Immigration Bill

Lord Rosser Excerpts

Wednesday 3rd February 2016 Lords Chamber

Moved by

[Lord Rosser]

227: Clause 34, page 39, line 16, at end insert—
“( ) After subsection (3) insert—
“(3A) Before a decision is taken to certify a human rights claim, the Secretary of State must obtain a multi-agency best interests assessment in relation to any child whose human rights may be breached by the decision to certify.””

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[Lord Rosser (Lab)]

My Lords, Clause 34 and this amendment deal with rights of appeal relating to persons who claim to have a right to remain in the United Kingdom on asylum or human rights grounds, but whose claim has been refused. Under the terms of the Bill, the Secretary of State will have the power to certify the claim for someone appealing on human rights grounds against an immigration decision so that they can only appeal from outside of the United Kingdom unless to do so would be in breach of their human rights.

This extends to all individuals the provisions that are already enforced for the deportation cases of former foreign national offenders, and will affect all those bringing human rights appeals under Article 8 of the European Convention on Human Rights, on the right to respect for private and family life. In order to make an application under Article 8, it is necessary to gather extensive evidence demonstrating the extent to which a child, for example, has developed a personal life and connections within the United Kingdom, including evidence from the carer, teachers, therapists, medical professionals, mentors and friends. This is surely made far harder where those connections are severed by distance and time, enforced by deportation and delays in the tribunal system.

It is also vital not only to understand and obtain evidence, but to present it appropriately, which requires legal assistance, yet legal aid is not available for Article 8 appeals save on an exceptional basis. For those without the requisite leave there will also be no legal aid to challenge the certification of the case prior to removal. As a result, out-of-country appeals, for which the deadlines to lodge an appeal are often extremely tight, will not be pursued or will be pursued only inadequately, given the costs of taking forward an appeal as a privately paying individual from overseas. It may be that that is the deliberate intention of this measure. Under the Immigration Act 2014, the Secretary of State was given power to certify deportation appeals so that a foreign national offender subject to a deportation order can be removed before their appeal or during the appeal process if the Secretary of State decides that to do so would not cause serious irreversible harm—not just serious harm, but serious irreversible harm. Available data show that in the year since the provision came into force for foreign national offenders, the number of appeals against deportation brought out of country has dropped by 87% compared with the number brought in country in the year to April 2013. The rate of success on appeal is also lower than before, decreasing from 26% in the year to April 2013 to just 13%. That suggests that many individuals are unable to appeal effectively a decision following removal from the UK, and that appeals which would have been successful are not being brought.

The available data indicate that “deport first, appeal later” has had an adverse impact on the ability of foreign national offenders—whom I appreciate may not be the most popular of individuals—to challenge a deportation decision, which suggests that this handicap will affect thousands more individuals if the provisions are extended, including many who have British or settled family members in the UK, such as partners and children. We have in this group a stand part Motion relating to Clause 34.

Amendment 227 is intended to ensure that before a decision is made to certify any claim for an out-of-country appeal, the best interests of any child affected must be considered in line with the terms of our amendment. As I have already said, Clause 34 is a wide extension of the existing powers relating to a limited class of individuals, and will now cover many people who are appealing their cases. It is not clear to what extent the Government have considered the impact, particularly on children, of separation in such circumstances. The Children’s Commissioner published a report last year about the impact of different rules, including the rules about the income requirement that has to be met before a spouse can join a family. It also addressed the adverse impact on a child of not having access to one parent for months or sometimes years. The Government’s figures indicate that around 40% of appeals succeed, which is a high success rate for appeals, and if a family is involved it could result in the distress referred to in the Children’s Commissioner’s report, because they cannot have any meaningful contact with one of their parents for a prolonged period. That is a real difficulty with the intention to extend the removal of individuals before an appeal can take place. Many appeals take a long time to deal with, and this Bill seems a bit thin in addressing that issue.

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There is one further point, which was made by the noble Lord, Lord Rosser. He alluded to Section 55 and to the interests of the child, and suggested that perhaps, although these obligations exist, it might be better if they were reflected in the clause itself. That is a point on which I should like to reflect before Report, if he will permit me to do so. I am obliged to noble Lords.

[Lord Rosser]

First, I thank the Minister for that lengthy and comprehensive reply, which I am sure will have been appreciated by all those who have spoken and raised points in this debate. That does not necessarily mean that they have agreed with the Minister, but I am sure they have appreciated the extent to which he has sought to reply to the points that have been made. I also express my appreciation to everybody who has spoken in the debate.

In the light of the noble and learned Lord’s last comment that he would reflect further on whether something not too dissimilar to what was suggested in our amendment might appear on the face of the Bill, which I think is what he said, frankly I am tempted not to make all the points that I was going to make in response. I hope that that will not be taken as meaning that he has left me completely speechless with his reply; I am doing it in the light of what he said at the end of his contribution. I beg leave to withdraw the amendment.

Amendment 227 withdrawn.

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Debate on whether Clause 37 should stand part of the Bill.

[Lord Rosser]

We have the clause stand part debate on Clause 37 and an amendment in this group.

On 4 August, the Government initiated a consultation on proposals for changes in the support available to refused asylum seekers. The consultation ended just over a month later on 9 September and the Immigration Bill was published six days after the consultation ended. One can only comment that that was remarkably quickly after the end of a consultation exercise on part of the provisions of the Immigration Bill.

At present, there are two forms of support for asylum seekers under the Immigration and Asylum Act 1999—they are usually referred to as Section 95 support and Section 4 support. While waiting for a decision on the application, asylum seekers are not eligible for mainstream benefits. If they would otherwise be destitute, they can apply to the Government for accommodation or financial support or both under Section 95 of the 1999 Act. Since August of last year, the financial support available has been £36.95 per week per adult or child. That is, by the way, one-eighth of the daily allowance applicable in this place, which I believe one noble Lord recently declared was “inadequate”.

Asylum seekers whose application for asylum is unsuccessful and whose appeal rights are exhausted cease to be eligible for Section 95 support, which is terminated 21 days after the claim has finally been determined. Under some circumstances, destitute refused asylum seekers can apply for Section 4 support under the 1999 Act. If granted, that is not paid in cash but a payment card is provided, credited with £35.39 per person per week to be used in specified retail outlets to buy food and essential toiletries.

Under the 1999 Act, refused asylum-seeking families with children under the age of 18 who were part of the family before the final decision was made on the asylum application can continue to receive Section 95 support until the youngest child turns 18 or the family leaves the United Kingdom.

Under the Bill, that entitlement for refused asylum-seeking families is taken away. As a result, support under Section 95 for families with children will be stopped once they have been refused and had any appeal rejected, following, in the light of the recent information we had from the Minister, what will now be a 90-day grace period, which I acknowledge is longer than the Government were originally proposing.

After the 90 days, these families may then be eligible for a new form of support under new Section 95A, which replaces Section 4 support. However, to qualify for support under new Section 95A, individuals and families who have had their asylum application refused will need to demonstrate that they are destitute and face a genuine obstacle to leaving the United Kingdom. The details of how this will work will be set out in regulations, but the Government have already stated that the criteria for provision under new Section 95A will be very narrowly drawn and more narrowly defined than under Section 4.

Will the Minister say whether the Section 95 support will be withdrawn after 90 days for families who are fully engaging with the authorities over their departure, or will it continue in these circumstances? If so, who would make that decision for it to continue? Would there be a right of appeal against a negative decision in that regard? I ask that in the context that, as I understand it, the Government’s review of their family return process showed that, in 59% of cases, it took longer than three months to complete the process of leaving. Presumably, the evidence suggests that there will be many cases where support under Section 95 will cease before the family whose asylum claim has failed has been able to make all the necessary arrangements to return home.

The Government have also said that, under the new arrangements, it will not be possible to apply for new Section 95A support outside the prescribed grace period of 90 days under Section 95 support, except where the regulations permit this for reasons outside the person’s control. New Section 95A claims will require the applicant to show that there is a genuine obstacle to leaving the UK. For pregnant women, that is defined as being within six weeks of the due date. What will happen in a claim by a pregnant woman during the 90-day grace period for new Section 95A support who, at the time of the application, is not within the qualifying six weeks of the due date? Will they qualify for Section 95 support?

This clause and its associated schedule are clearly intended to deliver the objectives so bluntly set out in the Explanatory Notes of making it hard for those without the appropriate immigration status to live in this country. In this instance, it is the Government’s stated policy intention to encourage the departure—to put it euphemistically—from the UK of refused asylum seekers.

Will the Minister, when he responds, place on record the Government’s estimate of the reduction in the number of people in this country with no lawful basis to remain that will result from this intended change in the support arrangements, and the basis on which that estimate was determined? I ask that because the Government will be aware that there is far from universal acceptance of their apparent premise that cutting off support after 90 days to asylum-seeking families whose appeal rights have been exhausted will result in their leaving the United Kingdom, because where parents think that their children’s lives will be at risk if they return home they are rather more likely to consider that becoming destitute in the UK is still the better option available to them.

In 2005, the then Labour Government ran a pilot scheme in which families whose appeal rights were exhausted had all their support removed if they failed to take reasonable steps to leave the UK. The Government’s own evaluation of the scheme in respect of Section 9 of the 2004 asylum and immigration Act, which involved 116 families, concluded first that the rate of absconding was 39% for those in the Section 9 pilot, but just 21% in the comparable control group who remained supported. Secondly, it concluded that only one family in the pilot was successfully removed, compared with nine successful removals in the control group. There was no significant increase in the number of voluntary returns of unsuccessful asylum-seeking families. Finally, the earlier evaluation concluded that Section 9 should not be used on a blanket basis.

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[Lord Bates]

The short answer to that is yes.

Amendment 233 would require the Secretary of State to provide failed asylum seekers with a caseworker, a named contact and legal advice. It would also require the appointment of an independent person to report on the financial assistance available to failed asylum seekers who leave voluntarily, and on contact with welfare organisations in the country of return.

I agree as to the importance of these issues but not as to the need for this amendment. We provide generous financial assistance to incentivise returns and assist with reintegration in the country of origin. This can be up to £2,000 per person for families and up to £1,500 in support for a single person, in addition to removal expenses and their travel and transport costs such as flights. We also provide help with travel arrangements and resettlement needs. Some 143 families comprising 435 people and 469 single failed asylum seekers left under the assisted voluntary return scheme from 1 April to 31 December 2015, which suggests that the arrangements are working.

I will address some of the specific questions raised. The noble Baroness, Lady Lister, asked about the no right of appeal. I made the point that the wider facts will have been contested in the earlier appeals and examined by the Home Office caseworker, and that therefore a genuine obstacle would be easy to understand —in other words, that there is medical evidence that the person is not fit to travel or that they do not have the necessary travel documents to do so.

[Lord Rosser]

I am sure that the noble Lord will accept that it is not quite as straightforward as just saying that there will be medical evidence; there might be a view on what weight should be attached to that medical evidence and whether it meets the criteria. It cannot all be effectively a tick-box exercise, although I almost get the impression it is being portrayed as such.

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[Lord Bates]

More details will come out. We are working very closely with the local authorities and the Department for Education on what the guidance should be on this. We have to get that joined-up system there to ensure protection, particularly for the families, and work out how it will work. That process is ongoing. As set out in my letter of 21 January and in the substantial document, the review is current. I realise that we had a significant debate on the level of asylum support on 27 October. On page 2, paragraph 6 states:

“As Lord Bates confirmed in the House of Lords on 27 October 2015, we continue to keep the support rate under review”.

We have engaged with a number of stakeholders, including Still Human Still Here, Refugee Action, the Children’s Society and Student Action for Refugees and we will study the results carefully. The review should report in March or April and will provide detailed reasons for the conclusion when it comes through.

The noble Lord, Lord Rosser, asked what the reduction in the number of migrants will be. An impact statement is attached, where the noble Lord will see that we anticipate that an estimated 20% of the failed cohort will return. That is the assumption we have used in the impact assessment. It is not an easy estimate to make, however, for the reasons the noble Lord gave. It cannot be judged on just this one measure but needs to be judged by the wider measures in the Bill, which will make it more difficult for people to rent accommodation, drive or gain employment if they have no right to be here. It is part of the package but that is the assumption.

I come to discontinuation of support. If there is a genuine obstacle, support will continue. If a pregnant woman is not due to give birth within six weeks of the expiry point of the 90-day grace period, she will generally be fit to fly and therefore not eligible for new Section 95A support. If that were not the case, there would be medical grounds to cite a genuine obstacle to being able to travel.

[Lord Rosser]

I cited what I understand to be the figures from the family returns process. A significant number of the families involved are not dealt with within the three-month period. I suppose I am asking whether the Government agree with those figures, which I understand came from a government analysis. If it is accepted that, under that process, a significant number of families cannot with the best will in the world complete the process within three months, what happens under the 90-day period if there are likewise families with Section 95 support who cannot complete the process for leaving within the 90 days? Or is the Government’s argument that everybody should finish the process within 90 days and any reference to what is happening under the family returns process is somehow not relevant?

[Lord Bates]

That is, of course, how it is at the moment, but we will bring forward in the regulations means by which we believe we can improve the efficiency of that process and reduce a lot of the complexity in the system, which everyone wants to see removed. That will, in turn, speed up the process so that the vast majority of claims fall well within the 90-day period. That is our intention but it needs to be kept under review so that it is the case.

[Lord Rosser]

We hope that is achieved and that we get a quicker process. At the moment, however, unless what I am saying about the family returns process is wrong, there is evidence that it will not be possible to complete the process for a significant number of families within 90 days. All I am asking is: if that is the case —and there is no suggestion that the families themselves have contributed to the fact that the process has not been completed in time—will that Section 95 support be continued beyond the 90 days?

[Lord Bates]

Every case will be different but in a normal case, if someone cannot leave within 90 days, there is probably a genuine obstacle to their doing so. They may not be well enough or they may not have travel documents, in which case they would come into the category of having a genuine obstacle and, therefore, support could continue under new Section 95A.