Modern Slavery Act 2015

Lord Keen of Elie Excerpts

Wednesday 13th April 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to the noble Baroness, Lady Young of Hornsey, for the Question. I am aware of the strong interest she has always expressed in the transparency provisions in Part 6 of the Modern Slavery Act, and I believe she recently held a round table with a number of NGOs, businesses and other Peers in order to discuss these matters. Pursuant to Section 54(9) of the Modern Slavery Act, guidance for business has been published to help organisations comply with the requirements of the transparency measures in Part 6 of the Act. This includes the requirement to place a link to a statement on their website or, if they have no website, to make it available within 30 days of a request. Organisations failing to comply with their duty will face mounting consumer and investor pressure. If an organisation fails to comply, the Secretary of State may secure a court order.

[Baroness Young of Hornsey (CB)]

I thank the noble and learned Lord for his response. The Home Office guidance on transparency in the supply chain states that the Government expect,

“organisations to build on their statements”,

and “improve” them “over time”. Can the Minister assure the House that a robust monitoring process has been established that supports this ambition and that there is a strategy for making accurate and accessible information free and readily available to members of the public, NGOs and other interested parties?

[Lord Keen of Elie]

There never was an intention to establish any central monitoring system with respect to these provisions. The idea was that there should be far more carrot than stick, and that peer pressure should be brought to bear on companies in order that they address their responsibilities. This was not intended to be some sort of tick-box mechanism whereby they simply put a form into a central repository. However, every company or organisation will be required to have a prominent place on their website to which members of the public may go to establish that the statement required by Part 6 has been made.

[Baroness Butler-Sloss (CB)]

What progress is being made towards having a national website on which every business that has to have this message can put it?

[Lord Keen of Elie]

There is at present no intention that there should be such a national website.

[Baroness Stroud (Con)]

The anti-slavery commissioner plays a crucial role in tackling modern-day slavery. Given that, will my noble friend please outline plans for the anti-slavery commissioner to be directly involved in the implementation of Part 6 of the Act, with particular reference to work encouraging businesses in this race to the top?

[Lord Keen of Elie]

I wonder whether the noble Baroness will allow me to write to her on the position of the commissioner, because I am not aware of his precise role in the implementation of Part 6, as distinct from his other roles.

[Lord Rosser (Lab)]

My Lords, if peer pressure does not work—by which I assume the Government mean that people do not stop using firms that are still exploiting labour as part of the supply chain—are we getting the loud and clear message from the Government today that they do not actually intend to do anything themselves?

[Lord Keen of Elie]

That is not so. As has been made clear, the Government are committed to reviewing the transparency and supply chain regulations over a five-year period and have already established a two-year internal research programme to look at the effectiveness of the provisions, which will be monitored and considered. They have to be given an opportunity to work. We are in the vanguard of these developments: they were proposed in California, and we were the first country to follow suit with similar provisions, wider in their terms even than California’s. Other countries are looking with interest at the direction in which we have taken this matter.

[Baroness Doocey (LD)]

What steps are the Government taking to eradicate modern slavery from supply chains, following the recent report by the British Medical Association which uncovered evidence of endemic abuses of labour rights in the medical gloves sector, which is within the Government’s own supply chain?

[Lord Keen of Elie]

The United Kingdom Government successfully campaigned to establish the first ever UN target for ending modern slavery: sustainable development goal 8.7, which was adopted in 2015 and requires Governments to take immediate and effective measures to eradicate forced labour and end modern slavery and human trafficking. In 2015, the United Kingdom also became the third country in the world to ratify the International Labour Organization’s forced labour protocol, which commits to ending forced labour. Steps are being taken by the Home Office and other government departments to ensure the clarity of their supply chain.

[Lord Alton of Liverpool (CB)]

My Lords, how does the Minister square what he has said to the House about not having a central repository in which people can find out exactly what the interests are of those involved in supply chains, with what his predecessor said when we debated an amendment I moved a year ago in your Lordships’ House? His predecessor said,

“we want to see these statements in one place so that people can monitor and evaluate them to ensure that the intended action takes place”.—[Official Report, 25/2/15; col. 1750.]

How does the Minister square what he told the House with what the anti-slavery commissioner, Kevin Hyland, said, which was quoted during those debates—

“I can confirm I fully support the suggestion of a website as the central repository for reports”—

and the evidence given to the House when the California experience failed because of the inability to have such a central website?

[Lord Keen of Elie]

The Government have always been clear that it is for others to establish such a mechanism. We are aware of a number of organisations that propose to set up a central repository. Indeed, I understand that Unseen and the Business & Human Rights Resources Centre have collaborated to develop a central repository for transparency statements linked to the enhanced Modern Slavery Helpline, to be launched later this year.

[Lord Tebbit (Con)]

My Lords, have the Government ensured that if they take discriminatory action against such companies, they will not fall foul of any European Union legislation?

[Lord Keen of Elie]

There is no issue of discrimination arising in these circumstances.

Immigration Bill

Lord Keen of Elie Excerpts

Monday 21st March 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, no one could but be moved by the strength of feeling and concern that has been expressed in this House with regard to events in the Middle East. Several of your Lordships have eloquently articulated the terrible threats that Daesh or ISIS poses to the populations of the Middle East. Who could gainsay the ghastly evidence of some of the events that have been reported?

All of us want to do everything that we can to support the victims of such terrible violence. All of us want to alleviate the suffering experienced in Syria and Iraq at present. But to do that, our primary priority must be to secure an end to the conflict in Syria and Iraq, in order that people can return to their communities and their lives. That is what this Government have been committed to achieving, and I shall not repeat the points made earlier about the steps taken in that regard.

I urge your Lordships to read the amendment to see what, on the face of it, it is intended to do. The noble Lord, Lord Alton, finished by saying that the intention was to bring those individuals responsible to justice. That, with respect, is not the objective of the amendment. Indirectly, it might achieve that, but let us remember to emphasise individuals. We cannot bring Daesh to justice; we must identify the individuals within ISIS and Daesh who have been responsible for these terrible crimes. That is not the objective of this amendment at all.

The amendment deals with three matters. Essentially, proposed new subsection (1) is a presumption that if a person is a member of a certain grouping they have been a victim of genocide. Secondly, there is an adjudication and, thirdly, there is an application process by which an individual who is a member of a group that has been subject to genocide can secure asylum in the United Kingdom but, more importantly, can secure that by means of an application form outside the United Kingdom—a unique and quite unprecedented step in the context of refugee law. Indeed, I would respectfully adopt the observation of the noble Lord, Lord Pannick, when he said that he had much more difficulty with the substance of the amendment. With respect, so have we, because if we look at the substance of the amendment, we have to consider the background to what is being addressed.

There are two entirely distinct conventions here. There is what is shortly termed the genocide convention, which is concerned with the identification and prosecution of those guilty of the terrible crime of genocide. Then there is the refugee convention, which is concerned with the circumstances in which a country such as the United Kingdom has an obligation to those who are defined—

[Lord Carlile of Berriew]

My Lords—

[Lord Keen of Elie]

I shall finish the sentence, if I may—to those who are defined as refugees. The two are entirely distinct. Under—

[Lord Carlile of Berriew]

The noble and learned Lord said that he was going to give way at the end of the sentence. I detected a full stop. With all his legal experience, he surely knows that numerous applications relating to residence in the United Kingdom are made from outside the United Kingdom. For example, visas are applied for outside the United Kingdom. What is so unique about extending that process?

[Lord Keen of Elie]

I am obliged to the noble Lord. I was aware of that—and, of course, the distinction lies in international law. Our obligation towards asylum seekers arises under the refugee convention, and it is in accordance with that that we deal with these applications. I shall elaborate on why that poses such severe problems in the context of the amendment.

Under our own Immigration Rules we have provision for those who enjoy refugee status, which includes those who are the victims or potential victims of genocide. But of course it also extends beyond that category to those who are the victims or potential victims of persecution—for example, political persecution, which would not be covered by this provision. If we look at the provisions of the refugee convention, we find it explicitly stated at Article 3 that in dealing with applications for asylum there will be no discrimination on grounds such as nationality, ethnicity or religion. Indeed, that is reinforced by Article 14 of the European Convention on Human Rights.

While I understand the desire of the noble Lord, Lord Forsyth of Drumlean, to see some help extended to the Christians in Syria, and the Yazidis as well, the reality is that if we had this provision in law we would have no right to discriminate between Christians and Yazidis. We know that in fact the activities of ISIS and Daesh in Syria and Iraq are directed not just at the Christian or Yazidi communities but at the Shia Muslim communities within these countries, at the Kurds and even at the Alawites. All those would also be in a position of complaining that they belonged to a group that was potentially the subject of genocidal acts, torture or violence.

[Baroness Kennedy of The Shaws]

The Yazidi are in a different position, which is why I raised them particularly. They are perceived by ISIL as not being one of the Abrahamic religions. Their religion predates even Judaism. As a result, ISIL sees it as something totally inimical to being human and as something other. That is why it feels quite at liberty to diminish this people to nothing. That is why it thinks that that is permissible, and that is why it is genocide.

[Lord Keen of Elie]

I am obliged to the noble Baroness, but the reality is that under the refugee convention and the European convention we could not in legislation discriminate between particular communities, such as the Yazidis, the Christians or the Shia Muslims. It goes further than that because we know that at present there are something like 4.8 million Syrians displaced in the Middle East, in Turkey, Lebanon and Jordan. It goes even further than that because, as the noble Lord, Lord Judd, observed much earlier in the debate on this Bill, according to the United Nations there are something like 19.5 million refugees in the world at present, whether they be in Darfur, Burma, the Middle East or elsewhere. The figure I had was 20 million, but in the context of such a catastrophe, perhaps 500,000 does not make an enormous difference. The reality is that this amendment would, on the face of it, open the United Kingdom to immigration by all 19.5 million people who could claim to be in that position. Noble Lords may scoff, but that is why it is so important that we examine the implications of the legislation proposed. Indeed, I have only to cite the example of Germany to point out the consequences of unintended action.

[Lord Alton of Liverpool]

Will the noble and learned Lord point out where in the amendment it specifies anything about Yazidis or Christians? The amendment says that if there is evidence of genocide, that evidence can be laid before a High Court justice for the justice to determine whether there is genocide. Will he also say what is non-discriminatory about the Syrian vulnerable persons scheme in which we single out a group of people and say that we will give them special protection and support, quite rightly in my view, but impose a cap, as we do, by saying there will be only 20,000? Is this not scaremongering of the worst order?

[Lord Keen of Elie]

With respect to the noble Lord, it is nothing of the sort. On the last point, the Syrian vulnerable persons scheme does not discriminate on the grounds of nationality, ethnicity or religion and therefore does not contravene either Article 3 of the refugee convention or Article 4 of the European Convention on Human Rights. That is where the distinction lies.

[Lord Ashdown of Norton-sub-Hamdon (LD)]

I know the Minister is trying to make progress, but he said that the Syrian vulnerable persons scheme does not discriminate against nationalities, but it does. The key is in the name. They are Syrian. It does not apply to Iraqis.

[Lord Keen of Elie]

The noble Lord makes the point, and I accept that the scheme applies only to Syrians in the context of Syria being the area that is subject to the scheme, but it does not distinguish on the grounds of ethnicity or religion in that way.

I mentioned numbers a moment ago. No country in the world has an open-door immigration policy of the kind proposed by this amendment. More particularly, no country in the world has an open-door immigration policy that would involve persons who were not strictly refugees under the convention being able to apply in the place of their residence for asylum in the UK. It has always been the practice that an asylum seeker is a person who presents themselves in a safe country and seeks to establish refugee status. What is suggested in this amendment, as I read it, is that a person from within Syria, Lebanon, Jordan, Turkey or elsewhere would be entitled to approach a British consulate or embassy and make an application for asylum in the UK from that point. That would not be limited to the Middle East, either; it would apply across the world because, again, you could not distinguish between one set of refugees and another. That would not be possible.

The noble Lord, Lord Alton, introduced the idea that somehow this amendment was subject to a cap. As the noble and learned Lord, Lord Brown, observed, though, that is simply not the case, and it is difficult to conceive of how it could be. Still, let us suppose that it was going to be subject to a cap of, say, 5,000 applications. How would that be dealt with? Are we to send 5,000 visas to the consulate in Baghdad? Are we then to say that first come are first served—that those who arrive and apply can have one while those who arrive too late cannot? With great respect to your Lordships, that is not an immigration policy, it is a lottery, and that is not what we are about. We are trying to achieve an objective and fair result.

When we address this, we have to remember also that refugee status applies not only to those who may have been, or threatened with being, the victims of genocide but to those who have been the subject of, or threatened with, persecution. On what basis can we rationally and reasonably distinguish between those two groups when they all constitute refugees?

[Lord Forsyth of Drumlean]

My noble and learned friend is making quite heavy weather of the inadequacies of the amendment. Can he tell us—he has had quite a lot of time to think about this because a similar amendment was tabled in Committee—what exactly the Government are going to do for those Christians and other groups who are facing genocide?

[Lord Keen of Elie]

I believe that we are already doing all of that. This was addressed by my noble friend Lord Bates earlier when he spoke of the steps that we are taking regarding diplomatic efforts to try to secure peace in the Middle East. He spoke of the Government delivering a robust and comprehensive strategy to defeat Daesh in Syria and Iraq as a member of the global coalition of 66 countries. He spoke of the fact that there was effectively a cessation of hostilities on 27 February that we will build upon and hope to develop. He spoke of the fact that we have pledged over £2.3 billion, our largest ever response to a single humanitarian crisis, which is delivering vital assistance to refugees in neighbouring countries on the ground right now. We are also working through the United Nations High Commissioner for Refugees with three schemes—the Gateway Protection Programme, the Mandate Refugee Programme and the Syrian resettlement scheme—in order to reach out to the most vulnerable people at risk, such as women and children. All that is being done.

We have to be realistic about what we can and cannot achieve. What we cannot achieve is a policy whereby 4.8 million or more people are invited to make an application at a local level for a visa to bring them to the UK. We know that we could not cope with the consequences of such a policy, and we know the potential disaster that could follow from attempting to impose one. We know that at the end of the day we would be expressing hope that could not be delivered. We would be expressing hope that these people might be helped when in reality we knew that their prospects would actually be dashed to pieces on the rocks of reality. We could never cope with such an immigration policy. I say to your Lordships in conclusion—

[Lord Elton]

My Lords, before my noble and learned friend sits down, he has heard considerable argument in favour of the Government using the opportunity pointed out by the noble Lord, Lord Pannick, to bring before the Security Council a proposal that this be recognised as genocide. Can he tell us what he is proposing to do about that?

[Lord Keen of Elie]

I am obliged to the noble Lord. Respectfully, it appears to me that the proper course of action in those circumstances, where we are putting to one side an amendment that even my noble friend Lord Forsyth would appear impliedly to accept is not workable, the appropriate way forward would be to consider a Motion of this House, directed to Her Majesty’s Government as to how they should address or not address the issues that pertain here with regard to whether there has been genocide. Noble Lords have heard already what the present government policy is. The Government believe that recognition of genocide should be a matter for international courts and that it should be a legal rather than a political determination. That remains the position.

[Lord Lea of Crondall (Lab)]

Is the Minister saying that such a—

[Lord Keen of Elie]

I have not given way.

In conclusion, this amendment does not even address the objective set out by the noble Lord, Lord Alton. Although I fully understand his concerns about what is going on, the amendment creates a mirage of false hope. It might salve our conscience, but it will not solve the problem. I urge the noble Lord to withdraw it.

[Lord Lea of Crondall]

Before the Minister sits down, if such a Motion was put forward, would it have the Government’s support?

[Lord Alton of Liverpool]

My Lords, the noble and learned Lord, Lord Keen, ended on an interesting note, which the noble Lord just questioned him about: if a Motion were placed before your Lordships’ House, which presumably would have to be done by the Government, because such procedures are not open to—

[Lord Keen of Elie]

If I may, with respect, correct the noble Lord, the Motion would not be required to be from the Government but could be laid by any Member of this House.

[Lord Alton of Liverpool]

Would the noble and learned Lord like to remind me of the last time a Motion of that kind was tabled on the Order Paper and selected for debate in your Lordships’ House without the support of the usual channels and the Front Bench?

[Lord Keen of Elie]

I am not aware of the date when that was last done, but, as the noble Lord observed, it would be a matter of securing the support of the usual channels.

[Lord Alton of Liverpool]

My Lords, it seems that we are back into the circular arguments that we have been having. The last time I put the question to the Government and asked whether they had any intention of submitting evidence of genocide in Iraq and Syria to the Security Council and through it to the International Criminal Court, they said:

“We are not submitting any evidence of possible genocide against Yazidis and Christians to international courts, nor have we been asked to”.

This argument just goes on and on. That is why, in February, I and other noble Lords from across the House tabled the Motion in Committee. Normally when a Motion is tabled in Committee, the Government respond by saying, “We will discuss with the movers of the Motion ways in which we can take it forward”. Although I had a meeting with the noble Lord, Lord Bates, it was interesting that the first comment of one of the officials who was present was, “We have never done this before”, as though that was an argument for never doing it in the future. I am disappointed that this evening neither the noble and learned Lord, Lord Keen, nor the Front Bench opposite have offered an opportunity to discuss how an amendment might be framed that could find favour with the Government. It seemed to me from what the noble and learned Lord said that under no circumstances would any such move be countenanced.

I was shocked when the noble and learned Lord started to express numbers that were in the realms of fantasy—the idea that 19 million people in the world might take the opportunity. It would be impossible to do that. First, a genocide would have to have been declared by the High Court. It would then have to go before the Government, who would have to decide how they wanted to treat it, and they could then impose exactly the kind of cap that they have imposed in the case of the numbers of people being admitted to this country under the Syrian vulnerable persons scheme. Therefore there is no question that this amendment would open those kinds of floodgates. As the Minister said, that was not the intention of the movers and it would not be the effect of the Motion. Surely, therefore, we now have an opportunity to do something about this. If the Government had said, “We will take this away and look at it between now and Third Reading”, I certainly would have responded positively to that; or we can pass this amendment, and between now and Third Reading the Government can either amend it or send it to those in another place and let them decide how they want to deal with the issue.

Under the 1948 genocide convention, we have three duties. We have a duty to prevent, a duty to punish and a duty to protect. There are two strands in the amendment. The first is to bring about the punishment of the offenders, and the second is to help some of those people. We cannot help everyone; I recognise that. But no one is more vulnerable than someone who is the subject of genocide. We have heard the speeches of the noble Baronesses, Lady Kennedy, Lady Nicholson and Lady Cox, and we have heard from the noble Lord, Lord Forsyth, and many other noble Lords who have set forward the case that genocide is indeed under way and we should therefore do something about it.

I do not claim that the amendment is perfect. I do claim that we cannot keep on going round and round in these circles. Although I recognise that I may well be in a minority this evening, it is better to be in a minority, say what one believes to be right and seek the opinion of the House. I will do that in a moment, because I agreed with the right reverend Prelate the Bishop of Chelmsford when he said that it is our duty to gather up the fragments. I agreed with my noble friend Lady Cox when she said that we should not be silent in the face of evil; with the noble Baroness, Lady Kennedy, when she said that we should break the cycle of inertia; and with the noble Baroness, Lady Nicholson, when she asked why we are last in coming forward. We have the opportunity to break the cycle of inertia this evening, and I would like to test the opinion of the House.

Immigration Bill

Lord Keen of Elie Excerpts

Tuesday 15th March 2016 Lords Chamber

If Amendment 114 is not necessary, can the Minister say whether there are any aspects called for under the terms of Amendment 114 which the Secretary of State would not undertake as part of her duty regarding the welfare of a child under Section 55 of the Borders, Citizenship and Immigration Act 2009, and, if so, what those aspects are? I would be extremely grateful if the Government would give some very clear answers to my questions.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to the right reverend Prelate and to the other noble Lords who have spoken in this debate. I begin by observing that the noble Lord, Lord Rosser, has very helpfully advanced matters by answering his own question. He identified what he termed “the key words”, and precisely so. The key words are,

“if the Secretary of State is made aware”,

or where someone,

“makes the Secretary of State aware”;

and, of course, it is largely for a parent or carer to do just that in the circumstances that pertain. Therefore that is where we stand, just as we did in Committee.

On Amendment 113, from the noble Lord, Lord Roberts of Llandudno, there is undoubtedly a generous spirit behind it in allowing any person who arrived in the United Kingdom as an unaccompanied child to be exempt from deportation once they reach the age of 18. However, it is necessary to bear in mind certain points. First, when you examine the figures with regard to the arrival of unaccompanied children who fail to qualify for refugee status, you find that the vast majority are aged 16 or over—16 or 17 years of age. Consequently, they have not spent the vast proportion of their life in the United Kingdom; indeed, they will have spent very little time in the United Kingdom by the time they reach the age of 18.

The difficulty is that the consequence of the amendment would be damaging for the legitimate immigration control which is required in these circumstances and for the deterrence of crime and the protection of the public. The amendment would prevent the deportation of any foreign national offender—regardless of the severity of the crime they had committed or the risk they posed to the British public—as well as those who would otherwise be liable to deportation simply because they had arrived in the United Kingdom as a minor and claimed asylum.

We are conscious of our history of offering protection to those in need and, clearly, no Government will seek to return an individual to a country where they face persecution or serious harm. However, we will deny asylum to those who are not refugees or who have committed serious crimes and are a danger to the public, and will seek to return them as soon as it is safe to do so. Some unaccompanied asylum-seeking children are genuine refugees and we are clearly committed to protecting them for as long as they need such protection, but a very large number are not. This amendment would take no account of the outcome of an asylum claim nor the criminality committed by an individual. It could also create a pull factor, encouraging more children to risk their lives on hazardous journeys and play into the hands of people smugglers and traffickers. For that reason, we do not consider that such an amendment would be appropriate.

I turn to the amendments which relate to Clause 59: the power to certify that an appeal against the refusal of a human rights claim must be brought from outside the United Kingdom, which is, as was noted, a manifesto commitment. In Committee in this House we undertook to reflect on putting in the Bill that a decision to certify under Clause 59 will be subject to a consideration of the best interests of the affected child. We have done so. Amendment 145 makes it explicit in the Bill that Section 55 of the Borders, Citizenship and Immigration Act 2009 applies to all the provisions of the Bill, including a decision to certify that an appeal against refusal of a human rights claim must be brought from outside the United Kingdom. In doing so, it preserves a fundamental principle of the way this power is to be applied—namely, the individual consideration of each case on its own facts. By contrast to the foregoing, Amendments 113A, 113B, 114 and 114A seek to impose requirements on the manner in which this power is to be applied. Such an approach would be inimical to the principle that to achieve the right outcome for certification under this power each case must be considered individually, while having regard to legal obligations and the relevant guidance.

Amendments 113A and 113B, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, would prevent the certification of claims made by persons with the characteristics specified. The result would be that they could not be required to leave the United Kingdom while their appeal was pending. While this amendment may be well intentioned, it does not deliver additional protection and has the detrimental effect of limiting the scope of Clause 59. The protection that the amendment seeks to deliver is inherent in Clause 59. The scope of the power in the clause is already circumscribed, as it cannot be used where to do so would cause serious irreversible harm or otherwise breach human rights.

These amendments would replace a case-by-case consideration sensitive to the nuances of individual circumstances with a blanket set of criteria. The result would be that the Secretary of State would be unable to certify claims in some cases, even where there would be no serious irreversible harm or breach of human rights as a result.

The Secretary of State gives careful and proportionate consideration to cases where children are involved, and we have brought forward an amendment to make that duty clear on the face of the Bill. Nevertheless, there are circumstances in which it may be appropriate to use this power where a human rights claim made by a child has been refused—for example, where a child is living in the United Kingdom with members of his wider family but his parents remain in his country of origin.

In respect of trafficking victims, I hope it is reassuring for noble Lords to note that this power will not apply to those who have made an asylum claim, as Clause 59 does not apply to asylum claims. Where, unusually, a trafficking victim makes a human rights claim, that claim can be certified only where no serious irreversible harm or other breach of human rights will result—namely, where a person will not face harm on return to their country of origin. It is right that in those cases it should be open to the Secretary of State to consider certification.

We can provide further reassurance in respect of those whose claim to be trafficked has yet to be determined. No negative decision will be made on any human rights claim until the trafficking claim has been determined. Therefore, any such decision, including any decision to certify, will be informed by the outcome of the trafficking consideration.

Amendment 114 seeks to prescribe the mechanism by which the best interests of a child must be considered by requiring a wide-ranging assessment of a long list of factors—I will not rehearse them all here—in relation to any child whose human rights may be breached by a decision to certify. Many of these factors may indeed be relevant in a particular case and will form part of a best-interests assessment by the Secretary of State. However, the current framework is for this to occur only where relevant to the individual circumstances of the case and not for every listed factor in every case to be considered in a blanket manner.

The amendment would require intrusive and potentially irrelevant investigations, even in cases where the carer or parent, best placed to inform the Secretary of State about the impact on their child, had not provided any information to suggest such an impact. We are concerned that this could have a negative impact on the children it seeks to protect. Indeed, the investigation could put a child in the position of feeling that they were to blame if the claim were certified, notwithstanding their evidence.

The amendment is simply disproportionate. It requires an independent investigation in every case, even though published guidance is clear that, where independent advice is necessary, appropriate and relevant, and it is not provided by the person affected, the Secretary of State can seek it. The amendment would also be unworkable in practice. It would require an assessment of factors which go far beyond the effect of the decision to certify the case and stray into the realms of a full care assessment.

The role of the Secretary of State in these decisions is very different from that of the courts in considering a child’s welfare in, for example, family proceedings under the Children Act, from which it appears to me that the list of proposed factors has been drawn.

The amendment may have unintended adverse consequences. It may allow unco-operative parents to frustrate a consideration of whether to certify by failing to provide information to the assessor. It is therefore, as I observed earlier, wholly disproportionate.

I turn, finally, to Amendment 114A, which would require successful appellants to be returned at public expense within 28 days of a successful appeal. This amendment proceeds on the basis that the Secretary of State’s original decision was always wrong when an appeal is allowed. That is a misconception. Appeals can be allowed for many reasons, including a change of circumstances or new evidence submitted at a late stage by the appellant. The Home Office makes an assessment on the basis of the proceedings in the appeal—for example, whether late or new evidence was provided by the appellant that the Home Office had not previously had an opportunity to consider, and on the basis of the appeal determination itself. Therefore, the analysis is fact-sensitive.

This amendment, however, would require the public purse to pay for the return of all individuals subject to certification who are successful on appeal, including foreign national offenders and those who have already received financial assistance to leave the United Kingdom through the facilitated returns scheme. Our guidance strikes a better balance, ensuring that factors such as an individual’s ability to pay for return or the reasons why the appeal was allowed are taken into account, and that the cost of return comes from the public purse only where necessary. We consider that this is a fair approach.

--- Later in debate ---

[Lord Keen of Elie]

I wonder if I may be permitted to correct the noble Lord, Lord Rosser: it is the court’s interpretation of the obligation, as is found in the case of SS (Nigeria) in 2014. It is on the basis of that judicial interpretation of the obligation that the Secretary of State proceeds. I am obliged to the noble Lord for the question.

[Baroness Hamwee]

Before the Minister sits down, he referred to guidance with regard to payment for the return of an appellant following a successful appeal. The guidance that I referred to relates to deportation—inevitably, because that is the current position. Is the Minister saying that equivalent guidance is to be provided in the case of appellants in this situation?

[Lord Keen of Elie]

I am not in a position to immediately answer that question but, if I may, I will write to the noble Baroness on that point.

[Lord Roberts of Llandudno]

I am grateful to the Minister for responding. His facts and figures are a wee bit at variance with those that I have, and I think that we need to explore this further. Therefore, tonight, I will withdraw this amendment, but I suggest that we come back to this subject very soon because so many refugee and voluntary organisations are very concerned about this deportation dating. I beg leave to withdraw the amendment.

Immigration Bill

Lord Keen of Elie Excerpts

Tuesday 15th March 2016 Lords Chamber

Moved by

[Lord Keen of Elie]

82: Clause 49, page 46, line 6, leave out “, or intends to make,”

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I propose to address a range of amendments relating to Part 3 of the Bill. I shall turn first to government Amendments 82 and 83. During Committee the noble Lord, Lord Paddick, raised concerns that the Secretary of State’s ability to direct prison and prisoner custody officers to search persons in respect of whom she “intends to make” a deportation order was too wide. While the noble Lord accepted our assurance that it was the Government’s intention to capture those foreign national offenders who are liable to deportation and who have been given a notice of a decision to make a deportation order against them, he asked us to reflect on why such clarity could not appear in the Bill. We have taken on board this point and have therefore tabled Amendments 82 and 83, so that the power is expressed by reference to a person being given a notice rather than simply the intention of the Secretary of State. I trust that this allays the noble Lord’s concerns.

I turn to the matter of bail conditions and, in particular, to the government amendments between Amendments 88 and 112. This is a somewhat lengthy set of amendments to Schedule 9, in response to the concerns raised by Peers about the Secretary of State having the ability to impose an electronic monitoring or residence condition where the tribunal decided not to do so. As I said in Committee, having recognised the constitutional concerns that were raised, the Government have thought again about this. I will try not to take up too much of your Lordships’ time but it may help if I describe the effect of these amendments in a bit more detail, in addition to responding to the probing amendments laid by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick.

Amendments 88, 89, 90 and 91 would replace the current approach with a statutory duty on both the Secretary of State and the tribunal to impose an electronic monitoring condition when granting bail to an individual being deported. This would limit the provision to foreign national offenders or those whose deportation has otherwise been deemed conducive to the public good, such as on national security grounds. This duty would not apply if the Secretary of State considered that imposing electronic monitoring would be impractical or contrary to a person’s convention rights. Just as the Secretary of State or the tribunal must impose an electronic monitoring condition where the duty applies, they must not impose such a condition where the duty is disapplied. If a person wishes to challenge the Secretary of State’s decision that the duty should not be disapplied, they can do so by way of judicial review. Separately from the duty to impose electronic monitoring, the amendments make it clear that the tribunal may not vary an electronic monitoring condition. This is simply a matter of clarification as, in paragraph 4 of Schedule 9, the arrangements for electronic monitoring are a matter for the Secretary of State.

Amendment 89A would mean that any individual granted bail must be subject to an electronic monitoring condition save in exceptional circumstances, including where monitoring would breach the individual’s human rights. This amendment would therefore significantly expand the application of the duty to impose electronic monitoring, which is limited to individuals in the process of being deported. We do not consider this amendment necessary. In non-deportation cases, electronic monitoring should remain a discretionary condition that the Secretary of State or the tribunal can impose having weighed the individual’s circumstances, as they are not as intrinsically high risk as the deportation cases. In reaching that decision, the tribunal and the Secretary of State will continue to be bound by Section 6(1) of the Human Rights Act, which makes it unlawful for a public authority to act in a way which is incompatible with a convention right.

Amendment 91A would mean that the Secretary of State could have regard to obstacles which are insurmountable only when considering whether electronic monitoring would be impractical. This would set the bar far too high. Even tremendous difficulties in making arrangements for electronic monitoring would not fall within this, so the Secretary of State could in such circumstances be precluded from deeming monitoring to be impractical because the difficulties she faces are not, technically, insurmountable. For example, the Secretary of State could spend millions of pounds putting in place new infrastructure to overcome an obstacle.

Amendment 91B would prevent the Secretary of State from considering matters such as a person’s risk of absconding or reoffending when prioritising the limited resources available for electronic monitoring. I make it clear that where the duty to impose an electronic monitoring condition on a deportee is disapplied because of impracticality or the individual’s human rights, this does not mean that the individual may not be released on immigration bail. All the relevant factors must be taken into account by the tribunal or the Secretary of State when considering whether it is appropriate to grant immigration bail, and other conditions could be tailored to ensure that risk is managed in lieu of electronic monitoring.

Amendments 92 to 97 make provisions for the circumstances in which an electronic monitoring condition on an individual being deported must be removed, and if a deportee is not currently subject to monitoring, then the circumstances in which it must be imposed. Amendments 98 to 100 expand the circumstances in which the Secretary of State may provide accommodation support to an individual on bail to include where it is the tribunal that imposes a residence condition. Amendments 101 to 103 apply the duty to impose monitoring to grants of immigration bail to deportees who have been arrested for breach of bail.

Amendments 104 to 106 amend paragraph 10 on the transitional provisions to prevent the electronic monitoring duty from automatically applying to those persons who routinely transition on to new immigration bail. The amendments also provide that regulations made in accordance with paragraph 10 may allow the Secretary of State to determine how the duty is to apply to transitional cases.

Amendment 106A seeks to amend proposed new sub-paragraph (2A) to remove the ability of transitional regulations made under Clause 86(1) to modify proposed new paragraphs 6A or 6B in how they apply to the transitional cohort. Proposed new sub-paragraph (2A) was drafted to allow the Secretary of State flexibility to manage this cohort so that she can prioritise in deciding when to apply the electronic monitoring duty to those deportees who are subject to immigration bail before commencement. Finally, Amendments 107 to 112 simply ensure that, as a result of the above amendments, the Special Immigration Appeals Commission can be substituted for references to the First-tier Tribunal where appropriate.

I hope that these amendments allay the concerns expressed by your Lordships and therefore ask that Amendments 89A, 91A, 91B and 106A be not moved. I beg to move Amendment 82 and ask your Lordships to support Amendment 83 and the government amendments between Amendments 88 and 112.

[Baroness Hamwee]

My Lords, I will confine myself to one question and to thanking the noble and learned Lord for that remarkably succinct explanation of several pages of amendments. I am sure it will bear reading and rereading. I think that he has answered my question, but I just want to be sure. What happens if electronic monitoring cannot be imposed, for instance because of mental health concerns or some other human rights issue? I think that he said that bail could—or indeed would—still be granted. That is the central question.

[Lord Keen of Elie]

I am obliged to the noble Baroness. The answer is that, in those circumstances, bail could still be granted. It will be dependent on the individual conditions that arise in a particular case. But I make it absolutely clear that it would still be possible for bail to be granted in such circumstances.

[Lord Mackay of Clashfern (Con)]

My Lords, I was one of those who expressed concern at the possibility of the Secretary of State being able to overrule a judicial determination by the tribunal. I am very grateful for the very quick response I had to that concern, which was shared by a number of my noble and learned friends.

--- Later in debate ---

[Lord Rosser]

The noble Lord, Lord Ramsbotham, has made a powerful case in support of Amendment 84, to which my name is also attached, and I do not intend to repeat all the points. The amendment is intended to provide for judicial oversight if a person is to be detained for a period longer than 28 days. If the noble Lord, having heard the Government’s response to Amendment 84, decides to test the opinion of the House, we will vote in support.

Immigration detention is a matter of concern. For the person detained it is detention for an indefinite period, since they are not given a date when it will end. Their life is in limbo. A recent all-party group inquiry into immigration detention heard evidence that detention was in some ways worse than being in prison, since at least people in prison know when they will get out. There is medical evidence that it causes anxiety and distress, not least among the more vulnerable groups. The all-party inquiry to which I have referred heard from medical people with knowledge in this field that the sense of being in limbo and the hopelessness and despair it generates lead to deteriorating mental health. One such witness said that those who are detained for more than 30 days have significantly greater mental health problems.

For his report for the Home Office into the welfare in detention of vulnerable persons, Stephen Shaw commissioned a review by Professor Mary Bosworth of the evidence linking detention with adverse mental health outcomes. Mr Shaw said that he regarded her view as a study of the greatest significance. Two of Professor Bosworth’s key findings were: first, that there is a consistent finding from all the studies carried out across the globe, which were from different academic viewpoints, that immigration detention has a negative impact upon detainees’ mental health; and, secondly, that the impact on mental health increases the longer detention continues.

In his conclusions, Mr Shaw stated:

“Most of those who have looked dispassionately at immigration detention have come to similar conclusions: there is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform”.

He ended by saying:

“Immigration detention has increased, is increasing, and—whether by better screening, more effective reviews, or formal time limit—it ought to be reduced”.

In the first three quarters of 2014, 37% of those detained were detained for longer than 28 days. Home Office guidelines are that detention should be for the shortest possible time and should be used only as a genuine last resort to effect removal. Yet despite centres being called “immigration removal centres”, most people who leave detention do so for other reasons than being removed from the United Kingdom. According to government statistics, more than half the detainees are released back into this country.

There could surely be some scope for a wider range of community-based alternatives to detention, enabling more people to remain in their communities while their cases are being resolved or when making arrangements for them to leave the country. The family returns process, which is designed to reduce the number of children detained, has resulted, according to the Home Office’s own evaluation, in most families being compliant with the process and no increase in absconding.

I note the views expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and his reason for not supporting but also, as I understand it, for not opposing this amendment if it is put to a vote. If Amendment 84 is passed by this House, the Government also have the option, if they choose to take it up, of putting an amended proposition as the Bill goes through its remaining parliamentary stages.

Amendment 84 does not of course put a time limit on immigration detention but it would ensure that a decision to continue to detain after 28 days was a judicial decision dependent on the Secretary of State having to make the argument that the circumstances of the case concerned required extended detention. The amendment does not preclude or prevent detention going beyond 28 days but it means, in a country where we uphold justice and the right to liberty, that at least after a period of time the decision to continue to detain has to be a judicial one, not an administrative one. Surely this House can support that.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions to this debate. The diversity of views expressed perhaps underlines the issues that have to be wrestled with in such a difficult area.

The Government take the issue of deprivation of liberty very seriously. Our current published policy in respect of immigration detention is quite clear: there is a presumption of liberty. There is a well-established principle that for an individual to be detained pending removal there must be a realistic prospect of removal within a reasonable time, and that is carried out by virtue of judicial oversight. Depriving someone of their liberty is always subject to careful consideration and account is invariably taken of individual circumstances.

Amendment 84 would significantly impact on our ability to enforce immigration controls and maintain public safety, particularly at a time when the Government have set out a commitment to ensure effective use of detention, complemented by a renewed focus on facilitating an increased number of voluntary returns without detention, which safeguards the most vulnerable while helping to reduce levels of immigration abuse.

It might be helpful to remind noble Lords that most people detained under immigration powers spend only relatively short periods in detention. According to published statistics for the year ending September 2015, more than 32,000 people left detention. Of these, 62% had been in detention for fewer than 28 days. The overwhelming majority of detainees—93%—left detention within four months. Of those, approximately 40% were subject to deportation action, having been previously convicted of criminal offences in the United Kingdom or the EU and having refused to leave the UK on a voluntary basis.

--- Later in debate ---

[Noble Lords]

Oh!

[Lord Keen of Elie]

With that encouragement, perhaps I may take just a little longer, knowing that I have noble Lords’ ears if not their best wishes.

The noble Baroness, Lady Lister, raised a number of questions. I would be perfectly content to respond to them in writing, albeit that no commitment can be given. Putting the matter shortly—yes, the Scottish Law Officer is somewhat verbose, I am afraid—it is the intention of the Government to reflect on the matter of the detention of pregnant women. They do not consider that it would be appropriate for there to be an absolute rule. To give one very short and simple example, if an illegal immigrant arrives at an airport and it is possible to return them almost immediately, it may be necessary for there to be detention even for a very short period. However, the Government will reflect on this and will have considered the matter by Third Reading. I hope that that will reassure the noble Baroness, Lady Lister, at this stage.

In these circumstances, and with your Lordships’ benign encouragement, I ask that Amendments 84 and 85 be not pressed and that Amendment 86 be agreed.

[Lord Ramsbotham]

My Lords, I am very grateful to all those who have spoken and to the Minister for that careful but rather depressing exposition. I shall be brief.

Immigration Bill

Lord Keen of Elie Excerpts

Tuesday 9th February 2016 Grand Committee

Moved by

[Lord Keen of Elie]

241B: Clause 47, page 45, line 29, at beginning insert “in England and Wales or Scotland,”

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we are grateful for the consideration of the devolved Administrations and the interest in the other place of Members of Parliament representing Northern Ireland in relation to this part of the Bill. We have listened, and government Amendments 241B to 241E, 242A, 242B, 242D to 242F, 242H, 242K and 245B represent our response. They are many in number but they have a simple purpose: to apply to Scotland, Wales and Northern Ireland on a uniform basis the duty to ensure that all public sector workers who work in customer-facing roles speak fluent English; save that, in Wales, the duty will be fulfilled by fluency in English or Welsh. It will apply only to public authorities that exercise functions in relation to matters which are not devolved. At present, the Bill provides for the duty to apply to public authorities exercising any functions of a public nature in Wales. The respective Governments have since agreed that it will apply to public authorities only to the extent that they carry out functions in relation to matters which are not within the legislative competence of the Welsh Assembly.

Noble Lords will have noticed that the Bill does not yet provide for the duty to apply to Northern Ireland. In the other place, a commitment was made to reconsider that position in this House. Our amendments now provide for the duty to apply only to public authorities that carry out functions in relation to excepted matters in Northern Ireland.

Noble Lords will have noted that the Bill already provides for the duty to apply in Scotland only to public authorities exercising functions in relation to reserved matters, so there are no further amendments affecting this region. In these circumstances, I beg to move.

[Baroness Lister of Burtersett]

My Lords, I rise to speak to Amendment 242, and I am grateful to all noble Lords who have added their name to it. The purpose of the amendment is to ensure that Clause 47 does not lead to discrimination against public sector workers in a consumer-facing role whose first language is British Sign Language by explicitly exempting them from the provision.

In his letter of 19 January to the noble Lord, Lord Bates, the Minister for the Cabinet Office and Paymaster-General stated:

“The most significant additions to the Code”—

the code of practice, that is—

“will come from organisations strengthening the content with guidance and practical examples—notably in areas of interest to Noble Lords during the Second Reading debate; avoiding discrimination and providing clarity in how the duty applies to those who communicate using British Sigh Language. We strongly support the use of British Sign Language”.

It also said that one of the main findings of the consultation was:

“Further guidance, clarity and practical examples could be added to support authorities’ understanding and practical application of the duty to reduce any discriminatory impact. Business Disability Forum and Signature will provide case studies for inclusion in the Code to clearly demonstrate application of the duty and the responsibilities of public authorities towards members of protected groups and to advance equality”.

This is very welcome and suggests that the Government accept the spirit, if not the letter, of the amendment.

Nevertheless, Sense, which alerted me to this issue, believes very strongly that writing an exemption into the Bill would remove the possibility of misinterpretation by any authority, which might still occur if clarification were in only the code of practice. Failing that, I wanted to ensure that the Minister’s assurance in the letter appears in Hansard, because it is crucial that we ensure that the Bill cannot be said to discriminate indirectly against deaf and deafblind people, for whom British Sign Language is their first language in either its standard form or as adapted for deafblind people. I am told that its grammatical structure is different from English, so it is possible, on the face of it, that someone might argue that someone using it is not speaking fluent English.

I would be grateful if the Minister would be willing to look again at the possibility of writing a clear exemption into the Bill so as to remove all doubt and therefore reassure organisations such as Sense. If that really is not possible for some good reason, I would at least welcome a clear statement on the record—based on but perhaps going beyond what is in the letter of 19 January—of what the code of practice is intended to say regarding how Clause 47 should not discriminate against users of British Sign Language.

--- Later in debate ---

Likewise, what happens in relation to the National Health Service? What happens if operations are currently conducted in the public sector in the National Health Service but then certain operations are put out to be undertaken in the private sector? Are we being told that this is a vital and necessary piece of legislation if the operation is carried out by the National Health Service in the public sector but it is not necessary if the same operation is outsourced to be dealt with within the private sector of the health service? Some clarification on those points would be much appreciated.

[Lord Keen of Elie]

I am obliged to the noble Lord. Clearly some important issues are raised here. The noble Baroness, Lady Hamwee, noted that there was some reference to this issue in the Conservative Party manifesto. The noble Lord, Lord Rosser, will correct me if I am wrong but it also featured in the Labour Party manifesto, so I would understand him to have a reasonable degree of insight into what is proposed here.

[Lord Rosser]

I am asking how the Government intend to apply this. It is their legislation.

[Lord Keen of Elie]

I fully understand the nature of the noble Lord’s inquiry; I was just pointing out that the rationale behind this legislation was recognised not only in the Conservative Party manifesto but in the Labour Party manifesto.

I begin by looking at Amendment 242, moved by the noble Baroness, Lady Lister. I am glad to have the opportunity to reassure her and other noble Lords that the duty being imposed by this provision does not apply to individuals who communicate using British Sign Language. I believe it may help if I explain that it will not be the responsibility of individual members of staff to meet this duty; it will be the responsibility of public authorities, as the employers. I remind noble Lords that, as employers, public authorities have a duty under the Equality Act 2010 to make reasonable adjustments for their staff. If reasonable, a British Sign Language interpreter would be provided. In addition, any worker or job applicant who communicates using British Sign Language must be considered for recruitment on a par with any other applicant.

To comply with the duty in Part 7, public authorities must ensure that the British Sign Language interpreters whom they employ, rather than the recipients of such a workplace adjustment, speak fluent English. Given that fluent spoken English is the reason the interpreter has been engaged, there should be no difficulty at all in public authorities meeting that duty. In those circumstances, I seek to reassure the noble Baroness, Lady Lister, about the position in regard to British Sign Language.

[Lord Swinfen]

My Lords, perhaps I may interrupt my noble and learned friend for a moment. What is the position of a member of the public who uses British Sign Language? My noble and learned friend says that provision is made for the authority worker who uses British Sign Language to be able to do their work in their office, but I am talking about a member of the public who goes to the public authority and his language is British Sign Language. There must be someone who can communicate with that person. I am not expecting everyone to have British Sign Language. One can use videoconferencing to deal with it, but there must be provision for members of the general public who use British Sign Language to communicate with appropriate people in the authority.

[Lord Keen of Elie]

In circumstances where there is provision for British Sign Language to be available, there will also be an English language interpreter available. Where a member of the public wishes to use or employ British Sign Language, they will, in circumstances where it is available, be able to do that, and the person communicating with them in a customer-facing role will, of course, be perfectly entitled to employ British Sign Language. The provisions of the Bill are not prescriptive. They are not saying that the only language that can be employed is English or Welsh. In circumstances where there is the ability to communicate in a customer-facing role by means of a different language, be it British Sign Language or otherwise, then it may perfectly properly be employed. Whether it will be available on each and every occasion when somebody arrives and is faced with a customer-facing role is a different matter altogether. Clearly, at present it is not invariably available.

[Baroness Lister of Burtersett]

I am not a lawyer, so I rise with some trepidation, but the Bill states:

“A public authority must ensure that each person who works for the public authority in a customer-facing role speaks fluent English”.

I am very grateful to the Minister for the very clear statement he has made that this will not apply to British Sign Language. It may be that he is going to explain this, but why can that not be put in the Bill to remove all doubt?

[Lord Keen of Elie]

Our position is that that is simply not required. Where you have somebody in a customer-facing role who communicates by way of British Sign Language, they will have a British Sign Language interpreter available. It is the interpreter who will be required by the employer to be fluent in English. That is the situation that will apply.

[Lord Swinfen]

I am awfully sorry but I do not entirely understand what the Minister is saying. I cannot see the difficulty in including British Sign Language speakers who are able to communicate with members of the public whose only language is British Sign Language. The Minister is saying that that is not necessary. It means that if I speak only British Sign Language, I will not be able to speak to anyone in the authority. That is not satisfactory. Either I am not understanding the Minister or he is not explaining himself as well as a lawyer should.

[Lord Keen of Elie]

It appears that, although we each purport to be speaking fluent English, we may not be communicating with each other as clearly as might be the case. In circumstances where a person employs British Sign Language and there is a customer-facing individual available to communicate with them in British Sign Language, the person communicating in British Sign Language will either have with them a British Sign Language interpreter or will be able to communicate in British Sign Language and speak fluent English.

[Baroness Hamwee]

My Lords, I think there are two different debates going on. To pick up the point made by the noble Baroness, Lady Lister, the explanation given by the Minister about how this would work is, to me, intelligible, but it does not reflect the words in the Bill because it suggests that the person who is working in a customer-facing role is the interpreter, not the person who is doing the substantive job. If the Government’s concern is that the drafting is not invented here, I hope that they can find a way of explaining that there are two roles in the situation which the noble Baroness set out.

[Lord Keen of Elie]

I wonder whether I may respond briefly to that and then make a further observation. In circumstances where somebody is in a customer-facing role and uses only British Sign Language, they will, as a matter of practice and pursuant to the Equality Act 2010, have available to them a British Sign Language interpreter. So they will be communicating in a customer-facing role, together with a British Sign Language interpreter.

I do not accept the interpretation of the clause that has been advanced by the noble Baroness, Lady Hamwee, but, having regard to the considerations of time, if nothing else, I will take this matter away and reflect upon the observations that have been made.

[Lord Shipley]

I thank the Minister for that. I think that that would help because I had not understood what the problem was with making this amendment to the Bill. I hope that, if we come back to this matter on Report, we may have some greater clarity on it because it seems to me that that would solve the problem.

[Lord Keen of Elie]

I am obliged to the noble Lord. He will appreciate that I, too, am concerned about whether it is necessary for such a provision to appear in the Bill. Our view is that the point made by the noble Baroness, Lady Lister, is an important one but that it is already accommodated by the terms of the Bill. However, as I said, I will reflect on that.

I turn to the observations made by the noble Baroness, Lady Hamwee, in addressing Amendments 242C, 242G and 242J regarding the implementation of the various duties, as well as the observations made by the noble Lord, Lord Rosser, on the question of public sector workers.

Beginning with Amendment 242C and the question of public and private sector workers, I shall seek to allay the concerns of the noble Baroness but will resist the amendment. We have no desire at this time to lay regulations before further consultation. At present, the Government are committed to carrying out an open consultation before calling on the reserve powers to expand the scope of the duty to the private and third sectors. That is why the provision is expressed in its present form.

The government response to the open consultation, which is scheduled to be made available to noble Lords for our Report stage discussion, will provide preliminary views on this matter. At present, the responses are quite balanced. Many welcome the expansion specifically for the safety and comfort of patients in the social care sector, for example. Others are understandably concerned in case any costs of enhanced recruitment practices have to be passed on to public authorities which are contracting. We do not accept that such costs will increase. Public authorities can simply make job descriptions more specific; there is no need to increase costs. So we do not consider it necessary at this stage to contemplate the proposal in Amendment 242C.

Regarding the noble Baroness’s second amendment, Amendment 242G, I seek to provide reassurance that the principal focus of the code of practice underpinning this duty will be to assist public authorities in setting language expectations for different job roles. I hope, therefore, that she will agree that there is no need to provide for this in the Bill, as it will be an element of the code of practice.

I am conscious of the variations that may occur so far as fluency in language is concerned. Indeed, as a Scot, it is a matter of particular concern to me as well. Clearly fluency will be determined by the employer—and, in this context, by the employer alone.

[Baroness Hamwee]

My Lords, to be absolutely precise about this, I hear what is intended regarding the code of practice but can the Minister confirm that,

“different provision for different purposes”,

encompasses my point about different roles? That is the wording in the Bill.

--- Later in debate ---

[Lord Keen of Elie]

I can indeed confirm that. That is the purpose of the provisions in the code of practice.

[Baroness Hamwee]

I am grateful.

[Lord Keen of Elie]

I quite understand the spirit of the noble Baroness’s third amendment, Amendment 242J. The Government intend to review the implementation of this policy. We will commit to doing so in the government response to the recent consultation on the draft code of practice.

On further inspection, the details of the report described in the amendment appear to impose a significant reporting burden on public authorities. The Government’s review will certainly look to cover the principles of the recommendation, such as setting proportionate standards for job roles and avoiding cases of discrimination, because these were the main areas of concern voiced by respondents to the recent open consultation. So these points will most certainly be addressed in that context. Regarding the position of Network Rail, if there are public sector workers there, they will be covered by the initial provisions. As they move into the private sector, they will be covered by the further provisions that will be brought forward following consultation. I hope that reassures the noble Lord, Lord Rosser. I do not understand that there are any provisions regarding the National Health Service in the Bill. In these circumstances, I invite noble Lords not to press their amendments.

Amendment 241B agreed.

Immigration Bill

Lord Keen of Elie Excerpts

Wednesday 3rd February 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged for the comments that have been made with regard to Clause 34 and Amendment 227. I shall begin by clarifying one point. Clause 34 applies in respect of migrants who have been found to have no lawful right to be in the United Kingdom. It does not apply to asylum cases.

Noble Lords will be aware that there is a long-established principle that persons can be removed or deported before an appeal is brought or heard. Indeed, in 2002, the previous Labour Government introduced powers to certify “clearly unfounded” claims so that the appellants could be removed from the United Kingdom prior to marking and pursuing an appeal. In 2014, the coalition Government used the Immigration Act to provide that arguable claims from foreign national offenders could be certified where deportation pending appeal would not cause serious irreversible harm or otherwise breach the person’s convention rights.

I emphasise that last point because of the observation made at the outset by the noble Lord, Lord Rosser, about it being a case of serious irreversible harm. That is but part of the test. The test under Clause 34, as under the existing provisions of the Immigration Act and as it was under the 2002 Act, is whether it would give rise to serious irreversible harm or a breach of the person’s convention rights. In this context, it is acknowledged, as it is acknowledged in respect of existing legislation, that this will not apply in cases that fall under Article 2 or Article 3 of the convention. It would generally apply in respect of cases that fall under Article 8 of the convention, which concerns the right to family life. That will give rise to questions about children, which I will come on to address in a moment.

The power introduced in 2014 has yielded significant results because more than 230 foreign national offenders have been deported before appeal in the first year since it came into force, and more than 1,200 European national offenders have been deported under equivalent regulations.

In our manifesto, the Government committed to extend this power to apply to all human rights claims. That is what Clause 34 does. We suggest that it is in the public interest that we maintain immigration control across the board. That means and includes prompt removal in cases where it is safe to do so. It is simply counterproductive to allow people whose human rights claims have been refused—again, it has to be underlined that these are people whose human rights claims have been refused or rejected—to build up their private or family life while they wait for their appeal to be determined.

This power will never apply, and does not apply in its existing form under Section 94 of the Immigration Act, in cases based on Article 2 or Article 3 of the convention. Where it does apply, each case will be assessed on its own facts. We will always ask whether there are reasons why an effective appeal could not be brought from outside the United Kingdom, and any reasons given will be fully considered when deciding whether to certify such a case.

I am conscious of the observations that have been made about whether an appeal from overseas can be a fair or effective remedy. Bringing an appeal from overseas does not mean it is less likely to succeed. Internal Home Office statistics for the five years to July 2015 show that some 38% of out-of-country entry clearance appeals succeeded.

A number of noble Lords have already mentioned a decision in the Court of Appeal, the unanimous judgment in October 2015 in the case of Kiarie & Byndloss, where it was held that Article 8 of the convention does not require an appeal to offer the “most advantageous procedure available”. Rather, an appeal must offer, and this is what is offered in Clause 34,

“a procedure that meets the essential requirements of effectiveness and fairness”.

The Court of Appeal was satisfied that out-of-country appeals met the essential requirements of effectiveness and fairness. In that context, the Court of Appeal confirmed that the Secretary of State for the Home Department was entitled to rely on the independent specialist judiciary of the Immigration Tribunal to ensure that an appeal from overseas was fair and that the process was in line with legal obligations that arose under the convention. We will also take account the impact of certification on family members, including children. It is important to note that it will always be possible to challenge decisions to certify by reference to judicial review.

I turn specifically to the impact on children and to Amendment 227, which would require that before a decision was taken to certify a claim under the power in this clause, the Secretary of State must obtain a multiagency best-interests assessment of any child whose human rights may be breached by the decision to certify. The amendment has been tabled to ensure that the best interests of any affected child are considered before a claim is certified so that an appeal must be exercised from overseas. One can quite understand what lies behind the desire for such an amendment but, however well intentioned, I suggest that it is unnecessary. It is unnecessary in law because Section 55 of the Borders, Citizenship and Immigration Act 2009, which the noble Baroness, Lady Hamwee, referred to, already imposes a clear statutory duty to consider the best interests of any child affected by a decision to certify. It is unnecessary in practice because whenever a person concerned makes the Secretary of State aware that a child may be affected by her decision, the best interests of that child are a primary consideration in deciding whether to certify. That approach is underpinned by published guidance. I note the observations of my noble friend Lord Horam that in his experience of such cases, which appears to be quite extensive, he noticed that the interests of the child were taken into consideration and regarded as a primary concern.

Today the Secretary of State takes careful and proportionate views regarding the interests of children. Whether it is necessary to engage external agencies with regard to the interests of the child in a particular case will depend on the facts of that case. For example, if the Secretary of State is made aware that a social services engagement exists with a child, she will make further inquiries of the social services. However, I suggest that it would be disproportionate to require extensive inquiries in every case by means of a multiagency assessment even where there was no indication that these were relevant. I am concerned that such unnecessary inquiries could be potentially intrusive and, in some instances, unwelcome to the families themselves. It is the family of the affected child that is best placed to identify the potential impact of certification in their particular circumstances. There are no restrictions on the evidence that a family can submit about the impact on a child, and that will always be fully considered by the qualified judiciary of the relevant tribunal.

Noble Lords asked whether in some cases we could see the separation of families. The answer is yes, in some cases. The effect on the family will always be considered on a case-by-case basis. The best interests of children in the United Kingdom are a primary consideration in any immigration decision, including the decision whether to certify under the new power. Where an individual has made a claim or seeks to appeal against a determination that they should not remain in the United Kingdom, the family dependent on that individual will of course be affected by that decision; therefore, there are two obvious options. One is that the children remain in the United Kingdom with a parent or carer, or that they depart with the parent or carer in question. Again, there is no question of children having to face serious, irreversible harm in such circumstances. The right reverend Prelate alluded to a case in which a young child might face the dangers of genital mutilation or other risk of sexual violence. In such a case, there would be no grounds for certification; therefore, there would be no basis for saying that the appeal should proceed out of country. Therefore these safeguards are already in place.

As I mentioned before, in some of his observations the noble Lord, Lord Rosser, alluded to serious, irreversible harm, which is but one part of the test. It is about serious, irreversible harm or a breach of someone’s rights under the European Convention on Human Rights—both aspects have to be addressed. As to the idea that they would be unable to appeal, there is clear evidence in the context of entry appeal processes that out-of-country appeals succeed and are effective. Indeed, in the context of an appeal from out of country before a specialist tribunal, it is necessary to bear in mind that the proportion of the evidence that will be material, particularly to a claim based on Article 8, is that relating to family connection within the United Kingdom. Those who can speak to that might be best qualified to give oral evidence rather than simply the appellant him or herself. In addition, there is of course scope for video evidence to be given, and by other means. Indeed, the specialist tribunal reserves the right to call for evidence in various forms if it considers that necessary to dispose of a particular appeal.

The noble Lord, Lord Rosser, also raised the question of compensation. We do not consider that in circumstances where an appeal was successful there would be any relevant legal basis for a claim of compensation. I notice that that point was also raised by the noble Lord, Lord Ramsbotham. The point was also made that under existing legislation, and in particular in the case of Kiarie and Byndloss, one is dealing with foreign national offenders. However, with great respect, it does not appear that there is any material distinction to be made between the prospects of appeal for a foreign national offender and other migrants who have no right to be within the United Kingdom. Surely they are all entitled to a fair and reasonable appeal process, which is what the Court of Appeal said they would have in the context of an out-of-country appeal. I acknowledge the point made by the noble Baroness, Lady Hamwee, that it would be better, easier and more attractive to have an in-country appeal, but that is not the relevant test. The Court of Appeal made that absolutely plain only a few months ago.

The noble Lord, Lord Alton, alluded to issues pertaining to the disappearance of children or minors coming into Europe, which is a tragic and dreadful state of affairs. One means of seeking to meet part of the problem is insistence upon the Dublin regulation and its imposition, which would involve fingerprints and biometrics being taken from these children upon their arrival in Europe. I am sure that more needs to be done in that respect to meet that problem.

The noble Lord also referred to his recent visit to one of the immigration centres, of which I am aware and which he mentioned that he intended to make when we spoke a few days ago upon earlier parts of the Bill. With regard to the Somali case he mentioned, I understand that the lady in question has quite a long record of criminal offending in the United Kingdom. Be that as it may, because she is a foreign national offender, she will not be subject to any out-of-country appeal under Clause 34; she is already subject to an out-of-country appeal procedure on the basis of existing legislation. Indeed, one questions whether she even has an appeal because, if she had no stateable basis of appeal, it would be rejected pursuant to Section 94. There are difficult cases and I hesitate to go into the details of one case at this stage, but I notice that, even in outline, it appears that this is the sort of case that falls under existing legislation.

[Lord Alton of Liverpool]

As the noble and learned Lord says, it would be invidious to build a whole argument on just one case, but I must add two points to what he has just said. First, the lady told me that she had several convictions and custodial sentences but none had been for longer than three months, which does not suggest that these were hugely serious offences. Secondly, this is about returning someone to Mogadishu in Somalia, with all the problems that country faces at present. Every day one hears reports of bombings and last week there were reports of bazookas being used on the streets. This is someone who has lived in the United Kingdom for 26 years and has had three children in this country in that time. That is why the case is relevant to this afternoon’s debate about the undesirability of breaking up family life in those circumstances.

[Lord Keen of Elie]

I quite understand the noble Lord’s point. That is why the Secretary of State retains discretion over certification—this is not an absolute. In circumstances where there is a risk of serious irreversible harm because of conditions in a particular country or part of a country, there will not be certification. In circumstances where that would amount to a breach of an individual’s human rights, there will not be certification. There is that safety net. It may not be as large as some noble Lords would wish but it is there for these very cases. It is not dissimilar from the instance cited by the right reverend Prelate of a child being exposed to the very real risk of sexual violence or mutilation. Again, this is why the provisions of Clause 34 are not absolute and compel the Home Secretary to take a reasoned decision that has regard to a primary issue being the interests of the child.

A further point was raised by the noble Lord about whether and when the Secretary of State for the Home Department could be sure that she had all the information. Of course, there can be no absolutes. However, in a situation involving children, individuals—parents and carers—readily come forward to explain that there are children. Where the existence of children is identified, that matter is explored, as it is bound to be, pursuant to Section 55 of the Act I cited earlier.

My experience of being involved in the Kiarie and Byndloss cases before the Court of Appeal involved my examining the decision letters issued by the Home Office. These are not glib, one-paragraph notices, but very detailed and considered letters that were sent out, giving not only a decision but a reasoned foundation for that decision. I cannot—and would never dare to—assert that they are invariably right in every respect, or that they are exhaustive in every way. On the face of it, however, it is the practice, subject to the guidance given, to send out truly reasoned decision letters in these circumstances, with particular reference to the interests of the child or children who may be affected.

I turn to the observations of the noble Baroness, Lady Lister, who also mentioned the Kiarie and Byndloss cases. She suggested that ILPA took a slightly different view of that decision from the one I have expressed. I would cleave, however, to the ratio of the unanimous decision of the Bench of the Court of Appeal: it is quite clear what it was saying with regard to this matter. It is not tied to the fact of criminality; it is tied to the facility for an out-of-country appeal and the ability for that appeal to be discharged in such a way that we can be satisfied that it is fair to the appellant. In other words, it may not be the most advantageous form of appeal but it does meet the essential requirements of effectiveness and fairness. That is not affected in one way or another by the pre-existing criminality, or alleged criminality, of the relevant appellant. To that extent, I am afraid I have to differ from her on that matter.

The noble Baroness mentioned the matter of a family test. However, a family test does not immediately arise in this context. I understand that the family test is designed to ensure that the Government’s policies overall encourage and support family life in the United Kingdom. We are dealing here with someone who is not entitled to be in the United Kingdom, and the policies that concern removing persons from the United Kingdom will therefore not always engage the family test.

[Baroness Lister of Burtersett]

My understanding of the family test is that it is to apply not to the generality but to any policy proposal in law that might impact on families. One of the big concerns raised by many organisations giving evidence and briefing us is that this will have very serious implications for families because of family separation. Therefore, it seems appropriate to apply the family test to this proposal.

[Lord Keen of Elie]

It is not immediately apparent to me that it is applicable to this proposal, but in this context one has to bear in mind that a primary consideration is the interests of the child or the children. To that extent, what might be regarded as an aspect of the family test is being applied. That is always a primary consideration. There are circumstances where it may be appropriate for the children to accompany a person out of the United Kingdom, and there may be no difficulty about that. There may be circumstances in which it is appropriate for the children to remain with a parent or carer within the United Kingdom. If there are circumstances where they will have no parent or carer within the United Kingdom and it would not be appropriate for them to leave the United Kingdom, again, there is the safety net of the certification, dealt with in Clause 34, as there is under the existing legislation. To that extent, it appears to me that the matter is dealt with.

The noble Baroness went on to mention again the interests of the child and to ask how many children would be affected by this. It is not possible at this stage to say. On the basis of unofficial and informal figures, I understand that no child has been certified for an out-of-country appeal under existing legislation. Of course, the present amended legislation has been in force for only a short time, since 2015, so it is difficult to discern figures from that.

The right reverend Prelate the Bishop of Norwich referred to particular cases. I hope that I have addressed his concerns. If there was such a serious risk to a child as he alluded to, it appears to me that, with respect, the safety net in Clause 34 would apply.

The noble Baroness, Lady Hamwee, referred to difficulties in producing evidence in the context of an out-of-country appeal. I do not accept that it would be materially more difficult to produce evidence in these circumstances. We are talking about an appeal to a specialist tribunal that is well equipped to decide the form of evidence it requires in a particular case. As I mentioned, when dealing with a case that is going to arise largely on the basis of Article 8 of the convention, if there is to be a convention appeal, one is concerned with family links with the United Kingdom, which are going to be spoken to by persons within the United Kingdom. In so far as there is any factual issue to be addressed by an appellant, it can be done in writing, by video link or even by telephone. That may appear less satisfactory than taking oral evidence but, as the noble Baroness may be aware, it is far from exceptional for appellants not to give evidence in such appeals before a tribunal. It is certainly far from exceptional for appellants not to give oral evidence in such proceedings.

[Baroness Hamwee]

My Lords, I am grateful for that. I did acknowledge the Court of Appeal decision, but I said that in our view it did not make the situation right. However, do the Home Office or the Tribunal Service give information or even assistance to appellants who are outside the country—as a minimum, information on how they can set about dealing with an appeal from outside the country?

While I am on my feet, the Minister credited me with a comment about the best interests of the child which I think came from the noble Baroness, Lady Lister. I have an amendment on that later so it is understandable that he might have thought that I was going to say what I will be saying.

[Lord Keen of Elie]

I am obliged to the noble Baroness. Without the benefit of second sight, I cannot say whether I thought she was going to say what she had not said but was planning to say later—but I acknowledge that the original comment came from the noble Baroness, Lady Lister.

[Baroness Knight of Collingtree (Con)]

I would like to ask my noble friend about a situation that was made clear to us in a fairly recent debate on the question of putting children together into families. There was quite a big family with four children. They were all over the place and the little girl—the tiniest one—was promised that she would have a brother. Her brother was to be put with her in an adoption situation and it was all going to be wonderful. This child believed what she was told. But it was explained to us during the course of the debate on the Bill that years went by and the child had hung all her hopes for the future on the thought that the authorities would place her real brother with her, as they had promised. Nothing was done and it wrecked that child’s belief in what older people told her. But no real comment was ever brought through that made that child’s promise be delivered. Does that still happen? Has it stopped?

[Lord Keen of Elie]

I acknowledge the observation made, but I cannot comment on the particulars of such a case. What I can say is perhaps only related and not directly on point. Part of the thrust of the next part of the Bill is to address the time taken for appeals to be processed. That matter will be addressed by my noble friend Lord Bates in due course. In general, it is hoped that appeal processes in simple cases will not exceed six months and even in complex cases will not exceed 12 months, so that there will not be the degree of separation that has been alluded to, even in cases where one child perhaps goes out of the United Kingdom and another remains in the United Kingdom. I rather suspect that that would be an exceptional case—albeit it is amazing when you read the facts of some of these cases just how diverse the family arrangements can be.

[Baroness Hamwee]

Is the noble and learned Lord able to answer the question I asked?

[Lord Keen of Elie]

The noble Baroness asked about communication of out-of-country appeals procedures. I do not have that information immediately to hand. I am aware of the tribunal regulations. Perhaps I could undertake to write to her to outline what the guidance is.

My research has come to a conclusion already. There is published guidance on the GOV.UK website on how to appeal from overseas, so it is there. I knew that it existed but I was not aware that it was actually on the website. Whether further steps are taken with regard to this matter, I cannot say. If in fact there is something over and above the website, I will write to advise the noble Baroness.