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.