Immigration Bill (Fifteenth sitting)

Chloe Smith Excerpts

Tuesday 17th November 2015 Public Bill Committees

[James Brokenshire]

I welcome you back to the Chair, Mr Bone, for our final day of deliberations on the Bill.

The new clause and new schedule 3 make changes to the availability of local authority support in England for certain categories of migrants. The new schedule is in part a companion to schedule 6, which reforms arrangements for the provision by the Home Office of support to failed asylum seekers and other illegal migrants, which the Committee has already considered. As I said during our debates, we continue to consult with local authority colleagues, in particular on the detail of the new support arrangements and how they will sit alongside other provisions. We are clear that we want to encourage and enable more migrants without any lawful basis to remain in the United Kingdom to leave in circumstances when they can do so.

In particular, we have been discussing with local government colleagues whether changes to schedule 3 to the Nationality, Immigration and Asylum Act 2002, which controls access to local authority social care for migrants without immigration status, would be helpful. Our public consultation on asylum support highlighted concerns that the framework provided by schedule 3 to the 2002 Act and associated case law was complex and burdensome for local authorities to administer and involved complicated assessments and continued litigation to establish what support should be provided in what circumstances. The Committee heard similar concerns from local authority colleagues in their oral evidence to us on 22 October.

We have listened carefully to what local authority colleagues in England told us about the scope for simplifying and strengthening some of those provisions. Our response is the amendments made by the new schedule to schedule 3 to the 2002 Act, making two key changes. First, new schedule 3 simplifies the way in which local authorities in England assess and provide accommodation and subsistence for destitute families without immigration status. It enables local authorities to continue to provide under section 17 of the Children Act 1989 for any other needs of a child or their family to safeguard and promote the child’s welfare. Secondly, the new schedule prevents adult migrant care leavers who have exhausted their appeal rights and have established no lawful basis to remain here from accessing local authority support under the 1989 Act. It makes alternative provision for their accommodation, subsistence and other support before they leave the UK.

Immigration is a reserved matter and, as we have debated previously, immigration legislation—through schedule 3 to the 2002 Act—already provides a UK-wide framework for migrants’ access to local authority services. We therefore have it in mind to seek to amend the Bill at a later stage to extend those provisions to the rest of the UK once we have had further dialogue, which is in hand, with the devolved Administrations.

Turning to the main provisions of the new schedule, paragraph 7 of new schedule 3 inserts a new paragraph 7B in schedule 3 to the 2002 Act. It provides a new simplified definition of a person without immigration status who will generally be ineligible for the forms of local authority support listed in paragraph 1(1) of schedule 3 to the Act. It replaces the convoluted immigration status definitions in paragraphs 6 to 7A of schedule 3 to the Act.

Paragraph 8 inserts a new paragraph 10A in schedule 3 to the 2002 Act, under which regulations will be made by the Secretary of State, subject to parliamentary approval, to enable local authorities to provide for the accommodation and subsistence needs of destitute families without immigration status in circumstances in which case law and human rights considerations may well mean that the local authority should provide support.

Such circumstances include where, first, the family has an outstanding specified immigration application or appeal—in a non-asylum case for which Home Office support is not provided. Secondly, the family might have exhausted appeal rights and not failed to co-operate with arrangements to leave the UK. They must also not qualify for the support available from the Home Office under proposed new section 95A of the Immigration and Asylum Act 1999, to be inserted by schedule 6 to the Bill, for failed asylum seekers with a genuine obstacle to departure at the point their appeal rights are exhausted. Thirdly, the provision of accommodation and subsistence support must be necessary to safeguard and promote the welfare of a dependent child. That will enable local authorities to take any action they consider necessary to prevent destitution pending the resolution of the family’s immigration status or their departure from the UK.

Paragraph 4 will insert a new schedule 3A to the 2002 Act, which will mean that accommodation and subsistence support will be provided to a destitute family under the regulations made under new paragraph 10A of schedule 3 rather than under section 17 of the Children Act 1989. As we discussed in respect of schedule 6, there is no general obligation on local authorities to accommodate illegal migrants who intentionally make themselves destitute by refusing to leave the UK when it is clear that they can do so. Schedule 3 to the 2002 Act already provides that a range of local authority social care is unavailable to failed asylum seekers and others who remain in the UK unlawfully except when, following what can be a complex and burdensome assessment process, the local authority decides that the provision of such support is necessary to avoid a breach of human rights or on the basis of other exceptions for which schedule 3 provides.

The new schedule will simplify the complex human rights assessment process, much of which is concerned, in line with case law, with immigration matters that are for the Home Office and the courts to determine, which the local authority has to undertake before it can assess and provide for the family’s social care needs. The provisions embody a sense of simplification.

The main social care needs of families without immigration status who seek local authority support are for accommodation and subsistence to prevent destitution. A June 2015 study by the Centre on Migration, Policy and Society at Oxford University on local authority support for such families—I referred the Committee to this in my letter that notified colleagues of the amendments—found that the welfare needs of the children at the point of referral to the local authority were overwhelmingly for accommodation and subsistence.

The new schedule will also ensure that section 17 of the 1989 Act will remain available to the local authority, together with its other powers and duties under that Act to deal with any other needs of the child or their family that the local authority considers must be met to safeguard and promote the child’s welfare while the family’s immigration status is resolved or, where it is established that they have no lawful basis to remain here, before they leave the UK. The local authority’s duty to provide for the child’s schooling and to address any specific educational needs will also be maintained.

The reforms to schedule 3 to the 2002 Act will simplify the basis on which local authorities deal with destitute families without immigration status and maintain essential safeguards. We are satisfied that they are compatible with our obligations under the UN convention on the rights of the child and article 3 in particular, which requires that children’s best interests are a “primary consideration” in all decisions affecting them. We are also satisfied that they are compatible with section 55 of the Borders, Citizenship and Immigration Act 2009 under which the Secretary of State must have regard to

“the need to safeguard and promote the welfare of children who are in the United Kingdom”

when carrying out immigration functions.

Paragraph 2 of the new schedule amends paragraph 1(1) of schedule 3 to the 2002 Act so that adult migrant care leavers who have exhausted their appeal rights and who have established no lawful basis to remain here are prevented from accessing local authority support for care leavers under the 1989 Act. Nearly all of those adult migrants are former asylum-seeking children whose asylum and any other human rights claims have failed. The provisions in the 1989 Act are geared to support the needs and onward development of young adults leaving local authority care whose long-term future is in the UK. Those provisions are not appropriate to the support needs, pending their departure from the UK, of adult migrants who the courts have agreed have no right to remain here.

Paragraph 8 will insert a new paragraph 10B in schedule 3 to the 2002 Act under which regulations will be made by the Secretary of State, subject to parliamentary approval, to enable local authorities to provide for the support of adult migrant care leavers who have exhausted their appeal rights in respect of their asylum claim but have an outstanding specified immigration application or appeal and are destitute; or who have exhausted their appeal rights and do not qualify for Home Office support under the new section 95A of the 1999 Act because there is no genuine obstacle to their departure from the UK, but to whom the local authority is satisfied that support needs to be provided. That will enable the local authority to ensure that support does not end abruptly and that there can be a managed process of encouraging and enabling their departure from the UK.

Paragraph 4 inserts new paragraphs 3B and 3C in schedule 3 to the 2002 Act, which means that support will be provided to the adult migrant care leaver under the regulations made under new paragraph 10B of schedule 3, or under new section 95A of the 1999 Act, rather than under the Children Act 1989. By virtue of paragraph 11 of schedule 3, the new regulations will enable local authorities to provide such other social care support, beyond accommodation and subsistence, as they consider necessary in individual circumstances.

We are confident that the reforms to schedule 3 to the 2002 Act will simplify how local authorities deal with destitute families without immigration status, will make more appropriate provision for support to adult migrant care leavers who have not established a lawful basis to remain in the UK and will maintain essential safeguards. The provisions in the new schedule will, like those in schedule 6 to the Bill, be subject to the new burdens assessment of the final package of changes to which we have committed.

We will continue to work closely with local authority colleagues to look at other ways in which we can improve the framework within which they work with migrants without immigration status. All are clear that we want to work together to encourage and enable more migrants who have no right to remain here and who face no barrier to their departure to leave the UK. The new provisions will help ensure that we have the right platform in place for that work.

[Chloe Smith (Norwich North) (Con)]

Obviously, since the Committee last met we have seen the appalling attacks in Paris. It will not have escaped the Minister’s attention that it is considered possible that one of the attackers entered Europe as a putative refugee. Does the Minister agree with me and many of my constituents that the work we are doing with the new clause and the new schedule, and other parts of the Bill, will simplify, strengthen and prioritise the support we can give to those refugees who need it, rather than those who may be seeking to abuse the system? He surely would agree that that is important work in light of those attacks.

[James Brokenshire]

I note my hon. Friend’s comments. She will obviously have heard the Home Secretary’s statement yesterday, and the Prime Minister will make a further statement to the House today. It is important that we do not speculate on what may or may not have happened in the appalling events that we have all seen in the past few days. We stand in solidarity with the French people at this extraordinarily difficult time. We stand against those who would seek to divide us and destroy our very way of life. We all have a common cause in standing with the French people and all those who are against Daesh and those extremist organisations that seek to threaten our very way of life.

In general terms, my hon. Friend has highlighted the issue of any threat that may exist with those seeking to come to Europe through an asylum-based route. We need to analyse the facts carefully as to what has or has not happened, but it is equally important to underline the stringent checks that we carry out in this country on those who are claiming asylum and how we believe it is essential to strengthen the screening and identification of those arriving on the shores of Europe. That is why we support the work of Frontex, the EU external border agency, in its work on debriefing those who are picked up. We also support such things as the Hotspots initiative in Italy, Greece and other countries, which ensures that those who are arriving are processed speedily and effectively.

No doubt my hon. Friend will have heard the Home Secretary’s comments yesterday on the work that is undertaken to ensure that we are appropriately screening those arriving in this country through our vulnerable persons relocation scheme. All the steps we are taking are part of our focus on the security of this country, but equally they are about ensuring that those coming to this country who are fleeing persecution and in need of support are welcomed by us and given the support that they require. We believe that that approach is entirely consistent with the proposals in the Bill and is reflected in the new clause and new schedule.