Immigration Bill
Baroness Lister of Burtersett Excerpts(10 years, 2 months ago)
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Lord Roberts of Llandudno (LD)
My Lords, I will speak to Amendment 72 first, as that will explain why Amendment 71 is also necessary. Our progress as humanity has always been a continuous struggle to overcome discrimination and inequality. One can name Wilberforce, Lincoln, Pankhurst, Gandhi, Mandela and so many others who have contributed to ensuring that nobody suffers because of discrimination. All people are of equal value. The struggle continues. People are people wherever they are, and should be treated with respect and dignity.
However, there are some failed asylum seekers who cannot be returned home. At this moment, there are about 3,000 such people living in the United Kingdom. They cannot work. They have no access to benefits and would, in many cases, be destitute were it not for support from government and voluntary agencies. This Section 4 support from the Government is entirely separate from normal asylum support for people whose claims are pending. Under Section 4, a person will receive £5 per day, or about £36 per week. Out of this, they must pay for food, clothing, toiletries and other essential living needs. We are glad that housing and utilities are provided separately.
In April 2012, 779 of these 3,000 people were children and they are discriminated against in certain ways. For instance, the use of the Azure card is restricted to a list of certain shops and these are often the most expensive. So many of the smaller and less expensive stores, such as Aldi and Lidl, which could provide far more for those with Azure cards, are not included in the list. Whatever happens to my amendment, I hope that the Minister will at least tackle that issue, so that those places where people can get better value or a greater quantity for their money—including corner shops as well—can be considered.
Amendment 72 would allow for people totally trapped in the UK to survive. They would escape the absolute poverty to which Section 4 condemns them. It would also save taxpayers millions of pounds. To deny a person the right to work is to deny ourselves the contribution that that individual can make to our society. Our coalition partners speak of hard-working families. I would urge the inclusion of those whose one aim is to be a hard-working family. Last December, there were 23,000 of them who had the ability to earn a living. Can anything be more demoralising than having skills that you are not allowed to use, a family you are not allowed to support, or a country to which you would willingly pay your taxes, if only you were allowed? What evidence does the Minister have that the period before an asylum seeker can apply for a job would in any way be a threat if it were reduced from 12 to six months? What conversations have been taking place with the 12 European Union countries that have much lower limits than the UK? Why have we not signed up to the EU reception conditions, which reduce to nine months the period for which asylum seekers can be excluded from the labour market? That is not quite six months, but it is coming down.
Amendment 71 would allow those who have been waiting six months for a decision to claim the right to work. In December last year, the number of those waiting was 6,249, excluding dependants. We have a real opportunity here. We could reduce the burden on the taxpayer because asylum seekers who are able to work will no longer need to be supported by the benefits system. After all, we are living in times of austerity. Instead of being dependent, these people could contribute to the economy through taxes and consumer spending.
There is an understandable worry here in Parliament that allowing asylum seekers to work will blur the boundaries between asylum and economic migration. However, I suggest that a strong asylum system, which makes the right decisions the first time around, need have no fear of such a blurring of boundaries. I am sure that economic migrants making a spurious claim in order to access the UK jobs market would not be able to put in a claim credible enough to have the UKBA scratching its head for six months. An asylum claim with no real basis should not take six months to be rejected.
History shows that when new arrivals come to the UK, they contribute substantially to job creation in our country. A week ago tomorrow, the Centre for Entrepreneurs published a report entitled Building our Businesses, Creating our Jobs. Here, as in the United States, 60% of the top technology businesses were started by migrants. The next figure really astounded me: in the UK, 456,073 migrant entrepreneurs, representing 155 countries, started many of our industries. Our economy owes so much to migrants who are misunderstood and even reviled in some quarters—and it has always been so. In 1938 the Daily Express ran the headline: “German Jews Pouring into Britain”. These folk, who were escaping the Holocaust, were responsible for more than 50% of the new industries that helped the south Wales valleys to defeat the great depression at that time. We shall miss out in 2014 by denying their successors the right to work.
I should like an assurance from the Minister that the Government support the idea of the equality of all people. I should also like to see the evidence, if it exists, that other nations suffer because they allow asylum seekers to work after six months or sooner. Lastly, does he accept the fact that nearly 500,000 immigrants have been responsible for new businesses in the United Kingdom? The Bill can either continue the progress that I mentioned previously—helping a person to find his feet and grasp his opportunities—or it can be a backward step by keeping those who would enrich our communities idle and hopeless. When the time comes, I urge the Minister to support this amendment.
Baroness Lister of Burtersett (Lab)
My Lords, I thank the noble Lord, Lord Roberts, for tabling these amendments. I was pleased to add my name to them, not least because I was a member of the parliamentary inquiry into asylum support for children and young people, and I helped to launch a Freedom from Torture report called The Poverty Barrier: The Right to Rehabilitation for Survivors of Torture in the UK. Also, on a personal note, the noble Lord referred to the Express headline about German Jews pouring into this country. My father was one of those German Jews.
I shall start with the right to work. It is a human right enshrined in the Universal Declaration of Human Rights and incorporated into human rights law as part of the International Covenant on Economic, Social and Cultural Rights, which recognises,
“the right of everyone to the opportunity to gain his living by work”.
After the Second World War, TH Marshall wrote that in the economic field, the basic civil right is the right to work. The importance of this right, or rather the lack of it, for individual asylum seekers is brought out movingly in the report to which I have referred. The parliamentary inquiry talked about how asylum seekers who are not able to undertake paid work lose skills, how they are not able to provide a role model for their children, and the impact on their self-esteem, self-confidence and mental health. All this has a damaging effect on their children. According to the Freedom from Torture report:
“Many questionnaire respondents, and most participants in client focus groups, highlighted the importance to them of having permission to work while their asylum claim is decided as a means of supporting themselves and being self-reliant. Indeed, the lack of permission to work for asylum seekers was a major theme of discussion and the key change that focus group respondents called for, although they also recognised that many torture survivors are not well enough to work”.
The weekend before last, noble Lords may have read in the Guardian an interview with six refugees or asylum seekers with professional backgrounds. One of them was a senior government adviser from the Ivory Coast now living destitute in Birmingham. The article says:
“But for the moment, what makes her unhappy is the enforced idleness: the UK Border Agency stipulates, in emphatic capitals, in correspondence with her, ‘You are NOT allowed to work’”.
It goes on:
“‘Work is health,’ she says, taking off her glasses and rubbing her eyes. ‘I started working when I was 21. I am an active person. When you have nothing to do, you look on your situation and start to think. You say to yourself: “What am I doing? What will become of me?”’”.
If we were professional people who were forced to leave our home and seek asylum in another country, how would we feel if we were not allowed to contribute to the country that we wanted to make our new home?
Much of government social policy, whichever party is in power, is premised on the principle that paid work is the primary responsibility and the most important contribution that people make to society, summed up, as the noble Lord said, in the mantra of “hard-working families”. However, successive Governments deny asylum seekers the opportunity to make such a contribution for a whole year, even though the evidence shows that it helps integration. Home Office research shows that delayed entry to the labour market can cause problems even when refugee status is then granted, leading to high levels of unemployment and underemployment. It would appear, therefore, that the Government work on the assumption that asylum seekers will not be granted refugee status, so it does not matter to this society what the long-term effects of enforced idleness are. I hope I am wrong, and would be grateful if the Minister could disabuse me, but that is how it comes across.
As the noble Lord, Lord Roberts, said, the Government argue that to allow asylum seekers the right to work would blur the distinction between economic migrants and asylum seekers, and act as a pull factor. However, we are not calling for an immediate right to work: there would still be a six-month delay. In 11 other European Union countries, in both northern and southern Europe, asylum seekers are permitted access to the labour market after six months, or sometimes even less, of waiting for a decision. In all of those countries, except Sweden, fewer applications for asylum were received than in the UK, which does not suggest that it acts as a pull factor. The lack of impact on the number of applicants is confirmed by a recent study of OECD countries. If we do not allow the right to work, the danger is that asylum seekers who end up in the shadow labour market will face the kind of exploitation referred to earlier by my noble friend Lord Rosser.
I fear that Governments are often timid with regard to the rights of asylum seekers for fear of public opinion. However, surveys by the IPPR and the British Social Attitudes survey show that there is public support for allowing asylum seekers the right to work. The Joseph Rowntree charitable trust, in an inquiry into destitution among asylum seekers a few years ago, said:
“Overwhelmingly, giving asylum seekers the right to work was the favoured solution identified”,
by those who gave evidence.
On the question of destitution, the parliamentary inquiry of which I was a member found that the current asylum support system is forcing thousands of children and young people who are seeking safety in the UK into severe poverty. We were shocked to hear of instances where children were left destitute and homeless, entirely without institutional support and forced to rely on food parcels or charitable donations. This cannot be right.
Baroness Lister of Burtersett
I hope the Minister is not suggesting that the survivors of torture who were interviewed in the study were not somehow genuine. These are people who had been seen by clinicians who were convinced that they had been through a terrible time. The trouble is that their status takes time to sort out. Even if they are eventually given refugee status, sometimes the worst problems begin then because they have not been prepared for it.
Earl Attlee
I did accept, in the last words I said, that some cases from certain countries can take a long time to determine, but in the case of the failed asylum seekers, they have failed to convince the courts that they have a good case.
Earl Attlee
My Lords, no. The purpose of the current policy is to deter economic migration, because people would be able to come here, claim asylum and after a while be able to work. With this policy, we can deter economic migration through the asylum route and therefore properly determine the genuine cases.
Baroness Lister of Burtersett
Will the Minister answer my question about the assurance given to Julian Huppert by the Minister in the Commons that he would look into the suggestion that it could be cheaper to have one asylum support system rather than two separate systems? Perhaps I may point out on the “corner shop versus supermarket” issue that not everyone has a supermarket in easy walking distance and that asylum seekers would not have the money to get to the supermarket.
Earl Attlee
The noble Baroness may make a valid point about the supermarket and the corner shop, but we are talking about operational details here. I will write to her if there is anything that I should add on that point. She may be right that to do what she suggests might make for a more economic system, but it would have the undesirable effect of encouraging a flood of economic migrants through the asylum route, which is why this Government and the previous Government have adhered to the current policy.
Lord Pannick (CB)
My Lords, I have added my name to several of the amendments in this group and have also indicated my opposition to Clause 60 standing part of the Bill. I share the concerns eloquently expressed by the noble Baronesses, Lady Smith of Basildon and Lady Kennedy of The Shaws. It is a matter for considerable regret that the United Kingdom, which has played so significant a role in the battle to reduce statelessness, should now, if the Government have their way, condone the creation of statelessness, even for people who have damaged the public good. Such people should be put on trial, punished if there is evidence of criminal offences and deported if there is a safe country to which they can be sent. However, to deprive them of nationality and thereby render them international outcasts is simply indefensible.
I share the views of the noble Baroness, Lady Kennedy, about the international law implications of what is proposed, but wish to focus on the practical consequences of what the Government are suggesting. Does the Minister accept—this is the crucial question— that if British citizenship is removed from a person in this country on public-good grounds, with the result that they are rendered stateless, it will make it much more difficult to remove that person to another state? Other states are less likely to accept entry by a person who is stateless than one who enjoys British citizenship. Does the Minister therefore accept that, far from contributing to national security, the exercise of Clause 60 against persons in this country will positively damage national security by making it more difficult to remove people who are a danger to the public good?
For this reason, it seems highly likely that Clause 60 will in practice only ever be used against people who are living abroad. Does the Minister agree that, if we strip a person of British citizenship while they are abroad, thereby rendering them stateless, there is a real danger that the country that admitted them temporarily will take urgent steps to remove them back to this country, since it will not wish to be responsible for a stateless person? It is surely highly likely that the United Kingdom will be told by the country where such a person is living that it admitted that person temporarily only because the individual had a British passport. The foreign country will surely say that, now that the passport has been taken away, the United Kingdom can have that person back. There will then be a dispute with the foreign state—and some such states are our allies—about our duty to re-admit someone who was admitted to it only because they presented a British passport that has now been revoked.
The noble Baroness, Lady Smith, has already referred to the opinion of Professor Goodwin-Gill that the United Kingdom would have an obligation in international law then to re-admit such a person. Even if there is a dispute about international law, this Government are plainly going to face considerable pressure from foreign states to re-admit such people to this country. I would be grateful for the Minister’s views on this: does he agree that Clause 60, far from assisting us to deal effectively with people who threaten the public good, will handicap this country, whether the person is here or abroad when the revocation of citizenship takes place?
Although I have added my name to a number of the amendments in this group, which I see as probing amendments, the problem with all of them, whether to secure judicial control or introduce a test of proportionality, is that they will still allow for the removal of citizenship, even though statelessness will result. My current view is that Clause 60 is so fundamentally flawed, so in breach of international law and so damaging in its practical consequences for the security of this country that it should be removed from the Bill. I am happy—and I am sure that noble Lords who have spoken and will speak in this debate are too—to meet the Minister in the short period of time before we return to this subject, as inevitably we will on Report this month, to see whether there is a possibility of making real progress on this very troubling matter.
Baroness Lister of Burtersett
My Lords, Amendment 76A in my name is, like Amendments 75 to 78 to which I have added my name, designed to mitigate the worst effects of Clause 60. However, like the noble Lord, Lord Pannick, and my noble friend Lady Kennedy, my preference is for Clause 60 not to stand part of the Bill, and we have heard very powerful reasons for why it should not do so.
Amendments 75, 76, 77 and 78 were recommended by the Joint Committee on Human Rights; first, to ensure that Clause 60 is compatible with international law obligations. This has been questioned by the JCHR, drawing on the opinion of Professor Goodwin-Gill, which has already been referred to, that the deprivation of citizenship should be,
“a necessary and proportionate response to the conduct in question”.
The JCHR noted that, in their letter to the committee, the Government said that they did not want,
“to rule out the possibility that deprivation of citizenship leaving a person stateless is necessary in the interests of the economic well-being of the country”.
The JCHR said:
“It is hard to imagine the circumstances in which such a serious measure could ever be necessary and proportionate for such a purpose”.
Will the Minister help us out and give an example of the kind of situation envisaged that would not anyway be covered by terrorism? Economic well-being does not seem to be a reason for taking away someone’s citizenship and making them stateless.
The JCHR said that the best interests of the child should be taken into account and, once again, issued a plea for this to be written into the legislation to ensure that they are,
“treated as a primary consideration”.
The committee also said that the legislation should not be retrospective, which is,
“an exceptional step which requires weighty justification”.
We were not persuaded that such justification exists. I note from a Written Answer on 10 February:
“There will be no time limit, but the conduct being considered must have taken place after the individual became a British citizen”.—[Official Report, 10/2/14; col. WA 101.]
Amendment 76A complements the JCHR’s amendments and has two purposes. First, it would ensure that the power in Clause 60 could not be used against someone when they are outside the country. This would help ensure compliance with obligations under international law and, as has already been noted, the JCHR, drawing on the opinion of Professor Goodwin-Gill, has questioned whether the clause is compliant. The committee said:
“We would be very concerned if the Government’s main or sole purpose in taking this power is to exercise it in relation to naturalised British citizens while they are abroad, as it appears that this carries a very great risk of breaching the UK’s international obligations to the State who admitted the British citizen to its territory”.
That point has already been made but it bears repetition. Will the Minister comment on this important legal point?
The JCHR also expressed surprise at,
“the Government’s refusal to inform Parliament of the number of cases in which the power to deprive of citizenship has been exercised while abroad”,
and made it clear that Parliament,
“is entitled to this information in order to assist it to reach a view as to how the new power is likely to be exercised in practice”.
I pay tribute to the tireless briefing that ILPA has provided to the committee throughout the passage of the Bill, although I fear we have not done it full justice. A freedom of information request submitted by ILPA elicited the information that, of five individuals stripped of British nationality in 2010, all were outside the UK. This has to raise alarm bells. Will the Minister give Parliament—and the committee—this information now?
At Second Reading, the Minister assured noble Lords:
“There is a safeguard of a full right of appeal”.—[Official Report, 10/2/14; col. 417.]
But how is someone who is forbidden to return to the country supposed to exercise that right of appeal? It will not be very easy. In practice that is probably a pretty empty assurance. What will be achieved apart from sullying the UK’s international reputation, as we have already been warned? Liberty suggests that the clause is based on a security fallacy, arguing that stripping someone of nationality abroad will in no way contribute to security at home. Those who threaten our security do not respect national borders; my noble friend Lady Smith has made a similar point.
Lord Taylor of Holbeach
It will not apply to people under 18. Such people are not able to apply for naturalisation; they can gain British citizenship through registration—in effect, through their parents’ presence in this country. Rather, this amendment to the existing law applies to people who have sought naturalisation. As I say, they pledge their loyalty to this country. Despite this, a small number of these individuals have chosen by their conduct to betray the values and laws of their adopted country. Therefore, in my view, it is only right that the Home Secretary can, in seeking to protect the security of the UK, deprive them of that adopted citizenship, and expect them to reacquire, or to acquire, their former citizenship of another country.
I remind the Committee that the Government already have the powers to deprive citizenship. Such powers have been operated by successive Governments. Listening to the debate at certain times, I got the feeling that the argument was that no Government should have the power to deprive citizenship. However, the clear argument in these amendments is not on that case but on whether the exceptional case of statelessness should be an exclusion from the Government’s powers in this pre-existing legislation.
These powers have their origins in legislation dating back to the First World War, when provision was made for the revocation of citizenship if a naturalised person was suspected of treasonable activities. Section 40 of the British Nationality Act 1981, which has been cited, allows the Home Secretary to deprive British citizenship in two scenarios. The noble Baroness, Lady Smith of Basildon, mentioned them. The first is where the person acquired it using fraud, false representations or concealment of a material fact, which essentially means that they used deception to obtain citizenship for which they were not eligible. In these cases a person may be left stateless. Are noble Lords arguing that they should not be deprived of citizenship in such cases?
The second scenario is where the Home Secretary,
“is satisfied that deprivation is conducive to the public good”,
and that the person would not be left stateless as a result. It is the second of these powers that Clause 60 seeks to amend by returning our position on deprivation action to that which existed as recently as 2003. These powers are provided for and permitted under international law by virtue of the UK’s declaration to the 1961 UN Convention on the Reduction of Statelessness and the domestic legislation that existed at that time. These powers are provided for and permitted under international law.
Baroness Lister of Burtersett
The Minister may be about to come to this point, in which case I apologise. However, I referred to the legal opinion of the Open Society Justice Initiative and Professor Goodwin-Gill. That raised a question over this whole matter and whether, the time having passed, we have in fact retained that power.
Lord Taylor of Holbeach
I would say that the Government’s position is that we have. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, seemed to concur with that opinion. However, I was grateful for the noble Baroness raising that issue and I will take note of what she has said.
We should be clear that we are discussing in this context very serious cases where an individual’s behaviour has been seriously prejudicial to the UK’s vital interests. That is the definition. We expect the person concerned to reacquire the citizenship of another state and in most cases they can. It is not satisfactory that when dealing with such individuals the Home Secretary’s decision is at the whim of the nationality laws of other countries. These cases will be few in number and subject to the most careful scrutiny by the Home Secretary.
I turn to Amendments 74 and 79. It is not in dispute that any individual deprived of their citizenship, either under existing powers or as a result of this clause, would have the full right of appeal regardless of whether they were in the UK or overseas. Grounds for appeal can include both the legality of the action and the merits of the Secretary of State’s decision. Therefore the courts already have an important function in reviewing the Secretary of State’s decision on appeal. I cannot agree that it is appropriate or necessary that the court should have to give permission before the Secretary of State can issue a deprivation decision. Any such procedure would be impractical and out of step with any other immigration and deprivation decisions.
Baroness Lister of Burtersett
I am sorry to interrupt the Minister, but he seems to be moving on from the question of proportionality. I asked if he could give an example of where it could be envisaged that the economic well-being of the country being threatened might be the reason for depriving someone of their citizenship and making them stateless. The Joint Committee on Human Rights was surprised about this being a possible reason. Can the Minister elucidate with an example of where that might be the case?
Lord Taylor of Holbeach
The noble Baroness will have to allow me to write to her on that issue. The Government have responded to the report of the Joint Committee on Human Rights, so she may find that the answer is in there. If not, I will seek to provide her with that answer.
As I said, Clause 60 is consistent with the UK’s obligations under international law. As I have set out here, and as accepted by the JCHR in its recent report, this clause is in accordance with international law by virtue of the UK’s declaration upon ratifying the 1961 convention and the domestic legislation that existed at the time. There is therefore no question of the clause undermining our international obligations. We are adapting and responding to the threat that the UK faces, but acting within our international obligations. Amendment 76 would be an unnecessary addition to the Bill.
The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Pannick, asked if we were contravening international law by making people stateless. I have given the answer to that. As a party both to the UN Convention on the Reduction of Statelessness of 1961 and the UN Convention Relating to the Status of Stateless Persons of 1954, the UK is obliged to comply with the provisions of those conventions, which we would continue to do. If a person was recognised as a stateless person and inside the UK, they would have—as my noble friend Lady Hamwee rightly pointed out—protection against removal and a right to work and study. Depending on circumstances they may be granted access to public funds and be able to apply for a stateless person’s travel document. Those, therefore, are the facts: we would not seek to ride roughshod over those conventions that we have signed up to.
Lord Taylor of Holbeach
That was of course a consideration in the discussions that led to the tabling of this clause. I think that I did address this point, in the sense that an individual who poses a threat to this country can have restrictions placed on them other than the deprivation of citizenship. I am sure the noble Lord will understand this point. I wish to make the point that this is a balanced judgment. The Home Secretary, who after all has to exercise powers within the law on this matter, believes that the law is deficient in this respect. She seeks to change it, and is doing so through this Bill. Knowing her, I do not think that she would make that decision if she felt that it would in any way weaken the security of this country.
Baroness Lister of Burtersett
I am sorry to ask the Minister yet another question. However, I asked a very specific question which was raised by the Joint Committee on Human Rights, and I do not believe that the Government have responded to our second legislative scrutiny report. If they have, the response has certainly not yet arrived on my desk. The question was: how many of those who have been deprived of citizenship in recent years have been abroad, and why will the Government not provide that information to Parliament? As the JCHR said, surely Parliament has the right to have that information in considering Clause 60.
Lord Taylor of Holbeach
The noble Baroness is right. I was getting muddled between the two responses. The second report has not yet been responded to; it will be. I hope that it can address some of the issues raised by the noble Baroness.
The noble Baroness, Lady Smith, referred to the question of whether there was some difference between what James Brokenshire said and what I said in my speech. Perhaps I can explain that by saying that where a person cannot be removed to another country, we would consider whether a discretionary granting of leave was appropriate. An option would be for the person to be placed on limited leave, with conditions such as regular reporting restrictions or the need to notify the Home Office before taking up work or study in a particular field. I hope that explains that there is no difference, and I think it backs up my supplementary answer to the noble Baroness when we debated the issue.
Lord Pannick
My Lords, I have added my name to Amendment 79A on the role of the independent reviewer and I agree with everything that has been said by the noble Baroness, Lady Hamwee. I have tabled two further amendments in this group. Amendment 79C has the support of the noble Baronesses, Lady Lister of Burtersett and Lady Smith of Basildon, and the noble Lord, Lord Roberts of Llandudno. It would require the Secretary of State to set up a code giving guidance as to the practices to be followed in any case of deprivation of citizenship. Amendment 79D, which has the support of the noble Baroness, Lady Lister, and the noble Lord, Lord Roberts, would introduce a sunset clause, and I am hopeful that the noble Baroness, Lady Smith, may add her vocal support to the amendment.
There are real concerns about Clause 60, as we debated in the previous group of amendments. If we are to have Clause 60 at all, I think that we need all or some of these protective provisions—an annual review, a code of guidance and a sunset clause—to set out some criteria for the application of the clause and to ensure that Parliament can take an informed and periodic look at this matter in the light of the practical experience of the operation of the clause.
Baroness Lister of Burtersett
My Lords, I am pleased to support these amendments. I think that I have already said more than enough about Clause 60, but I could not help but notice that no one spoke in support of it other than the Minister, and so I see these amendments as a kind of absolute bottom line. If we are going to be saddled with Clause 60, I hope that the Government will see fit to accept these procedural process amendments as a kind of minimal response to the grave concerns that have been expressed across the Committee.
Baroness Smith of Basildon
My Lords, my comments are equally brief. I have added my name to one of the amendments, and I think that the idea of an independent reviewer and a sunset clause are reasonable and worth further consideration by the Government. Like our amendment, they would provide greater oversight, which I would have thought all parties would welcome. Perhaps I may add one point. It may be possible that an existing independent reviewer could fulfil the role, and I think that we would all be willing to discuss how that could best be achieved.
Immigration Bill
Baroness Lister of Burtersett Excerpts(10 years, 2 months ago)
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Baroness Meacher (CB)
My Lords, Amendment 66 requires information outlining details of health charges for health services applicable to the individual to be given at the point of an application for immigration permission or upon request. One of the biggest worries about the health service clauses in Part 3 is that they could create confusion and wrongly discourage some migrants from accessing free healthcare to which they are entitled. According to the Catholic Bishops’ Conference of England and Wales, for whose briefing I am most grateful, there is already a notable lack of understanding about how the charges for health services will work among both individuals and healthcare professionals. Even more worrying, there has also been inconsistency in how charges are implemented.
Most welcome is the exemption from charging for the treatment of diseases which present a public health risk. However, public confusion could result in delays in people presenting themselves and therefore in diagnosis. Already in 2012, 47% of adults newly diagnosed with HIV were diagnosed late. I am not sure what percentage of those late diagnoses would be attributable in any way to confusion. Overall, 81% of AIDS-related deaths in England and Wales in 2012 were attributable to late diagnosis. There is an issue about timing.
Equally, unless people are made aware of their entitlement to health treatment right at the start of their application for immigration permission or when they request it, they are likely never to sort this out or to become clear about the services to which they are entitled. From the taxpayers’ point of view, it is crucial that those entitled to free GP consultations are aware of it. The risk is that fear of being charged for a visit to the GP may result in people not doing that and later needing an A&E appointment. The cost differential between these two options is £90 per patient and could over time add up to quite a bit for the taxpayer, quite apart from the detriment to the patient.
Does the Minister agree that readily available information accompanying any changes to the healthcare charging system or to the collection of charges—I understand that is going to be much tougher in future—is essential to prevent public health risks and unnecessary costs to the Exchequer? I hope the Minister will inform the House what assessment the Government have made about the current level of public understanding about healthcare charges and exemptions for specific groups and what steps they have taken or will be taking to improve awareness among healthcare professionals and members of the public.
Baroness Lister of Burtersett
Following what the noble Baroness, Lady Barker, said about the importance of the evidence base, I take us back to our debate on Monday. In that debate, a number of noble Lords questioned the evidence base for the claim that there is a problem of so-called health tourism in this country. They asked the Minister what the evidence base was for that claim and questioned the Department of Health’s report on it. The Minister had an awful lot of points to make in his summing up speech and, after about 30 minutes, he quite understandably thought that he had had enough and probably everyone else had, too. Although he has already helpfully circulated a letter following our first day, I could not see anything in it that responded to the concerns raised on all sides of the House. I use this opportunity to invite the Minister to respond on that this evening.
Lord Leigh of Hurley
Perhaps I should declare an interest as a chartered accountant. As such, I looked at Amendment 66F with care. I agree that it is important to have a proper review, analysis and evidence of real costs, but the trouble with the proposed new clause is that it asks for a calculation of the total charges paid, among other things, but it does not look for an assessment of the cost against those charges. For the proposed new clause to be meaningful and for the assessment of the health charge to be made, one would have to look at the costs incurred by the National Health Service for the £200 or £150.
Baroness Lister of Burtersett
Given that the Minister was able to slip out of answering this point on Monday—it did not seem fair to push him on it after he had covered so many points—perhaps I might remind him about the evidence base for health tourism. I have a snippet of information that one piece of research that the Department of Health is relying on is that, out of nearly 1,000 migrants screened by overseas visitors officers in more than 15 trusts during August 2013, only four individuals—0.4% of the sample—were identified as “health tourists”. Even if the Minister cannot now tell us what the evidence is for this claim of health tourism, I would be grateful if he could commit to write specifically on this issue, given that it kind of got left out of his last letter.
Lord Avebury
My Lords, when the noble Lord is replying on that point, will he deal with story of the 300 maternity patients who were alleged to have been treated at St Thomas’s hospital? When we last discussed this, the allegation was found to have been apocryphal. I would be grateful if the Minister would repudiate it.
Immigration Bill
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Baroness Barker (LD)
Clause 33 enables the Government to introduce a health levy. The noble Baroness, Lady Smith, said that her Benches support it in principle; on our Benches, we support it as the least worst of a number of options, none of which we particularly favour. We think that a health levy is preferable to requiring people who come to this country to take out forms of private health insurance that do not meet their needs and are considerably more expensive. However, having said that a health levy may be one way of generating income for the NHS that we can support, like other Peers we have considerable reservations about what the effect will be in practice—and, in particular, what the deterrent effect will be on people who require health services. We will go on in later groups of amendments to discuss that in greater detail, but in this group noble Lords have focused first and foremost, perhaps not surprisingly, on pregnant women and children.
The noble Earl, Lord Listowel, in his introduction was almost biblical in his references to our consideration for expectant mothers and children. I am not as spiritual as he is—I am much more practical. I would say that one of the haunting images of last year was that of the asylum seeker who drowned in the boat off Lampedusa in southern Italy, who was found to be giving birth at the time. When I listen to people talking about maternity and health tourism, time and again I go back to that woman and what must have been going through her mind, and what her life must have been like, to be pregnant and in that position. That is just my disposition towards our general discussion.
The noble Baroness, Lady Cumberlege, introduced her amendment in her characteristically thoughtful and well researched way. She, too, referred to the letter of the noble Earl, Lord Howe, of 6 March, in which he explained the thinking behind this Bill from the point of view of the Department of Health. I, too, wanted to focus noble Lords’ attention on the statement that he made. He said that there was “widespread evidence” and,
“a cost of between £70 million and £300 million from people who deliberately travel to England to get free NHS treatment—so-called ‘health tourists’”,
of which those seeking maternity treatment were most prominent. There is some difference between £70 million and £300 million. My first question to the Minister is: can he explain the range? Even if he can, £300 million in terms of the overall NHS budget is minuscule. Consequently, when we are doing our job in this House as we should, which is to consider not just the immediate cost but the overall impact of a charge, we have to do it in recognition of that fact.
I should like the Minister to explain exactly how the Department of Health arrived at that estimate, particularly as the small charity, Médecins du Monde—Doctors of the World—conducted research across the European Union and discovered that there is no higher rate of migration to this country under our current system of charges than to places such as Germany. I simply repeat, as I did at Second Reading, that I have no problem with our making a fundamental change to our health policy provided that we do so on the basis of proper evidence and not the cynical opinion of newspapers.
Amendment 64A in this group stands in my name. Other amendments in the group, which I support, refer to pregnant women. Mine refers to women who are pregnant or require postnatal treatment. We afford postnatal services to those who are ordinarily resident. We do so routinely for women who do not have problems, who also have access to health visitors to ensure that they and their children are functioning well in the first few weeks of the children’s lives. We afford these services to women who have problems which may not be very significant but which we know are important in the development of their children—for example, women who are having trouble breastfeeding or women who are suffering from postnatal depression. We also extend treatment to women who have suffered traumatic deliveries and need surgery following deliveries that have not gone well. That is what we do for our own people because it is the right and decent thing to do. I should like to think that in future, no matter who a woman is or what her financial status is, she, too, will be afforded such treatment.
Finally, I thoroughly support the amendment of the noble Lord, Lord Patel, which mentions children. I pay my taxes to live in a country where the first question that a doctor asks concerns what is wrong with a child and what treatment they need, not who their parents are. Our wish is to retain that as far as we possibly can.
Baroness Lister of Burtersett (Lab)
My Lords, I support the amendment on domestic violence in the name of my noble friend Lady Smith of Basildon. She has made the case for it, so I will not repeat that, other than to point out that this amendment is totally consistent with the Government’s own action plan on domestic violence and builds on the destitute domestic violence concession. It is a very modest amendment, which would simply guarantee a period of safety, with access to services and benefits, after the breakdown of a relationship because of domestic violence. I hope I am not being naive when I say that I am confident that the Government will support this amendment, given that it is so consistent with their own policy.
I also support Amendment 60, in the name of the noble Lord, Lord Patel. I am very glad that he introduced an amendment on children to remind us of the potential effects on children of some of these changes. I draw noble Lords’ attention to what the Joint Committee on Human Rights, of which I am a member, had to say on this matter. It referred to the concerns that,
“arise about the possible impact on children of the provisions in the Bill which extend charging for NHS services … Extending charging to migrants not previously charged for accessing health services, and extending the range of services for which charges apply, are likely to have a deterrent effect on accessing health care, which in turn is likely to have a particularly detrimental effect on the children of such migrants”.
I will not go into the full detail but our recommendation was that to meet these concerns,
“about the impact of extended charging for health services on children’s health, we recommend that new guidance be issued specifically on the s.11 Children Act duty”,
which applies to the NHS,
“explaining to front-line decision-makers in the health sector exactly how that duty applies in the context of extended charging for NHS services”.
I should therefore be grateful if the Minister would say what the Government’s response is to that.
Immigration Bill
Baroness Lister of Burtersett Excerpts(10 years, 2 months ago)
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Baroness Lister of Burtersett (Lab)
My Lords, I support the amendments in the name of my noble friend Lady Smith of Basildon and with regard to clause stand part. I made clear my opposition to this part of the Bill at Second Reading on the grounds of its impact both on migrants and on black and minority ethnic citizens. I raised the concerns in the report of the Joint Committee on Human Rights, and we returned to the issue in our second legislative scrutiny report in which we welcomed,
“the Government’s indication that the Secretary of State, when exercising her residual discretion to grant permission to occupy premises under a residential tenancy agreement, will take into account the best interests of any child involved, in accordance with the duty in s. 55”.
By acknowledging the relevance of Section 55 in this context, this goes beyond the general indication already given by the Government, welcomed in our first report, that,
“nothing in the Bill is intended to change or derogate in any way from the children duty in s. 55”.
The committee said:
“However, we remain concerned about whether it will be sufficiently clear to front-line decision-makers that the s. 55 duty applies to significant functions such as the Secretary of State’s discretion to grant permission to occupy residential premises. Under s. 55(3) of the 2009 Act, a person exercising any of the Secretary of State’s functions in relation to immigration, nationality and asylum must, in exercising the function, have regard to any guidance given by the Secretary of State. We recommend that the Secretary of State issue new guidance specifically on the s. 55 duty, explaining clearly to front-line decision-makers exactly how that statutory duty applies in relation to functions conferred by or by virtue of this Bill”.
I invite the Minister to give that assurance.
With regard to piloting, the subject of Amendments 50 and 51, at Second Reading I asked what steps would be taken to monitor the impact from the equalities and human rights perspective. The Minister kindly referred to this question in his written response on Second Reading issues, so I eagerly looked for an answer first in the commentary and then in the factsheet to which we were referred for answers, but answer came there none. Therefore, I would be grateful for an answer this evening on the record.
I welcome the fact that the draft code of practice was published with the factsheet, but given the 36 pages of the code of practice plus 16 pages of the anti-discrimination code, I could not help but wonder how many landlords are going to read, learn and inwardly digest all the contents of those codes? I fear that, even without any discriminatory intention, landlords—this point has already been made by, for example, the noble Lord, Lord Best—will simply avoid letting to anyone who looks or sounds like a foreigner. This is in the context of a housing market where we know that, particularly in London, landlords are getting increasingly selective about whom they will rent to. For example, housing benefit claimants are finding it increasingly difficult to get private lettings. As has already been said, the danger is that people are then pushed into having to rent from rogue landlords. The Migrants’ Rights Network raises particular concerns about women who may have insecure immigration status and how this provision could make them very vulnerable to physical or sexual exploitation.
At Second Reading the noble Lord, Lord Cormack, asked about a possible exemption for small landlords. The written response given afterwards was that the Government did not consider this to be appropriate. I realised only the other day that lodgers are included in this provision. This will mean that people subjected to the bedroom tax who are taking in lodgers because they want to stay in their home and they cannot afford to pay their rent because their benefit is being cut will be treated as landlords. These people never wanted to be landlords; they have been pushed into it. The noble Lord, Lord Best, talked about amateurs. These really are amateurs. Are we really saying that someone who has been subjected to the bedroom tax could be fined up to £3,000 if they get this wrong? It is appalling. I hope that at the very least the Government will think again about lodgers. Like my noble friend, I would prefer it if we could remove this nasty clause from the Bill altogether but, if not, at the very least we need firm assurances that there will be a genuine pilot from which lessons will be learnt and which will monitor the equalities and human rights impact.
Baroness Meacher (CB)
My Lords, I, too, wish to put on record my concerns about the proposed use of landlords as unpaid immigration officials. My preferred option, too, would be for the Government to drop Clause 15 altogether, although I do not expect the Minister to be thrilled at that idea. Therefore, as a second option, I would very much support a single pilot, which is evaluated and has an evaluation report put before Parliament before—this is very important—any attempt is made to roll out these provisions beyond that single pilot. That is, as others have said, totally different from what the Government are currently proposing.
I, too, do not believe that the system will work and it is therefore better to find that out before it happens all over the country. As other noble Lords have said, landlords will find ways to avoid entering into a tenancy agreement with anyone who may not have a legitimate right to remain and anyone who may bring into the household others who may not have a right to remain. As the noble Baroness, Lady Lister, has said, this could involve a considerable number of people.
Landlords do not keep a close eye on who is staying in each of their properties from week to week and month to month. The tenant may indeed have a visa, a job and all the necessary papers in order to remain in Britain, but if he brings over relatives to live with him, it must be for the immigration authorities to ensure that those relatives return home or obtain the right to remain. It cannot be right that the landlord can be penalised to the tune of initially £1,000, and then £3,000, for not being aware of this. Is he supposed to undertake an inspection of each of his properties each week or month? What kind of police state are this Government thinking of introducing?
An additional concern is that landlords are generally very anxious to remain on good terms with their tenants, and for good reasons. If tenants are threatened with a report from the Home Office or the results of such a report, they could well leave the property trashed, at considerable cost to the landlord and considerable inconvenience.
The Minister’s briefing says that if a tenant has no documents then they must, in order to rent a property, produce a police letter confirming that this has been reported. Does the Minister believe that this is realistic? What will be the cost to a landlord of undertaking or paying an agent to undertake the necessary checks, getting all these documents and police papers? I should be very interested to hear the Minister’s response.
The Minister’s briefing dismisses the exemption of students from the landlord provisions on the grounds that it would be complicated for landlords to keep records on only some of their tenants. I do not know. In my experience, most students live together in student accommodation of one sort or another, such as a student house. I hope the Minister will reconsider that point.
Then there is the experience of the former Minister Mark Harper, which has been referred to. The implications of landlords’ fears of inadvertently falling foul of the law and being penalised for an understandable error are considerable and will have huge implications for many communities. As Liberty argues:
“The net impact of the policy may well be to push those with irregular status further under the radar, increasing vulnerability and exploitation by creating another black market in private rented property”.
As the Home Affairs Committee put it, these new housing measures must not drive,
“more people into the twilight world of beds-in-sheds and overcrowded houses in multiple occupation”.
Does the Minister agree with those concerns—and if not, why not?
If the Government insist upon going ahead with these provisions, does the Minister accept that the requirements of the landlord must be minimal and very straightforward. The Minister’s briefing note says:
“Where a variety of documents are presented as evidence, it will be good practice to check that the names, photographs and dates of birth are consistent throughout”.
In fact, the wording behind that paragraph makes it clear not that that would be a good idea but that the landlord must do so. Can the Minister confirm that the landlord should not be penalised if his agent simply confirms that records have checked and are there, but that subsequently inconsistencies are found? Surely the landlord cannot be found responsible. If landlords are penalised for this sort of thing, landlords simply will not let a property to anyone whose documents are not or might not be straightforward. Landlords simply do not want to become immigration officers. Why should they? They have not gone into that profession in the first place.
Also, do the Government have any evidence at all that these measures would work? Finally, what will be the effect on ethnic minorities in general living in this country? Does the Minister have any concerns about the wider societal implications of these provisions?
Immigration Bill
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Lord Ramsbotham (CB)
My Lords, I shall speak particularly to Amendments 1 and 2 but also to Amendments 4, 5, 6, 7 and 8, as I shall explain.
At Second Reading, I explained to the House that the whole business of enforced removals was by no means new as far as examination from outside was concerned. Indeed, in 2008, I handed the Home Secretary a document called Outsourcing Abuse, which referred to 78 cases where injuries or death had been inflicted on people who were being removed forcibly from this country. I was then a commissioner on the Independent Asylum Commission, which made some far-reaching recommendations about the whole process. In December 2012, I handed the Home Secretary the report of a commission on enforced removals, which made another series of recommendations relating to the Home Affairs Committee report published earlier that year.
Although Part 1 of the Bill has the sub-heading “Removal Directions”, what is lacking from the whole enforced removal process is overall direction. I was very grateful to the Minister, who was accompanied by the noble Earl, Lord Attlee, for meeting me last week with the Bill team, when I gave him what we had in effect drawn up in December 2012, which was a draft code of practice laying down precisely what should be done in the Home Office as well as by the contractors who are responsible for the removal. The draft also provided for oversight of the whole process, which is sadly lacking at the moment. I was grateful to the Minister for saying that he would take away the document and study it, having referred it to the Minister for Immigration, because it is further reaching in the whole enforced removals process than the content of the Bill. Therefore, I did not table it as an amendment.
However, I should like to inform the House about the content of that document, which is really three codes of practice. The first is all about the actual conduct and the preparation of the case. It refers to duties of the Home Office, which we suggested should establish a complex returns panel to deal with single returnees who refuse either a voluntary or an assisted return in the same way that the Independent Family Returns Panel deals with families. I am very glad that Amendments 4, 5, 6 and 7 deal particularly with the families, and the Independent Family Returns Panel has been a qualified success ever since it was appointed. However, I do not think that that is good enough for the whole process, because the vast majority of people taken back are single people, some of whom have very complex cases indeed.
The document also refers to a group of people who have suffered from totally inadequate supervision and direction for years: the case owners in the Home Office. Frankly, I reckon they are both inefficient and incompetent. I do not reckon that they have ever truthfully told Ministers exactly what has gone on. That has meant that Ministers have not been in possession of the facts. Therefore, we put in the code of practice a lot of things that must be done to oversee the case owners and make certain that they are competent to carry out their task, including having a detailed understanding of immigration law.
Then we come to staff in the immigration detention centre, because that is where the returnee is based. Frequently, the detention centre staff know quite a lot about the person being returned which is not passed on to the case owner and is therefore never taken into account. That causes some of the problems in returns. We believe that immigration detention centre staff must be brought into the process.
Finally come the contractors—the people who provide the detention custody officers taking the person back. Again, this is a sadly neglected part of oversight at present. The contractors have behaved appallingly badly, in public and in front of the Chief Inspector of Prisons when he was accompanying a flight. That they are prepared to do that in front of him suggests that for years they have got away with—literally—murder. It is time that that was stopped. We suggest what must happen to them.
The next part of the thing is oversight. We believe that the Home Office must establish a clearer description and direction of oversight. It has the ideal person to do that in the Independent Chief Inspector of Borders and Immigration. I have met the chief inspector on a number of occasions and know that he is very keen to improve on what he has done already. The difference he has made since he was appointed in 2007 is enormously marked, as I note from when I was Chief Inspector of Prisons and responsible for doing detention centres. If he is given oversight over the process, particularly the practicalities of it, Ministers will find that a lot of the problems that currently appear and are listed under their names will disappear because somebody is responsible and accountable for making certain that those problems do not arise.
I will not speak to the final part of the code of practice at this moment because it refers to the use of restraint, which comes under Clause 2 and Schedule 1. However, my purpose in all this is that underlying everything that has gone on for far too long in the whole conduct of immigration has been what we described in the Independent Asylum Commission as a “culture of disbelief”. It is time that that was eliminated. I find very worrying at the moment that, although the UK Border Agency has been eliminated, I do not detect in the Home Office the leadership of the three silos that have been appointed to take over those jobs. The intentions of this Bill will be achieved only with leadership and drive of the whole process, starting with a determined attack on the 500,000 backlog—it will be defeated only by a determined attack.
Baroness Lister of Burtersett (Lab)
My Lords, I hesitate to follow such a powerful speech and will speak only briefly because important points have already been raised about the amendments. Briefly, I support Amendments 5, 6 and 7, tabled by the noble Baroness, Lady O’Loan, on behalf of the Joint Committee on Human Rights. As she pointed out, in their response to our eighth report—our first legislative scrutiny report on this Bill—the Government said that they would give consideration to the amendments suggested by the JCHR. That is about as good as it gets: the Government will give consideration. They gave away very little indeed in response to our report. We were optimistic that at least something would have happened on this, but nothing has happened. The case has been made as to why it is so important that this provision is placed in the Bill itself. It is not sufficient for it simply to be in regulations or for there to be the very welcome ministerial assurance. It should be in the Bill.
I simply ask the Minister whether he is still considering the case, or has he considered it and decided against it? If so, why? It seems such an eminently reasonable amendment that was proposed by the JCHR and had been supported in various ways by noble Lords.
Lord Hope of Craighead
My Lords, I support these amendments. I should explain that at an earlier stage in my judicial career it was necessary for me to visit prisons so that I could see the conditions under which people were being held and understand the regimes that were being operated in these establishments. I recall very clearly visiting one of these places, where I came across people of the kind we are discussing this evening—detainees awaiting decisions about their immigration status. It struck me at the time that it was quite extraordinary to meet these individuals—who, after all, had either committed no offence or, if they had, had served their sentences—being held in prison conditions along with other prisoners. It is fair to say that a separate wing was set aside for them; nevertheless, the conditions in which they were being held were prison conditions. The noble Lord, Lord Roberts, said that it was a dreadful situation. I must say that I found it quite offensive to meet these people there when I spoke to them and discovered why they were there and what their problems were.
It seems that there is a great deal of force in Amendment 16, tabled by the noble Baroness, about the presumption of liberty, which takes us right back to the beginning of the exercise we are discussing. The points that are built into that amendment are those that would occur to any judge considering an application for bail in this situation. Most judges would, I think, see that the question to ask oneself is whether the individual would fail to comply with conditions or was likely to commit an offence. The value of having that set out in the Bill is that it will achieve some uniform standard throughout the system. The difficulty is that you have immigration officers and First-tier Tribunals up and down the country, and there will not be the same attention, uniformity of practice, application of presumptions and so on that one gets if the matter is set out in terms in the Bill. I would have thought that the matter was sufficiently important to do that, so that it would carry itself through the various steps that have been discussed by other noble Lords, with everybody knowing where they stand.
We are dealing here with people, many of whom will be held in prison conditions, who have either not committed an offence, or who have served their sentence and are being detained because time needs to go by for decisions about their status to be taken—that is all. It seems right that they should be given the benefit of the presumption of liberty.
Baroness Lister of Burtersett
My Lords, I cannot claim first-hand experience like other noble Lords, but I went to a meeting chaired by the noble Lord, Lord Roberts of Llandudno, where we heard from organisations that work with immigrants in detention. I thought that a powerful case was made—and has been made by other noble Lords—for the principles behind Amendments 16 and 17 in particular.
I will quote from a recent report by the Bingham Centre for the Rule of Law that emphasised as its cardinal principle the assumption of liberty. It stated another principle:
“The duration of detention must be within a prescribed applicable maximum duration, only invoked where justified”.
The report quotes a number of statements from the United Nations, in particular UNHCR detention guidelines that state:
“To guard against arbitrariness, maximum periods of detention should be set in national legislation. Without maximum periods, detention can become prolonged, and in some cases indefinite”.
It also quotes from a UNHCR global round table on alternatives to detention for asylum seekers, refugees, migrants and stateless persons, which states:
“Maximum time limits on ... administrative immigration detention in national legislation are an important step to avoiding prolonged or indefinite detention. Lack of knowledge about the end date of detention is seen as one of the most stressful aspects of immigration detention, in particular for stateless persons and migrants who cannot be removed for legal or practical reasons”.
I am sure that I do not have remind noble Lords that we will probably have rather more people in that position as a result of Clause 60 of the Bill.
Let us put ourselves in the shoes of people who are detained. What would it feel like not knowing how long you are going to be detained? I am not surprised that it is one of the most stressful things. I think that not having that knowledge could drive people over the edge, particularly when I hear about the conditions in which some people are being kept.
The UN Committee Against Torture urged the UK to introduce,
“a limit for immigration detention and take all necessary steps to prevent cases of de facto indefinite detention”.
We have already heard from other noble Lords that we are out of step with many other European countries and that there is no justification for it, not only on grounds of humanity but also of effectiveness. I hope that the Minister will listen to what is being said across the House and take it away to consider a possible amendment on Report.
Lord Ramsbotham
My Lords, I will speak briefly on Amendments 17 and 19 in my name and that of the noble Lord, Lord Roberts. I agree with every word that my noble and right reverend friend Lord Harries said. Following my inspection of Campsfield after a riot there, I raised for the first time my concern about one group of people who were being held in prisons: they were to be deported at the end of their sentence.
We have been talking about enforced removals and people sentenced to be deported are enforced removals. It seems to be absolute nonsense not to process that deportation while those people are serving their prison sentences, so that at the end of their sentence they go straight to the airport and out. Instead, what happens at the moment is that they go from prison into a detention centre and then the deportation process starts. That is causing an intense clogging in the detention centres. Having disaffected prisoners awaiting deportation in a detention centre also causes unrest in the centre, which was the case at Campsfield.
Lord Hannay of Chiswick (CB)
My Lords, Amendment 26 covers ground similar to that covered by an amendment much later in the proceedings, Amendment 49, which we will not be dealing with tonight. Amendment 26 is about appeals and seeks to remove from the scope of the Bill appeals by undergraduate or postgraduate students in full-time study at a recognised higher education institution.
Why am I moving this amendment? There is much common ground with the Government about the important role that the higher education sector plays in our economy and, above all, that our universities play in our economy. It is a massive benefit to this country. It accounted for £10.1 billion of invisible exports at the last time of asking, and that figure is rising and should continue to rise. It is also common ground with the Government and with those in the university sector—I declare an interest as I sit on the council of the University of Kent—that we want to see those student numbers increasing. Last July, the Government published a strategy for international students, and in it they foresaw a steady increase in the years ahead. They hoped for some 15% in the next few years.
There is also the less tangible aspect of the benefits to this country from postgraduate and undergraduate students, which is called “soft power”. When they have qualified, these students very frequently go back to their countries and retain very strong links with this country, often doing much business with our exporters, and are thus generally very positive. That is the good news.
The bad news is that the Government’s immigration policy is cumulatively hamstringing this vital invisible export industry. That is before the measures in the Bill, several of which are likely to be quite damaging, have taken effect. This cumulative effect is now under way, and if you ask me whether these concerns are well founded, the most recent figures produced by the Higher Education Statistics Agency in January 2014, which cover the last academic year for which there are figures—2012-13—are disturbing indeed. Those figures are before the cumulative effect that would come from this Bill because, of course, it is not yet in force.
I shall not go into too much detail on the figures, because there was a good deal of coverage of them at Second Reading, but some really stand out. The main one is that in the year 2012-13 overall numbers dropped for the first time since figures were produced in the early 1990s. They dropped by 1%. More seriously, perhaps, the figures for postgraduates—and postgraduates from countries outside the EU are extremely important for the future of our universities—dropped by 4%. Some of the figures for the countries of origin of large numbers of students coming to this country are really terrifying. The figure for India dropped by 49% in two years, and there are very substantial drops in the figures for those from Pakistan and other countries of the Indian subcontinent, Nigeria and so on. That is in a period when the figures for our main competitors—the United States and Australia—were going up, by 7% for the United States and 6.9% for Australia. The market is growing, we are losing market share, and that is not good news for this country.
In addition, I suggest that Ministers look at a recent study conducted by the National Union of Students, which it made available to those of us who are interested in this matter, and which was based on 3,000 students from outside the EU currently studying in this country. They were asked in January of this year about their reaction to certain matters. That, too, was not very comforting. The chilling effect that the Government’s immigration policies are having and are likely to have was very clear: 51% of those non-EU students found the UK Government’s attitude towards them “unwelcoming”. Has the Minister studied this survey by the National Union of Students? These people have no particular interest in the matter, because they are here already. However, they said in much larger numbers than that 51% that if they had been asked to undertake some of the burdens in the Bill, they probably would not have come; they would have gone somewhere else.
The question is: why not carve students out of the Bill? There is no requirement for the Government to include students in the Bill for public policy purposes. I accept that the Government have to make a return on economic migration to the UN, which has to include students as well as those who are more properly regarded as economic migrants. However, there is no need whatever for the Government to apply their immigration policy, these new measures, to students because they are economic migrants; of course, they are really not. These people bring to this country very large resources, to which I have already referred: £10.1 billion net in the course of the most recent year. They bring jobs to this country because they are creating employment in our universities. The study by the University of Sheffield, of which I am sure Ministers are well aware, shows just how much of a contribution they make to the economies of many of our university cities and towns.
Why are the Government not therefore prepared to listen to the views of four or five—I cannot remember the exact number now; it goes up all the time—Select Committees which have all said, “Please do not treat students, for public policy purposes, as economic migrants, because you are damaging a resource vital to this country”? I hope that the Government will reflect further on this and will see the advantages to them and to the whole country of simply removing them from the Bill. I hope we will then all be able to work together, which is what universities want to do. Those of us who work for universities want to see a buoyant, increasing number of students, undergraduates and postgraduates in full-time education, coming to this country and bringing huge benefits to us.
Baroness Lister of Burtersett
My Lords, as a member of the Joint Committee on Human Rights, I speak in particular to Amendment 27. At Second Reading, the Minister included in his list of myths surrounding the Bill that it undermines access to justice. The Joint Committee therefore looked again at this question. As the Minister may be aware, we published a second scrutiny report today. We write:
“We have considered carefully the Government’s argument that the right of effective access to a court or tribunal in immigration and asylum cases will be preserved by a combination of the continued availability of full appeals in cases concerning fundamental rights, the new system of administrative review, and the availability of judicial review, and its argument that the practical effectiveness of judicial review will not be affected by the proposed reforms to legal aid and judicial review itself. We do not share the Government’s confidence”.
We go on to say:
“We have already reported our concerns about the implications of the proposed residence test on effective access to justice. We have also inquired into the Government’s proposed reforms to judicial review and we will be reporting our conclusions in due course. For present purposes it is sufficient to say that, while we accept that it is a perfectly legitimate objective for the Government to seek to reduce the risk of unmeritorious claims being brought, we do have serious concerns about the effect of some of the Government’s proposed judicial review reforms on the practical ability to bring meritorious challenges to decisions, including in the immigration and asylum context … We also draw to Parliament’s attention the paradoxical fact that after years of seeking to reduce the number of immigration and asylum judicial review cases that have been causing backlogs in the High Court, including by transferring such cases from the High Court’s jurisdiction to the Upper Tribunal, the Government is now seeking to justify a significant reduction in appeal rights by reference to the continued availability of judicial review … In light of our concerns, we recommend that the removal of appeal rights for which the Bill provides should not be brought into force until Parliament is satisfied that the quality of first instance decision-making has improved sufficiently to remove the risk that meritorious appeals will be prevented from being brought”.
In other words, we express the spirit of Amendment 27.
Going beyond that, and speaking in a personal capacity, I also support my noble friends in their opposition to the question that Clause 11 should stand part of the Bill.
Baroness Smith of Basildon
My Lords, I speak to our Amendments 27 to 29, and to the question that the clause stand part of the Bill. We have heard examples from the noble Lord, Lord Hannay, and my noble friend Lady Lister of why we consider this clause one of the most controversial in the Bill.
The Government have made it clear that the clause reduces the number of immigration decisions that can be appealed from the current 17 to just four. Only three types of decision will remain appealable: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information could not be challenged before a tribunal. Instead, the Government’s plans are that an administrative review system be set up to, according the Government’s fact sheet on the clause,
“provide a proportionate and less costly mechanism for resolving case working errors”.
We can all sign up to a process that gives timely, accurate decisions with a swift process to address any errors. However, taken in context, that is not what this clause does. We have therefore tabled a number of amendments, and have given notice of our opposition to the clause standing part of the Bill. Often, clause stand part debates are used as a kind of probing amendment, a technical way of ensuring discussion on the principle of the clause or an attempt to tease out the detail and address questions. We will be doing that with this clause. However, I also say to your Lordships’ Committee that removing the clause entirely would be our preference given the current position. Failing that, our Amendment 27 would ensure that appeal rights could not be abolished until the quality of Home Office decision-making for managed migration is deemed by the Independent Chief Inspector of Borders and Immigration and the Secretary of State to be efficient, effective and fair. That would require that the provision be introduced by order subject to affirmative procedure; that is also the position of the Joint Committee on Human Rights.
We have also tabled Amendments 28 and 29 to introduce two new clauses. Amendment 28 would require the Secretary of State to undertake an impact assessment before being able to commence the clause. The issue of students, as raised by the noble Lord, Lord Hannay, would be relevant to Amendment 28. Amendment 29 would require the Secretary of State to undertake a review of the number of people successfully deported within a calendar year of a decision under Clauses 11 to 14.
We have tabled those amendments because of deep concerns about the clause. Our country has one of the most highly respected judicial systems in the world, and the right to appeal is a fundamental principle of British law. There can be few decisions more important, or which have a greater impact on an individual or community, than who is able to live here. These are decisions of life and livelihood which affect families, communities and, potentially, businesses and employers.
The noble Lord, Lord Hannay, has highlighted the situation with students. Other noble Lords are concerned about the position of families and children. However, we are looking at the wider concerns and principles raised by the Bill. The evidence, and the impact on businesses and the economy, make it very important that we get these decisions right. It is right that such a decision should be challengeable and that recourse should be available.
Immigration Bill
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Baroness Lister of Burtersett (Lab)
My Lords, the immigration debate was recently described as “rancid”, as politics has descended into what the article described as,
“the stinking gutter of xenophobia”.
The author was Ian Birrell, a former speechwriter to David Cameron. The stinking gutter of xenophobia diminishes us all, and that is the context in which this Bill has to be understood, as a number of noble Lords have already eloquently underlined. When publishing the Bill, the Home Secretary said that it was designed to
“create a really hostile environment for illegal migrants”.
The fear of organisations working in the field is that it will indeed create a hostile environment, but for migrants and minority ethnic groups more generally. The UN High Commissioners for Refugees has warned that it will lead to further stigmatisation of, and discrimination against, refugees and asylum seekers.
The Joint Committee on Human Rights, of which I am a member, has likewise cautioned that a disqualification from renting or occupying private sector accommodation on grounds of immigration status will heighten the risk of wider, even if unintentional, racial discrimination in lettings. Moreover, it could give rise to homelessness in the case of people who have no right to remain in the UK but who face genuine barriers to leaving. This potentially risks breaches of the right not to be subject to inhuman or degrading treatment under Article 3 of the European Convention on Human Rights.
I am not reassured by the Government’s response to the committee and I am even less reassured having received the Residential Landlords Association briefing, which argues that the proposal is unworkable and will have unintended, negative consequences. This is reinforced by having listened to the noble Lord, Lord Best, who is such an expert in the area of housing. While I welcome the fact that there will be some form of piloting before national rollout, can the Minister explain how that will work and say what steps will be taken to monitor the impact from an equalities and human rights perspective?
Among other concerns raised in the JCHR’s legislative scrutiny report are the significant limitation of appeal rights, which we believe,
“is not compatible with the common law right of access to a court or tribunal in relation to unlawful immigration decisions, and the right to an effective remedy”.
This is particularly so in the light of the relatively high success rate for such appeals,
“due to the well-documented shortcomings in the quality of decision-making … the importance of appeals as a means of enforcing the children duty in s. 55 of the Borders, Citzenship and Immigration Act 2009; … and … the likely cumulative impact of proposed changes to legal aid and judicial review”.
I hope that the Minister was not implying that the Joint Committee has been peddling myths when he included that in his little list of myths in his speech. In the context of what is happening to judicial review, the Committee was also not satisfied with,
“the Government’s reliance on the continued availability of judicial review to challenge the Secretary of State’s certification that a human rights appeal can be heard out of country”.
Secondly, we expressed our unease about Clause 14, which is,
“a statutory provision which purports to tell courts and tribunals that ‘little weight’ should be given to a particular consideration”,
in any “judicial balancing exercise”, as is proposed with regard to Article 8 claims concerning the right to respect for private and family life. This appeared to us to be,
“a significant legislative trespass into the judicial function”.
Thirdly, we raised the possible implications of the Bill for the duty to safeguard and promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act. We welcomed the Government’s clarification that nothing in the Bill changes that duty but warned that it is not clear in practice how the Bill is to be read alongside it. I also welcome the clarification in the Government’s response to our report that the Section 55 duty will apply to children who do not come within the Bill’s definition of a qualifying child.
Nevertheless, I share the concern raised by the Refugee Children’s Consortium and BID that Clause 14 does not explicitly include the best interests of children in the list of public interest considerations to which courts and tribunals should have regard, even though it is accepted by the Government that courts and tribunals must treat the best interests of children as a primary consideration in line with Article 3 of the UNCRC. The consortium has warned that,
“the Bill will have significant detrimental consequences for children”.
That point was raised very eloquently by the right reverend Prelate the Bishop of Leicester.
Fears have also been expressed about some of the Bill’s health provisions and the associated proposals for NHS charging outlined in the Department of Health consultation. While welcoming the retention of free access to GP and nurse appointments, the Refugee Children’s Consortium warns that any treatment needed as a result could now become chargeable. It believes that this,
“will serve to discourage refugee and migrant children and families from accessing healthcare services”,
with a very likely,
“detrimental impact on children's health, well-being and safety as well as on public health”.
Other organisations point to likely damaging consequences for HIV testing.
Doctors of the World raised particular concerns about children not receiving vital immunisations and the risk for their futures if their mothers do not receive any or timely antenatal care. The Royal College of Midwives and Maternity Action also express their fear that these proposed changes will deter some pregnant women from seeking and accessing maternity care. They point out that the negative impact on the health of these women and their babies could perversely lead to a need for more medical care at a greater cost.
I also want to express my concern about Clause 60. I very much welcome what the noble Lord, Lord Bourne, said about that. As ILPA warns, the removal of the,
“‘right to have rights’ … is a retrograde step indeed”.
I add that it is the more so because it would be retrospective. Liberty condemns it as an archaic punishment rendering the individual completely voiceless and vulnerable to human rights violations. I therefore agree with Sarah Teather MP that,
“making people stateless is simply wrong”—[Official Report, Commons, 30/1/14; col. 1079.]—
regardless of how many people are involved. We have heard from my noble friend Lady Kennedy what that can mean in practice.
I hope that in Committee we might be able to consider some of the issues raised by the JCHR’s inquiry into unaccompanied migrant children and young people and the Children’s Society’s parliamentary inquiry into asylum support for children and young people, of which I was a member. Among the latter’s recommendations were reform of the asylum support system and permission to work for asylum seekers who do not receive a decision on their application within six months, a point which was raised by my noble friend Lord Judd in his marvellous speech and by the noble Lord, Lord Roberts. The inquiry expressed its shock at evidence it received of children left destitute and homeless, entirely without institutional support. The fear is that this Bill could lead to even more widespread destitution and homelessness among these children and others, as well as infringe important human rights.
The more unpopular the group, the greater the responsibility on your Lordships’ House to look dispassionately yet sympathetically at their needs and their rights. Many outside organisations which campaign tirelessly on behalf of migrants, refugees and asylum seekers are now looking to us to speak up on their behalf and to amend the more damaging provisions in this Bill. I hope that we will not let them down.
Syrian Refugees
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Lord Taylor of Holbeach
I make no commitments on the latter point, and I cannot give a breakdown of the location of the asylum seekers—the 1,100 Syrian nationals—who have been successful in their applications. I know that 1,566 Syrians applied for asylum in the year ending September 2013, the latest data we have. The UK is the largest recipient of asylum seekers from Syria behind Germany and Sweden.
Baroness Lister of Burtersett (Lab)
My Lords, I welcome what the Government are doing, but I do not see that it is an either/or situation. I have not heard a clear reason why the Minister is resisting the plea made by a number of voluntary organisations in an open letter to the Prime Minister and the point made by my noble friend. Surely we could be doing something to open our doors to some very vulnerable people.
Anti-social Behaviour, Crime and Policing Bill
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Baroness Lister of Burtersett (Lab)
My Lords, I am pleased to speak in support of Amendment 80G—to which I added my name as a member of the Joint Committee on Human Rights—and to follow the noble Baroness, Lady O’Loan, who has moved the amendment so powerfully.
I apologise for not being able to be present during the Bill’s Committee stage, but I have read the debate. It was striking that no noble Lord other than the Minister, of course, spoke in support of Clause 91. The noble Baroness, Lady Berridge, who is also a member of the Joint Committee on Human Rights, called it an unhelpful precedent. The noble Lord, Lord Faulks, lately of the Joint Committee on Human Rights, and the noble Lord, Lord Paddick—who have both already been quoted—called it a step too far. To the Minister’s credit, he has taken note and come back with government amendments. In my view, however, his amendments are a step not far enough. They do not meet the concerns of the Joint Committee on Human Rights which have been voiced in two reports on the Bill and lie behind Amendment 80G. The noble Lords who serve on the JCHR said in Committee that Clause 91 smacks of punishment rather than serving as a means of preventing harm. As the noble Baroness, Lady O’Loan, said, it would create a double punishment. The Minister talks about tough action, but tough action was taken after the riots, as the noble Lord, Lord Faulks, argued strongly in Committee. Moreover, in many cases the punishment will be applied to people who are totally innocent of the behaviour in question. The noble Baroness, Lady Hamwee, talked about the clause creating new victims.
In response to the JCHR’s concerns on this point, the Minister tried to reassure your Lordships that the power would be discretionary and the courts would have regard to what is reasonable before granting a possession order. He also argued in Committee that it is an established principle of tenancy law that a tenant is held responsible for the behaviour of members of their household. Surely tenancy law concerns behaviour that affects the accommodation and/or contravenes a condition of the tenancy and not behaviour that could have taken place hundreds of miles away. Indeed, the Minister himself has dubbed it “riot tourism”. That is not a phrase that I would use but it underlines the fact that we are talking about behaviour that has no implications for the neighbours of those concerned, and nor does it affect the landlord.
Research into existing discretionary anti-social behaviour powers reveals how, in practice, women are often held responsible for the behaviour of sons and/or male partners. Reporting on this research in an article in the Journal of Social Welfare and Family Law, Caroline Hunter and Judy Nixon note that two out of three complaints of anti-social behaviour against women heads of households concern the behaviour of teenage children—mainly sons—or male partners or boyfriends. The article states:
“Regardless of the difficulty and in some cases, the impossibility women experienced in controlling the behaviour of their teenage sons or boyfriends, they were deemed responsible for the behaviour and were as a result evicted from their homes … while the lack of fault on the part of the women in many of these cases was striking and in some cases acknowledged by the judges, this was not a sufficient factor to prevent the women from being punished and evicted from their homes”.
So I am not reassured by what the Minister said about this being discretionary and about the reasonableness of the judicial system.
Subsequent analysis of more recent Court of Appeal cases found a similar pattern, in particular in relation to the behaviour of male partners—not underaged children but partners. Limiting the operation of Clause 91 to cases where a riot-related offence is committed by an adult member of the household, as under the government amendment, in practice makes little difference. In many cases, it will be adults, probably males, sons or partners, who are the perpetrators.
The phrase of the noble Baroness, Lady Hamwee, was striking: we are creating new victims here. Those innocent victims who will lose their homes will disproportionately be women and children. The Minister also tried to reassure us by saying that the impact will be small, there will not be that many people affected. What about every woman and child who loses their house, their home, because of this provision? Surely that is not just; that is not fair.
Lord Hylton (CB)
My Lords, I am sure that nobody wishes to condone rioting or the serious damage and intimidation that it can cause. Most of us are grateful to the Government for bringing forward their amendments. Nevertheless, they do not deal with the discrimination against, for example, owner-occupiers, because they touch only on secure and assured tenants. There is the further point that the Bill, even as amended, is very likely to punish the innocent. Unless the Government can come back with a very much better defence of the clause, I shall certainly support the noble Baroness and my noble friend if they wish to press the amendment to a Division.
Baroness Butler-Sloss (CB)
My Lords, I regret that I was not able to be present for the Committee stage of the Bill. As the House knows, there were various clashes of other important Bills at the same time, so I come new to this issue. It seems to me that what the Government are trying to do here is to give an additional power to the courts. That point has not yet been made by anyone, other than the Minister. It is of course a matter entirely for the court whether or not such an order is made. I see that Clause 91(1) refers to,
“grounds on which court may order possession … if it considers it reasonable”.
It seems to me that if a university student, who is almost certainly over 18, goes AWOL and behaves extremely badly in university precincts but has a mother and three young siblings living in the house, the mother will have absolutely no control over the young man at university. She probably does not even have any financial control these days. The court would be certain to look at the hardship of the situation and this would be a circuit judge in the county court. I am not particularly keen on this addition to the powers of the court but I would find it difficult to believe that a court would act other than justly and with mercy in situations that would require it.
Baroness Lister of Burtersett
Before the noble and learned Baroness sits down, does she accept that the research which I quoted suggests that the courts have perhaps not always been reasonable in their application of anti-social behaviour legislation and that lone mothers, in particular, have been evicted because of the behaviour of men in their household who they simply were unable to control?
Baroness Butler-Sloss
I understand the point and I would hope that there would be an appeal system so that at some stage this issue would come before the Court of Appeal, which would deal with it appropriately.
Statement of Changes in Immigration Rules
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Baroness Lister of Burtersett
My Lords, it is always a pleasure to follow the noble Baroness, Lady Browning. She has raised some very pertinent questions. While I want to focus on the income thresholds, I want also to draw attention to the concerns raised by BID, Bail for Immigration Detainees, about the implications for children of measures to ensure the deportation of foreign criminals.
BID’s experience is that wide powers already exist to deport foreign national ex-offenders, and in the very few appeals against this which are successful it is often because the courts have found that grave harm would be caused to a child by deporting the parents. It says that the Government are now seeking to prevent the courts from upholding the law to protect these families. In the view of BID, the measures do not allow for adequate consideration of the child’s best interests. For example, it does not follow that it is in a child’s best interests, if there is another relative that they can live with in the country, to live with that relative and to be permanently parted from their parents; or, say, if the parents have been in prison and the child has been living in foster care, for them to be deported with their parent to a country that they have never visited before.
Liberty, too, raises concerns about the implications of the changes for children and concludes:
“It is clear from the Government’s proposals that it is paying little more than lip service to the importance of UK children’s interests in immigration decisions … Far from placing children at the heart of immigration decisions, the proposed changes seek to relieve officials of the responsibility for weighing up the interests of a child in any but the most clear cut cases”.
I would welcome the Minister’s response to that and his explanation of how children’s interests will be safeguarded.
As we have heard, the Home Office’s human rights statement and the Home Secretary have emphasised that Article 8 of the European Convention on Human Rights, on the right to respect for privacy and family life, is a qualified right. As my noble friend Lady Smith has already said, we accept that. However, as Liberty argues, there is,
“a delicate balancing exercise to be struck between the rights of the individual and wider social interests in, for example, the reduction of crime and disorder and the protection of the economic interests of the UK”.
Liberty and I do not accept that the proposed changes,
“properly accommodate the fact-sensitive balancing exercise that the right demands”.
Liberty argues that instead they,
“represent a one-size-fits-all approach to complex immigration decisions. … Far from better reflecting the proportionality required under Article 8, the proposed changes seek to circumvent the crucial fact sensitive consideration of decisions involving fundamental rights”.
The Government argue that the income threshold is proportionate in meeting their legitimate aims of safeguarding the economic well-being of the UK. It is a sad day when the economic well-being of the UK depends on keeping apart a few thousand poor families each year without adequate attention being given to safeguarding the well-being of children and their families.
The Migrant Rights Network points out that, because of differences in earnings across different social groups, the new income requirement will disadvantage women, who we know are still on average paid less than men, some minority ethnic groups and people living outside the south-east. My noble friend gave an example that illustrated the unfairness of that fairly arbitrary or one-size-fits-all limit.
The Home Office human rights statement acknowledges that the income threshold may be challenged under Article 14 of the European Convention of Human Rights in terms of its equalities impact, particularly with regard to whether this constitutes unjustified indirect discrimination against these groups—for example, women and those nationalities who the evidence shows are likely to have lower earnings. Having raised this possibility, the Home Office’s only answer was that this will be mitigated in some cases by the exemption from the income threshold of those in receipt of carer’s allowance, and that certain contributory benefits such as maternity allowance will be allowed to count towards the income threshold. That is welcome as far as it goes, but it does not go very far. Otherwise, the Home Office considers that any indirect discrimination is proportionate to public policy objectives. We will see, but I imagine that this will be tested in the courts.
I find it repugnant that we are going to means test family life. Means-testing generally purports to target help on the needy and exclude the better off. This is a reverse means test that excludes the needy, as if people on low incomes have nothing to contribute to this country. The existing “recourse to public funds” rule is already designed to prevent the supposed burden on the taxpayer that we hear so much about. According to Liberty, and as my noble friend has already said, it is being replaced by a far blunter instrument.
The impact statement makes a virtue of the shift from a more discretionary approach, which it says is complicated for caseworkers to operate, yet in other areas of policy the Government favour more discretionary approaches and say that we have to get away from a one-size-fits-all approach. Indeed, as Liberty argues, the proposed changes as a whole contain an armoury of blunt instruments which, far from better reflecting Article 8 and the Immigration Rules, may well leave the rules in breach of it.
The changes reflect badly on a Government who claim to be the most family-friendly Government ever and who are supposed to be applying a family test to all their domestic policy decisions, as they suggest that some families are considered not to matter because of their immigration status and their poverty.
Lord Avebury
My Lords, this is a very important debate, focusing as it does on family and children’s rights. We have all heard from organisations such as the ones that have been mentioned, including by the noble Baroness, Lady Lister—Liberty, Bail for Immigration Detainees, and so on—and I shall rely on the evidence that has been given to them in my later remarks.
Since these changes were published, a further three sets of changes have appeared: HC 514 of eight pages, HC 565 comprising 56 pages and Cm 8423 with 276 pages. These latter two statements spell out in detail how decisions on leave to enter or remain are to be made, following the rulings of the Supreme Court in Alvi. To summarise, at the risk of oversimplification, Alvi said that statements in guidance and elsewhere that were not in the Immigration Rules, such as particular types of evidence that have to be submitted with an application, were unlawful because they had not been laid before Parliament as required by the parent Act. I realise that we are not talking about these subsequent statements of changes this evening, but obviously the legal advisers and their clients who are considering the effects of HC 194 will have to look at these other instruments as well. It would be astonishing if, given the length and complexity of all the changes taken together, there were not a steep rise in the number of applications rejected because of some minor omission or mistake.
My first example is from the organisation BritCits, which defends the interests of families who are affected by this set of changes. Rob is a British professional musician with a first-class degree in music. He has taught music and performed at concerts, has an eight year-old son and lives in a detached house in Huddersfield. He fell in love with and married an Indonesian woman and his wife applied for a spouse visa on 26 June. As a self-employed worker, he submitted three years of bank statements—originals and copies—and everything as requested, leaving no stone unturned. For over two months the message was that the application was under process at the British embassy, until early September when an e-mail arrived asking for the spouse to take an SELT English test. The e-mail indicated that if she did not submit this within seven days, the application would be rejected. Despite the short notice, the wife took the test and submitted it on time. A month later, they received a message saying that the application was refused because of the English test. Rob was amazed because his wife’s English was extremely good. On inquiry, they found that she had passed the reading, writing and listening requirements but had inadvertently omitted the speaking part. A lawyer advised them that the only remedy was to lodge a fresh application, at a cost of £900. The same thing happened to a friend of mine. It is not an uncommon experience for people to make a minor error and find that the whole application has been rejected. The UKBA does not give applicants a chance of remedying minor omissions of this sort.
The Motion says that the Government have not demonstrated that the specific minimum financial requirement is the most effective way to deliver fairness. That stricture can also be extended to the provisions dealing with savings. This may answer part of the question put by the noble Baroness, Lady Browning: I quote the example of a woman with three children applying to join her husband who would have to show evidence of savings of £62,500, which is well beyond the resources of most young families.
A four-page guide produced by UKBA tells applicants that they need to read Appendix FM-SE, another 26 pages of dense prose, which was added to the rules on 20 July, specifying what supporting documents may or not be supplied as evidence of compliance with particular financial requirements. The sums involved are undoubtedly substantial and they mean that many spouses and children who would have been able to satisfy the previous requirement—that they could be supported and accommodated without reliance on public funds—will now be denied entry. That is, indeed, the letter of government policy. The Migration Advisory Committee estimates that if the financial requirement in this set of rules had been in force in 2011, it would have excluded 45% of successful applicants, even though all those spouses and children were assessed as not needing access to public funds.
Asylum Seekers: Children
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Baroness Lister of Burtersett
To ask Her Majesty’s Government what action they propose, as part of their review of the level of asylum support, to tackle severe poverty experienced by children in asylum-seeking families.
The Minister of State, Home Office (Lord Henley)
My Lords, asylum support rates are currently under routine review. Careful consideration is always given to the impact of rates on families with children. Any decision to adjust rates will also reflect the temporary nature of asylum support and the fact that asylum seekers have access to fully equipped accommodation, with utility bills paid. No person who has sought protection in the United Kingdom need be destitute while their application is decided.
Baroness Lister of Burtersett
My Lords, the Children’s Society and refugee organisations have reported alarming evidence of growing destitution among asylum-seeking children, young people and families, due in part to levels of financial assistance well below those of income support. Can the Minister explain how this state of affairs is compatible with the Government’s obligations under Article 27 of the UN Convention on the Rights of the Child and Article 11 of the International Covenant on Economic, Social and Cultural Rights, both of which uphold the right to an adequate standard of living?
Lord Henley
My Lords, I am aware of the report from the Children’s Society, and my honourable friend Damian Green and officials have met the society to discuss it. The noble Baroness asked for an explanation of the disparity between income support levels and the rates of support that we offer asylum seekers. The simple reason is that asylum seekers get all their accommodation and utility bills paid, and therefore it is not necessary to pay their support at 100%. The noble Baroness will also be aware—I think this is important—of how this disparity occurred. Until 2008 asylum rates were set at 70% of income support, and a decision was then taken by the Government of the time—who, as the noble Baroness will be aware, happened to be a Labour Government—to break that link. Since then, the levels have been set annually each year in accordance with what has been felt to be appropriate.