Immigration Bill

Lord Keen of Elie Excerpts

Tuesday 15th March 2016 Lords Chamber

If Amendment 114 is not necessary, can the Minister say whether there are any aspects called for under the terms of Amendment 114 which the Secretary of State would not undertake as part of her duty regarding the welfare of a child under Section 55 of the Borders, Citizenship and Immigration Act 2009, and, if so, what those aspects are? I would be extremely grateful if the Government would give some very clear answers to my questions.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to the right reverend Prelate and to the other noble Lords who have spoken in this debate. I begin by observing that the noble Lord, Lord Rosser, has very helpfully advanced matters by answering his own question. He identified what he termed “the key words”, and precisely so. The key words are,

“if the Secretary of State is made aware”,

or where someone,

“makes the Secretary of State aware”;

and, of course, it is largely for a parent or carer to do just that in the circumstances that pertain. Therefore that is where we stand, just as we did in Committee.

On Amendment 113, from the noble Lord, Lord Roberts of Llandudno, there is undoubtedly a generous spirit behind it in allowing any person who arrived in the United Kingdom as an unaccompanied child to be exempt from deportation once they reach the age of 18. However, it is necessary to bear in mind certain points. First, when you examine the figures with regard to the arrival of unaccompanied children who fail to qualify for refugee status, you find that the vast majority are aged 16 or over—16 or 17 years of age. Consequently, they have not spent the vast proportion of their life in the United Kingdom; indeed, they will have spent very little time in the United Kingdom by the time they reach the age of 18.

The difficulty is that the consequence of the amendment would be damaging for the legitimate immigration control which is required in these circumstances and for the deterrence of crime and the protection of the public. The amendment would prevent the deportation of any foreign national offender—regardless of the severity of the crime they had committed or the risk they posed to the British public—as well as those who would otherwise be liable to deportation simply because they had arrived in the United Kingdom as a minor and claimed asylum.

We are conscious of our history of offering protection to those in need and, clearly, no Government will seek to return an individual to a country where they face persecution or serious harm. However, we will deny asylum to those who are not refugees or who have committed serious crimes and are a danger to the public, and will seek to return them as soon as it is safe to do so. Some unaccompanied asylum-seeking children are genuine refugees and we are clearly committed to protecting them for as long as they need such protection, but a very large number are not. This amendment would take no account of the outcome of an asylum claim nor the criminality committed by an individual. It could also create a pull factor, encouraging more children to risk their lives on hazardous journeys and play into the hands of people smugglers and traffickers. For that reason, we do not consider that such an amendment would be appropriate.

I turn to the amendments which relate to Clause 59: the power to certify that an appeal against the refusal of a human rights claim must be brought from outside the United Kingdom, which is, as was noted, a manifesto commitment. In Committee in this House we undertook to reflect on putting in the Bill that a decision to certify under Clause 59 will be subject to a consideration of the best interests of the affected child. We have done so. Amendment 145 makes it explicit in the Bill that Section 55 of the Borders, Citizenship and Immigration Act 2009 applies to all the provisions of the Bill, including a decision to certify that an appeal against refusal of a human rights claim must be brought from outside the United Kingdom. In doing so, it preserves a fundamental principle of the way this power is to be applied—namely, the individual consideration of each case on its own facts. By contrast to the foregoing, Amendments 113A, 113B, 114 and 114A seek to impose requirements on the manner in which this power is to be applied. Such an approach would be inimical to the principle that to achieve the right outcome for certification under this power each case must be considered individually, while having regard to legal obligations and the relevant guidance.

Amendments 113A and 113B, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, would prevent the certification of claims made by persons with the characteristics specified. The result would be that they could not be required to leave the United Kingdom while their appeal was pending. While this amendment may be well intentioned, it does not deliver additional protection and has the detrimental effect of limiting the scope of Clause 59. The protection that the amendment seeks to deliver is inherent in Clause 59. The scope of the power in the clause is already circumscribed, as it cannot be used where to do so would cause serious irreversible harm or otherwise breach human rights.

These amendments would replace a case-by-case consideration sensitive to the nuances of individual circumstances with a blanket set of criteria. The result would be that the Secretary of State would be unable to certify claims in some cases, even where there would be no serious irreversible harm or breach of human rights as a result.

The Secretary of State gives careful and proportionate consideration to cases where children are involved, and we have brought forward an amendment to make that duty clear on the face of the Bill. Nevertheless, there are circumstances in which it may be appropriate to use this power where a human rights claim made by a child has been refused—for example, where a child is living in the United Kingdom with members of his wider family but his parents remain in his country of origin.

In respect of trafficking victims, I hope it is reassuring for noble Lords to note that this power will not apply to those who have made an asylum claim, as Clause 59 does not apply to asylum claims. Where, unusually, a trafficking victim makes a human rights claim, that claim can be certified only where no serious irreversible harm or other breach of human rights will result—namely, where a person will not face harm on return to their country of origin. It is right that in those cases it should be open to the Secretary of State to consider certification.

We can provide further reassurance in respect of those whose claim to be trafficked has yet to be determined. No negative decision will be made on any human rights claim until the trafficking claim has been determined. Therefore, any such decision, including any decision to certify, will be informed by the outcome of the trafficking consideration.

Amendment 114 seeks to prescribe the mechanism by which the best interests of a child must be considered by requiring a wide-ranging assessment of a long list of factors—I will not rehearse them all here—in relation to any child whose human rights may be breached by a decision to certify. Many of these factors may indeed be relevant in a particular case and will form part of a best-interests assessment by the Secretary of State. However, the current framework is for this to occur only where relevant to the individual circumstances of the case and not for every listed factor in every case to be considered in a blanket manner.

The amendment would require intrusive and potentially irrelevant investigations, even in cases where the carer or parent, best placed to inform the Secretary of State about the impact on their child, had not provided any information to suggest such an impact. We are concerned that this could have a negative impact on the children it seeks to protect. Indeed, the investigation could put a child in the position of feeling that they were to blame if the claim were certified, notwithstanding their evidence.

The amendment is simply disproportionate. It requires an independent investigation in every case, even though published guidance is clear that, where independent advice is necessary, appropriate and relevant, and it is not provided by the person affected, the Secretary of State can seek it. The amendment would also be unworkable in practice. It would require an assessment of factors which go far beyond the effect of the decision to certify the case and stray into the realms of a full care assessment.

The role of the Secretary of State in these decisions is very different from that of the courts in considering a child’s welfare in, for example, family proceedings under the Children Act, from which it appears to me that the list of proposed factors has been drawn.

The amendment may have unintended adverse consequences. It may allow unco-operative parents to frustrate a consideration of whether to certify by failing to provide information to the assessor. It is therefore, as I observed earlier, wholly disproportionate.

I turn, finally, to Amendment 114A, which would require successful appellants to be returned at public expense within 28 days of a successful appeal. This amendment proceeds on the basis that the Secretary of State’s original decision was always wrong when an appeal is allowed. That is a misconception. Appeals can be allowed for many reasons, including a change of circumstances or new evidence submitted at a late stage by the appellant. The Home Office makes an assessment on the basis of the proceedings in the appeal—for example, whether late or new evidence was provided by the appellant that the Home Office had not previously had an opportunity to consider, and on the basis of the appeal determination itself. Therefore, the analysis is fact-sensitive.

This amendment, however, would require the public purse to pay for the return of all individuals subject to certification who are successful on appeal, including foreign national offenders and those who have already received financial assistance to leave the United Kingdom through the facilitated returns scheme. Our guidance strikes a better balance, ensuring that factors such as an individual’s ability to pay for return or the reasons why the appeal was allowed are taken into account, and that the cost of return comes from the public purse only where necessary. We consider that this is a fair approach.

--- Later in debate ---

[Lord Keen of Elie]

I wonder if I may be permitted to correct the noble Lord, Lord Rosser: it is the court’s interpretation of the obligation, as is found in the case of SS (Nigeria) in 2014. It is on the basis of that judicial interpretation of the obligation that the Secretary of State proceeds. I am obliged to the noble Lord for the question.

[Baroness Hamwee]

Before the Minister sits down, he referred to guidance with regard to payment for the return of an appellant following a successful appeal. The guidance that I referred to relates to deportation—inevitably, because that is the current position. Is the Minister saying that equivalent guidance is to be provided in the case of appellants in this situation?

[Lord Keen of Elie]

I am not in a position to immediately answer that question but, if I may, I will write to the noble Baroness on that point.

[Lord Roberts of Llandudno]

I am grateful to the Minister for responding. His facts and figures are a wee bit at variance with those that I have, and I think that we need to explore this further. Therefore, tonight, I will withdraw this amendment, but I suggest that we come back to this subject very soon because so many refugee and voluntary organisations are very concerned about this deportation dating. I beg leave to withdraw the amendment.