch, whose evidence was cited in the 2014 High Court judgment on asylum support, and from Professor Jonathan Bradshaw, both respected experts who work on minimum income standards and the costs of children, is that it is not good enough to rely on multiple strands of evidence to corroborate the questionable figures taken from the ONS data, when each of the strands is, in their words, “flimsy and selectively chosen”. They focus in particular on the evidence used to argue that the food budget is adequate, pointing out that it provides little more than half of what has been calculated is required to achieve a minimum income standard deemed necessary for decent living by the general public. That is in the context of greater access to kitchen facilities and transport than is likely to be the case for asylum seekers on the Government’s assumptions.

One piece of evidence is misrepresented hearsay taken from quotes from a nutritionist. Another is based on the spending habits of a member of the Home Office team. The example for one day is: “breakfast: cereal; lunch: garlic baguette; dinner: pasta with peppers”. That does not sound like a very healthy diet for a growing child. Would it not have been more appropriate, when determining the level of support for a particularly vulnerable and sometimes traumatised group of families for whom, as we have heard, paid work is not a committed option, for the Home Office to have employed a nutritionist and to have made a proper scientific costing of a weekly menu, as done by proper academic research in this area?

--- Later in debate ---

[Lord Bates]

Our position is that we have gone into this in exhaustive detail, as my letter to the noble Baroness, Lady Hamwee, set out, probably in too much detail. It set out right down to the last penny where we felt that these amounts had come from. We clearly believe that we are complying with our international obligations. If this is shown to have a real detrimental effect, and evidence can be provided to us, then of course we will consider that very carefully next year, when this comes to be reviewed.

[Baroness Lister of Burtersett]

It should not be up to other organisations to provide the evidence. The Minister very honestly said at the outset that these people will be living on an income barely above the level of destitution. I asked if he would give an undertaking that the Home Office would monitor the impact. Will he now do that please?

[Lord Bates]

We will, of course, continue to monitor the impact. We will continue to work through the National Asylum Stakeholder Forum with other groups. We have set out our position, and if people challenge that position and have data that show that there is unintended hardship as a result of these regulations, they should come forward with them. They should make the data available to us, and we will then consider them.

Immigration: Detention

Baroness Lister of Burtersett Excerpts

Thursday 26th March 2015 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, as a member of the inquiry, I am very grateful to the noble and learned Lord—who will be missed—for facilitating this debate, and to Sarah Teather for establishing the inquiry and chairing it with such skill and commitment.

We were shocked by what we heard, both from the detainees who recounted their experiences, and I pay tribute to them for doing so, and from professionals who, among other things, confirmed the disastrous effects of indefinite detention, particularly on the mental health of detainees. It became clear to us that as an absolute minimum there must be a time limit on detention and I very much welcome today’s announcement that my party supports this. But, in our view, even time limits would not be enough. We also seek a commitment to making deprivation of liberty for the purposes of immigration control a genuinely last resort, with a presumption in favour of the community-based alternatives practised in countries as diverse as Canada and Sweden.

What became clear during the inquiry was the disconnect between official policy and what actually happens. The current Home Office guidance that detention should be used sparingly and for the shortest possible period is rendered ineffective by working practices and culture. The same disconnect can be found in the treatment of women. One of our recommendations was that,

“women who are victims of rape and sexual violence should not be detained and this should be reflected in the Enforcement Instructions and Guidance”.

A reply to a Written Question about this recommendation states that the list of those,

“normally considered suitable for detention only in very exceptional circumstances … includes individuals for whom there is independent evidence of torture, which would encompass women who had suffered rape or other forms of sexual violence as an instrument of torture”.

However, UNHCR guidelines on detention state:

“Victims of torture and other serious physical, psychological or sexual violence also need special attention and should generally not be detained”.

I emphasise the “and” because my reading of that is that it should be sufficient for a woman to demonstrate that she has survived rape or sexual violence regardless of whether or not it constituted torture. The Written Answer conflates the two. Moreover, back in 2013 the UN Committee against Torture urged the UK Government to lower the evidential threshold of independent evidence. Far from being lowered, it now appears to cover survivors of rape and sexual abuse. I urge the Home Office to look at this again.

I also urge the Home Office to review the treatment of pregnant women. Again, there is a disconnect between policy and practice. A member of HM Inspectorate of Prisons told us that,

“pregnant women are only meant to be detained in the most exceptional circumstances … on the last couple of occasions that we’ve looked, we haven’t found those exceptional circumstances in the paperwork to justify their detention in the first place”.

The inquiry heard evidence of pregnant women being treated in a way that caused emotional, psychological and physical distress. Given the apparent inability of the Home Office to comply with its own policy, we recommended that pregnant women are never detained for immigration purposes.

I welcome the fact that the Shaw review, which I am sure the Minister will talk about, is to be asked to consider the recommendations in part 2 of our report. However, this avoids our more fundamental recommendations concerning the very use of detention. If the Shaw review is to carry credibility, it is crucial that its terms of reference are widened so that it can consider part 1 of our report also. Can the Minister explain why this is not possible?

The time for a well meaning smoothing of the harshest edges of a rotten system has passed. Thus the Government’s response to our review, as set out in the recent letter to Sarah Teather, is very disappointing. I urge whosoever form the next Government to take urgent action on our report as a whole in the name of human rights, justice and basic human decency.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)]

I thank the noble Baroness for that unexpected remark—I was slightly thrown by it—and, of course, I am very happy to reciprocate. There has been common ground in many of the areas that we have debated over the past six months while I have been in this role. On issues such as child sexual exploitation, counterterrorism legislation and modern- day slavery, we have, in the best traditions, worked together to provide better and more humane protection for people in this country.

It was typical of the noble and learned Lord, Lord Lloyd of Berwick, to choose the topic of this debate for his swansong. The noble Baroness, Lady Smith, said that Ministers quake in their shoes when the noble and learned Lord rises to his feet. If I am not quaking in my shoes it is only because the noble and learned Lord manages to prod the conscience of Ministers and hold them to account, not necessarily with a full, thrusting and aggressive approach but always with a very perceptive presentation of the case, and always on behalf of others and the most vulnerable in our society. I pay tribute to him. He will be sadly missed.

I realise that I have only a short time to speak because Standing Orders dictate that this debate should finish at 3.12 pm, I think. However, I do not think that we have anything else going on until people with strange tricorn hats start to appear at the Bar. I want to try to address some of the issues raised because they impact on the most vulnerable people in our society as well as some of the people from around the world who come here. We need to make sure that those issues are looked at carefully.

I join the noble and learned Lord in paying tribute to the authors, Sarah Teather and the others mentioned in this debate, for the way that they conducted both part 1 and part 2 of their review of detention in the immigration system and its effectiveness. I will return to that in just a second. Their work builds on a body of evidence that is raising deep public concerns. The undercover experiences at Yarl’s Wood in the Channel 4 documentary were deeply disturbing and are rightly the subject of an independent investigation. There was also the report by Women for Refugee Women, which I have read, about the daily experiences of people in that system. I think that one would have to have a heart of stone not to be moved by the stories that one hears and the accounts that one is given.

I am conscious that I am on a race to the bottom of the page already. My noble friend Lord Hurd is a distinguished former Home Secretary. I hope that he will be forbearing of a junior Minister in his former department who on the final day of term stretches the limits a little further than perhaps was initially thought. I shall try to do that in a number of areas, and he can come to my tribunal hearing if I go on a little bit too long and can perhaps defend me.

The first thing is to try to find the common ground. When I visited Yarl’s Wood immigration detention centre, there were different categories of people whom I met. I met detainees and staff as well. A very large proportion of them were coming in from the centres at Calais where they get on to trains or lorries and are then picked up immediately at the other end. They are then brought into the detention centre and stay only for a matter of hours before they are moved on and processed elsewhere, often returning of their own choice to France or Belgium.

There are then the most difficult cases, the foreign national offenders who have been referred to in many of the contributions that I have listened to. These are the people who used to be held within the prison estate and were then deported from there when they had served their sentence. A small proportion of them are still in the prison estate but are held now in the immigration detention centre ready to be removed. I am deeply conscious of the fact that the noble Lord, Lord Ramsbotham, is in his place. We had a very helpful meeting for interested Peers with officials dealing with these areas following the Yarl’s Wood allegations. The noble Lord rightly spoke of the appropriateness of mixing foreign national offenders who are on their way out with people who are seeking asylum in this country. That point has to be looked at. Clearly, one has a group of people who, understandably, want to do almost everything they possibly can to frustrate the removal process. They do not want to co-operate; they do not want to apply for identity documents. A principal reason why people are held there is that it is not in their interest to co-operate and give an accurate name, to give their passport details and date of birth, and to get replacement documentation for their country, because that would be, as it were, to co-operate in the process of the return which they do not want—they want to stay here. Having the privilege of being in this country, I am sure that we can all totally understand why they would want to do that. Virtually every foreign national offender whose case I have looked into has been there for a very long period and falls into that category.

The detained fast track is an issue which will have to be addressed. Normally, the Border Force feels that these people’s asylum claims at ports of entry can be dealt with quickly and a swift decision reached. Normally, under the detained fast track, that can take 10 to 14 days. Not all those people are then deported; many of those claims are immediately upheld and the individuals concerned are moved to be cared for in the asylum system. That is important, too.

There are some areas on which I should like to make progress and cut to the chase, as there have been some very serious contributions. On Yarl’s Wood, one of the issues was the proportion of female staff. Yarl’s Wood is principally a place of female detention, so it would be appropriate for the number of female staff to be increased. We have said that we want to see it increased further and expect it to grow to 60%. Some also asked for greater transparency and for the improvement plans, which were previously not published, to be published. Taking advantage of the leniency which my noble friend Lord Hurd gave me, I can say that that will now be released.

I can also say as a statement of intent that we do not, as a direction of travel, want to see growth in the numbers of people in the immigration detention centres. For that reason, I can inform the House that the planning application for an extension at Campsfield has been declined. Moreover, today we are announcing that we are handing the Haslar immigration removal centre back to the prison estate. These are very important points as a general statement of direction of travel as to where government policy is going.

On the Stephen Shaw review, without wishing to test the patience of people who say that this is a time for action and not for more reviews, I think that there is something to be said for the fact that on an issue of this sensitivity, the margins of an election are not necessarily the time to get an objective and fair review of the case. We want to do this in a thorough and careful way, and explore all possible alternatives. There is the Kate Lampard review being undertaken by Serco and there is also the review by Stephen Shaw, who is widely respected. He is particularly looking at welfare. I will write to him today to ask him to extend the remit of his review to cover, in particular, the detention of pregnant women and people with disabilities. When we talk about that, distinct from talking about foreign national offenders who I think we all recognise are a different category in this sensitive issue, we are talking about those in the detained fast track. We will ask him to look particularly at the appropriateness of the welfare of those groups.

[Baroness Lister of Burtersett]

The Minister has been very helpful, but will he also extend that to cover women who have been subjected to rape and sexual abuse?

[Lord Bates]

I will need to double check on that, but I think that, under Article 5 and the rules governing when people have been subject to sexual violence or torture, that is the subject of the medical examination when they are brought into the system and therefore they should never be in the system. I will look at that— I will not look at the Box, because I will get a shake of the head, probably—and include it in my letter to Stephen Shaw today.

I could address other matters, but time has probably run out and so I am not able to.

Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015

Baroness Lister of Burtersett Excerpts

Monday 23rd March 2015 Lords Chamber

[Baroness Brinton (LD)]

My Lords, I follow the comments just made by the noble and learned Lord, Lord Hope, by saying that one of the benefits of both new sets of guidance, for England and Wales and for Scotland, is that the tone is very different. That is enormously helpful. I am also very grateful for my noble friend’s comments about the final decision on external speakers being made by the next Government.

However, I would ask the Minister for absolute clarification on one point. I know that there have been discussions outside your Lordships’ House following the consultation on exactly what would happen if agreement were not reached on the thorny issue of external speakers. Could my noble friend give reassurance that the guidance to higher and further education would be withdrawn completely should such an agreement not be reached? Clearly, the reference within the guidance makes it absolutely clear that this is one of the Government’s major concerns.

I would be very grateful as well if our thanks could be passed back to the Minister’s civil servants for the hard work involved in accepting the many thorns in the flesh that your Lordships’ House has provided in the detailed discussions of this, especially given that the Commons did not have the chance to talk about the detail of the guidance when it considered the matter.

[Baroness Lister of Burtersett (Lab)]

My Lords, I welcome the opportunity to debate the guidance and welcome a number of the additions to the original draft, notably: the addition of the reference to the public sector equality duty in the Equality Act in paragraph 12; the cross-reference to “other relevant safeguarding guidance” in paragraph 40; and, in particular, the expectation in paragraph 111 that higher education institutions will,

“seek to engage and consult students on their plans for implementing the duty”.

The role of students—listening to what students have to say—is really important, so I welcome that. I am sure that the inclusion of a definition of “Having due regard” in the glossary will be helpful to all those non-lawyers in the higher education sector.

As during our discussion of the Bill, I will focus my remarks on higher education. Here, as the Minister has acknowledged, there is a glaring omission, with the reference to the issue at a later date of,

“guidance … on the management of external speakers and events”,

including, I am pleased to say, on how the Prevent duty will interact with,

“existing duties to secure freedom of speech and have regard to the importance of academic freedom”,

which, thanks to the deliberations in your Lordships’ House and to the Minister’s willingness to listen, were written into the legislation.

Although I understand the reason for the omission, having read about it in the press—I do not want to intrude into private debates on this—it is regrettable that the most contentious part of the draft guidance when it was discussed in your Lordships’ House is not available for your Lordships to debate today, as opposed to what may happen. I very much endorse the plea made by the noble Baroness, Lady Brinton, that, if agreement is not possible, the whole thing should be withdrawn. I also very much urge on the Minister, or any future Minister, that in the time between now and this being brought forward there should be proper engagement and consultation with the higher education sector to try to reach agreement on something that will be workable, unlike the original draft.

Concerns also remain about the position of student unions and societies. The guidance, I am glad to say, now acknowledges that student unions are already,

“subject to charity laws and regulations, including those that relating to preventing terrorism”.

But the NUS states:

“However, the continued emphasis on student unions’ compliance with their institutions’ policies remains worrying and indicates a misunderstanding of the autonomy of students’ unions which could lead to confusion and conflict between institutions and students’ unions”.

The NUS also commends the guidance for Scotland as achieving,

“a better balance in this respect”,

with a greater emphasis on co-operation with, rather than control by, higher education institutions. Can the Minister clarify the Government’s understanding of the implications of student unions’ autonomy in this area and explain why the Scottish guidance differs from that for England and Wales? I cannot see what the particular circumstances of Scotland are to explain this difference.

The other most contentious element in the original draft guidance was the very broad definition of extremism as,

“vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs”.

Perhaps even more worrying was the inclusion of “non-violent extremism”. The Joint Committee on Human Rights—again, I declare my interest as a member—emphasised its concerns about such vague terms in its legislative scrutiny report and warned:

“This legal uncertainty will have a seriously inhibiting effect on bona fide academic debate in universities, and on freedom of association”.

UCU, my former trade union, has expressed similar concerns around the revised guidance. So-called fundamental British values, it says, include values and concepts which are rightly the subject of debate and consideration in universities. It is not appropriate for universities to be required to exclude those who lawfully oppose them.

According to the summary of responses to the consultation, this issue attracted some comment, including concerns about that very vagueness. Yet the revised guidance does not appear to have attempted to address these concerns. Can the Minister explain why not? I do not want to make too much of it but can he also explain why the Scottish guidance does not make reference to “non-violent extremism” in the higher education section? If it is not necessary to repeat the earlier general reference there, why is it necessary to do so in the guidance for England and Wales?

Turning to training, the guidance requires a willingness to undertake training of what it calls “relevant staff”. It says:

“We would expect appropriate members of staff to have an understanding of the factors that make people support terrorist ideologies or engage in terrorist-related activity. Such staff should have sufficient training to be able to recognise vulnerability to being drawn into terrorism”.

The guidance also suggests:

“Changes in behaviour and outlook may be visible to staff”.

The Minister, James Brokenshire, when he gave oral evidence to the JCHR, said:

“There might be someone whom a lecturer has concerns about, not simply because of one particular lively debate, but because they are becoming withdrawn and reserved, and perhaps showing other personality traits”.

All this suggests that we are talking about staff who are in close contact with students—for example, lecturers or personal tutors—who will need to be trained as they are presumably the most likely to pick up on such vulnerability or changes on a day-to-day basis.

I was surprised that the impact assessment—if I have read it correctly; perhaps I have made a mistake—assumes that 15 people in every HE and FE institution will receive Prevent awareness training once every two years at a cost of £46,500. Who does the Minister envisage that these 15 or so people will be? What positions will they hold? Clearly, they cannot be at the chalk—or what is now the whiteboard—face of teaching. I am not arguing for mass surveillance of students by lecturers but there seems to be an inconsistency here that could leave teaching staff exposed if they are expected to play an active role in preventing students being drawn into terrorism without being given the training that the guidance itself acknowledges is necessary for people to be able to fulfil this role. Again, I would be grateful for clarification, as it may be that I have misread the impact assessment.

Finally, is the Minister now in a position to clarify HEFCE’s role, as that has not been spelled out in the guidance? Here, UCU repeats its concerns about HEFCE’s ability to regulate institutions with which it has no formal funding relationship. Has this now been resolved? What steps will be taken to prepare HEFCE for this new role?

For all the very welcome improvements that were made to the Bill during its passage through your Lordships’ House and the improvements that have been made to the guidance, the guidance still raises a number of very real worries. This is all the more so in the light of the recent newspaper report about Imperial College cancelling a booking for an international conference on Palestine at the last minute because of what speakers might say. If this is true—I have not been able to check the newspaper report—it suggests that the legislation is already having the very chilling effect that many Members of your Lordships’ House warned about when the legislation was going through. I am not convinced that the guidance as it stands is sufficiently robust to guard against such a chilling effect.