Immigration Bill

Lord Rosser Excerpts

Tuesday 12th April 2016 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for tabling the amendment on behalf of us both. I was alerted to this issue by briefings at an earlier stage of the Bill from the JCWI and ILPA. As the noble Baroness said, the late and much missed Lord Avebury tried to resolve this issue during the passage of what became the 2014 Act, but to no avail. It falls to us to try to resolve it now.

I will not repeat the case in support of the amendment that has already been made so clearly by the noble Baroness. Instead, I draw your Lordships’ attention to a singular aspect of the permission-to-rent scheme that the amendment is designed to remedy. The UK has a strong tradition of upholding the rule of law. All of us can be sure in our interactions with the state that officials who make decisions that affect us are accountable to the law. Whether it is the person next door applying for planning permission, the imposition of a fine for speeding, the grant of a licence to serve alcoholic beverages or a local decision to cut council services, in every case the people affected are either directly notified of the decision or are able to access information about it that is available in the public domain. By informing people of the decisions that affect them, we ensure that government operates reasonably transparently. We ensure that power is exercised in a reasonably accountable way, and that any arbitrary or unlawful use of power is communicated directly to those that it affects. The system helps to ensure that Ministers and other public servants wield their considerable power within the law.

Here, though, we have a scheme under which the Home Secretary can decide whether or not a person—and, potentially, their entire family—is made homeless. I emphasise to noble Lords that this is no exaggeration. To take the example that the noble Baroness referred to, we have been made aware of the case of a man with a wife and two young children who have every right to be in this country and possess the right to rent but, because he does not have the paperwork to evidence that, he is unable to find housing for his family. They have come to the end of a tenancy and have now been forced, as a family of four, to live with relatives while the Home Office processes his paperwork.

The right-to-rent scheme has a huge impact on individuals who are caught up in it. But, despite the importance that the Home Secretary’s decision makes to an individual’s life in future, there is no right to be informed of that decision and of the grounds on which the decision was made.

The Government will tell my landlord whether or not I have permission to rent and therefore whether or not I might have a home to go to come tomorrow, but they will not tell me. This cannot be tenable in a country that operates under the transparent rule of law. People have a right to know whether they will be entitled to rent accommodation. Moreover, as the Commissioner for Human Rights of the Council of Europe stated in his recent memorandum on the human rights of asylum seekers and immigrants in the UK, the right to adequate housing applies to everyone. Ensuring that right is essential to the inherent dignity of every person, irrespective of their legal or immigration status.

A simple administrative reform can resolve this issue, which, as I have said, has important human rights implications. I urge the Minister either to accept the recommendation or to make a clear commitment to sort this out once and for all.

[Lord Rosser (Lab)]

I, too, have received a briefing on the issue that has been raised, and I certainly do not wish to reiterate the points that have been so ably put. There seems to be a strong argument for at least clarifying the situation—I think that that is what is being asked for—and ensuring that we do not end up with people being made homeless as a result. I very much hope that in his response the Minister will be able to provide that clarification—and an acceptable clarification as well.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, Amendment 1, tabled by the noble Baroness, Lady Hamwee, would, as she explained, provide that a person disqualified by virtue of their immigration status may apply to the Secretary of State for written confirmation that permission to rent has been or will be granted to them. The amendment would amend the Immigration Act 2014, which introduced the right-to-rent scheme. It would work in conjunction with the existing provision, which states that a person who is otherwise disqualified from renting premises as a result of their immigration status is to be treated as having a right to rent where the Secretary of State has granted them permission to occupy premises under a residential tenancy agreement.

I hope that I can persuade the noble Baroness that the amendment is unnecessary and potentially even a step backwards. The Secretary of State is already able to grant permission to rent to people who are otherwise disqualified from renting. This may include migrants without leave who have sought asylum, families with minor children who are in the family returns process or those who face a genuine obstacle to leaving the UK. A migrant may obtain confirmation that they will be afforded such permission by contacting the Home Office, and all a landlord need do then is to contact the Home Office landlords’ checking service with the migrant’s Home Office reference number to confirm that they may rent to that migrant. Following that process will give the landlord a statutory excuse from any civil penalty under the right-to-rent scheme.

Very importantly, this system allows for a swift process, without the need to require a migrant to make a formal application or for them to await written confirmation through the post that they may rent. Our experience since the right-to-rent scheme was introduced on 1 December 2014 is that this process works well. For those reasons, I invite the noble Baroness to withdraw her amendment.

Incidentally, there is no inconsistency between the FoI response and the letter from my noble friend Lord Bates. As I explained, a migrant may already contact the Home Office in order to establish whether they will be granted permission to rent. Existing arrangements are straightforward and work well. I should also mention that the Home Office is in the process of revising its published guidance in response to concerns raised during previous debates. I have no doubt that it will factor in the points made in this debate as well. Once that is done, the guidance will set out even more clearly how a migrant may contact the Home Office. But I suggest that requiring that they make a formal application and then have to await written confirmation may lead to unnecessary delays and in fact would serve no useful purpose.

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[Baroness Hamwee]

My Lords, from these Benches I support this amendment very warmly. In the previous stage of the Bill, as the noble Baroness, Lady Lister, said, we had an amendment dealing with vulnerable people but it was debated alongside and really overshadowed by the amendment on a time limit to detention. The amendment provided that detention should take place only in exceptional circumstances determined by the First-tier Tribunal.

After the amendment was tabled, I was quite embarrassed by the opposition to or considerable doubts about it expressed by a number of organisations for which I have the greatest respect. They told me that we had got it wrong and that we should not provide for any exceptional circumstances in the case of pregnant women. I explained to them that the amendment was expressed as it was because we were trying to approach the Government with an offer of compromise. We hoped that the Government would meet us halfway by agreeing to not a complete exception but the one we expressed in that amendment. The list of vulnerable people was taken from Stephen Shaw’s report, in which—no ifs, no buts—pregnancy means vulnerability. As the noble Baroness said, and I will see if I can get it out without tripping over the word, he spoke of the,

“incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.

His Recommendation 10 was that they should be excluded.

The Government have added what is now Clause 62 to the Bill and there will be guidance; I acknowledge that that will come to Parliament. However, it will be through the negative procedure, and this is another of those examples where we can talk to our hearts’ content but will not be able to alter what is proposed. I was worried when I saw that new clause in the last stage and I worry now about the expression “particularly vulnerable”. I say again: there should be no ifs, no buts.

The Government proposed the adults-at-risk approach that has been referred to. I thank the Minister for his letter, in which he describes the Government’s concern about allowing all pregnant women access to the UK regardless of their immigration status, and therefore access to maternity services. The noble Earl will recall the debates that led up to the health charge being imposed—I suppose it is two years ago now—and that was one of the concerns which was expressed. We now have the health charge.

The letter from the Minister, the noble and learned Lord, Lord Keen, explained:

“The higher the level of risk (and pregnant women will be regarded as being at the highest level of risk), the less likely it is that an individual will be detained”.

He added that the Government’s view,

“is that the best approach is a considered, case by case one which is represented by the adults at risk policy”.

I find it difficult to reconcile the two parts of that—that this is the “highest level of risk” but that there will be a “considered, case by case” approach. I do not think that the Minister can be surprised at the anxiety expressed by the very considerable number of well-respected organisations which are anxious about the policy given their experience of the current policy.

The noble Baroness referred to the all-party group inquiry, of which she and I were members. I turned it up this morning to find the comments that we made then about pregnant women. They included the evidence of Hindpal Singh Bhui, a team inspector at HM Prisons Inspectorate, who said that,

“pregnant women are only meant to be detained in the most exceptional circumstances. And again, we look for evidence of this”.

Of course, I am talking about the historical position. The inspector continued:

“And on the last couple of occasions that we’ve looked, we haven’t found those exceptional circumstances in the paperwork to justify their detention in the first place”.

Our report went on to say:

“We were also told of pregnant women being forced to travel long distances, sometimes over several days, when initially being detained, and failures in receiving test results and obstetric records. In one case, we were told that an immigration interview was prioritised over a 20-week … scan”.

The report continued:

“We are disappointed that the Home Office does not appear to be complying with its own policy of only detaining pregnant women in exceptional circumstances. We recommend that pregnant women are never detained for immigration purposes”.

I see no reason to depart from that but every reason to support it and the amendment.

[Lord Rosser]

I apologise in advance for the fact that my contribution will contain a fair element of repetition of what has already been said but it will be relatively brief.

In his review for the Home Office into the welfare of vulnerable persons in detention, Stephen Shaw recommended that it amend its guidance so that the presumptive exclusion from detention for pregnant women was replaced with an absolute exclusion. Stephen Shaw said in his report that Her Majesty’s Inspectorate of Prisons had told him that in its view there was little to suggest that pregnant women were being detained only in exceptional circumstances. He also said that the Association of Visitors to Immigration Detainees had pointed out that an inspection of Yarl’s Wood had found pregnant women being detained without evidence of the exceptional circumstances required to justify this, with one of the women being hospitalised twice because of pregnancy-related complications. In the light of the evidence presented to him, which he set out in his report, Mr Shaw said that he had not sought further evidence that detention had an adverse effect on the health of pregnant women and their unborn children, since he took this to be a statement of the obvious.

Stephen Shaw also said in his report that he believed that the Home Office should acknowledge the fact that in the vast majority of cases the detention of pregnant women does not result in their removal, and that in practice pregnant women are very rarely removed from this country except voluntarily. Concluding, he said that he was strongly of the view that presumptive exclusion from detention should be replaced with an absolute exclusion.

I hope that the Government will reflect on their apparent decision not to accept Stephen Shaw’s strong recommendation in respect of the detention of pregnant women. It is my party’s policy that pregnant women should not be detained in these circumstances, a view also expressed by Mr Shaw in his independent report to the Home Office. If my noble friend Lady Lister of Burtersett decides, at the end of the debate—and, most importantly, after the Government’s response—to test the opinion of the House, we shall support the amendment.

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[Lord Rosser]

My Lords, I support the questions raised by the noble Baroness, Lady Hamwee, in relation to the first amendment and retrospection, which was addressed by the Constitution Committee, and to the other two amendments and the extent to which they do or do not mean that the Secretary of State could dictate to a criminal court, including a court of criminal appeal. I am afraid I did not see the Minister shake his head when the noble Baroness, Lady Hamwee, made that comment, but I hope that, if that is the position as far as the Government are concerned, it does not mean that the Secretary of State will in any way be able to dictate to a criminal court and that the Minister will set out very clearly in his response why it is incorrect to draw that inference or assumption from these amendments.

[Lord Keen of Elie]

I shall begin with the observations made with regard to alleged retrospective effect in the provisions in Clause 63. Reference was made to a decision of the Court of Appeal in the case of B v the Secretary of State for the Home Department. Before that decision, which is subject to an appeal that I will come back to in a moment, it was widely—indeed, universally—understood that individuals could be released on immigration bail in circumstances where their detention was no longer lawful under the Hardial Singh principles; that is, there was no reasonable prospect of their deportation and they therefore had to be released. That understanding was shared by the relevant tribunals: the First-tier Tribunal and the Special Immigration Appeals Commission. Indeed, it was the decision of the president of the Special Immigration Appeals Commission which was overturned in the recent decision of the Court of Appeal, that determined that if detention was no longer lawful under the Hardial Singh principles, it would follow that bail could not be granted and, in particular, that bail could not be granted subject to conditions. As one might imagine, that had wide-ranging implications for the purposes of security, particularly in the case of B, who appeared to be an established Algerian terrorist who was at risk of carrying out terrorist activities to assist others in Algeria and elsewhere. The decision of the Court of Appeal has been suspended pending an appeal to the Supreme Court, which is set down to take place in December. However the Government’s position is that the position prior to the decision of the Court of Appeal was correct and it should be reinforced by statutory provision. It is for that reason that Clause 63 is in its present form. I understand that the appeal to the Supreme Court will proceed in any event, but it is essential, particularly in a matter that impacts on our security, that there should be no doubt or difficulty and no gap in our legislation so far as that is concerned.

Turning to Amendments 10 and 11, the test of practicability is for the Secretary of State, not the court, but there is no question of the Secretary of State usurping the functions of the court. It may be recollected that for that reason an amendment was made to Schedule 10 at an earlier stage to make clear that the Secretary of State could not usurp or overturn any decision-making power of the court or tribunal in these circumstances. That remains our position with respect to Schedule 10, as amended.

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[Lord Green of Deddington (CB)]

My Lords, the principle of the immigration skills charge is not in dispute. It is absolutely vital that the skills of our own workforce should be improved if we are to achieve the major reduction in immigration which the public so anxiously wish to see. The main issue is one of timing as to when it should come into effect.

The Migration Advisory Committee, to whose work I pay a warm tribute, gave three reasons for its strong support for this scheme. First, to raise the cost of immigrant labour so as to reduce the numbers; secondly, to contribute to the extra cost involved for public services; and, thirdly, to compensate for what it described as the,

“rather modest efforts to upskill UK workers”,

by those firms employing Indian IT workers. All those matters need tackling as soon as possible.

I certainly accept that there may be some loose ends in respect of some of the public services, but we need to get on with this. The Government have announced that they will bring the measure into force in April 2017. That seems a reasonable way to get this moving in a vital area.

[Lord Rosser]

The Government have said that the £1,000 per year immigration skills charge will be paid by employers who sponsor tier 2 migrants, with a reduced rate of £364 per annum applying to small businesses and charities as set out in the Immigration Rules. There will be an exemption in respect of migrants undertaking occupations skilled to PhD level, primarily science and research roles. An exemption will also be applied for graduates who switch from tier 4 to tier 2 for the purpose of taking up a position in the UK. As far as other areas, organisations and categories are concerned, the Department for Business, Innovation and Skills is apparently continuing to consult, including with devolved Administrations and other government departments.

In their letter of 7 April, on Ministry of Defence headed paper, the Government said that they intend to introduce the charge from April 2017 rather than from a somewhat earlier date provided for in the Bill. As they have also said that they are looking at phasing in the charge, can the Minister say what the intention to introduce the charge from April 2017 means as far as timescales are concerned?

The Government have confirmed that secondary legislation will be needed before the charge can be introduced. They expect to lay regulations in the autumn and to publish a draft before they are laid, with interested parties being given an opportunity to comment. There are difficulties with potentially significant issues being dealt with by secondary legislation because such proposed legislation cannot be amended, only accepted or rejected in its entirety.

There appears to have been little analysis provided on the impact of the immigration skills charge. Can the Minister say how much money will be raised by the charge; what percentage of existing training budgets that will represent; and for how many will this additional money provide the training envisaged? What analysis have the Government undertaken to show that the introduction of the charge will achieve the stated objective, as set out in the letter of 7 April, of encouraging employers to think differently about their recruitment so that, where possible, they recruit and train up resident workers and reduce the need to recruit skilled labour from outside the European Economic Area? Has an impact assessment been undertaken and, if so, what did it indicate? By how many is it expected that the charge will reduce the need to recruit skilled labour from outside the European Economic Area?

The Government also ought at least to give a commitment that they will listen to and take into account the views of interested parties when the draft regulations are published prior to being laid; and that interested parties will be given sufficient time to respond, bearing in mind that the draft could be published in the middle of the holiday season.

In looking at where, to whom and from when the charge will apply, what are the criteria against which the Government are determining and making their proposals? Against what criteria, for example, will proposals on the extent to which the charge should or should not apply in the National Health Service be formulated? While the decision not to apply the immigration skills charge to those switching from a tier 4 student visa to a tier 2 visa is a positive move for the health service, it will not as I understand it exempt overseas doctors recruited by the NHS on tier 2 visas to fill medical vacancies in hard-to-recruit medical specialties and areas.

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[Lord Wallace of Saltaire]

My Lords, I am a little reassured but I have to say that I am still left in much confusion as to how the Government intend to get from here to where we all wish to be. The ability of the noble Lord, Lord Rosser, to raise a very large number of fair questions about what is intended by all this simply demonstrates how unclear many of us in this House and outside are about how the Government will ensure that the extra skills are provided from within this country. I entirely agree with the noble Lord, Lord Green, that there is a long-term problem of companies in Britain finding it cheaper and easier to recruit direct from abroad rather than spending money on training their own employees. That applies not just to the Indian IT sector but also to long-distance truck drivers and all sorts of occupations in the private sector.

However, in the public sector the Government are responsible for training. As regards when we introduce this charge, I simply point out that it takes two or three years to train a nurse and longer to train a doctor, let alone a good maths teacher. Therefore, a year is not enough. We will find in the interim period that schools and hospitals will pay sums out of their flat budgets, out of which they are already paying for additional pension increases—so budgets are being squeezed—before any new training schemes have provided the additional skilled recruits from within the United Kingdom. That is part of the argument we are making about phasing in for the public sector.

I very much hope that we will have Labour support on this occasion. As I understand it, the Labour Party supports the public sector. I have heard reports that the Labour Party in the Commons has instructed the Labour Party in the Lords not to support this measure because it is a Liberal Democrat amendment and it is a bit queer about supporting Liberal Democrat amendments. I very much hope that the noble Lord, Lord Rosser, will be able to bring his party along. However, I appreciate that sometimes in the Lords the Labour Party Front Benchers have to defend positions they are not entirely happy about, as, indeed, do the Conservative Party Front Benchers.

[Lord Rosser]

I reassure the noble Lord, who is clearly very concerned about my present state and what I have had to say on this amendment, that I fully support an agreement—obviously, to his surprise—regarding what I said from this Dispatch Box. Interestingly enough, the noble Lord has not responded to the objections that I raised on his amendment.

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[Earl Howe]

My Lords, with the leave of the House I will briefly answer the noble Lord’s questions. First, as he is aware, we regularly consult external partners and experts including the Red Cross and Save the Children. We will continue to do that. Secondly, we are revising our guidance on family reunion, which provides specific guidance for those already in the UK on how to apply for family reunion and instructions for caseworkers on how to consider such applications. We intend to publish this in April and we will communicate it to all relevant officials. Details of how to apply are already available on GOV.UK and refugees granted international protection are advised about their entitlement to family reunion when they receive their asylum decision.

[Lord Rosser]

I take this opportunity—I believe I am doing it at the right place—to express our thanks to all those who have participated in the debates on the Bill, which I believe is now a better Bill than the one that was sent to us from the House of Commons. We are grateful for the amount of information provided by Ministers and the Bill team, for the numerous meetings that have taken place and for the willingness of Ministers to listen to concerns about the Bill and, in some instances, the willingness of the Government themselves to bring forward amendments or place statements on the record to address those concerns. I particularly express appreciation of the work undertaken during the passage of the Bill by the noble Lord, Lord Bates, whose approach, as with that of his Front-Bench colleagues, has I think been appreciated on all sides of the House.

[Baroness Hamwee]

My Lords, from these Benches I add our thanks, particularly to the noble Lord, Lord Bates, who has started on a rather long walk, as my noble friend Lord Wallace of Saltaire said. It is one of a series of admirable walks but the noble Lord’s colleagues have been walking well alongside him, and after him, during the course of the Bill. It feels a little odd to agree that the Bill do now pass, because we are by no means clear what it will provide by the time that it has endured—a word that the noble Lord the Chief Whip might use—ping-pong. We are by no means finished with these issues or with the Bill itself.