Immigration Bill

Lord Avebury Excerpts

Monday 17th March 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have given notice of my intention to oppose the question that Clause 40 stand part of the Bill but, as I hope the Minister knows, this a way of probing the provisions in Clause 40 and of asking, simply, what the problem is with Section 18 of the Immigration, Asylum and Nationality Act 2006, which the clause would amend. In the Public Bill Committee, the Minister, Mr Harper, said:

“it can be difficult to recover the penalty”.—[Official Report, Commons, Immigration Bill Committee, 12/11/13; col. 317.]

I can see that Section 18, as amended, would make it easier for the Secretary of State, but that does mean that the recipient of a penalty is not going to be able to raise a defence. This is not a straightforward, simple debt. It seems that the very fact that it is not a fixed penalty indicates that there may be a range of circumstances in which the penalty is imposed, and some of those may involve mitigating circumstances.

[Lord Avebury (LD)]

I should like to ask a couple of questions about Clause 40. The Immigration Minister’s faux pas over the “wealthy metropolitan elite”, such as his predecessor who employed a cleaner from Nepal without checking that she had leave to remain, highlighted the inconsistency of people in senior positions of the Government being happy to employ non-EEA citizens themselves while desperately hanging on to the vain objective of reducing net immigration to below 100,000. That target was never within the realms of possibility and it should be scrapped, recognising that most components of immigration and all of emigration are outside the control of government. As the UK is doing relatively well compared with other European countries, we are an attractive destination for skilled workers from the rest of the EEA, and as my right honourable friend Vince Cable pointed out, we are benefiting from their contribution to our economy and in particular to the revenue from direct and indirect taxation that they bring.

However, we are right to deal with irregular migration from outside the EEA, and in particular the 500,000 of those irregular migrants who were lost by the UKBA and are still scraping a living in low-paid jobs—a few of them as cleaners and nannies. My question about Clause 40 is whether increasing the fines on employers who fail to check the credentials of their workers is going to be the answer. Can the Minister say whether the existing powers are being used to their full extent? In November 2012, when Tesco was found to have employed 20 non-EEA students for three times the number of hours allowed, the supermarket was fined £115,000, compared with the maximum of £200,000. In August 2013, the BBC found that since the original power to impose fines on employers was enacted in 2006, two-thirds of the £80 million fines imposed remained uncollected. The Home Office said that some fines might have been reduced or cancelled on appeal, or that some employers could have gone out of business or could have been asked to pay by instalments. How does making the penalty recoverable as if it were payable under an order of the county court, or the equivalent in Scotland or Northern Ireland, increase the probability that the money will be recovered? Can the Minister be sure that increasing the fines will not simply reduce the proportion of money that is recovered?

[The Earl of Listowel (CB)]

My Lords, I will briefly raise a concern that came to my attention when I was a member of Sub-Committee F of the European Union Committee some time ago. I heard from employers’ organisations in this country that they were very keen to have loose immigration policies. That was very understandable from their point of view. They would recruit migrants who were well educated and motivated and they might have felt that many of our population were not so motivated or well educated. I was concerned that there were not incentives for employers to train up, support and develop young people in this country, that those young people would just go on to benefits, and that a vicious circle would go on through the generations. I was therefore very pleased to hear the Prime Minister David Cameron say recently that his intention is to improve the education system—he feels that that is going a long way in the right direction—and to reform the welfare system so that more young people go into employment and there is not so much pressure on employers to recruit from abroad. It is tragic that so many young people waste their lives. I wanted to voice my happiness at hearing the Prime Minister express that commitment to our young people.

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[Earl Attlee]

I did accept, in the last words I said, that some cases from certain countries can take a long time to determine, but in the case of the failed asylum seekers, they have failed to convince the courts that they have a good case.

[Lord Avebury]

My Lords, does my noble friend not recognise that there are probably hundreds of thousands of failed asylum seekers who cannot be returned to their countries of origin and who are left destitute in this country because they are unable to work? Does he not think that in those cases, such as the refugees from Iran who are not accepted back by their country of origin, it is ridiculous to allow them to fester here for years without work?

[Earl Attlee]

My Lords, they are failed asylum seekers, and it is their choice to stay in the United Kingdom.

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[Lord Avebury]

No, that is not true. I am sorry, my Lords. I was talking about the people who cannot return to their countries of origin and whom the Home Office recognises are stopped from returning to their countries of origin by reasons of the decision of their state. In the case of Iran, for example, there are thousands of asylum seekers who are prevented from returning to their country of origin because the state will not allow them to.

[Earl Attlee]

My Lords, I accept that there are some people in the class that my noble friend describes.

My noble friend Lady Williams talked about supporting a family on £5 a day—I cannot recall exactly what she said—but the payment levels for asylum seekers with children are much higher. A family with two children receives approximately £170 per week. Accommodation is also provided, with utilities—electricity and gas—provided free.

Amendment 72 would make the support given to failed asylum seekers and persons on bail, known as Section 4 support, the same as the support given to asylum seekers—Section 95 support. This is inappropriate, as the types of assistance are different and serve different purposes.

The support that we provide to asylum seekers enables us to meet international obligations. However, there are no obligations routinely to assist failed asylum seekers, the vast majority of whom can reasonably be expected to avoid the consequences of destitution by returning to their own countries—although I am mindful of my exchange with my noble friend Lord Avebury. Exceptions are made only where there is an unavoidable obstacle preventing the person’s immediate departure; for example, if they are too sick to travel, need time to obtain a necessary travel document or have made further submissions relating to their asylum claim. These arrangements ensure that the individuals do not suffer inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights as a result of being left homeless or without support.

We also use Section 4 to provide accommodation to persons released from immigration detention on bail. The provision of accommodation in this instance is solely to avoid the person being unnecessarily detained through lack of a suitable bail address. Section 4 cases are provided with a weekly allowance to cover their essential living needs provided they move into accommodation supplied by the Home Office. Existing legislation explicitly prevents the allowance being provided in cash.

My noble friend Lord Roberts referred to the limitation as to the retailers involved. In my personal experience, supermarkets provide better value for money than many corner shops. The value and flexibility of the allowance is rightly less than the allowances provided under Section 95. Section 4 support is a temporary fix for people who are not asylum seekers and in nearly all cases need to make arrangements to go home.

The noble Baroness, Lady Lister, referred to the situation in other European countries. She will be aware that these countries have different legal systems and that this country is a very attractive destination.

In answer to my noble friend Lady Williams, I fear that I will be unable to recommend to my right honourable friend the Secretary of State that she change the policy, for reasons that I have given. In light of these points, I hope that my noble friend Lord Roberts will agree not to press his amendments.

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Finally, Amendments 72D and 72G remove the prohibition on a judge or sheriff dealing with the matter considering the merits of the refusal of leave. The Home Office’s human rights memorandum says that this measure about licences is partially intended to have a deterrent effect on those who are in the UK unlawfully. The bundle of notes we have been given—I think it is about licences—talks about the dire consequences, which seems a rather inflammatory term in these circumstances. However, perhaps I had better not go there and instead ask the Minister: if the deterrent effect is only a partial reason, what are the other intentions?

[Lord Avebury]

My Lords, Clauses 41 and 42 prevent a person who is not lawfully resident in the UK from applying for a driving licence, and allow the Secretary of State to revoke the licence of a person who already has one, if he is not lawfully resident—meaning that he requires leave to enter or remain and does not have it. Under existing law, since March 2010 a person must have leave to remain in the UK for at least 185 days, ruling out the vast majority of unlawful residents—as indeed it should, because the possession of an identity document would help them to stay in this country when they are not entitled to. Asylum seekers, and those appealing against refusal of asylum, should not, however, be lumped in with illegal entrants. As long as their applications are not fully determined they are here lawfully; however, they would be caught by the 185-day rule. Most asylum seekers do not have cars, obviously, but for the few who do there is no reason that they should not continue to drive.

May I also ask about failed asylum seekers, a point I raised with my noble friend Lord Attlee in the previous debate? They cannot be sent back to their country of origin for one reason or another: generally it is because the country of origin refuses to accept them. I gave the example of Iran. My noble friend Lady Williams is also muttering in my ear about the many refugees from Zimbabwe who were stopped from returning to their country of origin for many years, with the full approval of the Home Office. Is the discretionary leave granted to them longer than 185 days? Would they be classified as lawfully resident? If they are allowed to work, as some of them are, it could be a severe disadvantage if they are not able to drive. As my noble friend the Minister will be aware, there are tens of thousands of people indefinitely stranded here because their country of origin—I named Iran and Zimbabwe but Somalia is another example—either cannot or will not accept them. Although their not being able to drive may not be the largest problem that they face, the Minister would send a glimmer of light into their lives if they could apply for a licence.

[Baroness Smith of Basildon (Lab)]

My Lords, I have just a couple of questions on this group. The noble Earl may recall that at Second Reading, one thing that I said we would do in examining the Bill was, to look at first, the evidence base for bringing proposals forward and the workability of the measures proposed and, secondly, the impacts—including the unintended consequences. I would find it quite helpful if the noble Earl could say something about the reasons why this clause on driving licences has been brought forward.

On the point about the revocation of driving licences I would presume that someone who is in this country, even if they do not have a legal right to be here, is taking quite a responsible attitude if they have a driving licence. It means that they would probably have insurance. If that driving licence is then revoked, their insurance will also be revoked. Does that not cause a significant problem for other drivers on the UK’s roads if they are involved in an accident with a car whose driver, because of the revocation, has no licence at that point and whose insurance will have been revoked as well? It would be helpful to hear whether any thought has been given to that.

In terms of looking at the problems on our roads for those who are not entitled to be here, if the noble Earl were to do a straw test of members of the public, I think the issue causing them the most concern would be that of foreign cars being in this country for what is obviously longer than the six months that they are entitled to be before they are reregistered. Their drivers commit numerous offences on the roads, knowing full well that no one is going to track them down or do anything about it. The Government are taking action to bring us into line with the Irish Republic on driving offences but no action seems to be being taken regarding other countries. Can the noble Earl comment on why that matter is not being dealt with while that of driving licences is? That would be helpful in trying to understand the purpose of this clause.

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[Earl Attlee]

My Lords, the situation is no different from that of a young tearaway motorist who loses their licence because they are banned, and then continues to drive without insurance. It is just another category of someone who is driving illegally.

I have listened carefully to what noble Lords have to say, but I have to stand my ground and hope that my noble friend will feel able to withdraw her amendment in due course.

[Lord Avebury]

My Lords, can the Minister tell your Lordships how many asylum seekers who failed their appeals but are left here because of their inability to return to their country of origin there are? Can he say for what period they are granted temporary leave to remain? Is it more or less than 185 days?

[Earl Attlee]

My Lords, the noble Lord is asking me a detailed question about failed asylum seekers who cannot go home. I will gladly write to him with full details.

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[Lord Avebury]

My Lords, this amendment has the effect of empowering the official examining a person embarking in the UK to establish what the basis of the embarking person’s entry to the UK was and the particulars of his visa if applicable. It also allows the official to establish whether the person’s immigration status changed during his stay in the UK.

The reasons for embarkation checks are to prevent offenders from fleeing abroad to escape justice and to identify those who were given limited leave to remain but failed to depart by the expiry of their leave. These reasons are wholly justifiable and we do not in any way question or dispute the necessity of embarkation checks; in fact we have called for embarkation checks as a means to verify that people leave the country when they are supposed to. We are already checking 90% of air passengers and 75% of all those leaving the country, and I am sure that my noble friend the Minister will be able to confirm that we are on course to reach 100% by some time next year. If he can be more precise about the date, I am sure your Lordships would like to have that information.