Immigration Bill

Lord Rosser Excerpts

Tuesday 22nd December 2015 Lords Chamber

[Lord Rosser (Lab)]

The last page of the Bill states that its purpose is:

“To make provision about the law on immigration and asylum; to make provision about access to services, facilities, licences and work by reference to immigration status”.

On the face of it, that is pretty innocuous, since immigration has brought significant benefits to our nation. However, two sentences in the second paragraph of the Explanatory Notes tell us in blunt and stark terms the true objective and purpose of the Bill:

“The purpose of the Bill is to tackle illegal immigration by making it harder to live and work illegally in the UK. The intention behind the Bill is that without access to work, illegal migrants will depart voluntarily, but where they do not, the Bill contains other measures to support enforced removals”.

This is one group of working people who will not be lauded by the Government but will instead now be criminalised and removed from the country for the offence of working hard. We shall need to keep in mind the two sentences I have quoted from the Explanatory Notes as the Bill goes through its different stages in this House, since they explain the driving force behind the Government’s clumsy legislative proposals.

Strong arguments will no doubt be made that in reality some of the clumsy measures in the Bill will make the illegal immigration situation worse rather than having the effect the Government envisage. The differences of view that are likely to arise will be over the manner in which the declared objective of reducing illegal immigration is intended to be achieved and the likely effectiveness of the measures actually proposed. Unlike the Government, we will not be judging the desirability of or the need for the measures in the Bill against the criterion of whether they make life harder for some extremely vulnerable people.

No one is likely to be opposed to reducing illegal immigration—the key word being “illegal”. However, the Bill has appeared before there has been any time for a proper assessment of the effectiveness or otherwise of the Immigration Act 2014. One can only conclude that the Bill has been driven primarily not by hard evidence of what works and what does not work but by the continuing political difficulties the Government have created for themselves by not coming even remotely near their own ill-judged, self-imposed and self-chosen objective of net migration in the tens of thousands. There appears to be a need in the Government’s eyes to give the impression to their supporters that they are acting tough on immigration, when in fact the Bill simply highlights the reality that the Government, on this issue, are like a duck paddling furiously simply to try to stand still.

There are some aspects of the Bill which we support, and I shall refer to these before coming to the parts we consider clumsy and potentially damaging. We support the establishment, although not the precise functions, of a Director of Labour Market Enforcement, who could provide much-needed strategic leadership in protecting the victims of labour market exploitation, but who should not also have any role connected to immigration control. We support the strengthening of sanctions for employers of illegal workers, which builds on the Immigration, Asylum and Nationality Act 2000. We also support the requirement for banks to carry out immigration status checks on current account holders, although it needs to provide sufficient redress for those wrongly identified, and the introduction of a duty on public authorities to ensure that all public sector workers in public-facing roles are able to speak fluent English.

I turn to our key but not only areas of concern, but make one general point. That is the apparent lack of hard evidence clarifying the extent or nature of the problems that the Government perceive as existing, and thus the need to take the kind of measures proposed in the Bill, or to show that the measures proposed in the Bill will, first, have the effect that the Government expect and, secondly, will not prove to be counterproductive and harm community cohesion.

The Bill’s overarching impact assessment is thin in terms of both pages and content, which suggests little quantifiable impact on reducing illegal immigration and even less assessment undertaken. There are references in the impact assessment to some financial savings but, as we consider the Bill, we will need to know by how much the Government expect each major measure to impact on illegal immigration and the hard evidence on which such expectations are based.

In that context, I assume that the reference in the Explanatory Notes of the purpose of the Bill being “to tackle illegal immigration” means, as far as the Government are concerned, reducing illegal immigration. No doubt that point can be clarified in the Minister’s response at the end of the debate, along with an indication of the criteria against which the Government intend subsequently to assess the success or otherwise of the Bill in delivering their declared objectives.

The Bill creates an offence of illegal working, although it is already an offence for a person who does not have leave to enter or remain to be in this country. The Bill simply creates a further criminal offence for such people. The Government do not appear to be claiming that this further criminal offence is needed to enable those who are working in this country illegally to be discovered and removed when without it they would not be. Rather, they are saying that this new criminal offence is being created because being able to catch such people under the new offence enables the earnings that they have made from working illegally to be seized under the Proceeds of Crime Act 2002.

The actual need for this measure, what it will achieve in reality and how it will operate will have to be explored in Committee. Perhaps even now the Government could say whether it is one of their objectives to criminalise some vulnerable people further in order to get from them what little money some of them will have earned, possibly over a lengthy period and in a situation where they will have been exploited, to a greater or lesser degree, by those employing them. It is those doing the employing and exploiting who should feel the full force of the law, not those being employed and exploited.

We need to find out whether the Government intend to prosecute all those found to be in breach of this new illegal working offence. How many people do the Government estimate are currently working illegally in this country in what will in future be breach of the new offence, and how many will be prosecuted for the new offence during each of the first three years during which it is on the statute book? How much money do the Government expect to seize in earnings from illegal workers during each of the first three years during which the new criminal offence of illegal working will be on the statute book, if the Bill is passed as it stands?

The new illegal working offence runs the real risk of further disempowering potentially vulnerable workers and empowering would-be exploiters, who will now have a further offence that they can remind those who they are employing they could be prosecuted for if they get the authorities. It could also leave vulnerable people opened to being trafficked. What is needed is more resources for inspections, a focus on exploitative employers and mechanisms to encourage, not discourage, those who believe that they are being exploited to come forward. Criminalising vulnerable or potentially vulnerable people through the proposed illegal working offence seems to cut right across these objectives. Since there are already criminal offence provisions relating to those who have breached the Immigration Rules, is there really a need to introduce a new criminal offence of illegal working, against which an employee who does not have the right immigration status has no defence at all?

The Bill also includes proposals to terminate support for asylum seekers and their children who have had their applications turned down and any appeal rejected but have not departed from this country within the required period of time. The only basis on which support could continue would be under a provision now inserted in the Bill which says that they would be eligible for support if they could demonstrate that there was a “genuine obstacle” to their leaving the UK. There will be no right of appeal against decisions to refuse or discontinue support under this limited provision, despite the track record of the Home Office in seeing successful appeals against its decisions, so the only potential remedy would presumably be judicial review, which is neither quick nor cost effective. Perhaps the Minister could say what the anticipated amount is that would be paid out each year under this provision—namely new Section 95A—compared with the savings that would be made by withdrawing all existing support under Section 95 of the Immigration and Asylum Act 1999.

Will the Minister also say what might count as a “genuine obstacle” to leaving the UK, and confirm that the reality is that the onus would be on the failed asylum seeker to somehow find and produce the evidence to prove their case? This risks increasing the chances that failed asylum seekers will abscond, again increasing the risk of vulnerable people—not least, the children of families affected—being exploited. Simply offering warm words on these concerns from the Government’s Dispatch Box is not sufficient. Terminating support might also make it more difficult for the Home Office to remain in contact with people liable for removal from the UK and undermine efforts to promote voluntary deportations. Evidence suggests that support for families facing removal—including support by way of help with documents and advice—is the best way of ensuring that they leave. Withdrawing support for this category of migrants seems like a threat of destitution as a means of enforcing the Immigration Rules.

A further issue is that of immigration detention. The Government have said that they will be conducting an internal review on this. What is needed is an independent review on immigration detention to be carried out within a short period of time once this Bill has come into force. It should consider the effectiveness and suitability of the law concerning immigration detention, including the merits of having a time limit. The All-Party Parliamentary Groups on Refugees and Migration have called in a report for a time limit on detention to be introduced, which they argued should be 28 days. I believe that I am right in saying that the UK is the only country—or about the only country—in Europe that does not have a time limit of any sort for immigration detention.

Another concern relates to the new criminal offence under the Bill for landlords and letting agents who do not comply with the right-to-rent scheme or fail to evict tenants who do not have the right to rent. In our view, potentially criminalising landlords in this fashion could lead to discrimination in the rental markets, as landlords play it safe over whom they accept as tenants when it comes to immigration status. Landlords themselves are calling for clarification that they will not be prosecuted where they have done everything reasonably possible to confirm the status of a tenant or where they are actively seeking to evict a tenant whom they have been told does not have the right to rent.

Among other provisions of the Bill that will need careful consideration of their justification and likely impact, including on children, is the power that the Secretary of State will have to certify the claim of someone appealing against an immigration decision—including on human rights grounds—so that they can appeal only from outside the UK.

The Bill also contains some measures in respect of border security. The Government maintain that they have control of our borders, but that seems highly questionable if the Government are arguing that one of the justifications for the proposals in the Bill is the level of illegal immigration. It is clear that the resources provided for securing our borders are insufficient. Perhaps the Minister could say what the Government’s estimate is of illegal immigration each year. Indeed, perhaps the Minister could also say what the Government’s estimate is of the level of net migration for this year and for 2016. We will also during the passage of the Bill want to discuss the recommendations in the very recent report to the Government on overseas domestic workers.

I have set out our concerns about a number of what we regard as clumsy and potentially damaging provisions in the Bill. It will be for the Government to produce the hard evidence to show that their proposals are needed and justified; that they will deal with the problems that the Government say they are intended to address; and, most importantly, that they will avoid unintended consequences such as undermining the progress made on tackling modern slavery and human trafficking, leaving families—including children—destitute, and increasing the likelihood of discrimination in the workplace and housing market. If the Government cannot do this—and they certainly have not so far—we are in real danger of passing a Bill that, as it stands, would be counterproductive in respect of illegal immigration and would harm community cohesion. We will do our utmost to ensure that this does not happen.