Immigration Bill

Baroness Lister of Burtersett Excerpts

Tuesday 12th April 2016 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

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

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

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

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

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

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

[Lord Rosser (Lab)]

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

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Moved by

[Baroness Lister of Burtersett]

6: Clause 62, page 58, line 37, at end insert—
“( ) No person whom the Secretary of State knows, or could reasonably be expected to know, is pregnant shall be detained.”

[Baroness Lister of Burtersett]

My Lords, Amendment 6 would put into law the recommendation of the Shaw review into the welfare in detention of vulnerable persons, commissioned by the Home Office, that the current presumptive exclusion from detention for pregnant women should be replaced with an absolute exclusion. On Report, the noble and learned Lord, Lord Keen of Elie, twice stated that the Government would reflect on the matter by Third Reading. However, he also made it clear that the Government did not consider it appropriate for there to be an absolute rule and gave the example of an irregular migrant—I deliberately do not repeat the term “illegal”, in line with the recent recommendation of the Council of Europe’s Commissioner for Human Rights—who arrives at an airport and can be returned almost immediately. Six days later, the noble and learned Lord sent a detailed letter to me and the noble Baroness, Lady Hamwee, in which, among other things, he addressed the specific questions that I had raised about the new guidance on the detention of pregnant women. I am grateful to him for that, in particular for his agreement to share a draft of the new operational guidance with detention-related organisations such as Women for Refugee Women, to which I pay tribute for its tireless work on behalf of women in detention.

However, on the underlying question of whether pregnant women should be detained at all, the noble and learned Lord in effect repeated what he said on Report, and I did not see any evidence of the promised further reflection. I had assumed that there would be a further statement giving the Government’s formal response to Shaw’s recommendation, but when none had appeared by yesterday, I realised that it was not to be and therefore thought it important that your Lordships should have the opportunity to consider this question, which inevitably got rather lost in the debates about the wider question of time limits. I apologise that, as a result, the amendment was tabled at the very last minute.

Stephen Shaw was clearly aware of the issue of pregnant women who might not otherwise be returned quickly to their country when appropriate to do so. Nevertheless, he concluded:

“I believe that the Home Office should acknowledge the fact that, in the vast majority of cases, the detention of pregnant women does not result in their removal. In practice, pregnant women are very rarely removed from the country, except voluntarily”.

He therefore recommended unequivocally that the presumptive exclusion from detention should be replaced with an absolute exclusion. In doing so, he cited evidence from the Royal College of Midwives, among others, which he said demonstrated the,

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

In a witness statement to the High Court, the director for midwifery at the RCM spelled out the medical reasons why detention is completely inappropriate, particularly for a group of pregnant women with significant or complex health and psychosocial problems in need of higher levels of care than the general population. I here call on the Minister to arrange for a discussion of the issues raised by the detention of pregnant women with the RCM, Medical Justice—which has produced a damning research report on the issue, endorsed by the Royal College of Obstetricians and Gynaecologists—Women for Refugee Women and organisations working with those who have suffered torture.

Stephen Shaw stands by his recommendation; I heard him speak recently and eloquently in support of it. He spoke of detention’s “undoubted damage to mothers and unborn babies” at a meeting in Parliament hosted by Caroline Spelman MP, who together with me, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Ramsbotham—who I do not believe is in his place—were members of the parliamentary inquiry into detention which recommended that pregnant women should never be detained for immigration purposes. That inquiry’s recommendations were endorsed by a Motion in the Commons last September. In his address, Mr Shaw drew attention to the Prime Minister’s prisons speech earlier this year, in which he expressed particular concern about the position of mothers and babies in prison.

The argument that the absolute exclusion recommended by Shaw would tie the Government’s hands inappropriately might appear reasonable. The problem is that, in effect, it means no real change from the status quo so roundly criticised by Shaw and others, including HM Inspectorate of Prisons, which told Shaw that there is little to suggest that pregnant women are being detained only in exceptional circumstances, as is supposed to be.

Current Home Office policy already states that the only exception to the general rule that pregnant women should not be detained is when removal is imminent and medical advice does not suggest that the woman concerned will go into labour before her removal date. In spite of this clear policy presumption against detention, in 2014, 99 pregnant women were detained and, in 2015, 69. Of the 99 pregnant women detained in Yarl’s Wood during 2014, 30—that is nearly one-third—were held for between one and three months; four for three to six months; and only nine were deported from the UK. I understand that there is a pregnant woman who has been there for just over two months at present.

I ask the noble and learned Lord to explain what additional safeguards the new approach brings. How can he reassure noble Lords that the new policy will mean that pregnant women are detained in only the most exceptional circumstances when the current policy is already supposed to ensure that? I know that the Home Office believes that the new gatekeeping team to be introduced as part of the adults-at-risk approach will introduce a degree of objectivity into detention decision-making and so protect against inappropriate use of detention. However, given that this team will still sit within the Home Office—albeit in a different management chain from those making the decisions—the oversight it provides will clearly fall short of the independent element for detention decision-making that the Shaw review recommended the Home Office should consider.

Returning to the example of the pregnant woman who arrived at the airport with no right of entry, it is the only example we have been given of where an absolute exclusion would cause a problem. So it should be, because it is the only exception that exists at present. I have not seen any evidence as to how often this occurs at present. The fact that nine out of 10 pregnant women held in detention in 2014 were subsequently released back into the community rather than deported suggests that it is rare. ILPA makes the point that if a pregnant woman claims asylum she cannot be returned until her claim is determined in any case.

As Women for Refugee Women argue, refusing to accept Shaw’s clear recommendation of an absolute exclusion from detention on the basis of what would appear to be a small number of cases each year where swift removal might be possible, and when there is clear evidence that allowing decision-makers discretion results in significant numbers of pregnant women being detained in circumstances that are far from exceptional—just one pregnant women being detained when she should not be is one too many—is not sensible, effective or humane policy-making. I hope that even at this late stage the noble and learned Lord will accept Stephen Shaw’s recommendation, which has support across the political spectrum and from a wide range of civil society groups, none of which have been convinced by the Government’s argument against doing so. I beg to move.

[Lord Alton of Liverpool (CB)]

My Lords, I should like to support the amendment moved so well by the noble Baroness, Lady Lister. I raised this issue in Committee, and then my noble friend Lord Hylton and I took the trouble to go to Yarl’s Wood where we asked questions about the number of pregnant women who had been detained there in the past or might currently be detained. I share the view of the noble Lord, Lord Bates, who did such wonderful work on this Bill in its earlier stages. He commented on a Channel 4 investigation into Yarl’s Wood, which was shown in March 2015, where staff members called the women being held there “animals” and “beasties”. Having watched the programme, the noble Lord said to the House:

“I watched that documentary on Channel 4, and quite frankly I was sickened”.—[Official Report, 28/1/15; col. 103.]

Having been to Yarl’s Wood, I was able to say to the House that many of the staff we met had learned the lessons of that experience, and certainly my noble friend and I were impressed by many of the standards that we saw, but nevertheless we could not be convinced that it could ever be right, as the noble Baroness has just said, to have even one pregnant woman detained in those circumstances.

The Royal College of Midwives has said that:

“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.

In the review referred to by the noble Baroness, the former Prisons and Probation Ombudsman for England, Stephen Shaw, says this:

“that detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children … I take … to be a statement of the obvious”.

Alongside that, of course, there are long-standing concerns about the conditions in Yarl’s Wood. The Chief Inspector of Prisons has called it a “place of national concern”. Although I have tried, I hope fairly, to say that conditions have undoubtedly improved, nevertheless it is not a place where pregnant women should be.

The briefing material referred to by the noble Baroness from the organisation Women for Refugee Women poses the question that the Government frequently ask in these circumstances:

“If the government said they were going to stop detaining pregnant women, wouldn’t women lie and say they were pregnant—or get pregnant deliberately—just to avoid detention? And wouldn’t women abscond if they weren’t detained?”.

I agree with the response:

“Establishing if a woman is pregnant or not is very straightforward: she simply needs to take a pregnancy test! The idea that women would get pregnant as a way of avoiding detention is unfounded and based on sexist stereotypes about women and the way they behave”.

To illustrate the strength of that argument, which I agree with, it is perhaps worth mentioning to noble Lords the story of one woman, Priya:

“Priya was trafficked to the UK and forced into prostitution. She has been detained in Yarl’s Wood twice; the second time she was locked up, she was 20 weeks pregnant, and was held in Yarl’s Wood for seven weeks before being released back into the community”.

Picking up her story, she says this:

“I was released after three months in detention, and fell pregnant by my partner, but then I was detained again. Although I had a written report from an expert, the Home Office did not believe that I was trafficked, so my claim was refused and I found myself back in detention. This time around I was in Yarl’s Wood for about seven weeks, and I was 20 weeks pregnant when I arrived.

I only had one hospital appointment while I was there, for my 20 week scan, and even then I was escorted by officers who took me 40 minutes late for my appointment. I felt frustrated that I wasn’t able to speak to the midwife after my scan because there was no time. The officers just took me straight back to Yarl’s Wood instead”.

I will not read the entire testimony to the House, but let me pull out two more sentences:

“The first time I was detained in Yarl’s Wood, I was on medication for sleeping and depression, and I took an overdose because I felt so hopeless … I couldn’t eat the food in the canteen; that made me sick too. A lot of the time I could only really manage milk. It was too far for my partner to visit and, as an asylum seeker as well, he couldn’t afford the travel, but we spoke on the phone every day. I’ve been released now but I still feel depressed”.

Levels of depression in Yarl’s Wood and incidents of self-harm have been very high indeed. The prisons inspectorate report in 2015 found that more than half of women who were detained there felt depressed or suicidal when they first arrived, and that there had been 72 incidents of self-harm in the previous six months —a huge rise from the previous inspection. Surely these are circumstances in which we should never put someone who is pregnant.

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[Lord Keen of Elie]

There is certainly a sense of urgency in this matter and that is why I expressed my apology to the House and the noble Baroness, Lady Lister. I had indicated that by Third Reading I would be in a position to confirm the Government’s position on this. However, it is a matter that requires detailed consideration. It is a matter that has ramifications. It is a matter that has to be considered in conjunction with Home Office guidelines. It is a matter that must be consulted on and finally approved before issue, and it is for that reason that, regrettably, there has been a period of delay in respect of this point.

I underline that it will not involve an absolute prohibition. It will, however, involve a very limited power of detention to be exercised only in exceptional circumstances and for a very limited period. That is what is anticipated at present. As I sought to point out on Report, it is simply not practicable to have an absolute bar in respect of pregnant women. There are circumstances in which, for example, a pregnant woman arriving at an airport or a port, clearly with no right at all to enter the United Kingdom, may present either a security risk or a risk of absconding, and without any power of detention it would be quite impossible to arrange her return at that time of arrival. Therefore, in these circumstances, I urge the noble Baroness to withdraw her amendment.

[Baroness Lister of Burtersett]

My Lords, I am very grateful to all noble Lords who have spoken. Many have spoken so eloquently, drawing attention in particular to the implications of this for unborn children, and have made the case very strongly.

I realise that the Minister is in a difficult position in that he is not able to make the statement to which he referred. I asked him for reassurance that the new policy will mean that pregnant women are detained genuinely in the most exceptional circumstances because the current policy is that they should be detained only in the most exceptional circumstances. While the hint of a time limit is encouraging, I have heard nothing to reassure us that the new policy will be different from the old policy.

I quite understand that it is not the Minister’s fault—if that is the correct word—that he is not able to make the statement today. But Stephen Shaw delivered his report to the Home Office on 24 September. The Government have had over six months to consider this crucial issue, which they know many people—organisations, individuals who gave evidence to Shaw and individuals who gave evidence to the inquiry—feel very strongly about. They must have known that people would want a clear answer on this by now and I am afraid that clear answer has come there none. I am quite sure that the noble and learned Lord understands why it is not good enough to say, when this is the last chance we have to discuss it in this House, that we should wait for a few days because the Government have not managed to get their act together to enable him to make the statement today.

Given that every noble Lord who has spoken did so very strongly in support of this amendment, I feel that I have no choice other than to test the opinion of this House.

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[Baroness Hamwee]

My Lords, Clause 71 provides for the transfer of responsibility for relevant children. A relevant child is defined in subsection (9) as an unaccompanied child, while subsection (10) says:

“The Secretary of State may by regulations make provision about the meaning of ‘unaccompanied’”.

At the previous stage of the Bill, the noble Baroness, Lady Lister, raised the concern that an accompanying adult might not be—I use this phrase non-technically—an appropriate adult. There were concerns about trafficking. The amendment would put into the Bill the definition that is in current Home Office guidance on processing asylum applications by children.

While the amendment is to Clause 71, the same issue might of course arise in respect of Clause 70, the clause that your Lordships agreed on Division regarding the figure of 3,000 unaccompanied children. We will have to see what happens to that provision. In any event, taking a rather narrow technical point about Third Reading, that clause was not the subject of the reassurance from the noble Lord, Lord Bates, that he would put in writing how the term “unaccompanied” would be defined and would operate, and that he would do so by Third Reading. Given the change of Minister last week, I contacted the noble Earl’s office to ask if there would be a letter, and at the point when I tabled the amendment there was not. It arrived around 6 pm yesterday and I read it some time later, and I thank him for it. The letter says that there is,

“no intention to alter the definition”,

for the purposes of this clause. In situations where an asylum-seeking child,

“is accompanied by an adult who is not a parent or relative”,

Home Office officials will,

“verify the identity of the adult and establish the relationship with the child”.

I am not sure whether the relative referred to there is one who by custom has responsibility for the child, otherwise there would be a change from current guidance, although I gather that Home Office guidance is currently being rewritten. What I am really not clear about is why the Bill needs to allow for any flexibility or change in the definition, so it is important to get the position on record.

I was concerned about the reason for leaving the matter open in the way that the Bill does. When I was looking into this at the weekend, I found that the definition used by the Committee on the Rights of the Child is slightly broader because it refers to “other relatives” as well as parents. It occurred to me that it is known that “other relatives” are sometimes traffickers, which is why the wording is not used in the Home Office definition. There may be issues around siblings or other family members. However, it is important that we get the position on the record. It would be preferable to get it into legislation, but at any rate we should understand what the parameters are of the regulations that the Secretary of State might make. I beg to move.

[Baroness Lister of Burtersett]

Once again, my Lords, I am very grateful to the noble Baroness, Lady Hamwee, for tabling this amendment. With her usual lawyer’s quickness, she picked up the point that I raised on Report. As I said then, it is a point that was raised with me by an organisation local to me in the East Midlands, Baca. It was worried because it could not understand why that wording was there. It is perhaps not surprising if groups are worried and perhaps slightly cynical when they come across measures that they do not understand, given that there is so much in legislation that they do not like. So I am delighted that, at the last minute, the letter from the noble and learned Lord, Lord Keen of Elie—not the noble Earl—made it very clear that the definition, as in the amendment, is,

“separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so”.

It is helpful to have that in Hansard because of course your average punter cannot read the letters sent between Ministers and Members of your Lordships’ House. I am sure that the noble and learned Lord will repeat that for the record. Also, like the noble Baroness, I would appreciate an explanation of why this clause is necessary, given that this is, as the letter says, the,

“established definition in the Immigration Rules”,

and it is accepted by the UN. I am glad that through this organisation raising this matter with me, we have some clarity on what is meant by it.

[Lord Keen of Elie]

I am obliged to the noble Baronesses, Lady Hamwee and Lady Lister. As they have observed, there is already an established definition of “unaccompanied” in the present context. It is not in guidance alone; it is in the Immigration Rules, and that is important. The definition states that an unaccompanied asylum-seeking child is someone who—perhaps I may, as suggested, read this into the record—is under 18 years of age when the claim is submitted, is claiming asylum in their own right, is separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so.

Following the commitment given by my noble friend Lord Bates on Report to explain how the definition would operate, I wrote to the noble Baronesses—albeit, as they observed, at the last minute—to confirm that there is no intention of altering the definition of “unaccompanied” as set out in the Immigration Rules for the purposes of the transfer provisions in the Immigration Bill. Furthermore, defining particular categories in primary legislation is not always desirable or even necessary. As your Lordships will appreciate, there are times, particularly in the context of the current migration crisis, when the Government need to respond quickly to changing circumstances.

I should make it clear that at present we have no intention of amending the definition of “unaccompanied”. We would do so only in response to a significant change in circumstances, but it is important that in such circumstances we are able to react swiftly and efficiently. Clearly, regulations subject to parliamentary scrutiny are a more appropriate way to achieve that result than placing something on the face of this Bill.

I reassure the noble Baronesses, Lady Hamwee and Lady Lister, that safeguarding and promoting the welfare of vulnerable children is at the forefront of the Home Office’s work with the Local Government Association and the Department for Education to develop a transfer scheme for unaccompanied asylum-seeking children. I understand the concerns about the definition of “unaccompanied”—it may have unintended consequences and inadvertently place children in the hands of traffickers—but immigration officials working with these vulnerable children are trained to be alert to any signs that a child is at risk of harm or abuse or may have been trafficked. Where an asylum-seeking child is accompanied by an adult who is not a parent or a relative, Home Office officials work with local authority children’s services to verify the identity of the adult and establish the true relationship with the child. If that relationship cannot be verified or there are ongoing welfare or safeguarding concerns, the child will be treated as unaccompanied.

In the light of those points and our recent correspondence confirming that we have no intention of amending the already established definition of “unaccompanied” for the purposes of the transfer provisions, I invite the noble Baroness to withdraw the amendment.