Immigration Bill

Baroness Hamwee Excerpts

Wednesday 19th March 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, first, I think that my noble friend has informed the Minister that we will not be speaking to Amendment 87ZD. We realise that we have made an error in it, for which I apologise to the Committee.

The last amendment in this group, Amendment 87ZJ, is also an amendment to Schedule 9—the part dealing with the grounds for an application. P—the person to whom my noble friend referred—is required to provide a supplementary statement to the Secretary of State or immigration officer setting out new circumstances and additional reasons or grounds, where there are any, as soon as practicable. My amendment would add to an earlier paragraph a requirement for P to inform the Secretary of State of the change in circumstances in order that he is made aware of the need to do so. As my noble friend said, he will probably have no assistance in this, so we are suggesting that the Secretary of State should include this in the notice served on P.

The first of the amendments in the name of the noble Baroness had me looking at Clause 62 this morning. On Monday, the Minister said that he believed in scrutiny. I do, too. I also believe in getting answers to questions on the record. I will whip through my questions quickly and hope that he will be able to whip through his answers quickly, but they are points about which, when fees are being set, I think practitioners as well as parliamentarians will be concerned.

I read the term “specified fee”—which is used, among other places, in Clause 62(7)—as meaning that the Secretary of State will make an order specifying categories of fees which will then be set by regulations. If that is so, can my noble friend indicate the criteria for making some categories subject to an order and some to regulations?

I went on to see in Clause 62(2) that there seems to be a requirement for a fees order for all fees—or are fees to be chargeable outside the functions within subsection (2)? Does “any specified fee” in Clause 62(4) mean each fee specified by a fees order? In that subsection and in subsection (6), which deal with the factors that might apply in setting fees, what factors might there be other than an hourly rate? The drafting suggests that they might be something similar to an hourly rate, but it would be helpful to understand what they might be.

Can the Minister confirm that in Clause 62(6) the rate is in fact an hourly rate? Can he tell the Committee whether—this is perhaps less technical but it is of considerable interest—a calculation that involves an hourly rate will give the position or grade of the officers for whom the rate is charged? Where a fee is intended to exceed the cost, because that is allowed for, will this be made clear in the Explanatory Memorandum to the regulations?

Clause 62(10) provides for exceptions. Can the Minister tell the Committee whether the exceptions might allow for an increase in a particular class of cases or individuals and how exceptions will be determined? I am interested in how Clause 62(10)(b) will work with Clause 62(8). I assume that subsection (10)(b) overrides subsection (8), which requires that a fee should not be less than a prescribed minimum. Why is Clause 62(10)(c), concerning failure to pay, needed? There is a provision relating to this in the next clause. The subsection refers to,

“the consequences of failure to pay a fee”.

What might those be in addition to enforcement of the debt? Might this refer, for instance, to refusing a visa when a future application is made?

Clause 62(12) defines costs. Perhaps we could have an example of the costs that will be covered by a fee that is,

“not funded from public money”.

My imagination did not stretch that far. Finally, Clause 62(13) refers to “particular arrangements” and “particular ways”. Are these terms intended to cover services such as the premium fast-track service? I am grateful to the Committee for its indulgence and particularly grateful to the Minister for dealing with these issues.

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[Lord Rosser (Lab)]

My Lords, the amendment in this group to which I wish to speak is Amendment 81AA, which would require independent legal guardians to be appointed to look after the interests of children trafficked into the United Kingdom. The amendment proposes the insertion of a new clause but this is by no means a new issue. A similar amendment was recently voted on and narrowly defeated during the passage of the Children and Families Bill. The Committee will be aware of the tremendous work of the noble Lord, Lord McColl of Dulwich, who has championed this issue for a very long time, and indeed the work of other noble Lords, including the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Royall of Blaisdon. We have been pursing this matter and the shadow Home Secretary has raised it a number of times.

We are returning to the matter again because it still is very much a concern. At least 450 children were identified as possible victims of trafficking in the past year alone. NGOs and police all say that it is most likely that the numbers of people trafficked, including children, are far higher than the national referral mechanism statistics record. A shocking two-thirds of children who are rescued from traffickers go missing again because the system to protect them is not strong enough.

Most of those children come from countries outside the European Union. They are here alone and have no knowledge of the country that they are in. They often speak and understand little English, and do not know who to turn to or how to find help. In the debate on this issue during the Children and Families Bill, noble Lords heard evidence from research commissioned by the Government, which highlighted the desperate need of trafficked children for specialist, independent support. That research, and the report by the Children’s Society and the Refugee Council, entitled, Still at Risk, which was published in September 2013, recommended the provision of “an independent trusted adult” whose,

“role would be to ensure”,

that all child victims are,

“able to understand their rights, ensure that their voice is heard in decisions that affect them and are supported effectively through the different legal processes that they are engaged in”.

Amendment 81AA would provide such a person.

When this was discussed in the Children and Families Bill, the Government argued that there was no need for new independent guardians for trafficked children since there are a number of professionals with responsibility for supporting a child under the Children Act. They pointed instead to the introduction of draft regulations and statutory guidance which they claimed would address all the faults in local authority care, rendering specialist guardians unnecessary. I suggest that that misunderstands the role of the independent legal guardian.

Child victims of trafficking find themselves in a foreign country and to access help they are expected to deal with many different state agencies; that is, local authorities, social workers, police, investigators, immigration officials and so on. When dealing with each organisation, they must engage with a different set of people and must repeat their story again and again, with all its traumatic details. This process is distressing and unhelpful for a child in unfamiliar surroundings. Children can become alienated and distrustful of those trying to help them, which leaves them vulnerable to retrafficking. Local authorities do not always seem to appreciate that young victims of trafficking often maintain links with the person who brought them to the United Kingdom because they speak the same language. A guardian with legal responsibility for the child would understand the dangers.

The role of the legal guardian is an entirely new role that no existing agency currently provides. That person would be a constant for the child in an ever changing world. They would accompany the child as they relate to all the different state agencies and would also have the right to speak on behalf of the child if the child requests it so that the child does not have to keep repeating their painful story if they do not want to.

Noble Lords will be aware that the Government recently published their draft Modern Slavery Bill but that does not provide for an independent guardianship system, so we are raising the matter again here. There is a growing coalition of support behind this idea. Trafficked children should have access to a trusted and independent advocate or guardian who is legally responsible for them and their interests in order to do what we are failing to do all too often at present; that is, to protect children who are the victims of trafficking in human beings from repeated trafficking and repeated abuse. I hope that the Minister will give a sympathetic response to this amendment.

[Baroness Hamwee]

My Lords, as the noble Lord has said, the issue of guardianship for victims of child trafficking is one that has support right around the House. When it was raised during the Children and Families Bill, I said in reply to the noble Lord, Lord McColl, that when he first raised this some years ago I had not been persuaded. However, particularly through his arguments, I came to be persuaded of the need, in part from the point of view of someone who has practised as a solicitor and needs someone from whom to take instructions. That is one of the functions that a guardian would fulfil. The draft Modern Slavery Bill, which is the subject of pre-legislative scrutiny, has been drawn up from the point of view of the victim and, like the noble Lord, I think that this would fit absolutely in protecting and assisting victims.

I have a couple of comments about the issues raised by my noble friends with regard to children and young people without immigration status. I first want to draw attention to a report published last year by the ESRC Centre on Migration, Policy and Society at the University of Oxford, entitled No Way Out, No Way In about irregular migrant children. Its summary, which is a tiny part of a report that goes on for many pages, states:

“Our estimate regarding the high proportion of irregular migrant children who are either born or have spent most of their childhood in the UK invites a refocus of public understanding of this population”.

The second issue that I would like to mention is the very uncomfortable reporting that we have seen, not so much of the children to whom my noble friend Lady Benjamin drew attention, although some would fit into this category, but of wonderful young people—just the sort of young people we want to have in this country —who reach the age of 18 and are accepted at university and told they cannot go there. They are told that they need to go “home”. I am not saying that they are any more deserving than the other children in question, but I hope that the Government have been embarrassed by the reports because they should be, just as they are about the reports of the children assisted by Kids Company and others of whom we have heard.

When I tried to draft this clause, I really did not know how to do it. It seemed that so much is a matter for the Secretary of State’s discretion. I hope that when the Minister replies, he can assist the Committee with some clarity about what issues are matters of discretion and how that discretion comes to be exercised.

[Baroness Lister of Burtersett]

I will speak briefly to Amendments 81, 81AA and 88; they all deal with issues that have been covered recently by reports of the Joint Committee on Human Rights, of which I am a member.

I start with Amendment 88 on legal aid. In its report on the implications for access to justice of the Government’s proposals to reform legal aid, the JCHR was very critical of the application of the residence test to children. We said that,

“we do not agree that the Government has considered all groups of children who could be adversely affected by this test, and we note that no Child Impact Assessment has been produced”.

This is becoming a bit of a pattern, I have to say. The report continues:

“Such groups of children include children unable to provide documentation of residence and those who need help to gain access to accommodation and services … We are concerned that the Government has not given full consideration to its obligations under the second article of the UNCRC … we do not consider that the Government’s argument that cases can always apply for exceptional funding is sufficient to meet UNCRC obligations or the Government’s access to justice obligations. We are sure that the Government does not intend vulnerable children to be left without legal representation. The proposals give little consideration to the access to justice problems that the proposal specifically creates in relation to children, such as the potential complexity and urgency of the cases for which children would need advice and representation, or in some cases, the need to find a litigation friend to assist the child with their proceedings because they have become separated from their families … We do not consider that the removal of legal aid from vulnerable children can be justified and therefore we recommend that the Government extend the exceptions further by excluding all children from having to satisfy the residence test”.

In their response, the Government agreed to extend the exceptions further, but in my view, not far enough. Although any further exception is welcome, it goes only so far and does not meet the concerns of the JCHR about protecting children generally in relation to our obligations under the UNCRC. Having a lot of exemptions just complicates matters and I would have thought it was easier simply to say that it should not apply to children.

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Moved by

[Baroness Hamwee]

87ZA: Schedule 9, page 106, line 15, at end insert—
“After section 3D insert—
“3E Extension of leave following revocation
(1) This section applies if a person—
(a) has limited leave to enter or remain in the United Kingdom (including leave that has been extended by section 3C); and(b) the person makes a protection claim or a human rights claim within the currency of that leave or within 14 days of the conclusion of any administrative review of a decision to vary, refuse to vary that leave.(2) the person’s leave to enter or remain is extended during the period when—
(a) the protection claim or human rights claim is neither decided nor withdrawn;(b) an appeal could be brought under section 82(1)(a) or (b);(c) an appeal under that section against refusal of the protection or human rights claim is pending within the meaning of section 104.3F Revocation of a protection status
(1) This section applies if the Secretary of State has decided to revoke a person’s protection status.
(2) The revocation shall not take effect during the period when—
(a) an appeal under section 82(1)(c) could be brought;(b) such an appeal is pending within the meaning of section 104.””

[Baroness Hamwee]

My Lords, I will speak also to Amendments 87ZE and 87ZF. The first of my amendments would introduce two new paragraphs to ensure that leave continues in the event of revocation on the terms and conditions which have applied while an asylum or human rights appeal is pending. The Bill does not repeal the provisions for extending leave during the period for lodging an appeal or while an appeal is pending once a decision not to extend leave or to revoke has been made. However, those provisions will not function because the provisions on which they bite are being repealed. I acknowledge readily that this is not my analysis and I am grateful, as so many noble Lords have been and no doubt will be during the course of the Bill, to the Immigration Law Practitioners’ Association for this.

I made a point on Amendment 72B on Monday in respect of drivers’ licences but I do not think that the Minister who was replying was able to deal with it. In this situation, it would mean that a person’s presence immediately becomes unlawful, with implications for employment and his employer, education and his university, tenancy, holding a bank account, access to healthcare and so on. I might be wrong about holding a bank account; I think that I mean opening a bank account.

It would also mean that there would be a break in the continuity of his leave, which might have implications for a later application for settlement or citizenship. Schedule 9 provides for leave to continue on the same terms and conditions while an administrative review is pending, so it seems likely that people will make both an application for review and a human rights appeal. There would then be the dual review and appeal—parallel might be a better word—which I know the Government want to avoid. That is my first amendment.

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[Baroness Smith of Basildon]

My Lords, shall speak briefly on these amendments because I have listened to the noble Baroness, Lady Hamwee, quite carefully on them and I share some of the concerns that she raised. Concerning Amendment 87ZA, can I just be 100% sure that I have understood it correctly? The current position is that once a decision is taken not to extend or revoke leave, that leave is extended on the same terms and conditions during the period provided for lodging any appeal or while the appeal is pending. However, the Bill would remove that provision. The noble Baroness is nodding at me, so it seems I have understood it correctly.

[Baroness Hamwee]

That is as I understand it. Possibly like the noble Baroness, I have had some difficulty following this around the course.

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[Lord Wallace of Tankerness]

I am advised that it is not correct that this Bill means that leave does not continue where an application has been made in time. I think there is a double negative in there. My understanding is that Section 3C of the Immigration Act 1971 provides that where someone makes an application for further leave while they have existing leave and that the existing leave expires before the application for further leave is decided, their existing leave is extended on the same terms until that further application is decided and any appeal against its refusal is no longer pending. That is the existing position. Section 3D of the 1971 Act makes the same provision where someone has existing leave which is revoked, extending leave while they can appeal against the revocation. Schedule 9 to this Bill amends Sections 3C and 3D so that they extend leave also while an administrative review can be brought or is pending. I hope that is helpful. No doubt the noble Baronesses will want to consider it. I think that is the accurate position.

Nothing in the Bill prevents people making protection or human rights claims. We are committed to protecting such fundamental rights but equally, as has been explained on numerous occasions in Committee, we also seek to prevent abuse of the system and to create an improved process. Our concern is that the amendment that my noble friend has moved would undermine both these aims.

Extending leave because a protection or human rights claim has been made following an unsuccessful administrative review would create a strong incentive to make such claims. This would undermine the greater efficiency of the appeals framework in this Bill. There would be an advantage in making a protection or human rights claim just before leave extended under Section 3C of the Immigration Act 1971 expired, even after an appeal at the First-tier Tribunal has been decided. This would create a sequential process where the further claim and any appeal are considered after the other claim has been decided rather than at the same time. It would mean that leave is extended on current conditions for a worker, even when that worker has first sought an extension of leave as a worker and then decides he no longer wants to be in the UK to work but rather wishes to claim asylum. We do not believe that that consequential inconsistency is right.

Inserting new Section 3F into the Immigration Act 1971, as proposed by Amendment 87ZA, would create duplication. Existing Section 3D of the 1971 Act already provides that where leave is revoked, the leave will continue while any appeal against revocation is brought.

I wish to make the important point that, as I said at the outset, there is nothing in the Bill that seeks to stop or prevent people making protection or human rights claims. The Home Secretary will consider and decide any human rights claim made to her and will not remove any person while that claim remains undecided, irrespective of whether they have leave. I hope that is a reassurance that there will not be a removal while a claim remains undecided.

Amendment 87ZE queries the necessity of a consequential appeals amendment. We believe that the consequential amendment is necessary. Schedule 9 repeals the provision establishing a monitor for entry clearance cases with a limited right of appeal. This monitor role is now performed by the independent chief inspector under Section 48 of the Immigration, Asylum and Nationality Act 2006. However, the Bill provides that there will no longer be any entry clearance cases with a limited right of appeal, and therefore Amendment 87ZE would retain an otherwise redundant provision.

With regard to Amendment 87ZF, the Bill simplifies the appeals framework and removes “not in accordance with the law” and “different exercise of discretion” as grounds on which appeals can be brought. Amendment 87ZF would reinstate these as reasons for allowing an appeal, although they are not grounds on which an appeal can be brought. Noble Lords will recall from when we debated Clause 11 that the grounds of appeal under that clause are that a decision breaches the UK’s obligations under the refugee convention to those entitled to humanitarian protection, or is unlawful under the Human Rights Act. These are the relevant grounds for challenging refusals of protection or human rights claims, and, in considering them, the tribunal is considering whether the decision was in accordance with the law. That is the important point in the appeal. Similarly, the UK’s obligations to asylum seekers entitled to humanitarian protection or under the Human Rights Act are not discretionary. There is therefore no exercise of discretion for the tribunal to consider in those appeals that come before it.

I hope that in the light of this explanation and these reassurances, my noble friend will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, it would be foolish of me to try to continue the debate at this point. I obviously need to read—probably several times—what my noble friend just said and to consider it with those who are far more familiar with the whole raft of immigration legislation than I am. I beg leave to withdraw the amendment.

Amendment 87ZA withdrawn.