Immigration Bill (Fourth sitting)

Keir Starmer Excerpts

Thursday 22nd October 2015 Public Bill Committees

[The Chair]

Before we start, do not be surprised if the Minister asks questions, because he can at this session. It is helpful if you speak into the microphone, because the acoustics are not always so good in this room.

Mr Starmer, do you want to start?

[Keir Starmer (Holborn and St Pancras) (Lab)]

Q 242 Thank you, witnesses, for coming in and helping us this afternoon. I want to start with the provisions in the Bill to remove support from those who have exhausted their asylum process. Until now there has been an ability to remove the support, but it has been rarely used. There was a pilot 10 years or so ago and it has been used rarely since then. Can you give the Committee your view on why the pilot was unsuccessful? I think it involved about 116 families and the net result was that very few, if any, of those families went voluntarily, which was the intended purpose. There was a possibly unintended consequence, which was that very many more went off the radar, and all sorts of other consequences followed. So can you give us your own view as to why you think that pilot was so unsuccessful?

Councillor Simmonds: I am happy to lead on this. I think others may have technical comments about aspects of it. It is pretty clear that quite a tangled web of legislation needs to be gone through before support can be removed. Once it is removed in the formal sense, there are a lot of organisations that exist to provide support to families for the time in which they remain in the UK. There will pretty much always be, in my experience, other legal avenues that people can explore should one particular avenue be closed down.

The key concern that local government has is that the evidence from those pilots was extremely clear in that the withdrawal of support does not result in a significant incentive for people to leave the UK. The conclusion that follows is that we should not expect that withdrawal of support in future would result in any significant increase in the numbers departing. We would expect that the cost burdens, whether they fall on local authorities or on civil and voluntary groups in the wider sense, would remain.

Paul Greenhalgh: Barnardo’s did an evaluation of the pilot programme. Not only did people not leave but 35 families out of the 116 families went missing; in a sense, they decided to go underground. Some of those families abandoned their children to the care of local authorities, and that pilot led us to question the assumptions about behavioural change that underpin some aspects of the Bill.

[Keir Starmer]

Q 243 May I clarify one thing I think you just said? Did you say that a number of parents abandoned their children to the care of local authorities, so their children went into care?

Paul Greenhalgh: They abandoned their children, so those children were taken into care by the relevant local authorities. I am not sure how many families that applied to, but it applied to some of those 35.

Henry St Clair Miller: The only thing I would add is that people who were around at the time felt that there was a lack of Home Office engagement with the families in that process up to the point when support was withdrawn. Perhaps engagement was not of the nature necessary for families to know their options and understand the consequences of not engaging with Home Office requirements. Should the Bill go ahead, one of the unknowns is exactly what Home Office engagement with the families would be. We might see again the likelihood of asylum support being withdrawn at the end of the process. We want to know exactly what that engagement will be to minimise the risk described by my colleagues.

[Keir Starmer]

Q 244 Back in 2008, Mr Duncan Smith—obviously he is now in a different role—described it as a “failed policy”. That may explain why it has not been used since the pilot. Do you disagree with that conclusion?

Councillor Simmonds: It manifestly did not work at the time. Therefore, if we were to revisit that as an approach, we would need to think very carefully about how it could be made effective. That would require a different approach on many, many levels.

Paul Greenhalgh: I agree with that comment. We have been working with the Home Office to explore areas in which we wonder whether further safeguards might make such an approach more effective.

[Sarah Champion (Rotherham) (Lab)]

Q 245 On that point, Mr Greenhalgh used the phrase behavioural change. I think we all understand what the Government are trying to achieve, but you do not believe that the Bill does that. What should be in the Bill to get the behavioural change that the Government are trying to achieve?

Paul Greenhalgh: One of the difficulties with the Bill as currently framed is that there will be a number of what we would perceive as unintended consequences. They are twofold, mainly around our duties to provide support and care in certain circumstances arising from the Children Act 1989 and the Care Act 2014. Mainly, section 17 of the Children Act is something that would come into play in these sorts of cases.

At the moment, 80% of those cases are funded by no recourse to public funds arrangements as a result of a Children Act assessment. As a result of the current drafting of the Bill, a lot of families who would receive no further support as a result of their asylum status being confirmed would come to the local authority if they were about to become destitute. The local authority would be bound to make a human rights assessment and, if there are children involved, a children in need assessment. Those assessments take some time, so if a family are at immediate risk of destitution, we would have to put immediate measures in place.

So the first of our significant concerns is that this could result in a huge increase in demand on local authorities, which would in effect be a cost shunt from the Home Office to local authorities in an unfunded way. The other consequence is the danger that people will not come to local authorities but will go underground, and therefore be more at risk of exploitation and less able to be supported by the authorities.

If those are our concerns, we think some measures need to be put in place to provide appropriate safeguards. First, there should be a clarification of assessment processes, to reduce the burden falling on local authorities and the difficulty for families of having to go through what at the moment are two assessment processes. If the assessment process could be streamlined, that would be one improvement to the Bill.

The other significant issue is funding and the extent to which, however we frame the Bill, it will result in more cost to local authorities to support people on an interim basis. If there is recognition that those costs are a new burden, and if there is engagement between local authorities and the Home Office to work together on a practical level to support those families and help them to engage, we could see some of the intention of the Bill working more effectively.

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[The Chair]

A number of Members want to come in, but I interrupted Mr Starmer.

[Keir Starmer]

Q 249 May I go back to a couple of answers that were given? First, on streamlining the assessment process, I think that you mentioned two assessments. Is the first the assessment for asylum support in the first place and the second the assessment for the local authority, or are there two local authority assessments?

Paul Greenhalgh: There are two local authority assessments. When people come to local authorities for support, they often come because their situation has worsened and they need support to avoid destitution. Often, it is about accommodation and subsistence support. The local authority, under section 17 of the Children Act, has wider obligations to consider the welfare needs of the child in whatever circumstances. When people have gone through an asylum process, we need to conduct a human rights assessment to determine whether ending support would be a breach of their human rights, before we complete the children in need assessment. That is a burdensome process for local authorities and for families.

[Keir Starmer]

Q 250 I just want to pick up a second point. Evidence has been given that the objective is that people leave, and therefore there is no burden on anyone to provide any support, but the evidence from the 2005 pilot seems to show pretty strongly that if that is the objective, this is not the way to achieve it. The likelihood is, therefore, that local authorities will be picking up the burden of supporting families, particularly those with children—children are children, in this.

You talked about a cost shift. What is the cost increase when asylum support is swapped for putting a child or family who are not going to go voluntarily—a child may not have any choice at all—on local authority support? It seems to me that under these provisions the cost will go up, because you take someone from one regime to a regime for which they have to go through two assessments, which someone has to carry out, and be put on to temporary support and further support. They could have become more destitute and so need more support. Am I right in thinking that this is not just a cost shunt—you are not simply moving cost x from the Home Office to the local authority but shifting and increasing it, so the cost to the taxpayer goes up?

Paul Greenhalgh: Potentially, yes, under how the Bill is currently drafted.

[Craig Whittaker (Calder Valley) (Con)]

Q 251 I want to drill down on the shift of the cost burden from the Home Office to local authorities. We already know that schedule 3 to the Nationality, Immigration and Asylum Act 2002 broadly limits access to local authority social care for families anyway. Is there not a mechanism between local authorities and the Home Office that is triggered when a family present themselves and it becomes clear that they are in this country unlawfully, so that they get deported and the local authority does not have to shoulder the burden of the cost?

Henry St Clair Miller: I think you are referring to the exclusions from social services support under schedule 3 to the Nationality, Immigration and Asylum Act 2002, whereby if a local authority is working with someone in an excluded group—a failed asylum seeker would likely fall within the excluded groups—the authority is instructed to provide support only if it is necessary for the purpose of avoiding a breach of human rights. It is that exception to the exclusion that gives rise to the human rights assessment, which can be quite time consuming for a local authority.

When you work in this area you have to be quite specific about each client group. It is true that an asylum seeker who has already put in an application has been through the courts, and the courts have decided that there would be no human rights breach in returning the family to the parents’ country of origin. The best interests of the child will have been looked at within that, and the courts will have decided that. It should then be possible for the local authority to follow the same line within the human rights assessment and opt to say that no assistance is required other than a return to the country of origin through assisted voluntary return.

It is a little bit different in our experience, because a lot of the applicants go on to put in further representations under the UK’s immigration rules. That is often on the basis of article 8 human rights and on the basis of there being children. Once the application goes in, there is a legal barrier to that family leaving, and it is impossible to enact schedule 3 to withhold support if the family is destitute.

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[The Chair]

It is one wish.

Karl Pike: Appeals should be allowed for section 95A. In cases where it is refused, we should have the right to appeal. The appeal success rate is so high at the moment that not having it is clearly going to hide very bad decision making, and those people will come to us because they will not have food or clothing.

Andrew Hewett: I am going to take my wish, as well, so we have two as the British Red Cross. For me, it is the grace period. If you really want to engage people in some of the difficult and complex decisions you might have to make, people will need to be fed and have a roof over their heads while they are considering those. It is very difficult to do all that within 28 days so we will be supporting a move towards a longer grace period of 90 days, to enable those discussions and consultations, and explore and exhaust all possible avenues during that time.

Peter Grady: If I had my one wish, to step away from this issue—although I would argue that it is within the scope of the Bill—it would be for the introduction of a time limit on detention. There are detention provisions there. We see that as being an area where it would help to ensure compliance with what UNHCR views as being international standards relating to detention. That is something we would strongly welcome.

[Keir Starmer]

Q 289 I will try to do this in one question. I want to draw together some of the examples you have given to make sure that I have understood the evidence. This is about the appeals for support. Let us say you have a case where there is a genuine obstacle to removal—for example, an Eritrean person who, for one reason or another, cannot get the right document to put before the Home Office. They are considered not to be destitute when they are, so the decision is made that they are not going to be given support. They then come to see you and you, the charity, provide them with a letter, so they have something that is almost certain to win on appeal, and they will at least get their support. If this Bill goes through, they are exactly the kind of person who will be stuck with a bad decision and no support, notwithstanding the fact that they are destitute and have a genuine obstacle to removal. It is simply tough on them.

Karl Pike: Yes. It might help you to know that Eritreans are the largest single group of destitute people this year.

[Keir Starmer]

Q 290 But it is just tough on them. We made the wrong decision, and though they have a piece of paper that means they would win on appeal, it is just tough. That is the effect of the Bill.

Karl Pike: Yes.

Andrew Hewett: They will be made homeless and destitute. That makes it even more difficult if they want to progress to a voluntary return programme.

[Kelly Tolhurst]

Q 291 You mentioned that you think the removal of support will drive people underground. Can you explain to me what you regard to be underground and how that works?

Karl Pike: From the pilot, people absconded. I do not know whether the Home Office followed it up with any further research as to where they had gone, but people often assume it means they can end up working illegally somewhere and potentially being quite badly exploited. This Bill creates an offence of illegal working as well. If all the provisions are the same, some people might end up absconding and end up in prison for illegal working six months later.

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[The Chair]

Thank you. Mr Starmer will start.

[Keir Starmer]

Q 294 Thank you, panel, for coming to give evidence to us this afternoon. The Bill proposes to make changes to the support that is provided to individuals who have got to the end of the process for their asylum claims. It extends the changes to the appeals process in terms of removal first and appeal afterwards. It introduces an offence of illegal working that applies to employees and expands the enforcement powers of immigration officers. Can the panel tell us what they think the human rights and equalities implications of those major changes are?

Rachel Robinson: In the broadest terms, Liberty is seriously concerned about the societal discriminatory impact of various proposals in the Bill, which bring immigration control in-country or increase in-country immigration control in terms of the rental sector and in terms of the creation of an offence of illegal working and the new offence of driving while an illegal immigrant. We are extremely concerned about the impact of the proposals on race relations and community cohesion. At the same time as these proposals are being introduced, elsewhere in the Bill, we see proposals that strip away access to appeal rights, that shift control over immigration bail from the judiciary to the Executive and that create a hostile environment, with serious implications for the most vulnerable people in our society.

At the same time, we also see the creation of an offence of illegal working, which is liable to push people into exploitative employment situations; the removal of mainstream asylum support from many families; proposals designed to freeze assets; and proposals that involve closure of bank accounts. There are serious human rights implications for the very most vulnerable people in society and discriminatory impacts together with removal of oversight.

Rebecca Hilsenrath: The Equality and Human Rights Commission supports provisions that set out to tackle unlawful working, particularly in relation to the exploitation of those whose status is uncertain, but we do have concerns. We have reviewed the Bill as a whole and we have particular concerns about the proposed reforms in relation to measures to introduce eviction powers and the reform of appeal provisions for support for failed asylum seekers. We can come back in greater detail, but broadly speaking we do not believe that due consideration has been given to obligations under the UN convention on the rights of the child. We have concerns relating to article 6 in both cases and article 8. We also have an overriding concern about the equality impact assessments undertaken in relation to the Bill. We understand that they are still under way, but the failure to provide proper evidence about equality impact at this stage undermines the ability of parliamentarians to properly debate the provisions in the Bill.

[Keir Starmer]

Q 295 Is that just a timing question, or does it go beyond that?

Rebecca Hilsenrath: We have not seen them, so it is very difficult to comment. My understanding is that what has been produced touches on financial implications but not equalities.

[Keir Starmer]

Q 296 Other panel members, what are the human rights and equality implications of these measures in particular?

Steve Symonds: In brief, for the reasons just outlined and others you have heard in your evidence sessions, I think we would generally say that they increase the likelihood of human rights abuse and they reduce the safeguards accessible to people to try to remedy or safeguard themselves from those abuses.

Saira Grant: I agree with that. I would add that the entire target of the Bill, as of the 2014 Act, is to create a hostile environment, purportedly for unlawful migrants, but, actually, what we are really concerned about and what we have already seen happening is that it targets all migrants: lawful migrants here and, indeed, citizens of this country.

Our concern is that there will be many abuses of human rights. Many people will be unlawfully targeted and discriminated against and the Bill provides no redress. That is completely lacking for those people who are unlawfully targeted by the provisions.

Keith Ashcroft: Just to echo what Rebecca said, we have real concerns about the withdrawal of support for failed asylum seekers with children and also some concerns about the extension of the deport first, appeal later provisions, which, as you know, currently apply almost exclusively to foreign national ex-offenders. We have some questions about whether it is proportionate to extend the provisions to cover those who simply wish to appeal on human rights grounds against a refusal to enter or to remain.

[The Chair]

I will ask Mr Hoare to come in in a minute. I should have said at the beginning to the witnesses that we will finish at 4 pm, not 4.30 pm as you may have been told originally. We want to get through as many questions as possible.

The other thing is, when it gets to 4 pm, there will be bells ringing. It is not the fire alarm; we will have to go and vote. You will see us all rush off at that time, so please do not be offended by that.