Nationality and Borders Bill

Debate between Baroness Lister of Burtersett and Baroness Ludford

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak to Amendment 105 in my name and those of the noble Baroness, Lady Coussins, who cannot be here tonight, the right reverend Prelate the Bishop of Gloucester and the noble Lord, Lord Paddick, to whom I am grateful. I also thank Women for Refugee Women and ILPA for all their work on this amendment.

The amendment would remove the narrow restrictive and requirement in Clause 32 that, in order to qualify under the “particular social group” grounds of persecution for recognition as a refugee under the convention, two conditions must be met. The amendment would replace this with an either/or condition. As I will explain, this would be in line with international standards and UK case law.

This is a small amendment, but it is significant, as the UNHCR has made clear. The UNHCR explains that Clause 32 is one of a

“series of changes that would make it more difficult for refugees who are admitted to the UK to be recognised as such.”

The case for the amendment is, in effect, set out in its detailed legal observations, which have been invaluable to our scrutiny of the Bill. The UNHCR warns that narrowing the definition of “particular social group” in the way that the clause does

“could exclude some refugees from the protection to which they are entitled … In the UK and other jurisdictions, the particular social group ground has proved critical in the protection of those with claims based on gender, sexual orientation, gender identity, status as former victims of trafficking, disability or mental-ill health, family and age.”

This view is endorsed by the Bingham Centre, which warns:

“The result will inevitably be to refuse protection to people who, as a matter of international law, are refugees.”


It picks out this clause as one of a number that are particularly troubling to it from a rule of law perspective.

The UNHCR explains the origins of the two conditions and why it has recommended that they should be treated as alternative, rather than cumulative, tests. The argument was endorsed by the late Lord Bingham, acting in his judicial capacity, when he ruled that the cumulative approach taken in Clause 32 was wrong because

“it propounds a test more stringent than is warranted by international authority.”

Thus this approach, the UNHCR points out, has been affirmed in the UK courts over an EU interpretation. I cannot resist observing that it is rather odd that a Government committed to taking back control from the EU is so keen to apply an EU interpretation that has been rejected by the British courts. Indeed, on the previous group, the Minister said that our starting point should be that we had left the EU, so could he perhaps explain why that does not apply to this clause?

In their briefing, Women for Refugee Women—WRW —and ILPA include an example, taken from Garden Court Chambers barristers, of what this might mean:

“a trafficked woman would need to show not only that her status as a trafficked woman is an innate characteristic”—

one shared with other members of a group—

“but also that trafficked women as a group are perceived as having a distinct identity in her country of origin. The latter is of course much more difficult to establish than the former because this is judged by the perceptions of the society in her country, and it can be very challenging to find objective evidence on women as a distinct group.”

WFW and ILPA also point out that there was “no pre-legislative consultation” on this clause because it was not included in the New Plan for Immigration. Can the Minister explain why this is the case? Moreover, the equality impact assessment on the Bill, which has been described as “superficial and inadequate” by barristers at Garden Court Chambers, fails adequately to assess the impact of the change on groups in vulnerable circumstances.

As I have already noted, the UNHCR has warned of the likely implications for a wide range of such groups. I particularly draw attention to how this clause is likely to have an adverse impact on women fleeing gender-based persecution—a group that the Government claim to care about. As I made clear on an earlier amendment, it is one of a number of such clauses that have to be viewed in the context of the failings that already exist. According to WRW and ILPA,

“Over the years, there has been substantial research on the failures of the Home Office in delivering a fair asylum process, and on the reasons why many women who flee gender-based persecution may be wrongly denied protection.”


Most recently, as I noted last week and gave the Minister some weekend reading on, the British Red Cross has published research that details experiences that

“highlight the distrust and disbelief women can face when discussing traumatic experiences of violence”,

especially, but not only, when interviewed by men. One survivor’s words are recounted:

“you feel so low and you feel so degraded and you’ve been violated and you were [telling] your story, you were expecting to be heard and to have someone who shows you some form of sympathy.”

In the Commons Public Bill Committee, the Government justified their position by asserting that the new clause was necessary to bring certainty to an area bedevilled by conflicting authority. But ILPA and WFW give that argument short shrift, pointing out:

“There is no conflicting authority: the UNHCR and the senior UK courts have a clear and constant interpretation. It is the Government that seeks to depart from this shared interpretation of the Refugee Convention, and it does so without warrant or proper justification.”


So can the Minister provide a more convincing justification today of a clause that, in the words of Women for Refugee Women and ILPA

“reverses case law of senior UK courts, contravenes UNHCR standards, and reinstates an erroneous EU law standard”?

If not, will he agree to this amendment?

[Baroness Ludford (LD)]

My Lords, all of these clauses seek to restrict access to the protection of the refugee convention. I will speak to Amendments 103 and 104 to Clause 31 and Amendment 111 to Clause 37, which are all in the name of the noble Lord, Lord Dubs, and which I have co-signed. However, I share the view of my noble friend Lady Hamwee and the noble Baroness, Lady Chakrabarti, that all of these clauses should in fact be removed.

The problem with Clause 31 is that it changes the standard of proof for the test of whether a person is a refugee. It creates two limbs of the test and changes the bar from “reasonable likelihood” to

“on the balance of probabilities”.

Although the refugee convention does not prescribe the standard of proof, UNHCR’s handbook says:

“The requirement of evidence should … not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself.”


So, for 20 years, the UK courts, including the Supreme Court, have applied a “reasonable likelihood” standard of proof in a composite and holistic manner.

Clause 31 overturns this established interpretation of the law by dividing the overall test into a series of sub-questions and applying different standards of proof to different limbs of questioning, to require the person to prove on a balance of probabilities that they fear persecution and the decision-maker to revert to a test of reasonable likelihood in assessing whether the person would face persecution and lack state protection. It is quite a mishmash, and a complex and confusing one—not least for already burdened caseworkers. As we have heard so frequently in this Committee, if the Government really want to fix a broken asylum system, why are they making everything more complex and building in delay?

As the Bingham Centre points out, Clause 31

“allows for rejection of a person as a refugee because they failed one of the steps”

imposing that higher hurdle,

“whereas if the test was taken in its totality, the person may have been accepted as a refugee.”

The process may well lead to exclusion from sheer error because of all these complex, different bits of the test. Either the JCHR Amendments 103 and 104 should be accepted, or Clause 31 should be deleted.

On Amendment 111 to Clause 37, as the noble Lord, Lord Dubs, has said, we object to the lowering of the threshold for regarding a crime as particularly serious such that a person can be expelled. It is designed to—and will—exclude many more people from the protection of the refugee convention. Not only is the threshold sentence reduced from two years to 12 months but it changes the rebuttable presumption of “particularly serious” into an unchallengeable assertion.

This is disproportionate; a blanket exclusion is incompatible with the refugee convention, which envisages a crime that is a major threat and expulsion as a last resort. Bear in mind that the Bill seeks to impose a four-year sentence for the mere act of arriving in the UK without permission, which most refugees have to do. That gives you a measure of the lack of proportion in what is supposed to be a serious crime under the remit of the Bill; I am not validating or endorsing any crime, but under the refugee convention it has to be “particularly serious”, and the Government are departing from that.

Nationality and Borders Bill

Debate between Baroness Lister of Burtersett and Baroness Ludford

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Baroness Ludford (LD)]

But that is why we need family reunion routes.

[Baroness Lister of Burtersett (Lab)]

Can I just point out that the Refugee Council, for example, has made the point that cutting back and restricting family reunion rights, which the Bill will do—this is one of the key safe and legal routes—will particularly affect women and children? Plenty has been written about what safe and legal routes might look like—it is family reunion; it is humanitarian visas. Is the noble Lord really suggesting that we have no responsibility to the kind of people that my noble friend talked about? No one is suggesting that everyone comes over here, but much poorer countries than this country are taking responsibility for asylum seekers, and we will not take any responsibility.

--- Later in debate ---

[Baroness Ludford (LD)]

Before the noble Baroness responds, I add that I do not think that the noble Lord, Lord Rosser, is confused: I fear that the Minister is being mildly disingenuous with us. Can she confirm that there is a difference in the intended treatment of group 1 and group 2 refugees as concerns family reunion? Otherwise, what is the point of Clause 11(6):

“The Secretary of State or an immigration officer may … treat the family members of Group 1 and Group 2 refugees differently, for example in respect of … whether to give the person leave to enter or remain”


et cetera? What is the point of this being in the Bill if there is no intention to treat group 2 refugees differently? The Minister told us about how this will not breach the refugee convention and so on. I asked specifically about the comments on Article 8, and I look forward to her replying specifically on that. But can she confirm whether their intention is to treat group 1 and group 2 refugees differently in terms of rights to family reunion?

[Baroness Lister of Burtersett (Lab)]

May I just add to that? Clause 11(5) says:

“The Secretary of State or an immigration officer may treat Group 1 and Group 2 refugees differently, for example in respect of … whether leave to enter or remain is given to members of the refugee’s family.”

Nationality and Borders Bill

Debate between Baroness Lister of Burtersett and Baroness Ludford

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle, and the noble Lord, Lord Woolley of Woodford, for their support for the amendment. The amendment would extend the right to register as citizens to the descendants of Chagossians exiled from their homeland, subject to a time limit. I am grateful to Rosy Leveque of BIOT Citizens for her help with it, and to Chagossian Voices for its briefing.

To understand the case for this amendment, a bit of history is necessary. Back in the 1960s and early 1970s, the inhabitants of the Chagos Archipelago—a British Overseas Territory which became part of the British Indian Ocean Territory—were evicted by the then British Government to make way for a US airbase on Diego Garcia, the largest of the islands. They have never been allowed to return. Not only did they lose their homeland, but their grandchildren and other descendants have no right to British Overseas Territory citizenship and, therefore, to British citizenship. Only those born on the islands and the first generation born in exile have such a right. I should perhaps make it clear that the right to citizenship should not be confused with the quite separate right of return, which is not affected by this amendment, important as it is.

The Chagossians were deported to Mauritius and the Seychelles and now around 4,000 live in the UK, but because of the unjust citizenship rules many are undocumented and children have been and continue to be deported. Families have been broken up and communities are divided, as some members have access to citizenship rights while others do not. This has caused hardship for many and has aggravated the trauma associated with exile. The lack of citizenship rights has created insecurity and made it harder to integrate into local communities.

In the Commons, in Committee, the Minister, Tom Pursglove, expressed some sympathy for the case made for the extension of citizenship rights and acknowledged that

“the Chagossians present a unique case.”—[Official Report, Commons, Nationality and Borders Bill Committee, 4/11/21; col. 644.]

He said he would “reflect further”. It all looked rather hopeful but when the Conservative MP, Henry Smith, raised the issue on Report, what looked like a half-open door was slammed shut by the Immigration Minister, Kevin Foster, which was very disappointing. Mr Smith emphasised the anomalies created, the injustices caused and that we are talking about no more than a few hundred to the low thousands of people who would benefit. So far, BIOT Citizens has identified 500 descendants. What is at stake is a small concession but one that would make a huge difference to the lives of those affected. It would also have symbolic importance for a people who have lost their homeland through no fault of their own.

Mr Smith’s amendment was rejected in a single paragraph. There appear to be two strings to the Government’s case. The first is that the amendment

“would undermine a long-standing principle of British nationality law … under which nationality or entitlement to nationality is not passed on to the second and subsequent generations born and settled outside the UK and its territories, creating quite a major precedent.”—[Official Report, Commons, 7/12/21; col. 258.]

I am sure noble Lords can spot what a specious argument this is in this context. The only reason the Chagossians in question do not meet this condition is because they are descended from people who were evicted against their will from a British Oversees Territory. Forced and continued exile prevents them from meeting these long-standing conditions. It is not clear that the Government really understand this, but as the Junior Minister acknowledged in Committee, it is “a unique case” so no precedent would be set, unless the Government have plans to evict others from their British Overseas Territory homelands. I hope and trust that, if the noble Baroness—I think it is the noble Baroness—the Minister has been briefed to use this argument, she will scrap it now.

The second government concern is more credible. They do not want to create an open-ended right in the way that the Commons amendment did, and I think that is reasonable. This amendment therefore creates a five-year time limit for applications, following the Windrush precedent in the British Nationality Act 1981. Those aged under 18 at the time of enactment will have up until the age of 23. I am offering the Minister an opportunity to add something positive, that would be widely welcomed, to a Bill that—with very few exceptions to be found in this part of it—has been widely condemned. If this particular way of capping entitlement is not to the Government’s liking I am, of course, open to discussions about alternative means, such as a generational cap. I very much hope that the Minister will accept the amendment or a revised version of it for Report. Is she willing to meet virtually with me and other signatories to the amendment and those advising me to discuss how we might proceed? I plan to return to the issue on Report to try to put right what Henry Smith MP correctly described as an “appalling injustice”. I beg to move.

[Baroness Ludford (LD)]

My Lords, I thoroughly endorse what the noble Baroness, Lady Lister, has said, and I am very pleased to co-sign this amendment. In the first two groups that we discussed this morning, we talked a lot about righting injustices. This is an opportunity to right a gross historic wrong—a forced eviction and exile that was, indeed, ruled illegal by the International Court of Justice in 2019.

I was one of those who raised this issue very briefly at Second Reading. I do not think the Minister referred to it in her response, although I know she had a lot of issues to cover. It should be noted, though, that the amendment in the other place from Henry Smith MP at Report stage, which the noble Baroness, Lady Lister, referred to, had the sizeable support of 245 Members, displaying the strength of feeling about the trauma and hardship of the Chagossian community that the noble Baroness, Lady Lister, referred to.

The all-party group on Chagos is a strong and active group that has long campaigned to right, in so far as is possible, the wrongs of the 1960s when, having resisted independence from Mauritius, of which Chagos was part, Britain secretly acceded to an American request to make one of the islands, Diego Garcia, available on a long lease as a “communications hub”. Of course, it later became notorious as a site for rendition flights. Anyway, the then British Government of, I am afraid, Harold Wilson, detached Chagos from Mauritius and then emptied Chagos, chucking out its inhabitants. This appeared, apparently, to be compensation for the Americans for the UK declining to get involved in the Vietnam War.

The saga is littered with lies and about-face. The UK told the UN that the Chagos Islands had no permanent population and the Chagossians were merely contract labourers. The British Indian Ocean Territory—BIOT—comprising all the Chagos Islands was detached from Mauritius and, between 1968 and 1973, the entire population of Chagos was removed. Some 2,000 people were deported to Mauritius, some went to the Seychelles and some arrived in the UK, particularly in Crawley, perhaps because it is near Gatwick, in Sussex.

As was discussed this morning, the purpose of Part 1 of this Bill is to address long-standing discrimination in British nationality law. I put to the Committee that Amendment 11 fits perfectly in this context. The original appalling injustice of the late 1960s and early 1970s perpetrated against the Chagossians has been compounded ever since, not only by their continuing enforced exile from their homeland but by the deprivation of their descendants of their citizenship rights. Had they not been evicted but had stayed in BIOT, they would have passed British Overseas Territory citizenship from generation to generation and some would have had the entitlement to be registered as British citizens or at least benefited from the Home Secretary’s discretion to so register them.

As the noble Baroness, Lady Lister, said, Ministers in the other place have provided no justification for resisting the rectification of this injustice suffered by the Chagossians. The Government simply rely, in a sense, on the injustice of eviction to perpetuate the injustice. Because we had chucked them out, they were not BIOT citizens and so they cannot benefit from any subsequent citizenship rights. The Government now have an opportunity with this new clause to make substantial amends—hardly complete amends—for the wrongs done half a century ago. I suggest that it is wrong to seek to assert that correcting the nationality law consequences of this wrong would create any wider precedent, as the noble Baroness said.

By the way, if anyone wants to read the history of the UK’s perfidious treatment of the Chagossians, I recommend this booklet of a lecture by Professor Philippe Sands QC entitled Chagos: The Last British Colony in Africa – A Short History of Colonialism, a Modern Crime Against Humanity? and I will give this to Hansard so it can correctly identify it. I urge the Minister to give a positive response.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

My Lords, I support my noble friend Lord Dubs and the proposal that Clause 10 should not stand part of the Bill. I put on record my thanks to the Joint Committee on Human Rights for the very helpful work that it has done on the Bill, with a whole raft of very useful reports. According to ILPA and the Bar Council, this clause contravenes the 1961 UN Convention on the Reduction of Statelessness, and that should give us pause for thought. Research by the European Network on Statelessness shows how some children in very vulnerable circumstances will be affected, as my noble friend said, and found that there can be good reasons for delays in registering a child’s nationality.

To my mind, the justification that the clause is needed because there has been a significant increase in the number of registrations of stateless children smacks of the culture of disbelief and suspicion criticised by Wendy Williams in the Windrush report. Surely it is to be celebrated that more children are exercising their rights—no thanks to the Home Office, which has been dilatory in making children and their parents aware of these rights and in removing the barriers to registering them. It is thanks to the hard work of organisations such as the Project for the Registration of Children as British Citizens that more children and parents have become aware of the right to registration. As I say, this is to be commended, not cracked down on as if it were some kind of crime.

As the JCHR observes, and Amendment 31 addresses —a point made also by my noble friend Lord Dubs—it is difficult to see how this clause is compatible with the UN Convention on the Rights of the Child. While the Home Hoffice human rights memorandum states that it has considered the best interests of the children affected, it is not clear from it how such a clause is in their best interests, so can the Minister spell out exactly how this clause meets the best interests of children affected?

[Baroness Ludford (LD)]

My Lords, as a member of the Joint Committee on Human Rights, I agree with the noble Baroness that we have done good work on the Bill. On a more serious note, perhaps I may say how much we appreciate the chairmanship of the right honourable Harriet Harman MP, whose recent bereavement has saddened us so much.

I will speak to both Amendments 30 and 31. As has been said by other noble Lords, Clause 10 amends the British Nationality Act to introduce new requirements for the registration of a stateless child—a child born in the UK—and could make it even more difficult for them to acquire British nationality, to which there are already significant hurdles. I could not agree more with the noble Baroness, Lady Lister. Why should it be a problem that children are becoming stateless and ceasing to have the security of nationality?

Under Clause 10, the Home Secretary has to be satisfied that the child is unable to acquire another nationality. That puts that child in the position of having to prove that they could not reasonably have acquired another nationality. The policy rationale seems to be a suspicion that parents are wilfully causing their child’s statelessness—the culture of disbelief that the noble Baroness, Lady Lister, referred to. As colleagues and the JCHR say, it is difficult to see how the best interests of the child, as required by the 1961 UN Convention on the Reduction of Statelessness, are served by the new test in this provision. How is it in that child’s interests to be left stateless?

Indeed, asserts the JCHR, Clause 10

“risks punishing the child for a perceived failure”

on the part of their parent or carer, which is obviously through no fault of their own. However, the UN convention does not impose a requirement on the parent to exhaust all avenues to seek the citizenship of another state. So Clause 10 could move the UK away from the convention. I was interested that the noble Baroness, Lady Lister, quoted ILFA and the Bar Council as saying that they do indeed think that this is a contravention of the convention, and I can see why. Amendment 30 is an attempt to move the UK back towards the intention of the convention by saying that British citizenship could only be withheld

“where the nationality of a parent is available to the child immediately, without any legal or administrative hurdles.”

Amendment 31 aims to make the best interests of the child central to the decision-making.

Finally, in addition to the risk of alienation from our society of individual children, it cannot be in the interests of British society as a whole for young people born here to be excluded from sharing citizenship and thus rootedness in their community.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Baroness Lister of Burtersett and Baroness Ludford

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 14th September 2020 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to support Amendment 70, to which I was pleased to add my name, but I will first speak in support of other amendments which provide for a time limit for detention.

I first encountered this issue as a member of the inquiry into detention by the APPGs on Refugees and Migration, which reported in 2015. The evidence we received convinced me of the case. It is frustrating that, despite a wide consensus in favour of a time limit—including among a number of very senior Conservative MPs—we are still having to argue the case five years on. I hope that the Minister is not going to trot out the usual Home Office line that the law does not allow for indefinite detention, an assertion based on semantics. She knows full well that by “indefinite”, we mean “without fixed or specified limit”—to quote one dictionary definition.

It is the absence of a fixed or specified limit that is so problematic. In particular, it has been shown to contribute to serious mental distress among detainees, a point made in the literature review conducted for the original Shaw report, and reinforced by subsequent reports, including by the Joint Committee on Human Rights, the Home Affairs Committee and, most recently, by the Jesuit Refugee Service this year. That report emphasises the trauma experienced by detainees, which stretches beyond the period of detention itself and is relived indefinitely over the years to come. It found that the lack of a time limit laid down was particularly problematic, and that

“not knowing when one would be released was central to an uncertainty that pervaded the experience of detention. Both long detention and the indefinite nature of detention were also seen as increasing the injustice of its practice.”

When debate on this amendment started, the noble Baroness, Lady Hamwee, asked the Committee to imagine how we would feel with that uncertainty—that draining away of hope. Gabby—not her real name—a woman helped by Women for Refugee Women, to which I pay tribute for its work in this area, put it powerfully. She said that

“indefinite detention destroys people. People who are imprisoned in detention already have mental health issues when they get locked up—and the longer you stay there, the worse it gets. My hair started falling out, and I had flashbacks to what happened to me before”—

she was referring to having been trafficked—

“Not knowing when you will be released had such an effect on me. I kept thinking: will I be kept here forever?”


I know the Minister will retort that no one is detained for ever—her definition of “indefinite”—but that is how it can feel when you do not know when it will end, which is the usual definition of “indefinite” in this context. Gabby was in Yarl’s Wood, and it is welcome that no woman is now being held there. Can the Minister say if any women are being detained elsewhere and, if so, where and how many? If she cannot answer now, will she write to the Committee afterwards?

The release of many detainees into the community in recent months demonstrates that detention does not have to play such a significant role in the immigration system—a point made powerfully by the noble Baroness, Lady Hamwee, the other day. In this context, will the Minister update the Committee on how the alternatives to detention pilot is going?

Turning to Amendment 70, damage to mental health is a common thread in the case for all these amendments. It was referred to by the noble Lord, Lord Ramsbotham, when he introduced the amendment. Medical Justice, to which I am also grateful for a briefing, wrote about the “devastating” health impact of segregation. It says that it has been found to lead to increased rates of anxiety, perceptual disorder, hallucinations, paranoia and suicidal thoughts, as well as serious physiological effects. The mental health risks for those with pre-existing conditions and other vulnerabilities are especially high. In particular, anyone who has suffered segregation as part of past torture might be re-traumatised by it.

Medical Justice also makes the point that segregation can be counterproductive. The Government’s argument that restrictions on segregation would jeopardise IRCs’ safety and security serves to ignore the deeper systemic problems that contribute to the “need” to remove people from association—for example, poor standards of healthcare, abusive or bullying attitudes or behaviour, oppressive regimes and the impact of indefinite detention itself. If the Home Office addressed these systemic problems, fewer people might behave in such a way as to call for segregation. The Home Office does not publish data on the use of segregation of vulnerable people. Could the Minister explain what they do not and commit to publishing this data?

Finally, as I read the Minister’s complacent response to the amendment in the Commons Committee alongside the briefing for Medical Justice, it seemed like the Minister was living in a parallel universe from the organisation on the ground. Indeed, the Member who moved the amendment made a similar point. I am confident that the noble Baroness will not display the same complacency, but I hope she will accept that there is a real problem here that must be addressed, even if she is not willing to accept the amendment itself.

[Baroness Ludford (LD)]

My Lords, the campaign for a time limit on detention has deservedly gathered pace over the past 10 years. As the noble Baroness, Lady Lister, mentioned, two parliamentary committees reporting in 2019—the Joint Committee on Human Rights and the Home Affairs Committee—urged a 28-day limit. The Joint Committee on Human Rights made two important points. The first was that indefinite detention—the noble Baroness dealt with that term—

“causes distress and anxiety and can trigger mental illness and exacerbate mental health conditions where they already exist.”

Secondly, it pointed out that

“the lack of a time limit on immigration detention reduces the incentive for the Home Office to progress cases promptly which would reduce both the impact on detainees, and detention costs.”

It therefore called for a 28-day limit.

The Home Affairs Committee pointed out that some people are being held for more than three years, which is intolerable. It said:

“Failure to provide justification for continued detention will only compound detainees’ frustration and may lead to self-harm and violence in immigration removal centres.”


It welcomed the Home Secretary’s commitment at the time that he—that must have been Mr Javid—would

“consider ending indefinite immigration detention in response to Stephen Shaw’s follow up report.”

It went on to say that

“a maximum immigration detention time limit is long overdue … lengthy immigration detention is unnecessary, inhumane and causes harm.”

I understand that the Government’s policy guidance says that there should be no detention without a realistic prospect of removal, but this appears to be routinely breached.

Immigration Bill

Debate between Baroness Lister of Burtersett and Baroness Ludford

Tuesday 15th March 2016 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I will speak in support of Amendment 66 in particular. It is telling that the Equality and Human Rights Commission has expressed its support for this and other amendments in this grouping because of its concerns that the Government have not complied with the public sector equality duty with reference to this clause.

I will come back to a couple of issues which I raised earlier and which I do not feel have been adequately addressed. The first is the issue raised by the late and much missed Lord Avebury, which concerned asylum seekers who live in the private rented sector but who lack the necessary documentary proof that they are entitled to be here. According to ILPA, which has been pursuing this issue, a commitment by the Minister’s predecessor to provide necessary documentation to show that they have a right to rent was not followed through.

In the Immigration Act 2014 order debate on 24 February, the Minister referred to special procedures to ensure that they are protected. However, JCWI already has evidence that these are not working, and argues that a clear policy on this is vital. From reading its latest briefing, I realise that there is a wider problem here, which also affects individuals who face barriers to removal from the UK. There is no clear policy from the Secretary of State that enables them to obtain permission to rent. The same is true of those with outstanding applications whose documents are likely to be with the Home Office, so they are unable to provide landlords with the necessary documentation.

JCWI cites a freedom of information request which elicited that the Home Office has no plans to enable individuals to obtain evidence of the right to rent. JCWI states:

“The absence of a defined process by which individuals can obtain permission to rent, or evidence it, increases the risk of discrimination and limits their access to the private rental market”.

It argues:

“A clear policy must be put in place outlining when and how permission to rent is to be granted, as well as confirmation of the ‘right to rent’ where tenants have an outstanding application, and a process through which tenants can request written proof from the Secretary of State. Where a person is made destitute as a result, this could amount to a breach of their Articles 8, 14 and even Article 3 rights under the European Convention of Human Rights”.

I urge the Minister to take this away and look at what may be a marginal issue but is very important for a highly vulnerable group. I urge him to come back, either in a letter or at Third Reading, with some assurances that the kind of policy called for by the JCWI will be established.

The other issue that I want to come back to was raised in Committee, in particular by the noble Lord, Lord Deben, who I do not think is in his place, in a demolition job of the whole policy. I refer to the impact on lodgers—an even less professional group perhaps than the small landlords whom noble Lords opposite have talked about—and on those opening up their homes to lodgers, possibly because of the bedroom tax.

After raising this issue previously, I received an email from Matt Hutchinson of SpareRoom, who works with hundreds and thousands of people living in shared rented accommodation each year and with landlords and homeowners taking in lodgers. He believes that the complex issues thrown up by the legislation are not being adequately addressed. First, he is concerned about the potential discriminatory impact. He says that he has already had one request from a landlord to make it compulsory for tenants to state their nationality on SpareRoom to make it easier to discount non-UK tenants.

Secondly, he is concerned about the likely reduction in the supply of rooms just as the new rent-a-room tax threshold was supposed to encourage people to rent out rooms. How many home owners will want to carry out the necessary checks on just one individual coming into their home?

Thirdly, he is concerned about the lack of information for this sector. What steps are the Government taking to ensure that non-professional landlords, who probably do not even think of themselves as landlords, and those taking in lodgers are aware of their new duties? Mr Hutchinson raises the situation of flat-sharers. If in a group situation, say, one person moves out and the others sublet to a new tenant, are they jointly and severally liable? How can they tell? How will they be expected to carry out meaningful checks with any degree of certainty? Thinking back to my own days of flat-sharing when I first came to London many years ago, the whole thing seems totally unrealistic.

The fears that many of us raised at Second Reading about the discriminatory effects of these clauses have not been allayed. Instead, we are receiving briefings from the EHCR, the Residential Landlords Association, SpareRoom, those working with immigrants and civil liberty groups, all expressing deep concern. It is adding criminal insult to civil injury to go ahead with this clause without much better information about how the current scheme works when it is rolled out nationally.

[Baroness Ludford (LD)]

My Lords, I fully support the amendments in the names of my noble friends Lady Hamwee and Lord Paddick and other noble Lords, which would require an evaluation before the scheme is fully rolled out. The remarks of the noble Earl, Lord Cathcart, certainly illustrated the absurdity of the fact that immigration enforcement might be undermined. If the top priority is to make sure that people who do not have a legal status in the country are removed, that immigration control will be completely undermined by requiring an eviction, whereby people might scarper elsewhere before the immigration authorities have a chance to catch up with them. That shows the absurdity of trying to outsource immigration control, because you end up tripping up over it. I am very interested to hear the Minister’s response on that.

I want to ask the Minister about the practicalities. I confess that I am not familiar with all the different documentation, but I have looked at a three year-old Home Office document about biometric residence permits. I do not know the extent of the rollout of biometric residence permits, but the document says that migrants applying successfully in categories in which they do not have to enrol their biometrics will continue to receive a sticker, a vignette, in their passport. Can the Minister give us an idea of what proportion of legal migrants are getting biometric residence permits, those who still have stickers in their passports and those who do not have either, such as asylum seekers who might have an array of letters from the Home Office? I am not up to speed with the practicalities, so perhaps the Minister can give us an idea.

My underlying concern is the practical difficulties for people, such as landlords, who are not immigration specialists to know how they are supposed to recognise this. The point was made by the noble Earl, Lord Cathcart, about the possibility of a passport having been checked but it is fake. Even without that happening, how are people supposed to recognise through the documentation and be really clear about whether someone has legal status or not?

Immigration Bill

Debate between Baroness Lister of Burtersett and Baroness Ludford

Wednesday 9th March 2016 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 52, which would leave out Clause 32. I shall make one specific and one general point.

I am grateful to the Minister for his collection of letters. I am not sure that it is quite a limited edition, and I have visions of him scurrying around late at night delivering them. I have found it helpful because of course I had mislaid the letter of 28 January, in which he clarified that the offence of legal working will apply to asylum seekers who are not permitted to work but also to those who have been granted permission but take a job that is not on the shortage occupation list. Whatever one thinks of the clause itself, and I am opposed to it, surely it is unfair that it is applied to people who have a clear legal right to be in the country at that point. This has been presented as a clause that applies to people who have no legitimate right to be in the country, but those who are still seeking asylum have that right. I was concerned about that because it seems unfair.

My more general point is that, like other noble Lords, I fear that despite the government amendment the clause will serve to encourage exploitation. I was disturbed to read in yesterday’s Independent a report of a study of young migrant men carried out by the University of Manchester as part of a European Commission study, which found that these young men felt that they are constantly having to justify their status and made to feel that they are on the wrong side of the law even when they have done nothing wrong. I am not arguing that there is a clear cause and effect, but when we have government policies like the previous Immigration Act, this Bill and particularly this clause, which deliberately try to create a hostile environment for undocumented migrants, unfortunately they can create a hostile environment for those who have every right to be here. That impedes their ability to integrate into British society, which can be in nobody’s interests.

[Baroness Ludford]

My Lords, I wish to add to the very sound arguments put by my noble friend Lady Hamwee and others on the question of the resources of the Crown Prosecution Service and the police. Surely there are many pressures on them and demands for resources. I was reading the other day that there are 5 million frauds against bank customers every year and lax attention by the banks. Given the extent of child abuse and sexual abuse and the explosion of problems online which the CPS is trying to react to and get on top of, is it right to make this an extra priority for the CPS when we ask so much of it in other areas?

Immigration Bill

Debate between Baroness Lister of Burtersett and Baroness Ludford

Wednesday 20th January 2016 Lords Chamber

[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.