Immigration Bill (Twelfth sitting)

Emma Lewell-Buck Excerpts

Thursday 5th November 2015 Public Bill Committees

[James Brokenshire]

Obviously we are looking at schedule 6 provisions and the changes under the new section 95A support mechanism within schedule 6. The regulatory impact assessment sets out our best analysis of the overall savings to the public purse, and it would be invidious for me to try to provide percentage assumption rates.

This is about departures and encouraging people to leave. It is also about section 95A support where there are barriers to removal. That is likely to be where there is no documentation or difficulty in obtaining it to facilitate departure, or medical issues. Let us not forget that, in conducting its duties, the Home Office will have obligations under section 55 of the Borders, Citizenship and Immigration Act 2009 which it will need to factor in when taking decisions.

[Mrs Emma Lewell-Buck (South Shields) (Lab)]

When referring to the impact assessment, the Minister said the cost was around £32 million. Is that not a drastic underestimation? I do not believe that takes into account the local authorities’ statutory duties under homelessness legislation, the Children Act 1989 or the principles of the Care Act 2014. Will the Minister please clarify?

[James Brokenshire]

I think the hon. Lady is alluding to some of the points I discussed concerning schedule 3 of the 2002 Act: the Human Rights Act assessments that local authorities need to undertake. We seek to continue our engagement with local authorities about the new burdens assessment.

The published impact assessment will be revisited and republished, if required, in relation to further analysis of the new burdens work. Although we have published our regulatory impact assessment based on the evidence provided at the date of the Bill’s publication, it will continue to be reviewed in the light of further discussions with local authorities.

It is not that our minds are closed on that. Rather, having given the best assessment of the savings that the hon. Lady has identified, we will keep this matter under examination. If the measures led to, or risked leading to, migrants being supported by local authorities when they would previously have been supported by the Home Office, we have made it clear through the consultation that we would wish to discuss and address those impacts and their financial implications with local authorities and the devolved Administrations in accordance with the new burdens doctrine.

[Mrs Lewell-Buck]

I think what the Minister is saying is that the £32 million is an underestimate.

[James Brokenshire]

Not necessarily.

[Mrs Lewell-Buck]

I am struggling with this. The Minister says that conversations are going on with local authorities, but should those conversations not have happened before the legislation was put in place? It seems a bit back to front to me.

[James Brokenshire]

No. As always with legislation, we have to have it in place and, as a result, that sometimes provokes further discussion. We have been running a consultation, which we published earlier this week, and the hon. Lady will find in it the response and the feedback, as well as some of the points that we have said we will reflect on further. That is the right and appropriate way in which to deal with the matter. We judge the provisions to be appropriate to the policy intent that I have outlined, so the clause should stand part of the Bill.

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The Government should not be afraid of the appeals process. If someone is not entitled to support, they will not receive it. The amendment would simply ensure that the right of appeal exists for those left in penury by the potential wrongful removal of support, and I urge hon. Members to accept it.

[Mrs Lewell-Buck]

As always, it is a pleasure to serve under your chairmanship, Mr Owen. I will speak briefly to amendment 222, which would grant a right of appeal to those who are refused support by the Home Office, or whose support is discontinued. The right to appeal is important both for the individual concerned and because of the difficulties that the withdrawal of support for failed asylum seekers will create for local authorities, about which hon. Friends and I have already spoken.

It is necessary to set out the effect of clause 34 and schedule 6, to underline exactly why it is vital to have a right of appeal. The schedule as it stands will inflict destitution on families with children. Whereas in the past the Secretary of State could provide accommodation and support to help families survive, the new mechanism will impose a burden of proof on asylum seekers. They will need to show that they are destitute and that there is a genuine obstacle preventing them from leaving the country.

[James Brokenshire]

The hon. Lady has just said that the schedule will have an impact on asylum seekers; it will not. The mechanism in it relates to those whose asylum applications have been determined and have been found to have no grounds. I make that distinction because I want to underline that support is there for those who are having their asylum claims assessed.

[Mrs Lewell-Buck]

I thank the Minister and apologise for my semantics.

We do not know what the “genuine obstacle” that must be preventing people from leaving the country means, because it has yet to be defined in regulations. We are potentially talking about denying support to extremely vulnerable families, so the House should be able to discuss and vote on that in primary legislation. My hon. Friend the Member for Rotherham made that point well in our evidence sessions. That definition will effectively define the scope of support given to people, and it could leave families homeless and destitute. We should be debating that definition now. It is not something to be nodded through the House at the whim of the Secretary of State.

[Simon Hoare (North Dorset) (Con)]

I do not know whether the hon. Lady was as struck as I was by the evidence sessions. There was only one organisation—I cannot for the life of me remember which it was—that actually prepared people who had gone to see it for a potential answer of no to their application. Everybody else just seemed to be keeping people’s hope alive and burning brightly. Does she agree that if more organisations prepared people for a no, people would be able to plan ahead and think about that, rather than wake up one morning and find, “Gosh, that’s a bit of a surprise”?

[Mrs Lewell-Buck]

I think we have different recollections of the evidence sessions. I do not recall just one organisation doing that.

[Sarah Champion (Rotherham) (Lab)]

I agree with my hon. Friend; I did not hear only one organisation say that. I will say that I used to run a children’s hospice and, even when people were told the reality of what was going to happen, they always had hope. Even if it is to someone through the entire process, not everyone listens to reality.

--- Later in debate ---

[Mrs Lewell-Buck]

I believe it is clear that whatever happens, the Government intend to introduce stricter conditions than currently exist for supporting failed asylum seekers, to try to encourage people to leave the UK more quickly once an asylum claim has failed. There is one obvious problem with that approach, which is that the evidence shows that it simply does not work. I will return to that when we discuss later amendments, but for the moment it is enough to say that cutting off support will make families less, not more, likely to engage with the Home Office and leave the UK voluntarily. Denying people support will be counterproductive if the Government aim to increase the number of voluntary returns. If those are the consequences of withdrawing support, having a proper right of appeal becomes even important.

The reason to support the amendment is simple. The right of appeal is needed because on far too many occasions, initial decisions are incorrect. Nearly two thirds of appeals are successful, and that amounts each year to hundreds of cases or, to put it another way, hundreds of people and families. When new section 95A comes into force, those people will be wrongly deprived of food and shelter.

The Home Office’s assessments of destitution are very poor. The asylum support tribunal overturns a high proportion of decisions; in 2011, the figure was an incredible 82%. If those people had not had a right of appeal, how would they have accessed the support that they were entitled to? How will they be able to do so in future? Without a right of appeal, the only recourse for those individuals would be judicial review, which is no substitute for a proper right of appeal. Judicial review, as we all know, requires time and money, which are things that people whose asylum claim has failed simply do not have.

Inevitably, hundreds of people who will have every right to support under new section 95A will be unable to access it. I cannot accept that the Minister and the Government are comfortable knowing that hundreds of people who are legally entitled to support will be left with nothing, but that will be the effect of schedule 6 if it is not amended. Ultimately, the debate is about the quality of decision making. Are the Government prepared to accept poor decision making and the injustices that stem from it? If they are not, they should accept our amendment.

[Sarah Champion]

I, too, want to speak in support of amendment 222. Throughout the Bill, the Government propose various measures to remove the right to appeal against Home Office decisions. Reading the Bill, one cannot but conclude that the Government are fundamentally opposed to their decisions being challenged in anything approaching an independent manner.

The consequences of the decision to deny support are potentially catastrophic. A migrant who is denied support has no right to work and no right to rent. Their bank account is closed and their assets are frozen. The choices that people in that position face are bleak. The Bill acknowledges the need to support refused migrants who have genuine obstacles to leaving the UK, but it has not been made clear what a genuine obstacle will be, even though my Opposition colleagues have been pushing for clarity. My hon. Friend the Member for South Shields has just raised the matter yet again. What is clear, however, is who decides whether the obstacle exists. It is the Home Office, without scrutiny, oversight or effective challenge. That is bad practice in any process, but in the light of the Home Office’s frankly miserable record of making the correct decision the first time, it will be disastrous.

There is currently a right of appeal on decisions made about section 4 support. Statistics from the asylum support tribunal should make for uncomfortable reading for the Government, because 62% of appeals between September 2014 and August 2015 were successful. The claims were allowed, sent back to the Home Office for a fresh decision or withdrawn in acknowledgement of a flawed decision.

The Home Office has a similarly poor record in assessing destitution. In 2014-15, the Asylum Support Appeals Project represented 168 asylum seekers whom the Home Office had denied support on the grounds that it did not believe that they were destitute. Of those decisions, 70% were overturned on appeal. Such figures cannot but lead us to the conclusion that there is a serious problem with Home Office decision making. During the Committee’s evidence sessions, witnesses offered various explanations for those failings, from inadequate training to overly complex immigration regulations, and Ministers have given other examples. Whatever the reasons, however, when nearly two thirds of decisions are being overturned on appeal, something needs to be done to address the problem.

The Government’s solution in the Bill and in previous immigration legislation is indeed novel: simply abolish the right to appeal. That will certainly result in far fewer Home Office decisions being reversed, but it is hardly a solution that will in any way contribute to better decision making. Children and families will be badly affected by the loss of appeal rights. Section 95 support will no longer continue for families with children at the end of the asylum process. That poses a serious risk of leaving children destitute with no judicial oversight, as was clearly detailed by my hon. Friend the Member for South Shields.

Given the high proportion of Home Office decisions that will be overturned by the tribunal, the lack of appeal rights will inevitably transfer the responsibility for supporting destitute children to local authorities. We have heard from the Minister that the Department is in good consultation with local authorities, which is great, but the reality is that children who should be being supported by the Home Office will instead have to rely on overstretched local authority budgets to meet those most basic needs.

Much has been said of the need to ensure that our immigration system is one in which the public can have confidence. However, the way to achieve that confidence is not to pander to sensationalist headlines, but to ensure that most of the time the Home Office gets it right first time. Abolishing the right to challenge poor decisions and forcing people into the most abject poverty will not in any way contribute to achieving a goal that I am sure we all share.