Border Security, Asylum and Immigration Bill

(Limited Text - Ministerial Extracts only)

Committee stage
Monday 8th September 2025 Lords Chamber

[Lord Cameron of Lochiel (Con)]

My Lords, I too offer best wishes, from these Benches, to the noble Baroness, Lady Jones, for a speedy recovery.

I am grateful to the noble Baroness, Lady Bennett, for tabling these amendments but, like several other speakers before me, it is our party’s position that the legislation already strikes a careful and considered balance between the public interest in deporting foreign criminals and the need to protect the rights of their partners and children under Article 8. Section 117C of the 2002 Act is clear: in the case of those sentenced to less than four years’ imprisonment, deportation is the default position unless one of two well-defined exceptions apply. Exception 2, to which Amendment 136 relates, already provides that where there is a genuine and subsisting relationship with the qualifying partner or qualifying child, and the effect of deportation on that partner or child would be “unduly harsh”, deportation should not proceed. So the amendment before us appears to restate protections that are already embedded in the legislation, and the courts already have the discretion—indeed, a duty—to interpret and apply that exception.

We have to be mindful of clarity in the law and not introduce duplicating or potentially confusing provisions. In short, with the greatest respect, the amendments would not meaningfully add to the safeguards already in place, and for that reason we cannot support them.

[The Minister of State, Home Office (Lord Hanson of Flint) (Lab)]

I am grateful to the noble Baroness, Lady Bennett of Manor Castle, for moving the amendment. I hope she will pass on the best wishes of His Majesty’s Government and myself to the noble Baroness, Lady Jones of Moulsecoomb, regarding her absence from this House. We look forward to undoubtedly seeing her back for day 6 of the Border Security, Asylum and Immigration Bill, on a date to be determined in October.

The noble Baroness’s Amendment 187 would impose a duty on the Secretary of State to have due regard to the unity of the family in exercising immigration functions. It is important that the noble Baroness has raised this point, but I share the view expressed by both the Opposition Front Bench and the noble Lord, Lord Pannick, that the amendment is unnecessary.

--- Later in debate ---

[Lord Davies of Gower (Con)]

My Lords, we on these Benches agree that detained persons should, of course, have access to good legal representation when they are detained. This amendment pertains to legal aid for those detained persons. As noble Lords are aware, legal aid is already provided for those who bring asylum cases or other matters such as immigration bail, certain applications by victims of domestic abuse or trafficking, proceedings before the Special Immigration Appeals Commission, asylum support applications and applications made by separated children. Put simply, this support is already clearly in place. It is our position that extensive provision is already made and at significant cost.

[Lord Hanson of Flint (Lab)]

My Lords, I am grateful to my noble friend Lord Bach for his amendment and for the support of the noble Baroness, Lady Prashar, the noble Lord, Lord Carlile of Berriew and the noble Baroness, Lady Hamwee, on behalf of her noble friend Lady Ludford. I have also heard contributions from the Floor of the Committee from the noble Lords, Lord Kerr of Kinlochard and Lord Pannick, my noble friend Lady Chakrabarti, and the noble and right reverend Lord, Lord Sentamu, all of which were broadly in support of my noble friend Lord Bach’s Amendment 137.

This amendment would impose a duty to make civil legal aid available to detained persons within 48 hours. I am going to repeat what noble Lords have said already, because it is important to put it on the record. People detained under immigration powers in prisons and in immigration removal centres are provided initially with 30 minutes of free legal aid advice through the detained duty advice scheme—DDAS. This is a triaged appointment which supports people to meet with a legal provider who may provide further advice, subject to the matter being within scope of legal aid and the detained person’s eligibility. I want to be clear that there is this 30-minute availability, as noble Lords have mentioned. It is important to re-emphasise that, following that DDAS assessment, whether a legal representative accepts or takes on a case is subject to a merit test and to a decision about independent legal representation, in line with legal aid. There is already some scope for reassurance. I hope that the Committee can accept that this well-established service is in place to provide people with quick and easy access to legal provision.

I am conscious that my noble friend Lord Bach mentioned the take-up. I fully accept that this is an important matter for him, and for the Committee and the Government to consider. Take-up is monitored by officials from the Home Office and the Ministry of Justice. It will be examined in detail. I am happy to look at how we can improve take-up of the initial provision, but the initial provision is there.

--- Later in debate ---

[Lord Carlile of Berriew (CB)]

I am listening very carefully to what the Minister says, but does he not agree that the very high percentage of these cases that reach an appellate level in which the litigants are not represented by lawyers is alarming evidence that if legal aid is available at an early stage, it is not having much effect?

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord for that intervention. I do not have before me, although I perhaps should, the figures to which he refers, but Ministers can certainly examine, and look at how we improve, that. It is in the interests of the Government—never mind of the individuals who are seeking asylum—to ensure that we have speedy, correct asylum decisions that get to the heart of the person’s asylum claim as a matter of urgency, rather than going through tortuous numbers of appeals and other legal matters. We must get to a position whereby the Government can determine whether someone has a legitimate asylum claim and, if so, can act upon it or, if not, can take action to deny that asylum claim and put in place the consequential action to be taken.

[Lord Kerr of Kinlochard (CB)]

So the Goschen/Empey number is neither here nor there. It is not a watertight compartment. The country can decide how much money to put into legal aid. There is also an offsetting benefit, which the Minister has been explaining, from speeding up the process, making sure that good decisions are taken and courts’ time is not wasted. So the Goschen question, to be honest, is irrelevant to this issue. My argument for economy is based on taking the two things together: the speed of the system, the cost of delays, unnecessary detentions and backlogs of asylum cases versus the undoubted additional cost of legal aid.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord, Lord Kerr. I put it to the Committee that I sense that my noble friend Lord Bach’s amendment is now being interpreted as being potentially much wider than certainly I took it to be on initial examination of that amendment.

Recess has meant that we have not had as much discussion about that as we may have wanted to have. The main point here is that, under current MoJ/Home Office determinations, 30 minutes is available, and subsequent legal support is available subject to tests of eligibility, et cetera. I think that goes parallel to the wish of the Government to put in additional advisers to speed up applications, to make sure that there is better-quality initial decision-making, but I am always grateful to be advised by the Committee.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to my noble friend the Minister for giving way. While he is still on his feet—I love that device—and before my noble friend Lord Bach responds, I think I am hearing an understandable response to the noble Viscount, Lord Goschen, and the noble Lord, Lord Empey, that at the moment none of us has a view of precise figures, but we could examine that, and maybe that should go into the mix of a future discussion on Report.

However, I have to agree with noble Lords who have said that this is not a zero-sum game between justice and efficiency. Indeed, I just wanted to ask my noble friend the Minister whether he agrees—I think he indicated that he does—with judges who have had to deal with cases of unrepresented people about how much time and energy that adds to hearings that, I believe, the Government actually want to speed up. In any calculation that the Minister comes back with on Report, I hope that officials will add that component for delay—an unrepresented person in an asylum case; that should go into the mix.

[Lord Hanson of Flint (Lab)]

I am grateful to my noble friend. I draw the Committee back to where we are at the moment: an individual in detention can have 30 minutes’ worth of legal advice very quickly after they have requested it. There may be an issue around take-up. We are monitoring take-up on a regular basis and want to increase that take-up, but that 30 minutes is there. If further advice is required, on the merits test that can be taken forward as of now.

My noble friend’s amendment may take that issue wider than that discussion. It is the Government’s objective to speed up claims to get to decisions on asylum. We are doing that through executive action, not legislation, increasing the number of people taking decisions and making it much quicker and fairer, because that is in the public interest, as has been mentioned by all. I do not think we are going to resolve that issue in Committee today. I have tried to set out where I think we are, and my noble friend has tabled his amendment.

Serious questions have been raised on these issues by me, by the noble Viscount and by the noble Lord, Lord Empey. I ask my noble friend to withdraw his amendment, because I believe the Government’s case as I have put it is the right course of action on those issues. If we are going to have even further discussion on the points he has made, we need to have some better information on which to base it, even though I accept that for some members of the Committee, that becomes a matter of principle.

[Lord Pannick (CB)]

I am very grateful. The noble Lord has been very generous with time on this important matter. I entirely understand his point that further factual information is required. Will he do his best to ensure that we do not wait until Report to receive that information, and that at least those who have spoken in this debate and the Library generally receive a written explanation of the factual position as seen by the department on the cost of implementing the amendment of the noble Lord, Lord Bach, the 30 minutes, and the take-up? Will he also commit to meeting with noble Lords who are concerned about this matter, in particular the noble Lord, Lord Bach, so we can see whether there is a way forward prior to Report?

[Lord Hanson of Flint (Lab)]

I am grateful for that intervention. The points made by the noble Lord, Lord Pannick, are valid and I will do my best to examine them. Some of these issues are within the Ministry of Justice, not the Home Office, but I will examine those points in detail and make sure that we respond to those who have spoken in the debate and potentially put a note in the Library of the House accordingly.

I want to re-emphasise that the Government strongly believe that there is a good offer at the moment. That offer is available to all who seek it, and there is the potential for further advice if the case merits it and for us to examine how we monitor take-up. I will certainly look at the points that have been raised, but in the meantime, I ask my noble friend to withdraw his amendment.

[Lord Bach (Lab)]

My Lords, I start by reminding the Committee that in this very complicated and important Bill, this is the only amendment, and therefore the only discussion there has been, on the legal aid issue, so I do not apologise for the time this debate has taken. Everybody who has spoken, on all sides, has taken this issue seriously, as they ought to, because it is very serious, given the principles behind the rule of law. I was pleased to hear the noble Lord on the Front Bench repeat what I knew to be the case—that that side as well as this side, and all sides of this House, believe it important that the rule of law applies when non-nationals are detained, and that those people are as entitled as anyone else to have the benefit of legal advice. That is a big principle and the one behind this amendment, so I am glad it is accepted.

I am really grateful, in that no mover of an amendment could have enjoyed a more expert team of people speaking on behalf of the amendment—or, indeed, not on its behalf. Every contribution was important, not least of all that of my noble friend the Minister, who in his usual courteous way listened to the debate and answered it as well as it could be answered.

--- Later in debate ---

[Lord Lexden (Con)]

My Lords, the question was posed by my noble friend Lord Jackson—and touched on by, I think, my noble friend Lord Harper—as to why Irish citizens are not deported. The answer lies in the Ireland Act 1949, which was passed by this Parliament when the Irish Free State turned itself into a republic. The Ireland Act 1949 states that Irish citizens should not be treated as foreign citizens for the purposes of British law, which is why Irish citizens can vote in our elections and why Irish prisoners are not sent to the Republic of Ireland.

[Lord Hanson of Flint (Lab)]

My Lords, I am grateful, as ever, to the noble Lords, Lord Cameron and Lord Jackson, for their amendments. I echo the comments of the noble Lords, Lord Pannick and Lord Jackson, about my noble friend Lord Ponsonby of Shulbrede. He has served his party and Government over many years, and he deserves to be recognised for the efforts that he has put in. I am pleased to endorse those sentiments from the Committee today, not least because I have shared an office with him for the past 13 months of my term in this Government. I will pass on the Hansard reference to him, so he can read the responses himself.

Foreign nationals who commit crime in the UK should be in no doubt that the law will be enforced and, where appropriate, we will pursue their deportation. The noble Lord, Lord Jackson, mentioned this in passing, but it is worth placing it on record that 5,179 foreign national offenders have been deported in the 12 months between July 2024 to July 2025—a 14% increase on the previous year.

On a personal note, I am grateful for the comments about my continuing tenure in this job. I am commencing my 15th year as a Minister, 28 years overall as either a Minister or a shadow Minister, which is quite a long time. I have been around this block several times and I can recall, on foreign national prisoners, going to Nigeria in 2008 and negotiating a foreign national prisoner transfer with the Nigerian Government. Because this falls within the MoJ, I will update colleagues in due course about any potential new prisoner transfer agreements being developed.

Amendment 138 seeks to prevent any challenge—this is a key point from the noble Lord, Lord Pannick—to an automatic deportation decision and to prevent a deportation order being made when there is an appeal against a sentence. Amendment 203A, from the noble Lord, Lord Jackson, seeks to prevent any appeal against deportation; I will refer to the circumstances around that in a moment. Both amendments would remove any challenge to deportation and would, if nothing else, be contrary to the withdrawal agreement, which the previous Government negotiated and which requires us to provide a right of appeal against deportation for beneficiaries of the withdrawal agreement.

For other foreign national offenders, the right to appeal deportation was removed by statute in 2014 by the previous Government. Appeals can now be made against only the refusal of a human rights claim, the refusal of a protection claim or a decision to revoke a protection status. In any event, the amendments would be contrary to Article 13 of the ECHR when read with other rights. We can have a debate about the ECHR, and I am sure that we will, at the moment, the amendments would be contrary to those rights. It would also be unconstitutional and contrary to the ECHR to deny courts the ability to set aside a decision by the Secretary of State when such a decision may be manifestly wrong. This Government take citizens’ rights very seriously and we continue to work constructively with the EU to ensure that we meet our obligations under the withdrawal agreement.

Amendment 203A, from the noble Lord, Lord Jackson, would also undermine the UK’s agreement with Ireland on the deportation of Irish citizens. There is a range of legislation around that, but since 2007, public interest has been the qualifying matter. Irish citizens are exempt from automatic deportation, except in exceptional circumstances where the Secretary of State can determine that it is in the interests of the public at large. It would also undermine the protections against deportation afforded to certain Commonwealth nationals. It would set an artificial deadline for the making of a deportation order, preventing any leave being granted to a person who made a successful human rights or protection claim.

Amendment 139 seeks to extend automatic deportation to any foreign national convicted of an offence in the UK or charged with an immigration offence, without consideration of their human rights. As the noble Lords, Lord Oates and Lord Pannick, mentioned, it would remove protections for under-18s and victims of human trafficking. It would also require a court to pass a sentence of deportation to any foreign national convicted of an offence in the UK. In my view, these amendments would not be workable and would be contrary to our international obligations.

For the benefit of the noble Lord, Lord Pannick, I say again that the Government are committed to the protection of human rights and to meeting our international obligations. The Prime Minister has made clear that the United Kingdom is unequivocally committed to the ECHR, and these amendments would not prevent persons being deported from raising human rights claims with the European Court of Human Rights. They would deliver nothing except the outsourcing of deportation considerations to Strasbourg and would slow down the removal of those being deported. The amendments would also undermine our obligations to identify and support victims of trafficking, as set out in the Council of Europe Convention on Action against Trafficking in Human Beings, of which we are a signatory.

I hope that noble Lords are getting the general sense that I am not going to be in favour of the amendments. I can continue, should noble Lords wish me to do so.

[Lord Harper (Con)]

The Minister has made very clear his approach to the amendments, but I want to press him a bit. The Government accept that in some cases the courts are not drawing the lines in the right place, which is why the Government have suggested, as the noble Lord, Lord Pannick, referenced, that they will issue further guidance to courts to make these decisions and draw the lines in a different place. Is guidance going to be sufficient to alter where judges make these decisions, or do we need to change the law? The Minister may not agree with these proposals, but I would argue that you do need to change the law. If he does not think that these proposals are okay but thinks that courts are not getting it right at the moment, the Government should bring forward their own amendments on Report. I suspect that this House will give them a fair hearing.

[Lord Hanson of Flint (Lab)]

The noble Lord raises perfectly valid questions. I was clear to the House and have been today to the Committee that the Government will examine the European Court of Human Rights Article 8 requirements. We will be issuing guidance on that and have some further discussion on what that means in practice. We are still considering those matters, but we not minded at the moment to bring forward legislation—and I am certainly not minded to support, for the reasons that I have said, the amendments from the Opposition Front Bench and from the noble Lord, Lord Jackson. I hope that I have been clear on that.

We are committed to reforms across the immigration system. It is right that we take action against foreign national offenders in the UK before they get the opportunity to put routes down in the UK. We will do what we can to protect local communities and prevent crime. We will simplify the rules and processes for removing foreign national offenders and take further targeted action against recent arrivals who commit crime in the UK before their offending can escalate.

Later this year, as the noble Lord is intimating, we will set out more detailed reforms and stronger measures to ensure that our laws are upheld, including streamlining and speeding up the removals process. We will table legislation to strengthen the public interest test, to make it clear that Parliament needs to be able to control our country’s borders and take back control over who comes to and stays in the UK. We need to strike that balance between family rights and the wider public interest. That is why we will clarify Article 8 rules and set out how they should apply in different immigration routes so that fewer cases are treated as exceptional. We will also set out when and how a person can genuinely make a claim on the basis of exceptional circumstances.

Amendment 139, tabled by the noble Lord, Lord Cameron, seeks to amend the penalty for immigration offences in Section 24 of the Immigration Act 1971, replacing this with a sentence of deportation and removing the lack of knowledge as a defence against these offences. We have been clear in our response to the sentencing review that we will reduce the use of short sentences and increase the use of suspended sentences, so there will be a significant reduction in the number of such offenders being sent to prison. Foreign nationals convicted of immigration offences can be considered for deportation at present, and we will act to ensure that such action is taken in future.

Removing lack of knowledge as a defence will likely result in consequential deportation decisions being subject to more ECHR challenges, resulting in delay, the consequence being fewer successful removals.

[Lord Harper (Con)]

To pick up on a point made by the Minister, he confirmed that the Government are undertaking this review of Article 8 and how it is interpreted by the courts. He also said that, if necessary, the Government would bring forward legal provisions to put reforms in place. We have a bit of time before Report, with another day in Committee in October and Report a little bit after that. Can I urge the Minister to speed up that review? If it is necessary to put into statute any changes in how Article 8 is being interpreted, he can then bring that forward in this legislation, to take advantage of bringing those reforms in urgently, rather than waiting for another piece of legislation to come down the track in a year or two.

[Lord Hanson of Flint (Lab)]

We keep all matters under review. This will go at the pace that it goes at. We will be making further announcements in due course on how we will review Article 8 and the issues that will result accordingly.

--- Later in debate ---

[Lord Cameron of Lochiel (Con)]

My Lords, I have very little to add except that I await the explanation from the Minister with great interest. The amendments in this group and Clause 42 itself concern the rights of those granted settled status in the UK under the EU settlement scheme after the UK left the EU. As the noble Lord, Lord Oates, has ably explained, there are a number of avenues for an individual to apply for this scheme. As I understand it, the impact of Clause 42 is to standardise the rights applicable to EU, EEA and Swiss citizens who are granted leave to remain under the settlement scheme so that they can rely on them under UK law. Subsection (2) of the clause defines precisely who this applies to, and Amendment 142 seeks to amend that. I am not quite certain of the intent behind that, because the language is very similar to the original text, so I think it is essential for the Minister to clarify what Clause 42 lacks that makes these amendments necessary.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord, Lord Oates, for moving the amendments on behalf of himself and the noble Baroness, Lady Ludford. He will know that we had some meetings in relation to this, and I have tried to engage on behalf of the Home Office as the answering Minister here, but, as he realises, the Minister who has been dealing directly with this issue was until recently one Minister in the Commons and is now another Minister in the Commons. But we will return to that in due course.

First, I want to set out the purpose of Clause 42. As the noble Lord said, Clause 42 is designed to provide legal clarity for those EU citizens and their family members with EU settled status who are in scope of the withdrawal agreement that it is the source of their rights in the UK. This has been achieved very simply by confirming in UK law under Clause 42 that any EU citizen or their family member with EU settled status will be treated as being a withdrawal agreement beneficiary. Where they do not already do so, they will have directly effective rights under the withdrawal agreement as brought into domestic law by Section 7A of the European Union (Withdrawal) Act 2018. This gives legal effect to what has been the UK’s approach since the start of the EUSS.

Because the EUSS is more generous than the withdrawal agreement requires, there are, as the noble Lord has mentioned, two cohorts of EU citizens with EUSS status: there is the “true cohort” who are in scope of the withdrawal agreement because, for example, they were economically active or self-sufficient in the UK as per EU free movement law at the end of the transition period on 31 December 2020; and there is the “extra cohort” who were resident in the UK at the end of the transition period but did not meet the technical requirements of free movement law. Although the UK has sought, through both the previous Government and this Government, to treat both cohorts the same, certain court judgments since the end of the transition period, as the noble Lord mentioned, mean that some differences in treatment have emerged. The whole purpose of Clause 42 is to address that anomaly.

Amendment 142 in the noble Lord’s name permits all those granted EUSS status to benefit from the clause where that status has not been cancelled, curtailed or revoked. This would mean, for example, that Clause 42 would benefit a person who was granted EUSS status but has since committed a serious criminal offence, for example, and has been deported from the United Kingdom. In my opinion, that would not be an appropriate outcome, but it would be the effect of the amendment that the noble Lord has tabled.

In respect of those with pre-settled status under the EUSS who obtain another form of immigration leave, I can confirm that this amendment is not needed because the clause as drafted covers that point. We have listened carefully to representations with stakeholders on these issues and we have decided that, where a person with pre-settled status obtains other leave, such as the domestic abuse route, they will retain their pre-settled status. That will enable them easily to show that they still have withdrawal agreement rights, should they need to do so.

The noble Lords spoke to Amendments 143 and 145 together, and I will deal with them together, if I may. These are concerned with those with EUSS status based on certain derivative rights under EU law. Those individuals include people who are the primary carer of a self-sufficient EU citizen child or with a child in education in the UK where the EU citizen parent has been a worker here and their primary carer. Both these categories are in scope of the withdrawal agreement and are included in the EUSS on a basis which reflects the relevant EU law requirements. Complex though this is, a person granted EUSS status on that basis will be in the “true cohort” and will have the withdrawal agreement rights in the UK. The amendments are therefore unnecessary.

That is so regardless of whether the caseworker applied evidential flexibility in granting EUSS status. Such flexibility—for example, not requiring missing evidence to be provided and therefore minimising administrative burdens on the applicant—can be applied only where the caseworker is already satisfied on the balance of probabilities that the relevant requirements of the EUSS rules are met.

Finally, Amendment 144 would remove subsection (2)(c) from Clause 42. This would mean that we were granting withdrawal agreement rights to people in the UK who do not qualify for EUSS status, which would not be right. Subsection (2)(c) protects the integrity of the EUSS and of Clause 42. It ensures that, to benefit from Clause 42 and therefore have withdrawal agreement rights, the person was correctly granted EUSS status. This amendment is not needed to ensure that the status of a person in the “true cohort”, or by virtue of this clause in the “extra cohort”, can be removed only by applying the procedural safeguards contained in the withdrawal agreement.

The noble Lord mentioned the issue of a decision to cancel, curtail or revoke EUSS status. It carries a right of appeal under Regulation 3 or 4 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, and nothing in Clause 42 changes that. I hope that will give him the reassurance that he seeks. A person whose EUSS status has manifestly been granted in error will not be in the true or extra cohort and should not benefit from Clause 42.

Safeguards are still in place in such cases. Where the Home Office comes across the case of EUSS status granted in error, the individual is contacted and provided with a reasonable opportunity to show that their grant of EUSS status was correct. If they cannot do so and they have pre-settled status, our current approach is to allow them to remain in the UK for the remaining period of their leave. They are also informed that they can reapply to the EUSS. If such an application is made and refused, it will give rise to a right of appeal. Any family member application that is refused because the sponsor was granted EUSS status in error also attracts a right of appeal. Safeguards that I hope the noble Lord will find adequate are therefore in place in both these cases.

We have had a discussion and I hope the noble Lord can look at what I have said. Again, this is always a complex area. I have read deliberately from my brief so that the issue is, I hope, clarified by what I have said, and he can read Hansard in the morning and look at what I have said to date. The purpose of Clause 42 is to clarify the very points that the noble Lord has concerns over, and that is why I hope he will withdraw this amendment today. If he remains unhappy then obviously he has the opportunity to return to this issue on Report.

The noble Lord asked about data. I answer in this House for the department, but I often answer for other ministerial colleagues who are looking at these issues in detail. I will revisit the questions that the noble Lord put to me on data sharing, and I will make sure that, well before Report, I get him a fuller response to clarify the issues that he has raised, because I am unable to give him a definitive answer on that today. While I might wish to do so, it is best if I examine that in the cold light of day and drop him a note accordingly. With that, I hope he will not press the amendments.

[Lord Oates (LD)]

I thank the Minister for his response and for taking time to meet me and my colleagues to discuss these matters, as he referred to. I am grateful for his clarification regarding Amendments 143 and 145, which will give welcome reassurance.

I am not entirely convinced that the response he has given to Amendment 144 addresses all the concerns that we have raised, although I will certainly study Hansard carefully in case I have missed some of those issues. While it is true that someone whose status expires because the Home Office has determined that it was granted in error has a right to subsequently apply again, and if that is refused then they can appeal, that is not an appeal against the decision that the original status was granted in error, so that remains a cause for concern. As the noble Lord, Lord Deben, said, it is particularly in cases where the Home Office has made an error that we want all the safeguards to exist.

Having said that, I am grateful to the Minister for his response. We will look at it and decide how to proceed from here. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Kerr of Kinlochard (CB)]

I agree with everything that the noble Lord said, although I slightly dissent from his description of his discussions with his civil servants. I used to be a civil servant and I thought that the main job of civil servants was to stop Ministers doing things they should not do or did not have the powers to do. Otherwise, however, I entirely agree.

The noble Lord, Lord Anderson, made a powerful case. To me, this is a very strange clause. We have to listen to what our Constitution Committee and the Joint Committee on Human Rights said. I followed what the Minister said in the Commons, which was that the power conferred on Ministers would be used only in cases involving conduct such as war crimes, crimes against humanity, extremism—I share the doubts of the noble Lord, Lord Anderson—or serious crime, or when a person poses a threat to national security or public safety and, presumably, cannot be deported. If the clause said all that, limiting and ring-fencing the powers of the Minister, I could understand the rationale for it and might even support it. However, with no ring-fencing, it is—as the noble Lord, Lord Kirkhope, said—a sledgehammer. The absence of any judicial oversight provision is wrong. It is dangerous to give Ministers the power to add such other conditions as they think fit. This is just too broad and, if it is to be there at all, it needs to be limited. If the Government’s intentions are as Angela Eagle said in the other place, let that be spelled out in the Bill.

[Lord Hanson of Flint (Lab)]

I am grateful as ever for the discussion around Clause 43 and for the amendments tabled by His Majesty’s loyal Opposition. I will start by setting out the Government’s view on the purpose of Clause 43. There will be an opportunity, as has been discussed, to follow the course of action suggested by the noble Lords, Lord Anderson of Ipswich and Lord Kirkhope, to delete the clause. There is also the possibility on Report to look at strengthening the clause by some amendments that could be brought forward on judicial oversight. However, I want to put on record where the Government believe they are at the moment.

Noble Lords will know Clause 43 will end the disparity in the powers available to protect the public from migrants who pose a threat but currently cannot be removed or deported because of our obligations under domestic or international law. It will also make absolutely clear the conditions that may be imposed when a person is subject to immigration bail. Where a person is liable to be detained—for example, they are in the UK without the required permission or are subject to deportation proceedings—they may be placed on immigration bail. Those on immigration bail can be subject to measures such as electronic monitoring and curfews, which are imposed in accordance with our ECHR obligations.

A person who does not qualify for asylum or protection under the refugee convention, but who cannot be removed from the UK because of our obligations under domestic and international law, may fall to be granted permission to stay. Irrespective of the threat posed by the person, our legislation currently prevents us from imposing the same conditions that they may have been subject to while on immigration bail. The Government believe that this is perverse. I hope that I can give the noble Lords, Lord Anderson of Ipswich, Lord Kirkhope and Lord Deben, the assurance that the decisions to impose these conditions will only be taken on a case-by-case basis in order to appropriately address the specific risks that a person is assessed to pose.

--- Later in debate ---

[Lord Anderson of Ipswich (CB)]

I am grateful to the Minister. He has really said just one thing, which is not in dispute across the House: he and his colleagues would use these powers on a case-by-case basis and in a very responsible way. However, with great respect, he has not answered either of the two points that were made to him in the debate. The first was the question of why serious crime prevention orders, TPIMS or prevention and investigation measures under the National Security Act 2023 would not be sufficient to deal with all the categories of people that Angela Eagle referred to. That is the question of whether Clause 43 is necessary at all.

Secondly—assuming he makes that case—how can he justify a power that is designed for such a narrow purpose being drafted in such an impossibly broad fashion? Although the Minister says, quite rightly, that we can put this to a Division on Report, I remind him that the TPIM Act, with all the safeguards that it contains, is 59 pages long. Drafting thresholds, proper provisions for scope, and safeguards is not a simple matter—not for a humble and unlettered Back-Bencher or Cross-Bencher such as myself.

I remember a similar case with the deprivation of citizenship, in which, under the last Government, a clause was put forward that allowed anyone who was subject to deprivation to be deprived of their citizenship without notice. It was seen that this was far broader than it needed be and the Government met with me and others and assisted with the drafting. We ended up with something much more tailored to the policy that the Government were seeking to advance, which nobody has questioned in this debate. Will the Minister meet with us in a constructive spirit and with a view to finding a clause that meets the Government’s policy but is not open to the sort of abuse to which the noble Lord, Lord Deben, and others have referred?

[Lord Hanson of Flint (Lab)]

I hope the noble Lord, Lord Anderson of Ipswich, knows from our 13 months or so of engagement with him that I am always open to meet with noble Lord and to have input into the legislative process to make sure that the Government’s objectives are workable and practicable. I will happily meet with him to reflect on those points. I have Members from the Official Opposition, the Liberal Democrats and the Cross Benches pressing me on this issue; it is important that I listen to those reflections with the policy Minister who has argued that case in the House of Commons.

Let us look at what has been said today in the cold light of day and reflect upon it. I will certainly arrange a meeting to hear his concerns further and look at the issues. The Government believe that Clause 43 is of sound policy and that it would be used in the limited circumstances that I have described. They believe that those circumstances can be defined and, even though new sub-paragraph (x) in Clause 43(2)(b) says

“other conditions as the Secretary of State thinks fit”,

I understand his concern on that matter. But I believe, again, that a responsible Secretary of State would be held to account, would have to explain and bring forward information on that, and would be subject to parliamentary scrutiny, particularly in the House of Commons where votes from the governing party can take place, but also in this noble House.

So I say to the noble Lord: let us meet, but the Government have put forward a clause that they believe is appropriate. There are noble Lords in this Committee who believe it is not, so let us have that discussion in the cold light of day to reflect on those points.

[Lord Anderson of Ipswich (CB)]

When the Minister goes back to the policy Minister, will he reassure her that nobody in this debate has questioned the policy that the Government are seeking to pursue? All we are questioning is the method they have chosen.

[Lord Hanson of Flint (Lab)]

That point has been made, and I will discuss that with my colleagues in government. Clause 43 as drafted is before the Committee today, but there are opportunities to discuss it further if the noble Lord is not happy with any assurances that we can give outside the Committee to table amendments that can be debated and voted upon in due course. I will leave it at that.

Amendment 148 in the name of my noble friend Lord Bach seeks to clarify the eligibility criteria for bail accommodation under Schedule 10 to the Immigration Act 2016. Under this provision, the Secretary of State has the power to provide accommodation to someone in exceptional circumstances only when they have been granted immigration bail and are subject to a residence condition that requires them to live at an address specified in that condition. The Home Office recognises that, where the Secretary of State is required to provide a person with accommodation to enable them to meet their bail conditions, a specified address cannot always be known at the time of the bail grant. Accordingly, it has been a long-standing policy position that bail can be granted with a residence condition to an address that is known at the time of the grant of immigration bail, or an address that is yet to be specified. In 2024, this was also set out explicitly in the relevant guidance. The policy is clear, and operational teams are already operating the legislation in this way, to ensure that someone can apply to the Home Office for bail accommodation without having been granted bail to a specific address. Therefore, the amendment—with its good intention—would make no material difference to the current operation of the legislation and is not necessary. I am happy to hear further from the noble Lord, but I invite him not to move his amendment.

On the amendments from the noble Lords, Lord Davies and Lord Cameron of Lochiel, Amendment 146 would require the Secretary of State to make a deportation order against persons who breach the conditions attached to their leave in the UK. Such breaches of conditions may already be addressed by cancelling that leave and removing the person from the UK without the need to seek a deportation order. Mandating deportation in such cases is not therefore necessary. It will provide no guarantee that a person’s removal from the UK could be enforced if they were to make a human rights or protection claim against their removal.

Finally, Amendment 147 would replace existing criminal sanctions for offences under Section 24 of the Immigration Act 1971 with a penalty of deportation. Overstayers and illegal entrants are already liable to removal from the UK. Where a person is convicted of an offence and sentenced to a period of imprisonment, consideration will be given to their deportation. With respect to the noble Lord, the amendment risks encouraging offending behaviour and would not result in an increase in removals from the UK.

This has been a serious debate that has raised a number of points. But I hope, given what I have said, that the noble Lord will not press his objection to Clause 43. I will meet noble Lords to discuss their objections further to understand their concerns better. I ask noble Lords not to press their amendments so that we can examine the clause together.

[Lord Davies of Gower (Con)]

My Lords, I thank all noble Lords who spoke on this group for their contributions to this debate. This has been a group that clearly reflects several different views, and I welcome that we have been able to have a debate on these issues.

We on these Benches remain firm in our resolve that conditional leave to enter or remain should be just that—conditional on criteria that seek to safeguard our communities, our public services and our economy. These conditions do not undermine our capacity to be compassionate, our capacity to help those who are in need, or our record of supporting those who need our help. They ensure that we have a system that is controlled and protects our country, and over which the Government can exercise their dutiful authority. These are fundamental duties and we have sought to support the Government in meeting their own objectives. I therefore hope the Minister will seriously consider these amendments as a way of empowering him and his colleagues to take action that is needed to ensure that our conditions are not optional. However, for now, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

My Lords, this was a very wide-ranging debate on an important group of amendments. I am grateful to all noble Lords for their contributions and this discussion. I also join the words of sympathy for both the injuries of the noble Lord, Lord Alton, and the Covid-related illness of the noble Baroness, Lady Brinton. We wish them both well and look forward to seeing them back to hold the Government to account, as they do so well. I will go through each of the amendments in turn and try to give some reasonable commentary on each in the time I have.

Amendment 150 in the name of the noble Baroness, Lady Hamwee, is intended to probe the impact on business and employees of this clause. I hope I can reassure her that the previous Home Secretary has already engaged with businesses and representative bodies on the proposed legislation. I give a commitment that the new Home Secretary will continue to do so following this week’s reshuffle. In addition, the Secretary of State intends to conduct a formal consultation with employees and businesses, which will underpin updated guidance that we intend to bring forward, so that they are aware of their obligations prior to the implementation of the legislation. I hope that assists the noble Baroness on Amendment 150.

I thank the noble Baroness, Lady Lawlor, for her Amendment 154A. It seeks to make it an offence to employ someone to deliver goods, meals or services using a vehicle if that person does not hold a full driving licence. In the UK, individuals can drive a variety of vehicles without a full driving licence, including some of the vehicles that she refers to in her amendment. There is already strong legislation in place to make sure that the DVLA, the responsible body, carries out checks to ensure applicants are not disqualified from holding a licence due to their immigration status. That is already a very strong issue for the DVLA as a whole. The Government have robust licensing and driving compliance measures in place to ensure that there is relevant driving licence regulation in force.

In this very Bill, the Government are extending the scope of employers and businesses required to carry out checks on their workers to prevent illegal working. Separately, through existing enforcement measures the Government are giving a very hard push, particularly following some examples of the type of abuse that the noble Baroness mentioned, on compliance with legislation to ensure that people are not being employed illegally, that people who have come here illegally are not being employed and that that is not undercutting legitimate businesses in their work. I think her amendment has those areas of work in mind, but we are covering that with this Bill and what is being done elsewhere.

Amendments 151 and 152, tabled by the noble Lord, Lord German, and the noble Baronesses, Lady Brinton and Lady Hamwee, seek to reduce the waiting period for asylum seekers to apply for permission to work from 12 months to three. I acknowledge the intent behind these amendments. I know where the noble Baroness and others are coming from. However, I do not think these amendments are the right mechanism to achieve the aims they are seeking. We want to ensure that those who may have been subject to human trafficking and modern slavery in particular are examined under that legislation. Therefore, I do not feel that this is the right way forward.

I will take the offer of the noble Lord, Lord Randall, to supply that information if he wishes to send it through to me—care of the Home Office, Marsham Street, London. We will certainly look at the information he has brought forward.

On Amendment 151, the Government’s current policy must strike a careful balance between maintaining the integrity of the asylum system and supporting those with genuine protection. It allows asylum seekers to apply for permission to work if their claims have been outstanding for 12 months or more through no fault of their own. Those granted permission are limited to roles on the immigration salary list only. Employers are expected to uphold fair and non-discriminatory recruitment practices for all individuals with the right to work.

Reducing the waiting period to three months could act as a pull factor—we have had a debate about that; I know some noble Lords will disagree with the use of that phrase—and would place additional strain on a stretched asylum system and divert resources away from those in genuine need of protection. Furthermore, it would undermine the established work visa routes and may act as an incentive for people to travel here illegally via dangerous routes. Again, I take on board what noble Lords have said about why people are seeking to come to the UK, but the factors before us are a real concern for the Government.

On Amendment 152, all individuals in the national referral mechanism, regardless of immigration status or work eligibility, are entitled to support to meet their essential needs. In England and Wales, as has been mentioned, this is delivered through the modern slavery victim care contract, which provides safe accommodation and financial assistance to prevent destitution. Where applicable, those who receive a positive conclusive grounds decision are considered for a grant of temporary permission to stay, which includes the right to work.

There are several reasons why the Government cannot support Amendment 152, one being that expanding access to employment at an earlier stage could incentivise misuse of the national referral mechanism, which may inadvertently encourage irregular migration or exploitation by traffickers who falsely promise access to work in the UK. The current framework maintains a clear distinction and upholds the integrity of the immigration system.

My noble friend Lord Rees made a very powerful case, and I was pleased to meet him, the noble Lord, Lord Barber, and colleagues to engage on this matter. I value the representations that have been made and welcome continued collaboration. There is an argument that his amendment may carry unintended consequences, particularly for wider delivery and our modernisation of the asylum system. The Government’s position has been consistently clear and introducing an additional process subject to regular scrutiny could risk diverting focus from our broader strategic objectives.

However, my noble friend made a very important case for the Government to consider, and I want to reflect on it with colleagues. There are other ways in which my noble friend can get a regular report on the impact of the concerns he has, and there are ways to put pressure on the Government, such as the very good initiative by mayors to examine this issue, whether that be through parliamentary debate, Questions, Written Statements or Commons and Lords Select Committees. I will look again at what he said today because I think there is scope to ensure that we examine some of those areas, and I thank him for his amendment.

On Amendment 153 from the noble Baronesses, Lady Hamwee and Lady Lister—although she is not in her place today—supported by my noble friend Lady Kennedy of The Shaws, the Government are very concerned by the links between visa arrangements for private domestic staff and instances of modern slavery. I hope all noble Lords are reassured that in the immigration White Paper, published in May, we said we intend to reconsider how this route operates. I know I regularly ask for patience on these matters, but the immigration White Paper looks at it and recognises the genuine concerns that have been raised.

Allowing overseas domestic workers to change employer without restriction is already a feature of the existing system, as they have been able to do so since 2016. The ability to change makes it very clear that overseas domestic worker status in the UK is not exclusively dependent on their current employer and gives them an opportunity to escape abuse. We do not currently require them to inform the Home Office so that they are able to move more quickly and easily. During my time as the shadow Immigration Minister in 2012, when discussions were taking place on the Bill back then, I met Kalayaan and I was impressed by the cases it made. I reassure the noble Baroness, Lady Hamwee, and my noble friend Lady Kennedy of The Shaws that that will be looked at as part of the immigration White Paper response.

My noble friend Lord Watson, supported by the noble Lord, Lord German, tabled Amendments 154 and 203D, with the support of the noble Baroness, Lady Hamwee, which concern migrant fishers and the question of seaman and transit to the UK to join a ship leaving UK waters. The Government’s long-standing position is that foreign nationals need permission to work in UK waters; this ensures consistency between those coming to work on the UK landmass and those transitioning through it. Contract seamen who enter the UK seeking to leave or join a ship are expected to leave the UK within seven days of arrival and are not given the right to work. Seafarers wishing to come and work in the UK should apply for a work visa that gives them the right to work in the UK. It would, therefore, in our view, be inappropriate to give work rights to those on temporary visas intending to allow transit only.

There are no plans to create a bespoke visa route for fishers as the immigration White Paper has very clearly set out our strategy for reducing reliance on international recruitment. However—and I hope this helps my noble friend and the noble Baroness, Lady Hamwee—we have established the new Labour Market Evidence Group to gather and share evidence about the state of the workforce, trading levels and participation by the domestic labour market, including at devolved government and regional levels. I expect it to make recommendations shortly about sectors or occupations in which workforce strategies are needed or the workforce labour market is currently failing. I hope that my noble friend can look at what is going to happen and the gathering of information on this issue so that we can examine it further.

In response to the amendment tabled by the noble Baroness, Lady Hamwee, on migrant domestic workers, all individuals in the national referral mechanism, regardless of immigration status or work eligibility, are entitled to support to meet their essential needs. It is within this framework that the fishers mentioned can seek assistance.

I cantered through those points because of the discussion we had. I hope the noble Baroness will withdraw her amendment, and I will reflect on what has been said—I will certainly give way to the noble Lord.

[Lord Kerr of Kinlochard (CB)]

Will the Minister reflect a little more on the amendment proposed by the noble Lord, Lord Rees? He said that the noble Lord made a powerful case—I think we all thought that. His principal argument against accepting the amendment seemed to be that the reports called for by the amendment could constitute an undesirable diversion of resources. He also argued that the debates in both Houses that the amendment would mandate could be secured by different means.

I suspect that the commendable longevity of the Minister has a price: he has been got at by Sir Humphrey. I used to be a Sir Humphrey and I was very good at this. The undesirable diversion of resources is a very good argument; better still is “unripe time” or “dangerous precedent”. If all else fails, there is “with the ambit of the vote”. They are all excellent arguments, but what is the harm in having debates on this issue every year in the Commons and the Lords? There is no downside to it; it is a good thing. It would give us the space, as the noble Lord, Lord Rees, proposes, for a serious debate on this on the basis of the evidence. The Minister is being a little negative. He should go back and see Sir Humphrey and say, “There was a lot in this amendment. We ought to think seriously about it”.

[Lord Hanson of Flint (Lab)]

I am very grateful to the noble Lord for his experience. As he knows, having been there himself, the Government reflect on, take and determine positions across the board with ministerial engagement. Having started my 15th year as somebody in government, over that 28-year period, I am very aware that, when Ministers want to do something, they can.

--- Later in debate ---

[Baroness Lawlor (Con)]

I seek clarification on something the Minister said. He told the Committee that they were seeking to address some of the problems that my amendment raised through other ways, including through the DVLA, the Home Office and certain measures. But will they include drawing in to those other measures those categories of delivery bike that do not now require any papers or licence and may have been changed to empower them to go far beyond the permitted 15.5 miles per hour? We have no way of knowing that unless our police forces are out on the streets as a response unit, like those police in the City of London, and impounding them—which is very heavy on police time.

[Lord Hanson of Flint (Lab)]

The noble Baroness raises a number of issues. I start with the question of illegal employment and working. The Government are very exercised to ensure that, both in the Bill and in regular enforcement now being undertaken, we crack down on illegal employment, which effectively undercuts legitimate businesses, exploits individuals in that illegal employment and is not a good use for society as a whole, as a contributory factor. We are very focused on that, and the Bill focuses on a large amount of those elements.

Separately, the noble Baroness raises areas outside my direct responsibility, which are Department for Transport-related issues about enforcement and regulations. I will draw those remarks to the attention of the Transport Minister, who will be able to reflect on them and who is also exercised about the very issues she mentions.

The noble Baroness will also know, I hope, that in the Crime and Policing Bill, which will come before this House shortly, there are also measures to improve police powers on seizure of bikes, rather than prosecution of individuals, where there are digressions from the law. That means going through traffic lights, going on pavements, speeding and all those things where the police, rather than having to give a warning, will potentially now be able to seize an electric vehicle used in those ways under the Crime and Policing Bill. So the three different elements are all there.

In this current piece of legislation, the amendment the noble Baroness has put forward does not meet the requirements I am seeking to achieve. With that, I hope noble Lords will withdraw or not move their amendments.

[Baroness Hamwee (LD)]

My Lords, the Minister, whom I thank, started his response by saying that the Bill is not the right mechanism for the amendments. I think he was applying that comment to the whole group of amendments, not just to Amendment 154A. Without being psychic, I too have had my expectations met. Including a provision for the right to work would be the right thing to do, and it would be enlightened self-interest.

I too have never been persuaded by the idea of the right to work being a pull factor; there are plenty of push factors without one having to think about pull factors. Banning the right to work—as we have done, in effect—does not seem to have been a deterrent. That may answer the point.

I pay tribute to the work of the noble Lord, Lord Rees, in this whole space. He made a very powerful speech, but I thought that his amendment was less persuasive than his speech. I am more ambitious: I want to remove the restrictions so that the reports to the House can be on the impact of changes in the law, not just calling for changes in the law.

Mention was made of voluntary activity. I use the term “voluntary activity” rather than “voluntary work” because a problem for so long for people who want to put a huge amount of effort into volunteering is that it has been designated as work, not as voluntary activity. I was interested to hear the support of the noble Lord, Lord Jackson, for training. That would be a good move forward—it really would be—so I thank him for that.

I will return to overseas domestic workers. They do not, in reality, have the ability to change employers. We are leaving people in appalling situations that they cannot escape. The changes made in 2016 were minimal, and we have failed people whom we should be protecting. I am very sad that we cannot move the situation forward tonight, but I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Davies of Gower (Con)]

I know, I just realised that.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord. I know that we will have a full discussion on Amendments 203F and 203G at a later date. I will take that as an hors d’oeuvre from the noble Lord, Lord Davies of Gower. It is important that he trails those issues because they are linked. I value that he has done that today. However, I will focus on the amendments before the Committee, Amendments 155 and 156, tabled by the noble Baroness, Lady Hamwee. These seek to confirm that the resources of the tribunal and legal aid practitioners are sufficient to ensure that appeals are heard fairly within the 24-week timeframe.

Clauses 46 and 47 already set out that the statutory timeframe should be adhered to unless it is not reasonably practical to do so. This enables the judiciary to take into account any relevant factors when exercising its discretion and responsibility over case management and the listing of appeals. We in the Home Office are working very closely with the Ministry of Justice to ensure that the tribunal has the resources it needs to meet the growing backlog. and we want to ensure that we deliver on that backlog as a matter of some urgency. The tribunal has been given additional funding to boost the number of days it will be sitting in 2025-26 to near maximum capacity, and we are also consulting on uplifts to immigration and asylum legal aid fees to support that capacity.

The period of 24 weeks is carefully chosen, as it balances the importance of resolving cases quickly, while the Government recognise the need for appropriate safeguards to ensure access to justice for all. To provide further reassurance to the noble Baroness, the resources of the tribunal are taken into consideration, and these provisions will not apply immediately following Royal Assent. There will be a period of implementation and operationalisation, during which the Home Office, the MoJ and the Courts & Tribunals Service will ensure the tribunals’ readiness in the coming months. I hope all that will give the noble Baroness some reassurance on those issues.

--- Later in debate ---

While I acknowledge the fairness objectives underpinning Amendment 180, I cannot support Amendment 194, which would drive us in the opposite direction towards further delay, duplication and dysfunction.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Baroness, Lady Neuberger, for becoming the noble Baroness, Lady Lister, this evening, particularly at this late hour. I am grateful for her introduction of the amendments. I am also grateful to the noble Baroness, Lady Hamwee, for being the noble Baroness, Lady Brinton. I am still Lord Hanson for the purposes of the discussion before us today.

Age assessment is a difficult area of work and there is no single-combination assessment technique able to determine age with precision. It has already been pointed out by the noble Lord, Lord Davies, that there are serious safeguarding risks if adults are treated as children and placed in settings with children. Similarly, there are serious safeguarding issues if children are treated as adults.

I will turn to the amendments before us and try to weave through them in a way that, I hope, assuages the concerns of the noble Baroness and gives a direction forward. On Amendment 180, tabled by the noble Baroness, Lady Brinton, and spoken to by the noble Baroness, Lady Hamwee, in relation to the completion of age assessments where an individual faces criminal charges, the current approach of the Home Office is that any decision on age made by the Home Office for immigration purposes is not binding on the UK courts. Where an individual is charged with a criminal offence, the CPS is advised of any age dispute issues that have arisen and will decide if it is in the public interest to pursue a prosecution. Once proceedings are instigated, should the presiding judge have doubts about the individual being a child, the courts can take a decision on the age based on the available evidence or request that a substantive age assessment is undertaken.

The Home Office has introduced additional safeguards in criminal cases to mitigate the risk of a genuine child being imprisoned in adult prison for immigration offences. This is something that none of us would want to see. Where an individual who has been assessed to be “significantly over 18” maintains their claim to be a child and is identified for potential criminal charges for immigration offences, the Home Office will provide for an abbreviated age assessment to be conducted by qualified social workers. I hope that on both those counts, the noble Baroness is able to withdraw the amendment before the Committee today.

Amendment 162 is on the suggested use of visual age assessments as part of a safeguarding determination, identifying potential risks and support needs, rather than solely for the purposes of immigration enforcement. The noble Baroness has said that the initial age assessment is an extremely important first step to prevent the detention of children generally, including any accidental detention of someone who is believed to be an adult but subsequently found to be a child, and to ensure that individuals are routed to the correct adult or child immigration process. That is key. It provides that immigration officers may treat an individual as an adult only where they have no credible and clear documentary evidence proving their age, and two members of Home Office staff independently assess that their physical appearance and demeanour very strongly suggest that the individual is significantly over 18. This is a particularly high threshold, and the benefit of the doubt remains key. Where doubt exists, individuals will be referred for further assessment.

As the noble Baroness said, a social worker may be present at the initial age decision stage. Where present, they will play a crucial role in the welfare of the individuals in their care and will support our Kent Intake Unit officers with their initial age decisions carried out at Western Jet Foil. Any views expressed by the social worker at this initial stage will be given a strong weighting, given the expertise they have in regularly working with children.

The Home Office has contractual arrangements with the Refugee Council to provide support to unaccompanied asylum-seeking children who arrive by small boat and are moved to the Kent Intake Unit. That contract sees Refugee Council advisers working directly with unaccompanied asylum-seeking children providing impartial and independent information, advice and guidance to help them navigate the asylum and looked-after children system. These amendments would make it mandatory for the Home Office to publish guidance that includes mechanisms for independent oversight. I note that the Independent Chief Inspector of Borders and Immigration already has oversight of Home Office practices and is not short of bringing forward reports about the areas we are discussing.

Amendment 163, in the name of the noble Baroness, Lady Lister, and Amendment 194 were spoken to by the noble Baroness, Lady Neuburger, and supported by the noble Lord, Lord German, and the noble Baroness, Lady Brinton. They are about whether age assessment in relation to asylum claims should rest with the local authority according to the ADCS guidance. I ask the Committee to bear with me because we need to be mindful of unintended consequences. The amendments as tabled would mean that the Home Office would be bound to immediately notify a local authority in every instance where an individual claiming to be a child has been determined to be an adult and therefore may be placed in adult accommodation. This would apply even when an individual is obviously an adult. This creates the risk that already-stretched local authorities could cause significant safeguarding risks if adults have access, along with genuine and potentially vulnerable children, to children’s services including accommodation and education.

I hope it will reassure the noble Baroness that the Home Office already takes into account best practice within the age assessment guidance issued by the ADCS and the equivalent guidance in Scotland and Wales. Where the Home Office or an accommodation provider have concerns that an individual might be a child, it is now standard practice for a local authority referral to be raised. Even where a referral is not made, this does not prevent the individual from approaching a local authority for further consideration of their age.

As I said at the outset, the Government continue to review all options for age assessment. A parliamentary Written Statement issued to both Houses on 22 July indicated that work was being undertaken in the Home Office to look at science and technology innovation and the age assessment system. We have concluded that the most cost-effective option is to pursue a likely facial age estimation whereby AI technology trained on millions of images is able to produce an age estimate with a known degree of accuracy. Again, I recognise that the noble Baroness raised some concerns about that. I hope I can reassure her that the Home Office is taking this seriously and that further testing and trialling of the technology will be conducted ahead of any integration into the system. It is important that we get that right, but it is also important that we try to find mechanisms to give greater clarity on what that age is over and above the individual eyes-on by a particular officer at the border.

I hope that, with those reasons, the noble Baronesses, Lady Neuberger and Lady Hamwee—the substitutes for the noble Baronesses, Lady Lister and Lady Brinton, respectively—will not press the amendments.

[Baroness Hamwee (LD)]

As the substitute for the noble Baroness, Lady Brinton, I would like to make a point about AI. It is important that the Home Office and others use AI only where it is appropriate and safe. Quite a lot of work has been done across the piece in Parliament about the reliability or otherwise of facial recognition—because that is what this is— including by a Select Committee which I chaired. I have not been satisfied by any comments from the Government Benches since, including on the need for regulation and oversight. That must apply here. I would be deeply worried if we were to go ahead with using AI as a substitute for the human brain without the proper regulation in effect.

[Baroness Neuberger (CB)]

My Lords, I echo totally what the noble Baroness, Lady Hamwee, has just said. In my speech, I asked the Minister whether Parliament would have the chance to look at whether AI is used. Will he reply to that?

[Lord Hanson of Flint (Lab)]

The Government are examining all of this, and there will need to be some further consideration. I will ensure that there is further discussion in Parliament, prior to that being undertaken.

[Baroness Neuberger (CB)]

I thank the Minister for his reply. That is what we wanted to hear, and I very much hope we might have informal discussions before that comes to Parliament. Like some of the stuff more generally about age assessment, the meeting with the Minister was hugely helpful.

I thank all noble Lords who have spoken. The noble Lord, Lord Davies of Gower, will not be entirely surprised to hear I do not wholly agree with him. The point I was trying to make is that it is worse for a child to be in adult accommodation than for an adult to be in child accommodation. That is the point we ought to take most seriously.

At this late hour, let us leave it at that. With the Committee’s leave, I beg leave to withdraw the amendment.