Statement of Changes in Immigration Rules

Baroness Lister of Burtersett Excerpts

Tuesday 23rd October 2012 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Browning. She has raised some very pertinent questions. While I want to focus on the income thresholds, I want also to draw attention to the concerns raised by BID, Bail for Immigration Detainees, about the implications for children of measures to ensure the deportation of foreign criminals.

BID’s experience is that wide powers already exist to deport foreign national ex-offenders, and in the very few appeals against this which are successful it is often because the courts have found that grave harm would be caused to a child by deporting the parents. It says that the Government are now seeking to prevent the courts from upholding the law to protect these families. In the view of BID, the measures do not allow for adequate consideration of the child’s best interests. For example, it does not follow that it is in a child’s best interests, if there is another relative that they can live with in the country, to live with that relative and to be permanently parted from their parents; or, say, if the parents have been in prison and the child has been living in foster care, for them to be deported with their parent to a country that they have never visited before.

Liberty, too, raises concerns about the implications of the changes for children and concludes:

“It is clear from the Government’s proposals that it is paying little more than lip service to the importance of UK children’s interests in immigration decisions … Far from placing children at the heart of immigration decisions, the proposed changes seek to relieve officials of the responsibility for weighing up the interests of a child in any but the most clear cut cases”.

I would welcome the Minister’s response to that and his explanation of how children’s interests will be safeguarded.

As we have heard, the Home Office’s human rights statement and the Home Secretary have emphasised that Article 8 of the European Convention on Human Rights, on the right to respect for privacy and family life, is a qualified right. As my noble friend Lady Smith has already said, we accept that. However, as Liberty argues, there is,

“a delicate balancing exercise to be struck between the rights of the individual and wider social interests in, for example, the reduction of crime and disorder and the protection of the economic interests of the UK”.

Liberty and I do not accept that the proposed changes,

“properly accommodate the fact-sensitive balancing exercise that the right demands”.

Liberty argues that instead they,

“represent a one-size-fits-all approach to complex immigration decisions. … Far from better reflecting the proportionality required under Article 8, the proposed changes seek to circumvent the crucial fact sensitive consideration of decisions involving fundamental rights”.

The Government argue that the income threshold is proportionate in meeting their legitimate aims of safeguarding the economic well-being of the UK. It is a sad day when the economic well-being of the UK depends on keeping apart a few thousand poor families each year without adequate attention being given to safeguarding the well-being of children and their families.

The Migrant Rights Network points out that, because of differences in earnings across different social groups, the new income requirement will disadvantage women, who we know are still on average paid less than men, some minority ethnic groups and people living outside the south-east. My noble friend gave an example that illustrated the unfairness of that fairly arbitrary or one-size-fits-all limit.

The Home Office human rights statement acknowledges that the income threshold may be challenged under Article 14 of the European Convention of Human Rights in terms of its equalities impact, particularly with regard to whether this constitutes unjustified indirect discrimination against these groups—for example, women and those nationalities who the evidence shows are likely to have lower earnings. Having raised this possibility, the Home Office’s only answer was that this will be mitigated in some cases by the exemption from the income threshold of those in receipt of carer’s allowance, and that certain contributory benefits such as maternity allowance will be allowed to count towards the income threshold. That is welcome as far as it goes, but it does not go very far. Otherwise, the Home Office considers that any indirect discrimination is proportionate to public policy objectives. We will see, but I imagine that this will be tested in the courts.

I find it repugnant that we are going to means test family life. Means-testing generally purports to target help on the needy and exclude the better off. This is a reverse means test that excludes the needy, as if people on low incomes have nothing to contribute to this country. The existing “recourse to public funds” rule is already designed to prevent the supposed burden on the taxpayer that we hear so much about. According to Liberty, and as my noble friend has already said, it is being replaced by a far blunter instrument.

The impact statement makes a virtue of the shift from a more discretionary approach, which it says is complicated for caseworkers to operate, yet in other areas of policy the Government favour more discretionary approaches and say that we have to get away from a one-size-fits-all approach. Indeed, as Liberty argues, the proposed changes as a whole contain an armoury of blunt instruments which, far from better reflecting Article 8 and the Immigration Rules, may well leave the rules in breach of it.

The changes reflect badly on a Government who claim to be the most family-friendly Government ever and who are supposed to be applying a family test to all their domestic policy decisions, as they suggest that some families are considered not to matter because of their immigration status and their poverty.

[Lord Avebury]

My Lords, this is a very important debate, focusing as it does on family and children’s rights. We have all heard from organisations such as the ones that have been mentioned, including by the noble Baroness, Lady Lister—Liberty, Bail for Immigration Detainees, and so on—and I shall rely on the evidence that has been given to them in my later remarks.

Since these changes were published, a further three sets of changes have appeared: HC 514 of eight pages, HC 565 comprising 56 pages and Cm 8423 with 276 pages. These latter two statements spell out in detail how decisions on leave to enter or remain are to be made, following the rulings of the Supreme Court in Alvi. To summarise, at the risk of oversimplification, Alvi said that statements in guidance and elsewhere that were not in the Immigration Rules, such as particular types of evidence that have to be submitted with an application, were unlawful because they had not been laid before Parliament as required by the parent Act. I realise that we are not talking about these subsequent statements of changes this evening, but obviously the legal advisers and their clients who are considering the effects of HC 194 will have to look at these other instruments as well. It would be astonishing if, given the length and complexity of all the changes taken together, there were not a steep rise in the number of applications rejected because of some minor omission or mistake.

My first example is from the organisation BritCits, which defends the interests of families who are affected by this set of changes. Rob is a British professional musician with a first-class degree in music. He has taught music and performed at concerts, has an eight year-old son and lives in a detached house in Huddersfield. He fell in love with and married an Indonesian woman and his wife applied for a spouse visa on 26 June. As a self-employed worker, he submitted three years of bank statements—originals and copies—and everything as requested, leaving no stone unturned. For over two months the message was that the application was under process at the British embassy, until early September when an e-mail arrived asking for the spouse to take an SELT English test. The e-mail indicated that if she did not submit this within seven days, the application would be rejected. Despite the short notice, the wife took the test and submitted it on time. A month later, they received a message saying that the application was refused because of the English test. Rob was amazed because his wife’s English was extremely good. On inquiry, they found that she had passed the reading, writing and listening requirements but had inadvertently omitted the speaking part. A lawyer advised them that the only remedy was to lodge a fresh application, at a cost of £900. The same thing happened to a friend of mine. It is not an uncommon experience for people to make a minor error and find that the whole application has been rejected. The UKBA does not give applicants a chance of remedying minor omissions of this sort.

The Motion says that the Government have not demonstrated that the specific minimum financial requirement is the most effective way to deliver fairness. That stricture can also be extended to the provisions dealing with savings. This may answer part of the question put by the noble Baroness, Lady Browning: I quote the example of a woman with three children applying to join her husband who would have to show evidence of savings of £62,500, which is well beyond the resources of most young families.

A four-page guide produced by UKBA tells applicants that they need to read Appendix FM-SE, another 26 pages of dense prose, which was added to the rules on 20 July, specifying what supporting documents may or not be supplied as evidence of compliance with particular financial requirements. The sums involved are undoubtedly substantial and they mean that many spouses and children who would have been able to satisfy the previous requirement—that they could be supported and accommodated without reliance on public funds—will now be denied entry. That is, indeed, the letter of government policy. The Migration Advisory Committee estimates that if the financial requirement in this set of rules had been in force in 2011, it would have excluded 45% of successful applicants, even though all those spouses and children were assessed as not needing access to public funds.

Asylum Seekers: Children

Baroness Lister of Burtersett Excerpts

Wednesday 23rd May 2012 Lords Chamber

Asked by

[Baroness Lister of Burtersett]

To ask Her Majesty’s Government what action they propose, as part of their review of the level of asylum support, to tackle severe poverty experienced by children in asylum-seeking families.

[The Minister of State, Home Office (Lord Henley)]

My Lords, asylum support rates are currently under routine review. Careful consideration is always given to the impact of rates on families with children. Any decision to adjust rates will also reflect the temporary nature of asylum support and the fact that asylum seekers have access to fully equipped accommodation, with utility bills paid. No person who has sought protection in the United Kingdom need be destitute while their application is decided.

[Baroness Lister of Burtersett]

My Lords, the Children’s Society and refugee organisations have reported alarming evidence of growing destitution among asylum-seeking children, young people and families, due in part to levels of financial assistance well below those of income support. Can the Minister explain how this state of affairs is compatible with the Government’s obligations under Article 27 of the UN Convention on the Rights of the Child and Article 11 of the International Covenant on Economic, Social and Cultural Rights, both of which uphold the right to an adequate standard of living?

[Lord Henley]

My Lords, I am aware of the report from the Children’s Society, and my honourable friend Damian Green and officials have met the society to discuss it. The noble Baroness asked for an explanation of the disparity between income support levels and the rates of support that we offer asylum seekers. The simple reason is that asylum seekers get all their accommodation and utility bills paid, and therefore it is not necessary to pay their support at 100%. The noble Baroness will also be aware—I think this is important—of how this disparity occurred. Until 2008 asylum rates were set at 70% of income support, and a decision was then taken by the Government of the time—who, as the noble Baroness will be aware, happened to be a Labour Government—to break that link. Since then, the levels have been set annually each year in accordance with what has been felt to be appropriate.

Queen’s Speech

Baroness Lister of Burtersett Excerpts

Tuesday 15th May 2012 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, I welcome the statement in the gracious Speech that the,

“Government will strive to improve the lives of children and families”.

To this end, like my noble friend Lady Massey of Darwen, I look forward to the strengthening of the powers of the Children’s Commissioner so as to,

“champion children’s rights and hold government to account for legislation and policy”,

to quote the Department for Education. I hope that this means that in the future, when the commissioner publishes a critical report drawing attention to the way in which a Bill such as the Welfare Reform Bill undermines children’s rights, the Government might pay more attention.

Also welcome is the promise of measures to,

“make parental leave more flexible so both parents may share parenting responsibilities and balance work and family commitments”.

Things have gone quiet on exactly what these measures will be since they were first proposed a year ago in the Consultation on Modern Workplaces, so perhaps the Minister could, when he winds up, tell the House when firm proposals will be published. What was most encouraging to me about this document was its acceptance of the case for a period of parental leave reserved for fathers on a “use it or lose it” basis, which the Nordic experience shows can increase fathers’ involvement in the care of their children. I hope that rumours that this proposal could be dropped are unfounded.

International experience has also shown that, unless the payment provides adequate wage replacement, it is unlikely to be economically viable for most fathers to take leave. At present, under a quarter of fathers in the UK take up their paternity leave entitlement. Moreover, if the commitment to shared parenting is to extend to low-income families, there needs to be a rethink on universal credit, which promotes the opposite by increasing the disincentive for second earners to work, along with a rethink on financial support for childcare, a point made by my noble friend Lady Hughes of Stretford.

However helpful the measures set out in the gracious Speech might be, there is no acknowledgment that the best way in which government can improve the lives of children and families generally is by ensuring adequate financial support, especially in the face of growing evidence of hardship. For instance, there has been a huge rise in the numbers turning to food banks. The Institute for Fiscal Studies has projected a big increase in child poverty, which will only partially be offset by the impact of the introduction of universal credit, and there is evidence that it is families with children, especially lone-parent families, who are the biggest losers from the cuts announced so far.

If the Government genuinely want to improve the lives of children and families, perhaps I may suggest that they should reverse the three-year freeze on child benefit. Inflation-proofing child benefit would do more to help the lowest-income working families than the proposed increase in tax allowances. The money goes direct to the person caring for the child and therefore is more likely to be spent on the child. Also, the Government should drop the widely criticised plan for means-testing child benefit, described only today by the Institute of Chartered Accountants as “seriously flawed”.

I suggest that the Government reverse the change in working tax credit rules that has meant a significant loss for over 200,000 of the “strivers” and “hard-working people” whom the Prime Minister prayed in aid six times in his speech in the debate on the Address, and for whom the advice to seek additional hours is a cruel joke in the current labour market. I also suggest that the Government call a halt to further cuts in social security, signalled in the Budget, which even the Secretary of State for Work and Pensions is now resisting, as did a number of his predecessors in the 1980s, some of whom now sit in your Lordships’ House. I hope that they might add their voices to those arguing against further cuts in social security, which will make life that much harder for families and children.

On a slightly different tack, and echoing my noble friend Lord Collins of Highbury, I hope that the silence on equal marriage rights for gays and lesbians does not mean that this has been filed away as too controversial. This is a matter of justice—a value highlighted in the gracious Speech—and it was to the Government’s credit that they appeared to be willing to build on the progress made by the previous Government in this area. Perhaps the Minister can tell your Lordships’ House what is going to happen when the consultation on this has ended. I hope that he can provide reassurance that this is not being filed away as too controversial and difficult.

In an earlier debate on the Address, the noble Lord, Lord Laming, reminded your Lordships’ House that the recent Hansard Society audit of political engagement drew attention to a public increasingly disengaged from and disenchanted with formal politics and government, and in the recent elections people were saying that politics has no connection with their lives. It is difficult to see what there is in this Queen’s Speech to reconnect them to the political process, which surely we must all regret.

International Women’s Day

Baroness Lister of Burtersett Excerpts

Thursday 1st March 2012 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, in this welcome celebration of International Women’s Day, we should take note of women’s contribution to society as well as the economy, particularly the large amount of unpaid care work that women still contribute, which underpins the economy and should be counted as such, as already stated by my noble friends Lady Pitkeathley and Lady Kinnock. Nevertheless, following the theme of the debate, I will focus on the obstacles that women and mothers face in contributing to economic growth through paid work.

The significance of women’s paid work to economic prosperity was brought out in a recent Resolution Foundation report, which has already been mentioned by my noble friend Lady Healy of Primrose Hill. However, it also points out that, compared to the better and best-performing countries, around 1 million women could be considered missing from the UK workplace. I want briefly to discuss three policy areas.

The first is the gendered division of labour. In my academic work on feminist perspectives on citizenship, I identify who does what in the private sphere of the home as critical to women’s opportunities for citizenship in the public sphere of the labour market and politics. As women still take the main responsibility for care and housework in the domestic economy, many make their contribution to the wider economy with one hand tied behind them, as the suffragette Hannah Mitchell put it so well many years ago. The Resolution Foundation argues that couples in the UK continue to adopt unusually unequal caring and working roles within the household, and would prefer to adopt more equal roles. It says that there is an opportunity for public policy to raise female employment by freeing couples to share roles in the home.

I suggest that public policy can help through the regulation of working time. A long-hours culture for men is harmful to gender equality for those with family responsibilities. A shorter full-time working week, combined with a range of flexible working opportunities and better pay and conditions for part-time workers would help. So, too, would a reformed parental leave system that followed the Nordic model—which appears so fashionable at present—of earmarking a period of parental leave for fathers on a “use it or lose it” basis without penalising mothers. This, which is often called the “daddy quota”, is typically leave of one or two months. Cross-national analysis suggests that Nordic fathers typically spend more time on childcare than other fathers. While we cannot be sure that that is attributable to parental leave, there is Nordic research that indicates that male use of parental leave has a positive effect on the gendered division of labour and the father’s subsequent involvement in childcare. This also relates to the point made by the noble Baroness, Lady Bottomley, about men’s involvement in primary schools. Therefore, I very much welcome the Government’s support for the idea of a daddy quota in their consultation on modern workplaces. I hope they will not be discouraged from pursuing it by those who argue that it would somehow be detrimental to business.

The second related obstacle is childcare, already discussed by my noble friends Lady Healy and Lord Davies of Abersoch. The OECD has highlighted the extent to which unusually high childcare costs represent a barrier to dual-earner families in the UK and, of course, to lone parents. Unfortunately, the cut in help with childcare costs through the tax credit system, at a time when the Daycare Trust shows that these costs are spiralling, raises the barrier further, despite the welcome planned extension to those doing mini-jobs.

Thirdly and finally, the cutback in support for childcare contributes to a deterioration in work incentives for second earners, the majority of whom are women. In low-income households, second earners’ work incentives will also be badly hit by the introduction of universal credit. It is supposed to improve work incentives, yet the policy briefing of the Department for Work and Pensions shows how, even without taking account of childcare costs, most second earners on universal credit will face a reduced incentive to take or stay in paid work, and about three-quarters will face a reduced incentive to improve their earnings once in work. We raised this issue in the passage of the Welfare Reform Bill, pointing out that universal credit could mean a shift back to a more traditional male-breadwinner model and weaken the labour market position of women. As the Women’s Budget Group has pointed out, even a fairly short period out of the labour market can mean the depreciation of women’s human capital and future earning power. The noble Lord, Lord Freud, acknowledged the importance of the issue but said that it was not a priority. Therefore, I hope that the Minister might talk to him about how the impact of universal credit on second earners might be monitored.

To conclude, I suggest that there is no point in your Lordships’ House taking note of women’s contribution to economic growth if we do not also identify the obstacles to that contribution and how they might be overcome. This has implications for a number of government departments and I hope that the Minister will pass on the message as well as the many powerful messages that have come from noble sisters and brothers today.