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

Baroness Lister of Burtersett Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd July 2020 Lords Chamber

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, not only does the Bill do nothing to dismantle the institutional architecture of the hostile/compliant environment, directed by its predecessors, but it extends it to thousands of EU citizens, and with it, vulnerability to detention. So I, like others, hope that we will build on the efforts of Conservative MPs to introduce a time limit. Following the Home Secretary’s very welcome announcement that she has accepted Wendy Williams’ recommendations of a full review of the confined environment, can the Minister assure us that the review has the power to question its basic tenets and institutions?

Also at risk are thousands of children of EU and EEA nationals, particularly looked-after children and care leavers. What safeguards will be put in place to ensure that these children receive permanent immigration status before June 2021? What procedures will there be to protect children’s best interests, including by ensuring that their right to British citizenship is not impeded by lack of information or the exorbitant £1,000-plus fee? Will the Minister also undertake to review the no recourse to public funds rule, recently ruled to be in breach of children’s human rights, as many more could now be affected by it? Could she give a categorical assurance that there will be no diminution in the rights of unaccompanied refugee and asylum-seeking children?

The Bill does nothing to address the existing immigration system’s many flaws, including those affecting asylum seekers. Yet it gives the Government carte blanche, particularly on social security with, as already noted, a clause described by the Delegated Powers Committee as “even thinner than skeletal”, raising serious questions on social security posed by some noble Lords that I hope will be answered.

What we do know is that a points-based system will be introduced through Immigration Rules which Parliament cannot amend. Far from being fair, as noted by other noble Lords, it confuses pay with skill and contribution, to the detriment of those recognised and applauded as key workers during the pandemic but now cast aside as lacking necessary skills. The Home Secretary herself conceded in February that caring is not a “low-skilled occupation”. Why is it being treated as one now?

Overall, the equality impact assessment acknowledges the adverse impact of a pay-based points system on women—as has the Minister. The Cavendish Coalition of 37 health and care organisations has warned the Prime Minister that we are heading swiftly towards an alarming destination with no obvious solution for the care sector and that it would be unwise to believe that domestic recruitment will solve all social care’s immediate problems. With adequate funding, domestic recruitment may well offer a long-term solution, but it is irresponsible to pretend it can do so from next year.

I plead with the Government to think again and, as other noble Lords have pressed, at the very least provide for a transition period during which the promised, much-delayed new care strategy can make provision for rewarding carers adequately in recognition of their essential contribution during the pandemic, which the Minister herself lauded.

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

Baroness Lister of Burtersett Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 7th September 2020 Lords Chamber

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

The noble Baroness, Lady Jolly, has withdrawn, so I now call the noble Baroness, Lady Lister of Burtersett.

[Baroness Lister of Burtersett (Lab)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Altmann, and I very much agree with what she had to say. I am speaking primarily in support of Amendments 2 and 93, but I am supportive of all these amendments. I underline the importance of what the noble Baronesses, Lady Masham and Lady Finlay, said about personal care.

When the Bill was postponed in the House of Commons, I thought that perhaps the Government were thinking again about the treatment of care workers in the points-based system in light of the Government’s and the country’s applause for them during the height of the pandemic. How naive I was; there was no rethink. Despite the crucial role they played and continue to play and the range of skills involved in their work—organisational, clinical and

“soft skills of empathy and patience”,

as the chief executive of the National Association of Care & Support Workers has explained—the Government, as has already been said, continue to confuse pay with skill and contribution.

Back in February, the Home Secretary herself conceded that

“care is not a low-skilled occupation”—

so why is it being treated as one now? To do so in the proposed points-based system is in effect discriminatory, as the equality impact assessment makes clear. It says:

“The Government is aware that prescribing a minimum … threshold could have differential impacts on individuals on the basis of their sex. Women may find it disproportionately more difficult to meet the threshold than men.”


Indeed, but there is no “could” or “may” about it. It will have a differential impact and women will find it disproportionately difficult because, of course, women make up the majority of care workers. Moreover, black and minority ethnic women are disproportionately represented in the care sector, and the equality impact assessment shows that BAME workers will also be adversely affected by the salary threshold.

In the Commons, the Immigration Minister said that

“our vision for the future of the care sector is about providing rewarding opportunities to UK-based workers, not basing it purely on immigration.”—[Official Report, Commons, 13/7/20; col. 1250.]

Likewise, the Minister, at Second Reading, said that

“the immigration system is not the sole solution to the employment issues in the social care sector.”—[Official Report, 22/7/20; col. 2232.]

No one is suggesting that immigration provides the sole solution or that the future of care should depend purely on immigration but, to quote the Cavendish Coalition of 37 organisations in health and social care:

“For a sector where one in six are foreign nationals and which is struggling with 122,000 vacancies in England alone it would be unwise to believe that domestic recruitment will solve all social care’s immediate problems.”


It warns that we are

“swiftly heading towards an alarming destination with no obvious solution for the care sector.”

Can the Minister explain how the Government will ensure that those “rewarding opportunities” to which the Immigration Minister referred are to be provided when local authorities are already on their financial knees? As we have heard, funding has gone down in the care sector and the Government have done nothing about it over their 10-year period in office. Do the Government believe that the market will miraculously provide the solution in the absence of immigrant labour?

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

Baroness Lister of Burtersett Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 9th September 2020 Lords Chamber

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I am pleased to be able to advise the Committee that we seem to be back to normal with the emailing of the clerk, so Members who wish to speak after the Minister should use what they thought was the correct route at the beginning.

[Baroness Lister of Burtersett (Lab)]

My Lords, I strongly support this group of amendments. I have added my name to Amendments 24 and 31. I see these amendments as being not just in the interests of asylum seekers and refugees, although we have already heard strong arguments for why they are so, but also in the country’s economic and social interests and in the interests of overall social integration, which is supposedly a government policy goal.

A recent paper from the Institute of Labor Economics throws some light on the issues raised by Amendment 24 and others, using cross-European data for a period of nearly 30 years. It concluded that

“imposing temporary employment bans on asylum seekers has large negative consequences for their subsequent labour market integration − an effect that may remain sizable for up to 10 years”.

The authors recommend that

“host country governments should carefully weigh the (alleged) benefits of such bans against their longer term costs for both refugees and the host country economy.”

They found the sooner the access to the labour market, the better, and that when access is allowed it is not helpful to restrict it according to job type or employment sector in the way that our ludicrous shortage occupation list, mentioned by the noble Baroness, Lady Ludford, does.

The paper also found that the existence of a ban has no impact on the numbers seeking asylum, which is one of the arguments that Ministers have used to justify it. I hope the noble Lord, Lord Parkinson, will not come out with that argument, because there is no evidence for it. If he is going to do so, could he please tell us what the evidence is?

Nearly a year ago, I had an exchange with the noble Baroness, Lady Williams, about the economic benefits of lifting the ban. As well as the survey of business leaders mentioned by the noble Baroness, Lady Meacher, a group of business leaders wrote to the Financial Times to make the case, and the FT quoted the CBI chief economist, who said that

“despite being keen to earn a living and participate in the society where they live, many of those displaced are prevented from using their skills to contribute to the economy.”

In a letter to me, the Minister questioned how many asylum seekers would in fact be skilled, and suggested that the priority should be speeding up decision-making and then supporting granted refugees into employment more quickly. No one would dispute the need to speed up decision-making and support refugees into employment but, nearly a year on from that exchange, the Immigration Minister acknowledged to the House of Commons committee that the asylum decision-making timeframe remains a concern. This is not an either/or situation. Worse, at present it seems to be neither: we have neither speeded up decision-making nor do we have the right to work. I accept that the assumptions about the proportion of asylum seekers who are skilled may be optimistic, as the Minister said, but that does not invalidate the case, not least because many of those deemed to be unskilled may in fact have very real skills to contribute, including to the care sector, which we heard about on Monday.

This May, the Lift the Ban campaign carried out a skills audit of people seeking asylum. Nearly half of those audited reported previous occupations that would fall into the Government’s definition of “critical workers”, with one in seven having worked in health or social care. Have the Government carried out such a skills audit on which to base their position?

In Amendment 31, which I was very pleased to be able to support, we are talking about a group of displaced refugees who would be recognised as skilled under any definition. The right reverend Prelate has already made a strong case for what I believe is a very helpful and, as he put it, creative idea that is well worth exploring. I hope the Government will explore it. I understand that there have been pilots to see how it might work. It worked rather well in other countries but unfortunately has floundered in this country because the Immigration Rules have meant that it is not practical or scalable. If nothing else, I hope there might be a way of seeing whether we can have a proper pilot in this country.

All I will add to the case already made so well by the right reverend Prelate is to emphasise a point that has already been made in a sense: we do not see this as a substitute for fulfilling our obligation to provide a safe haven to asylum seekers and refugees or for positive reforms to the asylum system, including the more general right to work after at most six months that we have been talking about.

The Government have dragged their heels over the right to work issue, as we have already heard, for nearly two years, yet suddenly it is all speed ahead with what we are told will be the new asylum Bill, designed not to help asylum seekers, as it would seem from what the media has said about it, but to make it harder for them to come here. Suddenly it has become an urgent matter, whereas there has been no urgency at all to do something for asylum seekers here.

If the Government want to dispel the fears about this forthcoming Bill—that it is all about how we keep asylum seekers out and nothing to do with how we make life better for them when they are here—I hope at the very least they will commit today to finish their review of the right to work and include it in this forthcoming Bill.

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

My Lords, it was my pleasure to attach my name to Amendment 24 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, and the noble Baroness, Lady Lister. I express my support for all the amendments in this group, including, as has been said, the very creative Amendment 31 in the name of the right reverend Prelate.

I am following five eloquent and powerful speeches, so I do not feel the need to add a great deal. Those speeches, collectively and individually, have utterly put paid to any suggestion that the UK is generous to people who come to our shores fleeing war or repression and desperately in need of sanctuary. As other speakers have made clear, we are an international outlier in our restrictions on work, to which these amendments refer. I am sure the Minister will recall that she very kindly took the time to hear from me about the circumstances of the asylum seekers in Urban House in Wakefield and the conditions in which people are living.

We all know that the hostile environment of the Home Office is very often chaotic. People are trapped, often for years, living in inadequate privatised housing with the desperately limited sum of £37.75 a week to try to get by on and denied the opportunity—which so many of them are desperate to take—to work. I cite a young woman I spoke to some years ago who made a huge impact on me, so eloquent was she about the situation she found herself in. She was, you might say, an extreme case, but sadly a not at all uncommon one. She had come to Britain as a young woman of 18 or 19, having been a political activist in Zimbabwe— I have no doubt that she was a victim of torture. Some 10 years later, we have still not given her status. She was studying for a degree through funding and support from a voluntary organisation, but she told me what her situation was like:

“I feel like I’m in a cage. I can see the door, and people keep walking back and forth in front of that door with a key in their hand, but they never stick the key in the lock and let me out.”


Leaving people in that situation is torture. We are talking about people who are often already victims of torture. Any of these amendments would be a significant improvement. The three-month amendment is obviously the best one. The current situation cannot continue; it is damaging to all British society as well as to individuals. I commend these amendments to the House.

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[Lord Parkinson of Whitley Bay (Con)]

I will deal with the third question first. I am afraid the evidence will flow from the review that I mentioned in my response, which will of course come to your Lordships’ House once it is done, taking into account the additional work of the Migration Advisory Committee and the review of the report by the Lift the Ban coalition.

On restricting the right to work to the shortage occupation list, as I said in my reply, it is right to restrict access to work to British citizens and others lawfully resident, including those already granted asylum. We do that under the reception conditions directive of 2003. The shortage occupation list is based on expert advice from the Migration Advisory Committee. I thought we had a useful debate yesterday on social care. If there are shortages in that sector, that is something that the Migration Advisory Committee is well placed to advise on and to dispassionately provide advice to government. The list can be updated accordingly.

Finally, on the point about Poland and LGBT rights, I do not want to reopen debates from the referendum, but I remember being told quite powerfully when I was campaigning to leave that it was the EU that somehow had created or guaranteed rights for LGBT people across Europe. I thought that was wrong then and I am surprised to hear the noble Lord raising it today. Poland is a prosperous, developed country. It is a signatory to the European Convention on Human Rights. If the EU is good at doing the job that campaigners said it was during the referendum, it will enforce those rights. Unless that changes, we do not see a reason to change our assessment of EU member states such as Poland.

[Baroness Lister of Burtersett (Lab)]

I want to come back to the question of evidence—I was the one who asked for it. I thought the Minister was about to give it because he referred to my question; however, he then started talking about those coming in boats across the channel—what is the connection? We do not have the right to work, so why is that evidence in favour of the Government’s justification? Would he accept the widespread consensus that the best way to reduce the pull factor of the channel would be to increase the legal routes enabling asylum seekers to come to this country? Could I also respond to the point the Minister just made, that we will have to wait for evidence until this review is completed? The review has been going nearly two years. The Minister knew we would raise this question during the debate; I would have expected the Government to have some evidence in support of the case they are making now, rather than having to wait any longer.

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Moved by

[Baroness Lister of Burtersett]

30: Clause 4, page 3, line 8, at end insert—
“( ) Regulations under subsection (1) must ensure that no fee is charged that may deter or prevent registration of an EEA or Swiss national as a British citizen.”Member’s explanatory statement
The amendment is to probe the impact upon rights to British citizenship of measures relating to fees (currently £1012 for a child and £1206 for an adult to register a statutory right to British citizenship) that have been introduced or are to be introduced in connection with the ending of free movement.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to move Amendment 30 and to speak to Amendment 68. These probing amendments are about citizenship, and I am grateful to the Project for the Registration of Children as British Citizens—of which I am a patron—and Amnesty International UK for their help with them. I pay tribute to these organisations for all the work they have done to promote and protect children’s citizenship rights.

For technical reasons, the amendments relate solely to EEA and Swiss nationals, but the issues they raise echo concerns raised previously on a number of occasions in your Lordships’ House, particularly with regard to children’s citizenship rights.

Children born in this country to parents settled here, or who have grown up here from a young age, are entitled to register as British citizens. A combination of factors, including exorbitant fees, lack of awareness of the need to register their right to citizenship and the difficulties faced by local authorities in assisting looked-after children to exercise the right, have resulted in thousands of children being denied that right to British citizenship.

One consequence of our leaving the EU is that many more children could be in this position. They are the children of EU nationals who were born or who have grown up in the UK from an early age; the Home Office appears to have ignored this group. In establishing the EUSS, it has done nothing to raise awareness of their citizenship rights or to encourage children and young people with these rights to exercise them. Instead, because the EUSS is free, there is a real danger that many of them will be encouraged to secure themselves immigration status and not confirm or register themselves as British citizens, which they may not realise is open to them and involves a fee of £1,012.

In a High Court judgment in December last year—mentioned in the debate on an earlier amendment—that fee was deemed unlawful, as it was set without having regard to the best interests of the child. That decision is being appealed, but its reasoning is highly pertinent. In particular, it underlined the importance of citizenship.

In response to a similar set of amendments in the Commons Committee stage, the Immigration Minister argued that any child looked after by their local authority can apply for limited and indefinite leave to remain without having to pay a fee, and that citizenship itself

“is not essential for any individual to work, live, study or access services in the UK.”

When he was urged not to pursue that line of argument by Stuart McDonald MP, he re-emphasised that citizenship

“is not something that people need in order to access services.”—[Official Report, Commons, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 16/6/20; cols. 208-09.]

Does the Conservative Party really believe in such a transactional view of the significance of citizenship? In contrast, in 1981, during the passage of the British Nationality Act, which conferred the right to register as a citizen, it was emphasised that this was in part to ensure that the children concerned should have

“as strong a sense of security as possible”.

Citizenship is about security, belonging, inclusion, integration and identity. Indeed, the High Court judgment cited the Secretary of State’s own guidance document, which states that:

“Becoming a British citizen is a significant life event. Apart from allowing a child to apply for a British citizen passport, British citizenship gives them the opportunity to participate more fully in the life of their local community as they grow up.”


As noted on the earlier amendment, the High Court judgment referred to a “mass of evidence” that the inability to exercise their right to register as citizens because of the fee causes many children born in the UK to

“feel alienated, excluded, isolated, second best, insecure and not fully assimilated into the culture and social fabric of the UK.”

Is this really what the Government want? Do we want many more children to feel this way in future? This false equation of immigration status with citizenship was one factor in the Windrush scandal. Please do not let us repeat it.

Amendment 30 addresses the impact of the fee level on registration. In her Windrush Lessons Learned Review, Wendy Williams notes that

“there’s little evidence that the impact on people was effectively considered”

when fees were increased significantly. Amendment 68 specifies that the level should not exceed the administrative cost, which according to the Home Office is currently £372—£640 less than the fee charged. The Home Office’s argument that such a mark-up on the fee is justified because it provides a “benefit” and because the Home Office needs the money to run a sustainable immigration and citizenship system—repeated by the Minister at Second Reading—is specious because we are talking about a citizenship right bestowed by Parliament, not a discretionary immigration status.

Amendment 68 also excludes from the fee any child who has been looked after by a local authority—a particularly marginalised group of children. There is no logic to local authorities having to pay these fees on behalf of these children as it simply involves a transfer of resources from local to central government. I believe some other noble Lords might say more about this. It also requires the Secretary of State to take steps to raise awareness of the right to register as a British citizen but I will not say more about that now as it is the main focus of Amendment 67, which will be debated on a later day.

Because of the restrictions created by the Bill’s Long Title, these are simply probing amendments. However, as I am sure the Minister realises, the more general question of the barriers to registering the right to British citizenship, particularly the level of the fee, is one that we will return to in this House time and again. Given the Home Office’s welcome readiness to accept the recommendations of the Windrush Lessons Learned Review, and the dangers of now repeating some of the flaws it revealed, will it now think again? As a first step, will the Minister, on behalf of the Home Office, undertake to look again at the level of the fee, which even Sajid Javid, when Home Secretary, admitted was “huge”? I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, the noble Baroness, Lady Lister, has been terrier-like in her pursuit of these issues. I, like the whole House, am grateful to her for that and I too thank the organisations she mentioned.

The fees are to exercise a right, but a right is no use if you cannot exercise it. The fees are a deterrent. They are a deterrent if you think that you are in a sufficiently secure position and do not understand the distinction between immigration status and citizenship. They are a deterrent if you are told by the Government that you are in secure position through the European Union settled status scheme. They are obviously a deterrent if you cannot afford them. I will not be the only Member of the Committee who has heard distressing stories of families who have realised that they cannot afford to pay for the citizenship registration of all family members and have selected some. If there is a mother with four children—well, we can all do the maths.

The noble Baroness used words, which I have written down, that are about more than security; they are about a sense of belonging. Otherwise, over the years why would so many people have chosen to become citizens through a sometimes pretty laborious route, having to take tests about things that would probably be mysteries to many of us and culminating in citizenship ceremonies? I have been to one. The ceremony is an important part of the whole process—the recognition of that belonging.

Everyone understands that there are administrative costs to these things, but the current fees far exceed the costs. There is a surplus—I use that term rather than “profit”, because I understand that the Minister protests at the term “profit”—in the order of £600, as I understand it, and £800 in the case of adults, where the fees are something like £1,200. The Home Office talks about this surplus being justified because of the benefit, but I do not understand the logic of citizenship being a benefit if indefinite leave to remain is an equivalent, or at least sufficient to meet all the attributes of citizenship, as seems to be argued by the Home Office.

The noble Baroness mentioned the Windrush scandal, and I am sure the Home Office must be anxious not to get into a similar situation. It has said that all Wendy Williams’s recommendations are accepted. About three of those are about meaningful engagement with stakeholders and communities and the use of research. If the Home Office were to engage on this topic and undertake research, I think it would understand how very fully these issues play with the people affected. In any event, as has been said, citizenship is about rights—the right to citizenship of the children referred to—and we should not put blocks in the way of rights.

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[Baroness Williams of Trafford (Con)]

I could go through them tonight, but I think the Committee is probably getting quite weary, as is the noble Baroness, Lady Hamwee, so I will write and explain.

[Baroness Lister of Burtersett (Lab)]

I am very grateful to all noble Lords who added their names to this amendment or who spoke from across the Committee. The noble Lord, Lord Alton, talked about being a member of the infantry. With infantry like this, who needs generals? We have had such powerful, passionate, well-informed speeches from across the Committee. I think they all came from the heart, and that is what made them so powerful. It is clear that everybody feels very strongly about this, particularly when talking about the implications for children.

The right reverend Prelate used the word “iniquitous”, which is unusually strong, given his measured approach. This is iniquitous and we should take note when someone such as the right reverend Prelate uses that word. It is a tragedy that we are having to come back to argue this again. The Windrush scandal is hanging over it all like a spectre. It is important that we do not repeat that shameful episode in our country’s history.

I thank the Minister. I am relieved that she did not try to argue that citizenship is not important—I think she realised that she was on hiding to nothing if she tried to do that. Apart from that, however, I am disappointed that there is no sign of any give in the Government’s position.

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

I am sorry to interrupt, but somebody else wants to ask a question. I shall let them ask the question and then come back to the noble Baroness, Lady Lister, to let her finish. I am really sorry about this. The noble Baroness, Lady Bennett, has made a late request to ask a question and I think we should let her ask it.

[Baroness Williams of Trafford (Con)]

The noble Baroness has just demonstrated that it is really beneficial to be here throughout the whole of the debate, because I covered that aspect on local authorities in my speech. If she reads Hansard, it will clarify the matter for her, and if she would like to come back to me again, I would be very happy to respond.

[Baroness Lister of Burtersett (Lab)]

My Lords, I was saying that I found the Minister’s response disappointing. Yet again, when she talked about the cost of the immigration and citizenship service, she seemed to be conflating immigration and citizenship. Part of the point that we are making is that they are different and that it is irrelevant what the overall cost of the immigration and borders system is, because these fees should not be paying for that system. They should simply be paying for the cost of registering a right of citizenship that already exists. That was disappointing, and she might want to look again at that.

The Minister said that EEA and non-EEA people would be treated the same in future. That is not very reassuring because we have been going on for years about how badly the non-EEA people are treated in this area. She talked about a two-tier system not delivering the required fund or policy intent, and I was not sure what she meant by “policy intent”. As she is going to be writing a letter to us anyway, perhaps she could clarify that.

I was also very puzzled—this might be partly what the noble Baroness, Lady Bennett, was referring to—that subsection (2) of the amendment does not refer to local authority assistance. That was an original amendment that was put down in the Commons. The Minister in the Commons pointed out that this was a very vague term, so we deliberately put in this amendment the words

“looked after by a local authority.”

I do not quite know whether the Minister was speaking to an amendment that was laid in the Commons rather than the amendment that is before her now. We are talking very specifically about looked-after children, not any child who gets any kind of assistance from a local authority. Perhaps she could clarify that when she writes her letter.

I think it was the noble Baroness, Lady Smith of Newnham, who talked about the importance of doing the right thing. That is why we are all still here, in this echo chamber, and we will continue to be here until the Government do the right thing. The only dispute I have with the notion of an echo chamber is that echoes tend to fade away. This echo is not going to fade away: it is going to get stronger. The more the Government try to resist it, the more we will be coming back. It might not be part of this Bill, because clearly the amendment is not going to pass, but there will be ample opportunities and we will not let this go. We will, of course, wait to see what will happen in the appeal, but I hope the Government will remember the importance of doing the right thing, because the Government are now doing the wrong thing. I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

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

Baroness Lister of Burtersett Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 14th September 2020 Lords Chamber

Debate on Amendment 39 resumed.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to support Amendment 70, to which I was pleased to add my name, but I will first speak in support of other amendments which provide for a time limit for detention.

I first encountered this issue as a member of the inquiry into detention by the APPGs on Refugees and Migration, which reported in 2015. The evidence we received convinced me of the case. It is frustrating that, despite a wide consensus in favour of a time limit—including among a number of very senior Conservative MPs—we are still having to argue the case five years on. I hope that the Minister is not going to trot out the usual Home Office line that the law does not allow for indefinite detention, an assertion based on semantics. She knows full well that by “indefinite”, we mean “without fixed or specified limit”—to quote one dictionary definition.

It is the absence of a fixed or specified limit that is so problematic. In particular, it has been shown to contribute to serious mental distress among detainees, a point made in the literature review conducted for the original Shaw report, and reinforced by subsequent reports, including by the Joint Committee on Human Rights, the Home Affairs Committee and, most recently, by the Jesuit Refugee Service this year. That report emphasises the trauma experienced by detainees, which stretches beyond the period of detention itself and is relived indefinitely over the years to come. It found that the lack of a time limit laid down was particularly problematic, and that

“not knowing when one would be released was central to an uncertainty that pervaded the experience of detention. Both long detention and the indefinite nature of detention were also seen as increasing the injustice of its practice.”

When debate on this amendment started, the noble Baroness, Lady Hamwee, asked the Committee to imagine how we would feel with that uncertainty—that draining away of hope. Gabby—not her real name—a woman helped by Women for Refugee Women, to which I pay tribute for its work in this area, put it powerfully. She said that

“indefinite detention destroys people. People who are imprisoned in detention already have mental health issues when they get locked up—and the longer you stay there, the worse it gets. My hair started falling out, and I had flashbacks to what happened to me before”—

she was referring to having been trafficked—

“Not knowing when you will be released had such an effect on me. I kept thinking: will I be kept here forever?”


I know the Minister will retort that no one is detained for ever—her definition of “indefinite”—but that is how it can feel when you do not know when it will end, which is the usual definition of “indefinite” in this context. Gabby was in Yarl’s Wood, and it is welcome that no woman is now being held there. Can the Minister say if any women are being detained elsewhere and, if so, where and how many? If she cannot answer now, will she write to the Committee afterwards?

The release of many detainees into the community in recent months demonstrates that detention does not have to play such a significant role in the immigration system—a point made powerfully by the noble Baroness, Lady Hamwee, the other day. In this context, will the Minister update the Committee on how the alternatives to detention pilot is going?

Turning to Amendment 70, damage to mental health is a common thread in the case for all these amendments. It was referred to by the noble Lord, Lord Ramsbotham, when he introduced the amendment. Medical Justice, to which I am also grateful for a briefing, wrote about the “devastating” health impact of segregation. It says that it has been found to lead to increased rates of anxiety, perceptual disorder, hallucinations, paranoia and suicidal thoughts, as well as serious physiological effects. The mental health risks for those with pre-existing conditions and other vulnerabilities are especially high. In particular, anyone who has suffered segregation as part of past torture might be re-traumatised by it.

Medical Justice also makes the point that segregation can be counterproductive. The Government’s argument that restrictions on segregation would jeopardise IRCs’ safety and security serves to ignore the deeper systemic problems that contribute to the “need” to remove people from association—for example, poor standards of healthcare, abusive or bullying attitudes or behaviour, oppressive regimes and the impact of indefinite detention itself. If the Home Office addressed these systemic problems, fewer people might behave in such a way as to call for segregation. The Home Office does not publish data on the use of segregation of vulnerable people. Could the Minister explain what they do not and commit to publishing this data?

Finally, as I read the Minister’s complacent response to the amendment in the Commons Committee alongside the briefing for Medical Justice, it seemed like the Minister was living in a parallel universe from the organisation on the ground. Indeed, the Member who moved the amendment made a similar point. I am confident that the noble Baroness will not display the same complacency, but I hope she will accept that there is a real problem here that must be addressed, even if she is not willing to accept the amendment itself.

[Baroness Ludford (LD)]

My Lords, the campaign for a time limit on detention has deservedly gathered pace over the past 10 years. As the noble Baroness, Lady Lister, mentioned, two parliamentary committees reporting in 2019—the Joint Committee on Human Rights and the Home Affairs Committee—urged a 28-day limit. The Joint Committee on Human Rights made two important points. The first was that indefinite detention—the noble Baroness dealt with that term—

“causes distress and anxiety and can trigger mental illness and exacerbate mental health conditions where they already exist.”

Secondly, it pointed out that

“the lack of a time limit on immigration detention reduces the incentive for the Home Office to progress cases promptly which would reduce both the impact on detainees, and detention costs.”

It therefore called for a 28-day limit.

The Home Affairs Committee pointed out that some people are being held for more than three years, which is intolerable. It said:

“Failure to provide justification for continued detention will only compound detainees’ frustration and may lead to self-harm and violence in immigration removal centres.”


It welcomed the Home Secretary’s commitment at the time that he—that must have been Mr Javid—would

“consider ending indefinite immigration detention in response to Stephen Shaw’s follow up report.”

It went on to say that

“a maximum immigration detention time limit is long overdue … lengthy immigration detention is unnecessary, inhumane and causes harm.”

I understand that the Government’s policy guidance says that there should be no detention without a realistic prospect of removal, but this appears to be routinely breached.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I strongly support my noble friend’s amendment. It is quite shocking to hear from Safe Passage that in their negotiating proposals the Government seek to replace children’s rights under Dublin III with a discretionary provision that provides vulnerable children with neither the certainty nor security they sorely need. That contrasts with the mandatory approach taken to returning children to other EU countries—or EU countries, now—which rather smacks of double standards.

Surely it is hypocritical to wring one’s hands over children and young people risking their lives to cross the channel in tiny boats while increasing the likelihood of that happening in future by further narrowing clear and firm legal routes open to them, as has already been stated. On that, can the Minister say when the Government plan to start the resettlement programme, which has already been mentioned? She recently told the right reverend Prelate the Bishop of Bristol that the Government will do so

“as soon as it is practical and safe to do so.”—[Official Report, 3/9/20; col. 519.]

The Government have already deemed it “practical and safe” to restart some deportation flights, so why not resettlement flights? I understand that nearly half the countries in the resettlement programme restarted their schemes weeks ago. As Stephen Hale, chief executive of Refugee Action, has said:

“It is baffling that the UK government has arranged travel corridors for summer holidays on the one hand but prevented resettlement flights taking place on the other. Flights that would offer a literal lifeline to some of the most vulnerable refugees in the world.”


He underlined that it is “a matter of urgency.”

Urgent too, as we have heard from a number of noble Lords, is action to help those children whose lives have been turned upside down yet again by the dreadful fire at the Moria camp in Lesbos. We have heard that a number of other countries have offered to take some of these children but that this country has not stepped in—or, I should say, stepped up—to its responsibilities. Can the Minister explain why? Why have we not yet done what we should be doing here?

Returning to the Bill itself, Coram has bemoaned the lack of attention given to children generally in the Government’s immigration proposals. Have the Government even undertaken a child rights or best interests assessment of what they are proposing? I have not seen one. Can we perhaps have one before Report? Here is an opportunity to give children’s organisations such as Coram some reassurance by accepting my noble friend’s amendment.

[Lord Judd (Lab) [V]]

My Lords, I sometimes wonder whether the Government—particularly those within No. 10, holding office or otherwise—have any sense of shame whatever. There is really no other way to describe their dilatory approach to all this than shameful. Perhaps nothing is unbelievable these days, but it is almost unbelievable that—dealing with children in the most vulnerable situation, who have been through hell and are psychologically and sometimes physically in a very bad way and in need of love, affection, care and concern—there is a total failure to ensure that the provisions of the Dublin agreement, such as they were, have been carried forward and a satisfactory replacement negotiated with the European Union.

I know that it is a controversial thing to say in this House, but I have reached a point at which I feel shame for my nation. Do we care about children, or indeed adults, who are in desperate need or do we not? Why are we not busting a gut, with all our ingenuity and skills, to find ways in which people can, in their desperation, make safe journeys rather than being thrown into the hands of smugglers or acute dangers in totally inadequate vessels? This issue goes to the kernel of what kind of nation we want to be and appear to the world to have become.

All I can say is that my admiration for my noble friend Lord Dubs is unbridled. The way he has been, in effect, repeatedly let down by government is a sad and sorry story. I am sorry if it appears that I am just moralising, but this is crucial to where our sense of care, concern and responsibility as a nation is. Therefore, this amendment, whatever it can do, is desperately needed. I cannot say how sorry and sad I am that we have reached this predicament.

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[Lord Paddick (LD)]

My Lords, I support the eminently sensible Amendment 49, so well argued by my noble friend Lord Oates and supported by the noble Lord, Lord Polak.

The Minister will get rather bored with me, I am afraid, but we are back to right to rent, which is the gift that keeps on giving. As I mentioned at Second Reading and when addressing previous groups, when it comes to renting to EEA, Swiss and B5JSSK nationals —that is, citizens of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States of America—who come to the UK under six-month visa-free entry and can use e-passport gates at UK airports, landlords are told that they must rely on physical proof of immigration status. Not only must EEA and Swiss nationals, who enter the UK without a visa, produce their passport, they must produce a ticket, boarding pass or travel booking to the landlord to prove that they entered the UK within the past six months.

The Government keep claiming that physical proof of settled or pre-settled status will not be provided because all proof of immigration status will be digital. That is simply not true. Can the Minister please confirm on the record that this is the case?

Something the noble Lord, Lord Polak, said struck a chord with me. I recently lost my driving licence and when I applied to have a replacement the system said that I could continue to drive even though I was not in possession of a physical driving licence. I felt very vulnerable about driving without a physical document in my possession, so that if I was stopped by the police, for example, I would be able to prove that I was driving lawfully. Can the Minister explain when the UK Government plan to phase out physical driving licences and allow drivers to rely simply on a digital system?

[Baroness Lister of Burtersett (Lab)]

My Lords, I must admit that I originally found the Government’s arguments quite persuasive in the briefing the Minister provided for us, but I have changed my mind, having heard from the 3 million representatives about the many potential pitfalls and just how anxious many of those affected are at the prospect of not having physical proof. I have also seen evidence from the Roma community, the European Children’s Rights Unit and the Roma Support Group, the last arguing that this group experiences a combination of digital exclusion and a lack of digital skills. That is true of many marginalised groups. The noble Lord, Lord Alton, has spoken very movingly about this group already.

The noble Lord, Lord Oates, referred to a promised policy equality statement that still has not appeared. This is really important, because we know that digital-only policies are likely to have a differential impact on groups with protected characteristics, as the example of the Roma community indicates. We know from universal credit the problems that digital by default can create for those who lack digital access and digital skills.

I am puzzled because the Minister’s response to many other amendments has been to complain that they would create a two-tier system, but it seems that this is creating a two-tier system that the Government are very happy with. Perhaps the Minister could explain that contradiction. I hope that the Government will not oppose this amendment. Amendment 49, in particular, is extremely modest, and I just hope that the Government will acknowledge the contradiction and ensure that they are not creating their own two-tier system here.

[Lord Greaves (LD)]

My Lords, it is a privilege to follow so many very clear and excellent speeches, starting with my noble friend Lord Oates and including my old friends, the noble Lords, Lord Alton of Liverpool and Lord Hain. I listened to both of them and thought, “They got some good training when they were kids, didn’t they?”

It is interesting that, of all the things that people such as the3million group and lots of other European citizens who are concerned about settled status and so on do not like, this is the one thing that they are almost all united in thinking ought to be changed. A lot of them put it at the top of their list of priorities, partly because it is such a simple and obvious thing for the Government to do.

I have been in this place for 20 years—I have to pinch myself but it is true—and I have noticed over the years that sensible Governments do not just lie down and do everything that your Lordships’ House wants them to do, although we have the debate and they listen. Occasionally they say, “Yes. There’s sense in this. We’ll take it away and sort it, and will come back.” I think that this is one of those issues. The great advantage that Governments have of doing that here and not in the House of Commons is that the Opposition do not then start shouting “U-turn” and so on at them; they say, “We thank the Government for their sensible thoughts and actions on this. Good for them.” This is one issue where the Minister, who has a reasonable amount of clout in her department and in the Government—not as much as some people but a reasonable amount—

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Leaving that aside, the Chancellor is shortly and prematurely closing these schemes, to the detriment of working people and whole sectors across our economy. What support will those with no recourse to public funds have access to then, particularly during this pandemic? The straightforward solution is surely for the Government to accept the terms of Amendment 53, and not apply no recourse to public funds during the pandemic and then until such a time as Parliament decides. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to speak in support of Amendment 53, to which I have added my name, which was moved so ably by my noble friend Lord Rosser. I am sure that I also support Amendment 73, but that has not been explained yet.

The recent report of the Food, Poverty, Health and Environment Committee identified those with no recourse to public funds as particularly vulnerable to food poverty and insecurity. The impact on children has to be of particular concern.

A pre-Covid study of children and food by the Child Poverty Action Group—of which I am honorary president—found that children in families subject to the rule were among the most deprived in the study. Both children and their parents were going hungry, and denial of entitlement to free school meals was a particular problem. One child said of his hunger that

“it was like I got stabbed with a knife and it’s still there.”

Another explained:

“Sometimes you don’t have enough energy, you cannot cope in the classroom so you have to, like, try and rest a bit. You just put your head on the table and you end up falling asleep in the classroom and you get in trouble for it.”


The partial concession, which allowed some children in families with NRPF to claim free school meal support this summer, was very welcome as far as it went. But what possible justification could there be for withdrawing it now that these children are back at school, with the pandemic very much still with us? A letter from 60 organisations to the Education Secretary last month put it very well; it said that

“the Covid-19 pandemic simply exposed the precariousness of daily life for thousands of NRPF families, where the absence of a safety net leaves them only one crisis away from catastrophe. No matter where the next few months lead us, this basic fact will not change. Meanwhile, the effects of this crisis will continue to be felt for years to come. While much effort is being made to ensure children do not fall behind, without access to free school meals many children in NRPF families will face having to make up for half a year of lost learning on empty stomachs, at a time when they may still be struggling to cope with the mental and emotional aftershocks of lockdown.”

As we have heard, the Government have devolved to local authorities much of the responsibility for this extremely vulnerable group, without willing them the means to provide the support needed and without providing clear enough guidance during the pandemic. In particular, as the Work and Pensions Committee noted, there is lack of clarity on whether local welfare assistance funds, which have been boosted during the pandemic, count as public funds for these purposes. Could the Minister provide a definitive clarification on this?

Another concern, as we have heard, is the lack of official data. There has been an exchange between the chair of the Work and Pensions Committee, the UK Statistics Authority and the Home Office on the issue. While it is welcome that the Home Office has now published data on the change of condition applications, this is only a rough indicator of the extent of hardship caused and the data need to be disaggregated. Could the Minister undertake to see what can be done to improve the provision of data, possibly in consultation with the Children’s Society, which has done a lot of work on this? Without it, how can the Home Office assess the impact of the policy?

The amendments raise important social policy issues, but more fundamentally they raise crucial human rights issues. As Project 17 and Sustain point out, the UK Government have signed up to a number of international human rights standards that uphold the right to food, including the UN Convention on the Rights of the Child. I agree with them that, to uphold these obligations,

“our Government should ensure that all children, regardless of immigration status or any other characteristic, are able to access food in a dignified way and this should include universal entitlement to healthy free school meals.”

Of course the “no recourse” rule does not only affect access to food—for example, there are serious concerns about its impact on survivors of domestic abuse, which we will be raising when the Domestic Abuse Bill is with us—but the right to food is crucial to both healthy development and education.

Amendment 53 is a very modest amendment—indeed, some might say too modest—but it could make a real difference to a significant number of extremely vulnerable people, including children and women subject to domestic abuse. The Work and Pensions Committee suggested that the total number exceeds a million, of whom at least 100,000 are children. Moreover, as the committee underlined and my noble friend has already pointed out, there is a very strong case on public health grounds for the immediate suspension of the rule at least for the duration of the outbreak.

I hope that the Minister will be able to reassure us that the Government are giving serious consideration to the recommendations of the Work and Pensions Committee and the Home Affairs Committee, and will not dismiss this amendment in the frankly complacent way that the Immigration Minister did in the Commons, with reference to “a range of safeguards” that evidence from a range of organisations indicates simply are not sufficient to prevent severe hardship and destitution.

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

My Lords, I support Amendment 53 in the name of the noble Lord, Lord Rosser, which is also signed by the noble Lord, Lord Kennedy of Southwark, and the noble Baroness, Lady Lister of Burtersett, and Amendment 73 in my own name. I thank her for offering her support before I had even spoken to it; that is much appreciated.

To be speaking on these two amendments in what is Universal Basic Income Week around the globe has both an irony and an extra importance. Universal basic income would be an unconditional payment going to everyone accepted as a member of our society. No recourse to public funds, together with universal credit, is the extreme other view: conditionality that can deny people the most basic support that they need and human rights, such as the right to food, which the noble Baroness, Lady Lister, just referred to.

The noble Lord, Lord Rosser, cited what I believe are figures from Citizens Advice showing that 1.4 million people are on visas, or have received visas, that may leave them having no recourse to public funds and therefore, in the age of Covid-19, intensely vulnerable. This is not just a human rights issue; it is an issue of public health. If you face your children going hungry and you have Covid symptoms but you could go to work, what do you do? That is a very difficult situation and one that potentially puts everyone’s health at risk. As other noble Lords have said, this is a very modest measure to apply in the special circumstances of Covid-19 when so many other things in our society have had to adjust and flex.

However, I want to speak chiefly to Amendment 73, which, as I alluded to earlier, is part of a package with Amendments 71 and 72. Together they create a situation where the end of freedom of movement could not be brought in until people who were newly affected by the hostile environment were freed from that environment. As I said previously, this is something that Liberty has done a great deal of work on, and I appreciate its support on this matter.

In the previous debates, the noble Baroness, Lady Bull, spoke about the situation where people—most likely women—trapped in abusive relationships are in a very difficult situation if they cannot access evidence of their status. Of course, this is also true if they have no recourse to public funds and, over many years, I have spoken to many people—particularly workers in refuges—who have been left greatly distressed by their inability to help people in the most desperate need because they are in a situation where they have no recourse to public funds. People make choices to remain in abusive relationships because their other option is hunger and homelessness—a situation where they are also highly vulnerable to abuse.

So we need to think about what kind of society the UK is. I believe that we should be a society with a universal basic income; one where everyone has access to the support that they need. However, in the meantime, Amendment 73 would spare people being newly affected by the hostile environment of “no recourse to public funds” and spare them the impacts of this.

I am well aware that, with the Minister, we are on something of a merry-go-round and back to saying that this is discriminatory. Of course, I would absolutely welcome it and be delighted if this was to be applied to everybody affected by “no recourse to public funds”. However, in the meantime, I have put down the amendment that I have been told is what is allowed within the scope of the Bill. “No recourse to public funds” is now a dreadful sentence being inflicted on innocent people through no fault of their own. That is true under Covid and all the time, and I suggest that this is something we cannot allow to continue.

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

Baroness Lister of Burtersett Excerpts

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

[Lord Bruce of Bennachie (LD) [V]]

My Lords, I support Amendment 56. I associate myself with the remarks of the noble Lord, Lord Kerr, in connection with the situation in Lesbos, and I hope the Minister will be able answer his questions. I commend the proposers of the amendment, in particular the noble Lord, Lord Dubs, in his consistent championing of vulnerable child refugees and vulnerable children in general.

We all know that children in care are especially disadvantaged, almost by definition, and there are too many tragic and at times disgraceful stories of the suffering of such children. The commitment to expand foster care is testimony to the fact that being looked after by the state is a last resort. The state is not usually the best parent a child can have, but for some it is the only one. That puts extra responsibility on us when rules change dramatically, as they are because of Brexit, to go the extra mile to ensure that these children are not further disadvantaged as they embark on adult life. It is and should be the responsibility of the state as parent to ensure that children without parents and in the care of the state get the support they need to secure their status. This amendment sets out to secure this.

The Children’s Society’s excellent briefing, to which the noble Lord, Lord Dubs, referred, highlights that more than 3 million people have completed applications, including more than 400,000 children. However, the society points out that the children’s rate is low compared with that for adults. I will not repeat its statistics, but they clearly point to the likelihood that thousands of children could be left undocumented and potentially stateless without the proactive measures proposed in the amendment. Although I say, “thousands of children”, and in the grand scheme of things the numbers are not that large, these are real people with real needs.

This could further blight the lives of young people who will be struggling to build their lives in a post-Covid, post-Brexit environment. The last thing they will need is to be confronted, at a critical point in their lives when seeking employment or other roles, with a challenge to their status because they did not know and were not properly informed of the need to secure settled status or helped to go about it. Because, on the face of it, this is not an urgent matter, overstretched local authorities might postpone support as a priority, but surely it is better to address it while the issue is fresh rather than wait until time has elapsed, people have forgotten, the circumstances have been overlooked and the possibility of people finding themselves on the wrong side of their status is therefore enhanced at a later stage. None of us wants to see tragic headlines about children facing either deportation or lack of identity and status.

I urge the Government to accept the amendment and show that they are on the side of young people. I accept that it is not their intention to create these problems, but, given the opportunity of this amendment, I hope they will recognise that these young people do not need additional barriers to their progress in life and that this amendment is to be commended.

[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.

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[Baroness Lister of Burtersett (Lab)]

My Lords, the Minister referred to the resettlement scheme, but we heard the other day that that is suspended, and it is not at all clear when it will start again. I have a simple question. The noble Lord, Lord Kerr, said that as it is accepted that there is an urgent humanitarian case, it would be good if the Government did something about it. I still do not understand why we are not doing something about it. Why are we not acting like, say, Germany?

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[Lord Rosser (Lab)]

Amendment 63 would lay a duty on the Secretary of State to raise awareness of people’s rights to register as a British citizen under the British Nationality Act 1981, with the people concerned being those who lose rights under Clause 1 and Schedule 1 of the Bill. The amendment would also require the Secretary of State to publish and lay before Parliament a report within six months of this Bill becoming an Act, detailing the action taken to raise awareness of rights to register as a British citizen.

As I understand it, before the 1981 Act anyone born in the UK was born British. The 1981 Act ended that and laid down who is and who is not a British citizen, and who is entitled to citizenship. Someone born in the UK now is only a British citizen if one of their parents is a British citizen or settled in the UK. Apart from the Home Secretary having a general power to register any child as a British citizen, all registration under the British Nationality Act 1981 is by entitlement. A child or an adult who satisfies the criteria for registration is entitled to British citizenship. The 1981 Act does not give the Home Secretary the decision of whether someone is entitled to British citizenship. This is different from naturalisation as a British citizen, which is only at the discretion of the Home Secretary, and only adults can be naturalised.

The EU settlement scheme, which provides for pre-settled and settled status, raises an issue. Some of those about to lose EU free movement rights in the UK will have rights to register as British citizens that they have not yet exercised, and they would quite probably wish to do so as people of EEA or Swiss nationality or parentage in the UK if the alternative was settled status. Citizenship means much more than settled status, and there being no available evidence of citizenship can have significant adverse consequences if changes are subsequently made to immigration policies, as the Windrush generation have found out.

In the shadow of the Windrush scandal, the Government should not be casual in their attitude to people’s right of access to citizenship. They should be working proactively to ensure that those, including children, who have the right to register as British citizens, with the same rights as all of us, are aware of that right and can access it. With the end of free movement and the focus on the EU settlement scheme, there is a risk of those who have the right to access British citizenship and register as British citizens ending up with at best an immigration status. This amendment seeks to minimise the risk of this happening.

In their response, can the Government update the Committee on what work is being done by the Home Secretary and the Home Office to proactively raise awareness and encourage and assist those who have the right to be British citizens to enjoy those rights? If the answer is that no such work is being undertaken on this citizenship issue, can the Government explain why not? I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I shall speak to Amendment 67 in my name and those of other noble Lords who will be speaking. I am grateful for their support. I express support for Amendment 63, moved so well by my noble friend Lord Rosser. Once again, I am grateful to the Project for the Registration of Children as British Citizens, of which I am a patron, and to Amnesty International UK for its briefing.

Amendment 67 would place a duty on the Secretary of State to encourage, promote and facilitate awareness and the exercising of rights to British citizenship among EEA and Swiss nationals. It would also introduce a positive duty to confirm information known to the Home Office that is relevant to establishing a person’s right to citizenship. I am told that at present such information is all too often not forthcoming—a particular problem for many looked-after children—but there appears to be a greater readiness to check and act on such information when it confirms that there is no entitlement to citizenship.

The intention of the amendment is to shift the Home Office’s mindset, in the spirit of Wendy Williams’s Windrush report. That mindset resulted in the active discouragement of members of the Windrush generation from exercising their rights to British citizenship. As we have heard, there are real fears that the lessons of that review are not being learned when it comes to children of EEA and Swiss citizens who were born in the UK or who have grown up here from an early age. Research by the European Children’s Rights Unit, funded by the Home Office, indicates that Roma children, who are an especially vulnerable group, may be particularly at risk.

More generally, PRCBC gives the example of Matteo, who was born in the UK to Italian parents. He has lived here all his life apart from occasional visits to Italy and a gap year in continental Europe. When he became an adult, he discovered to his great distress that he was not regarded as a British citizen when he was refused inclusion on the electoral register for the general election and was twice refused a British passport. Before contacting PRCBC, he had been given poor legal advice that he should apply for settled status under the EU settlement scheme and be naturalised as a British citizen at a future date. Having established what his situation was, PRCBC was able to help him register his entitlement to British citizenship under the 1981 Act. No one had previously advised him of this right, and he had suffered serious mental distress as a result. A young man in this situation should not have to rely on the chance of finding his way into an organisation like that. How many are not finding their way to such organisations?

Can the Minister explain what exactly the Home Office is doing to proactively encourage the exercise of the right to register citizenship, both directly and through local authorities, to ensure that children and young people such as Matteo are not missing out on their chance of registering as citizens? What steps is it now taking to ensure that no one who is entitled to register as a British citizen is wrongly channelled through the EUSS as an immigrant without being informed of their existing right to register as a citizen? Are any specific steps being taken to ensure that Roma children have the information and support they need? Also, can she give us some idea of the number of children overall likely to be affected?

These are important questions. The right to British citizenship of an unknown number of children is at stake. I and others emphasised the importance of citizenship in moving an earlier amendment, and there was a lot of support in the Committee for citizenship’s importance. The answer to these questions will give us some idea of the importance the Home Office attaches to it, and how far it is genuinely willing to shift its mindset in the wake of the Windrush scandal and the Lessons Learned report on it. In that report, Wendy Williams wrote of the need for “deep cultural reform”. The response to these amendments will serve as an indicator of whether the Home Office is genuinely committed to such reform.

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

My Lords, I support the amendments of the noble Baroness, Lady Lister, on protecting rights to British citizenship. We have already debated her first one, Amendment 68. This urges that applicants should not be disadvantaged just because registration costs might become too much for them to afford. We are now considering her Amendment 67, which advises that our system should set out to be proactive, helpful and encouraging towards applicants. Correspondingly, Amendment 63, tabled by the noble Lord, Lord Rosser, correctly argues that in the first place, steps should be taken to raise awareness of available British citizenship rights under the British Nationality Act 1981. I hope the Minister is able to endorse these recommendations.

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[Baroness Hamwee (LD) [V]]

My Lords, Amendment 95 was tabled some time ago. I will not speak for long on this, but I will refer again to the level of anxiety among people affected by the Bill and by other arrangements related to the ending of free movement, exacerbated by the events of the last few days. I have just read out an email I received this morning explaining precisely that.

Windrush has been referred to very often in discussions on the ending of free movement and associated rights, the extent or otherwise of rights following that ending and the risk of things going wrong. I hesitated when I said “Windrush”, because that seems disrespectful. It has become a term for a whole number of people who have been so shockingly affected. That is a pretty neutral term, but I know noble Lords will understand who I am referring to, and they are all individuals. I hope anybody listening to or reading this debate will understand that that is not intended to be disrespectful at all.

The Windrush Lessons Learned Review has particularly relevant recommendations. A lot are about ways of doing things and attitudes. I made a note about a couple of recommendations, 22 and 23, but at this late hour I will not read them out; I suspect other noble Lords are very familiar with the review’s recommendations. To give other noble Lords an opportunity to speak to this amendment, I simply beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 95, to which I was pleased to add my name. Over the course of our four days in Committee, we have heard many warnings of how EEA and Swiss nationals could now become caught in the snare of the hostile/compliant environment. At Second Reading I lamented this fact and that the Bill does nothing to dismantle its institutional architecture, such as the right-to-rent regime.

In light of the Home Secretary’s very welcome announcement that she accepted Wendy Williams’s recommendation of a full review and evaluation of the hostile/compliant environment, I asked the Minister whether she could assure us that that review has the power to question its basic tenets and institutions.

In her subsequent letter to Peers, she responded to the question but without really answering it, saying that the Government are now addressing and implementing the Windrush review findings. Other than acknowledging the significant failings revealed as members of the Windrush generation were unintentionally caught up in measures intended for so-called illegal migrants—I do not believe anyone is illegal—she left us none the wiser as to how deep the evaluation of the hostile/compliant environment would be able to delve.

Likewise, I did not glean much from a Written Question I tabled after Second Reading. This asked about terms of reference, whether the evaluation would be designed in partnership with external experts—as recommended by Wendy Williams—when it was due to be completed and whether the findings would be made public. The Minister’s reply did not answer the questions directly but explained that the evaluation needed to get the balance right between not allowing those without a legal right to be in the country “to exploit the system” and ensuring that the right protections are in place for those whose status should have been assured. Scoping of the work had begun and more information would be available in due course.

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

My Lords, before we proceed to that point, I have a request to speak from the noble Baroness, Lady Lister of Burtersett.

[Baroness Lister of Burtersett (Lab)]

I am sorry to deter the noble Baroness; I think there was a delay in my request getting from here to there. I thank the Minister for answering most of my questions, but could I just push her a bit further? If the review decided that the only way to address the problems created by the hostile/compliant environment would be to reform the legislation, such as right to rent, is it within its power or terms of reference to be able to recommend that kind of legislative reform?

[Baroness Williams of Trafford]

I am not being obtuse, but the noble Baroness is talking about hypotheticals. I do not think that that is the case, but perhaps we could speak further about it after Committee.

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

Baroness Lister of Burtersett Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 30th September 2020 Lords Chamber

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

My Lords, I was pleased to attach my name to this amendment in the name of the noble Baroness, Lady Hamwee, but, after the powerful debate we had in Committee, I am very sorry that it was still necessary to put this down again.

In our debate on Amendment 6, the noble Baroness, Lady Smith of Newnham, referred to the long and continuing discussion the Minister, the noble Baroness, Lady Lister of Burtersett, and many others—including myself—had in Committee about the many amendments that we sought to have applied to all affected by immigration law, the ruling out of the scope of those amendments and the claims from the Minister that what we were tabling was subsequently discriminatory. However, that is an argument that cannot—or, certainly, should not—be applied to this amendment; the situation of Britons married or partnered with Europeans is particular, but it can only be said that it is particularly awful.

No one with a non-EU spouse or partner could have predicted the “onerous” and “unjustified” minimum income requirement applied in 2012. Those are not my adjectives but those of a High Court judge. What I would call an unreasonably harsh assessment might be to say “Well, they should have known that the rules could change when they made their family arrangements”. Yet the many Britons who have been writing to me—and, as the noble Baroness, Lady Hamwee, said, no doubt to many other Members of your Lordship’s House—who established families in Europe decades ago, in many cases, could not conceivably have imagined the dreadful state of British politics over the past five years that has brought us to the current pass. I join the noble Baroness, Lady Hamwee, in thanking all of them for taking the time and having the courage to share their circumstances with us in the hope that we can get the Government to listen.

Rather than making my own arguments, I want as closely as possible to let Jane, a Briton who gave me permission to share her story, speak for herself in your Lordships’ House. She says:

“I am a British citizen, resident in Italy since 1993 with my Italian husband and children; I have my widowed mother, aged 76, living alone in the UK. She is fortunately in good health at the present time. However, one must be realistic. In time, she may need extra care. As her only child, I, with my husband, have always reassured my mother that we would be there to care for her in her later years, but due to the possible outcome of this Bill, we are increasingly worried.


Like many other Britons who moved to the EU while Britain was a member, I had—and expected to keep—an almost unfettered right to return to the UK with my family. My mother and I were safe in the knowledge that I could always come back should the need arise. I do not want my mother to have this worry. I would like her to grow old knowing that we can come back to the UK should that need arise. Unless this Bill is amended, this right will be removed on 29 March 2022, creating impossible choices for me and thousands of families like mine.


The Government’s answer is that we are given 15 months from the end of transition to return with our families to the UK. This is ignoring the massive practical difficulties of uprooting ourselves from family life and work in our country of residence. I have my own business here in Italy, not to mention my husband’s work and our children’s education, and there may be no need for that uprooting.”


Will the Minister personally respond to Jane and tell her what the Government’s justification is for putting her and her family in this situation?

The Green Party group wholeheartedly offers the noble Baroness, Lady Hamwee, its support if she chooses to put her amendment to a vote.

[Baroness Lister of Burtersett (Lab)]

My Lords, I was prompted to speak in support of the amendment by an email that I received this week from a British citizen born of British parents in Britain. During voluntary service overseas, she met and married an Italian. She lived in Italy, working for a UN agency for 30 years. They adopted a boy whose nationality is Italian. After her husband died, she hoped to return to the UK, where her brother and sister live. However, this would now mean her leaving her son behind, which, she writes,

“I could never do. We are very close. I could never leave him behind, with me in one country and him in another.”

Both she and others in a similar situation cannot believe that their families will be split up in this way in future.

I refer to what the Minister said in Committee at the end of the debate on another amendment relating to family reunion. She appeared to agree with the argument of the noble Lord, Lord Green of Deddington, for raising the minimum income threshold—referred to earlier by the noble Baroness, Lady Hamwee—from £18,600 to £25,700, or even £38,000, to cover the cost of public services or make a net contribution to public finances. I know that these figures came from the Migration Advisory Committee but they are premised on a narrow understanding of what constitutes a contribution to our society. It is the same kind of thinking that will exclude care workers and other key workers from immigration, as we heard during the debate on a previous amendment. The argument discounts the importance of the right to family life. I hope that the Minister will say now that I misread what she was saying and that she was not supporting the suggestion to raise the threshold.

The damaging impact of the minimum income threshold has been documented in a number of studies, most recently from the University of Bristol. It wrote of

“not just emotional impacts of separation, but financial, mental and physical hardship.”

The family reunion rules divide far too many families already. They need reviewing. For now, we can at least prevent even more families—like those of the mother who emailed me and the many other people who have emailed other Members of your Lordships’ House—being split up in this cruel and heartless way. We can prevent that happening by supporting this amendment.

[Lord Oates (LD) [V]]

My Lords, my noble friend Lady Hamwee has already eloquently set out the powerful arguments for this amendment, as have the noble Earl, Lord Clancarty, and the noble Baronesses, Lady Bennett of Manor Castle and Lady Lister of Burtersett.

As my noble friend Lady Hamwee told us, in Committee she asked the Minister how she would advise a couple, one British and one an EU national, who both have elderly parents, in which country they should choose to live. Which set of elderly parents should they pick? In response, as my noble friend reminded us, the Minister said that the Government had given people “plenty of time”, but that is not an answer. It does not matter how much time they have had; they could have had all the time in the world. It does not change the fact that the Government are forcing them to make an invidious choice, to make it by 2022 and to live with it ever after. If they need to stay in the EU member state of the EU national to look after his or her parents, after 2022 they will no longer be eligible to return to the UK together. I ask the Minister once again: how should that family make their choice? I would like her to provide an answer to that essential question—which she failed to give to my noble friend—because it goes to the heart of the issues and the terrible choices that will be inflicted on our citizens and their families as a result of the Government’s policy.

The Government have made much of taking back control. This is a test for Ministers of what that control will mean in practice. Will they act with compassion or with cold-hearted indifference and in doing so inflict intolerable injustice on thousands of families of our citizens? I am sure I am not alone—and we have heard testimony from previous speakers—in having been contacted by numerous British citizens with heartrending stories of the misery that the Government’s present policy will cause to them and their loved ones. People who settled as British citizens in the EU and who made their lives there with their partners, who now, through no fault of their own, face their future plans being torn up by ministerial obduracy and callousness.

One such example is Fiona, who lives in Luxembourg with Miguel, her German-Chilean husband. He studied his O and A-levels in the UK, where his father was a professor. He later took a job as a translator in Luxembourg, where Fiona joined him. They have now been married 25 years and have lived in Luxembourg all that time. They always assumed they would be able to return together to the UK, as Miguel was an EU citizen, and they made their life plans on that reasonable assumption. Now—through no fault of their own—unless they return before 2022, Fiona would only be able to do so alone. In theory, her two children could come with her, as they are dual nationals, but if this is the way the UK intends to treat their German father they have no wish to do so, and I cannot say I blame them. Fiona says: “As a British citizen, I feel exiled from my country of birth and the rest of my UK family.” That is the reality of the Government’s position: to de facto exile British citizens from the land of their birth.

The only argument I have heard Ministers advance to justify the injustice they are about to inflict is that somehow maintaining the existing position would not be fair on British citizens living outside the EU who are married to non-UK nationals. This is the hollowest of empty arguments. British citizens moving to live in an EU member state had the reasonable expectation that they would be able to return to the UK with their partner at any point. The gross injustice lies in the fact that existing rights are being stripped away. If the Government do not move on this policy, British citizens will face a very stark choice come 2022: they will either have to return alone, without their wife, husband or other family members, or not at all. That is the reality.

I hope that all Members of the House will be clear, when they eventually get to vote on this amendment, that they will not be voting on some abstract piece of policy; they will be deciding the future of thousands of British citizens and their families. They will be deciding whether those families have to pick which elderly parent they will stay to care for, or which life plans they have to tear up. Above all, they will be deciding whether to lift a massive burden of anxiety from the shoulders of our citizens in the EU or to impose a further weight of misery upon them. Even at this late stage, it remains in the Government’s hands to show, by accepting this amendment, that they have a human face. However, if they do not, I hope that they will be resoundingly defeated when the virtual Lobbies function once again.

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

Baroness Lister of Burtersett Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, in Committee I expressed dismay that in their negotiating proposals the Government seek to replace refugee children’s rights under Dublin III with a discretionary provision that provides vulnerable children with neither the certainty nor the security that they need. The Minister did not respond on that point and I would be grateful if she could do so today.

I also raised the question of when the Government plan to restart the resettlement programme, paused because of Brexit. Although she justifiably made much of Britain’s record on resettlement, she did not answer the question, which was also raised in the Private Notice Question by the right reverend Prelate the Bishop of Southwark. Last Monday in the Commons, the Parliamentary Under-Secretary of State explained that,

“as soon as we are safely and properly able to resume activity, we will do so.”—[Official Report, Commons, 28/9/20; col. 10.]

Can the Minister tell us what criteria will be used to decide when it is safe and proper to do so? I am not sure that she answered precisely the right reverend Prelate when he asked a similar question on the PNQ.

--- Later in debate ---

Moved by

[Baroness Lister of Burtersett]

16: After Clause 4, insert the following new Clause—
“Report on awareness and exercise of rights to British citizenship
(1) Within six months of the passing of this Act, the Secretary of State must lay before Parliament a report on the rights to British citizenship of relevant persons.(2) The report under subsection (1) must provide—(a) an assessment of the level of awareness among relevant persons of their rights to British citizenship (“the level of awareness”) including the reasons for any lack of awareness among such persons;(b) an assessment of the level of exercise by relevant persons of their rights to British citizenship (“the level of exercise”) including the reasons for any failure to exercise these rights by such persons;(c) an assessment of the impact upon either the level of awareness or the level of exercise of each of the following—(i) any fee imposed by the Secretary of State in relation to the exercise of rights to British citizenship;(ii) the requirement of good character under section 41A of the British Nationality Act 1981 for registration as a British citizen;(iii) any guidance or policy of the Secretary of State in relation to the exercise of rights to British citizenship;(iv) the practice of the Secretary of State in relation to data held by or accessible to the Secretary of State that may confirm a person’s rights to British citizenship;(v) the availability of legal aid in relation to rights to British citizenship;(vi) the capacity or willingness of parents to assist relevant persons to exercise their rights to British citizenship;(vii) the practice of local authorities in relation to rights to British citizenship; and(viii) the practice of the family courts in relation to rights to British citizenship.(3) The assessments required by subsection (2) must include—(a) consideration of the circumstances of relevant persons who share a relevant protected characteristic for the purposes of section 149 of the Equality Act 2010; and(b) comparison of the circumstances of relevant persons with other persons having the same rights to British citizenship.(4) In making the assessments required under subsection (2), the Secretary of State must consult such persons as the Secretary of State considers appropriate, which shall include children and young persons with rights to British citizenship and organisations with expertise and experience in assisting and representing those children and young persons in connection with those rights.(5) The report under subsection (1) shall include specific consideration of each of the following groups of relevant persons—(a) children and young persons who are or have been a looked after child;(b) children and young persons who are or have been in the criminal justice system;(c) children and young people who are or have been the subject of a mental health assessment or mental health order;(d) children who are not living in a household with two parents;(e) children and young persons in poverty; and(f) children and young persons who are victims of domestic abuse.(6) For the purposes of this section—“children and young persons” includes any person under the age of 25 years;“domestic abuse” has the same meaning as in the Domestic Abuse Act 2020; “in poverty” means living in a household whose income is less than 60 per cent of the median United Kingdom household income;“in the criminal justice system” means having received a conviction or caution for the purposes of the Rehabilitation of Offenders Act 1974 (whether or not that conviction or caution has been or can be spent);“mental health assessment” means an assessment of the person’s mental health that was required by a court order or under legislation;“mental health order” means an order of a court requiring a person’s admission to a hospital or other institution for the purpose of treatment or care on account of that person’s mental health;“relevant persons” means persons who—(a) immediately before the repeal of section 7 of the Immigration Act 1988 (exemption from requirement for leave to enter or remain for persons exercising EU rights etc.) under paragraph 1 of Schedule 1 to this Act, were entitled by virtue of that section to enter or remain in the United Kingdom without leave; and(b) have at any time up to the passing of this Act had rights to British citizenship;“rights to British citizenship” means rights of acquisition of British citizenship by birth, adoption or registration under the British Nationality Act 1981.”Member’s explanatory statement
The amendment would require the Secretary of State to provide a report on factors affecting the awareness of and exercise of rights to British citizenship under the British Nationality Act 1981 by those affected by the repeal of section 7 of the Immigration Act 1988 (exemption from requirement for leave to enter or remain for persons exercising EU rights etc.).

[Baroness Lister of Burtersett (Lab)]

My Lords, I had not originally intended to return to the question of children’s right to citizenship on Report, as I had simply wanted to register our continuing concern in the context of this Bill, which will mean that many more children stand to be affected in future, adding a new urgency to the issue. However, the strength of feeling expressed from all Benches in Committee, combined with the disappointing response of the Minister, made me think again. I am grateful to all noble Lords who have added their name to the amendment, as well as to others who spoke in support in Committee. Once again, I thank the Project for the Registration of Children as British Citizens, of which I am a patron, and Amnesty International UK, for their help with the amendment and the work they do.

Colleagues pursuing this issue have now taken the name of “Terriers United”—united in our determination to achieve justice for a group of children in vulnerable circumstances: a group of children born in this country or who have spent most of their lives here and who have the right to British citizenship under the British Nationality Act 1981, but who have to register that right because of their parents’ immigration status. In Committee, the right reverend Prelate the Bishop of Durham, who, as we have heard, cannot be here today, stated that

“the Home Office has no business erecting barriers, financial or otherwise, that prevent people registering as British citizens, particularly children, when those people have been granted that right by this Parliament”.—[Official Report, 9/9/20; col. 857.]

This amendment would require a report from the Home Secretary on these barriers. I shall not go into all the details, as noble Lords can read them; nor do I expect the Minister to do so—she might be relieved to hear—but it covers all the issues addressed in Committee: the role of local authorities, particularly with regard to looked-after children; awareness and information, with reference to which I ask whether the Minister is able to report back to us yet on her welcome commitment in Committee to raise with the Home Secretary our calls to raise awareness of citizenship; and, of course, the level of the fee, which was our main focus.

The amendment also covers other barriers such as the “good character” test, a discretionary test which can be used to prevent children aged 10 and over registering their right to citizenship even where they have had minimal contact with the criminal justice system, such as receiving a caution. The Select Committee on Citizenship and Civic Engagement, of which I was a member, raised concerns about this, and in particular the age from which it is applied.

The amendment calls for specific consideration of a number of groups of children and young people who face particularly vulnerable circumstances. Again without going into detail, I note that proposed new subsection (3)(a), which covers those with protected characteristics under the Equality Act, would include Roma children, who, according to the European Children’s Rights Unit, are more likely than other EU children in this country to be entitled to British citizenship and to be economically disadvantaged.

I am aware that the Chief Inspector of Borders and Immigration published a report on fees last year, but this ranged much more widely and did not cover other barriers to citizenship registration. That said, the inspector raised a number of concerns about children’s citizenship fees, reflecting the volume of evidence received from stakeholders. He recommended a new, wider public consultation on charges generally. Although this recommendation was not accepted, the Home Office did accept that

“consultation in specific areas could be useful to inform future policy development.”

I suggest that this is just such an area, and that the serious implications of the end of free movement for the children of EEA/Swiss nationals with a right to register as citizens, detailed in Committee, make it a matter for urgent policy development.

The amendment provides a vehicle for such a consultation. It requires that such consultation includes children and young people affected, and the organisations that assist and represent them—in line with recommendation 8 of the Windrush Lessons Learned Review report, which states:

“The Home Office should take steps to understand the groups and communities that its policies affect through improved engagement”


with communities and civil society, and that officials should be expected

“to seek out a diverse range of voices”.

I welcome the Home Secretary’s commitment to such an approach in last week’s Statement and comprehensive improvement plan.

In Committee, I and other noble terrier Lords from all Benches made a principled case relating primarily to the level of the fee and the position of looked-after children. It was premised on the importance of citizenship to belonging, security, identity, inclusion and integration. In support, we quoted from a recent High Court judgment that deemed the level of the fee unlawful because it had been set without regard to the best interests of the child. The judgment underlined why citizenship is important and how the inability of many children to exercise their right to register as citizens because of the fee causes many children born in the UK to

“feel alienated, excluded, isolated, second best, insecure and not fully assimilated into the culture and social fabric of the UK”.

It is a matter of regret that the Home Office is appealing that judgment, to be heard next week. The right reverend Prelate the Bishop of Durham has described the fee as “prohibitive and regressive”, “indefensible” and “iniquitous”—in short, “simply unacceptable”.

In her response, the Minister brought no arguments of principle to the table. There were instead three planks to her case—rotten planks, I suggest. The first plank was purely technical, concerning drafting points stemming from the requirement that the amendment was confined to EEA/Swiss nationals in order to be in scope, thereby, she argued, creating a two-tier system. Of course, as other noble Lords have pointed out with reference to other amendments, the solution to that lay in the Government’s own hands. In any case, today’s amendment sidesteps that problem by simply requiring a report; moreover, it would require that the report considered this group of children in relation to the circumstances of other children in the same situation so as to avoid any suggestion of a two-tier system.

The central plank was financial: that the fee of £1,012, which is £640 more than the Home Office estimate of the administrative cost, is necessary to provide the resources required to operate the Borders, Immigration and Citizenship System. I have two responses to that: first, a right conferred by Parliament to ensure that children and young people connected to the UK should have the security of citizenship should not be undermined in the interests of the wider finances of the overall BICS; and, secondly, in conflating the cost of registering citizenship with that of the costs of the borders and immigration system, and at an aggregate level, the Minister evaded the key question of the mark-up for citizenship registration at the level of the individual. She glossed over how that money is being used to cross-subsidise borders and immigration operations that have nothing to do with citizenship registration. In doing so, the Home Office is once more committing the fundamental category error of treating the right to British citizenship as being part of the immigration system. It is this category error that lies at the heart of why so many British young people continue to grow up effectively excluded from the citizenship that is theirs by right under the British Nationality Act.

The third plank rests on another category error—that leave to remain represents the equivalence of citizenship. So while it was welcome that the Minister did not try to argue that citizenship is not important, it was in fact implicit in her response to the attempt to exempt looked-after children from the registration fee. Access to limited and indefinite leave to remain is no substitute for the security of citizenship. What this means for children is brought home by a young woman brought up in the UK since the age of two who was quoted by Ian Birrell in a recent article for the i newspaper:

“It puts you in a very bad place with anxiety and depression. Even though I’m a legal resident, it feels like they can take it away any time.”


I finished my speech in Committee by quoting a former Home Secretary, Sajid Javid, who described the fee as “huge”. According to a Times report dated 13 August 2019, Priti Patel raised concerns about the level of the fee just two weeks before becoming Home Secretary. She had told Citizens UK that she would contact Home Office Ministers over the issue and that she understood the

“concerns surrounding this sensitive matter”.

Towards the end of Committee, the Minister kindly agreed to relay to the Home Secretary the request from the noble Lord, Lord Alton, for a meeting with Peers who had supported the amendment on this question. I understand that the Home Secretary’s diary did not permit such a meeting now but we can be patient, so I repeat that request now for whenever the Home Secretary’s diary does permit, particularly in light of her known concern.

I hope too that the Minister will be able to accept our amendment, or a version of it, at Third Reading as providing a way forward on this sensitive and vexed issue, as it will not go away. Otherwise, Terriers United gives notice that we will be snapping at the Home Office’s heels until we achieve justice for this vulnerable group of children. I beg to move.

--- Later in debate ---

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

I have received no requests to speak after the Minister, so I call the noble Baroness, Lady Lister of Burtersett.

[Baroness Lister of Burtersett (Lab)]

I thank all noble Lords who spoke in support of the amendment, from right across the House, and who very much strengthened the case. Some important points were made and I pick out just two. One is that, over and over, people emphasised the modesty and reasonableness of the amendment and pointed out how carrying out a review like this would be very much in the spirit of both the lessons learned review and the recent Public Accounts Committee report, helping to provide the evidence that it said was lacking. Here—just thinking about the Trump terrier—we are not talking about fake evidence; we are talking about real evidence, based on people’s experiences. There is a sort of incomprehension that the Government cannot accept this modest, reasonable amendment.

That said, I welcome the Minister’s tone and her acknowledgment that there is absolutely no point in trotting out the arguments that have been trotted out up to now, because we simply will not accept them in this House. I feel that we have made progress on that score. I welcome her willingness to talk about it further and I welcome the fact that she has committed to take it back to the Home Secretary. The point about the review that we have asked for is that it requires a report to come back to Parliament. We do not have a clear channel that will ensure that we have an opportunity to come back to this, to say, “Okay, the Minister has agreed to look at this further and to discuss it with the Home Secretary”—I would be very happy to give way if the Minister could say in what way we can then hold her to account in this House on that.

[Baroness Williams of Trafford (Con)]

Noble Lords never fall short in holding me to account. I would quite like to do a sort of task-and-finish activity, but one of the ways I can take this forward is to think about how we can then bring that back to the House, if that is sufficient for the noble Baroness.

[Baroness Lister of Burtersett (Lab)]

Thank you. That is very welcome. While obviously I am disappointed that the amendment has not been accepted, I feel that we have made progress this evening. That is partly because of the strength of support from noble Lords across this House. I am very grateful to them, I am grateful to the Minister and I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

--- Later in debate ---

I must admit that the first I heard of a specialist Home Office team to trace and locate absconders, which I thought was a police responsibility, was in the Minister’s letter of 28 September. Ever since I was chief inspector, I have been recommending a root-and-branch review of the whole immigration system; I still do. I intend to test the opinion of the House. Until then, I beg that this amendment be accepted.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 23, to which I have added my name, and the others in the group. Since Committee, the Public Accounts Committee’s report has come out —we have heard about it—and it was highly critical of the lack of evidence informing immigration enforcement policy. That has to raise a big question mark over the Minister’s claim, in her letter to Peers, that:

“Detention plays a key role in maintaining effective immigration controls and securing the UK’s borders”.


We have to ask: what is the evidence supporting that claim?

PAC also expressed disappointment that the Home Office is still not sufficiently curious about the impact of its actions, and that little evidence exists that the department actively seeks to identify or evaluate that impact. This is highly pertinent to the impact of segregation and the indefinite detention of detainees, while not knowing how long that detention will last. We have already heard about the lack of hope that means. In both cases, as I documented in Committee and as the noble Baroness, Lady Bull, has done tonight, the impact on mental health is a particular concern. This lack of curiosity around impact might account for the parallel universe that I identified in Committee, in which the Minister’s picture of detention and its effects is light years away from that documented by organisations on the ground.

Another example is the Minister’s claim in Committee —to which the noble Lord, Lord Ramsbotham, has already referred—that

“Removal from association is only ever used as a last resort when other options have been tried … but failed, and only as an effective response to the safety and security risk presented by an individual in detention”.—[Official Report, 14/9/20; col. 1020.]


However, as Medical Justice—which I thank for its support—points out, over 900 incidents of segregation in 2019 alone does not seem indicative of a “last resort”. Medical Justice maintains that it is simply not true that segregation is used only in response to security and safety risks. It has experience of it being used as punishment or to manage detainees with mental health problems, of whom far too many are still being detained. In doing so, segregation is aggravating these mental health problems, which could also have been aggravated by the lack of a time limit, and it is diverting attention and energy from addressing underlying systemic problems that contribute to the behaviour that prompts segregation.

I will ask a couple of data-related questions. I thank the Minister for the management information she gave me on the use of association between January and March 2020. However, I also asked why the Home Office does not routinely publish these data once they can be treated as official. I would be grateful if she could look into this, perhaps, in the interests of transparency. I also thank her for the information on female detainees in her letter to Peers, but those data go up to only 30 June—they are the latest published quarterly statistics—which is three months ago. Is management information available on the current situation; namely, on how many women are currently detained in Dungavel House, Colnbrook, IRCs or prison?

In conclusion, I will argue that nothing in the Minister’s response in Committee or her subsequent letter makes me rethink my support for the amendment, and I hope that others will join me in voting for it in the name of fairness, humanity and the compassion that is supposed to be the future hallmark of Home Office culture.

[Baroness Meacher (CB)]

My Lords, I add my strong support to this group of amendments. The noble Baroness, Lady Hamwee, argued cogently—as she always does—in support of these changes to the Bill.

In her helpful letter, the Minister suggests that

“Detention is used sparingly and for the shortest period necessary.”


Detention Action tells a very different story. One of the most important elements of these amendments is that they would end indefinite detention. As someone who worked in mental health services for many years, I am acutely conscious of the appalling consequences of detaining people without any indication of the length of time involved. Many detained indefinitely and for long periods—and, indeed, re-detained—have already suffered severe mental health problems due to their appalling experiences. Even with professional treatment, these problems may take many years to resolve. In my view, it is unforgivable for us, as a nation, to disregard this suffering.

As Detention Action has told us, in a recent case, the High Court found three separate periods of unlawful detention in respect of a vulnerable autistic person, in breach of Article 8 of the ECHR. This is a shocking example of what can happen under the current law. The importance of these amendments is that they would prevent that from happening in the future.

I want to put on record that our Minister was wrongly briefed when she suggested that detention of more than 28 days was limited to those who have committed serious offences. In reality, people with no offending history are regularly detained for periods exceeding 28 days—and even re-detained. These amendments would put an end to these unacceptable practices. The right to apply for bail is no solution for these vulnerable people; they do not all have access to professional legal representation, and many do not speak English. Of course, the most vulnerable—those with mental health problems—are the least able to advocate for themselves.

Another crucial element of the amendments is the commitment to ensuring that re-detention cannot happen unless there is a material change in the detained person’s circumstances. The case of Oliver—quoted in Committee —underlines the cruelty of re-detention. Oliver, as noble Lords will remember, suffered with PTSD, having been imprisoned and tortured in his home country and trafficked twice, yet he was re-detained a year after his release from initial detention. How can we do this to such a vulnerable person?

Of course, not all immigrants have a history as bad as Oliver’s but many detainees have experience of torture or ill treatment and have significant and chronic health problems. Noble Lords know that attempted suicides are commonplace in detention centres and actual suicides have been on the increase in recent years. Some 68% of detained immigrants are not removed from the UK. Surely their detention has been pointless and therefore unjustified. As Detention Action argues, the current system is ineffective, inefficient, harmful and costly. We spend £100 million a year on detention. As we emerge from Covid we can ill afford to be throwing money away. This amendment is a gift to the Chancellor. I was pleased to read that the Home Office is considering alternatives to detention. If the Government also want to avoid detention except when it is absolutely necessary, I hope that the Minister will be able to table amendments at Third Reading to achieve the objectives that I believe we all want to achieve.

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

Baroness Lister of Burtersett Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

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

My Lords, Amendment 24, which appears under my name, is one of a suite of amendments that I moved in Committee. I continue to stand by all of them, but in achieving a disappointing response from the Minister then, I have restricted myself to just one. I record now, as I did then, the role of Liberty in working on all of them. When I saw that no one else had brought forward a similar amendment, I felt that this issue had to be raised in any immigration Bill.

This amendment is about “no recourse to public funds”. It is something I find myself talking about so often that the phrase rolls off my tongue like poetry, but of course this is the stuff of nightmare, of personal desperation and great suffering. It is the situation of the victim of domestic violence facing the choice between homelessness and penury for herself and her children and the very real danger of being maimed or killed if she stays. It is the situation of the child going hungry, suffering the miserable, desperate pangs that prevent concentration or hope, when his peers get free school meals.

I assume there is no Member of your Lordships’ House who would deny the human right to life, but “no recourse to public funds” denies access to the most basic essentials. People are forced to rely on the fragile, overstretched resources of specialist charities, and people fall through the cracks of that hopelessly underresourced, fragile net of support.

I fear that in this Bill, the Minister and I are trapped on a merry-go-round. I believe I can foresee the response I am likely to receive: that this is discriminatory if applied only to people newly covered by immigration law, EU and EEA citizens, and not to everybody. At the risk of sounding like a recording, I want this to apply to everybody. The Government could and should end any application of the “no recourse to public funds” rule. In this amendment, I have tried to save as many as the rules of the Table Office will allow me. Saving some people from being penniless and homeless, from hunger and abuse, and perhaps from death, is better than saving none. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank the noble Baroness, Lady Bennett, for tabling Amendment 24. In supporting it, I will not repeat the evidence I rehearsed in Committee showing the damaging impact of the “no recourse to public funds” condition on children denied free school meals, in particular—she mentioned that particular group. But I will draw attention to a national survey published since then by the Children’s Food Campaign and Food Active, which found that nine out of 10 parents agreed that eligibility for free school meals should apply regardless of immigration status.

I also want to return to some specific points I raised in Committee. First, I would like to thank the noble Baroness the Minister for responding to my question about data in her letter. I hope the department will follow this up with the Children’s Society, to see how it might improve the data so as to provide a better indicator of the levels of hardship created and the demographics of the groups worst affected.

In Committee, the noble Baroness the Minister referred to what I said about the temporary extension of eligibility for free school meals to support families with NRPF. But she did not acknowledge the point I made that this was a partial concession covering only some NRPF families, nor that the concession has now been withdrawn. I asked what possible justification there could be for this, and I quoted from a letter from 60 organisations to the Education Secretary, which among other things noted that these children will face having to make up half a year of lost learning on empty stomachs. Could the noble Lord the Minister who is speaking today respond to that point now and, at the very least, commit to taking it up with colleagues in the Department for Education?

According to a briefing from the Children’s Society and others, the Government have indicated that there will be a full review of the free school meals system and that that is needed before the extension to NRPF families can be made permanent. But why? Why does it need a full review? Hunger cannot wait for a review. What is the scope and timetable of this review? If the Minister cannot answer that now, please could it be covered in a subsequent letter?

The Minister did not respond either in Committee or in her letter to a specific question that I posed, echoing the Work and Pensions Select Committee. I asked for a definitive clarification as to whether local welfare assistance funds counted as public funds for these purposes. They act as a kind of safety net below the safety net—a rather ragged safety net below the safety net—but if even those are not available, it makes life that much harder for this group. Again, if the Minister does not have the answer, could it please be covered in a subsequent letter?

The comprehensive improvement plan, published last week in response to the Windrush Lessons Learned Review, identified the NRPF as one of six primary streams in the compliant—aka hostile—environment. It is interesting that the Home Secretary, as far as I can see, did not refer to this rather important plan of the Home Office in her speech on Sunday at the Conservative Party conference. But in contrast to the plan’s emollient tone, while talking about compassion and so forth, we have learned in the media—and I know that the Minister will say that he cannot respond to leaks, but it did not seem like a leak; it seemed like it had been deliberately placed—that there is a push by Downing Street to

“radically beef up the hostile environment in 2021.”

If this is true, it makes a mockery of the review of the hostile/compliant environment detailed in the Home Office’s plan. Can the Minister provide a categorical denial that the intention is not to radically beef up the compliant/hostile environment, because that certainly was not what Wendy Williams was calling for?

I refer back to the exchange that I had in Committee with the Minister on the Windrush Lessons Learned Review—and I thank her for the offer of the meeting. It seems to me from the comprehensive improvement plan that the review of the hostile/compliant environment will not include questioning its legislative underpinnings. For instance, it will not question the right-to-rent legislation itself, but simply how it is being implemented. What if the review concludes that the legislation itself is not proportionate in meeting the Government’s stated aims, which is part of what Wendy Williams’s recommendations said it should be looking at? I would be very happy if the Minister responds to say that I have misinterpreted what the plan says, and that the terms of reference are that it is open to those reviewing the hostile/compliant environment to question the legislation, if that is where the evidence takes them. Surely—going back to my first point—the denial of free school meals to hungry children is not proportionate.