Baroness Lister of Burtersett
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Illegal Migration Bill
Baroness Lister of Burtersett ExcerptsWednesday 7th June 2023
(10 months, 4 weeks ago)
Lords ChamberRead Full debate Illegal Migration Act 2023 View all Illegal Migration Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 133-III(a) Amendments for Committee (Supplementary to the Third Marshalled List) - (6 Jun 2023)
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, Clause 8 ensures that there is support available to individuals who would otherwise be destitute where their asylum claims have been declared inadmissible, pending their removal from the United Kingdom. It also seeks to incentivise those whose asylum claims have been declared inadmissible to comply with the arrangements to remove them from the UK, whether that be to their country of origin—where it is safe to do so—or to a safe third country. These provisions will support the overall objective of the Bill and ensure that those who come to the UK illegally will not be able to stay. Pending their removal, we will ensure that we support those who are complying with arrangements for removal. I make no apology for introducing these measures to protect and preserve the integrity of our asylum and migration system.
I am grateful to the noble Baroness, Lady Lister, for setting out her amendments to Clause 8. Amendments 57C and 57F seek to create a right of appeal against a decision to refuse an application for support under Section 95A of the Immigration and Asylum Act 1999, which would take effect only if supporting provisions in the Immigration Act 2016 are brought into force. The Government keep these matters under review but I can answer the noble Baroness’s question directly: there are no current plans to bring those measures into force, and so we consider these amendments unnecessary. Therefore, those who are refused support under Section 4 of the 1999 Act will still be able to appeal the decision.
Similarly, we do not consider Amendment 57D necessary. As I have told noble Lords frequently throughout Committee, our intention is to detain and swiftly remove people. We expect that the overwhelming majority of those who fall within the scope of the duty to remove will need accommodation as well as financial support. These individuals will therefore be provided with financial support to meet their essential living needs, pending their removal from the UK.
Although I recognise the intention behind Amendment 57E, the Government do not consider it necessary to provide a statutory basis on which to provide temporary support. As I have said, our intention is to detain and swiftly remove those who enter illegally and meet the conditions in Clause 2. The details of how the scheme will work in practice, including the support provided during this interim period, are currently under active consideration. We are confident that there is sufficient scope to be able to provide adequate support to individuals pending a determination of their application under Section 4 of the 1999 Act. Obviously, we will bear in mind the contributions made during this short debate.
Finally, Amendment 57G seeks to amend uncommenced provisions in the Immigration Act 2016 and, in so doing, alter the long-standing position that Section 4 support would be available only to people who face a genuine obstacle in leaving the UK. The Government have no plans to implement the 2016 Act provisions in the immediate future; even if we were to do so, we see no need to alter the existing approach to eligibility under Section 4 for this group of people. Eligibility for Section 4 support is a long-standing position. As long as individuals whom we support pending their removal co-operate with the process, they will remain eligible for support.
The noble Baroness, Lady Lister, the noble Lord, Lord German, and the train-bound right reverend Prelate the Bishop of Durham asked about the Section 4 application form. We are working on the arrangements for implementing these provisions. As part of that, we will consider what changes, if any, are required to the Section 4 application form.
Where necessary, the Government will provide accommodation and basic support for those who are subject to the duty to make arrangements for removal and who are not being detained pending their removal. In answer to the right reverend Prelate, I can assure him that, with the changes made by Clause 8, we consider that there is sufficient legislative cover to provide such support where a person would otherwise be left destitute. On that basis, I invite the noble Baroness, Lady Lister, to withdraw her amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I am grateful to all noble Lords who have spoken, including the right reverend Prelate, in his absence; we know that he had to get his train. I am also grateful to the Minister for answering more questions than I expected him to be able to.
I am disturbed by the proposition that it is not necessary to provide a statutory basis for temporary support because the intention is to remove people quickly. The Government are the only people who think that removal will be quick. All the organisations on the ground predict a state of semi-permanent limbo—purgatory, as some of them have called it. There needs to be a proper statutory basis for the support that these people are provided with. I hope that the Minister will look at this point again.
Other noble Lords have asked questions that have not, I think, been answered. I would be grateful if the Minister or his officials could look through Hansard and answer any remaining questions. The noble Lord, Lord German, certainly asked a number of questions that have not been addressed. I will not detain the Committee now by pressing them—I am sure that the noble Lord will not either—but I ask that a letter answering those questions goes to the noble Lords who have participated in Committee before Report.
It would also be helpful if the Government published as clearly as they can a statement on what is proposed. We can piece bits together from the Minister’s reply today but the point has been made that local authorities, faith groups, refugee organisations and others need to start planning; they need to know. A clear statement would therefore be helpful.
I finish by quoting the right reverend Prelate the Bishop of Durham, who said that this is going to be like detention without walls. That is a very telling statement. It is important that we get this right. We do not want large numbers of people destitute on our streets because they are in this permanent limbo. I look forward to seeing what the Minister has to say in any subsequent letters but, for now, I beg leave to withdraw the amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I rise in support of Amendment 58. I am sorry that I could not be at the Grand Committee debate on the regulations because of another commitment. Given the representations that have been made by a range of an organisations, I felt it was important to say a few words.
All people should have access to secure, safe and decent accommodation, no matter what status they hold. While it is right that we should not have people housed in hotels for longer than necessary, the removal of so-called red tape, which potentially includes shortcuts around safety standards, as we have heard, seems exceedingly risky. Once again, we have been asked to put our trust in the Home Office and its subcontractors instead of properly resourcing local authorities to provide adequate housing. This is not the way to address the backlog or accommodation shortages. The speed of procurement should not come at the possible cost of life.
Earlier this month, while the Levelling-Up Secretary was unveiling new laws protecting renters’ rights, his colleagues were debating the Government’s intention to scrap HMO licensing for asylum seekers’ accommodation. That seems somewhat perverse. The Government state in their Explanatory Memorandum to the regulations that part of the rationale for the change was that subcontractors
“raised concerns that … regulation is posing a barrier to acquiring … properties”.
But the suspicion is that subcontractors’ concerns are motivated more by profits than by the need to reduce backlogs and move people into accommodation. As my noble friend Lady Taylor of Stevenage asked during the Grand Committee debate, what evidence is there—again there is this question of evidence; it seems that with every amendment we are asking for evidence—to suggest that this change in regulations will speed up procurement of accommodation? The potential to undermine safety and standards seems very risky if there is not clear evidence to suggest that it will achieve the Home Office’s intended outcomes. Local authorities are concerned that any further erosion of enforcement powers will lead to a decrease in accommodation standards, where the reverse is needed.
The excellent briefing from the Chartered Institute of Housing, Crisis, JCWI and others argued:
“The assertion from the Government that HMO licence levels of protection will be maintained in these properties, but overseen by the Home Office rather than the local authority, is deeply suspect. People are already losing their lives in asylum accommodation managed by private subcontractors on behalf of the Home Office”.
Echoing the noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, it was alarming to read at the weekend that asylum seekers were left on the streets in Westminster for two nights running because of accommodation problems and that the Immigration Minister had led moves to require groups of up to four adult males to share single rooms in so-called Operation Maximise. Richard Drax, a Conservative MP, has equated this to putting them in prison. As the leader of Westminster Council commented, to ask people who are
“likely to have been through significant and traumatic events … to share an inappropriately sized room”—
we are talking about a single room here, not some palatial five-star room—
“with multiple strangers defies common sense and basic decency”.
Basic decency, as well as safety, is what is at stake with these regulations.
Can the Minister give us an assurance that Operation Maximise will be abandoned at once in the interest of basic decency? With regard to these regulations, can he reassure us that the Home Office or its contractors have the skills to make a proper assessment of the risks around fire safety that an experienced and qualified local authority environmental health officer would have?
In the recent debate in Grand Committee, the noble Lord, Lord Scriven, asked the Minister to confirm that the same conditions that apply to an HMO licence will be replicated in the contract with the provider of accommodation for those seeking asylum. I do not think that the noble Lord has asked this again tonight, but I hope he will forgive me if he has. As the DLUHC Minister was unable to answer the question because it related to Home Office responsibilities, perhaps the Minister could provide an answer now.
In conclusion, this amendment should have never been needed but, unless we get serious assurances around living and safety standards, I can only question how the Government have decided that creating unsafe homes and putting asylum seekers in them is a decent strategy. As the Chartered Institute of Housing has said, HMOs will undoubtedly prove cheaper, but at what cost?
Lord German (LD)
My Lords, this amendment, at its heart, is about the Government’s proposal to exempt housing for asylum seekers from licensing conditions. My noble friend Lady Hamwee outlined the two principal areas of concern, which have been the thread throughout this short debate. One is the conditions of the accommodation and the second is the impact on the rented housing sector in its entirety. I would add that the limited number of properties that are available in the private rented sector is in danger of impacting seriously on the number of houses for people who are looking for that accommodation but are not asylum seekers.
I will ask the Minister as well about the devolved responsibilities in this area, because the private rented sector in Wales is quite differently managed under Welsh Parliament legislation. I would like to understand whether the Government have consulted the devolved Administrations to find out how they propose to deal with this matter. In the case of Wales, all private rented sector accommodation is required to be licensed, not just HMOs. There is a strict regime and landlords pay for that licence. Clearly, that has had some impact on raising standards. That is an important issue, and if it is going to be reduced further, the Government need to explain why.
My noble friend Lady Hamwee pointed out that there is a better way forward, and mentioned the need for a more collaborative, non-regulatory approach. My noble friend Lord Scriven pointed out that licensing provides protections, and I think we all understand that. He illustrated it by talking about smoke and CO2 alarms. The reduction in standards is implicit in the proposals that are contained in the statutory instrument. It seems to me that we need to have a proper inspection regime, as stated by my noble friend Lord Scriven. The noble Baroness, Lady Lister, raised the issue of the safety of people being at risk. That is at the heart of all this. Are we going to put the safety of this vulnerable group of people at risk by returning to the original situation before the HMO legislation came into place? Are we going to manage the contractors properly and correctly? Clearly, the process of creating unsafe homes is not in anybody’s interest in this country at all, and neither is placing people within them.
Baroness Lister of Burtersett (Lab)
My Lords, I was going to ask this question in the next group, but it is more appropriate to ask it here. It was raised by Doctors Without Borders in its damning briefing: what specific care will be provided for children with pre-existing or emergent health needs?
Also, following on from my noble friend Lady Chakrabarti, I have been in correspondence with the UNHCR about the different interpretations of the UN convention and the refugee convention that came up when I asked on our first day in Committee why we should accept the Government’s interpretation of the refugee convention over that of the body which has global responsibility for it. The Minister was rather dismissive of the UNHCR, which, in response, highlights that its position on the Illegal Migration Bill—one diametrically opposed to the Government’s—is that it will go against the obligations under the refugee convention. The UNHCR’s institutional position has been conveyed to the Government in the exercise of its responsibilities under Article 35. It does not accept that this is a legitimate interpretation of the refugee convention.
Baroness Bennett of Manor Castle (GP)
My Lords, I will speak briefly on Amendment 69 in the name of the noble and learned Lord, Lord Etherton, and others. My intervention is prompted by a meeting I had earlier today with the disabled Greens group, specifically on the question of meeting the needs of disabled asylum seekers and refugees. That caused me to look up the details of the UNHCR Detention Guidelines, specifically point 9.5, which says that states may be required to make reasonable accommodations to ensure that they meet the specific needs of disabled asylum seekers. It says:
“As a general rule, asylum-seekers with long-term physical, mental, intellectual and sensory impairments should not be detained”,
and that accommodation needs to be accessible.
The disabled Greens raised with me their particular concern about the barges, about which the Government seem very enthusiastic and to which they have been paying a great deal of attention. It is difficult to see how those barges could possibly meet the accommodation requirements of disabled asylum seekers.
A number of noble Lords referred to the historic situation at Manston, but we have seen the Chief Inspector of Prisons expressing great concern about what is happening there right at this moment. The focus has very much been on children but, if we are not able to identify and assist children appropriately, I really wonder whether we are also able to identify and assist refugees with disabilities, who may have specific needs. Can the Minister say how the Government will ensure that they meet the needs of asylum seekers with disabilities?
Finally, without in any way daring to intervene in a discussion between two lawyers on a fine technical point, I just note that Article 35 of the convention, referred to by the noble Baroness, Lady Chakrabarti, says that:
“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.
The relationship does not look much like co-operation at the moment.
Baroness Lister of Burtersett (Lab)
My Lords, I support these amendments generally, in particular those in the name of the noble Baroness, Lady Mobarik—it is a pleasure to follow her powerful speech. I have added my name to Amendments 60 and 65.
It was to the Conservative-led coalition Government’s credit that they ended the routine detention of children and replaced it with strict limits. It is thus inexplicable, as the noble Baroness said, that the present Conservative Government should choose to reverse that policy. Prior to that reversal, the Royal College of General Practitioners, together with other royal colleges, published an intercollegiate briefing paper which described the
“significant harms to the physical and mental health of children and young people in the UK who are subjected to administrative immigration detention”.
It concluded that the immigration detention of children and their families is “harmful and unacceptable”. Among the evidence at the time was that provided by Medical Justice clinicians, who
“identified psychological harm to be caused and exacerbated by detention. Symptoms included bed wetting and loss of bowel control, heightened anxiety, food refusal, withdrawal … and persistent crying. Many children exhibited signs of developmental regression … some attempted to end their own lives”.
Today, many organisations—health, children’s and refugee—have briefed us about the likely health implications of such a reversal. To quote the Refugee and Migrant Children’s Consortium, the effects on children’s
“physical and mental health included weight loss, sleeplessness, nightmares, skin complaints and self-harm, depression and symptoms of post-traumatic stress disorder”.
It also cites, as did the noble Lord, more recent collaborative evidence from Australia. The Royal College of Psychiatrists warns of the likely damaging impact on child mental and physical health of
“the restriction of movement, lack of community exposure, and limited access to health and educational services”
associated with detention. The Independent Advisory Panel on Deaths in Custody, a non-departmental public body, has warned the Home Secretary that this is
“a group who are particularly vulnerable, including in respect of mental ill-health, self-harm, and suicide due to trauma caused by dislocation from family”.
It also emphasises
“the link between the indefinite nature of detention and feelings of uncertainty and hopelessness, which can increase the risk of suicidality”.
A group of people with lived experience of the asylum system who advise Doctors of the World have written an open letter to Peers which speaks of their particular concern about the detention of children and pregnant women, whose plight I think we will debate shortly. However, more generally on the basis of their experience they write that
“some of us start shaking when detention centres are mentioned, or crying when watching the news about this Bill”.
The Children’s Commissioner has expressed deep concern at the prospect of children being detained for significant periods of time. She has not been reassured by the government amendment—mentioned by the noble Baroness—which does not specify any time limits or cover children who are with their families. Can the Minister tell us what steps will be taken to ensure that children are detained for as short a period as possible, as he assured us they would be? Also, what is his estimate of the numbers of children in detention as a result of this change of policy, in the absence of an impact assessment?
The Children’s Commissioner points out that Article 37 of the UNCRC is clear that children must be detained for as short a time as possible. UNICEF makes the point even more strongly, warning that the broad discretion on the detention of children provided by the Bill
“is not compatible with international standards”
and
“would not comply with the principle of the best interests of the child”.
Some, including the Committee on the Rights of the Child, have gone so far as to argue that Article 37 means that children should simply not be detained at all in an immigration context. Whether or not one accepts that interpretation, it is clear that the powers given to the Home Secretary in Clause 11 once again contravene a key international convention.
Although the Chief Inspector of Prisons’ report published yesterday, mentioned earlier by the noble Lord, Lord German, welcomed some improvements in the short-term holding facilities in Kent, it noted:
“Children were detained for far too long at all sites”.
During the previous six months:
“Detention records indicated that 337 children had been held in breach of the statutory 24-hour time limit”,
with one held for just over three days. It notes that some particularly vulnerable children were held for too long, giving the example of a 17 year-old girl with a 10 month-old baby—conceived, she said, following rape—who was held from 11.30 am and then overnight, for nearly 24 hours. If this is already happening, I dread to think what the situation will be like if Clause 10 reaches the statute book.
The incentives—pull factor—argument used by Ministers in their attempt to justify this retrograde policy would be laughable if the implications for children’s well-being and best interests were not so serious.
Baroness Helic (Con)
My Lords, I support Amendments 59, 63, 64 and 67. I believe these are measured and proportionate steps to preserve existing safeguards around child detention—safeguards introduced by a Conservative Government.
Child detention must only ever be a last resort. That is a clear requirement, as many have said, of Article 37 of the UN Convention on the Rights of the Child, which also requires that detention be for the shortest appropriate time. Article 22 requires states to ensure that children seeking refugee status receive “protection and humanitarian assistance”. I hope and believe that these principles will be recognised and shared across your Lordships’ Committee.
There is strong evidence that the mental and physical health impacts of detention on children are severe. For refugee children, often escaping from traumatic circumstances, detention can further compound their trauma. Detention separates children from their peers, interrupts their education, exposes them to violence and denies them the safe, loving and supportive environment that children need to develop and thrive, and which is their right. Detention undermines parental authority and strains the parent-child relationship. This lasts well beyond the period of detention itself. Even short spells in detention can cause trauma and long-term mental health risks for children. When we detain refugee children, we should know that we are making their future lives and integration into society even harder.
My noble friends in government may have said that they recognise these impacts and do not want to detain children, but I am afraid that, as written, this is precisely what the Bill will do. My noble friend Lady Mobarik has explained the existing limits and how the Bill would change them. To reiterate: the detention powers in the Bill would apply to all migrant children and could see them routinely detained in any location for an indefinite period. This is simply not in line with the principle of child detention as a limited last resort.
We know that the immigration system is overstretched. As such, we can reliably expect every time limit and latitude granted to immigration officials by the Bill to be exploited to the full. Therefore, we must make certain that children’s rights and the limits on their detention are guaranteed in law. It is not good enough for my noble friend the Minister to say that child detention should be exceptional. The law must make it exceptional.
There are some problems which new laws can solve. There are other times when new laws will have no effect—or such serious side-effects that they are entirely disproportionate to the problem. If the Government do not feel that they can regulate immigration and asylum without locking up children for extended periods, that is indicative of a broken system. It is not a problem that is resolved by detaining children.
There is no evidence that the introduction of the existing limits on child detention have led to an increase in illegal immigration. There is no reason to think that removing these limits will improve the Government’s ability to control immigration and prevent the dangerous channel crossings. Exposing children to greater risk of harm, with no guarantee of preventing harm, is not a step we should accept.
The existing limits on child detention, brought in after careful consideration by the Conservative Government, meet the practical need that sadly exists. They ensure that detention is strictly controlled and time-limited, as the UN Convention on the Rights of the Child requires. They mitigate the harm that detention causes. They make detention the last resort. That is what we must retain, and I urge noble Lords to support these amendments.
Member's explanatory statement
The effect of this amendment is that section 60 of the Immigration Act 2016 (which limits the detention of pregnant women normally to 72 hours under existing powers of immigration detention) will apply to the new powers of detention created by Clause 10 of the Bill.
Baroness Lister of Burtersett (Lab)
My Lords, I will also speak briefly to Amendment 70, which is also in my name. Before I start, I wish to put on the record my protest at the fact that we are debating these important issues after midnight. It is disgraceful.
Noble Lords
Baroness Lister of Burtersett (Lab)
I am very grateful to the right reverend Prelate the Bishop of Gloucester, who sends her apologies that she cannot be here, but who asked me to underline her strong support. I am grateful to the noble Baroness, Lady Gohir, for her support for both amendments, and the noble Baroness, Lady Sugg, and my noble friend Lady Chakrabarti for each signing one of them. I am grateful to Women for Refugee Women and Medical Justice for their briefings on the amendments, but I feel we really cannot do them justice at this hour.
Amendment 68 does no more than restore the status quo ante, restricting the detention of pregnant women to 72 hours, extendable up to a week with ministerial authorisation. This restriction was introduced by the Immigration Act 2016 thanks to the strong opposition in your Lordships’ House to the detention of pregnant women.
Prior to that, there was no time limit and, although policy stated that pregnant women should be detained only in exceptional circumstances, in practice they were all too often detained in far from exceptional circumstances, and often for long periods. The Bill would return us to those dark days.
Baroness Lister of Burtersett (Lab)
My Lords, first of all, I thank all noble Lords who have spoken. All, apart from the Minister, spoke in support of the amendment. I am very grateful to them for staying until this ungodly hour and not allowing the Government to chase them off, in effect, through tiredness. I know that others have not spoken, but I have felt their support anyway. People are nodding, and I thank them. I know that others who cannot stay this late have had to leave.
My noble friend Lord Ponsonby remarked on my anger that we are discussing this at such a ridiculous time. Yes, I am angry about that, but I am also angry because, as the noble Lord, Lord Alton, set out very clearly, we are having to refight the battles that we fought in 2016 at some length in this House and won. It is so depressing to have to put the same arguments yet again, because the Government and Theresa May accepted them then, and we reached a compromise. That is why, although in my heart I agree with the noble Lord, Lord Scriven, because that is what I argued for in 2016, with my head I say that we have to just try to get back to where we were. There is no point trying to go further, I am afraid, although I accept what he said in principle.
I should also note that there are a whole lot of other people here who probably would not normally sit in on our Committee proceedings, and I hope they have learned something. I hope they have learned through having to listen to what we are doing to pregnant women—what their Government are doing to pregnant women. I hope they will think about it. Some of their colleagues on the government Benches might have words, perhaps, afterwards, because as my noble friend said, the noble Baroness, Lady Sugg, made a very powerful case.
I thank the Minister for his response, but it was utterly disappointing. He utterly failed to engage with what his noble friend said about the vacuity of the incentives argument, and he had no other argument to put. There is no case, really, because, as she made clear, that argument does not stand up. It was very depressing and disappointing that there was no case.
I am also disappointed that a number of the questions I asked were not answered. I am not going to press them now— it is nearly 1 o’clock in the morning.
Lord Stewart of Dirleton (Con)
I apologise to the noble Baroness. Any oversight was entirely a failure on my part. I will review the record and revert to the noble Baroness in writing, if that is acceptable.
Baroness Lister of Burtersett (Lab)
It is perfectly acceptable. I was just going to suggest that the Minister do that. I do not blame him at all, because I do not imagine he is that keen on arguing this out at 1 o’clock in the morning either.
We will return to this at Report—we have to. As a number of noble Lords said, this is a narrow amendment that does not drive a coach and horses through the whole Bill, much as I hate the Bill. It would not cost the Government anything to concede to this amendment before Report, rather than forcing us to come back then and go through the whole thing again, voting for the health of pregnant women and their babies. For now, however, I beg leave to withdraw the amendment.