Immigration Bill
Lord Avebury Excerpts(10 years, 8 months ago)
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Lord Hylton (CB)
My Lords, I welcome the Government’s amendment as far as it goes and what may be coming at Third Reading. The Government’s amendments bear witness to the good intentions of the noble Lord, Lord Taylor, which he has shown in the numerous letters and briefings that he has sent out as this Bill has moved through the House. However, in Clause 5, the Government seem to be kinder and provide greater protection for children newly arriving in this country compared with children who are already here. That is why I welcome Amendments 5 and 8 in the name of the noble Lord, Lord Judd, because they are very clear and give us the certainty that we need. I hope that your Lordships will accept them.
Lord Avebury (LD)
My Lords, I hope I will be forgiven for returning to a point that we discussed in Committee, on the basis that the noble Lord, Lord Judd, has tabled a number of amendments that deal with the position of women and children. My noble friend referred to the undertaking that the Minister gave in Committee concerning the facilities at Heathrow. That is not the subject of a particular amendment, but I am aware of delays that have occurred in implementing the improvements at the short-term holding facilities, particularly at terminal 4, which are the worst in the whole airport.
In view of that fact, will my noble friend take this opportunity to give us an update on where we have got to? None of the facilities has any showers for the children and families who are detained in them. The shortage of accommodation is acute and the facilities have been thoroughly condemned by the independent monitoring board that deals with Heathrow. It would be helpful if the Minister, when he comes to reply, would give us an update on where we have got to on the improvement of those facilities.
Lord Taylor of Holbeach
My Lords, as noble Lords will know, the Bill gives legislative effect to our current policies on family returns by putting key elements of the new process into primary legislation. Noble Lords have spoken of the Government’s record and our policies towards children, and mentioned them in favourable terms. I think it is a shared opinion across this House that we take policies towards children seriously. I hope to demonstrate that we are doing that in the passage of this Bill.
Amendments 4 and 6, in the name of the noble Lord, Lord Judd, would narrow the definition of a family return case. It is important that families where children are being looked after by someone other than the parents, such as an older sibling in some cases, a grandparent or another adult member of their extended family, are included in the family returns process so that their cases can be resolved together and so that they benefit from the intensive support provided by the new process. Under our definition of “family”, a parent must be living with their children to benefit from the family returns process. That is a reasonable definition. Other than in exceptional cases, where common sense would prevail, if a parent is living apart from the child they may be removed separately.
With regards to Amendment 5, and separating children from their parents, I assure noble Lords that we will always seek to ensure that families remain together during their return. I am sympathetic to the amendment, but there are exceptional cases. The noble Lord, Lord Judd, referred, I think, to the comments of my noble and learned friend Lord Wallace of Tankerness in previous debates on the Bill. Splitting families would never be done for tactical reasons to achieve compliance. However, in exceptional circumstances, we may need to remove an adult family member separately, even during the 28-day grace period which Clause 2 will establish. This may be, for example, where there is a public protection concern or a risk to national security.
The noble Lord, Lord Judd, also asked what the criminality threshold is over which we might separate families. He wanted a stronger definition than perhaps my words just now have offered, but there can be no fixed threshold. Each case will be considered on its merits, based on an assessment of whether an adult poses a threat of offending that cannot be satisfactorily managed without removal. That is the only fair answer that I can give the noble Lord.
Amendment 8 seeks to ensure that children are detained only as a last resort and for the shortest possible time. That is already, as noble Lords will know, government policy. Clause 5 will, in effect, ensure that detention is for the shortest possible time, while reflecting the operational reality that, in very exceptional circumstances, unaccompanied children may need to be held for short periods in transit to a port of departure or at the port awaiting departure. If we do not hold children safely while they are coming in and out of the UK unaccompanied, we increase the risk that they may fall prey to traffickers or, indeed, abscond.
Later this afternoon, we will be considering an amendment concerning children tabled by the noble Earl, Lord Listowel, to which I have added my name. I mention this because it is important to consider our approach to children in the Bill in the round. That amendment will confirm that the important statutory duty towards children in immigration decisions applies to every matter in the Bill. It will of course apply to this part of the Bill, further underlining that when families and children are being returned, we must have regard to those children’s best interests.
I will address the questions posed by my noble friend Lady Hamwee, whose help on this matter and on the Bill in general has been very positive.
Lord Avebury
My Lords, I congratulate my noble friend on moving this important amendment, based on one of the recommendations of the Joint Committee on Human Rights, of which she is a distinguished member.
Clause 15 removes the right of appeal to the tribunal from all immigration decisions except those dealing with protection and human rights. In those remaining cases, new Section 85(5) of the Nationality, Immigration and Asylum Act, inserted by Clause 15, requires the Secretary of State’s consent for a new matter to be raised before the tribunal, as it frequently is because new evidence comes to light following the original decision; my noble friend has given examples of how this can happen. We also heard from my noble friend that in the opinion of the JCHR it should be for the tribunal itself to decide whether the new matter is within its jurisdiction and, if so, to consider it on appeal, with the Secretary of State responding to it as she normally does.
It is not suggested that the tribunal has allowed the abuse of its own process in the past, or that it has treated the Secretary of State unfairly, or that the existing process is inefficient. What can happen not infrequently, however, is that the Secretary of State withdraws her decision, saying that she wishes to reconsider the case, and then returns several months later with a new decision very similar to the previous one, wasting the time and money of both the appellant and the tribunal. The Tribunal Procedure Committee is consulting on a rule for the First-tier Tribunal similar to the one that prevents the Secretary of State from putting a stop to an appeal in the Upper Tribunal by withdrawing her decision. The Immigration Law Practitioners’ Association suspects that the subsection we seek to amend is designed to thwart such a change.
My noble friend referred to the Constitution Committee, which has drawn the attention of your Lordships to what it and the JCHR both consider to be a serious question in relation to Clause 15(5): whether it undermines the common law right of access to justice. The Government’s case is that appellants may be able to get to the court by way of judicial review, and no doubt some will do so in spite of the financial obstacles created by the abolition of legal aid. However, this conditional route does not satisfy the common law, and that will no doubt be tested in the courts. The judicial review cases will be more expensive and take longer than appeals, even though it will now be the tribunal that hears them because Treasury solicitors and counsel will have to be employed; they are very expensive people. Have the Government made any estimate of the number of JR cases and the reduction in the savings that were otherwise expected arising from the JR cases that were otherwise to be heard?
In the remaining cases, now to be dealt with via administrative review, a smaller proportion of those concerned will be successful than if they had been able to appeal. That is the whole point of the exercise: not to simplify the way the cases are handled but getting to the same outcomes.
Like my noble friend, I object to a proposal which gives the Executive power to intervene in the procedures of a court of law, and particularly so when it is one of the parties to the case in question. I hope that the Government will think again.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, having spent some five years as Treasury counsel, periodically attempting to remove illegal immigrants, and then having spent some decades as a judge lamenting the absurdly over-elaborate appeals systems under which those resisting removal could string out a whole series of appeals for years on end, I can readily see—to use an inelegant colloquialism—where the Government are coming from in Clause 15(5). It is now some dozen years since the so-called one-stop appeal was sought to be introduced. Now, of course, the Government are intent, yet more fundamentally, on substituting in large part administrative reviews for appeals in all but the comparatively few cases where truly basic freedoms are at issue: refugee status, humanitarian protection and human rights.
For my part, I am not against this general reduction in appeal rights, although I may not go quite so far as to vote against the next proposed amendment, which is to remove the entirety of Clause 15. Nor am I against, as I made plain in Committee, what is now Clause 18, which to some extent may be expected to constrain the court’s readiness to allow Article 8 considerations to frustrate attempts to remove foreign criminals and others who are here in violation of immigration controls. I interpolate only that Clause 18 will of course be informed by Amendment 58, tabled by the Minister and the noble Earl, Lord Listowel, to safeguard the welfare of children.
I am, however, strongly against Clause 15(5), to which this amendment goes. This provision seems to me to represent a bridge too far. The noble Baroness, Lady Berridge, has already clearly explained the basic objections to this provision and has noted that serious reservations have been expressed about it: expressed twice now by the Joint Committee on Human Rights and yet more recently by the Select Committee on the Constitution. It would not be helpful for me to restate all these objections in detail. Suffice it to say that it seems intrinsically objectionable for the Government, one of the parties before the tribunal on the appeal, themselves to have the last word with regard to what the tribunal may or may not consider.
By all means let the Government object to a new ground of appeal or some new reason for the appellant seeking to stay if they are genuinely unable to deal with it or, indeed, if they are genuinely unable to reach and declare their own decision on it by the time it is raised. Indeed, the tribunal may well hold that the Government are entitled to an adjournment if, in truth, they are prejudiced by the point being taken late. However, it is quite another thing to say, as Clause 15(5) does, that the Government can deny the tribunal the right to deal with a new matter on the appeal before it, and thus force the appellant—assuming that he wishes to pursue the point—to start all over again, with all the delay and, as we have heard, the prohibitive expense that that would necessarily involve. That, I respectfully repeat, goes altogether too far. Your Lordships should prefer instead wording which—if not here in perfect formulation—is in some way akin to that here proposed, which, heaven knows, is a modest enough power to confer on the tribunal itself.
Lord Avebury
The figures that the noble and learned Lord has just given are interesting. He said that 21% of administrative reviews uphold the appeal, whereas earlier he said that 51% of those reviews succeeded on appeal in 2012. Does that not illustrate the anxiety everyone feels that when an appeal system is replaced with an administrative review, the rate of success goes down not for any objective reason but just because the administrative review is less favourable to the applicant?
Lord Wallace of Tankerness
My Lords, I am almost tempted to say that you are damned if you do and damned if you do not. That 51% included those cases where there was administrative error. If one wishes to drive to improve the quality of decision-making, inevitably the number of successful appeals will go down.
In Committee, concern was expressed about the opportunities for scrutiny of the Immigration Rules. I am pleased to confirm that we are committing to publishing draft rules no later than the Summer Recess. I hope that that reassures my noble friend Lady Hamwee about what I have said in my letter to her. I am happy to repeat that those rules will be the subject of a targeted consultation with key interested parties, including the Immigration Law Practitioners’ Association and Universities UK. We certainly are open to discussions with noble Lords and organisations to which noble Lords consider this consultation should be addressed. The aim of the consultation will be to ensure that all relevant views are taken into consideration before the rules are finalised. The consultation will offer an opportunity for the rules to be scrutinised and potentially amended before they are laid before Parliament in accordance with Section 3(2) of the Immigration Act 1971. Clause 15 creates a better process for all concerned—applicants, decision-makers and the court system. It will help to address the legitimate concerns raised about decision quality.
Amendment 13, which stands in the name of the noble Baroness, Lady Smith, would impose three conditions that would need to be met before the appeals provisions in Clause 15 came into force. The proposed sunrise clause would require: that the Chief Inspector of Borders and Immigration must first report on decision-making for entry clearance and managed migration; that the Secretary of State must be satisfied that decision-making for entry clearance and managed migration is efficient, effective and fair; and that the order to commence Clause 15 must be laid before and approved by both Houses. My noble friend Lady Hamwee raised the possibility that, to be able to do that, we might need to have a shadow operation, which probably would be an administrative nightmare.
I submit that we already have reports from the chief inspector on decision-making in entry clearance and managed migration. In 2013, he reported on investor and entrepreneur applications, concluding that 91% of decisions on investor applications were reasonable. That report recommended that the overseas approach of sharing administrative review outcomes to improve decision quality should be adopted in-country. That recommendation of an approach recommended by the chief inspector has informed the changes which this Bill seeks to implement through Clause 15.
The inspection of entry clearance decision-making in Warsaw in December 2013 of out-of-country administrative reviews concluded that the service was efficient and consistently meeting service standards for completing decisions. In 88% of cases reviewed, the report concluded that the right decision had been reached. We accept that this report made five recommendations for improvement. We have accepted all of these either in whole or in part.
I assure your Lordships that the Home Office takes the chief inspector’s inspections and reports seriously. A dedicated team manages the implementation of his recommendations. In his spot-checking report of August 2013, the chief inspector considered the progress that had been made against recommendations from three earlier inspections and was pleased to see evidence that the Home Office was acting upon his recommendations. We already have evidence from the chief inspector who has looked at the administrative review procedures that are applied at present for out-of-country cases of managed migration. He appears to confirm that, in the cases that were reviewed, the right decisions had been reached. As I have said, in Warsaw that was in 88% of cases.
However, we recognise the concerns that prompted Amendment 13. Therefore, we have brought forward a government amendment which takes a different but effective approach to address those concerns. Amendment 12 in the name of my noble friend Lord Taylor imposes a specific obligation on the Secretary of State to secure an independent review of administrative review. It looks forward and will review new processes. The new clause requires the Secretary of State to commission the independent chief inspector within a year of Clause 15 being commenced to prepare a report on administrative review.
My noble friend Lady Hamwee asked for confirmation that it was intended that the report would be on the first year although commissioned ahead of the first year. As I have said, the report will be commissioned within 12 months of administrative review being implemented. The Secretary of State will ask the chief inspector to complete the report within the first 12 months of the operation of administrative review. In timing the commissioning of the report, we want to strike a balance between a desire for an early report on how administrative review is working and the need to let the process operate for a period before a meaningful report can be prepared. It is therefore intended that the Secretary of State asks the chief inspector to undertake his report once administrative review has been in operation for six months and to complete his report within the first year of the operation of administrative review. The chief inspector should build flexibility into his inspection plans to allow such specific requests.
The new clause requires that the Secretary of State commissions that report and the report must address specific concerns. If noble Lords look at the terms of the amendment, they will note that the specific concerns that the chief inspector is being asked to address are ones that quite fairly reflect some of those raised in your Lordships’ House in Committee—namely, the effectiveness in identifying and correcting case working errors and the independence of the person conducting the administrative review in terms of their separation from the original decision-maker.
Immigration Bill
Lord Avebury Excerpts(10 years, 9 months ago)
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Lord Avebury (LD)
My Lords, my noble friend Lady Hamwee and I have several amendments in this group, the first of which is Amendment 82A. I am not quite sure why that provision appears in Schedule 9 at all as it does not appear to be consequential on anything elsewhere in the Bill, and nor is it transitional.
We would also like to know why the Secretary of State thinks it necessary to have this sweeping power to revoke a person’s indefinite leave to remain, if it was obtained by deception, without considering the proportionality of the action. Section 76 of the British Nationality Act, which it is sought to amend, already contains a power to revoke a person’s ILR if it was obtained by deception, and if the person concerned would be liable to deportation because of the deception but cannot be removed. It is these latter qualifications that we seek to delete since otherwise the power would apply to any ILR obtained by deception whatever the circumstances. The qualifications mean that the deception has to be of a nature serious enough to justify deportation, and we think that provision ought to be retained. This means, for example, that the person must have known that deception was used to obtain his ILR and that consideration must be given to the length of time that he has been in the UK and to any family ties that he may have in this country.
Amendment 87ZG would retain Section 87 of the Nationality, Immigration and Asylum Act 2002, which allows a tribunal judge to give directions following a successful appeal. Again, it is a mystery to us as to how this provision finds itself in a part of the Bill headed, “Transitional and consequential provision”, when neither of those adjectives apply. I should like the Minister to say that all the paragraphs of Schedule 9 referring to other Acts will be repositioned before Report.
As long as there are successful appeals—as there will be, however much the Government try to minimise them by removing legal aid and tightening up the Immigration Rules—judges ought to have these powers. Directions commonly require the Home Office to do something within a particular time or take specific steps—for example, to bring a person back within the jurisdiction. There is a special place for directions when a successful appeal is brought against deprivation of nationality. When a person wins such an appeal, it surely ought not to be within the Secretary of State’s discretion as to whether that person’s citizenship is restored. Yet that would be the position if this amendment is not accepted. As the law stands, the judge could order the Secretary of State not only to restore the person’s citizenship but to backdate the restoration to the date of the unlawful deprivation. This could be important, for example, when a child is born to the person during the period of their deprivation and the child forfeits their own British citizenship as a result.
Amendment 87ZH retains the definition in Section 113 on interpretation in the Nationality, Immigration and Asylum Act 2002. There is a reference to varying leave to enter or remain but it does not include a reference to adding, varying or revoking a condition of leave. This amendment is designed to give the Minister an opportunity to explain to the Committee why it was considered necessary or appropriate to widen the scope of these definitions.
Finally, Amendment 87ZJ deals with the notice that the Secretary of State may serve on a person, P, who has made a protection of human rights claim or an application to enter or remain in the UK, or in respect of whom a decision to deport him has been or may be taken. In addition to the specified information that the notice may require P to provide, we proposed to add the words in the amendment, which would deal with any change in his circumstances to which new subsection (5) would apply. The requirement of that new subsection, whereby if P’s circumstances have changed he must immediately spell out those changes to the Secretary of State and inform her of the additional reasons or grounds on which he should be permitted to enter or remain in the UK, or should not be moved from or required to leave the UK, is unreasonably onerous. It should be borne in mind that P will probably be unrepresented, given the removal of legal aid for immigration cases, other than asylum. How on earth is P supposed to know that such a statement is required? If he does know because it was explained and given in writing to him when the first notice was served, or even because notice is given and received in accordance with this amendment, will the Minister not concede that it is terribly unrealistic to expect P to identify and articulate those grounds, there being no properly resourced system of advice and representation for the person who is subject to immigration control? There will inevitably be requirements that he is unable to comply with, and this is certainly one of them.
By virtue of the test for legal aid, an applicant, including a child, must have been lawfully resident in the UK for 12 months. Persons who are accepted as having been trafficked are eligible for legal aid for their immigration case but not for judicial review. The same applies to victims of domestic violence. Does my noble friend really consider that people in these situations will be able to provide the supplementary statement required in new Section 120(5), or will he concede that it is nothing but a trap to be used against them?
Lord Avebury
Will the Minister deal with the question that I asked about the directions that the tribunal would formerly have been able to give regarding the restoration of citizenship and its backdating in cases where that was appropriate? Since the tribunal has lost its power, those directions can no longer be given.
Lord Taylor of Holbeach
My Lords, I think that I will have to write to my noble friend if he wants an authoritative on answer on that. I have given the answer that I have before me, but if that does not meet the point that he has made—it is clear that it does not—I hope that my noble friend will allow me to write to him.
Lord Avebury
“Legitimacy
(1) The British Nationality Act 1981 (c.16) is amended as follows.
(2) After section 4C (acquisition by registration: certain persons born between 1961 and 1983) insert—
“4D Acquisition by registration: legitimacy
(1) A person is entitled to be registered as a British citizen if—
(a) he applies for registration under this section; and(b) he satisfies each of the following conditions.(2) The first condition is that the person was born before 1st July 2006.
(3) The second condition is that the person is not already a British citizen.
(4) The third condition is that the father of the child satisfies any requirements as to proof of paternity prescribed under section 50(9B) of this Act (interpretation).
(5) The fourth condition is that the person would have been a British citizen had his father been married to his mother at the time of his birth.””
Lord Avebury
My Lords, we have made several attempts in previous legislation to remove the disadvantage which illegitimate children suffer compared to their legitimate siblings in citizenship law. Some children born to British fathers who are not married to their non-British mothers are still not entitled to inherit their father’s citizenship. Since 1983, that applies to a child born out of wedlock in the UK to a British father and a mother who is neither British nor settled in the UK—an anomaly that was only partially redressed by Section 9 of the Nationality, Immigration and Asylum Act 2002. That section restored the right of such a child to British citizenship if he or she was born on or after 1 July 2006, leaving an arbitrary gap of 23 years from the date in 1983 prior to which all children born in the UK automatically acquired British citizenship.
The parents of such a child can apply to register him or her as a British citizen while he or she is still a minor, and the Home Office normally, but not invariably, exercises discretion in favour of those applications under Section 3(1) of the British Nationality Act 1981, but once he or she reaches the age of 18 there is no provision that allows him or her to become British—an irrational barrier, because it relies on the parents being aware of the qualified right and acting on it in time. There are examples on record of parents who discover the 2006 change too late.
The proposed new clause would allow a child born to a British father who is not married to their mother, and for that reason alone not British, to register as a British citizen. It assists a child born abroad to a father who is British otherwise than by descent to become British himself, and deals with the gap between 1983 and 2006 for the child born out of wedlock to a British father and a woman who is not British or settled in the UK. That would enable us to withdraw our reservation to the 1979 Convention on the Elimination of All Forms of Discrimination against Women, which declares in paragraph 2 of Article 9:
“States parties shall grant women equal rights with men with respect to the nationality of their children”.
The UK Government said that our acceptance of Article 9,
“shall not, how ever, be taken to invalidate the continuation of certain temporary or transitional provisions which will continue”,
beyond January 1983.
Discrimination in our citizenship has continued well beyond what might be considered temporary or transitional. Discrimination against women was corrected only by Section 4C of the Borders, Citizenship and Immigration Act 2006, and discrimination against men has been corrected only for their children born after 1 July 2006. We now have the opportunity to put this last piece of the jigsaw in place so that we can ratify the convention and sign up to the European Convention on Nationality. I hope that your Lordships will therefore agree to the amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I am pleased to be able to support the amendment, although I was not able to put my name down to it fast enough. The noble Lord, Lord Avebury, has made the case for it very well. As I understand it, the Government accept the merits of the case and the substance of the amendment but, in the Public Bill Committee, questioned whether it lay within the scope of the Bill and suggested that there were better ways to take this forward. Presumably, as the amendment has been accepted by the Public Bill Office here, it is within the scope of the Bill.
I am not sure how many people are likely to be involved—perhaps the Minister could give us an estimate. As the Government said about Clause 60, it is the principle, not the number, that matters here. Even if it is only a handful, it matters to those people. I hope that the Minister will be able to come back with an amendment at Report to rectify what is clearly an unfair and anomalous piece of discrimination, based on the outmoded status of illegitimacy—indeed, what I would call an illegitimate status.
Lord Avebury
I am most grateful to the noble Baronesses, Lady Lister and Lady Smith, and particularly to the Minister for his extremely accommodating reply and his undertaking to consider this proposal as a matter of urgency in the hope that something can be produced to be tabled on Report.
As to scope, I was not in doubt: if the Secretary of State could include provisions in the Bill regarding deprivation of citizenship, surely it was proper to allow acquisition of citizenship also to be within scope. That is implicitly conceded if the Minister can produce an amendment by Report that will match the aspirations of the amendment I have moved.
I never expect an amendment that I have drafted to be accepted on the spot by the Minister—that does not happen in real life—but the answer he has given is extremely satisfactory, and I am most grateful to him for the careful consideration he has given to this proposal. Accordingly, I beg leave to withdraw the amendment.
Lord Avebury
Lord Avebury
My Lords, Part 2 of Schedule 9 applies new provisions on bail to proceedings before the Special Immigration Appeals Commission. SIAC frequently deals with persons detained by administrative fiat under high-security conditions without a time limit and without being brought automatically before a court, in conditions normally reserved for persons serving long sentences for criminal offences. Yet those appearing before SIAC have not been convicted of any offence at all.
As I hope to demonstrate in a moment, it is a matter of settled law that the alternatives to a bail hearing—that is, an application for habeas corpus or a judicial review of the lawfulness of detention—are insufficient in cases before SIAC to comply with Article 5 of the European Convention on Human Rights: the right to liberty and security of person. That article provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”.
The Government’s justification in the Home Office’s memorandum on SIAC and the ECHR is that the power to grant bail is limited rather than removed and that the Secretary of State has discretion over bail in certain circumstances, but the Secretary of State is not a court of law for the purpose of Article 5(4) and the question is therefore whether JR and habeas corpus are sufficient for the purpose of compliance. In Chahal v United Kingdom in 1996, 23 EHRR 188, paragraphs 58 to 61, the European Court of Human Rights held that neither judicial review nor habeas corpus provided an adequate basis for challenging a deportation on national security grounds because closed material could not be disclosed in those proceedings. These principles can be applied to challenging a decision to detain. The High Court would not be able to undertake a full review of the lawfulness of the detention sufficient to comply with the conditions of Article 5(4). That point is not addressed in the government briefing, which assumes without argument that judicial review and habeas corpus provide adequate remedies. We know that this concern has been drawn to the attention of the Home Office, and we therefore expect a full reply from my noble friend. I beg to move.
Lord Taylor of Holbeach
My Lords, I welcome the opportunity to debate my noble friend’s amendment because it provides me with the opportunity to reassure noble Lords that the safeguards we highlighted when we debated Clause 3 in terms of the Home Office’s process and policy, common law and case law protections and, indeed, judicial oversight are in place when immigration bail applications are considered by SIAC. The power to detain under immigration powers flows from the Immigration Act 1971, and the consideration of whether detention remains lawful is governed by exactly the same legal principles. It is simply the venue that is different: SIAC, instead of the immigration tribunal. SIAC has its own procedure rules, separate from the tribunal procedure rules, and paragraph 2 of Schedule 9 requires SIAC’s rules to mirror those of the tribunal in how repeat bail applications made within 28 days should be handled in cases where there has not been a material change in circumstances. My noble friend’s Amendment 84A would remove the requirement for SIAC to dispose of repeat applications made on the same facts within 28 days without a hearing. That would create disparity between how different tribunals are required to handle the same matter.
As will be the case in the immigration tribunal, if a further bail application is made within 28 days of a previous unsuccessful bail application, SIAC can agree to an oral hearing, provided that there are genuine reasons to seek another hearing because there are materially different grounds to consider which may lead to a different outcome.
As I have said, safeguards are already in place. Clause 3 does not prevent an individual from applying for bail. Nor does it prevent an individual from challenging the legality of their detention, and legal aid will remain available for that. The Home Office will continue to conduct formal reviews of detention, and detainees will continue to have full access to legal advice.
I have been asked how many times the existing power has been used. The existing power has not been used for some time, so the Government have no statistics on its use. It is drafted so broadly that its meaning is, arguably, unclear. The government amendment is clear about the circumstances in which the power can be exercised and is proportionate. Therefore, it is more workable.
My noble friend Lord Avebury asked about judicial review and habeas corpus and their relationship with SIAC. He suggested that they were not adequate in SIAC. I hope that I can assure the noble Lord, Lord Pannick, that the position in SIAC differs from the position in the tribunal. SIAC is a superior court of record, whereas the tribunal, which considers most bail applications, is not. In SIAC bail applications, SIAC does consider the lawfulness of detention, and detainees do not have to apply for JR or habeas corpus, although those options remain open to them should they wish to do so.
I hope that I have covered the salient points made by my noble friend and the noble Lord, Lord Pannick. I understand that my noble friend’s amendment was probing. I therefore hope that my comments have reassured the noble Lords that there is no difference in the policy, procedural or judicial protections that those detained under immigration powers enjoy even if the case is under SIAC’s jurisdiction rather than that of the immigration tribunal. I therefore ask that my noble friend withdraw his amendment.
Lord Avebury
My Lords, I understood on good legal advice that the principles in Chahal did read across to SIAC but in view of what my noble friend has said about that, I shall go back to my advisers and see whether they have any further comments on what he has said.
Perhaps I may make an aside about this amendment and others that we have dealt with today. It is very inconvenient, when looking up the Special Immigration Appeals Commission Act or any other Acts to which amendments are being made by the Bill, to find at the head of each page in the version that we can see online that it cannot be guaranteed that all the amendments which have been made to that Act have been incorporated. This is a serious disadvantage because it means that we always have to go back to the Library, which has access to another database that contains the full Keeling schedules of Acts that have been amended. Normally, people using the parliamentary website cannot see that database and that causes some considerable inconvenience. I would be grateful if my noble friend could address that point at some stage in the future. I do not ask him to give me a reply now but this is a general disadvantage to people who are trying to work on these Bills which work by reference to other legislation. However, with those words I beg leave to withdraw the amendment.
Lord Avebury
Lord Avebury
My Lords, Amendment 87ZB would retain Section 40A(3)(a) of the British Nationality Act 1981. This provision can be used by an immigration judge hearing an appeal against deprivation of nationality to direct, following a successful appeal, that an order depriving a person of his or her British nationality is to be treated as having had no effect. I think what my noble and learned friend said in response to Amendment 84A is relevant to this provision because he said that it is no longer necessary for immigration judges to have these powers of direction.
Amendment 87ZC would retain Section 2(6) of the Special Immigration Appeals Commission Act 1997, which states:
“In this section ‘immigration decision’ has the meaning given by section 82(2) of the Nationality, Immigration and Asylum Act 2002”.
It would thus be consequential upon leaving Clause 11 out of the Bill so that the existing Section 82(2) was preserved. As matters stand, Clause 11 removes the list of immigration decisions in Section 82(1) against which Section 82(2) gives a right of appeal.
Amendment 87ZCA amends Section 2B of the Special Immigration Appeals Commission Act 1997, which reads:
“A person may appeal to the Special Immigration Appeals Commission against a decision to make an order under section 40 of the British Nationality Act 1981 (c. 61) (deprivation of citizenship) if he is not entitled to appeal under section 40A(1) of that Act because of a certificate under section 40A(2) (and section 40A(3)(a) shall have effect in relation to appeals under this section)”.
It is the cross-reference to the provision that Amendment 87ZB seeks to retain.
These amendments arise from the case of Hilal Al-Jedda, which was referred to by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on Monday. Mr Al-Jedda, originally an Iraqi citizen, sought asylum in the UK in 1992. He obtained refugee status in 1994, ILR in 1998 and UK citizenship in June 2000. Then, in June 2004, he was detained in Baghdad as a suspected member of a terrorist group and was held without trial at a camp in Basra for the next three years. At the end of that period, it was discovered that he was a UK citizen. On 13 December 2007, he was released from detention and went to live in Turkey, where he remains to this date. Towards the end of his detention, the Secretary of State wrote to Mr Al-Jedda, saying that she was minded to make an order depriving him of his citizenship under Section 42 of the British Nationality Act, as well as excluding him from the UK, and inviting him to make any representations he chose against the order. His solicitors replied that he wished to challenge the order but, to do so, they required details of the facts on the basis of which he was suspected of terrorism. The Secretary of State declined to give that information and proceeded to make the order on 14 December 2007.
Lord Wallace of Tankerness
My Lords, important points have been made in this debate, following on from the debate which took place in Committee on Monday on the issues of deprivation of citizenship and statelessness. My noble friend Lord Deben has reminded us of important things: “Civis Romanus sum, civis Britannicus sum”. This is of great seriousness, and in no way do I wish to detract from the seriousness of these matters, to which I am sure the House will inevitably return on Report. Neither do I wish to try to dodge the question the noble Baroness, Lady Smith, asked, by looking at the amendment. The amendment does not raise these profound issues, which as I said, I am sure we will come back to—indeed, she has indicated that she has a meeting with my noble friend Lord Taylor of Holbeach to discuss some of those issues.
The amendment moved by my noble friend relates to part of Schedule 9, entitled “Transitional and consequential provision”, and specifically would omit Section 40A(3)(a) of the British Nationality Act 1981. The point of that omission is that Section 87 of the Nationality, Immigration and Asylum Act 2002 is repealed by paragraph 28 of that schedule. I think that this matter was debated at an earlier stage; my noble friend Lady Hamwee tabled an amendment which sought to reinstate the power of the tribunal to give directions when an appeal succeeds. The point of this amendment is to reinstate this paragraph in relation to a section which relates to the power of a tribunal to give directions following a successful appeal to give effect to its decision. When my noble friend Lady Hamwee raised that issue in an earlier debate, my noble friend explained that that power is no longer necessary, as the range of decisions that the tribunal can make following appeals reform in the Bill will be more limited, and therefore the consequences clearer.
As Section 87 is repealed by virtue of paragraph 28, the reference to Section 87 in the British Nationality Act 1981 is deleted. The consequence of my noble friend’s amendment would be to reinstate a reference to a section of a Bill that has been repealed. If that is what the amendment is about, it is on that basis that we cannot accept it. But that in no way detracts from the seriousness of the points raised, which it is inevitable that we will return to on Report.
Likewise, Amendment 87ZCA seeks to retain a further cross-reference that is redundant following the repeal of Section 87 of the 2002 Act. There is a cross-reference in the Special Immigration Appeals Commission Act 1997 to the section of the British Nationality Act which refers to Section 87.
Amendment 87ZC also relates to a change made to existing legislation as a consequence of the changes to appeal rights in Part 2 of this Bill. It would retain a reference to “immigration decision” in the Special Immigration Appeals Commission Act 1997. This reference should be removed because Clause 11 on rights of appeal to the First-tier Tribunal does not use the term “immigration decision” to describe decisions that can be appealed. Therefore, the terminology is simply inappropriate and wrong.
I apologise to the Committee for a very technical answer to what are, in fact, technical amendments. In doing so, I do not wish in any way to detract from the seriousness and importance of the points that my noble friends and the noble Baroness have made, which I am sure will be the subject of further discussion outside the Chamber and, again, when the House returns to the matter on Report. In the light of those technical explanations, I hope that my noble friend withdraws his amendment.
Lord Avebury
My Lords, in the light of those technical matters, we thought that those amendments were necessary. That is why we still consider that the power of direction of the Special Immigration Appeals Commission should be retained, as we suggested in Amendment 87ZB. As my noble and learned friend says, these are matters to which we shall return, presumably on Report when there is a fuller attendance in your Lordships’ House.
Meanwhile, I should say how grateful I was to my noble friend Lord Deben for his remarks. The same quotation occurred to me as to my noble friend—Lord Palmerston’s famous speech, in which he ended, “Civis Britannicus sum”. It was the case of a person who might not have been considered particularly worthy of British nationality, but he had it, and he was being victimised by the dictators in Naples. We should still be able to say, “Civis Britannicus sum”. As my noble friend Lord Deben said, we should not allow the Secretary of State to take away a person’s citizenship, particularly when, as he pointed out, she does not have to explain why she has done that. He agrees that it should be feasible for her to take away a person’s citizenship only when she knows that the person has another citizenship to turn to.
I am grateful also to the noble Baroness, Lady Smith, for her reference to the consequences of making a person stateless, which go well beyond the individual consequences of the person concerned. We have to think of the influence that that will have on other states that already have persons who are stateless in their community or are contemplating making people stateless; they will look to the British example, and statelessness will thereby be increased across the world. We should not underestimate the influence of a decision by a state such as Britain, which has always been in the forefront of combating statelessness and has now abandoned that stance. So I am sure that we shall return to this matter. In the mean time, I beg leave to withdraw the amendment.
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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.
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.
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.
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.
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.
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.
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Lord Taylor of Holbeach
I cannot give the noble Baroness an absolute answer to that question. Of course one of the reasons why the rollout is important is that we need to check to see if there are any adverse implications in this policy.
Lord Avebury (LD)
My Lords, can I ask the Minister a question about asylum seekers and persons appealing against a refusal of asylum who are occupying rooms in private houses? It has been said that there are quite a few people doing this, notwithstanding the fact that accommodation is normally provided for them under the Immigration and Asylum Act 1999. Can my noble friend elucidate what provisions are being made for documents to be produced by those who are occupying rooms in private houses because they are not covered by the provisions of Schedule 3, to which he has referred? They deal only with the accommodation that is provided to most asylum seekers under the 1999 Act when they cannot afford to pay for accommodation of their own. However, there is still an important residual group of people who find space in private houses. They will need documentary proof that they are allowed to live in those houses and thus ensure that landlords are not breaching the conditions by taking them in.
Lord Taylor of Holbeach
I think I have made it clear that for people who have asylum seeker status, where it is not safe for them to return and therefore they may be failed asylum seekers, the Home Office will provide the necessary documentation to show that they have a right to accommodation even though their status may well be that of failed asylum seekers.
Lord Patel (CB)
My Lords, after Monday’s debate, I do not think this should take very long. Amendment 58 relates to Clause 33, on immigration health charges, and specifically to subsection (3)(b), which says:
“An order under this section may in particular … specify the amount of any charge (and different amounts may be specified for different purposes)”.
My amendment would remove the words in brackets. As I understand it, we already have the defined charges of £150 for students and £200 for other immigrants.
In the debate we had on Monday, I asked the Minister:
“Once that levy has been paid, it will allow them”—
we were speaking about students—
“to access all health services. Is that quite clear?”.
The answer the Minister gave was:
“Yes, that is exactly right. They will have the same access to health services as is available to a permanent resident”.—[Official Report, 10/3/14; col. 1573.]
Later in our discussions I said:
“As I understood it, I thought he said that once the health surcharge—let us say it is £200—is paid, for the duration of their legitimate stay in this country all health services will be available to them”.
In his reply, the Minister corrected me. He said:
“It is a per annum charge, so if they are here for three years and are not a student it will be three times £200”.
I accept that. But he went on to say:
“But yes, that is exactly right”.—[Official Report, 10/3/14; col. 1574.]
That is, there will be no further charges and all health services will be available to whoever has paid the levy or the health service charge—students or other immigrants.
In that case, I do not know why there is a need to have the words,
“and different amounts may be specified for different purposes”.
We need to know what these purposes are and whether there will be extra charges. If there are, what will they be for, and what will be the tariff? That is my amendment. I beg to move.
Lord Avebury
My Lords, when we discussed this previously, I, too, asked my noble friend the Minister about the relationship of this provision to Clause 33(4), which says that,
“the Secretary of State must … have regard to the range of health services that are likely to be available free of charge to persons who have been given immigration permission”.
I said that that implied that certain services provided by the health service were not going to be free of charge to these people. My noble friend tried to reassure me on this point but it is there in the Bill. It seems inconsistent with the repeated declarations that were made by my noble friend the Minister—which the noble Lord, Lord Patel, has just quoted—that once you have paid this levy, you are free to access all health services provided by the NHS. If that is the case, Clause 33(4) should be deleted from the Bill.
Lord Hope of Craighead (CB)
My Lords, when we discussed Clause 33 previously, the Minister was subjected to a very large number of points. I suggested then—and beg leave to suggest again this evening—that somebody should go over the clause very carefully and look at all the bits in brackets, of which there are quite a lot, and the various subsections and so on, to try to trim it down and make sure that it contains what is really necessary and does not have the opportunities for obscurities and criticism that it presently contains.
It is quite a difficult clause and I understand very well why when one gives power to make an order one wants to give as much scope as one can to the Minister, but this clause goes rather too far by trying to hedge too many bets, and I suggest that it should be looked at very carefully.
Lord Taylor of Holbeach
My Lords, it is helpful that we have had this debate; I am pleased that the noble Lord, Lord Patel, has moved the amendment. As he said, it was originally designed to supplement his amendment relating to students. I think that we have got a good story to tell in connection with students. If I may, however, I shall deal with the particular amendment, Amendment 58.
The noble Lord is right that the provision is not immediately transparent; indeed, the noble Lord, Lord Rosser, has challenged me on this point, too. I understand that the intention of the noble Lord, Lord Patel, may have been in respect of the exclusion of certain expensive discretionary treatments from the free access afforded by having paid the surcharge—I think that that was his concern. I said on Monday, and I am happy to repeat today, that no such exclusions will apply when the surcharge is introduced, and none is planned for the future either. We intend that the payment of the surcharge will provide the same access to health services as is available to a permanent resident.
I turn to the penetrating critique from the noble Lord, Lord Rosser. Both he and the noble and learned Lord, Lord Hope, felt that a degree of ambiguity lay within the clause, so perhaps I may explain why Clause 33(3)(b) states that,
“different amounts may be specified for different purposes”.
The answer is that it allows regulations to specify different amounts of surcharge for different categories of migrants—currently, there are only two amounts: the £200 rate and the £150 rate—without which we would not be able to give the discount to students, which is one of the elements of the Bill. We need this capacity to do so. We do not have it in mind that there will be other categories, but this is the way in which the discount for students is facilitated by the legislation. It does not refer to NHS charging in the legislation.
Perhaps I may refer to the comments made by my noble friend Lord Leigh of Hurley, because we have a very different health system here from that in the USA and in Australia which requires a different solution. Health insurance requirements would be expensive and compromise our own competitive position in the international market for students and for workers, which is not what we want the Bill to do. Most EU countries do not enforce the Schengen visa health insurance requirement at their borders. A student applying to Harvard in the USA, for example—my noble friend Lady Williams of Crosby referred to Harvard and its great pull as a centre of learning for overseas students—has to pay a fee of $958 per year to access basic health services. To access Harvard’s more comprehensive health insurance plan, which is comparable to what the £150 rate gives access to, would cost a further $2,190 per year. That gives some measure of what is involved. We have already committed to this discount for students—that is what this clause is about—in recognition of their contribution to the UK, reinforcing, I hope, arguments that I am trying to make at regular intervals in our debates. They will pay just £150 instead of £200, which is 1% of the cost of coming to study in the UK and exceptional value for money, as I am sure noble Lords will agree.
Why does the Bill allow surcharge payers to be charged for further treatments? So that noble Lords are clear, I should clarify that the Bill does not prevent the exclusion of certain expensive, discretionary treatments from the free access. However, we have made it clear that we intend that no such exclusions will apply when the surcharge is introduced. The Department of Health has been clear that it will consider these in future only in the event of exceptional and compelling specific justification for health purposes; and any changes would need to be put before Parliament in the form of revised NHS charging regulations. One might say that this is for treatments which may in future emerge where it is considered that the health service quite properly should charge not just migrants but members of the UK population.
My noble friend Lord Avebury asked whether there was a problem with the drafting of Clause 33(4). The drafting purpose of Clause 33(4) is to provide a clear link in the Bill to health treatment. Without it, the clause would give an unlimited power to charge for any purpose, which is the intention neither of the clause nor of that particular subsection of it. I note what noble Lords have said about the wording of the subsection. It has been carefully drafted, but if I can provide noble Lords with an explanation of line-by-line implications, I shall do my best to do so before we get to Report. Meanwhile, I hope that the noble Lord will withdraw his amendment.
Lord Avebury
Where the Bill uses the words,
“likely to be available free of charge”,
in Clause 33(4), it anticipates the possibility that the Minister mentions—that while we do not intend to charge anybody at the outset of the operation of the Bill for services of particular cost, we have it in mind to do so in the future. That would apply to students and to short-term migrants as well.
Lord Taylor of Holbeach
I think that I made it clear that the wording is designed to enable the health service, if it feels that particular treatments should be charged for, to do so. There is no intention to do so at present, but it is important that the Bill makes it clear that this is a facility which the health service wishes to reserve for itself. I think that it is quite proper for it to do so, but there is no intention on the introduction of the health charge for there to be any additional fees for additional treatments.
Baroness Lister of Burtersett
Given that the Minister was able to slip out of answering this point on Monday—it did not seem fair to push him on it after he had covered so many points—perhaps I might remind him about the evidence base for health tourism. I have a snippet of information that one piece of research that the Department of Health is relying on is that, out of nearly 1,000 migrants screened by overseas visitors officers in more than 15 trusts during August 2013, only four individuals—0.4% of the sample—were identified as “health tourists”. Even if the Minister cannot now tell us what the evidence is for this claim of health tourism, I would be grateful if he could commit to write specifically on this issue, given that it kind of got left out of his last letter.
Lord Avebury
My Lords, when the noble Lord is replying on that point, will he deal with story of the 300 maternity patients who were alleged to have been treated at St Thomas’s hospital? When we last discussed this, the allegation was found to have been apocryphal. I would be grateful if the Minister would repudiate it.
Lord Taylor of Holbeach
I would not wish to get involved in hearsay or gossip or, indeed, the suggestion that some of this stuff is just newspaper chat. I will get back to the noble Baroness, Lady Lister, with a reasoned reply explaining the Government’s analysis of the situation. However, the purpose of this measure is not to do with health tourism at all; it is to do with providing a charge whereby people who stay here for more than six months make a contribution to the NHS. It will make it more difficult for people who are not entitled to access healthcare to do so, but that is a secondary purpose.
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Baroness Hamwee
My Lords, in moving Amendment 66G, I will speak also to Amendments 66H, 66J, 66K and 66L. This takes us on to the provisions regarding bank accounts, which is perhaps a slightly drier issue than others we have discussed but is very important.
The Bill prohibits the opening of current accounts for disqualified persons and regulates banks’ operations in this regard. The first of my amendments in this group would provide that someone who has made a claim for asylum which has not been determined, or whose claim has been refused but an appeal is pending, would also be covered by the exclusion. The clause, as drafted, seems to exclude persons on temporary admission. It is most likely that those on temporary admission for a lengthy period are seeking asylum. I do not suggest that many of those will have a lot of free cash and want a current account, but some whose claims have been pending for a long time may be allowed to work in a shortage occupation. I imagine that this is quite rare, but some may even be able to get some money out of their country of origin. Those people ought to be able to have a bank account. How can that be permitted if the clause remains as drafted?
Amendment 66H goes to the definition of a “disqualified person”, whom we are told in Clause 35(3)(b) is,
“a person within subsection (2) for whom the Secretary of State considers that a current account should not be opened”.
I suggest that the Secretary of State should be required in the Bill to act “reasonably”. I certainly acknowledge that, as a matter of law, it may well be that she should act reasonably, but the complete discretion is concerning. We are not told of any criteria on which the decision will be based. The Explanatory Notes state:
“The Secretary of State therefore has discretion as to who should be barred … because there will be some individuals who face legitimate barriers which prevent them from leaving the UK, even though they do not have leave. The Secretary of State may enable these persons to open a current account”.
It is important to have published on the record the criteria on which the Secretary of State will base her decision and what options someone who is not able to open a bank account has to challenge her refusal.
That takes me to Amendment 66J, because I cannot see how one would challenge the decision. Provided that they do not discriminate and act lawfully, banks can refuse to open a bank account as they choose. However, if the Secretary of State can order them to refuse to open an account, I wonder whether she can require them to make a provision for a refusal to be challenged. It is a very homegrown and underdeveloped amendment, but there has to be some means of challenging because the consequences are serious. Being refused a bank account goes to one’s credit status and to an application for a mortgage at a later stage, and a number of other consequences may apply to somebody who should never have been refused in the first place. I am seriously concerned about this.
Amendment 66K is on our old friend in Clause 36(1): “The Treasury may”—or “must” it?—“make regulations to enable” the FCA to monitor and enforce compliance. Might the Government think it right to bring the scheme into force but not have these arrangements made?
Finally, Amendment 66L is on “in particular” in Clause 36(2)(b), which provides that “The regulations may” make certain provision,
“including in particular those mentioned in subsection (3), with or without modification”.
I am not clear what is added or suggested by all that and hope that the Minister can help me on it. I beg to move.
Lord Avebury (LD)
My Lords, at the moment it is entirely at the discretion of a bank or building society to agree to open a current account in the name of a person who requires leave to enter or remain but does not have it. The status checks that the bank would carry out would be to determine whether the applicant was financially reliable rather than what his immigration status was—although if he falls within Clause 35(2)(b), he is unlikely to be acceptable to the bank.
Clause 35 provides that a bank has to refuse to open an account for a person who does not have permitted leave to remain, and who is also labelled on a database operated by an unspecified anti-fraud organisation or data-matching organisation as a person whom the Secretary of State considers should not be able to open a current account. I should be grateful if the Minister would elaborate on the details of the organisation to which the banks will have to refer and how it will be established. It means that there will be some people on temporary admission whom the Secretary of State might consider eligible to open a bank account; the Explanatory Notes say this in fact means individuals facing legitimate barriers preventing them leaving the UK.
However, neither the Bill nor the Explanatory Notes gives any detail as to how the Secretary of State will make these decisions or what rights a person will have to challenge her refusal to let him open an account. Should not an asylum seeker who has exhausted his rights of appeal against refusal but is given further temporary leave to remain be allowed to open a bank account? One thinks of the Zimbabweans who were given temporary leave over many years, many of whom opened current accounts if they satisfied the bank’s conditions. Clause 35 prohibits a bank only from opening a current account in the name of a disqualified person, not from continuing to afford facilities to such a person who already has an account. Will this be made clear in the guidance that no doubt will be given to the banks?
Amendment 66G removes from the scope of the clause asylum seekers whose claim has not been finally determined. Most of these people, as my noble friend said, will be very poor and thus unlikely to need a current account, but even those supported by the National Asylum Support Service under Section 95 of the Immigration and Asylum Act, and who receive payments fortnightly, may not wish to carry around the money they receive. A couple with two children under 16 would receive £357 a fortnight, which is quite a large sum to have in one’s pocket or handbag.
Asylum seekers whose claims have been pending for more than a year and who can find employment in shortage occupations may be allowed to work, and my noble friend Lord Roberts will suggest in later amendments that the right to work should be further extended. These people will need accounts into which their wages can be paid. For that matter, could my noble friend say how many people it is estimated will be prevented from opening accounts under this clause who would otherwise have been able to be accepted by the banks under their own rules? What is the cost to the Government of setting up and managing the database, and what is the cost to the banks of making the checks required?
On a casual inquiry at my own bank, Santander, I was told that it would open an account only for a person who was resident in the UK—rather an incongruous condition to be imposed by a foreign-owned bank. It would mean, if the bank meant it literally, that it would not open an account for an EEA citizen who owned a holiday home in Cornwall or for a foreign student—but perhaps the bank makes exceptions.
An immigration lawyer who deals with a substantial number of immigration cases told me this morning that the banks invariably refuse to open current accounts for asylum seekers and appellants. So the result that the Government are aiming for in these clauses is already being achieved by market forces. However, Clause 37 defines the term “bank” to exclude credit unions, and the London Community Credit Union confirmed to me this morning that it would be prepared to open a current account for an asylum seeker, provided of course that his papers were in order. Will my noble friend confirm that asylum seekers and those who appeal against refusal of asylum will continue to be free to open current accounts at credit unions?
Immigration Bill
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Lord Avebury (LD)
My Lords, I should like to add a few words to what my noble friend Lady Barker has already said about Amendment 64A which, unlike some of the other amendments in the group, covers postnatal as well as prenatal treatment.
We had a meeting with representatives of the Royal College of Midwives, as mentioned by the noble Baroness, and Maternity Action on 27 January and we have taken note of the strong arguments for exempting these patients from charging, as I hope the Minister will have done by the end of this debate. As has been said repeatedly, there is no official estimate of the net cost to the NHS of non-EEA short-term migrants needing maternity treatment once those exempt from charging are removed from the equation. Neither in the Government’s briefing nor in any other source have I been able to find a reliable estimate of the volume of alleged maternity tourism. However, as has been said, anecdotal evidence exists, of which the Minister’s letter is an example.
This all seems to have arisen from an assertion by Sky News that 300 women had been stopped at Gatwick but then had to be admitted because they were assessed as being more than 36 weeks pregnant and therefore unable to travel back to their countries of origin. This information was said to have come from a government report, but no title or reference was given. The noble Baroness, Lady Cumberlege, quoted the letter from the noble Earl, Lord Howe, giving a wide range of estimates of the volume of health tourism generally but not maternity tourism in particular. All it had to say on that subject was that maternity tourism formed a large proportion of the total value of health tourism. Surely the answer to that problem is for the Government to stipulate that airlines flying pregnant women to UK destinations should be required to obtain certificates of the length of pregnancy from doctors they can trust, and for carriers that bring women who are more than 36 weeks pregnant to the UK to be subject to fines. That should not be too difficult because the alleged maternity tourists are said to come from a limited number of destinations. When my noble friend the Minister comes to reply, I would like him to make some comments about that idea.
At the other end of the spectrum from the Sky News report was an article about a woman whose case was reported in the Guardian. She had been living in the UK as the wife of a British citizen for seven years, but for some reason not explained in the article had evidently not obtained indefinite leave to remain. Having paid Lewisham Hospital £5,000 for maternity services in regard to care during and after her first child’s birth, she was terrified of going near the NHS and was expecting to give birth without medical supervision because she and her husband were still paying off the bill for the first child.
My noble friend Lady Tonge asked about the denial of treatment for women who present themselves as maternity patients but cannot satisfy the health authorities that they are legitimately entitled to those services. Surely the answer to that must be that the delivery of the services should come first and the ascertainment of the woman’s right to treatment dealt with afterwards. I cannot imagine that any clinician would say that they would not provide maternity services for a woman in the early stages of pregnancy, and that may be the answer to those who say that complications arising from a variety of serious causes might result from the failure to treat those who are in the early stages of pregnancy. I hope that I am right in saying that this will not happen because of the first duty of clinicians, mentioned by the noble Baroness, Lady Lister, to treat patients who come before them.
Baroness Tonge
Will the noble Lord give way? I appreciate his point, but if someone gives a patient the benefit of the doubt for antenatal care and it then turns out that they do not have an entitlement to treatment, do they then say that the patient is not going to get any more antenatal care?
Lord Avebury
My Lords, it has been the case in the past that people who receive services to which they were not entitled incur a debt. I believe that something like two-thirds of the charges levied on these people lie on the table because they cannot be recovered.
Baroness Tonge
As I am sure my noble friend is aware, pregnancy goes on for nine months. It is not a short intervention which is treated and the patient then goes away; it is an ongoing thing that includes postnatal care and goes on for a long time, as the noble Baroness, Lady Barker, pointed out. This is a long-term treatment and it is important that it should be so. Perish the thought that treatment is cut off mid way.
Lord Avebury
No, what I was saying is that I hope that the treatment would be given irrespective of the woman’s entitlement while checks are being made to see whether she is a valid patient of the NHS or is someone who should incur the charges. However, if the charges do fall on the woman, I hope that they will simply lie on the table, as obviously a substantial proportion of the costs of treatment of migrants has done in the past. From the official figures given by the Department of Health, I think it was two-thirds of the charges incurred—not just by pregnant women but by persons who were not entitled to treatment presenting themselves to the NHS. In no case that I have heard of were patients denied treatment, but the charges piled up and the debt was left there on the table. I do not know what the mechanisms for recovery will be under this system, and perhaps the Minister will deal with that point in his reply.
I assume, and want confirmation, that no woman would ever be denied treatment, but if it was ascertained subsequently that she was not entitled to it, the debt would be recorded somewhere. Whatever steps the NHS might take to recover it would be fair enough, but if it could not be recovered, like so many other debts which have been incurred by migrants generally in the past, would it be written off to the NHS? I would like reassurance from the Minister on that point.
Undocumented migrants such as overstayers and failed asylum seekers, of whom there are estimated to be half a million, are unlikely to be able to pay for maternity or indeed any other medical services. If such people work, they are on or below the minimum wage and are now likely to become unemployed with the tightening up of checks by employers on their right to work. Health authorities may invoice patients from this group, but can the Minister say what proportion of the debt is recovered and whether there is anything in this clause, or indeed in the Bill as a whole, that will make it easier to collect the money? Will they be able to transfer the debts at a discount to a debt collector, and will they be any better off than they would have been in the past before this clause was enacted?
The Earl of Listowel
My Lords, in listening to my noble friend Lord Patel’s concerns, which I share very strongly, about children and the charging of children, it occurred to me that there might also be an issue about the immunisation of children. If significant numbers of children do not get immunised, that might pose a threat. I would appreciate the Minister addressing that question in his reply.
Lord Taylor of Holbeach
I suppose that at any boundary point, there are bound to be these sorts of situations occurring. The post-doctoral leave to remain would be in addition, perhaps, to a university degree. There would be an additional application, so indeed it would be allowable because they would not be permanently resident here in the UK. That is a correct analysis of the situation and the noble Baroness, Lady Williams, is absolutely right in pointing that out.
Lord Avebury
My Lords, I hesitate to add to the interruptions that the Minister has already suffered, but I think I can understand what the noble Lord, Lord Patel, was getting at. Clause 33(4) states:
“In specifying the amount of a charge under subsection (3)(b) the Secretary of State must … have regard to the range of health services that are likely to be available free of charge to persons who have been given immigration permission”.
That implies that not all health services will be available to that person, but the noble Lord has insisted that such persons will be treated on the same basis as a native of this country in accessing the health service. Why do we need subsection (4), which implies that there are other services which the health service provides that are not covered by the surcharge?
Lord Taylor of Holbeach
I thought that I had made that clear in answer to an earlier question, and I am just trying to find my notes on that matter. When the Bill is initially implemented, it is our clear policy intention that there will be no further charges for treatment. The provision in the Bill is there for this particular period, but we will clarify the position on implementation. The policy position is that there will be no further charge. That is not on the face of the Bill, as the noble Lord, Lord Patel, rightly points out, but I am giving him the policy position from the Dispatch Box. I hope that that reassures him and my noble friend on that point.
Immigration Bill
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Lord Roberts of Llandudno (LD)
My Lords, I support everything that has been said by the noble Baroness, Lady Lister, the noble Lord, Lord Ramsbotham, and the noble Earl, Lord Listowel. In particular, the words of the former Chief Inspector of Prisons must carry very serious weight in this particular discussion.
I am looking at what is happening to the outsourcing of many of these functions and thinking of the question asked by the noble Earl, Lord Listowel, just now. What are the qualifications and the development of those who are now involved in these private companies with this particular action? How do they exercise their duties?
The Minister made a statement last year concerning the call from Her Majesty’s Chief Inspector of Prisons not to use force against pregnant women. He told the House that:
“The recommendation in the report by HM Inspectorate of Prisons on Cedars pre-departure accommodation that force should never be used to effect the removal of pregnant women and children was rejected by the UK Border Agency”.—[Official Report, 10/4/13; col. WA 313.]
At the moment, the powers of forced removal—I hope I am not misinformed here—apply only to the immigration Acts of 1999 or 1971. Enlarging this and making it applicable to any immigration inquiry is a very dangerous move. I ask the Minister for his assurance on these matters.
Also, as mentioned already, the culture and the evidence we have of the methods used do not show any change. What are the Government doing to make sure that when this enforced departure has to be undertaken it is done in a humane way?
Lord Avebury (LD)
My Lords, I agree with what my noble friend has just been saying, particularly about the failure of the Home Office to deal with the serious criticisms of the case owners that were referred to earlier by the noble Lord, Lord Ramsbotham. The whole point about disbanding the UKBA and returning these functions to the control of the Home Office itself was that by common acknowledgement, including that of the Home Secretary herself, the UKBA had become dysfunctional and something had to be done. However, what has in fact been done since it was disbanded is that the case owners are not the same persons who were making decisions before and were manifestly incapable of doing the right thing, by reason of the fact that a very large number of the appeals against their decisions were upheld by the tribunal. It would be useful if we had an answer to both that question and the noble Lord’s further question about the consideration of Outsourcing Abuse, the report to which he referred, which never had the consideration that I believe it deserved in the Home Office but is crucial to the future health and efficiency of the people who are making these fundamental decisions, which affect the lives of so many people.
On these amendments, I agree with the Delegated Powers Committee that the definition of “family members” must be in the Bill and limited to those whose leave to enter or remain in the UK is expressly dependent on the principal’s leave to enter or remain. For example, a family member who came to the UK for work or study, not as the dependant of the principal, should not be included in the definition. That seems to be the effect of Regulation 3 of the draft Immigration (Removal of Family Members) Regulations 2014 but, as has been said, it should be in the Bill. As the Delegated Powers Committee found, the justification for placing both this and the time limits for removal in secondary legislation—that they may have to be amended from time to time—is not borne out by experience over many years and through a good many immigration Acts.
Draft Regulation 4 has the same effect as Section 10(1)(c) of the 1999 Act, providing that notice has to be given to any family member who is liable to removal, but the Bill provides only that notice “may” be given, as my noble friend Lady Hamwee pointed out in moving the amendment. This is partly covered by our Amendment 4, but the Minister may wish to consider placing the obligation to give notice firmly in the Bill. As ILPA makes clear in its briefing, quoting the noble and learned Lord, Lord Steyn, giving notice is vital for the legality of the decision to remove a person so as to give him the opportunity of challenging the decision before the courts. The Secretary of State’s attempt to remove certain persons without notice has been ruled unlawful by the High Court and the Court of Appeal. In short, the powers and safeguards dealing with the identification of family members who may be removed, the question of when the powers may be exercised and the notice to be given should all be in the Bill, as should the provisions of Section 10(5) of the 1999 Act, providing that removal directions should cease to have effect against a person who ceases to be a family member.
Lord Rosser (Lab)
My Lords, I will not at this stage make any comments relating to the extension of enforcement powers but will wait until we discuss Amendments 12 and 13. We are not opposed to the principle of Clause 1 but we have questions to raise. We cannot see what the problems for the Government would be in accepting Amendments 5, 6 and 7, and we await the Minister’s response with interest.
We have Amendments 2 and 8 in this group. Amendment 2 is not dissimilar to that moved by the noble Baroness, Lady Hamwee, and provides that a person should be given written notice of their liability for removal. According to the Government, there are approximately 14,000 enforced removals a year, with people being arrested, detained and then removed, and about 29,000 people depart voluntarily to a greater or lesser degree. Apparently, an enforced removal costs about £15,000.
The Immigration Act 1971 requires written notice of decisions to give, refuse or vary leave to be in the United Kingdom. Currently, migrants are told if they are not allowed to be here, and they are then told separately about their removal. Under the Bill, the Government want to be in a position to serve only one decision that gives, refuses or varies leaves and, following that decision, where notice has been given, those who do not have leave to remain will be subject to removal without a separate removal decision or notice being required. It seems that the notice giving the decision on leave to remain will tell the immigrant of their destination for removal, advise them to seek early legal advice and place them under a duty to raise any asylum, human rights or European free movement issues with the Home Office. It is not clear why this is not stated in the Bill. No doubt the Minister will explain why and indicate what else will be required to be included in this decision notice. Apparently, the decision notice will be issued at least 72 hours before any removal is attempted, which is in line with the amount of notice given currently when a removal decision notice is issued. Will the decision notice make clear the individual’s liability to removal, and will it state when, where and how that removal will take place? I look to the Minister to give a response to that question when he replies. Will the minimum 72 hours apply to family members? The draft regulations refer to,
“at any time prior to … removal”.
I hope the Minister will respond to that question. Included in the decision notice will be options for voluntary departure and the consequences of not so departing. Will the Minister say what the consequences of not departing voluntarily will be that will be set out in the notice and, once again, why that should not be in the Bill?
Since financial reasons appear in part to be behind the provisions in Clause 1, will the Minister say what the Government anticipate those savings will be and what impact the change to not having a separate removal notice will have on the number of enforced removals and on the number of people departing voluntarily? Perhaps he will also say what impact the Government expect the change to having no separate removal notice will have on the net migration figure each year, since one assumes that one key purpose of the Bill, as far as the Government are concerned, is to have an impact on that overall figure. It seems unlikely that the current system will be strengthened if the time gap between an individual receiving notice that they do not have leave to be in the United Kingdom and the time they are removed if they do not leave voluntarily is longer than under the current arrangements, under which a separate notice of removal decision is issued. Will the Minister say how long it currently takes, on average, for an attempt to be made to remove a person following a refusal to grant or vary leave being made, how long it takes following the removal decision being sent, and how long the Government intend it should take under the proposed arrangements with only one decision notice being issued in the light of the intention that a decision notice will be issued at least 72 hours before a removal is attempted?
Amendment 8 provides that the regulations that the Secretary of Sate can make about the removal of family members under Clause 1(6) should not be made unless a draft has been made before and approved by resolution of each House of Parliament. The Bill does not provide for this to be the case in respect of regulations under Clause 1(6), which would not be subject to the affirmative procedure. Clause 1(6) enables the Secretary of State to enable regulations that, in effect, define who should be considered a “family member” and the period during which they may be removed. Surely legislation should be clear about the people who are subject to the powers it contains. The Secretary of State’s definition of a family member, which could be wide-ranging, should be subject to full discussion and affirmative approval by both Houses.
Lord Judd (Lab)
My Lords, this amendment is certainly a move in the right direction, but the one anxiety I have is that it still leaves matters very much in terms of systems and the responsibilities for ensuring systems are running properly. If we put ourselves in the position of the unaccompanied child, who may be going through all sorts of mental turmoil and agony—bewildered, uncertain and desperately in need of friendship and help—it would be good to hear a little about the Government’s thinking on how these real psychological, and consequently very often physical, needs of the young person are being dealt with. We have debated the policy in this Bill in previous years and, ideally, the child in this situation needs a personal champion, who is there throughout the process, advising, talking to and consulting them—if you like, a counsellor, who is there to enable the child to make sense of what is happening and being proposed and to enable the child to start developing his or her own views about what they really want to take place.
Lord Avebury
My Lords, these amendments, which are all concerned with the detention and removal of children, either on their own or as part of families, are a reflection of existing government policy, which, in the absence of these amendments, could be reversed without parliamentary oversight, as the Home Secretary observes in her Factsheet: Ending the Detention of Children for Immigration Purposes, issued last month. In fact, children are still to be detained, but in places described as “pre-departure accommodation”. The only place identified as such so far is, as has been mentioned, Cedars near Heathrow, which has hitherto been included in the list of short-term holding facilities to be discussed in the next amendment. It appears to me that holding children in Cedars is still detention, as I think my noble friend Lady Hamwee remarked, because the families are still deprived of their liberty, albeit in far more congenial surroundings than in immigration removal centres and even though they are no doubt looked after far better by child-friendly Barnardo’s than the impersonal money-making subsidiary of Capita that runs the IRCs.
Amendment 9 allows for a 28-day grace period following the exhaustion of appeal rights before a child and the relevant carer may be removed, during which it is hoped that agreement can be reached on their voluntary departure. This system is already operating on a non-statutory basis, but it would be useful if my noble friend could say what statistics there are on voluntary, as compared with forced, departures up until this point. In addition, are any resettlement grants available to families who agree to voluntary departure and what are the details of the organisation through which the voluntary departures and any associated grants are organised? They used to be organised by the International Organisation for Migration, but I think that that has changed in recent years.
Lord Avebury
“Short-term holding facilities rules
(1) Within six months of the passing of this Act, the Secretary of State must make rules for the regulation and management of facilities maintained for the purpose of the detention of a detainee for a period up to 7 days (“short-term holding facilities”).
(2) Short-term holding facilities rules may, among other things, make provision with respect to the safety, care, health, activities, discipline and control of detained persons.”
Lord Avebury
My Lords, as the Minister is aware, we have been concerned about the disgraceful conditions of the short-term holding facility at Heathrow Airport for some time. These facilities and others like them are not subject to any rules making provision for the health, safety, care, activities, discipline and control of the persons detained in them, unlike immigration removal centres, which have been subject to a set of rules of this kind since 2001.
The short-term holding facilities are defined in Section 147 of the Immigration and Asylum Act 1999 as places,
“used solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed”.
These facilities are needed for persons either arriving in the UK whose status is being investigated by an immigration officer or being returned to their country of origin, having exhausted their rights of appeal. All 36 of them are managed by contractors on behalf of the Home Office. The main provider used to be G4S but that role has now been taken over by another private contractor, Tascor, highlighting the fact that the Home Office itself no longer has the expertise in-house to resume the management of operations that have been privatised and are no longer effective.
Since 2006, when the UN’s optional protocol to the UN convention against torture came into effect, we have been required to provide inspections by an independent expert body to routinely visit and report on all places of immigration detention to prevent the inhuman and degrading treatment of detainees. This task is being performed both for immigration removal centres and for short-term holding facilities by the Chief Inspector of Prisons, whose remit extends well beyond that of the convention to detainee welfare, the need for a decent and respectful approach to detainees by staff and the physical conditions of detention. In the case of the IRCs, there are detailed rules governing such matters as welfare and privileges, religion, communications, healthcare, requests and complaints, and it has been the Government’s intention, ever since 1999, to publish an equivalent set of rules for short-term holding facilities. Drafts of the rules were published in 2006 and there was a consultation on them, but a final version was not presented to Parliament. In 2009, the same thing happened again: there was a draft followed by a consultation, but no sign of the finished product from that day to this. When inquiries were made of policy officials in the Home Office on my behalf, those officials said,
“the rules have been subject to various delays and as such have yet to be finalised”.
That was more or less the same as the answer the Minister gave when the noble Lord, Lord Ramsbotham, asked him about when the rules would appear.
Lord Taylor of Holbeach
My Lords, I appreciate the concerns of my noble friend Lord Avebury, the comments of the noble Lord, Lord Ramsbotham, and the concerns of the most reverend Primate the Archbishop of York. They have caused my noble friend to table the amendment, and caused us to debate not just the rules but the provision of facilities.
I start by reassuring the noble Lord, Lord Ramsbotham, that in the past year the Home Office has been in acute dialogue with Heathrow Airport Ltd about the Heathrow Airport facility to progress accommodation units. That is now bearing fruit. My noble friend Lord Avebury asked me if I could place information on the design of these facilities in the Library. I understand that HAL, the Border Force and, for that matter, the Home Office are in final discussions on the detailed design stage and, indeed, are going out to contractors for quotes in March of this year—that is, now. If that is the situation, I am sure that I will be in a position to satisfy my noble friend’s request to place a copy of the design in the House Library, and I will seek to do that for him.
I am aware that there has also been a lack of legislative framework governing the operation of the short-term holding facilities. As has been pointed out by noble Lords, this has been a matter of concern for years to a number of interested parties, including Her Majesty’s Chief Inspector of Prisons, who has responsibility for inspecting the UK’s detention facilities. The delay in introducing these rules is regretted, but it has been a case of unavoidable delay being caused by a number of different reasons, including, most recently, the discussions surrounding the legislative framework that should apply to Cedars, which we have just discussed, which initially had been classified as a short-term holding facility and, as such, would have been covered by these rules. We have just debated those amendments. Accordingly, today, I give my noble friend a commitment that separate sets of rules governing the management and operation of short-term holding facilities and the Cedars pre-departure accommodation will be introduced before the Summer Recess. With that, I hope that my noble friend will feel able to withdraw his amendment.
Lord Avebury
It remains only for me to thank the most reverend Primate the Archbishop of York and the noble Lord, Lord Ramsbotham, for their powerful support for this amendment. I also thank the Minister not only for the very welcome reply that he has given to this debate but for the close attention that he has paid to the correspondence that we have had over the past few months, particularly on the facilities at Heathrow. I am delighted to hear him give the assurance that we will have separate sets of rules for the short-term holding facilities and the pre-departure accommodation within a shorter space of time than I asked for in the amendment. It is rather an unusual experience to have a Minister grant something better than that for which the amendment asks—I think it is probably unique in my 52 years in one House or the other. I can only say how grateful I am to my noble friend and how much we look forward to the implementation of his kind undertakings. I beg leave to withdraw the amendment.
Lord Ramsbotham
I will speak to Amendment 13, in my name and that of the noble Lord, Lord Roberts.
I am very grateful to the noble Baroness, Lady Williams, for highlighting some of the points that were in the code of practice that I gave to the Minister, as I mentioned earlier. I did not read out all the points but I did mention that there were three codes that I had produced. One concerns the use of restraint. I will mention the three elements in that, which say that the Home Office must:
“Confirm the Independent Advisory Panel on Non-Compliance Management … as a permanent establishment”,
and that one member must have,
“experience of both the design and use of restraint techniques in a wide variety of settings, both custodial and non-custodial”.
The Home Office must also:
“Lay down precisely what safe and pain-free restraint techniques are acceptable in various situations such as vehicles transporting returnee to airport, transfer from vehicle to aircraft including in crowded airports, and in economy class on board commercial, passenger-carrying aircraft”.
Finally, the Home Office must “specify compulsory training requirements” for detainee custody officers,
“and other escorts, including compulsory continuation training”.
I repeat that because the amendment in the name of the noble Lord, Lord Roberts, and myself, refers particularly to the use of the word “reasonableness”. I am sure that the Minister will agree that it was not reasonable force that caused the unlawful killing of Jimmy Mubenga in an airport, and the 78 other cases that I presented to the Home Office, along with numerous others. I suggest that the problem is that the Home Office has delegated all use of force to the contracting companies without overseeing it or insisting that anyone do so. I suggest to the Minister that it would be a very good thing if the Home Office thought through and tried to define what “reasonable” is.
It seems to me that there is a mnemonic, “JPLANS”, which provides the circumstances that must be honoured in using force. The letters stand for six phrases. The first: is the force “justifiable”? It might be lawful, but that does not make it justifiable. All other options must be considered before it is used. Secondly, it must be “proportionate” to the behaviour and consequence it was intended to prevent. Any force used should always be the minimum necessary to achieve a lawful objective.
Thirdly, it must be “lawful” in all circumstances and, provided the person has done what he honestly or instinctively thought was necessary in all the circumstances, and no more, that would be good evidence that he has acted reasonably and lawfully. Force must never be used as a punishment to intentionally cause pain, injury or humiliation. Fourthly, use of force must also be “accountable”; one must always be prepared to account for any force used. Force should be used only as a last resort, and one must be able to demonstrate that this was the case.
Fifthly, force must be “necessary” in all circumstances, and consideration should be given to any other reasonable alternatives: could the situation have been resolved without the use of force? Were risk assessments properly carried out before the removal to reduce tension and any consequent need to use force? Could this have included a planned meeting between the escort and the person they were escorting in order to try to build up a relationship that might remove the tension?
Finally, was the force used “safe and supportive”? Techniques and procedures must be applied correctly and safely, and the person on whom they are applied must be monitored to ensure their safety. There are some techniques and facilities that are known to give rise to a foreseeable risk of injuries. They are permitted only in extreme circumstances and will have to be justified by the member of staff who uses them.
I do not think that anyone writing “reasonable” without thinking it through can have applied the JPLANS test. I therefore suggest that the Minister considers a definition of “reasonable” whereby any use of force must be necessary, reasonable and proportionate, and applied for the minimum period necessary to achieve the lawful objective. If that definition were in the Bill, rather than just the word “reasonable”, I would find it a great deal easier to accept. I suspect that it would be much more supportive of the regime that I hope the independent advisory panel will impose, which should not consist merely of repeating techniques designed for use in custody that are wholly inappropriate when removing a detainee.
Lord Avebury
My Lords, I wish to say a word or two in support of the amendment. Currently, the use of force by an immigration officer is licensed under the Immigration Act 1971 and the Immigration and Asylum Act 1999. Paragraph 5 of Schedule 1 amends this to license the use of force under eight other Acts passed since 1971, and any future legislation that may be included in the definition of “the Immigration Acts”. The Explanatory Notes wrongly claim that this “clarifies” that the power is not limited to the exercise of powers under the 1971 and 1999 Acts, which would mean that the power already exists. In fact, the use of force under any of the eight Acts not already covered would be unlawful until the Bill is passed, as I hope my noble friend will concede.
No justification is given for this extension of the power to use force. On the contrary, there have been huge concerns about the use of existing powers, as in the case of Jimmy Mubenga, and in the report of the chief inspector on the use of force to remove a pregnant woman and her child via Cedars. The former Immigration Minister gave an assurance that the power to use force was confined to immigration officers as distinct from workers employed by private contractors on detention and removal activities. However, private contractors do use force, as has been mentioned and as the noble Baroness, Lady O’Loan, found in her report of March 2010.
In the chief inspector’s report on an unannounced inspection of Harmondsworth in August last year, it was found that a wheelchair-bound, low-risk detainee who had suffered a stroke was handcuffed on a hospital visit, and other cases were noted in which the use of handcuffs was “grossly excessive”, including one case in which the individual was sedated and undergoing angioplasty, and another in which an 84 year-old man suffering from dementia died while still in handcuffs. It is clear that some immigration officers have no idea whatever about proportionality in the use of force—a matter that was referred to by the noble Lord Ramsbotham—and each and every extension of this power should be separately justified.
Immigration Bill
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Lord Avebury (LD)
My Lords, UK Visa and Immigration is still floundering in the unreliable IT systems and casework backlog left by the troubled UKBA when the Home Secretary abolished it last March and there is nothing in this Bill to deal with the quality of decision-making, which has not improved since that change. Now we are placing new demands on UKVI that, in the words of the Immigration Law Practitioners’ Association, it,
“is not equipped or able to meet and gives it powers that it cannot be relied upon to exercise properly”.
I agree with my noble friend the Minister about separating myth from reality. The views on immigration that the noble Baroness, Lady Warwick, said were widely held were influenced by false notions of the numbers of immigrants encouraged by the Daily Mail. In an Ipsos MORI poll in June 2013, people questioned thought that immigrants made up 31% of the population, whereas the true figure was 13%. In the latest statistics, immigration for work was down by 12% on the previous year; there was a 7% fall in work-related grants to stay permanently, and non-EEA family visas were down by 20% to the lowest figure since comparable records began in 2005.
These facts are not well advertised, leaving UKIP and the Daily Mail free to create fear in the minds of the public. We saw this in the totally unjustified hysteria over the floods of Bulgarians and Romanians who were allegedly ready to invade the country on 1 January, when the hordes of newsmen greeting a flight from Bucharest were disappointed to find that only two of the passengers were Romanian.
One of my fears is that many dependants are being denied leave to enter because of the £18,600 income threshold applied to the sponsor and the refusal to consider other resources available to a couple, such as the earning potential of the applicant or the provision of free accommodation by the sponsor’s parents or other relatives. There is nothing in the Bill to correct breaches of Article 8—the right to family life—and, indeed, Clause 14 tries to coerce the courts into interpreting Article 8.2 more restrictively by telling them what weight they are to give to certain factors. The Joint Committee on Human Rights has commented adversely on this attempt to bend the decisions of the courts in directions which may conflict with case law, and we shall have to look at this in detail when we come to the Committee stage.
I also fear that substituting this administrative review for the right of appeal against all immigration decisions, except asylum and human rights claims, is bound to lead to injustice. Half the appeals by economic migrants and students are successful, the majority of them on the basis of factual error by the decision-maker. Half of entry clearance appeals and a third of deport appeals are also successful, as the right reverend Prelate said. The common-sense answer would have been to train caseworkers to get the initial decisions right instead of taking away people’s appeal rights. There is already an administrative review by the Home Office presenting officer when he is preparing for the appeal. That process does not pick up hundreds of wrong decisions, as the appeals statistics show.
How will this review approach the many decisions which are not in accordance with the law because they were not in accordance with the rules or did not deal properly with the evidence? Will the review accept representations from the applicant or her representative? Will the process be conducted behind closed doors? Instead of accepting that officials rubber-stamp their own colleagues’ decisions, appellants may either seek to reconfigure their cases as human rights challenges or, if that is not on the cards, to proceed by way of judicial review.
The appeals impact statement suggests that 5,600 extra judicial reviews may be started as a result of this process and up to 1,000 granted permission. These cases will cost a lot more than if they had been heard before the First-tier Tribunal and there will be further expenditure when costs are claimed or damages sought. The impact assessment does not go into the arithmetic on this but I am sure the Home Office has the figures. I should be grateful if the Minister would let us have them.
On bail, there is nothing in the Bill to deal with the scandal of long-term detention of individuals who pose no threat to national security. Some 5% of immigration detainees are held for more than a year and another 7% or 8% for between six months and a year. That is surely intolerable and we should require the independent chief inspector, John Vine, to carry out regular annual inspections of the long-term detention of immigrants. For the past few years, while immigration has been declining, the number in detention has been rising steadily. I should be grateful if the Minister would say how much has been spent on the detention estate since the coalition came into office. How does the Treasury view the plans for an even bigger estate?
I have difficulty also with the decision to allow the Secretary of State to deprive a person of his citizenship if it was acquired by naturalisation and she is satisfied that while a citizen the person conducted himself in a manner which is seriously prejudicial to the vital interests of the UK. The instant she makes an order under Clause 60, if the person has no other citizenship he becomes stateless and has only a retrospective right of appeal under the Special Immigration Appeals Commission Act 1997.
Did the Government consult the UNHCR, the guardian of the Convention on the Reduction of Statelessness, before including this clause in the Bill? Did they consider providing some form of external scrutiny over the powers in Section 40 of the 1981 Act, which are being exercised on an increasing scale? In 2013, 20 people were stripped of their UK citizenship, which was more than in all the previous years since the original power was introduced in the Nationality, Immigration and Asylum Act 2002.
On health tourism, the Bill contains only enabling provisions but the intention is that non-EEA migrants granted leave to enter for more than six months will be required to pay a surcharge, like an insurance premium, to cover the cost of any NHS treatment that they may need, which is reasonable. But all other non-EEA visitors coming for shorter periods of up to six months are liable to be charged at the point of accessing treatment after the initial contact with a GP, for which registration will be required. Did Ministers consider the representations we have all had from Maternity Action and the Royal College of Midwives about the harmful effects this will have on pregnant women among the 500,000 estimated undocumented migrants, including not only the short-term visitors but also refused asylum-seekers and visa overstayers? They may be deterred from seeking antenatal care and, as a result, develop health resource intensive conditions later on or potential harm to the unborn child.
Obviously I welcome the statutory prohibition of child detention, even though it is still subject to the exceptions that were agreed in 2010. At the Report stage in another place, the Home Secretary said that the Government would provide a separate legal basis for pre-departure accommodation. I am wondering whether that refers to the short-term holding facilities at Heathrow and other points of entry, which the Independent Monitoring Board has condemned as,
“unsuitable for use overnight or at any time by children”.
There is now at last a plan for improvements, due to start in April and to be completed by December 2014. I should be grateful if the Minister would confirm that the project at Heathrow is still on course.
I also welcome the introduction of universal embarkation checks in 2015, which are provided for in Schedule 8 and seem to have escaped the attention of the noble Lord, Lord Bilimoria. We already screen about two-thirds of passengers leaving the UK using advance passenger information. I understand that that will go up to 75% on all routes and 90% of all air passengers next month. To complete the picture, data on the remaining passengers will have to be collected at the border by carrier and port operator staff. Those persons are already involved in outbound passenger processes, so the additional work required of them will be minimal.
As the Public Accounts Committee said in July 2013, estimates of annual migration are based at present on the International Passenger Survey sample of 5,000 migrants and are subject to a wide margin of error. I congratulate the Government on eliminating that uncertainty and collecting information, as has been long advocated by the Liberal Democrats. It is of importance to our national security and to the effective enforcement of our immigration laws.
Lord Hodgson of Astley Abbotts (Con)
My Lords, it is always a pleasure to follow my noble friend Lord Teverson. His combative style shows that his pillaging instincts, at least in a verbal sense, have not been forgotten, and I will come back to some of his comments in a moment.
The majority of the speeches we have had and the briefings we have received on the Bill have focused on two aspects: first, the risk that the Bill poses to the economic advantages that this country is said to enjoy as a result of immigration and, secondly, that the proposed tightening-up of the country’s immigration procedures represents an undue restriction on what my noble friend on the Front Bench called in his opening remarks “access to justice”. Those are serious charges, to which I wish to return in a few minutes.
At the outset, however, I may disappoint the noble Lords, Lord Patel and Lord Winston, because I want in this Second Reading debate to declare my support for what the Government are proposing today. For those of us engaged in the political process, there are few policies which our fellow citizens regard as being as counterintuitive, if not downright illogical, than those surrounding immigration rules and procedures. The regulars in the saloon bar of the Dog and Duck find it hard to understand how people who have come here illegally, and who may have committed crimes or enjoyed access to our non-contributory health and social services, seem to be able to avoid removal for an inordinate length of time. I am not suggesting that the only way to access political wisdom is via the saloon bar of the Dog and Duck but the regulars have a point. If we are not to be seen as being out of touch we need to address those concerns to maintain public confidence, as my noble friend also said his opening remarks. The Bill at least addresses some of those concerns and that is why I support it. I quite agree that there are issues and details that we shall need to explore and discuss in Committee but the Government are broadly on the right track.
I referred a moment ago to the question of access to justice. I attach great importance to that. Members of your Lordships’ House may be aware that I am a trustee of Fair Trials International and that I was extremely critical of the Government’s proposals to reduce the time in which an appeal can be made against a European arrest warrant from 14 days to seven days. That proposal formed part of the Anti-social Behaviour, Crime and Policing Bill which your Lordships’ House has just finished considering. My noble friend on the Front Bench felt the full force of my disappointment, which continues as he was not prepared to shift the Government’s position. The noble Lord, Lord Rosser, may be smiling but it was also pretty disappointing that noble Lords opposite would not support that either. When I hear them talking about how important it is to get these procedures right, the question worth bearing in mind is whether you are going to talk the talk or walk the walk. But—and this is an important but—I had to recognise that in the case of European arrest warrants, at least, there was a substantial proportion of unmeritorious appeals, which clogged up the system at considerable expense. I expect and fear that the immigration appeal process has similar characteristics and is therefore in need of streamlining. Therefore, while access to justice is very important, it is not a card that trumps all others. There are balancing issues of fairness to other law-abiding members of society and of the appropriate use of scarce resources in our health and social services. Finally, there are balancing issues of the interests of the long-suffering British taxpayer who foots the bill. No doubt we shall examine these balances in detail in Committee.
In the rest of my remarks, I want to set these proposals in the wider issue of the economic advantage that many claim the country enjoys from immigration. Here, I want to follow some of the themes that my noble friend Lord King of Bridgwater was developing in his interesting remarks earlier. I do so in the context of immigration as a whole. I recognise that the Bill seeks to address only immigration from outside the EU but, in this Second Reading debate, we should step back and look at the jigsaw as a whole—not just the piece that the Bill represents. I argue strongly that to consider immigration only as regards economic activity is to adopt too narrow a prism. We need to consider also the impacts of immigration on other issues, such as quality of life and social cohesion.
I should make it clear at the beginning—my noble friend Lady Hamwee made this point—that, lest my remarks should be misinterpreted, when I talk about the native population I am talking about the native population irrespective of race, colour or creed. The basic facts may be simply stated. The population of this country is going up by 1,100 people a day—a large village or a small town every week. Our population, which is currently 63 million, is estimated to reach 70 million by 2025. That is an increase of 7 million, or 14 cities the size of Manchester. “No worries”, say many people, “Only 5% of Britain is built upon”. It is probably about 12% of England but it is a small proportion, they say. However, the population is not evenly spread. England has now overtaken the Netherlands as the most densely populated country in Europe. Furthermore, the UK is expected to have the largest European population by about 2030, having by then overtaken Germany. Let us think about the position of the south of England when a goodly proportion of those 14 Manchesters come to be built, as I expect that they will be, south of a line from Bristol to the Wash. To suggest that there are no consequent quality-of-life issues is fanciful. The heated public debates that we are having about building on the green belt, expanding Heathrow Airport and the construction of HS2 are the first outriders of what will be increasingly challenging public policy issues.
There is also the issue of social cohesion, referred to by my noble friend in his opening remarks and by the right reverend Prelate the Bishop of Leicester in his interesting contribution. If the default option is to encourage immigration, we run the risk of crowding out our native born. Crowding out can take many forms. If we consider football’s Premier League, an undeniably successful British activity that earns this country millions, we should also consider how few British players play in the Premier League. Does it matter that 200 or 300 young British males are unable to realise their dreams? In the grand scheme of things, it probably does not, although it matters rather more if you are one of the 200 or 300. It matters particularly to the black minority community, who proportionately provide a large number of those who play football at the highest level.
Universities UK may be briefing us, and undoubtedly has briefed us, about the impact of these proposals, but I hope it has read the report on higher education, published in October 2012, that drew attention to the increasing shortage of home-grown postgraduate students as a result of the increasing number of people coming from overseas to pursue postgraduate education here. Below those two quite small, perhaps rather atypical, examples are thousands of our fellow countrymen who may find their aspirations and ambitions if not shattered at least limited. We risk creating or perhaps reinforcing a sullen, discontented underclass—and especially where that underclass is a minority group, we risk creating an atmosphere in which extremism may flourish.
On Thursday 6 February, in the Moses Room, the noble Lord, Lord McFall of Alcluith, who is not in his place, initiated a debate on social mobility. The speeches focused, unsurprisingly, on what can be done to hasten the “up” escalator. But the darker side of social mobility, about which we prefer not to talk, is the “down” escalator. This one carries people who for a wide variety of reasons have found themselves disadvantaged. While the “down” escalator can apply to individuals, it can apply to countries too. The noble Lord, Lord Griffiths of Burry Port, talked about the impact of the “down” escalator in that we are perhaps attracting to this country skilled people who can help to stabilise less advantaged, underdeveloped failing states. Although we may benefit from that in the short run, in the long run we may be creating a yet more dangerous world.
Finally, there is the argument that we need immigration to look after our ageing population. The noble Lord, Lord Teverson, and I have discussed this issue in the past. If we follow such a course we will be, in the famous words of Sir David Attenborough, engaging in a gigantic Ponzi population scheme. For today’s young people become tomorrow’s old people. I should like to share some figures with the House. In 2003 the dependency ratio of workers to pensioners was 3.7 to 1—3.7 workers to each pensioner. We know that in 2050 there will be 17.1 million pensioners. If we maintain the ratio we will need 63.4 million workers. Yet on the same projection we know that we will have only 36 million. That is a gap of 27 million. That means that we would need a population not of 70 million, but of 100 million, which is 50% above our present level. These 100 million would in due course become pensioners, requiring still more people to look after them. These are not the remarks of a little Englander determined to pull up the drawbridge.
Lord Avebury
My Lords, does the noble Lord’s arithmetic take into account the fact that the pension age will be increasing during this period?
Lord Hodgson of Astley Abbotts
The noble Lord, Lord Avebury, is right. We could certainly change the ratio by increasing the pension age, but it would not remove the problem. It might obviate it: it might not be 27 million; it might be 20 million. But I accept that a change in the pension age will make a difference.
No one with any knowledge of the history of our country can be unaware of the vital contribution that new arrivals have made to its life: its vitality, diversity and dynamism. However, given the UK’s, and particularly England’s, geographical constraints, which do not exist in the same way for the United States, a country that is often used as an example for us to follow as regards immigration, we are approaching a point at which we must begin a balanced, calm debate about the interaction of size of population with economic advantage, quality of life and social cohesion. The Bill before us today is a first small step in the process to ensure that in principle those who come here legally make a reasonable contribution to our society while those who are here illegally are speedily removed. That is why the Bill has my support.
Lord Taylor of Holbeach
I am grateful to my noble friend for raising that issue. I cannot respond to it immediately, because I do not want to give a meaningless response, but I hope she will allow me to come back to her on that so we can have the full picture before Committee. I was just making a general point that students, perhaps, have less anxiety in this area, because of the nature of the visas that they have coming here.
The noble Lord, Lord Best, whose expertise in these matters I recognise, and my noble friend Lord Bourne of Aberystwyth, asked about the complexity of checks landlords will be required to conduct. The landlord check is undoubtedly simpler than that which employers must conduct. There are fewer technicalities, and with all migrants now being issued biometric visas, or biometric residents’ permits, the documentation is becoming much easier to manage.
The right reverend Prelate the Bishop of Leicester, the noble Baronesses, Lady Warwick and Lady Lister, the noble Lords, Lord Judd and Lord Hylton, and my noble friend Lord Roberts all raised how the Bill will impact on children. Section 55 of the Borders, Citizenship and Immigration Act 2009 places a duty on the Secretary of State to safeguard and promote the welfare or best interest of children in the UK; Clause 14 of the Bill makes specific provision for it when the best interests of the child mean that the public interest does not require removal. The Bill does not change or undermine the Section 55 duty, which requires the Home Office to have regard to the need to safeguard and promote the welfare of children who are in the UK. The children duty continues to apply to all cases involving children in the UK. I hope that reassures noble Lords. Children in care are not subject to the NHS treatment charges. The Bill does not change that, and there will be an exemption from the surcharge for these children and other vulnerable groups. I will be providing more detail on the exemptions in time for consideration in Committee.
We will also address some other notions about access to childhood immunisation and other public health issues. I want to reassure noble Lords on that point, and I am sure I will be able to do so.
On the appeals measures in the Bill, we want to see faster, better decisions being made in the first place by the Home Office. All noble Lords would agree that that is a desirable outcome. The Home Secretary has made great strides in this area with her reform of the former UK Border Agency. The customer service that applicants receive has improved, and is improving further. We are not complacent, but the administrative review approach to be introduced is not novel; it is used for overseas visa applications, for example. Last year, 20% of requests resulted in the reversal of the original decision, so it does work. There is a proper scrutiny of the process, and 90% of requests were dealt with in less than 28 days.
Lord Avebury
My Lords, does the Minister realise that the figure he has just given is a cause of worry—that 20% of visa applications from overseas were found to have been successful by the administrative review process that now takes place, but formerly, when they had the right of appeal to the First-tier Tribunal, 36% of them were successful? Something is wrong with the figures there.
Lord Taylor of Holbeach
I do not think that there is, my Lords. My noble friend misunderstands the degree to which the appeal process has tended to be used to consider new evidence and new material that has been produced by applicants, which could be dealt with through an administrative process much more efficiently that would avoid the late delivery of papers and documentation, which has complicated many cases and prolonged their proper consideration.
The courts will still play an important role in cases that engage fundamental rights. I assure noble Lords on that. However, if an applicant does not qualify and their application is refused, an appeal should not be a way of prolonging their stay in the United Kingdom for months and, as noble Lords will know, in some cases for years. Many noble Lords have cited statistics on allowed appeals. My noble friend Lord Avebury did so, along with the noble Baroness, Lady Smith, the right reverend Prelate the Bishop of Leicester, the noble Earl, Lord Sandwich, and my noble friend Lady Manzoor, who cited that as evidence of poor decision-making on the part of the Home Office. We believe that just over half the appeals are allowed because of casework error, and administrative review will resolve that. After casework errors, most appeals succeed on Article 8 grounds. When someone believes that they should be allowed to stay in the UK on human rights grounds, they should make a claim on that basis to the Secretary of State. Refusal of that claim will give a right of appeal protected by this Bill. We also need to keep the appeal statistics in perspective. Some 89% of applications from students and workers seeking to extend their stay in 2012 were granted rather than refused.
The evil of statelessness is well understood and that is why, in the shadow of the two world wars of the 20th century, so much work was done to reduce it. The noble Baroness, Lady Kennedy of The Shaws, made that clear. We have heard impassioned contributions from her as well as from the noble Lords, Lord Ahmed and Lord Rosser, on that subject. The proposal in the Bill on deprivation of citizenship is an important measure, one that we anticipate will be used in very few cases but which we consider to be necessary to protect the vital interests of the United Kingdom. The measure is very tightly drafted; it falls within the scope of our declaration under the UN Convention on the Reduction of Statelessness and goes no further. Where the power will be used is in the anticipation that the majority of persons concerned can acquire another nationality. The Bill will return our legislation in this area to the position that the United Kingdom held as recently as 2003. There are safeguards, and I know these will be further examined by the House in due course.
Anti-social Behaviour, Crime and Policing Bill
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Lord Lloyd of Berwick (CB)
My Lords, perhaps I could just have a brief word on Amendments 93A and 93B. There has been much discussion over the years as to whether the right to stop under Schedule 7 should be available only on reasonable suspicion. I am glad that the amendment now before the House does not go that far. The arguments in favour of and against the power to stop without reasonable suspicion are all very well set out in the excellent recent report of David Anderson, the reviewer. Unfortunately, that particular question was not included in the public consultation which took place in 2011. My view has always been in favour of the power to stop without reasonable suspicion. There is no real analogy with the power to stop under Section 44 of the Terrorism Act. But the power to detain—that is, the power to detain under paragraph 6(1)(b)—seems to me altogether different.
By the time that power is exercised, the person in question will have been questioned for up to an hour. All the benefits of the power to stop without suspicion, which I strongly believe in, particularly the deterrent effect of that power, will by then have accrued. Moreover, the examining officer will have had ample time during that hour to explore whether there are grounds for reasonable suspicion. The balance of arguments seems therefore to shift decisively in favour of reasonable suspicion being the test at that stage. For that reason, I support the amendment.
Perhaps I may say in passing how glad I am that the maximum period of detention has been reduced from 24 hours, as it was when I was considering these matters many years ago, to the six hours which is now proposed. That seems to me altogether admirable, as are the other amendments put forward by the Government.
Lord Avebury (LD)
My Lords, I also want to add a word in support of the amendment which was moved so comprehensively and powerfully by the noble Lord, Lord Pannick. I am disappointed that the Minister has not had time to make any observations about the two cases that I cited at an earlier stage. The first was where a distinguished imam was stopped at Heathrow Airport, made to give a DNA sample and fingerprints and detained for some time. It took me 15 months to get the DNA sample removed and his name expunged from the records. The second case was of a gentleman who was stopped three times within the space of months, indicating, to my serious concern, that there must exist a blacklist of people who are to be stopped when they pass through airports or sea ports. That is a very serious development on which I had hoped the Minister would be able to make some observations by now.
Amendment 94ZA in my name would delete the whole of new paragraph 11A from Schedule 7 to the Terrorism Act. That paragraph covers the power to take possession of anything that is found when a person is examined or searched at a port of entry, including not only electronic materials but papers, photographs, videos or audio cassettes, and to keep a copy of that material for as long as it is considered necessary for the purpose of determining whether a person falls within Section 40(1)(b); that is, that he is or has been concerned in the commission, preparation or instigation of acts of terrorism. It is clear that the vast majority of people who are held at the ports of entry have nothing to do with terrorism whatever. When this matter was discussed on 11 December, the Minister quoted the observation of the independent reviewer of terrorism legislation that,
“‘it is of vital importance that the copying and retention of data from mobile phones and other devices should be provided for by a law that is clear, accessible and foreseeable’”.—[Official Report, 11/12/13; col. 813.]
However, that statement was not the whole story, as the Minister knows, and it was a little disingenuous of him to omit the rest of Mr Anderson’s comments in his evidence to the Home Affairs Select Committee on 20 November. He recommended that the power to copy and retain data from electronic devices should be exercisable only if a senior officer was satisfied that there were grounds for suspecting that the person appeared to be concerned in the commission, preparation or instigation of acts of terrorism. Mr Anderson went on to compare the indefinite retention of those data with the period of 48 hours that applies to the retention of documents copied under reasonable suspicion powers such as Section 43 of, and Schedule 5 to, the Terrorism Act 2000. He did say that electronic data can be held for very long periods under the management of police information regime, a practice that had recently been criticised by the courts and which is in marked contrast to the rules and guidance that exist under the Protection of Freedoms Act 2012. There should be some consistency between these different regimes while allowing a margin of appreciation in cases where there is a reasonable suspicion of terrorism.
Anti-social Behaviour, Crime and Policing Bill
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Lord Taylor of Holbeach
My Lords, when we debated this issue on 4 December, we agreed that, because smoking is largely an addiction taken up during childhood or adolescence, reducing the availability of tobacco to young people is important if we are to succeed in reducing overall smoking uptake. This new clause seeks to create a new criminal offence of an adult purchasing, or attempting to purchase, tobacco products on behalf of a child or young person under the age of 18. This act is commonly known by the phrase, “proxy purchasing”.
While smoking prevalence among young people has declined considerably in recent years, there are still each year around 300,000 young people in England under the age of 16 who try smoking for the first time. As a starting point, we must continue to take action to encourage adults to quit smoking. If smoking is seen by young people as a normal part of everyday life, they are much more likely to become smokers themselves. The Government’s Tobacco Control Plan for England is clear that, to promote health and well-being, we will work to encourage communities to reshape social norms, so that tobacco becomes less desirable, less acceptable and less accessible. We aim to stop the perpetuation of smoking from one generation to the next.
We need to think carefully about whether creating a proxy purchase offence would have an impact on how accessible tobacco is to children and young people, and whether it would have a meaningful impact on reducing smoking rates among young people. Obtaining cigarettes from retailers is just one of many avenues by which young people access tobacco. We know that children and young people obtain their cigarettes from a wide range of sources. Some young people take tobacco from their parents, from other family members or from older friends. In such circumstances, no proxy purchase has occurred. Introducing a new proxy purchase offence would not tackle that particular way of getting tobacco.
I understand that introducing a proxy purchase offence for tobacco is supported by some retailer organisations, including the Association of Convenience Stores and the National Federation of Retail Newsagents. Let me be clear that I recognise the important role played by retailers in ensuring that tobacco products are sold in accordance with the existing age-of-sale legislation. I also want to recognise the important work that retailer organisations have played in recent years to support their members in meeting age-of-sale requirements.
I realise the difficulties that some retailers face, and I understand why some feel that it should be an offence to buy tobacco on behalf of under-18s. I also understand that the creation of a proxy purchasing offence has the support of the tobacco industry—as the noble Lord, Lord Faulkner, said. However, I am sure that noble Lords will agree that the creation of effective and practicable legislation should be informed by evidence. In the area of proxy purchasing, the Government’s current view is that we want to see evidence that a proxy purchase offence would be effective both in reducing young people’s access to tobacco and in having a deterrent effect on those adults who are prepared to buy cigarettes on behalf of children and young people.
In fact, I am concerned that some of the evidence that is currently available suggests that creating a proxy purchasing offence would have only limited benefit. For example, a Scottish study published in August 2013 looked at how young Scottish smokers living in disadvantaged communities obtained their cigarettes. The study concluded that the introduction of a proxy purchasing offence in Scotland had had little discernible impact.
Nevertheless, that is not to say that evidence does not exist, and I encourage those who support this amendment to provide evidence of the likely public health benefits of creating a proxy purchasing offence to the Department of Health for further consideration. Proxy purchasing of tobacco is an area that the Department of Health is keeping under review, and any further evidence that is provided will be carefully considered. I assure noble Lords that I will draw the attention of my noble friend Lord Howe to the debate we are having on the subject this afternoon.
As the noble Lord, Lord Rosser, said, those in support of a proxy purchase offence point to Scotland, where the offence was introduced in April 2011. While I understand that a light-touch approach has been taken on enforcement and that the legislation has been in place only for a few years, I note that only one fixed penalty notice has been imposed since the offence was introduced, and that there have been no convictions. Furthermore, whether the legislation has had any deterrent effect is also not clear.
The statistics for the similar offence of the proxy purchase of alcohol show that convictions are few and far between in that area, too, in no small part because of the burden of proof required. Furthermore, the alcohol offence includes a defence that the purchaser had no reason to suspect that the individual they bought the alcohol for was under 18. This amendment does not address that point.
Whether local authorities want the creation of a proxy purchasing offence is not at all clear at the moment. After all, they rather than the police would be responsible for enforcement. The Minister responsible for public health made it clear during a debate on this issue in the House of Commons in October that the Government would be happy to hear the views of local authorities on the potential for effective enforcement, or to hear of good examples of existing local measures to reduce access to tobacco by young people. I also call on those in the public health community to provide this sort of evidence for the creation of a proxy purchasing offence. I want to be clear that we are not rejecting the creation of a proxy purchasing offence outright, but we need to give the matter further consideration.
While we understand the views of retailers and the tobacco industry on proxy purchasing, the Department of Health will continue to work with local authorities and the public health community to understand their views. I want to reassure your Lordships that the Department of Health will also keep under review relevant evidence and experience from elsewhere. I again encourage those with evidence to make it available; I cannot reiterate that enough.
Lord Avebury (LD)
My Lords, if the evidence is supplied, how will the Government deal with it? If we do not agree the amendment, the Minister would have to wait until further primary legislation was brought forward. Would the Government consider implementing a clause of this kind by order rather than placing it in the Bill?
Lord Taylor of Holbeach
I think that I can answer that best by saying that if the evidence were provided and the Government were persuaded that creating this offence was a practical and effective way of dealing with a policy issue that I am sure all noble Lords in the Chamber agree with, they would wish to see it introduced through primary legislation. However, I am not in a position to be definitive in my answer, and I think that my noble friend will understand the reasons for that. I can assure noble Lords that we are committed to reducing the availability of tobacco to children and young people. However, our actions must be guided by evidence and effectiveness. On that basis, I hope that the noble Lord, Lord Rosser, will be prepared to withdraw his amendment.