Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Baroness Bennett of Manor Castle Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 16th September 2020 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I strongly support the amendment. The Government should be doing all they can to ensure that the estimated nearly 10,000 looked-after children and care leavers are registered. It would seem that the Children’s Society has done more to identify these children than the Government have. It is not sufficient to say that they will allow late applications, welcome as that is, because that means these children will, as has already been said, be undocumented and could then run into all sorts of problems under the hostile/compliant environments. Will the Minister undertake to issue a formal policy statement and guidance that confirms formally what has been said about late claims? Stakeholder groups such as the Children’s Society and the3million are concerned that it is not there in a formal way.

It is not enough to say that it is the responsibility of local authorities and leave it at that, with only non-statutory guidance. According to the Children’s Society and the3million, many local authorities seem unaware of this, as my noble friend Lord Dubs said. To reinforce his questions, will the Minister say exactly what the Government are doing to ensure that local authorities are aware of their responsibilities; to support local authorities to fulfil those responsibilities, because we know the pressure they are under; and to ensure that local authorities are doing all they can to identify and support children for whom they have a responsibility? The evidence suggests that many of these hard-pressed local authorities are not doing what is required.

The noble Lord, Lord Kerr, said that to accept this amendment would be to do the decent thing. Indeed, it would, and I do not think it is tedious at all for him to remind noble Lords about what is happening in Lesbos. It is decent that he has done that, and I hope the Minister will answer his questions in a decent way.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a pleasure to follow all the noble Lords who have spoken on this amendment thus far. I particularly commend the noble Lord, Lord Dubs, as others have, for his tireless work in this area.

Most of the questions have been asked and most of the issues have been canvassed, so I will be brief. I think everybody accepts that these are acutely vulnerable children. They do not have a parent who is able to look out for them; the state is their guardian, and that creates huge humanitarian responsibilities for the state that we expect our Government to live up to.

I also echo the comments of the noble Lord, Lord Kerr: where is the Statement and the action from the Government on the situation in Lesbos? We have seen significant action from European Governments, particularly the German and French Governments, so I join others in saying that I very much hope that we will hear an answer from the Minister on what the Government are going to do to help those intensely vulnerable people.

[Baroness Hamwee (LD) [V]]

My Lords, I have added my name to this amendment. The Government have given us an example of the reasonable grounds there may be for submitting a late application to the EU settled status scheme, but in this case the applicant is a child whose parent or guardian failed to apply on their behalf.

This amendment is about children of a corporate parent: the state. As we have heard, the Home Office estimates that there are 5,000 looked-after children and 4,000 care leavers who would need to apply. Not only are these children considered vulnerable—a word we are applying quite widely to very different situations—but in this context they have rights which it is not possible, or certainly not easy in practical terms, for them to exercise. Their parent, the state, is in a rather different position from a flesh-and-blood mother or father.

This is a very nifty amendment. It means that social workers would not have to chase after paperwork; they are very overloaded, as we have heard. It does not leave children in the precarious position of having to apply late, or of being undocumented, when they would be exposed to ineligibility for NHS treatment that is not charged for, and there would be no cliff edge at the end of pre-settled status. I think I am right in saying that the five-year period in subsection (6) of the proposed new clause would mean that it would apply to babies who are currently, or by next June, under five years old.

As the noble Lord, Lord Kerr, said, this is not too hard to sort out—at least, it does not seem so to me. I hope the Minister will agree. Like others, I think that the noble Lord’s questions are relevant to today, if not relevant precisely to this amendment. They are very important. I look forward to supporting this amendment.

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[The Earl of Dundee (Con) [V]]

My Lords, I support Amendment 62—spoken to in a very moving way by the noble Baroness, Lady Hamwee—which seeks to expand family reunion rules. I also support Amendment 79, in the name of the noble Baroness, Lady Bennett, which ensures that family reunification should not be restricted by any lack of income or assets affecting relevant parties.

Amendment 64, in my name, allows visas to be issued on humanitarian grounds. Three conditions are stipulated: the person needs medical treatment, is an orphaned child, or is a child who is a dependant of a person in the United Kingdom. These conditions are covered in Section 3. However, Section 4 enables the Secretary of State to add to them if required.

As outlined, therefore, Amendment 64 does not address family reunion. Instead, it deals with people who need to come to the United Kingdom for medical attention, orphaned children, and those who do not qualify for family reunion but who are dependent upon another person, or people, in the United Kingdom. Post Brexit, this amendment may thus prove useful for the continuity of the United Kingdom’s excellent record of sustained high standards of humanitarian good practice, such as receiving here for emergency surgery the Nobel Prize laureate Malala Yousafzai, after she had been shot in the head by Islamist terrorists, and, during the recent lockdown—and for this my noble friend the Minister and her government colleagues deserve a great deal of credit—the relocation to the United Kingdom of dozens of unaccompanied minors from Moria refugee camp in Greece when it was recently destroyed by arson.

Secondly, the measures proposed may also help many to avoid become prey to human smugglers and traffickers. An absence of humanitarian visas, which the amendment seeks to redress, is also an advantage to human smugglers and traffickers. For these reasons, I hope that the Minister can accept Amendment 64.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I rise to support Amendment 62 in the name of the noble Baroness, Lady Hamwee, which I was delighted to sign. I also wish to express my support for Amendment 64, which the noble Earl has so ably presented, and to speak to my own Amendment 79. The first two refer to people who need refuge; mine refers to a different group and I will get to that in a second.

As I was listening to the powerful presentations from the noble Baroness, Lady Hamwee, and the noble Earl, I was thinking back to January 2016 when I was at a memorial service for a 15 year-old Afghan boy. His name was Masud, and he died in the back of lorry trying to get to the UK to rejoin his brother. This relates to the discussion we were having before about the situation on Lesbos. We have to provide safe, legal, orderly routes for people to reach the UK, and to achieve the refuge they should be entitled to.

I note my position as the co-chair of the All-Party Parliamentary Group on Hong Kong and identify what may well be a rising issue. The Government have stepped forward and said that they want to help people who need to leave Hong Kong because of what is happening there with regard to human rights. I very much hope that we will see action on providing orderly routes for people to be able to do that, and for people all around the world.

I mostly want to speak on Amendment 79. As I said, this does not relate to refugees. This relates to a situation involving those generally known as Skype children, the numbers of whom are, of course, likely to be significantly enhanced. At the moment, for non-EU and EAA citizens who are the spousal partner of a British citizen, the British citizen has to have an income of £18,600 a year to bring them to the UK—more with children—and at the end of the transition period this Bill will extend that to many more people and many more children.

This is a more limited amendment than Amendment 23, which we debated last week, which addressed couples being able to stay together as well as children. While I prefer Amendment 23, I am hoping that the Conservative Government might be more prepared to consider amending the legislation specifically so that it is not tearing children out of their parents’ arms. It is, at the moment, not using the wisdom of Solomon but actually delivering the verdict of Solomon and forcing parents to let their children go to be separated from them for years. As we all know from the situation with Covid-19, yes, you may be able to keep in contact through a screen, but it is certainly not the same thing.

I note that in 2018 the Children’s Commissioner for England commissioned a report showing that up to 15,000 British children were already growing up in this situation. This is without adding in people affected by Brexit. Many children were reportedly suffering from significant stress and anxiety from the separation.

So have the Government made an estimate of the number of children likely to be affected annually by the minimum income requirement once the immigration Act, as it will be, comes into effect? The research by the Children’s Commissioner found that Britain had the least family-friendly reunification policies of 38 developed countries, largely because of that minimum income requirement. That is of course £18,600 a year, which was then 138% of the minimum wage. It will not be quite so bad now. The Children’s Commissioner, Anne Longfield, said at the time:

“There is a wealth of evidence which indicates that children are far more likely to thrive when they are raised by parents in a warm, stable and loving family environment.”


There is evidence, she said, that this affects

“their well-being and development. It is also likely to have an impact on their educational attainment and outcomes.”

As one of the authors of the report commissioned by the Children’s Commissioner pointed out, the great majority of children affected by this are British citizens. They are being forced to grow up effectively in single-parent families, when their parents want to be together. So I hope that the Government will reflect on the comparison with Solomon and think about accepting this amendment.

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[Lord Judd (Lab) [V]]

My Lords, I thank the noble Lord, Lord Greaves, for his characteristically forceful speech, particularly the striking and moving anecdote about the young man who lost his driving licence. I fear that that kind of experience is not unique and is repeated too often, in too many ways.

I put on record my strongest possible appreciation and support for these two amendments. They are vital. I also want to say how cheered I have been by the strength of argument and emotion with which my noble friend Lord Rosser introduced the debate, and by the way that my noble friend Lady Lister backed him up with her commitment. As the noble Lord, Lord Greaves, has just pointed out, the first bit of the Member’s explanatory statement for this amendment says that it

“is to probe the case for a statutory duty to encourage, promote and facilitate”.

These are key words. The statement runs on to say that it is to ensure the Secretary of State

“does not exercise certain of her powers and responsibilities in any way that may impede the exercise of those rights”.

That hardly needs to be said; at the same time, it needs to be underlined because one cannot be altogether certain on that front.

Rights are rights but there are too many indications of considerable numbers of people—young people and children, in particular—who are not really yet switched on to what their rights are and what is necessary to register them under the new arrangements. There may be a host of reasons why they are not acutely aware of what they must do, but that problem exists with a considerable number of people. I would like to feel that we had a Home Office with political leadership that supports civil servants in saying that their job is to ensure that everyone with a right is going to be able to register to continue the fulfilment of those rights. That is the kind of commitment and drive we need from Ministers and civil servants.

In the context of a Select Committee to which I belonged at the time, I was one of those who had the good fortune to attend a couple of briefings, and I also went to the Home Office to be briefed by civil servants on the arrangements that they were making under the necessary processes following the removal of European Union citizenship in Britain. I was impressed then, because there seemed to be a real commitment by the team working on this issue to tackle the situation effectively. Now, however, I have the feeling that there is not so much inertia but more a sense that our job is to provide the facilities and make them as accessible as possible. We have to be more proactive than that, but that is not going to happen on the scale and with the thoroughness that it should unless leadership comes from the top.

I thank my noble friends Lord Rosser and Lady Lister, and all the others who have spoken so effectively and convincingly on this issue. I cannot believe that the Minister, being the sort of person she is and on hearing these arguments, will not find a way in which she can convincingly respond to them.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I offer the Green group’s support to Amendments 63 and 67. We have already heard many powerful speeches, so I will be brief.

I want to address Amendment 67 in particular, because it has full cross-party support, in so far as that can be expressed by the procedures of your Lordships’ House. I note that Members from the three largest parties and the Cross Benches have signed it. It struck me in looking at this that perhaps I might make representations about our procedures to show the full breadth of cross-party support in our multiparty age; there might need to be the possibility of more signatures to be available on the Order Paper, but that is something for another time.

I want to focus on some of the words of the noble Baroness, Lady Lister. She spoke about the imbalance between the Home Office’s actions: its clear desire to enforce action against people who it perceives not to be British citizens and not to have the right to be here versus its extreme inaction in informing and educating people about their rights and making sure that they are not excluded from those rights. As many noble Lords have noted, there is not much use in having rights if you do not know about them; that is effectively being denied your rights. I was reflecting on that and thinking that, effectively, the Home Office is defying the will of Parliament in defying the rights that Parliament has granted to people, by failing to inform them. That is not what should be happening, but it clearly is. That is why I think it is really important to support both these amendments, which work in much the same ways, and will push to see them in the Bill.

We saw with the Windrush scandal, which one just cannot avoid referring to in this context, that the Home Office denied people their personal rights. It denied them their life in some cases—the actions taken by the Home Office were deadly.

I also note the comments of the noble Lord, Lord Alton of Liverpool, that all too often these issues are mixed up with immigration, but they are absolutely distinct. We are talking about British people being able to live in their own country and exercise the rights that they enjoy. I commend both these amendments to your Lordships’ House.

[Baroness Hamwee (LD) [V]]

My Lords, I have added my name to Amendment 67 on behalf of the Liberal Democrat Benches, because we have all heard too many stories of individuals who did not realise the significance of their rights. Many speakers have stressed the term “rights”, including the noble Baronesses, Lady Primarolo and Lady Bennett, and the noble Lord, Lord Judd, and referred to people who did not know their rights until the crunch point when they encountered the difficulties of proving those rights.

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[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have two requests to speak after the Minister from the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord Kennedy of Southwark.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, the Minister had clearly not been informed that I was already waiting to ask a question, so I hope this does not come as too much of a shock to him. However, in the interests of clarity in this debate, I am sure he will agree to note the fact that the human ecological footprint is a product of a number of people in an area or nation, or on the globe, multiplied by their consumption level. I am sure he will know that the people of the UK collectively consume our share of three planets’ resources each year, but we have only one planet. Even if we had half the number of people in the UK that we have now, we would greatly exceed the planetary limits.

Can the Minister confirm the Government’s understanding of the essential environmental approach in areas ranging from the climate emergency—noting our special responsibilities as COP26 chair—to the nature crisis and water concerns that we discussed earlier in Oral Questions? The key approach is transforming our currently wasteful, destructive treatment of the planet as a mine and dumping ground, which has produced a miserable, insecure and vulnerable society—as exposed by Covid-19—that exceeds a significant number of planetary boundaries.

[Lord Parkinson of Whitley Bay (Con)]

It is not a shock but a pleasure to hear from the noble Baroness, and a particular pleasure to agree with what she says about it being not just the level of consumption but the overall number of people that has an ecological impact. That is why I am pleased to be part of a Government who are pursuing our world-leading target of achieving net zero.

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[Baroness Hamwee (LD) [V]]

My Lords, EEA nationals and their family members will of course be made subject to the system of immigration control when free movement ends. That will affect those who face removal from the UK on the basis of their character or conduct, including any criminal record. The tests for the deportation of EEA nationals and their family members are currently more stringent than those for the deportation of third-country family members of British nationals and settled persons.

Those who have not raised protection claims and meet the deportation criteria, and who want to remain in the UK on family life or private life grounds, must satisfy one of two exceptions. Either they must prove that they have

“a genuine and subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child”

who would experience the deportation as “unduly harsh”. Those sentenced to four years or more must show very compelling circumstances—a higher threshold than that.

The Home Office interprets “unduly harsh” as excessively cruel. In the case of KO, the Supreme Court found that, to meet the test, mothers and fathers facing deportation must demonstrate that separation from their children would involve

“a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent.”

In the subsequent cases of PG and KF, the courts held that most children who have a parent facing deportation would be likely to suffer significant psychological trauma, so that to succeed in their appeal the parent would have to show a risk of harm beyond what would normally be expected. The court in the case of PG expressed great sympathy for the children but said that distress to innocent children is insufficient to prevent deportation.

That means, in effect, that the courts are obliged to accept that harshness or cruelty caused to a child is acceptable—or, at any rate, has to be accepted—even where the long-term harm and trauma caused to the child, their family and the community may be detrimental to society at large and therefore not in the public interest.

Unlike a criminal sentence when a parent is sentenced to imprisonment, deportation can effectively end a child’s family life with a parent for the whole of their childhood. The permanent ending of family life can have a long-term negative impact. I do not need to describe that in detail to noble Lords. The partner left in the UK effectively becomes a single parent with all the struggles that involves. Perhaps it is a rhetorical question, but how can this be reconciled with the duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to have

“regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”?

Despite the Home Office’s statutory duty to safeguard and promote the welfare of children and have children’s best interests as a primary consideration, the Home Office does not record the number of families it separates through deportation. We have had plenty of debates in this House about the importance of data. In 2018, Stephen Shaw, whose reviews have been so powerful, said:

“I find the policy of removing individuals brought up here from infancy to be deeply troubling. For low risk offenders it seems entirely disproportionate to tear them away from their lives, families and friends in the UK and send them to countries where they may not speak the language or have any ties.”


For those who have committed serious crimes, there is a further question of whether it is right to send high-risk offenders to another country when their offending follows an upbringing in the UK. As I have said, judges have expressed sympathy with appellants in deportation appeals and have expressed surprise at the effect of the legislation. As Lord Justice Baker remarked in the case of KF:

“For those lawyers, like my Lord and myself, who have spent many years practising in the family jurisdiction, this is not a comfortable interpretation to apply. But that is what Parliament has decided.”


I am putting this to Parliament again by proposing the modifications to the Nationality, Immigration and Asylum Act 2002 set out in Amendment 82A. I beg to move.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I intervene to support Amendment 82A in the name of the noble Baroness, Lady Hamwee. She has set out a very clear case, so I will be brief.

I have lost count of how many times we have heard Ministers say, “We want to treat everyone the same way; we want a global system.” As the noble Baroness set out, this amendment seeks to correct a discrimination in how the law was being applied. Many times, when I have risen to speak in this Committee, it has been because of concern about family life, the impacts of decisions on children and the separation of families. As the noble Baroness, Lady Hamwee, just set out, that is what we are looking at here, as well as a situation in which people who are clearly a product of British society—and should be our responsibility—being dumped on other nations, which may have far fewer resources than we have to deal with them. To expect other nations to pick up the results of our choices and decisions is utterly unreasonable.

It is chiefly those innocent children, spouses and partners I am concerned about—lives being torn apart. I refer the Minister to the Children’s Commissioner’s quotes I referred to in the Skype family amendment. This has massive impacts on well-being, health, mental health and educational attainment.

The last time I spoke, I talked about the judgment of Solomon. It is a question of applying the judgment of Solomon or applying his wisdom to make a choice that is best for individuals or society. I therefore commend Amendment 82A to the House.

This is my last contribution on the Bill in Committee, so I pay tribute to the relatively small number of Members of your Lordships’ House who have done an enormous amount of work and clearly have a massive amount of expertise in all these areas. I have learned a great deal from listening to that. I appreciate that, and I hope the Government will listen to nearly all the amendments presented here, which have been trying to make the Bill more humane, fair and respectful of human rights.