Immigration Bill

Earl of Sandwich Excerpts

Wednesday 3rd February 2016 Lords Chamber

[Lord Horam (Con)]

My Lords, I will make a brief contribution to this debate based on my own experience as the Member of Parliament for Orpington for 18 years. My experience may be the same as or different from that of other Members of Parliament in the other House, but I had so many immigration cases regularly that one out of my three caseworkers was solely devoted to dealing with them comprehensively. By the way, I think the people in these cases got a pretty good service. I am not sure that a lot of people could devote so much casework time to one particular aspect of what an MP has to face.

None the less, I want to address the question of Clause 34, rather than Amendment 227 in the name of the noble Lord, Lord Rosser. However, while I understand the argument put forcefully by the noble Lord, Lord Ramsbotham, about the guarantee you get from having something in the Bill, my experience in relation to the handling of children is that they were handled exceptionally carefully. Whenever there was a family involved, the Home Office took particular trouble to do it properly. I felt that it pursued its statutory obligations very fully.

On the wider issue of Clause 34, my own experience was that the really difficult problem in dealing with immigration cases, whether they were economic migrants or asylum seekers, was the length of time the whole appeals procedure took. As the noble Lord, Lord Ramsbotham, said, it is byzantine in its complexity. That is the truth of the matter. That very complexity and the number of possible appeals you could make—tier 1, tier 2 and then appeals beyond that—meant that cases went on not just for several months but for several years and individuals, whatever the eventual result of the case, were placed in a situation of great difficulty, resulting very often in mental problems and severe depression. These cases could go on for five, six or seven years before they were eventually resolved. This was the really big problem in dealing with immigrants.

Will this clause as it is improve that? Will it speed things up? We have evidence from the new procedures for dealing with visa applications, for example, on the hub and spoke principle brought in by the last Government, whereby visas were dealt with in a particular area—let us say Dubai for the whole of India, for example—and things were speeded up. Those measures were brought in so that visa applications could be dealt with more rapidly than hitherto. Great experience was developed in dealing with the paperwork, as opposed to seeing people face to face, which ordinary common sense would suggest is a better procedure than dealing just with paperwork—but none the less, that is what was developed in the Foreign and Commonwealth Office as a means of dealing with these things more expeditiously than would otherwise be the case. If my noble and learned friend can tell me what experience and evidence we have that Clause 34 would speed things up, I would be in favour of it, because the real problem was the length of time that appeals took in immigration cases.

[The Earl of Sandwich (CB)]

My Lords, in the interests of speeding things up, I shall be very brief in putting a question to the Minister about absconding. There is an overlap again between these groups of amendments. The relationship between support and appeals is very critical, and I do not believe that the Government have quite got it right; they are trying hard but not succeeding. We are discussing asylum seekers facing genuine obstacles to leaving the UK; the Government want to remove their right of appeal against decisions to withhold or discontinue support. Does not that relate to Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004? My understanding of the Section 9 pilot is that nearly one-third of the families disappeared to avoid being returned to their country of origin. The rate of absconding was 39% for those in the Section 9 pilot but only 21% in the comparable controlled group, who remained supported. Can the Minister comment on those figures, because they would appear to lend credence to the amendment?

[Lord Green of Deddington (CB)]

My Lords, perhaps it is time for a different point of view on this subject. I have no difficulty with Amendment 227, which of course concerns children, but I would like to speak in favour of Clause 34 in respect of cases that do not involve children. In such cases, the aim should be to confine the application of the clause to vexatious appeals, which would help to speed up the process, as the noble Lord, Lord Horam, pointed out.

Much of the discussion in this Committee has focused on the rights of applicants at various stages of the process. That is entirely understandable, but should not we also have regard to the need for a swift and effective asylum system? That would surely be in the interests of genuine asylum seekers, who make up about 50% of those who apply, and in the interests of maintaining public support for the whole system. This clause is germane in that context. It is in effect the extension of a procedure that has already been applied to foreign national offenders, as has been mentioned already. I entirely accept that the people whom we are talking about are not offenders and are not usually of the same character, but I believe that the extension of the removal of non-asylum cases should be seen in this wider context. It is essential that we should break the link for those who are in reality economic migrants between setting foot in the UK and remaining indefinitely.

At present, removals of immigration offenders—not foreign national offenders—are running at a very low level, of only about 5,000 a year. That has to be tackled if we are to break this link, which I think is increasingly understood as you look at southern Europe and so on. We have to find ways of giving protection to those who deserve it and of removing those who do not. This clause is a step in that direction.

--- Later in debate ---

[Baroness Lister of Burtersett]

My Lords, I oppose the Questions that Clause 37 and Schedule 8 stand part of the Bill and support Amendment 230. I note in passing my support for Amendment 230ZB—I was going to say that the history of vouchers and the Azure card is not a happy one, but that is exactly the phrase used by the noble Baroness, Lady Hamwee. I am a bit worried after the confusion about who said what on the previous group that we are somehow seen as interchangeable; I hope not—from both sides, I am sure.

At Second Reading, I warned of the exploitation that could result from Clause 37 and Schedule 8. To show destitution will not now be sufficient on its own to qualify for assistance. It is clear from past research conducted by organisations such as the Children’s Society and the Centre for Migration Policy Research for Oxfam that destitution can all too easily lead to exploitation—notably of women and children—of various kinds. In particular, it can lead to economic exploitation, which the Bill is supposed to reduce, as destitute asylum seekers are pushed into the shadow economy, sometimes earning as little as £1 an hour in deplorable conditions, and sexual exploitation. This can involve both commercial sex work and transactional sex in return for shelter and basic subsistence.

Children’s Society practitioners report that they see many such ambiguous and all-too-often abusive transactional relationships. As one practitioner observed:

“These women are absolutely at the mercy of other people because they are powerless and have nowhere else to go”.

Previous Children’s Society research revealed how destitute children and young people, too, are vulnerable to abuse and sexual exploitation.

Prospective destitution is in effect being used to incentivise voluntary return—the language of incentives is the Government’s, not mine. The thinking that it betrays was challenged by a Centre for Social Justice working group on asylum a few years ago, and by evidence from many organisations working with asylum seekers—at Second Reading, I cited that from Women for Refugee Women. Not one of 45 women it spoke to in a 2012 study felt able to contemplate return, despite facing destitution. That still held true when they spoke to 30 of those women a year later. It concluded that parents who fear for their own and their children’s safety will not be swayed to return to their home countries by the threat of being made destitute or actual destitution.

Back in 2007, the Joint Committee on Human Rights made it clear, with reference to piloting of the Section 9 scheme, that,

“using both the threats and the actuality of destitution and family separation is incompatible with the principles of common humanity and with international human rights law and … it has no place in a humane society”.

Serious human rights concerns about the proposals in the Bill have been raised by the Equality and Human Rights Commission, with reference to the ECHR and the UNCRC, and the Northern Ireland Human Rights Commission, which has deemed them retrogressive concerning rights contained in the International Covenant on Economic, Social and Cultural Rights.

The only real concession in response to the consultation, other than to local authorities, has been to extend the grace period for families to 90 days, as we have heard. This extension is very welcome. However, there seems to be a sting in the tail, as it now appears that an application for Section 95A assistance will normally be possible only during the grace period while already claiming Section 95 support, and that 90 days will represent an absolute cut-off point. This has caused considerable concern among organisations working with asylum seekers.

Two particular questions arise. I apologise if I am repeating questions posed by my noble friend Lord Rosser, but I am not absolutely sure that they are the same questions because I did not quite take it all in. I do not think that there is any harm, because it is important that these questions are addressed. I should be grateful if the Minister would do so when he replies. First, will he provide an assurance that the regulations that permit applications outside the grace period will include changes of circumstance such as when asylum seekers who were previously supported by friends or family become destitute or encounter a barrier to return after the grace period is over? If the 90 days prove to be too short for families to complete the family returns process—we heard already that the Home Office’s own evaluation of the process shows that three out of five families take longer than three months—what discretion will there be for support to be extended for families still going through the process?

Welcome as the Home Office’s recent note was in providing more information, it is deeply unsatisfactory that it does not contain the level of detail about the regulations that we need to scrutinise these provisions properly. Nor does it indicate the level of support that new Section 95A will provide. Will it be the same as that provided by Section 95? Given the savage cuts to support for children that we debated last year and to which the noble Baroness, Lady Hamwee, already referred, surely there can hardly be less than that level of support. What is the Government’s response to the Delegated Powers Committee’s recommendation that the regulation should be subject to affirmative not negative procedures?

On Amendment 230, it is simply not credible to maintain, as Ministers do, that an appeal is not necessary because whether or not there is a genuine obstacle to leaving is a straightforward matter of fact. As Still Human Still Here legitimately asks, if such decisions are really so straightforward, how come the Home Office so often gets them wrong? As it points out, the reality is that these types of support decisions are complex, with caseworkers having to assess both whether someone is destitute and faces a genuine obstacle to leaving the UK. During 2014-15, it represented 168 asylum seekers deemed not to be destitute and in 70% of cases the Home Office decision was overturned. A similar proportion of cases was overturned or remitted in the 89 cases it represented where the appeal was on grounds of fitness to travel or reasonable steps being taken to return.

Such statistics demonstrate that facts are not just facts but have to be interpreted and evaluated, and a judgment made. All too often, it would appear that the Home Office is making an erroneous judgment. Yet in future there will be no tribunals, either to ensure justice or to provide some kind of check on Home Office decision-making, which is likely to become even worse as a result. The Home Office contends that appeals win only because of the late submission of evidence, but that is not supported by the analysis conducted by ASAP. Has the Minister seen that analysis and would he care to comment on its findings?

Important human rights and rule of law issues are at stake here. It is not good enough to say that judicial review remains as it would be very difficult to use JR in such cases. The tribunal system provides a more practical, efficient and fair means of enabling vulnerable people in pretty desperate straits to challenge decisions they believe to be wrong. The stakes are so much higher now than even under the present system. It would be a grave injustice if we were to allow the decision to remove basic appeal rights to stand.

[The Earl of Sandwich]

My Lords, it is a pleasure to follow the noble Baroness, who spoke with such sincerity. I support these amendments in the name of the noble Lord, Lord Rosser, and others. I am grateful to the noble Lord for mentioning absconding again. I hope we will get an early answer on that.

Amendment 230 would include a right of appeal against the decision not to provide support. There is a small army of campaigners on this matter out there, some of them in the House of Commons where this was a major issue in the last debate on the Bill. One of the campaigners was called Iain Duncan Smith. The Minister may already know that in a 2008 report, Mr Duncan Smith said that the then Labour Government were using forced destitution as a means of encouraging people to leave voluntarily. He said that it was a “failed policy”; only one in five left voluntarily. The same Home Office is again aiming to squeeze Section 95 and Section 95(9A) on support and to narrow down the eligibility of families of so-called refused asylum seekers, although I have never liked that term. That may even prevent, as the noble Baroness, Lady Hamwee, said, local authorities supporting children and families under Section 17 of the Children Act 1989. We were debating this in October, as the noble Baroness said, under the Motion to annul, and arguing whether £5 was enough for a person to live on. If you take into consideration food and clothing—shoes, for example—it is not. There are some sad examples of mothers and children facing destitution, and worse. These are taken from serious case reviews, which I shall not relate now, but they convinced me that the Government have to think again.