Immigration Bill
Lord Bates Excerpts(8 years, 8 months ago)
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The Minister of State, Home Office (Lord Bates) (Con)
My Lords, I thank the noble Lords for enabling this debate. We have had another passionate debate about refugee family reunion, as we had in Committee and, of course, as we had on the previous group of amendments. It is a central part of the UK’s asylum policy and of our approach to the collective effort needed across Europe and beyond to manage the consequences of the conflict in Syria and elsewhere as well as we can. We recognise that families may be separated due to conflict and persecution and the speed and manner in which asylum seekers often flee their country. Of course, we understand the motivation of those in the UK who want to be reunited with their extended family members.
We already have several ways in which a family can be reunited in the UK, including existing resettlement schemes, so we are not persuaded of the need for another resettlement scheme. First, our refugee family reunion policy allows immediate family members of those granted protection here, who were part of the family before the sponsor fled their country, to reunite in the UK. This reflects our obligations, to which the noble Baroness referred, under the refugee convention. We also work closely with the UNHCR to resettle families together under the Syrian resettlement scheme, which will benefit 20,000 of the most vulnerable people. Under this scheme, family reunification is one of several vulnerability criteria used by the UNHCR, meaning that those with family links to the UK are among those prioritised for resettlement. On 28 January, the Government announced that we will work with the UNHCR on a new scheme to resettle unaccompanied children from around Syria and conflict areas where it is in the children’s best interests to do so.
In addition, British citizens and refugees in the UK can sponsor family members who themselves are recognised refugees under our mandate resettlement scheme. Under our refugee family reunion policy, we have reunited many refugees with their immediate family and will continue to do so. We have granted more than 21,000 family reunion visas in the last five years, from 2011 to 2015. That is not a small number and it is likely to increase in line with the numbers of recognised refugees in the UK. That is an essential but also a responsible and sustainable part of our overall asylum policy and our contribution to supporting those affected by the conflict in Syria and elsewhere.
Alongside these provisions, the Immigration Rules enable British citizens and persons settled in the UK to sponsor their spouse or partner and children under 18 to join them here, where they make the appropriate entry clearance application and meet the relevant criteria. This reflects our obligations under Article 8 of the European Convention on Human Rights. The family rules also cover those with refugee leave or humanitarian protection status to sponsor a spouse or partner with whom they formed a relationship after they fled their country of origin. Where an application fails to meet the requirements of the rules, our policy requires consideration of exceptional circumstances or compassionate factors for granting a visa outside the rules. This can include reasons why extended family members should join a refugee here. This is an important addition and I give a commitment today that we will review the policy guidance rigorously to make sure that it is clear for caseworkers that this includes some of the exceptional cases that have been highlighted here.
The noble Lord, Lord Alton, mentioned that he has had some case studies from the British Red Cross. We would be very interested to receive those and to look at them. This policy is already more generous, as has been mentioned, than our international obligations require and than many other countries provide. Some EU countries require up to two years’ lawful residence before an individual becomes eligible to sponsor family members, and impose time limits on how soon family members must apply. There are indications that some EU countries are moving towards more, not less, stringent requirements in this regard, because they understand the impact this is likely to have on where someone chooses to claim asylum.
The noble Lord, Lord Hylton, and others made a powerful case based on compassion. It is right that such arguments should weigh heavily in this debate, but the Government are charged with the responsibility of maintaining the viability and effectiveness of the UK’s asylum system as a whole. We must consider the interests of genuine claimants relying on us to decide their protection claim in a correct and timely fashion. It is because of that principle that the Dublin regulations make specific provision to unite children who claim asylum in another member state with their parents or other relatives, where they can take care of the child and it is in the child’s best interests to bring them together. It is clearly in the best interests of asylum seekers, children or adults, to claim asylum in the first safe country they reach so that they can be provided with assistance there and do not seek to travel further across Europe.
Our policy prevents children with refugee status sponsoring their parents to join them. It does so for very good reasons. We simply cannot create perverse incentives for children to be encouraged or even forced by their families or others to risk hazardous journeys to the UK. As Save the Children points out, many children are feared to have fallen victim to human traffickers and people smugglers. These criminals will seek to exploit the very compassion that lies behind the proposed amendment, and allowing child refugees to sponsor relatives would play right into the hands of the criminal gangs and undermine the safeguarding responsibilities that we seek to uphold. We must not create a situation that encourages children to risk hazardous journeys to and across Europe, which have already, tragically, cost so many lives.
Turning to some of the questions I was asked during the debate, the noble Lords, Lord Hylton, and Lord Alton, asked whether the current process for applying for family reunion is too complex. We are currently reviewing the process for dealing with family reunion applications, in consultation with the Ministry of Justice and the Foreign and Commonwealth Office. We have already accepted recommendations made by the British Red Cross in its report, published on 9 July 2015, Not So Straightforward: The Need for Qualified Legal Support in Refugee Family Reunion, on simplifying the application form and providing consistent, accessible guidance. We are improving our guidance to caseworkers and redesigning the application form to ensure that applicants better understand the process behind it.
Questions were asked whether the Dublin arrangements were working. The UK has fully implemented the Dublin III regulation and we think that the arrangements are the right way to provide consistency of approach across the whole EU in dealing with asylum applications. The European countries in which they arrive have a duty to provide adequate protection to those in their territory. If they claim asylum in another EU country and have close family already in the UK, the family reunion provisions of the EU Dublin regulation provide a route for asylum seekers to join them.
We recognise that some European countries face particular pressures on their asylum and border systems, which is why the UK has been active in providing practical operational support, bilaterally and via the EU and its agencies, to countries such as Greece, Italy and Bulgaria. This support includes more than 1,000 days of asylum experts deployed as part of the European Asylum Support Office.
The noble Lord, Lord Alton, asked why British citizens cannot sponsor a family member under the family reunion criteria. Only those with refugee or humanitarian protection status are entitled to sponsor immediate family members under family reunion provisions, which means that they do not need to meet the same financial or language requirements as those applying under the family rules. This policy recognises that refugees may need more time to integrate into society following the grant of refugee status. Family members of British citizens can apply for entry clearance to come to the UK under the family Immigration Rules. Where an entry clearance application does not meet the requirements of the Immigration Rules, the entry clearance officer must consider whether there are exceptional circumstances or compassionate reasons, such as I have previously referred to, to justify granting entry clearance outside the rules.
The right reverend Prelate the Bishop of Norwich talked about family reunion. We are certainly of one mind in saying that families are crucial and that, except in exceptional circumstances, the children’s best interest is always to remain with the family. That is one of the reasons why the UNHCR, which very much concurs with that view, proposed that family members would do better to seek refuge in the region within their family rather than one member of that family coming to another country. Therefore, the policy that we have developed for the Syrian vulnerable person resettlement programme is that of bringing families together. I would have thought that would be widely welcomed, because we do not just look after one person but bring the whole family together. Of course, that very much helps them to integrate into the local community and gives them that support network. Equally valuable is encouraging children to be reunited with their families in the region, if that is practical. We work with the UNHCR in seeking to do that.
In answer to a specific question about why we treat children differently from adults, effectively the policy is determined on the basis of dependency. A child is obviously dependent on their parents, so that drives the policy that says that they ought to be reunited. Of course, the parents are not necessarily dependent on the child in the same way. That is the reason for the difference in approach. The amendment proposes to draw that boundary even wider than parents being able to bring in their children. It could allow a child who arrives in the UK to bring in probably not grandchildren but certainly parents, a spouse, civil or non-marital partners and siblings, which is a significant widening of the scheme.
We discussed what other assistance the UK has offered to Syria in previous debates, and I will not go through it at length. Suffice to say that we have on record the very significant financial contribution that we have made and the comparative effectiveness of our resettlement programme in having brought 1,000 people to this country, whereas the European resettlement programme has managed to resettle only half that number among 27 countries in the European Union.
The noble Lord, Lord Rosser, asked whether there was a managed resettlement system for refugees. An avenue is already available under the existing resettlement programmes mandate and the Syrian resettlement scheme. Allowing child refugees to sponsor relatives would play right into the hands of the criminal gangs and undermine the safeguarding responsibilities that we are seeking to uphold. We must not create a situation that encourages children to risk hazardous journeys to and across Europe. Equally, we already have resettlement schemes providing a route to the UK for the most vulnerable of those affected by conflict. These are, by design, focused on offering resettlement from regions in conflict instead of from the safety of other European countries, and that has to be the right approach. We do not, alas, have infinite resources and public services, so we must strike the right balance, and we have done so, with the particular proviso in relation to the Red Cross that we have considered very carefully the points raised about the operation of the scheme and whether there is a need for a better application process and clearer understanding. We are working with the Ministry of Justice, the Foreign and Commonwealth Office, the British Red Cross and others to develop that. In the light of those changes and the reasons I have given, I ask noble Lords to consider withdrawing the amendment.
Baroness Hamwee
I may have missed it, but the noble Lord, Lord Hylton, asked the Minister whether he had an update on the figures for grants outside the rules on the basis of exceptional, compelling, compassionate circumstances. The year before last it was 12. Can the Minister tell us the updated figure?
Lord Bates
I do not have those updated numbers, but I will be happy to write to the noble Baroness. I mentioned a figure of 21,000, but that referred to the whole group of family reunion cases that came to the UK between 2011 and 2015.
Lord Hylton
My Lords, I am grateful to the Minister. He gave me one more small crumb of comfort when he spoke about a government review of cases and the discretion that is available to entry clearance officers. On the review, I ask Members of your Lordships’ House, and of the other place, to send into the Home Office the maximum number of difficult, hard and compassionate cases. I hope that the organisations outside this House that have supported this amendment, and that tabled by my noble friend, will do the same. I hope that entry clearance officers will get clear instructions to consider the best interests of any children they may come across who are applying through them.
I beg leave to withdraw Amendment 120.
Lord Bates
“( ) In that sub-paragraph, in paragraph (h) for “or 36” substitute “, 35A or 35B”.”
Baroness Hamwee
My Lords, I have added my name to these amendments and I was planning to say nothing more than that I agree with everything the three previous speakers have said. However, the point made by the noble Baroness on definition seems to need clarifying. When the Minister has considered that, if there seems to be any doubt that has to be resolved in correspondence, it should be resolved in the Bill at Third Reading. If there is a problem, that is where the resolution needs to be.
Lord Bates
My Lords, I thank the noble Earl, Lord Listowel, for moving the amendment. He is one of the Members of this House whom we all greatly admire. He focuses on a particular area that he cares passionately about—namely children, particularly children in care, and seeks to introduce their voice into all pieces of legislation that go through your Lordships’ House. That is to his credit and we appreciate him in that spirit. My officials and I were grateful for the opportunity to meet with the noble Earl about his amendment, and I know that James Brokenshire, the Immigration Minister, was grateful to have the meeting with the Alliance for Children in Care and Care Leavers on 8 March.
The noble Baroness, Lady Lister, invited me to write another of my famous letters. I was particularly proud of the one that we wrote on 11 March following the meetings and the consultation. Not only did we listen to the concerns that were raised, but on page 4 we went into some detail about how we would respond to those concerns. We said that we would look at how provision should be geared to what the local authority is satisfied is needed to support a person through their assisted voluntary return or forced departure. Let us just be clear for those who may not have followed all the aspects of this issue. We are talking about people in local authority care who, after various appeals for leave to remain, are deemed to have no legal right to be here, and furthermore—this is very important from the perspective of the noble Baroness and the right reverend Prelate—there is no barrier preventing their return. These are important provisions to bear in mind in relation to the group that we are talking about.
I emphasise that the great majority of care leavers are not affected by the changes in Schedule 11, including those with refugee status, leave to remain or an outstanding asylum claim or appeal. They will all remain subject to the Children Act framework. Under new paragraph 7B of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, this also includes those who have been refused asylum but have lodged further submissions on protection grounds that remain outstanding, or who have been granted permission to apply for a judicial review in relation to their asylum claim.
Under new paragraph 2A of Schedule 3, the Children Act framework will also continue to cover those awaiting the outcome of their first application or appeal to regularise their immigration status where, for example, they are a victim of trafficking. This means that the young adults affected by the changes in Schedule 11 will be those who have applied for leave to remain here on asylum or other grounds but have been refused, and who the courts have agreed do not need our protection, have no lawful basis to be here and should now leave the UK.
I shall now deal with the points referred to by the noble Earl and the noble Baroness. It is possible for individual cases supported by local authorities under the new 2002 Act framework to continue in a foster placement or to be supported by a personal adviser where the local authority considers this to be appropriate. That is an important safeguard.
The noble Baronesses, Lady Lister and Lady Hamwee, asked about the meaning of “unaccompanied” in Clause 64(10), concerning the transfer of unaccompanied asylum-seeking children. We understand the concern to ensure that all relevant cases are properly safeguarded, including victims of trafficking. We will set out in writing how we intend “unaccompanied” to be defined and how it will operate. My notes do not say when that will be, but it will be done by Third Reading. That is an important point and I am grateful that it has been raised.
The noble Baroness, Lady Lister, asked about care leavers being dispersed across the country. These cases will qualify for Home Office support under new Section 95A only where they are failed asylum seekers facing a genuine obstacle to departure from the UK. It will be possible in these cases for the person to remain in local authority accommodation funded by the Home Office—for example, while they await a travel document from their embassy. We will develop appropriate guidance with the Department for Education on those cases. I am sure that the views of the organisations that the noble Baroness referred to will be valuable in formulating that guidance, and would be appreciated.
The Earl of Listowel
My Lords, I am most grateful to the Minister for his encouraging reply. I should have acknowledged the meeting on 11 March with James Brokenshire. In particular, his offer for ongoing discussion with the Refugee Children’s Consortium is very reassuring. There is just one matter that I would like to clarify with the Minister. He said that this would apply only where there are no barriers preventing the return of these young people. That would include those young people who are here and who one would wish to return to their country but, for various reasons, they cannot be returned. For children who cannot be returned to their home country, for whatever reason that may be, would that be considered a barrier?
Lord Bates
I am happy to come back on that. Where it is not safe for the person to be returned because there is a real fear of danger, persecution or irreversible harm—I think “real” is a legal term in this context—we would not be able to return them in those circumstances. Basically, these are circumstances where there is no barrier; where the courts have looked at the case, and at the country to which the person would be returned, and adjudicated that they do not believe the person would be at risk and there is no reason for them to continue to stay in the UK. That is the definition that applies there.
The Earl of Listowel
I thank the Minister for that reply. Casting back to past Immigration Bills, it is not necessarily about the issue of safety but the right kind of paperwork. Often, if there seems to be some obstacle to returning a person to their home country, it is bureaucratic in nature. However, it does mean that they have to remain for some time here. I need to check my facts, but I look forward to the ongoing discussion with the Minister on these issues. I am very grateful to him for the pains that he has taken over this matter. I am very reassured by his response and look forward to clarification of this definition at Third Reading. I beg leave to withdraw the amendment.
Lord Bates
Lord Bates
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Lord Bates
“(1A) A statutory instrument containing (whether alone or with other provision) regulations under paragraph 28(6) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Lord Bates
My Lords, I can be brief. These are three relatively small amendments, responding to the report from the Delegated Powers and Regulatory Reform Committee, for which we are grateful. I am satisfied that Amendments 141 to 143, which stand in my name, fully respond to the concerns of the committee, which recommended that the affirmative procedure should apply to the power conferred by new paragraph 28(6) of Schedule 2 to the Immigration Act 1971, inserted by paragraph 1 of Schedule 12 to the Bill.
I am also satisfied that the amended provisions will still achieve the policy objective of enabling the Secretary of State to impose financial penalties on owners and agents of aircraft where they fail to take reasonable steps to secure that passengers are embarked or disembarked only within designated control areas at airports. This accords with the committee’s long-standing approach that instruments that specify a fine or other penalty—or a maximum fine or penalty—that is not itself subject to an upper limit set out in the enabling Act should require the affirmative procedure.
I will also move Amendments 146, 149 and 150 in this group, which make it clearer that regulations under a provision that attracts the affirmative procedure may be combined with other regulations, but that, if this happens, the affirmative procedure applies. I beg to move.
Lord Bates
Lord Green of Deddington
My Lords, I very much agree with the thrust of the contribution of the noble Lord, Lord Wallace of Saltaire. I think he was absolutely right.
Lord Bates
My Lords, I thank the noble Lord, Lord Wallace, for moving the amendment. We have to remember that what we are seeking to do here is to introduce a levy in order to bring about some behavioural change in the way that people think about recruitment. For far too long it has been an automatic thought to recruit people from outside the European Economic Area without giving proper attention to whether those skills are there in the resident labour market. The immigration skills charge is seeking to provide some funding, first, to see if it causes the organisation to stop and think about whether there are alternatives from the resident labour market and, secondly, to provide some additional support through the funds raised by the levy.
Given the hour—and of course the noble Lord is familiar with the points I made in Committee—I am happy to put further thoughts in writing to him if that would be helpful. I will just deal with some of the particular points that he and other noble Lords raised.
There are exemptions to the charge. An exemption will be applied to migrants undertaking occupations skilled to PhD level. I would have thought that the noble Lord, Lord Renfrew, in terms of academia—
Lord Wallace of Saltaire
My Lords, I am very interested to hear that. It was suggested to me in an email I had the other day from one of the groups that the department has been consulting that this had been floated but had not yet in any sense been agreed. Can the Minister guide me to where I could discover the status of such a proposal?
Lord Bates
In that case, I will return to my speech and go through it in context. This is something additional. The Government have considered advice from the Migration Advisory Committee and additional views from employers. Following careful consideration, I am able to announce that the immigration skills charge of £1,000 per migrant per year will be paid by employers who sponsor tier 2 migrants. The charge will be collected by the Home Office.
A reduced rate of £364 per annum will apply to small businesses and charities as defined in the Immigration Rules. This is consistent with other lower fees applied to these organisations. In addition, an exemption will be applied to migrants undertaking occupations skilled to PhD level. A list of these occupations is included in the Immigration and Nationality (Fees) Regulations. They are primarily science and research roles. There will also be an exemption for graduates who switch from tier 4 to tier 2 in order to take up a position in the UK. These two exemptions build on the Government’s strong post-study work offer for international students and are intended to protect the UK’s position as a centre of excellence for education and research.
The Department for Business, Innovation and Skills has confirmed that it will continue to consult with stakeholders. Indeed, when the Migration Advisory Committee was asked to look at this measure, it consulted with a wide range of groups, including the Russell Group of universities, of which of course Cambridge is an eminent member. The Department for Business, Innovation and Skills is continuing to engage with stakeholders, including devolved Administrations and other government departments, on how best to introduce these skills.
On the proposition that the legislation mandates an independent review one year from the date that the implementing regulations come into force, the Government believe in consulting those affected by proposed changes, and we have done that. As is good practice with any new measure, the Government will review the operation and impact of the immigration skills charge after a suitable period of operation. In addition, the Migration Advisory Committee will continue to provide independent advice to the Government on the UK’s migration policy.
The skills charge will help address issues that I know are of concern to many of us here: net migration and skills shortages. However, I hope that a commitment to a reduced rate and the exemptions I have described, together with a commitment to publish the draft regulations setting out the detail of the charge, will assure the noble Baroness and the noble Lord of the Government’s commitment to implement the charge in a balanced way.
The noble Lord, who has a distinguished academic background himself, rightly talks about the impact of this on universities. We are very conscious of our leading role in this area and will of course continue to engage. But it has to be remembered that, in the international competitive marketplace, other countries such as the United States, Australia and Singapore, all of which have both highly sophisticated labour markets and distinguished academic institutions, operate a similar levy. Of course, when the Migration Advisory Committee looked at this, it looked at international examples before agreeing to set the rate.
I hope the noble Lord will accept this in a spirit of generosity. In his Amendment 151A, he raises a point about the timing and when Clause 80 will come into effect, which the noble Baroness, Lady Hamwee, also mentioned. I hear the points that the noble Lord makes and I give him an undertaking that we will reflect on this and come back at Third Reading with, I hope, something which addresses the concerns that he expressed. I hope, in the light of that commitment, that the noble Lord may feel able to withdraw his amendment at this stage.
Lord Wallace of Saltaire
My Lords, the Minister has been able to provide some reassurance, but not yet very much, and I would like to ask for a great deal more information. I have been able to discover a little about the levy in some other countries—I was not aware that the United States had a levy on skilled workers, let alone teachers at that level—and I would welcome, as I think would all noble Lords interested in this area, some more comparative information on this.
We have touched on the university question, which, given the strength of the academic lobby in this Chamber, is something which a large number of noble Lords are likely to be concerned about—although not just them. As I think I said to the noble Lord on an earlier occasion, I have talked to several head teachers in the last three months who have said to me that they are scouring the world for maths and computer science teachers. They cannot find them in Britain. The Government’s response to that has to be either to say that for the next two years they will exempt from any immigration skills charge people who are going to help build up the skills within the younger workforce in this country in those key areas or to provide a crash course for training people and encouraging them into those professions—or possibly both. The same is true of nursing. We need a joined-up government approach and to expand rapidly the numbers of nurses in training in this country. Otherwise, we will go on importing large numbers of people from the Philippines, South Africa and elsewhere.
I am only half persuaded that the Government yet know what they are doing. An active labour market policy and signals to the private sector seem to me to be very important. But I look forward to hearing further from the noble Lord—perhaps he would like to arrange an all-Peers meeting before we get to Third Reading so that we can discuss some of these things in detail with those around the Chamber who are interested in it. We need a lot more information before we can be confident of what the Government are saying. On that basis—
Lord Bates
The picture I am trying to paint for the noble Lord is that we have listened very carefully, including to the advice from the Migration Advisory Committee. BIS continues to consult and engage with stakeholders on this. On the particular point he raises about teachers of mathematics, schools do not just have to scour Britain but can seek maths teachers from the whole European Economic Area market. They can also recruit them from among people who have graduated from tier 4, and we have a PhD level which, to give a little more information, covers chemical scientists, biological scientists, biochemists, physical scientists, social and humanity scientists and natural and social science professionals not elsewhere classified, including researchers in research organisations other than universities.
My point is that we have done quite a bit. We have listened to the Migration Advisory Committee, we have consulted and I have said that I will give further consideration as to when they are introduced. On the other points which the noble Lord raises, if he really feels strongly about them, our position is that we have made our case strongly and that he should test the opinion of the House.
Lord Bates
With the leave of the House, I will just say that I have recounted our response to the Migration Advisory Committee. We have listened to what it recommended on this. I said that we were looking at phasing it, which is in the noble Lord’s Amendment 151A. On the other amendments, we believe that the policy is very important. We will not change our position between now and Third Reading and, if the noble Lord wishes to test the opinion of the House, he should.
Lord Wallace of Saltaire
My Lords, a quarter to one in the morning is not the ideal time to test the opinion of the House. The Labour Benches appear to be almost entirely empty—they have abandoned their position. On that basis, I will not test the opinion of the House at this stage.
Lord Bates
I should just say for the benefit of the record that I notice on the government Benches a significant number of colleagues here present and very interested to listen to this debate and the Government’s position. The fact that the noble Lord’s Benches and the opposition Benches may be a bit thin at this hour of the morning is not the point; a lot of people are here who are interested in this debate.
Lord Wallace of Saltaire
There is a strong argument that the way to make legislation on important issues is not in the early hours of the morning. However, on the basis that will have extensive further information and further consultation from the Government between now and Third Reading, I will withdraw my amendment.
Lord Bates
“Duty regarding the welfare of children
For the avoidance of doubt, this Act does not limit any duty imposed on the Secretary of State or any person by section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding welfare of children).”
Lord Bates
My Lords, I thank the noble Baroness, Lady Lister, for her Amendment 145A. It is important that the Home Office is able to run a sustainable immigration and nationality system in a way that minimises the burden on the taxpayer. When the figures are spoken about in terms of the amount of money that it costs, that has to be seen in the context of our commitment to achieve a self-funded border, immigration and citizenship system by 2019-20. That raises the question: when people are using our border service, our immigration system or our citizenship, why should the resident taxpayer population be the ones who have to pay for the benefit that is falling to the individuals making the applications?
The first part of the amendment would restrict our ability in setting a fee to take account of any factor other than cost. That would cost the Home Office at least £29 million per annum over the next spending review period, mainly from lost income on current plans. Such a reduction in fee funding would have a serious detrimental effect on the department’s ability to operate an effective border and immigration system.
We recognise that families normally bear the cost for applications made on behalf of children. As a result, the Home Office already sets a fee for a child to register as a British citizen at a rate £300 lower than the overall cost of adult citizenship applications.
The second part of the amendment relates to those children receiving local authority assistance. Unaccompanied children in the UK generally seek leave to remain on protection grounds, for which no fee is charged. For a child in the care of the local authority, the Home Office waives the application fee for leave to remain on the grounds for settlement. This preserves the person’s ability to reside in the UK until they can afford to apply for citizenship.
The final part of the amendment, which would introduce a very broad provision to waive application fees, taking into account the means of applicants or parents, would be very difficult to implement in practice. It would be highly likely to lead to claims from applicants simply seeking to avoid paying, rather than those who were genuinely destitute, for whom there are already alternative and appropriate remedies that ensure that convention rights are protected. For children in family groups applying for leave to remain on human rights grounds, the fee is waived where the applicant is destitute or otherwise meets the published fee-waiver policy. Taken as a whole, this policy ensures that a person’s convention rights are protected, that the value of British citizenship is recognised and that the border and immigration system is adequately sustained and funded.
Citizenship can never be an absolute right, nor is it necessary in order for a person to reside in the UK and access our public services. A person who is settled in the UK is not required to become a citizen by a certain date: they can remain here until they can meet the criteria for doing so, including payment of the required fee. Overall, on balance, we feel that the existing arrangement strikes the right balance between fairness to individuals and fairness to all applicants, as well as to the resident taxpayer population. I ask the noble Baroness to consider withdrawing her amendment.
Baroness Lister of Burtersett
My Lords, I am grateful to the noble Lord, Lord Alton, for persevering and staying up at this late hour to give me such strong support on this amendment.
I suppose I am grateful to the Minister—he did not have any option but to stay and respond—but I am very disappointed by his response. He seems to be saying that the immigration system depends on children paying this exorbitant fee to be able to carry on; that, bluntly, seems to be what he is saying. These children will become taxpayers; I find the idea that they are somehow a burden on the taxpayer terribly depressing. They have a right—I do not see why they should have to pay such fees.
I can quite see that there might be somewhere between what the amendment is calling for, which is that there cannot be anything above the cost to the Home Office, and the Government’s position, but we are talking about a difference of over £600 for a child between the cost to the Home Office and the fee. That seems to be a very large surcharge on these children to keep the wheels of the immigration system turning. It is well past my bedtime so I am not thinking very straight, but I am slightly flabbergasted by that argument. At least it is now in the open—what this has been about has been said very clearly.
I am disappointed that the Minister has not been willing to give an inch, because there is scope there for some kind of compromise between the amendment and the situation as it stands. I am also disappointed that the Government are not prepared to think about it and talk to Amnesty and the project just to see whether there might be some way of coming to some kind of agreement to make this policy slightly less harsh than it is at present. The Minister may want to say something.
Lord Bates
I will say only that, with the existing arrangements for waivers for those who are in particular need, the policy is absolutely right and we stand by it.
Baroness Lister of Burtersett
According to Amnesty, the waiver is limited, but I will have to look into that. The Minister talked about the right balance, but personally I do not think there is no balance there at all. However, I beg leave to withdraw the amendment.
Lord Bates
Lord Bates
“( ) But subsection (3) does not apply to the amendments made to the Modern Slavery Act 2015 by paragraphs 26A and 27A of Schedule 2 (for the extent of which, see the amendments to section 60 of that Act made by paragraph 26D of that Schedule).”
Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2016
Lord Bates Excerpts(8 years, 8 months ago)
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The Minister of State, Home Office (Lord Bates) (Con)
My Lords, the International Sikh Youth Federation, which I shall refer to as the ISYF, is a separatist movement committed to the creation of Khalistan, an independent Sikh state in the Punjab region of south Asia, and was established in the 1980s. The ISYF’s attacks have, in the past, included assassinations, bombings and kidnappings, mainly directed against Indian officials and Indian interests. The ISYF has been proscribed as a terrorist organisation in the UK since March 2001. The decision to proscribe it was taken after extensive consideration and in the light of a full assessment of available information, and it was approved by Parliament. It is clear that the ISYF was concerned in terrorism at that time.
Having reviewed with other countries what information is available about the current activities of the ISYF, after careful consideration the Home Secretary has concluded that there is now not sufficient evidence to support a reasonable belief that the ISYF is currently concerned in terrorism as defined by Section 3(5) of the Terrorism Act 2000. Under that section, the Home Secretary has the power to remove an organisation from the list of proscribed organisations if she believes that it no longer meets the statutory test for proscription. Accordingly, the Home Secretary has brought this order before the House and, if it is approved, it will mean that being a member of, or providing support to, this organisation will cease to be a criminal offence on the day that the order comes into force.
The decision to deproscribe the ISYF was taken after extensive consideration and in the light of a full assessment of available information. As noble Lords will appreciate, it would not be appropriate for us to discuss any specific intelligence that informed the decision-making process.
The Government do not condone any terrorist activity, and deproscription of a proscribed group should not be interpreted as condoning any previous activities of this group. The British Government were always clear that the ISYF was a brutal terrorist organisation. Groups that do not meet the threshold for proscription are not free to spread hatred, fund terrorist activity or incite violence as they please, and the police have comprehensive powers to take action against individuals under the criminal law.
We are determined to detect and disrupt all terrorist threats, whether home-grown or international. Proscription is just one tool in the considerable armoury at the disposal of the Government, the police and the Security Service to disrupt terrorist activity.
The Government continue to exercise the proscription power in a proportionate manner, in accordance with the law. We recognise that proscription potentially interferes with an individual’s rights—in particular, the rights protected by Article 10 on freedom of expression and Article 11 on freedom of association in the European Convention on Human Rights—and so should be exercised only where absolutely necessary. A decision to deproscribe is taken only after great care and consideration of a case, and it is appropriate that it must be approved by both Houses. If agreed, the order will come into force on 18 March. I beg to move.
Lord Rosser (Lab)
I thank the Minister for his explanation of the background to, and purpose of, the order. As he said, it amends the Terrorism Act 2000 by removing the International Sikh Youth Federation from the list of proscribed organisations, meaning that, if the order is passed, it will no longer be proscribed as an organisation concerned in terrorism within the meaning of Section 3(5) of the Act.
As the Minister said, the international Sikh Youth Federation was added to the list of proscribed organisations under an order in 2001. Proscription has a number of consequences. These include it becoming a criminal offence to belong to or invite support for the organisation, or to arrange a meeting in support of the organisation. It also means that the financial assets of the organisation become terrorist property and can be subject to freezing and seizure.
Under the terms of the Terrorism Act 2000, a proscribed organisation, or any person affected by the proscription of the organisation, can apply to the Secretary of State for deproscription. If the application is refused, the applicant may appeal to the Proscribed Organisations Appeal Commission. According to the Explanatory Memorandum, the Secretary of State has received such an application for the deproscription of the International Sikh Youth Federation and has now decided that there is insufficient information to conclude that the group remains concerned in terrorism.
The application was made by three members of the Sikh community in early February last year. It should have been dealt with within 90 days, but was not since the response was not made until the end of July last year. The response was to the effect that the Secretary of State still had a reasonable belief that the International Sikh Youth Federation was concerned in terrorism, but no reasons were given.
The applicants appealed on the basis that the Government had not given any reasons for the refusal to deproscribe, contrary to the rule of law, and that the ISYF was not concerned in terrorism. The Proscribed Organisations Appeal Commission directed the Home Secretary to provide reasons to support her position. However, on the day that the reasons and evidence were due, the commission was told that the Home Secretary would not now defend her decision but would lay an order for deproscription, which is what we have in front of us today.
Of course, the inevitable question that has been asked is what new information had come to light between the end of July, when the Home Secretary declined the application for deproscription, and the decision at the door of the Proscribed Organisations Appeal Commission some six months later not to defend that decision—new information that could not have been known or found out at the time of the decision at the end of July, over which the Home Secretary said there had been extensive consideration and a full assessment of the available information.
There is a feeling in some quarters that being required to provide reasons for the decision not to deproscribe may have been a not insignificant factor behind the very different decision then made by the Home Secretary to lay an order for deproscription. I have no doubt that the Minister will wish to respond to that point. Perhaps he could also say, without disclosing its nature or content, whether significant new information became available for the first time between the end of July 2015 and December 2015 which proved a key factor in reaching the very different conclusion from that reached in July: that the International Sikh Youth Federation should no longer be proscribed.
The Independent Reviewer of Terrorism Legislation has previously suggested that once an organisation has been proscribed, there should be a review of that decision within specified time limits to ensure that it continues to be justified and necessary. Since proscription is currently for an indefinite time, are the Government now looking at adopting a procedure and process along the lines suggested by the independent reviewer, and to which I have just referred?
Lord Bates
My Lords, I am grateful to the noble Lord for his questions. I will try to respond to them in the order in which they were asked.
The noble Lord’s first question was about the changes that occurred between July, when the application was considered, and December when it was about to be presented to the Proscribed Organisations Appeal Commission. Following careful consideration of the available evidence, the Home Secretary decided to maintain proscription of the group in July on the basis that she considered that the evidence demonstrated that the group remained concerned in terrorism. However, in December 2015, having further reviewed with other countries the available information about the current activities of the ISYF, after careful consideration the Home Secretary concluded that there was not sufficient evidence to support a reasonable belief that the ISYF was currently concerned in terrorism, as defined by Section 3(5) of the Act.
The Home Secretary considers various pieces of open-source material—the noble Lord asked about the nature and content of the material—when determining whether a group is engaged in terrorism, but she also considers material obtained via the intelligence agencies. Of course, as the noble Lord suggested, it would not be appropriate to discuss the specific material that informed the decision-making process, particularly details of the information reviewed and how this altered the assessment of the IYSF’s current activities. We always seek to present as much information as we can, but I cannot comment on matters relating to intelligence.
The noble Lord asked about David Anderson’s concerns. Clearly, David Anderson is a very well-respected adviser to the Government on terrorism legislation and in fact we are dealing with a lot of his recommendations in another context on other legislation. We look very closely at his proposals. David Anderson had stated that,
“the Home Secretary had … agreed to a process for deproscribing groups that no longer met the statutory test, and that a preliminary analysis had unearthed 14 groups that may be in this category”.
While it is not government policy to provide a running commentary on any proscribed organisation, I can confirm that officials did not recommend that the ISYF should be deproscribed at that time.
Under the current regime, the organisation or any person affected by proscription can submit a written application to the Home Secretary requesting that she considers whether a specified organisation should be removed from the list of proscribed organisations. We believe that addresses the noble Lord’s concern as to whether there should be a sunset clause in relation to proscription matters.
In respect of the possible impact of proscription and the points raised by the Sikh Federation in relation to visa and citizenship applications, the Home Secretary has to be satisfied that an individual seeking citizenship meets the statutory requirement for citizenship and is of good character. A range of issues is considered when determining whether an applicant meets this test and an individual’s current or former membership of a proscribed organisation may well be a factor as well as the individual’s specific activities.
The noble Lord raised an important point about the nature of the relationship with the Sikh community within the UK. This is, of course, extremely important. In relation to the point about India, I can say without hesitation that diplomatic pressure did not lead to the ban on the ISYF having been maintained since 2001. Proscription of a group can remain only if there is compelling evidence to support a reasonable belief that it is currently concerned in terrorism as required under Section 3(5) of the Act.
Regarding engagement with the Sikh community, I do not want at this stage to expand the deproscription debate into a broader one on engagement with other organisations. The focus of our discussion should be deproscription, which is quite distinct from other areas of government engagement.
The noble Lord asked whether we intended to engage with other countries. We engage with other countries in considering whether an organisation should be proscribed or deproscribed. It is an important part of the process and we will inform other countries with an interest in this deproscription of our decision.
In relation to the point about relations with the wider Sikh community, we have some distinguished members of the Sikh community in this House and of course recognise the immense contribution they make to the wider community. We hope that any misunderstanding that may have occurred in the past can be removed and that we can have a more positive relationship going forward if this deproscription has been a barrier.
I do not want to convey in any sense that we did not believe that there was just cause for the then Labour Government to proscribe this organisation in 2001. There was clear evidence then that it should be proscribed, but we have now looked at it again and arrived at a different conclusion.
Proscription is not targeted at any particular faith or social grouping but is based on clear evidence that an organisation is concerned in terrorism. It is the Home Secretary’s firm opinion that, on the basis of the available evidence, the ISYF no longer meets the statutory test for proscription and it is appropriate that it is removed from the list of proscribed organisations in accordance with the deproscription process set out in law. I thank the noble Lord for his questions and commend the order to the House.
Immigration Bill
Lord Bates Excerpts(8 years, 8 months ago)
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Lord Hylton (CB)
Before the Minister replies, can he link the request from my noble friend with Amendment 113 in the name of the noble Lord, Lord Roberts of Llandudno?
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, I thank noble Lords for this short debate. As this is a fresh part of the Bill, perhaps I may put on record that my wife is a small-scale private sector landlord. I will structure my response first by speaking to the government amendments in this group which stand in my name and then seek to devote the rest of the time, which I think will be needed, to addressing the many points which have been raised.
It is important that we place this debate in some context. We had a significant debate on this issue at Second Reading. Following that, I wrote extensively to noble Lords seeking to provide some reassurances. We revisited the issue in Committee and further letters were sent. We also had what I thought was a very productive meeting on 11 February at the Home Office to which all interested Peers were invited, and we were delighted to have with us at that point the noble Lord, Lord Best, who cannot be with us today but who co-chairs the landlords consultative panel, to guide us through some of the working. A lot of reassurances were offered then but there were some outstanding issues of concern. In that context I will be referring to a letter I sent on 7 March to my noble friend Lord Howard of Rising, a copy of which is in the Library, which provides further reassurances on certain specific points that were made. Lastly, we are bringing forward today government amendments within this group. I have set this out as context to reassure all noble Lords that the Government are listening carefully to the concerns being raised and will continue to do so as the scheme is rolled out.
As I say, the Government have listened to the concerns about the effect that these provisions could have, which is a fear of prosecution on the part of genuine landlords. Government Amendment 62 provides a further defence for landlords who, once they know that they are renting to an illegal migrant or have reasonable cause to believe that that is the case, take steps to end a tenancy within a reasonable period. The amendment also provides that the courts must have regard to any statutory guidance issued by the Secretary of State in determining whether the landlord has proved that the defence applies on the balance of probabilities. This guidance must be laid before Parliament before being issued subject to the negative resolution procedure. The guidance will provide reassurance to landlords about the sorts of steps and periods of time which the Home Office considers reasonable and unreasonable in these circumstances. I understand that the Residential Landlords Association warmly welcomes the amendment, so I hope that it offers some reassurance.
Government Amendment 64 makes a minor change to the drafting, the effect of which will mean that, where an offence has been committed, it will not serve to render the terms of any tenancy agreement invalid or unenforceable on the grounds of illegality.
Government Amendment 72 seeks to remove a provision in Clause 40 that permits the Secretary of State to amend, repeal or revoke any enactment contained in this Bill. This follows a recommendation made by the Delegated Powers and Regulatory Reform Committee, to which we wrote in response to its report, which of course the Government fully accept. I shall be moving the government amendments in due course.
I turn now to the points that were raised in the debate by my noble friends Lord Howard of Rising and Lord Cathcart. In my letter dated 7 March, I wrote as follows:
“The ‘reasonable cause to believe’ threshold is a very high one. Its inclusion in addition to the ‘knows’ threshold arguably makes it easier to successfully prosecute the landlord who is fully aware that there are illegal migrants in his or her property and deliberately turns a blind eye, or the landlord who has all the pieces at their disposal to know that he or she is renting to an illegal migrant. For a successful prosecution in such cases, the fact that the landlord is renting to a disqualified person would still have to be the only reasonable conclusion the landlord could draw from the information available to them. For example, a landlord who had undertaken all of the relevant right to rent checks in accordance with his obligations under the scheme”—
including Greek passports in the example given—
“but had no idea that he had been deceived by a good quality fraudulent document, or a landlord whose tenants had subsequently moved occupiers who were disqualified from renting into the property without his knowledge, would never satisfy the mens rea for commission of this offence”.
I hope that that offers some reassurance to my noble friends.
The noble Earl, Lord Listowel, asked about care leavers. If they have lawful status, they will have the right to rent. If not, but there are genuine obstacles to their return, permission to rent is likely to apply.
The noble Baroness, Lady Sheehan, raised a number of issues relating to prejudice. I was particularly concerned about prejudice against people with northern accents in this regard.
Baroness Sheehan
I just want to say that my good friend is now a judge, so it was not an insurmountable barrier.
Lord Bates
What a sweet prospect—a judge with a northern accent. That is a very fine example of social mobility under the modern government procedures that we have—I should quickly move on.
The noble Baroness asked how the scheme is working in terms of the detention of illegal migrants, and the serving of penalty notices. The scheme has now been in operation for over a year and has led to the detection of illegal migrants. The evaluation document that was produced, to which I draw the noble Baroness’s attention, pointed to 37 immigration enforcement visits which took place during that time. More than 100 individuals were identified who did not have the required legal documentation to be here. The scheme is now in operation. The extension of the scheme across England has worked smoothly, and further illegal migrants have been detected.
In terms of restrictions that are already in place to access social housing, it is reasonable to expect that migrants who remain here without permission should regularise their position or leave the UK. Successive Governments have sought to ensure that the immigration system is fair. In fact, we discussed this in Committee when the point was made that for some time—from about 1999—it has been a requirement on social landlords in the public sector to carry out checks that the person has the right to be here. We are now extending that into the private sector.
The noble Baroness, Lady Ludford, asked about the evaluation and said that she did not feel that it demonstrated that the scheme had achieved its aim. The statement in the evaluation report that just “26 referrals” of irregular migrants were specifically related to the scheme is a partial and selective quotation of the research report. As the evaluation report makes clear, this number specifically related to referrals,
“formally recorded on the Home Office’s intelligence database within the first six months of the scheme. More intelligence referrals had been received but were not recorded in this database as they were sent directly to enforcement teams”.
As stated in the evaluation report, in the first six months of the scheme in phase one,
“109 individuals … were identified, of whom 63 were previously unknown to the Home Office”.
The noble Lord, Lord Rosser, and the noble Baroness, Lady Ludford, raised the issue of the evaluation that was carried out by JCWI and the YouGov poll. These findings are at odds with the Home Office’s wide-ranging evaluation—specifically the mystery-shopping exercise carried out by independent contractors examining discrimination and documentation issues as one of the mystery-shopping scenarios involved a prospective tenant who did not hold a passport.
My noble friend Lord Howard asked what would happen if a person moves into a property without the landlord’s knowledge. I think I have dealt with this already, but the landlord will fall liable for the offence only if they have knowingly let the property to an illegal immigrant and have done so having reasonable cause to believe that the tenant or occupant is a disqualified person, or where they have subsequently become aware that someone disqualified is renting or occupying their property.
The noble Baroness, Lady Lister, asked a fair question about permission-to-rent guidelines and advised me to write to her on that. I am very happy to give an undertaking that I will do so and hope that that will be helpful. We do not accept the suggestion that the policy conflicts with the public sector equality duty. The Home Office prepared a policy equality statement and took into consideration the results of a thorough evaluation of the scheme in discharging this duty. Both the statement and the evaluation focused on the potential for discrimination; the findings of both are in the public domain. Having set out our criteria, we consider that it should, in most cases, be clear to migrants whether they have a right to rent or are likely to be given permission to rent. It is not something that we expect people to apply for, but it is open to any migrant to contact the Home Office about their case.
Lord Bates
It is absolutely right for the noble Earl to draw attention to that. I certainly give him that undertaking. We will bear in mind those particular points precisely when we construct the guidance which will be laid before Parliament.
Baroness Hamwee
My Lords, I am grateful to everyone who piled in on this. Again, there is an awful lot that we are not going to agree on—but I will not repeat all the arguments I made in moving my amendment. However, I should make it clear that I was asking not about publication of the Home Office’s evaluation but about the work of the panel of the noble Lord, Lord Bates. I think that that is a separate issue.
Lord Bates
The noble Baroness raised that point in Committee. I went back to James Brokenshire and asked him whether the minutes could be published. That issue will be raised at the next meeting of the consultative panel. Because other private sector groups are involved there is, of course, a need to get their permission before any action of that kind could be taken. But that issue will be on the agenda for the next meeting of the consultative panel.
Baroness Hamwee
I am glad to hear that because it means that the last hour may not have been in vain. I still have concerns about mandatory conviction, discrimination—whether because or in spite of my intermittent Mancunian accent, I am not sure—and criminalisation. My amendment and that of the noble Lord, Lord Rosser, cover very much the same ground and we have discussed this. He asked for sympathy from the Minister. He always gets sympathy from this Minister. Therefore, I assume that he will not lead the troops to support the continuing pilot, if you like, which is the subject of both our amendments. Therefore, very sadly, as I do not want to take up the time of the House, I beg leave to withdraw the amendment.
Lord Bates
“(5A) It is a defence for a person charged with an offence under subsection (1) to prove that—
(a) the person has taken reasonable steps to terminate the residential tenancy agreement, and(b) the person has taken such steps within a reasonable period beginning with the time when the person first knew or had reasonable cause to believe that the premises were occupied by the adult mentioned in subsections (2) and (3).(5B) In determining whether subsection (5A)(a) or (b) applies to a person, the court must have regard to any guidance which, at the time in question, had been issued by the Secretary of State for the purposes of that subsection and was in force at that time.
(5C) Guidance issued for the purposes of subsection (5A)—
(a) must be laid before Parliament in draft before being issued, and (b) comes into force in accordance with regulations made by the Secretary of State.”
Lord Bates
Lord Bates
Lord McCluskey (CB)
My Lords, I support the amendment proposed by my noble and learned friend Lord Hope of Craighead and would like the Minister to explain the assumption behind this clause as drafted. Is the assumption that the Sewel convention, as it is called, would be in force and therefore there would be flexibility, or is the assumption that the Scotland Bill will be passed in its present form, where the word “normally” is used, which virtually abolishes the Sewel convention? If “normally” is to remain part of the Scotland Bill and so become part of the Scotland Act, will that then be justiciable in relation to this particular matter?
Lord Bates
My Lords, I am very grateful to the noble and learned Lord, Lord Hope, for moving his amendment and leading this debate. I concur with the view that these are very important issues: they are not trivial issues but are very substantial. They were raised and commented on by the Delegated Powers and Regulatory Reform Committee in its 17th report, and were also raised by the Constitution Committee in its report. I will come back to those responses later, but I certainly accept that this is a welcome opportunity to get some reassurances and some comments on the record in relation to these matters.
This Bill is intended to apply to the whole of the UK, including Scotland and Wales. Where the law differs between different parts of the UK, the Bill makes special provision. The Government have sought to be open and clear on how the Bill applies to the rest of the UK. Making the Bill work effectively across the UK is complex, and we have consulted with lawyers and officials in the devolved Administrations to make sure that we get this right. That takes time. I should say at this point that there has been a substantial body of exchanges between the Scottish Government and the Home Office on this Bill—between James Brokenshire and Nicola Sturgeon—dating back to 13 August, with some 13 different iterations. I am happy to make the list available to the noble and learned Lord to show that that consultation has been going on.
In Committee, we amended the Bill in respect of illegal working in relation to private hire vehicles, so provision for the whole of the UK now appears in the Bill. In respect of illegal working in licensed premises, to which the noble and learned Lord referred, we have not had time to amend the Bill but have published draft regulations so that our method and intent are clear.
Amendment 73 concerns the mechanism to extend the residential tenancies provisions to Scotland, Wales and Northern Ireland. As with the right-to-rent scheme in the 2014 Act, we believe that the extension of these provisions to the whole of the UK has only consequential impact on devolved legislation and remains for an immigration purpose.
We have not sought to put the residential tenancies provisions for Scotland or Wales in the Bill or to publish draft regulations. This is because both the Scottish Parliament and the Welsh Assembly have been legislating in this space. The Private Housing (Tenancies) (Scotland) Bill was introduced into the Scottish Parliament last October, three weeks after we brought the Immigration Bill to Parliament. Stage 3 proceedings are scheduled to take place in the Scottish Parliament on Thursday 17 March. In Wales, to respond to the noble Lord, Lord Wigley, the Assembly has been considering the Renting Homes (Wales) Bill, which finally became law on 18 January. With the law in flux in Wales and Scotland, we had to decide whether it was worth amending the law only to need to re-amend it a few months later, and we thought that once was better.
Amendments 140 and 140A relate to the provision in Part 5 which will make it easier to transfer unaccompanied migrant and asylum-seeking children from one local authority to another, and will enable the Secretary of State to require local authorities to co-operate in the transfer of unaccompanied migrant children from one local authority to another, should voluntary arrangements fail. Of course, as the noble Lord said, we all hope that the voluntary arrangements will succeed and that the power will therefore not need to be exercised.
However, the dispersal of migrant children is not an area in which Wales, Scotland or Northern Ireland have competence to legislate, and their consent is therefore, in our opinion, not required for the UK Government to legislate in this area. Immigration legislation already provides a UK-wide framework for migrants’ access to local authority services. As I mentioned, the Government have been liaising with the devolved Administrations on participating in dispersal on a voluntary basis, and are grateful for the positive engagement which we have received to date. However, we must avoid a repetition of the situation that we saw in Kent last summer, so we will enforce the arrangements if necessary.
The regulations in Clause 68 are subject to the affirmative resolution procedure, so will be scrutinised in Parliament before they become law. In that context, I should say that the point about their affirmative or negative nature was precisely the one raised by the Delegated Powers and Regulatory Reform Committee. In response, we said that we would make them subject to the affirmative procedure, which will give the House a greater degree of scrutiny.
On the point raised by the former Solicitor-General, the noble and learned Lord, Lord McCluskey, about the Sewel convention, I am happy to provide copies to the noble and learned Lords and the noble Lord, Lord Wigley, of my letter to my noble friend Lord Lang of Monkton on 1 March this year in response to the Constitution Committee’s concern about the use of the Sewel convention. Perhaps I may read into the record a small section of it from the third paragraph on page 1. I wrote:
“We note that you have drawn the attention of the House in particular to the powers for providing an extension of clauses 10, 11, 16 and 43 to Wales, Scotland and Northern Ireland (now clauses 34, 35, 40 and 68 respectively). We are clear that these provisions relate to the reserved matter of immigration and so we believe that it is entirely appropriate that the Legislative Consent Motions are not needed. We are also clear that it can be appropriate for these matters to be addressed in secondary legislation, which will allow us to ensure that the legislation reflects the differing legislative frameworks across the United Kingdom, including forthcoming changes to those frameworks”.
On the particular point raised by the noble and learned Lord, Lord McCluskey, on the assumption lying behind this point, I wonder if I might write to him. I willingly accept the invitation from the noble and learned Lord to write further to address the specific points that he raised—but I hope that what I have set out so far will provide him with some reassurance that, while accepting that this is not an ideal situation, it is a genuine factor that we are respecting the devolved institutions in the work going through in the areas in which they have competence and seeking to make the intention clear at a later date to avoid having to change it.
Lord McCluskey
Would the Minister be good enough to include me in the correspondence that he sends to the noble and learned Lord, Lord Hope, because this is a live and important matter that we have to discuss on Monday when the Scotland Bill comes back to this House for Third Reading?
Lord Bates
I certainly give an undertaking. All the correspondence is there, in a trail to the noble and learned Lord, stretching back to August. I shall make sure that that is all with the noble and learned Lords by the end of the week, so they have time to consider that for next week.
Lord Hope of Craighead
My Lords, I am grateful to the Minister for his reply, which has helped to clarify matters to some extent. Rather like the noble Lord, Lord Wigley, I emphasise that I do not seek in any way to criticise the intention behind the legislation, particularly in regard to children. It is a very important matter, and no criticism is intended on the intention to extend these provisions to Scotland and, no doubt, to the other devolved institutions so that the same protection for children is available. That is absolutely understood—and I understand the immigration policy impetus behind wanting to extend the legislation with regard to residential tenancies to the devolved areas as well. But it is a curious feature that the way in which this will be sought to be done, which is fairly plain from what is being done in England and Wales, is by amending Scottish legislation. It is all very well to say that this is a reserved matter because it deals with immigration, but you cannot get away from the fact that the areas in which legislation requires change are in devolved matters. That is why the relationship with the Sewel convention is very important.
I have always been a little puzzled as to how the Sewel convention extends to discussions between Ministers, and I was very glad to hear that that dialogue has been taking place. In a way that is just as effective—perhaps even more effective—than having a matter before the Scottish Parliament for its consent, because it is a far more constructive dialogue, which can be begun early and help to frame the legislation from an earlier stage. That is not the Sewel convention as expressed in the Scotland Bill, but it is a useful way in which to communicate, which I welcome very much, and I am glad to hear that it has been going on. But there is still the Sewel point, which requires attention, because of the fact that the Scottish legislation is in the target for the statutory instrument.
The noble Lord, Lord Wigley, mentioned the Henry VIII aspect of the provisions, which requires explanation, because it is very wide-ranging. The power is to,
“amend, repeal or revoke any enactment”—
that is, any
“enactment contained in, or in an instrument made under, an Act of the Scottish Parliament”.
There has been no attempt in this legislation to focus on the Scottish legislation, which is quite easily identified, which requires amendment. It would have been more helpful if the Bill had been framed in a way that made it clear which particular statutes required amendment, or at least the areas of law that we are dealing with, instead of having a wide-ranging Henry VIII power to, as it were, demolish all the legislation embraced in these very broad phrases.
I hope that when the Minister writes, he can explain a little more what is intended and what has taken place to reassure people about this. From what he has been saying, I take it that it is not intended that this Bill should go before the Scottish Parliament for a legislative consent Motion. Nor do I think he is suggesting that the instruments themselves should go before the Scottish Parliament; I do not see how they could. But no doubt there are people in Scotland who are listening very carefully to what is being discussed in relation to this matter, as there will be in Wales. It is therefore very important that the matter is fully clarified. I hope that we do not have to come back to discuss it more on Third Reading, so I look forward to what the Minister is going to tell us in writing. I see that the Minister would like to say something.
Lord Bates
Very briefly, I just want to clarify, to manage expectations here. What I have undertaken to provide by Monday for the convenience of the noble and learned Lords are copies of the correspondence, which are already in existence, to aid that part of the discussion. With the very hard-working constitutional lawyers and cross-government committees necessary to sign off on such communications, we might be able to generate that by Monday—certainly as soon as possible. But those letters to which I referred will be with the noble and learned Lord before the end of the week.
Lord Hope of Craighead
My Lords, I am most grateful to the Minister. I fully understand the problems due to a shortage of time and will look forward to what can best be achieved. For the time being, I beg leave to withdraw the amendment.
Lord Rosser (Lab)
We have an amendment in this group which provides that a person does not commit an offence of driving when unlawfully in the United Kingdom if at the time of driving the motor vehicles the person had a reasonable belief that they had a legal right to be in this country. Of course, the Government have tabled an amendment which provides that a person commits the offence of driving when unlawfully in the UK only if they knew or had reasonable cause to believe that they were disqualified from driving by reason of their immigration status. We welcome the move that the Government have made on this issue.
The argument has been made in this debate by the noble Lord, Lord Paddick, for deleting from the Bill this new offence and the powers to carry out searches related to driving issues. My noble friend Lady Lawrence of Clarendon has spoken powerfully on the potential consequences of this new offence and the associated search powers to increase discrimination and damage community relations, including relations with the police, and generally put the clock back.
The Government have said that guidance will be issued and that there will be public consultation but I, too, ask whether there will be any debate in Parliament on the guidance. What will be the Government’s reaction if the public consultation shows clear concern about the potential impact of the new offence? Will the Government then decide not to bring it into force? If the new offence does come into force, what regular checks and reviews will be put in place to ensure that the concerns that have been raised about its potential adverse impact on community relations and discrimination are not materialising? What ongoing liaison, consultation and discussion will there be between the Government, the police and those in our diverse community who feel strongly that this new offence could do more harm than good? They say that, among other reasons, in the light of the evidence, you are more likely to be stopped and searched if you are black or from a minority-ethnic group.
As has already been said, this is about what might happen in practice as opposed to what should happen, as set out in the letter to which reference has already been made of 1 March, which I accept also made reference to the pilot of the use of the search power in Clause 41 in one or two police areas before proceeding with a national rollout. I very much hope that the Minister will address the specific points that I have raised on what might be the outcome of the public consultation, and on the issue about the regular checks and reviews that will be put in place to ensure that if the offence does come into being what happens is what should happen, as opposed to the very real fears that have been voiced today that it will potentially cause damage to community relations and increase discrimination.
Lord Bates
My Lords, I will come to the points raised in this debate shortly but first I shall speak to the two government amendments in this group standing in my name.
Amendments 75 and 76 would introduce a mens rea to the offence of driving while being unlawfully present in the UK. As currently drafted, the driving offence contained in Clause 42 is one of strict liability, on which the noble Lord, Lord Rosser, raised some significant concerns in Committee. Following that exchange, we agreed to reflect further on the issue. I believe that we are of one mind in our intention to ensure that migrants are not prosecuted for this offence where they hold a genuine and reasonable belief that they are in the UK legally. The Government have been persuaded that it would be appropriate to place further safeguards on the face of the statute. These amendments introduce a mens rea element so that an illegal migrant will commit the offence of driving while illegally present only if they knew or had reasonable cause to believe they were in the UK illegally.
This will protect those who genuinely and reasonably believed they were here in the UK lawfully, while ensuring that other migrants cannot seek to avoid prosecution by avoiding contact with the Home Office and/or their legal representatives, in order to establish the necessary doubt as to whether they could reasonably be expected to have known they were required to leave the UK. I invite noble Lords to support these amendments.
I am grateful to the noble Lord, Lord Paddick, for moving his amendment. I fully accept that he is very sincere, but he also has a professional track record as he has worked in these very complex areas of community cohesion here in the capital, and has done so with great distinction over a long career. Of course, the work of the noble Baroness, Lady Lawrence, for victims and improving community cohesion is well recognised. For that reason, it was very important that we had that meeting on 22 February where we sat down with officials to discuss the implications and workings of this clause. I am sure that they will testify to the fact that it was not necessarily an easy or cosy gathering. There were some strong feelings and concerns on all sides which were expressed at that time. One of the things that your Lordships’ House does repeatedly in many areas that is immensely valuable—officials may not have appreciated it fully at the time, but they have come to—is to bring great understanding, background and perspective to these very complex areas to pose the key questions that need to be addressed.
That said, I turn to the amendments, because they stem directly from that meeting. We went back afterwards and asked how we do this. As the noble Lord rightly pointed out, the Home Secretary is acknowledged to have made significant steps in improving community cohesion, in particular in tackling abuse of stop-and-search powers. That is why numbers have fallen. Part of the reason why that happens is that the number of incidents is now recorded so we can see what is happening on the ground. I set out in my letter—more like an epistle, as the noble Lord, Lord Alton, might say—to noble Lords over some three or four pages on 1 March how that operated in practice and the effect it was having.
We have brought forward two things: to recognise that we are making significant progress to improve community relations, and to maintain the confidence of all communities in the police to act fairly and justly, as my noble friend Lord Deben and the noble Lord, Lord Green, said. Nothing must be done to put any of that at risk. That is why we are proceeding cautiously in this area by introducing a pilot scheme, as mentioned.
On the concerns that focused on police use of these powers with particular groups, these clauses are important and necessary. We do not issue driving licences to illegal migrants and we revoke driving licences held by them. So far we have revoked some 16,000 UK driving licences held by illegal migrants, but less than 1,000 have been returned, even though it is a criminal offence to retain them. As these licences hold a value as a form of identification that can help an illegal migrant settle in the UK, it is important that they are removed from circulation. Clause 41 provides the best opportunity for us to do this when a person is apprehended as an illegal migrant.
The Government cannot, however, revoke foreign-issued driving licences. Without Clause 42, illegal migrants would be able to drive on valid, foreign-issued licences without consequence. This, in turn, facilitates their ability to stay unlawfully in the UK, to look for work and to work illegally. Illegal immigrants should not be driving on our roads. They have shown a disregard for the laws of this country—that is the very point that my noble friend Lord Deben raised. Therefore, it is absolutely right that we legislate to ensure that they are unable to do so.
I re-emphasise the following points. First, these clauses do not create new powers to stop persons or vehicles. Secondly, we intend the police to use these powers reactively after they have already stopped a vehicle for an objective reason—I will come back to that particular use of words, as the noble Lord, Lord Alton, asked me to—such as a driving offence. I emphasise that these powers will not be used by the police to stop vehicles simply to check the immigration status of the driver. That is an important distinction between the roles and responsibilities of the police and of immigration enforcement. It is one that we recognise should be maintained. Thirdly, these powers must be used proportionately. To that end, we have put in place safeguards against misuse.
Finally, I reiterate that the Government are absolutely clear that no one should be stopped, under existing police powers, on the basis of their race or ethnicity. This would be unlawful. The Government also remain absolutely clear in their commitment to reform the use of police stop-and-search powers so that they are applied in a way that genuinely protects our communities. We would not bring forward any proposal that we believe might undermine this work.
We have listened carefully to the concerns raised about these clauses. In response, the Home Office will go further. We will issue guidance to police and immigration officers on the operation of these powers and we will consult publicly on that draft guidance. This consultation will take place before implementation. It will raise awareness and provide an important gateway through which communities will be able to consider and comment on, among other things, appropriate safeguards.
Lord Bates
Lord Bates
Noble Lords will be aware of the background to the immigration health surcharge, which I set out in the debate on these amendments in Committee.
There are significant practical difficulties in introducing the incremental payments, proposed by Amendment 79, which would place additional burdens on the Home Office and the NHS. It is not simply a question of changing Home Office IT, but of introducing a mechanism through which the Home Office could monitor payments, chase those who had missed them and take action against those who refused to pay. Around 560,000 migrants are expected to pay the surcharge each year, and many of these may take the opportunity to pay in instalments. The resource implications for the Home Office of administering an instalment system could, therefore, be significant. If we were unable to recover unpaid instalments from some migrants, the NHS would suffer a loss of income. An instalment system might also be open to abuse from those seeking to come to the UK in order to receive NHS care, as they could simply stop making their payments once treatment had been received.
Amendment 80 would exempt all children under the age of 18 from paying the charge, together with those who are victims of domestic violence. I do not think it unreasonable for parents or guardians of a migrant child to bear the responsibility of paying the charge for their child. Further, and as set out during our previous debate, exemptions are already in place, in certain circumstances, for children and victims of domestic violence.
I have also reflected carefully on the points raised in Committee. At the invitation of the noble Lord, Lord Alton, the noble Baroness, Lady Doocey, and I had a very productive morning at the Cardinal Hume Centre. I know that a number of noble Lords are involved there in different ways—I was talking to the noble Lord, Lord Touhig, today and he said that he was involved. The noble Lord, Lord Alton, does a huge amount of good work in connection with the centre. I was amazingly impressed by the quality of the staff who undertake the cases there.
When we were there, we talked with officials and wondered whether there was a way we could engage more structurally with organisations like the Cardinal Hume Centre. The centre gave us a list of cases relating to the visa waiver and made the point that it used to be possible to secure the waiver but that, following some change, it was now more difficult. We took those cases away but, for reasons which I totally understand, the Cardinal Hume Centre was not able to give us the individuals’ names and contact details, which made it difficult for us to check. However, we have been in contact with the centre again this morning to see if we can set up a meeting to explore how the relationship might work. There would be benefits for both parties—from the Home Office point of view we would have another external validation system. The centre staff are deeply caring but not overly sentimental about it: they just want to provide practical help to people. Partnering with organisations like that can be immensely helpful and I am grateful to noble Lords for setting that up.
To clarify the situation, applicants will qualify for a fee waiver if they provide evidence to show that they are destitute or would be rendered destitute by payment of the fee, or there are exceptional circumstances relating to their financial situation. Where an applicant is in receipt of local authority support and has their accommodation and other essential living needs met, they will not be destitute. To qualify for a fee waiver, they must show that they would be rendered destitute by payment of the fee or that there are exceptional circumstances. As they are unlikely to have additional disposable income and there may be no prospective change in their financial circumstances that would enable them to pay the fee, we need to ensure that they are required to provide evidence that they meet the fee waiver policy in as straightforward a manner as possible.
It is important that the Home Office is able correctly to establish whether an applicant qualifies for a fee waiver. It will not surprise the House to learn that some applicants seek not to pay the fee that is properly applicable in their case. From 6 April 2015 to 28 February 2016, there were around 11,130 applications for a fee waiver. Of the fee waiver applications considered in that period—around 11,140, including some predating that period—around 84% were refused. This underlines the importance of the work the Home Office is doing to protect an important revenue for the NHS of around £100 million per year. It also underlines the importance of ensuring that those applicants who are able to show that they qualify for a fee waiver are enabled to do so as effectively as possible.
If the applicant qualifies for a fee waiver, the health charge is also waived, so there is no need for an exemption or for payment by instalments. There are also exemptions in place, as I have described, for vulnerable children, such as asylum seekers or victims of trafficking, and for victims of domestic violence who apply for limited leave under the destitute domestic violence concession.
Amendment 81, in the name of the noble Baroness, Lady Kennedy of The Shaws, on student support for care leavers, would give student loan access to care leavers with limited leave to enter or remain who have been ordinarily resident in the UK since they were granted that leave. It would also require that such cases, as well as care leavers with an outstanding asylum claim or immigration application, be charged home rather than international student fees.
The Government are currently considering their response to the public consultation by the Department for Business, Innovation and Skills on the terms on which those without settled status and who are not otherwise able to access student support by virtue of our international obligations should be eligible for student support. The consultation followed the Supreme Court ruling in July 2015 in the case of Ms Tigere that the policy of refusing access to a student loan solely on the grounds that the person did not have settled status in the UK was not compatible with the European Convention on Human Rights. The Supreme Court left it to the Government to consider the options for a revised policy. The Supreme Court judgment also upheld the Government’s policy of requiring all persons—with the exception of refugees, who are given immediate access to support—to be lawfully resident in the UK for at least three years immediately prior to starting their course.
We think it is appropriate that there should be some distinction between a person who is a British citizen or who has long residence here or an immigration status of the sort that means they now have a solid connection with the UK—for example, refugee leave, humanitarian protection status or indefinite leave to remain—and a migrant with limited immigration status, or none at all but with an outstanding asylum claim or immigration application, who has not yet established a solid connection of that sort with the UK.
Turning to the questions that were raised, the noble Baroness, Lady Lister, asked about domestic violence exemptions. Those who pay the charge will be eligible to use the NHS free of charge for the duration of their stay without any further treatment charges being imposed. However, a person who applies for limited leave under the Home Office destitute domestic violence concession is exempt from the charge and will receive free NHS care for the period of that leave, during which they will make an application for permanent status in the UK. Those are the circumstances in which a victim of domestic violence gets free healthcare. The noble Baroness asked whether it would be possible to simplify the process by exempting all children and victims of domestic violence. We think that sufficient safeguards are in place for ensuring that vulnerable children and victims of domestic violence are able to use the NHS without charge, and a blanket exception is therefore unnecessary.
I was asked whether the Home Office could not make an exception from collecting all the charges upfront. Any move to an instalment approach, including setting up separate systems for exceptional cases, would be costly and administratively difficult. But it is not just that. The Home Office would also need to ensure that payments were made when due and would need to chase payments if they were not made and take enforcement action which could involve curtailing the person’s leave.
I was asked how much had been collected. In the first six months since its introduction, the immigration health surcharge collected more than £100 million—I correct my previous comment that it had produced £100 million in a year. That was in the first six months so, annualised, it is going to be much more than that.
The noble Baroness, Lady Doocey, and the noble Lord, Lord Alton, asked how charge payers access the NHS. Those who pay the charge and are subsequently granted entry clearance or leave to remain receive NHS care in the same way as a permanent resident. I was asked why the charge cannot be paid in multiple payments. I have addressed that point.
The noble Baroness, Lady Kennedy, said that the numbers of those requiring support by local authorities for tuition fees are very low. We disagree with that. Even one or two cases create a significant burden for local authorities. International fees range on average from £12,000 to £15,000 per year. These costs are also a significant disincentive to local authorities participating in the voluntary transfer of unaccompanied asylum-seeking children.
I was asked what the criteria were to qualify for the fee waiver. The qualification is that an applicant is destitute or would be rendered destitute by payment of the fee because they are unable to pay the fee now or to save the required amount within a reasonable period—which is 12 months, as determined by the rules—and they have no ability to borrow the required amount from friends or family, or that there is no basis for concluding that their financial circumstances are likely to change within that reasonable period, or there are exceptional circumstances relating to their finances.
In relation to the visa fees, I totally understand the point made by the noble Baroness, Lady Doocey, about the very significant increases. We changed the policy here and introduced a policy based on the belief that the user should pay; in other words, that the resident taxpayer should not be picking up the bill for people who are getting the benefit of coming to this country to study, visit or secure their citizenship. Therefore, the view was that that should be self-financing and the increases in the fees reflect that imperative.
I was asked how migrant families could be expected to pay the upfront amount. Migrant families entering the UK will be aware that they need to pay the health charge if they are here for more than six months in a temporary capacity, and will therefore need to plan their finances accordingly.
There is another letter to add to the many, which is the letter I sent to the noble Baroness, Lady Kennedy, on 8 March. I notice that that was not shared with other Members. I can place a copy in the Library, but if other Members are interested in seeing a copy of that and the reasons set out for student support for care leavers, I am very happy to make that available. I have written to the noble Baroness on these issues and have asked if she would be willing to meet Ministers at the Department for Business, Innovation and Skills to discuss her concerns. It is important that we frame the eligibility criteria for student loan access in a way which takes proper account of immigration status and is fair across all categories, including to the resident population.
While I might not have gone all the way in addressing all the concerns raised by noble Lords, I hope that with these explanations we have at least moved a little further down the road to addressing some of them and explaining the reasons why we cannot move further in other areas.
Lord Bates
“( ) to whom a notice has been given in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against that person,”
Lord Bates
“Guidance on detention of vulnerable persons
(1) The Secretary of State must issue guidance specifying matters to be taken into account by a person to whom the guidance is addressed in determining—
(a) whether a person (“P”) would be particularly vulnerable to harm if P were to be detained or to remain in detention, and(b) if P is identified as being particularly vulnerable to harm in those circumstances, whether P should be detained or remain in detention.(2) In subsection (1) “detained” means detained under—
(a) the Immigration Act 1971,(b) section 62 of the Nationality, Immigration and Asylum Act 2002, or(c) section 36 of the UK Borders Act 2007,and “detention” is to be construed accordingly.(3) A person to whom guidance under this section is addressed must take the guidance into account.
(4) Before issuing guidance under this section the Secretary of State must lay a draft of the guidance before Parliament.
(5) Guidance under this section comes into force in accordance with regulations made by the Secretary of State.
(6) The Secretary of State may from time to time review guidance under this section and may revise and re-issue it.
(7) References in this section to guidance under this section include revised guidance.”
Lord Bates
Lord Bates
Lord Bates
“(2A) Sub-paragraph (1B)(a) does not apply to a person who is granted immigration bail by the Secretary of State if the Secretary of State considers that to impose an electronic monitoring condition on the person would be—
(a) impractical, or(b) contrary to the person’s Convention rights.(2B) Where sub-paragraph (2A) applies, the Secretary of State must not grant immigration bail to the person subject to an electronic monitoring condition.
(2C) Sub-paragraph (1B)(a) does not apply to a person who is granted immigration bail by the First-tier Tribunal if the Secretary of State informs the Tribunal that the Secretary of State considers that to impose an electronic monitoring condition on the person would be—
(a) impractical, or(b) contrary to the person’s Convention rights.(2D) Where sub-paragraph (2C) applies, the First-tier Tribunal must not grant immigration bail to the person subject to an electronic monitoring condition.
(2E) In considering for the purposes of this Schedule whether it would be impractical to impose an electronic monitoring condition on a person, or would be impractical for a person to continue to be subject to such a condition, the Secretary of State may in particular have regard to—
(a) any obstacles to making arrangements of the kind mentioned in paragraph 4 in relation to the person,(b) the resources that are available for imposing electronic monitoring conditions on persons to whom sub-paragraph (1A) applies and for managing the operation of such conditions in relation to such persons,(c) the need to give priority to the use of those resources in relation to particular categories of persons to whom that sub-paragraph applies, and(d) the matters listed in paragraph 3(2) as they apply to the person. (2F) In this Schedule “Convention rights” is to be construed in accordance with section 1 of the Human Rights Act 1998.”
Lord Bates
Lord Bates
“(2A) Regulations under section 86(1) may, in particular—
(a) make provision about the circumstances in which the power in paragraph 6(1) may or must be exercised so as to impose an electronic monitoring condition on a person to whom this sub-paragraph applies; (b) enable the Secretary of State to exercise a discretion in determining whether an electronic monitoring condition should be imposed on such a person,and may, in particular, do so by providing for paragraph 6A or 6B to have effect with modifications in relation to such a person.(2B) Sub-paragraph (2A) applies to a person who—
(a) by virtue of regulations under section 86(1) is treated as having been granted immigration bail as a result of falling within—(i) sub-paragraph (2)(c), (d) or (e), or(ii) sub-paragraph (2)(f) on the basis that the person had been released on bail from detention under paragraph 2 of Schedule 3 to the Immigration Act 1971,(b) is not treated as being subject to an electronic monitoring condition, and(c) is not otherwise subject to an electronic monitoring condition.(2C) Sub-paragraph (2A) applies to a person who—
(a) is on immigration bail pursuant to a grant before the coming into force of paragraph 2(1A) and (1B), or the coming into force of those provisions in relation to grants of that kind,(b) before the grant of immigration bail, was detained or liable to detention under a provision mentioned in paragraph 1(1)(b) or (d), and(c) is not subject to an electronic monitoring condition.”
Lord Bates
Immigration Bill
Lord Bates Excerpts(8 years, 8 months ago)
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Lord Rosser
Briefly, I am genuinely not clear what the problem is for the Government in accepting Amendment 116, which presumably would not involve large sums of money. As I understand it, it affects not people who have had their claims turned down and who have to leave the country, but people who receive a resident’s permit to remain in the country for differing reasons and differing periods of time. If it is the case that there is a gap between asylum support payments and mainstream payments, because matters are not all being dealt with within what is presumably the intended 28-day period, then, frankly, why not agree to the amendment? I hope that the Government will be able to give a helpful response to what, on the face of it, appears to be a pretty straightforward issue.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to the noble Baroness, Lady Lister, for moving her amendment and for maintaining pressure in this important area. She and the Red Cross have managed to identify a bureaucratic problem that we accept needs to be addressed.
In responding, I will place on record a few points. The first is my letter of 10 February, which is in the combined pack and set out my initial responses. I was also very grateful for the opportunity to meet—with the noble Baroness—officials. We talked through the reasons for the delays and the evidence. I know that that was something the officials found extremely helpful. It contributed to the response that I give now.
I thank the noble Baronesses, Lady Lister and Lady Hamwee, and the right reverend Prelate the Bishop of Norwich for bringing forward Amendment 116 concerning the transition off Home Office support of asylum seekers granted refugee status or other leave to remain. I agree with them on the importance of these arrangements, which we discussed at our meeting on 25 February. I also thank the British Red Cross for its excellent work in this area and for its advice ahead of this debate.
We allow a grace period of 28 days before Home Office asylum support ends in these cases. This is to provide time for the person to make other arrangements and move on from Home Office support. Many refugees have much to contribute to our economy as well as to our society, and work and integration go hand in hand. But some need support while they find work. I do not dispute that there is evidence—from the Department for Work and Pensions research in 2013 and the British Red Cross report of 2014; those two dates are relevant to the point I will come on to later—that some newly recognised refugees do not secure DWP benefits within 28 days. But the reasons for this are complex and the evidence does not show that the problem would be easily fixed simply by increasing the grace period to 40 days.
Our investigations into this show that there are two main reasons for delays. First, there is a lack of awareness among refugees of the need to apply for welfare benefits as soon as they are granted refugee status. Of the 16 people sampled in the Red Cross report, only three applied within the first three weeks of being granted status. That is a problem. Of course, they should apply for their biometric residence permit as soon as they get an indication, and that should take just a matter of days.
Help is on hand. I repeat that people are not left on their own with this. They are given advice and leaflets about the information and help that are available to them. Refugees can also seek help from the free telephone advice line run by Migrant Help—an excellent service that the Home Office funds. Migrant Help provides advice and support in building a new life in the UK, including help with housing and other issues. Refugees can also apply for integration loans. These can be used, for example, to pay a rent deposit or for essential domestic items or for work equipment. My point is that when we are identifying the problems, we must first make sure that people who are granted refugee status immediately understand what help is available to them and what they should do next. A new information leaflet for refugees was introduced in July 2015. In oral evidence in 2015 to the House of Commons Work and Pensions Committee session on benefits, the British Red Cross said the new leaflet provided “good guidance”. It supplements the advice and assistance available from Migrant Help, which I referred to.
Secondly, the DWP research identified occasions on which a lack of awareness among staff of the correct processes contributed to the problem. Updated guidance and instructions have been issued to DWP front-line staff to address this. We welcome the Work and Pensions Committee’s report on benefit delivery published on 21 December 2015, which recommends further work in this area. DWP will respond shortly to the report but intends to carry out an evaluation later this year of the impact of the improvements I have described.
The key point I make to the noble Baroness in assuring her that we take the concerns very seriously is that it is important that we have up-to-date evidence. I mentioned the reports from 2013 and 2014. We are now in 2016. Since those two dates, there has been a significant number of new initiatives and changes. We want to understand what the up-to-date periods of delay are.
Baroness Lister of Burtersett
My Lords, I am grateful to all noble Lords and the right reverend Prelate for their powerful support. I am also grateful to the Minister, because we have reached a fair compromise this evening and I appreciate that.
I think I got some clarification in those last statements but I just want to be clear that I got it right. The Minister will bring a Statement to both Houses, I guess, or certainly to this House, that will let us know the outcome even if the decision is not to change the regulations. So we will have a chance to debate the decision that is made, and it will be this year, I think he said. I would be grateful if that could be clarified. The Minister rightly paid tribute to the work of the British Red Cross in this area and there are other groups, such as the Refugee Council, which do a lot of work in this area. It would be very helpful if there could be a commitment that they could have some involvement in the discussions that lead up to the decision.
Lord Bates
To use the precise words we have agreed—obviously, we have agreed this between different government departments so I need to stick rigidly to what was said—I can confirm that if the further DWP evaluation I have referred to shows that it is necessary to increase the length of the grace period to consistently enable newly recognised refugees to begin to receive welfare benefits for which they are eligible before their Home Office support ends, we will return to Parliament with a proposal to amend the regulations to that effect. I am sure we can have an ongoing dialogue. I know that there is a very good relationship with the Red Cross in these areas. Officials meet it regularly and I am sure they will be able to share the information that comes in as it is received.
Baroness Lister of Burtersett
Are we talking about a timescale of this year—not the indefinite future?
Lord Bates
Yes, I did actually say that it would probably be later this year. That would give us the necessary time to gather the new information on the basis of the new changes that have been introduced to our procedures to try to address the concerns that the noble Baroness has identified.
Baroness Lister of Burtersett
I thank the Minister. I am sorry to pursue this but this feels like my last opportunity for the moment. On the understanding that if the decision is not to change it, we will be told that in some way, because otherwise we do not have any way of interrogating it—
Lord Bates
Just to clarify this point—because we are lip-reading from different ends of the Chamber here—I will write to the noble Baroness, setting out exactly how we will communicate this. But of course we will want to communicate how we are doing, not least to the DWP Select Committee, which has undertaken a report and the DWP is going to be responding to that shortly. I will set that out in a letter and I am sure it will be very clear.
Baroness Lister of Burtersett
I very much appreciate that. The noble Lord very kindly paid tribute to my tenacity on this issue. I am not going to give up. As he will expect, whatever the decision is, we will try to come back to it in some way. But I appreciate the fact that it sounds like finally someone has listened and heard. Certainly, from what Still Human Still Here put in its briefing to us, its assessment is that things have actually got worse, not better. But let us see what the evaluation shows. As I say, it would be helpful if there could be some involvement of the refugee organisations in that evaluation because they have on-the-ground knowledge.
On the basis that we will return to this in some form or other later in the year, I appreciate the response of the Minister and the work that officials have put into this. It is perhaps au revoir until we come back to this later in the year. I beg leave to withdraw the amendment.
Children: Sexual Abuse
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Lord Lexden
To ask Her Majesty’s Government what steps they are taking to ensure that the police, social services and other agencies work together effectively to protect vulnerable children from sexual abuse.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, nothing is more important than keeping children safe from harm, including sexual abuse. How different agencies work together is key to improving outcomes for our most vulnerable children. We have commissioned Alan Wood to review the role and function of local safeguarding children boards in order to improve multiagency working. The Government have made a commitment, through the tackling sexual exploitation action plan, to improve multiagency responses to child sexual abuse.
Lord Lexden (Con)
My Lords, is it not essential that all agencies involved in protecting children investigate allegations of sexual abuse fully, fairly and openly? Will my noble friend agree that the more stringent procedures now required of bodies such as our school inspectorates and the Church of England authorities represent real progress? However, are we yet in a position to place total confidence in the church authorities? They failed to give an adequate account of the process which led them to accept last October the veracity of a single uncorroborated complaint of child sexual abuse made against one of our greatest, most venerated bishops, George Bell, Bishop of Chichester, who died in 1958. He was a man held in the highest regard in this House during his 20 years of service to it and the nation.
Lord Bates
On the first point, we have encouraged—in fact, published and put on a statutory footing—legal requirements to work together to safeguard children in order to restore public confidence in these very serious areas. That is also why Justice Goddard is undertaking her inquiry. The last issue which the noble Lord raised is pertinent in the sense that Justice Goddard identified that claims of abuse within the Anglican Church were a line for her to investigate in her inquiry. The inquiry will cover that topic when it meets this week, on Wednesday, and of course that inquiry will be held in public.
Baroness Howarth of Breckland (CB)
My Lords, turning to the broader issue of child sexual abuse and child protection, is the Minister aware that a large number of different models of co-operation between the police, social services and other agencies are being trialled across the country? Indeed, my own county of Norfolk is attempting to put services closer together. I am grateful for the investigation into the local boards, but what are the Government doing to ensure that the practice is pulled together and that the best practice is promulgated right across the country? Does he not think that it is as important to do that for children now as it is to investigate historical abuse, with all the resources that we are putting into that?
Lord Bates
One thing we are trialling to get just the type of feedback that the noble Baroness referred to is joint inspections of safeguarding boards by HMIC, the probation inspectorate, Ofsted and the Care Quality Commission. Alan Wood’s review will report back into the process. It is taking time, but it is such a vital area that we need to get it right. Learning the lessons of the past is part of what Justice Goddard’s inquiry is seeking to do, to make sure that we can establish a body of learning to prevent such abuse in the future.
Lord Scriven (LD)
My Lords, will the Minister seriously consider direct intervention by the Government in South Yorkshire Police’s performance in dealing with child sexual exploitation? This has been highlighted by the recent report from Her Majesty’s Inspectorate of Constabulary, which said that South Yorkshire Police still needs to make major improvements. Following freedom of information requests to 10 forces across the country, a BBC report on Friday showed that, nationally, one in five cases reported is charged, but that in South Yorkshire the figure is one in 16.
Lord Bates
They are very serious claims. The HMIC report at least pointed to some improvement. We have Professor John Drew looking independently into this and will carefully follow his responses. It is very important to have the confidence of the public in that particular area, which has been at the centre of so many cases, so we will be watching very carefully indeed.
Lord Rosser (Lab)
The Question makes reference to the police. Is it for a chief constable of a force to decide as an operational matter on the level and extent of a police force’s involvement in working together with social services and other agencies to protect vulnerable children from sexual abuse, or is that level of involvement ultimately a decision for the police and crime commissioner to make as a strategic policy matter?
Lord Bates
That is a very good question. I shall write to the noble Lord, because these are very important matters that we have to get right. We have put guidance on individuals’ responsibilities on a statutory footing, and that guidance has been published. Operations are matters for chief constables but setting the overall strategies and priorities for the budget are matters for the police and crime commissioner in consultation. I will set out in a letter to the noble Lord where the guidance fits with his question.
The Lord Bishop of Durham
My Lords, I declare my interests in relation to safeguarding for the Church of England, in which connection I shall be at the Goddard inquiry on Wednesday morning. Will the Minister agree that prevention must stay at the top of the agenda for all agencies, both statutory and voluntary, in responding to the crime of child sexual abuse and, in so doing, recognise that potentially every single child is vulnerable and that grooming must be one area of concern?
Lord Bates
That is absolutely right, and it is why we have identified in the National Policing Plan that child sexual abuse is a national threat and should be regarded as a priority. That is so for the Government and, in my view, it should be the same for local government and all organisations and groups within our society until we tackle this issue at cause.
Lord Young of Norwood Green (Lab)
My Lords, does the Minister agree that, in the age of the internet, potentially all children are vulnerable to grooming and sexual abuse? Does this not stress the importance of sex education in schools?
Lord Bates
It stresses the importance of sex education and we totally agree that PSHE has a vital role to play. Ofsted inspects PSHE. As to whether it should be a compulsory part of the curriculum, the Secretary of State has said that that matter is out for review. What is not out for review is the fact that schools will be held to account on the quality of that teaching. One of the most disturbing things is that the Ofsted report found that 40% of PSHE teaching was less than good. That is an area where some immediate improvement could improve the safety of our children.
Immigration Bill
Lord Bates Excerpts(8 years, 8 months ago)
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Lord Bates
(b) pay or make provision for the payment of such pension to or in respect of the Director,”
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, as this is the first day of Report, I will put some general comments on the record. I thank all noble Lords for their engagement with officials over the period between Committee and Report. We have had eight all-interested Peers meetings, numerous bilateral meetings and significant engagements. We even had some external visits. As a result of all that, I have written a number of letters, including to the noble Lord, Lord Rosser, and to others, that even St Paul would be proud of. As a result of listening to the points and concerns that were raised by noble Lords from all sides of the House in Committee, as well as before then, we have a number of new proposals that I believe will go a long way to addressing those. In fact, ahead of Report, we tabled more than 100 government amendments to the Bill and tried to expand on, through a number of letters, the implications of what is being proposed.
I wanted to preface my remarks on this group of amendments by putting on record my thanks to all noble Lords for their engagement with the process. We hope that we have made progress which proves acceptable to your Lordships.
I want to draw your Lordships’ attention to two key issues in the Government’s amendments in this group: first, the Director of Labour Market Enforcement’s intelligence hub and, secondly, changes in light of recommendations from the Delegated Powers and Regulatory Reform Committee.
Clause 6 requires the director to gather, store, process, analyse and disseminate information relating to non-compliance in the labour market. This enables the director to produce an evidence-based annual strategy. Our amendments will enable this through operating an effective intelligence hub.
The enforcement bodies covered by the strategy are the Employment Agency Standards Inspectorate, HMRC’s national minimum wage team and the Gangmasters and Labour Abuse Authority. They will supply the majority of information and intelligence for the director’s work. Amendment 2 requires the director to include information-sharing matters in the annual strategy; for example, frequency of provision of information. Amendment 10 allows the director to request information from those bodies, and vice versa, throughout the year. Other bodies may also hold intelligence useful for the strategy. Amendment 8 allows anyone to share information with the director or staff in the intelligence hub where it relates to the director’s functions. The amendment also enables the director and intelligence hub staff to share information with specific named persons, listed in a new schedule inserted by Amendment 11, if relevant to the functions of those persons. There is a power to add to the list by regulations through the affirmative procedure. We are committed to data security. Amendment 9 sets out restrictions to ensure the information is used and shared appropriately. This contains specific provisions for the intelligence services and HMRC.
It is vital that the three labour market enforcement bodies have gateways allowing them to share information with other enforcement bodies. Amendment 29 will allow the Employment Agency Standards Inspectorate to share information with the Employment Agency Inspectorate in Northern Ireland, the Pensions Regulator and the Care Quality Commission, enabling collaboration across organisations. We want the GLAA to have the necessary gateways to share information relating to its new role. Amendment 32 therefore enables it to share information encompassing all labour market enforcement functions within the director’s remit and LME undertakings and orders. Reflecting the GLAA’s new role enforcing modern slavery offences, Amendment 38 inserts a new section into the Modern Slavery Act 2015 allowing disclosure of information to the GLAA from specified persons, and vice versa. A new schedule in the Modern Slavery Act 2015 will list those specified persons. There will be a power to add to this list, subject to the affirmative procedure. Other amendments allow the GLAA, HMRC’s NMW team and the EAS to share information relating to the new LME undertakings and orders in this Bill.
The next amendments are those that address specifically concerns raised by the Delegated Powers and Regulatory Reform Committee report, for which we were very grateful, and its concerns particularly about some powers in Chapter 1. We are happy to accept its recommendations. Amendment 13 therefore makes the power to extend the purposes for which officers of the GLAA can be given PACE powers subject to the affirmative, rather than negative, procedure and thus to rigorous parliamentary scrutiny. The committee’s second recommendation concerned the new LME undertakings and orders. Amendments 26 and 27 provide that the code of practice governing their use by enforcement bodies will be subject to parliamentary oversight by being brought into force by a statutory instrument subject to the negative procedure. The committee’s third recommendation related to the GLAA’s licensing rules. Amendments 31 and 33 maintain the introduction of licensing rules by statutory instrument and not simply by publication, but with the added requirement of approval by the Home Secretary.
Lord Rosser (Lab)
As has already been said, the Government have tabled a whole raft of amendments relating to the labour market aspects of the Bill and the new position of Director of Labour Market Enforcement and the associated organisations. A number of questions have been raised in this brief debate and I certainly do not intend to reiterate any of them.
We had a lengthy debate in Committee about including in the Bill wording stating that the primary purpose of the director is the enforcement of labour market legislation as defined in the Bill. The purpose of our amendment seeking to achieve that objective was to ensure that the director’s functions were exercised primarily for the purpose of protecting those vulnerable to labour market exploitation. As we know, the Government resisted defining in the Bill the director’s primary purpose and function. Our concern was that without a clear definition in the Bill of the function of the director—a post that is being established in an immigration Bill—there are likely to be misunderstandings or wrong assumptions on the part of those who might come into contact with the director’s organisation that the post was also about immigration checks, rather than just labour market enforcement.
In respect of one or more of the bodies under the Director of Labour Market Enforcement, the Government’s amendments appear to provide for the sharing of intelligence and new information-sharing gateways, and for the disclosure of information to specified persons. What assurances can the Government provide that these amendments will not lead to the director and the associated organisations moving into the field of immigration control issues, rather than just labour market enforcement and the protection of workers from exploitation?
Lord Bates
My Lords, I am grateful for the contributions that have been made. I apologise to noble Lords for bombarding them with so many amendments at the last minute. As is often said, “You’re damned if you do and damned if you don’t”. I have found it difficult to gather together all the pieces of this jigsaw, given all the consultations that we had. I wanted to bring together all the letters and the consultation documents into one document. The Bill team dutifully did that. I thought that was a helpful pack to take home and suggested that we ought to provide it to other Members. Therefore, we sat late into the night, binding the documents, putting them into envelopes and then ferried them across to the House to put them on to colleagues’ desks in time for today’s debate. That process was not meant to be an insult to noble Lords. On the contrary, we were trying to be helpful. There is nothing new in the pack. It is simply a collection of documents that have been sent out by other means.
There was a very good question from the noble Lord, Lord Alton, about the nature of the amendments. Lest I be accused of making a virtue out of tabling too many government amendments, sometimes in the journey of legislation we forget important elements of it. To give some context, there was a wide consultation on this new role, which went out between October and December last year, and we listened to those views. It was published in December, and in January we published the Government’s response. Rather than publishing that response and dealing with the issue in guidance, we thought, “Let’s try to make amendments to the Bill in the light of the responses and how we want things to change”. That accounted for the bulk of the amendments.
We flagged up these amendments back in January, on the first day of Committee. I said that we had tabled a batch of government amendments relating to labour market enforcement and that others would follow at this stage. Breaking those down might be useful. Of the amendments we have tabled, 14 relate to the intelligence hub; seven relate to the DPRRC’s report, which was extremely helpful, and implementing all of its recommendations; 18 are technical; there were some drafting changes, which relate to the additional 15; and two relate to changes to the territorial extent of regulation-making powers.
I am grateful to the noble Baroness, Lady Hamwee, for giving me notice of one of the points she was intending to raise. We believe that the title, Immigration Act, is entirely adequate given the measures in it. While the labour market enforcement procedures will protect all vulnerable workers, they will have a particularly beneficial effect for those who migrate to the UK, who are more likely to fall victim to exploitative employers as they may not fully understand their rights and can be far removed from their normal support structures. Chapter 1 of the Bill will better equip our enforcement bodies to find and stop unacceptable behaviour by rogue businesses—the point raised the noble Lord, Lord Deben. We need to ensure that migrant workers coming to this country are not exploited by businesses here; we need to up our game and ensure that businesses are playing by the rules and treating their employees properly.
The noble Lord, Lord Rosser, made a general point about the remit and asked about immigration control and the director getting involved in immigration. If the director got involved or shared information about immigration control, they would be operating outside their statutory functions as set out in Clauses 2 and 3.
The noble Baroness, Lady Ludford, asked about information-sharing. An important point, which I made in my introduction to the amendments, is that we have taken great care to set out the basis for information-sharing. In fact, one of the reasons we tabled the amendments was to address an earlier concern that the Bill did not state which organisations were going to share information. Rogue businesses and employers which breach labour market legislation often breach other legislation. Therefore, we are creating a framework to enable information-sharing between the director and other bodies. The legislation will be underpinned by memorandums of understanding between the director and those bodies, setting out the types of information that can and cannot be shared and the relevant processes that need to be followed. We are legislating now because we wanted to take account of the public consultation and legal advice.
The noble Baroness, Lady Hamwee, asked if I would clarify the relationship between the Director of Labour Market Enforcement and the GLAA board. Our amendment clarifies that relationship by requiring those exercising labour market enforcement functions to have regard to the labour market enforcement strategy. My noble friend Lord Deben asked how we will know whether this legislation is effective. The publication of the strategy—it will be made public—will enable us to understand what the priorities are for the Director of Labour Market Enforcement and what issues he is uncovering in carrying out his duties. In addition, we will set out how the GLAA board must carry out its functions in such a way as to fulfil its part in the labour market enforcement strategy. The GLAA board will remain accountable to the Home Secretary for the delivery of its functions, but those functions will now sit within the broader strategic context provided for by the role of the director.
Lord Bates
I shall do my best to address the point, and I hear what my noble friend says. He talked about the lack of pre-legislative scrutiny of the Bill, but of course there were two days of evidence-taking sessions in Committee in the Commons, which were all published and which actually helped us greatly in shaping many of these government amendments.
However, the Bill is particularly about protecting, if you like, in two ways. The first purpose of the Bill is to create some discomfort for those who are illegally in the UK so that they cannot have a normal settled life while they are actually trespassing on our laws and are here illegally. The other area, which I think should carry a great deal of support, is about making sure that those people who are here legally are treated properly. In that sense, putting those things together, we believe that the Title of the Bill still stands. I accept that there is an argument or debate on that, but I have made my response to that.
Baroness Hamwee
My Lords, with the leave of the House, I asked the noble Lord about a court in “a part” of the country, but I do not think that he has answered that question.
Lord Bates
I did not answer that, and it was a good question. There is a court in another part of the Chamber which is rushing advice to me, which will save another letter. In Amendment 21, what does the reference to a court in a “part” of the UK mean? Part of the UK in the context of these provisions on court proceedings means jurisdiction—whether the court is in England and Wales, in Scotland or in Northern Ireland. I hope that is helpful.
Lord Bates
“(iii) the information, or descriptions of information, that should be provided to the Director for the purposes of his or her functions by any person by whom, or by whose officers, labour market enforcement functions are exercisable, and(iv) the form and manner in which, and frequency with which, that information should be provided,”
Lord Bates
“( ) any function of an enforcing authority under this Chapter,”
Lord Bates
“Information gateways
(1) A person may disclose information to the Director or a relevant staff member if the disclosure is made for the purposes of the exercise of any function of the Director.
(2) Information obtained by the Director or a relevant staff member in connection with the exercise of any function of the Director may be used by the Director or a relevant staff member in connection with the exercise of any other function of the Director.
(3) The Director or a relevant staff member may disclose information obtained in connection with the exercise of any function of the Director to a specified person if the disclosure is made for the purposes of the exercise of any function of the specified person.
(4) “Specified person” means a person specified in Schedule (Persons to whom Director etc may disclose information) (persons to whom Director etc may disclose information).
(5) The Secretary of State may by regulations amend Schedule (Persons to whom Director etc may disclose information).
(6) In this section, “relevant staff member” means a member of staff provided to the Director under section 1(4).”
Lord Bates
“(2) The Director may request any person by whom, or by whose officers, labour market enforcement functions are exercisable to provide the Director with any non-compliance information specified or of a description specified in the request.
(3) “Non-compliance information” means information relating to non-compliance in the labour market which the Director considers would facilitate the exercise of any of his or her functions.
(4) A person by whom, or by whose officers, labour market enforcement functions are exercisable may request the Director to provide the person, or an officer of the person, with any enforcement information specified or of a description specified in the request.
(5) “Enforcement information” means information which the person making the request considers would facilitate the exercise of any labour market enforcement function of the person or of an officer of the person.
(6) A person who receives a request under this section must respond to it in writing within a reasonable period.”
Lord Bates
“SCHEDULE
PERSONS TO WHOM DIRECTOR etc MAY DISCLOSE INFORMATION
Authorities with functions in connection with the labour market or the work place etc
The Secretary of State.HMRC Commissioners.A person by whom, or by whose officers, labour market enforcement functions are exercisable.The Health and Safety Executive.An enforcing authority within the meaning of Part 1 of the Health and Safety at Work etc. Act 1974 (see section 18(7) of that Act).An inspector appointed by such an enforcing authority (see section 19 of that Act).An enforcement authority within the meaning of regulation 28 of the Working Time Regulations 1998 (S.I. 1998/1833).An inspector appointed by such an enforcement authority (see Schedule 3 to those Regulations)The Low Pay Commission.The Pensions Regulator.Law enforcement and border security
A chief officer of police for a police area in England and Wales.A local policing body within the meaning given by section 101(1) of the Police Act 1996.The chief constable of the British Transport Police Force.The chief constable of the Police Service of Scotland.The Chief Constable of the Police Service of Northern Ireland.A person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971.Local government
A county or district council in England.A London borough council.The Greater London Authority.The Common Council of the City of London.The Council of the Isles of Scilly.A county or county borough council in Wales.A council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.A district council in Northern Ireland.Health bodies
The Care Quality Commission.A National Health Service trust established under section 25 of the National Health Service Act 2006 or section 18 of the National Health Service (Wales) Act 2006. An NHS foundation trust within the meaning given by section 30 of the National Health Service Act 2006.A Local Health Board established under section 11 of the National Health Service (Wales) Act 2006.Other
The Independent Anti-slavery Commissioner.A Northern Ireland department.”
Lord Bates
“6A In section 15 (information obtained by officers)—
(a) in subsection (3)(b), after “any” insert “eligible”;(b) in subsection (4)(a), after “to any” insert “eligible”;(c) in subsection (8), for the words from ““relevant” to “body which,” substitute ““eligible relevant authority” means any relevant authority within the meaning given by section 13(1A) which”.”
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“( ) The code and any revised code—
(a) must not be issued unless a draft has been laid before Parliament, and(b) comes into force on such day as the Secretary of State appoints by regulations.”
Lord Bates
“(b) under the heading “Offices”, at the appropriate place insert “Director of Labour Market Enforcement”.
Lord Bates
“(1) Regulations under section 3 or 12 must not prescribe a requirement, function or offence if provision imposing the requirement, conferring the function or creating the offence falls within subsection (3).
(2) Regulations under section 9 must not confer a function if provision doing so falls within subsection (3).
(3) Provision falls within this subsection if—
(a) it would be within the legislative competence of the Scottish Parliament if contained in an Act of that Parliament,(b) it would be within the legislative competence of the National Assembly for Wales if contained in an Act of that Assembly, or(c) it would be within the legislative competence of the Northern Ireland Assembly if contained in an Act of that Assembly made without the consent of the Secretary of State.”
Lord Bates
““the Director” has the meaning given by section 1;”
Lord Bates
Lord Bates
My Lords, I have considered carefully the constructive debate on illegal working that we had in Committee—particularly on the amendments tabled by the noble Lord, Lord Rosser. I am also grateful to noble Lords who have given up so much time to discuss these issues with me in recent weeks. I accept that a compelling case has been made. I hope that with Amendments 44, 45, 47, 48 and 51 to Clause 32, which have been tabled in my name, noble Lords will agree that concerns have been addressed.
Illegal working is a key driver of illegal migration. Being able to work illegally encourages economic migrants to put themselves in harm’s way in efforts to enter the UK illegally or to overstay. We need to address these economic motivations. Illegal working also undercuts legitimate businesses which play by the rules, and may depress wages and the availability of work for British citizens and lawful migrants. Individuals with an irregular immigration status are likely already to be committing a criminal offence, regardless of whether they work. The creation of this offence does not alter the fact. Many economic migrants are not here because they have been trafficked or enslaved, but because they have chosen to break the law in order to work illegally in the UK.
Parliament has already provided immigration officers with powers to recover the proceeds of crime in relation to immigration offences through the UK Borders Act 2007, but the courts do not always regard earnings derived from working illegally as proceeds of crime when considering cash forfeiture or confiscation cases under existing legislation, so the provisions of the 2007 Act are being frustrated. We need to plug this important gap in the law to deter illegal economic migration, including by those who work as self-employed without permission.
Victims of modern slavery are not the target of the offence: they have a strong statutory defence provided for by Section 45 of the Modern Slavery Act 2015. Traffickers and slavers always try to mislead their victims about the consequences of asking for help from authorities or non-government organisations. Their business model depends on controlling their victims, including the victims’ access to information. I do not believe that the creation of this offence makes a material difference to traffickers’ ability to spread disinformation.
The truth is that there is only one way to counter the lies spread by traffickers: we need to empower victims by providing them with accurate information about their rights and means of redress, and we need to do this through channels that are accessible and trusted. That is why the Government work closely with NGOs and are constantly looking for new and better ways to reach victims.
I reassure noble Lords that the Government will ask the modern slavery strategy and implementation group, a group chaired by Ministers that brings together non-government organisations and other partners, to advise on what further steps can be taken to ensure that victims and would-be victims understand the law and know what support is available to them. The Government have put victims at the heart of our modern slavery strategy. We are also seeking to strengthen enforcement against exploitation through measures in Part 1.
However, as I said, we have listened carefully to the concerns expressed by noble Lords about the strict liability nature of the offence and the resulting disparity with the offence of employing an illegal worker. By tabling the amendments in my name, the Government propose to introduce a mens rea for the offence. The effect of the Government’s amendments is that the individual must either know or have reasonable cause to believe that they have no right to work. This means that the offence would not be committed by someone who is working illegally but does not know, or does not have reasonable cause to believe, that he or she lacks permission to work.
We feel that this strikes the right balance between protecting the vulnerable and ensuring that those who make no effort to ensure that they are complying with UK immigration law cannot simply plead ignorance of our Immigration Rules where they should have known that they had no permission to work.
I turn to the minor and technical amendments tabled in my name to Clauses 34 and 87 and Schedule 4. Amendments 53 and 55 to Clause 34 concern the powers to prevent illegal working in licensed premises. Clause 34 allows regulations to make provision for Scotland and Northern Ireland equivalent to that made for England and Wales. To this end, the clause allows the regulations to amend an Act of the Scottish Parliament. However, in Scotland the equivalent of late-night refreshment, so-called late-hours catering, is dealt with by the Civic Government (Scotland) Act 1982. This is an Act of the Westminster Parliament which predates devolution. Amendments 53 and 55 to Clause 34 address this technical conundrum.
Amendment 148 to Clause 87 deletes a reference to a regulation-making power for private hire and taxi provisions to cover Scotland and Northern Ireland. This is now redundant as the necessary provisions have been placed on the face of the Bill. Amendment 56 to Schedule 4 adds a definition of “the Immigration Acts” to the Taxis Act (Northern Ireland) 2008. This is a necessary amendment because the Interpretation Act (Northern Ireland) 1954 does not contain such a definition. Without this amendment, the provisions could not operate properly in Northern Ireland. I beg to move.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I associate myself with what the noble Lord, Lord Green, has just said. Clause 32 would essentially criminalise knowingly working illegally. I find it difficult to suppose that there would be much if anything in the way of the successful recovery of illegal earnings under POCA, and I can hardly think that that is the real object that underlies the proposed introduction of this new offence. Surely the real question is whether the suggested benefit indicated by the noble Lord, Lord Green—of adding this explicit new offence to the altogether more abstract existing offence of working in breach of immigration conditions, to discourage people smugglers by cancelling the message that they presently give to aspiring immigrants; namely, that there is no such existing offence here—outweighs the suggested risk of the exploitation of such workers by henceforth making it more likely that they will keep their illegal working secret. My judgment is that it does outweigh it. Therefore I support the existing clause as amended.
Lord Bates
My Lords, I guess that the noble Lord, Lord Rosser, is regretting raising the absence of legal advice on this point. What is so wonderful about this place is that, when we look for legal advice on our proceedings, up pop a former President of the Supreme Court, a former Lord Justice of Appeal and a former Lord Chancellor. One of the great advantages of this House is that we can draw on such expertise. I am particularly grateful to the noble and learned Lords for their contributions in this regard.
In the spirit in which my noble friend Lord Deben approached this matter, which is the spirit in which we approach the Bill, we looked at whether the “reasonable excuse” amendment would be able to hold up and work. The advice that came back was that it was thought that it would not work; none the less, in Committee the noble Lord, Lord Rosser, highlighted a number of cases in which people had been brought to this country believing that they had a legal right to be here. They had been told that by an unscrupulous employer but it then became manifest that they did not have that legal right. We agreed that there ought to be some defence and have brought that forward in Amendment 48 with the words,
“knows or has reasonable cause to believe”.
I shall deal with a couple of the points that have been raised. The noble Baronesses, Lady Hamwee, Lady Ludford and Lady Lister, rightly were all concerned about the impact on potential victims of trafficking and modern-day slavery. The suggestion that the Modern Slavery Act defence applies only after a charge is not correct, as that does not reflect the operational reality. We do not accept that the defence protects victims only after arrest—that is not the case. Law enforcement officers do not pursue investigations where a defence is clearly established. For example, it is a defence to a charge of assault if a person acts in self-defence and uses reasonable force. If officers establish that at the scene of an incident, they will not arrest a person, as to do so would be a waste of resources, as the noble Baronesses rightly highlighted.
I turn to how the clause on illegal workers will work. While many illegal workers do not earn significant sums, unfortunately some, particularly the self-employed, benefit from current loopholes in the law and make a good living out of being in the UK illegally. I am sure that the point that the noble Lord, Lord Green of Deddington, raised—about those who come here and move on to asylum—will be discussed when we reach a later clause concerning the ability to work while claiming asylum. The Proceeds of Crime Act 2002 (Recovery of Cash in Summary Proceedings: Minimum Amount) Order 2006 specifies that only cash sums of £1,000 and above may be seized. This means that the illegal worker must possess cash amounting to at least £1,000 before proceeds of crime action and cash-seizing powers may be used in connection with the new legal offence. We believe that that threshold, as well as closing a loophole, and the new mens rea defence, which is required to be proved in the court for a successful prosecution to occur, give the right balance and the right defence to ensure that the types of individuals whom the noble Baronesses, Lady Lister and Lady Hamwee, and the noble Lord, Lord Rosser, referred to are not caught inadvertently by this legislation.
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(a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;(c) an enactment contained in, or in an instrument made under, Northern Ireland legislation.”
Lord Bates
“( ) In subsection (1)(a)—
(a) “the Immigration Acts” has the meaning given by section 61(2) of the UK Borders Act 2007, and(b) the reference to an offence under any of the Immigration Acts includes an offence under section 133(5) of the Criminal Justice and Immigration Act 2008 (breach of condition imposed on designated person).”
Lord Cashman (Lab)
My Lords, I will be brief and make a couple of very quick points. There have been references to bogus asylum applications. If there are such applications, we should not punish those who are sincere and make valid ones. Equally, this amendment addresses a human rights obligation. Every civilised society is judged by how it treats those most in need. In this respect, the Government are sadly wanting and I urge them to accept this amendment.
Lord Bates
My Lords, I begin by paying tribute to the noble Lord, Lord Alton, for the way that he moved his amendment. Nobody could be unmoved by the way in which he presented the arguments, or by his clarity and compassion. They were very persuasive. Before I put some remarks on the record, I will just say—very carefully and respectfully—that as I was sitting here listening to the debate, I was wondering whether perhaps your Lordships did not quite understand what is happening or being proposed here. It is not being proposed in the Immigration Bill before us today that somehow we change the law so that asylum seekers who were hitherto able to work and earn a living are no longer going to be able to do so. That is not what is being proposed in the Bill.
In fact, up until 2002, it was an established policy that people could stay and work after six months. Forgive me for using party tags here, but I hope that the House will bear with me; I am not trying to make undue party-political points, but I want to set out the complexity of the issue. Then, in 2005, the previous Labour Government, as a result of opting into the 2003 EU receptions conditions directive, which sets out the minimum benefits and entitlements afforded to asylum seekers while they await a decision on a claim, changed the Immigration Rules, allowing asylum seekers to apply for permission to work in the UK if they had been waiting for more than 12 months for an initial decision on their case. That was the choreography: we are not talking about a proposed change now—this was changed back in 2005 under the previous Labour Government.
Baroness Ludford
The Minister kindly gave me an opening. I do not want to be an EU bore—although I guess I am—but whatever the Labour Government did, which I do not agree with, EU law in the previous reception conditions directive said that you had to allow asylum seekers to work at least after 12 months. There was nothing whatever to stop a Government allowing asylum seekers to work after six months. The Government have not opted into the new receptions conditions directive 2013; they did not follow the habit of previous Governments. That is the one that says that you have to allow asylum seekers to work after nine months—but you can let them work after three months if you want.
Lord Bates
That is absolutely right; I am not dissenting from that; that is the one that we decided not to opt in to under the coalition Government. My point was that when the Labour Government introduced the provision, it was fully compliant with the 2003 EU directive and met the terms and conditions. Of course, it can be relaxed. As the noble Lord, Lord Green, said, we could go to the extent of Sweden’s position as it operated it, where people could enter the labour market immediately on claiming asylum. Of course, we all know that Sweden has some of the highest numbers of asylum claimants, so we should not somehow be vilified for claiming that that might be a pull factor when the evidence seems to suggest that the terms and conditions might act in that way.
Having set out for the benefit of the House the fact that we do not propose to change a position that obtained under the coalition and was introduced by the previous Labour Government, I want to set out the argument for noble Lords to consider.
First, while awaiting a decision, asylum seekers receive free accommodation and a cash allowance; they have all their living needs met, in terms of utility bills, and have access to education and skills and our health services. Also, to answer the point made by the right reverend Prelate the Bishop of Durham, they can undertake volunteering activities while their claim is outstanding, and we are exploring ways in which to support that. This approach also assists genuine refugees. It is common knowledge that some people make unfounded claims. The figure of 61% is the figure that we have of initial claims that are refused. It is reasonable to assume that some do so because of the benefits, real or perceived, that they think they will gain here. Earlier access to employment risks undermining the asylum system by encouraging unfounded claims from those seeking to use the asylum system as a cover for economic migration.
The amendment would create further incentives for asylum seekers to choose to try to come here. In Europe we have seen the effect that those policies can have in driving migrant behaviour. The numbers choosing to live in squalid conditions in Calais, hoping to enter the UK illegally, rather than seeking protection in France, is testament to that fact. Allowing access to work after six months would be more generous than many other member states. The noble Lord, Lord Alton, referred to some—but it would certainly be more generous than some and more generous than is required under the current 2013 directive on reception conditions to which the noble Baroness referred. We should not do anything at this stage to encourage more people to risk their lives to undertake dangerous journeys to come across Europe instead of claiming asylum in the first safe country that they reach.
In the great majority of cases, asylum seekers receive a decision within six months, so we should think carefully about the particular asylum seekers whom the amendment would benefit. That would include those who were themselves responsible for delaying the consideration of their asylum claim. It could be argued that it could provide a perverse incentive for people to institute delays. It would also include those complex cases where there are good reasons, often related to serious crimes, established or alleged to have been committed by the claimant, why a decision on an asylum claim cannot be reached within six months. Those are the asylum seekers to whom the amendment would accord preferential treatment at the expense of UK residents, including refugees seeking employment here.
Again, I accept that the arguments in favour of the amendment are well made—not emotive, but clearly touching an emotion. The vast majority of asylum seekers come here to seek our protection and we expedite their assessment. When they come to this country, they come under our obligations under the refugee convention and the 1951 Act, which says that we must offer protection and humanitarian assistance. The argument was that when people entered into the labour market they would need to be provided with national insurance numbers and tax reference numbers as well, potentially, as pay roll numbers, all of which might mean that if their claim is not upheld and well founded, it is more difficult for them to be removed from the country. The other argument is that there are also 1.5 million people who currently do not have employment in this country, and it might be argued that somebody could go for a job in a particular location and find that they do not get that job because it is offered to somebody who is here on an asylum basis. They may feel some upset that people to whom we are offering humanitarian support are somehow put ahead of them in the jobs queue, which would be unreasonable.
Those are the broad arguments that can be presented on this issue. The essential one that I would ask noble Lords to reflect on is that in this Bill we seek to provide a protection of the existing laws governing immigration in this country, recognising that there is a great migration crisis on and many people are seeking to make their way through Europe on this journey. We are seeking control of migration flows into this country. Therefore, now is not the time to change rules that were introduced in 2005 by the Labour Government and which were then refined under the coalition Government. Now is not the time to make this change—and I urge the noble Lord to consider withdrawing the amendment.
Lord Alton of Liverpool
My Lords, the Minister was good enough to say at the outset that he thought that I had put a persuasive case—but clearly not persuasive enough to change his mind. The argument that this is not the time is one that we are all familiar with. I have heard it in both Houses of Parliament over the last three or four decades, again and again. Now is never the time. I was surprised by the Minister’s argument that if we were to pass this amendment we would be more generous than we are required to be. Those were his words. We are talking about £5 a day to subsist, instead of giving people the opportunity to do a job. If they are here illegally, they will not be taking somebody else’s job, because they will be deported. If they are here illegally, they are not becoming part of what he described as a perverse incentive for criminality—they will be deported. Our rules are quite clear. As the noble Baroness, Lady Lister, said, they are not here illegally; they are asylum seekers. As the noble Baroness, Lady Kennedy of The Shaws, said, the public understand the difference between people who are here illegally and trying to cheat our system and people who are genuine asylum seekers and who should be considered on the merits of their applications.
We have heard some extraordinary speeches, and I remind the House that we have heard only one speech against these amendments during the course of the debate, from my noble friend Lord Green. My noble and learned friend Lord Brown of Eaton-under-Heywood put the point that there was a balance of arguments. He, with his extraordinary legal experience, came to the conclusion that on balance it would be right to support this amendment and, in doing so, was echoing a point made by the noble Lord, Lord Rosser, from the Opposition Front Bench—that we will be incentivising the Home Office. We will be ratcheting up the process to deal with these applications to put them through within the six-month period because, if we do not, they would have the opportunity to go after a job and to do that job until the asylum application has been dealt with.
My noble friend Lord Wigley said that public opinion knows the difference between illegal migrants and asylum seekers, and that people who have skills will be deskilled—he referred to a pharmacist—if they are not given the opportunity to work.
Many other noble Lords have contributed to the debate, and I know that the House is now keen to reach a conclusion. I end by reminding the House of the vivid description that my noble friend Lady Neuberger gave during her remarks, when she talked about how like a swarm of locusts people will swoop on second-hand shoes, because they are so bereft of basic income or resources or the basic things to keep life and limb together. The noble Lord, Lord Roberts of Llandudno, said that this amendment is about hope for people of that kind. Hope was the one thing left in Pandora’s box—and here I do agree with the Minister. We are witnessing mass migration on a huge scale. This amendment, sadly, is unable to deal with that; it is far beyond its scope. What it will do is to offer some hope or support for people who find themselves in a position where their human dignity has been utterly degraded. Therefore, I seek the opinion of the House.
Lord Green of Deddington
My Lords, I take a different view on this and I do not apologise for doing so. I accept that the motivation is entirely well intended but I fear that it is completely impractical. Anyone who has been involved in issuing visas overseas will be astonished by this proposal. It would provide what will be seen by many as a wide-open door to the UK.
Earlier, the question was raised as to why the Government had not accepted the report from the reviewer. They could not have foreseen that the reviewer would simply deny that there were implications for immigration control, but there most certainly are. This is an invitation to anyone who comes here on a visa as an overseas domestic worker to leave their employment whether or not they are being abused. If they were being abused, of course I would support the idea that, through the mechanism that now exists, they should be helped, looked after and given time to organise their affairs. But the amendment says that any of the 17,000 workers who come here as domestic workers can leave their employment at any time and stay on for another two years with another employer. And then what? They will probably disappear. That is amazing and it cannot possibly be a basis for government policy.
Lord Bates
My Lords, this amendment brings us to the issue of how best to protect the interests of those who are admitted to the United Kingdom as domestic workers and how the Government plan to respond to the Independent Review of the Overseas Domestic Workers Visa, produced by James Ewins.
When we discussed similar amendments in Committee, I undertook that the Government would clarify their position on Report. I am pleased to be able to say that we have done so. The Minister for Immigration and the Minister for Preventing Abuse, Exploitation and Crime made a Written Ministerial Statement on 7 March setting out the Government’s response to Mr Ewins’s key recommendations. The meeting we had on 11 February at the Home Office, to which the noble Lord, Lord Hylton, referred, to discuss these issues was also attended by the Independent Anti-slavery Commissioner and Mr Ewins, and it greatly assisted the Government in coming to their final view.
The key issue is the proposal that we relax the employer tie. Mr Ewins proposed that we do this by permitting those admitted as overseas domestic workers to change employer and to be granted an additional two years’ stay for this purpose. The amendment before noble Lords would appear to go slightly further by providing for an additional two and a half years to be granted for this purpose.
The Government have considered this matter carefully. We have come to a somewhat different view of how best to approach it, but it is one that I hope will meet with the approval of your Lordships. Our primary aim is to ensure that, where abuse takes place, it is brought to light so that victims can be supported and action can be taken against perpetrators. Our concern is that if overseas domestic workers enjoyed an unconditional freedom to change employers and extend their stay for as long as two years, this would undermine the national referral mechanism and perpetuate a revolving door of abuse. The Government have also noted the view of the Independent Anti-slavery Commissioner that such arrangements might create a situation in which the trafficking of victims between employers flourished more easily.
The Government are proposing two changes in response to James Ewins’s proposal. First, they acknowledge that overseas domestic workers should have an immediate escape route from abuse. We will therefore, as the Independent Anti-slavery Commissioner has proposed, allow those admitted as domestic workers to take alternative employment as a domestic worker during the six-month period for which they have been admitted. Their entitlement to change employer will not depend on whether they have been a victim of abuse and they will not need to make an application to the Home Office for permission to do so, although we will wish to encourage notifications of any changes of employment. Secondly, we will increase from six months to two years the length of the extension of stay that can be granted to an overseas domestic worker who has been confirmed as a victim of slavery or human trafficking.
Taken together, these measures strike the right balance between ensuring that overseas domestic workers have a “self-help” remedy and ensuring that the national referral mechanism is not undermined. This approach will also complement the action that the Government have taken under Section 53 of the Modern Slavery Act 2015 to protect against enforcement action those identified as potential victims of abuse, and to provide actual victims of abuse with greater certainty as to their immigration status. By contrast, and contrary to the current provisions of Section 53, the amendment before noble Lords would appear to protect overseas domestic workers against enforcement action, irrespective of whether they had been the victims of abuse. That approach may simply invite wilful abuse of the terms on which such workers are admitted.
It is common ground between the Government and the proposers of this amendment that Mr Ewins’s recommendations concerning information, advice and support meetings should be adopted. The Government have made it clear that they will implement these recommendations as soon as possible. The amendment, however, seeks to impose a requirement to attend such meetings through guidance issued to immigration staff. It is not entirely clear how that would work, and the Government have indicated that they intend to go much further.
We will place the requirement to attend such meetings within a wider scheme of controls aimed at enforcing the obligations placed on the employers of such workers. We will do so by introducing a system under which such employers must be registered with UK Visas and Immigration. If employers fail to comply with their obligations, we will be able to consider striking them off the register so that they will no longer be able to sponsor the admission of domestic workers. The existence of such a register will send a powerful deterrent message to those employers who may otherwise doubt the seriousness of our intention to root out abuse.
The Government have made it clear that they will implement the planned changes through changes to the Immigration Rules. No amendment of primary legislation is required. The Government consider their response to the independent reviewer’s report to be a coherent approach to the issues, balancing the need to encourage those who are victims to access the national referral mechanism, the need to provide support to victims where they are identified, and the need to adopt more measures to deter employers who think the system is blind to their activities.
The noble Lord, Lord Hylton, asked how many cases involving overseas domestic workers had been handled by the national referral mechanism. Between January 2009 and December 2015, there were 80 positive conclusive grounds decisions under the NRM in respect of non-EEA nationals admitted as overseas domestic workers. Those admitted as overseas domestic workers accounted for 3% of all NRM referrals between July and December 2015. Of those overseas domestic workers in the NRM process, so far about 30% have obtained a positive conclusive grounds decision and at least 29 referrals still await a decision.
How many overseas domestic workers have received compensation or an extension of their visa as a result of having entered the NRM process? We do not have figures for what proportion have received a conclusive grounds decision under the NRM and have also been granted an extension of stay. If we can establish that figure, I will write to the noble Lord. How many employers have been prosecuted or banned? No reliable figures are available for this. In fact, in his report, James Ewins referred to the absence of information available to him.
I think I have covered most of the points and questions that were raised. From what the noble Lord, Lord Hylton, has said, I have picked up that he intends to press his amendment and that no matter what we say it will be very difficult to move him on that. However, I personally firmly believe that his amendment would put more people at risk than the current policy, as set out and amended, before us today—it is a carefully considered mechanism. I ask the noble Lord and the Opposition to think very carefully about that. They are proposing that there should be no obligation for people to go through the national referral mechanism, but if they do not, we do not have a record of who employers have been carrying out this abuse on. It is a revolving door for abuse: the employers can go on abusing and go on bringing people in, and they will not be prosecuted. That is a tragedy and a complete failure, not just for the people who are here but for those who are going to be brought here in the future.
Under the national referral mechanism, people get access to a whole range of benefits provided by the Salvation Army. They get safe accommodation; emergency medical treatment; material assistance; access to a complaints service; translation and interpretation services; information and signposting; advocacy for specialist services; access to education for dependent school-age minors; and transport services. They get access to all those things but under this amendment they would not.
The noble Lord asked me in Committee if we would organise a meeting and invite James Ewins. We did better than that: we invited James Ewins and we also invited Kevin Hyland, whom we appointed to act as the Independent Anti-slavery Commissioner and who enjoys widespread respect in this House for clamping down on trafficking. Do you know what he said at that meeting on 11 February? The noble Lord, Lord Hylton, heard it as clearly as I did. He said he feared that by adding another two years to the time that people could stay here, they would be made vulnerable to the trafficking gangs that all our modern slavery legislation has been introduced to mitigate.
Having seen the vote on the previous amendment, I know that the noble Lord has the numbers to get this amendment through. However, I urge him to think carefully about whether this will make people safer. Fewer people will be prosecuted because we will not know about them, more people might fall victim to the trafficking gangs, and fewer people will get access to the type of services provided by the Salvation Army. I ask the noble Lord to think very carefully on that before he presses his amendment.
Baroness Hamwee
Mr Ewins’s report, and his presentation at that meeting and on other occasions, was very impressive. Has the Minister discussed with him the balance between the prosecution of employers—who in this case, as I understand it, are domestic individuals and not gangs of traffickers—and the protection of individuals? Mr Ewins proposed extending the visa. Does the Minister know Mr Ewins’s view on whether taking the route proposed by the Government instead will mean that more victims will come forward than do at present?
Lord Bates
More will come forward than do at the moment. We are implementing the vast majority of what James Ewins recommended. He recommended, supported by Kevin Hyland, that there ought to be information meetings. It will now be a requirement that that will happen within 42 days. We are flexible on that, and if it needs to be sooner, we will look at that very carefully. The reality is that to qualify for this visa people will have to sit down with somebody who is independent—not from the Home Office or the Government—who will ask them if they understand what their rights are. These are unprecedented protections that have been put in place by the Government, alongside the Modern Slavery Act—we are leading the world in this area. I urge the noble Lord to think very carefully about the safety of people and the ability of the police to prosecute those who are carrying out this heinous abuse of the most vulnerable people in our country.
Lord Hylton
My Lords, I am extremely grateful for the support I have had from the Opposition Front Bench. It has been suggested that implementing the review is impractical. But I say to my noble friend Lord Green and to the Minister that that surely overlooks the point that changes of employer would have to be registered. The Government also rely on the national referral mechanism, but there have been serious criticisms of how that mechanism works in practice. This whole discussion shows how closely interrelated domestic and overseas issues have become.
Lord Bates
I am sorry to interrupt, but I want to make a very important point. People need to understand that there have been criticisms about the national referral mechanism and that is why we asked Jeremy Oppenheim to undertake a review. He undertook a comprehensive review, which was discussed during the passage of the Modern Slavery Act and which we are now going through and implementing to ensure that it works in a way that is on the side of victims.
Lord Hylton
I think it is paradoxical for the Government to have a review and then turn down two-thirds or so of its recommendations. As I was saying, home issues and overseas issues are closely related—
Lord Bates
If it were not such an important issue, I would not intervene again, but I am afraid that it is not true that we have turned down two-thirds of those recommendations. We asked Jeremy Oppenheim to undertake that review and we have implemented the vast majority, if not all, of its recommendations. Some elements related to child trafficking advocates. There was a trial; it was not working as we wanted and we said that we would look at it and do something else. But that is not turning down two-thirds.
Lord Hylton
It is clear that the Minister and I are not going to agree tonight, so I wish to test the opinion of the House.
Immigration Bill
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Lord Bates
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 9, Schedule 1, Clauses 10 to 29, Schedule 2, Clauses 30 to 34, Schedule 3, Clause 35, Schedule 4, Clause 36, Schedule 5, Clauses 37 to 43, Schedule 6, Clauses 44 to 52, Schedule 7, Clause 53, Schedule 8, Clauses 54 to 57, Schedule 9, Clauses 58 to 62, Schedule 10, Clause 63, Schedule 11, Clauses 64 to 69, Schedule 12, Clause 70, Schedule 13, Clauses 71 to 84, Schedule 14, Clauses 85 to 90, Title.
Lord Taylor of Holbeach (Con)
My Lords, in the absence of my noble friend, I beg to move the Motion standing in his name on the Order Paper.
Immigration: Harmondsworth
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Lord Roberts of Llandudno
To ask Her Majesty’s Government, in the light of the publication on 1 March of the Chief Inspector of Prisons’ Report on an unannounced inspection of Heathrow Immigration Removal Centre: Harmondsworth site, what action they are taking to rectify the situation.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, the Government take the welfare of detainees extremely seriously. We have independent inspections and publish service improvement plans. We will closely monitor progress towards implementing the recommendations, and have recently announced a strategic response to Stephen Shaw’s report to provide greater protection for vulnerable refugees.
Lord Roberts of Llandudno (LD)
The unannounced inspection of Harmondsworth must cause us all tremendous disquiet, as it did the inspectors. What steps are the Government taking to rectify the dirty, overcrowded and poorly ventilated residential units, unsanitary toilets and showers, and disregard of mental health issues? Will the criticism that many of the 661 detainees in what is Europe’s largest immigration detention centre were held for an unreasonably long time—one for five years, 18 others for over one year—prompt the Government to end the indefinite detention of immigration detainees?
Lord Bates
The report by the inspectorate was very serious and disappointing. Stephen Shaw made 58 recommendations, 50 of which were accepted immediately. James Brokenshire set out in a Written Ministerial Statement on 14 January the Government’s plans to deal with that, and already we have posted a service improvement plan—what we are going to do to address the very points mentioned in the report of Her Majesty’s Chief Inspector of Prisons. We will continue to monitor that progress.
Lord Trimble (Con)
My Lords, have any of those being removed committed offences here or abroad? If so, how many of them?
Lord Bates
Currently in the immigration detention estate there are about 2,700 people. Of those, 40% are foreign national offenders. If one then takes into account those who have committed immigration offences, they are the overwhelming majority of all those who are held in detention. They are held in detention as a last resort in exceptional circumstances, just prior to departure.
Lord Rosser (Lab)
My Lords, the Chief Inspector of Prisons states in his introduction that the report,
“highlights substantial concerns in most of our tests of a healthy custodial establishment”.
He also states that many of the concerns that were identified in 2013, when Harmondsworth IRC was run by the GEO Group, have not been rectified, and in some respects matters have deteriorated since then, even though since September 2014 the Harmondsworth site has been run for the Home Office by the care and custody division of the Mitie Group. What penalties under the terms of their contracts have been, and will now be, incurred by the two contractors concerned, since presumably the Minister can confirm, in the light of the adverse reports from the chief inspector in 2013 and again in his latest report, that neither contractor has run or is now running the Harmondsworth site in accordance with the terms of their contract?
Lord Bates
That is something that is under active review at this point in the light of Stephen Shaw’s report. He identified that there had been some improvement in a number of areas since 2013, particularly in the physical infrastructure of the site, but nowhere near enough. There are very strict criteria set out for performance in the contract, and they are being reviewed by the Home Office. We will of course make public what actions will be taken when a decision has been reached.
Lord Greaves (LD)
No, we have just had a Labour question.
Yesterday I visited some houses in a Home Office scheme in a street in West Drayton, run by an adjoining hotel, Heathrow Lodge, which provides a few days’ initial short-term accommodation for asylum-seeker arrivals before they are dispersed. There are very basic bedrooms, with communal bathrooms and no kitchens. Will the Minister look personally into the numerous problems that I found there? I will send him a briefing, but they included people who seemed to have been effectively abandoned there for up to three months instead of three days; the quality of food provided; a lack of necessary Home Office communication and documents; ridiculous rules; a lack of facilities for a one year-old child who had been there for some time, and much more.
Lord Bates
I am very happy to look at those issues, just as we looked at the issues raised by cases in Cardiff and Middlesbrough recently. If the noble Lord supplies me with information, I am very happy to look at it more closely.
Lord Lea of Crondall
My Lords, can the Minister throw a little more light on the remarkable statistic referred to by the noble Lord, Lord Roberts of Llandudno, that someone has been in there for five years? How can that be?
Lord Bates
It is certainly the case that 92% have been there for less than four months, and the time is reducing. Of course, those who have been there for longer than four months—in fact, for longer than 28 days—are often people who are working very hard to avoid their removal. They are perfectly entitled to do so, but they are trying to frustrate the system. We have concerns about public safety. That is the reason why they are there and have not been granted bail.
Lord Foulkes of Cumnock
My Lords, we have gone through four Questions this morning. Has the Minister, like me, been thinking, “How long will it be before we can forgive the Liberal Democrats for not dealing with these problems when they were part of the coalition”?
Asylum: Processing of Applications
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Baroness Hamwee
To ask Her Majesty’s Government what is their assessment of the amount of training required by employees on temporary contracts who process asylum applications, including gap-year students.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, all members of staff who make decisions in asylum cases, whether on temporary contracts or otherwise, receive the same level of training. This includes a dedicated five-week foundation training programme that includes training on international and domestic law and safeguarding issues.
Baroness Hamwee (LD)
My Lords, the decisions that people dealing with asylum applications have to take are very sensitive and complex. Would the Minister agree that they require skills such as critical analysis, sensitivity and maturity? Is it appropriate for young people—by definition students, as referred to in the Observer article—to be taking such decisions? Is there likely to be an extra cost to the Government from incorrect decisions being taken by people who do not have those attributes?
Lord Bates
I can understand the concern, because these are very sensitive issues that people are being asked to deal with. But I can reassure the noble Baroness that out of the 290 decision-makers currently looking at cases, two are undergraduates in law. Under this scheme we have often looked in particular at people who have an interest in law—perhaps with the possibility of their coming in to become decision-makers in future—who might get some experience doing that. They have their induction course with all of that but, crucially, they also have mentoring. An experienced person must sign off on all decisions taken by that individual. That is a very important safeguard which I hope will reassure noble Lords.
Baroness Afshar (CB)
My Lords, as a teacher of Islamic law in Strasbourg, I can tell noble Lords that even post-doctoral students take a very long time to understand the complexities of notions such as rights, entitlement, duty and obligations, which are very different from current secular or Christian laws. I am not sure that five weeks is quite enough for people to grasp that knowledge, as well as having the social abilities to know what the facilities are. It is multi-tasking.
Lord Bates
The short answer, of course, is that it is not enough—and, of course, that five weeks is then followed up by a period of at least six months when they receive close mentoring and all their decisions are checked. Also, in the cases that the noble Baroness mentioned, when there are areas of particular sensitivity, when people have been victims of torture or violence, or where there are LGBTI issues, there is also the provision of a second pair of eyes, which means that, even when an experienced person has done the evaluation, another experienced person will look at it. Of course, in the extreme situation that that person disagrees with the finding of the decision-making officer, they and their legal advisers will have the opportunity to appeal.
Baroness Gardner of Parkes (Con)
What is the position regarding the phone helplines that we discussed with regard to the Immigration Bill this week? Is the same type of education or training given to people whatever phone line they work on—health or immigration? How qualified are they? Are they like insurance companies, which have a list of answers, and if you ask a question outside the list they have no answer? I do not think that we got an answer on that from the Minister the other day.
Lord Bates
I am trying to remember the immigration phone line to which the noble Baroness refers. I assume that she means the right-to-rent checks, for which there is a helpline charged at local rates. That is simply just to check immigration status. It is almost a binary issue of whether the person is legally entitled to be here or not. We think that it can probably be dealt with at that level.
Lord Hylton (CB)
My Lords, I understand that students may well be able to carry out clerical functions connected with processing, but will the Minister assure the House that they are never in a position to conduct the substantive interviews on which essential decisions depend?
Lord Bates
If they have the qualifications and the mentoring in place, they can undertake those interviews. It is very important to say that their work is overseen by the independent chief inspector. When he looked at this, he found that the decision-makers were professional and dedicated and demonstrated commitment to fairness. Perhaps it might also be of interest to noble Lords to visit the office in Croydon—I can arrange that—to see the type of people who are undertaking these very important decisions.
Lord Christopher (Lab)
My Lords, this department is not the only one which is employing temporary staff to deal with complex problems. The subject of this Question is not a problem that is going to go away quickly. Who knows how many years it will be before the number of asylum seekers declines seriously? It is appalling that we have this situation. It is similar in HMRC with temporary staff. It is quite disgraceful. There has to be some reason why the Government are doing this rather than establishing posts.
Lord Bates
The reason we are doing it is to ensure that people get crucial decisions as quickly as possible. When we inherited this system, we had a backlog of 400,000 pre-2007 cases. Everyone was rightly expressing concern about that. That was why we needed to bring in people who could work through that backlog. The backlog has gone. We now have professional standards of six months for simple cases and one year for more complex cases. This is not like other areas where you get a seasonal flow, such as with passports or student visas. Because of events in Syria, there is currently a 29% increase in the level of applications. So it is very difficult to manage, and the people who are doing it are doing it in a very professional, effective and sensitive way.
European Union: Refugees
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The Minister of State, Home Office (Lord Bates) (Con)
I join other noble Lords in paying tribute to my noble friend Lord Higgins for securing this debate. He may have waited a little time for it come up, but the usual channels, with impeccable timing, have brought it to our attention today. The debate that we have had around these issues has been of great value, and I hope to add to it with some responses to the legitimate questions that have been raised.
The UK Government recognise the importance of this issue and are committed to supporting our European partners to ensure the full and proper management of the EU’s external border, reduce the impact of illegal migration and deter people from risking their lives on perilous journeys, as well as to increase security at the border. The noble Baroness, Lady Smith, reminded us of the scale of the human loss. Last year it was 3,771 lives, and she used the figure so far for this year of 418, which may be more up to date than the 410 which I have in the briefing I received this morning. The scale is quite shocking.
It is important to clarify that although the UK is not part of Schengen or a member of FRONTEX, we want to support the operational work of the proposed EU border agency, in the same way that we currently support FRONTEX operations. A number of noble Lords, including the noble Lords, Lord Rosser and Lord Hannay, the noble Baroness, Lady Smith, and my noble friend Lord Smith, asked whether we were standing aside and how we were engaging with our European partners.
If the House will bear with me for 30 seconds, I will just point out that this is of course the dominant issue on the European agenda—in fact on the international agenda—at present. The British Government were represented at the Justice and Home Affairs Council on 25 and 26 January, at an informal strategic committee on immigration, frontiers and asylum in Europe on 15 and 16 January, and at the European Council on 18 and 19 February. This week, we have the France-UK summit on Thursday. The Prime Minister and the leaders of the French Government, along with the Foreign Secretary and the Home Secretary, will be there in Amiens. Next week, as the noble Lord, Lord Hannay, mentioned, is the EU-Turkey summit, to move that agenda forward. There is the Justice and Home Affairs Council the week after and then the European Council the week after that. At the end of the month, there is the UNHCR meeting on Syrian refugees.
That is not meant to be an exhaustive list, but I read it out to stress that, from my experience of working in the Home Office, my colleagues in the department are actively engaged in this on a daily basis. We totally endorse and accept the points made by the noble Lords, Lord Hannay and Lord Rosser, the noble Baroness, Lady Smith, and indeed my noble friend Lord Higgins himself that there cannot be an ounce of schadenfreude —the term I think the noble Earl, Lord Sandwich, used—about what is happening there. I was reminded as they were talking of the aphorism that if you do not visit your problem neighbourhoods, then your problem neighbourhoods will visit you. That works in a domestic setting and certainly in an international one.
As the noble Lord, Lord Rosser, invited us to say, we are focused not just on what is happening but on dealing with the causes. That was one of the reasons for the Valletta summit between EU and African partners, which set out a significant agenda for action to respond to and tackle the flows from Africa. It was notable that, in response to that, we have I think seen the principal flows in recent months from the central Mediterranean reduce significantly, to 9,000 arrivals in the first two months of this year. The principal route now is through the Aegean, with 120,565 arrivals.
That link with tackling these issues at source in Africa reminds me to pay tribute to the work that my noble friend Lord Higgins did all those years ago in bringing Ugandan Asians to this country. They have made an immense contribution to it, and we are certainly delighted that we have one of them, our noble friend Lord Popat, on this side. We look forward in years to come to perhaps being joined by one of those Syrians who have been offered sanctuary in this country too.
European Union member states are facing unprecedented pressures on their time. That is why the UK is taking a comprehensive approach to the migrant crisis, intervening at every stage of the migrant journey—at source, in transit, at the EU’s frontier, at our border and in the UK. We want to help build stability in the countries these migrants come from and we are engaging in the largest-ever humanitarian response to a single crisis. At the Syria conference in London on 4 February—which I left off the list I gave earlier—the Prime Minister announced that the UK will more than double its support in response to the Syria crisis, to over £2.3 billion. That is the kind of generosity that the noble Lord, Lord Hannay, urged us to have.
To help those in need of genuine protection, the UK is expanding its scheme to resettle vulnerable Syrians from the region. We have exceeded our commitment to resettle 1,000 Syrian refugees before Christmas, and expect to resettle up to the full commitment of 20,000 Syrians by 2020.
In relation to the external border, the UK is playing a part in the maritime operations. Royal Navy operations in the Mediterranean have so far saved 12,500 lives and it is currently involved in NATO activities in the Aegean. This is not just a Syrian crisis; many nationalities are trying to come to the EU. As my noble friend Lord Smith urged, the EU needs to be firm with those who do not need protection, pose a security risk or refuse to co-operate with the asylum process.
With regard to the Government’s approach to European Commission initiatives, the Government fully support the Commission’s hotspots proposal, which aims to address these issues at the border. In our view the hotspots can contribute to better management of the EU’s external border by securing the rapid return of those without a legitimate asylum claim. It is important that we do not focus exclusively on facilitating relocation but fulfil this wider security objective. The noble Baroness, Lady Ludford, referred to the fact that these hotspots had taken too long to set up, and we concur with that. At the meetings I have mentioned we always urge our colleagues to work faster, in addition to providing additional support. We have announced £65 million of help for our European colleagues in this situation, a significant proportion of which—£45 million I think—is to go to Greece.
A number of Lords referred to the key issue of organised crime, which is a staggering problem. Europol last week estimated that of those arriving in the European Union in search of asylum 90% had paid a criminal gang to get here. That gives us an idea of the scale of the problem. Since last year, UK law enforcement has disrupted more than 170 organised crime groups involved in organised immigration crime. Since April 2015 immigration enforcement has disrupted 94 organised crime groups involved in organising immigration crime, 12 of which involved people smuggling. The noble Baroness, Lady Ludford, asked for an update on that. These cases are currently being processed through the courts. To give one example, however, one group that was disrupted in December involved 23 people from Sweden, Austria, the UK and Greece, and was responsible for bringing 100 migrants a day into Greece. This group had made an estimated €10 million in the process. These are significant issues.
I can reassure, I hope, the noble Earl, Lord Sandwich, on some of the points he raised about the Prüm issues, which we have opted into. We are working with our colleagues in communicating information about the second-generation Schengen information system, which we are part of, the European arrest warrant framework, which we are part of, Europol, with which we work, and the European criminal record and information service, which is part of that. We want those data to be collected as people arrive in those hotspots, so that the data can be shared with us through the Dublin process. We can then ensure that our borders are secure. That is also a reason why we want to take more people from the region. As my noble friend Lord Smith said, when people come here they have often genuinely lost their documents in their struggle to get here, and sometimes they have chosen to destroy them to avoid their identification. That poses a particular risk. That is one reason why we want to take more people from the region, because there, through the UNHCR or the International Organisation on Migration, we can identify them, and then we have an additional layer of verification through the Home Office systems before someone qualifies for membership in the Syrian vulnerable persons relocation scheme.
My noble friend Lord Higgins also referred to Turkey. The UK Government have committed £250 million to securing that crucial southern border to the region to tackle that issue. The House will be updated on progress on that.
Time is running out on this debate, but I want to communicate one message. First, the UK Government are absolutely committed to working with our European partners to resolve this issue. This is not a UK problem, it is a European problem—in fact, an international, worldwide humanitarian problem—and we need to work together. That is happening daily. Secondly, we are not being complacent but putting resources behind that through the European Asylum Support Office, hotspots and finance, and bringing people to the UK from the region, to provide that safe alternative route to undertaking the perilous journey that we want them to avoid.
I again thank my noble friend Lord Higgins for securing this debate and all those who contributed.
Lord Higgins
My Lords, the whole House will have benefited from the excellent documentation that the Library has produced. I think it will be of wider interest than just to those who have taken part. I thank all those who spoke for their interesting contributions, particularly my noble friend. I do not doubt that this is a subject to which we will return soon, and I hope that the usual channels can make suitable time available.