Nationality and Borders Bill

Lord Green of Deddington Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

Moved by

[Lord Green of Deddington]

64: After Clause 56, insert the following new Clause—
“Age assessments for age-disputed persons: initial assessments of undetermined age
(1) An age-disputed person must be treated as an adult where their physical appearance and demeanour strongly suggest that they are over the age of 18.(2) Where the age-disputed person’s physical appearance and demeanour do not meet that threshold, and doubt remains as to their claim to be a child, the person must be treated as being of undetermined age until a further age assessment is carried out.(3) Those of undetermined age must not be placed alongside minors in schools or accommodation.”Member’s explanatory statement
This amendment would place in primary legislation a rule for tighter initial age assessments for asylum seekers and would ensure that, where doubts about the person’s age are raised by initial assessors, applicants will not be placed alongside children in schools or accommodation.

[Lord Green of Deddington (CB)]

My Lords, I have retabled my amendment in the light of the Minister’s reply in Committee. Judging by Hansard, there was a very good discussion, albeit at three in the morning. We need to be clear about what we are trying to achieve here. Surely it is, first, that adults should not easily claim to be children and get away with it, and, secondly, that where doubts about age remain, the claimants concerned should be kept separate from those who are clearly children.

One aspect which was not covered in Committee was the very considerable increase in claims from those who were falsely claiming to be children. The noble Lord, Lord Paddick, said that, in 2019, those found to be adults amounted to less than half the cases. I have in my pocket the Home Office table showing the outcome of these claims since 2006. The year which the noble Lord chose, 2019, was the lowest percentage in the last 10 years. We now have the percentage for adults in the last two years, and they were 43% and 66%, respectively. I will not provide more statistics, except to say that what is really important is the number of cases to which these percentages refer. In 2019, there were only 304 age-disputed cases; in 2021, there were 1,500—I repeat: 1,500. The whole scale is much greater and justifies the tightening of the criteria for which I am calling.

As to the test applied, the Minister said that our current threshold is that a person claiming asylum is declared to be an adult when

“their physical appearance and demeanour very strongly suggest that they are significantly over 18”.—[Official Report, 8/2/22; col. 1568.]

That is a pretty tight restriction. My amendment would adjust that to when

“their physical appearance and demeanour strongly suggest that they are over the age of 18.”

The change is to “strongly suggest”. I believe that this falls well within the Supreme Court judgment to which the Minister referred in his speech: BF (Eritrea). That judgment found that claimants could be treated as adults if two Home Office officials considered that the person looked significantly over 18. My amendment tightens the criteria, but that is what we need to do in the face of the significant exploitation of the present scheme.

My last point concerns the important and related issue of safeguarding those who are found to be children. Surely it is common prudence that doubtful applicants should, until their cases are resolved, be kept separate from those known to be genuine children. I look forward to an assurance from the Minister that arrangements are now envisaged which will achieve this result. I beg to move.

[Baroness Neuberger (CB)]

My Lords, I declare my interests as chair of University College London Hospitals NHS Foundation Trust and of Whittington Health NHS Trust, and as chair of the Schwab & Westheimer Trust, charitable trusts set up to provide education for young asylum seekers.

I am speaking to Amendment 64A. When we last debated age assessments for young asylum seekers, in Committee, it was in the small hours of the morning, and the issues to which we should have given real attention did not get enough scrutiny. The issue had had precious little scrutiny in another place, because these provisions were brought in so late by the Government in the passage of the Bill. I am very grateful to the Government for the amount of information which they have provided recently, but there is still more to tease out. I hope, therefore, that noble Lords will understand why I and my colleagues—the noble Baronesses, Lady Lister and Lady Hamwee, and the right reverend Prelate the Bishop of Durham—are putting forward this detailed amendment at Report. I am grateful to the Refugee and Migrant Children’s Consortium, the Royal College of Paediatrics and Child Health, the British Dental Association, the British Red Cross, the UNHCR, the ADSS, the British Association of Social Workers and many others for their briefings and help.

There is widespread concern about age assessments among all the various voluntary and statutory agencies concerned with young asylum seekers, and among many medical, dental and scientific bodies. Because of the small family charity which I chair, I spend time with asylum-seeking young people who are desperate to get their lives back on track by getting an education. Most of those I meet are older than the children and young people presently under discussion and whose age might be disputed, but by no means all. From what they tell us, I know how traumatised they can be, and have been, not only by their experiences in their home countries and on their incredibly difficult journeys but by the processes they have been forced to go through once they have arrived in the UK, and the way in which they are often not believed—almost as if there is an assumption that they will not be telling the truth.

The fact that they might be asked for consent before they undergo an age- assessment process is neither here nor there. Refusing consent would undoubtedly be a black mark against them in a system which they already perceive as doubting their word. Many of them will not have paper evidence of their date of birth, precisely because of what they have been through. The idea that the Home Office will control these procedures, and insist on them, fills many of us with distinct unease as it almost certainly means that already traumatised young people who have been through terrible experiences to reach the UK will be forced to endure yet more traumatising experiences, possibly including intimate examinations which are hard, if not impossible, to justify.

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[Lord Green of Deddington (CB)]

My Lords, we had a long debate and the House will be glad to know that I shall be extremely brief. I am grateful to the noble Baroness, Lady Neville-Rolfe, for her very powerful contribution to my case. To sum up: we need the support of professionals in this matter, as the noble Baroness, Lady Neuberger, said, but also the support of the public, a point raised rightly by the noble Baroness, Lady Fox. Very briefly, we face having asylum seekers arriving by the tens of thousands, as I mentioned. They are clearly briefed to destroy their documents—only 2% of them have them—and the number of those who claimed to be children but were found to be adults was 1,500 last year. That was five times any previous year, so there is a case there.

The Government are right to get on the case and I hope they will have a useful negotiation with those who think otherwise. This is clearly a difficult policy area, but I leave it to the Government to take matters further. Meanwhile, I beg to withdraw my amendment.

Amendment 64 withdrawn.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I declare my position as the co-chair of the All-Party Parliamentary Group on Hong Kong. I am in the rare position of congratulating the Government very warmly and thanking them for listening to campaigners, including on their own Benches, in taking this step for the younger people of Hong Kong who have at least one BNO passport-holding parent. I also join the noble Lord, Lord Alton, in congratulating the Government on the welcome programme for the BNO passport holders coming here. The APPG heard from the noble Lord, Lord Greenhalgh, this week and we appreciated his enthusiastic words on that programme.

I will make one extra point. The all-party group held an inquiry into the treatment of young medics and humanitarian workers in Hong Kong during protests. Those young people had to have their voices disguised to testify to us. I remember one of them, who as he was talking to us on the Zoom call was glancing at the door, saying, “I don’t know if the police will come through that door at this moment.” I have no doubt that some of those young people speaking to us had parents who were BNO passport holders, but some of them did not, yet they were young people who had made similar contributions to that society. My simple question to the Government is: will they in future, as the noble Lord, Lord Alton said, work with Commonwealth countries to see that all of those young people who have made brave contributions to democracy and the rule of law in Hong Kong are able to find a route out if they need to?

[Lord Green of Deddington (CB)]

My Lords, I will even more briefly strike a slightly different note. This proposal—I know it has virtually gone through—is very unwise. We have a scheme which already applies to rather more than 5 million people. That is surely enough, and we should leave it at that.

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[Lord Alton of Liverpool (CB)]

My Lords, it is a great pleasure to add my voice, albeit briefly, in support of both these amendments, particularly Amendment 78 in the name of my noble and gallant friend Lord Craig of Radley. Although his amendment is prescriptive in asking the Government to respond

“Within three months of the passing of this Act”,


I think he told the Minister that if an assurance can be given that, within a reasonable time of the Bill’s enactment, the Government will move on this issue, he would be happy not to divide the House. I agree with him about that and if that assurance can be given, it will surely meet the terms of his amendment.

We are not talking about large numbers—it not 5 million people—but people who have served the Crown. If anybody is vulnerable today as a result of the passing of the national security law in Hong Kong, it is surely people who have served the Crown. There is no question in my mind about the justice of what my noble and gallant friend is arguing for, but this is not the first time of asking; he has urged us to do something about this year in, year out—in good times and bad. I hope that the Government will take this opportunity to deliver in the Bill what my noble and gallant friend has asked for.

[Lord Green of Deddington (CB)]

My Lords, as a retired second lieutenant who served in Borneo alongside Gurkha regiments, I am very happy to support these proposals.

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[Baroness Williams of Trafford (Con)]

I am always worried that the noble Lord, Lord Rosser, will not get home, so if he wants to exit stage left, I will not be in the least bit offended. I am very keen that he gets his train.

On Windrush, that tragedy did not arise because people did not have a piece of paper. That problem arose because, through successive changes in immigration law over the years, Windrush was simply forgotten. Of course, it was at the time a declaratory system, but the problem did not arise because people did not have a piece of paper.

To return to Amendment 79, I know that the noble Lord, Lord Oates, will not be happy with what I will say. I hope that I can provide a comprehensive and sensible reason why, to quote my noble friend Lady Shackleton.

We provide all individuals who are granted UK immigration status with a formal written notice of their grant. It is in the form of a letter sent by post or email which sets out their immigration status. They can retain the letter for their own personal records and use it, if they wish, when contacting the Home Office about their status.

We took full account of the recommendation from the beta assessment of the Home Office’s “prove your right to work” service and have introduced a wide range of support to help vulnerable users as we roll out the e-visas, which are the secure, online services which can be used to view and prove immigration status. We are and have been implementing the change in an incremental way since 2018, to ensure that no one is left behind.

Those who struggle to use them can also contact the UKVI resolution centre, including by phone, for help using the service or sharing status on the individual’s behalf. We have also developed mechanisms which reduce the need for individuals to prove their status themselves when accessing public services: for example, benefits and healthcare. Status information is already shared automatically with HMRC and DWP and the NHS in England and Wales.

We published a policy equality statement in relation to the EU settlement scheme on 18 November 2020. The statement considered the impact of e-visas and set out the support available to users who need help. There are reports of incidents where the system may not have worked as it should have, but feedback on the e-visas and online service has been generally positive. Most users find it easy to use and it is aligned with other digital government services, such as DVLA services for renewing driving licences and paying vehicle excise duty. E-visa holders can check their status at any time by logging into the view and prove service; they can even contact the Home Office if they experience any issues with their e-visa.

The noble Lord, Lord Oates, previously referred to the Government’s intention to remove biometric residence permits, biometric residence cards and frontier worker permits from the lists of documents acceptable as part of a right-to-work check. We can do this because the online system works. The cards will remain valid for other purposes, including as an identification document and to board travel services when returning to the UK. As the noble Lord is aware and has mentioned previously, we have been considering the merits of introducing a QR code. As he said, I committed to take the matter back and discuss it with the Home Office. He is absolutely right: we have written to the3million, setting out why we do not think it is a viable option. We have had to consider a wide range of factors, not least that using this method in the context of demonstrating vaccination status is not equivalent to using it to show immigration status, since a person’s immigration status can change in a way that their vaccination status cannot.

The information on an insecure printed document, even one validated by a QR code, would not be a secure method of sharing and proving immigration status in a way that gives confidence to the user and the checker. We consider that it would open the system up to potential fraud and abuse because the QR code would not be sufficient to verify the identity of the document holder. We have looked into whether we could incorporate a facial image on to the QR code but found that the technology would not support inclusion of high-resolution facial images. It would not adhere to the principles of data minimisation, whereby only as much personal data as is needed for the checking purpose should be shared and accessible only for as long as required. The checker would require an app on an internet-enabled device capable of reading the code, whereas any internet-enabled device with a web browser can be used to check a share code. Our reply to the3million, which I will share with the noble Lord, has been published on its website and provides a full explanation.

Physical documents obviously expire—my parents insist on printing their Covid passes out, and sometimes they are near or at expiration—they can become invalid or be lost, stolen or tampered with, and they take time to replace, leaving our immigration system open to fraud and abuse. They do not provide that real-time information. Last year, UK Visas and Immigration received over 44,000 reports of lost or stolen biometric residence documents and issued over 22,000 replacement cards for those reported lost or stolen. Implementing this amendment would involve significant costs; they could well be over £270 million if we had to issue a physical document to everyone with an immigration status.

Our provision of a letter sent by email or post meets the need for a physical document showing a person what their immigration status is, and it can be kept for personal records. The ability to view and prove immigration status online in the form of an e-visa provides foreign nationals with the certainty that they need to demonstrate their rights in the UK now and in the years to come. I hope—although I doubt it—that I have reassured the noble Lord on his concerns. On the other point, I am very happy to meet any interested parties that wish to discuss this further.

I turn to Amendment 82 from my noble friend Lady Neville-Rolfe and the noble Lord, Lord Green, on trade agreements containing provisions on visas. We should recognise that the Immigration Rules and decisions about visa requirements are sovereign national powers which rest with the Home Secretary. I sympathise with my noble friend’s desire to retain national control over visa policy. We took back control of our borders when we left the EU and now have the freedom to set our own rules in the interests of the UK.

However, trade and immigration are separate policy areas and the UK does not routinely discuss immigration in trade negotiations. What comprehensive free trade agreements typically include is provisions on so-called mode 4 trade in services. These set the terms for the temporary movement of service providers between parties to the agreement. Immigration policy, as opposed to mode 4, is our overarching approach to long-term immigration and border controls.

I know my noble friend has expressed concerns about the Government’s negotiations with India on a free trade agreement. As is standard in UK free trade agreements, I expect we will explore mode 4 provisions, which could support British and Indian businesses and consumers, in our negotiations with India. This is not a one-way conversation. UK business stakeholders have identified mobility issues affecting UK service suppliers seeking to go to India, which we might seek to address in these negotiations. This is just as we have done in our free trade agreements with other partners such as Japan, Australia and the EU and would expect to do in any future comprehensive free trade agreements. But any agreement will be consistent with the points-based immigration system and we will not compromise the principles or functioning of that system.

I also want to note that Parliament already has appropriate involvement in the scrutiny of free trade agreements and their provisions through the CRaG process. The legislative framework set by CRaG provides Parliament with the opportunity to undertake scrutiny of an FTA prior to its ratification. I understand the point my noble friend raised previously that CRaG is a rather binary tool, but it would not be appropriate to have additional processes to consider individual issues within the agreement. Immigration is clearly an important issue but comprehensive trade agreements, by definition, cover more areas. It would not be practical or desirable to have carve-outs for individual issues; taken together, these could make the process of negotiating and scrutinising trade agreements lengthy and impractical.

While I agree with the thrust of my noble friend’s argument that robust scrutiny is critical, I cannot agree with the amendment. I instead point to the comprehensive processes we already have in place to ensure that Parliament has its say on trade agreements and, critically, that any changes to domestic law would need to be passed by this House in the normal way. I hope I have set out clearly for my noble friend why this amendment should not be pressed.

[Lord Green of Deddington (CB)]

Before the Minister sits down, is she confirming that any immigration negotiations with India will be confined to mode 4?

[Baroness Williams of Trafford (Con)]

Yes.

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I am sorry that we do not have Divisions in Committee any more as I might have won the day then. However, we have a lot to get through this evening, so I am looking instead to the Government for a clear statement of their intentions on providing up-to-date figures on channel crossings, and perhaps some follow-up discussions with me. I am not going to go away on these data issues. I beg to move.

[Lord Green of Deddington (CB)]

My Lords, I support Amendment 80, which I have co-sponsored. The problem is that Covid has sent immigration statistics into a tailspin, to which the Government’s response has made matters worse. As I understand it, the Government suspended the International Passenger Survey that took place at all airports when Covid struck, mainly to protect the staff, who would normally have been interviewing people all day. That is fair enough. It was also the case that the number of international passengers fell through the floor, so it was not much of a guide to levels of immigration.

All this roughly coincided with efforts by the ONS to use existing statistical data to estimate migration flows. That effort has already run into trouble. In any case, it is by definition a year late because it relies on statistics that are looked at every 12 months.

The purpose of the amendment is in effect to call for the reinstatement of the International Passenger Survey, improved where possible, so as to have a clearer and more up-to-date indication of where we stand. I need hardly remind the Government that they promised to “take back control” of immigration. At present, they have very little idea of the present scale of immigration, and when they do find out they are likely to have an unpleasant surprise, with very little time to adjust their policy before the next election. That is their problem.

I will also speak briefly on Amendment 81, which concerns people crossing the channel. The Home Office has announced that it will publish the statistics on only a quarterly basis. I hope that is wrong and that the Minister will be able to say that it will be much more frequent than that.

There seems to have been a kind of fix between the Office for Statistics Regulation and the Home Office, whereby it was agreed that quarterly publication would ensure that the statistics were

“put into the longer term and wider immigration and asylum context and so better support the public debate and understanding”.

Well, “weasel words” does not describe it. What they are actually doing is insulting the public’s intelligence. If they go on with that policy, they are simply trying to keep the facts from the public on a matter of considerable public concern. So it is not surprising that a number of MPs have actually attacked this move, with one calling it an attempt to cover up failure while another said that it was “burying bad news”. I regret to say that that may very well be an accurate statement of the position. The Government clearly have a serious problem here, exacerbated by their previous promises, but they will have to deal with it, and deal with it honestly.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have put my name to Amendment 80, which I am pleased to support—and I also support Amendment 81 very strongly as well. My noble friend Lady Neville-Rolfe is a demon for data, as she has just demonstrated in the House, as a basis for good decisions and keeping the public well informed about what is going on around them while avoiding rumour and anecdote, which takes us to a bad place, particularly in areas as sensitive as immigration. Therefore, I particularly share her view, and the view of the noble Lord, Lord Green of Deddington, that the Government’s decision to reduce transparency about the flow across the English Channel is regrettable. It is clearly an area of considerable public concern and, for better or worse, we will not solve it by not publishing the figures—that is likely to make it worse.

I shall add one thing on the international passenger survey, when we come to relaunch, refocus and redesign it. I was once questioned as part of that survey, when I was travelling through Heathrow, and I was very pleased to answer the lady, who was very good and helpful. I went on and talked to her a bit about her job, and I can offer the House three take-aways. First, under no circumstances do you cross-question; so if someone says that they are coming here to be a plumber in Cardiff, a plumber in Cardiff they are—there is no question of whether they might be something else. That is not your job; you just write that into the form. The second was that you tended to have a predominance of older people answering the form. She said that younger people would be in a hurry, pushing on, and they tended not to want to stay and answer her questions —or there were not many of them. Older people seemed to have more time and, therefore, she felt that the survey was biased towards older people. Thirdly, and finally, on the issue of the early morning or transcontinental flights, known as the red-eye flights, unsurprisingly those people coming off those flights did not want to answer a survey—they wanted to get to a shower, a bed or their office. She told me that so difficult had it been that they had started reducing the number of staff who were on the early shift, and they brought full staffing on at about 8.30 am or 9 am, when people were in a more helpful mood—perhaps that is the best way of putting it.

I leave it to the House, and to my noble friend the Minister, but with that sort of anecdotal background, this can hardly be a system that inspires confidence as to the accuracy and value of the data that it collects. If we are going to relaunch it, we need to think much more clearly about how we are going to gather data in a way that creates confidence and trust.