Visas: Health Insurance
Baroness Hamwee Excerpts(10 years, 1 month ago)
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Lord Taylor of Holbeach
My Lords, my noble friend to some degree misunderstands the reason for the surcharge, which is, as I have said, to ensure that temporary migrants pay a fair contribution towards the health service. It is not intended to be a full cost recovery but, none the less, it will raise in the region of £2 billion over 10 years. Visitors are not covered by this scheme and they will be liable for full cost recovery, which they may indeed choose to insure against.
Baroness Hamwee (LD)
My Lords, I suspect that health insurance for visa applicants would be extremely complicated to administer. Does my noble friend think that there might be something to be said for it if the Government go down the route recently recommended by the Migration Advisory Committee of auctioning about 100 visas a year, with a reserve price of £2.5 million, to get accelerated settlement in the UK? I sincerely hope that they will not go down that route.
Lord Taylor of Holbeach
My noble friend is tempting me to elaborate a policy into a direction in which the Government have no intention of moving at the present time. There is a review of health service charges going on. Currently the recovery of health service charges is a problem. The health service is not getting the income that it should be getting from health service charges, but my noble friend is right to say that the merit of this scheme covering temporary migrants is that it makes a significant contribution and is very simple to administer.
Immigration Bill
Baroness Hamwee Excerpts(10 years, 1 month ago)
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Baroness Hamwee (LD)
My Lords, I have given notice of my intention to oppose the question that Clause 40 stand part of the Bill but, as I hope the Minister knows, this a way of probing the provisions in Clause 40 and of asking, simply, what the problem is with Section 18 of the Immigration, Asylum and Nationality Act 2006, which the clause would amend. In the Public Bill Committee, the Minister, Mr Harper, said:
“it can be difficult to recover the penalty”.—[Official Report, Commons, Immigration Bill Committee, 12/11/13; col. 317.]
I can see that Section 18, as amended, would make it easier for the Secretary of State, but that does mean that the recipient of a penalty is not going to be able to raise a defence. This is not a straightforward, simple debt. It seems that the very fact that it is not a fixed penalty indicates that there may be a range of circumstances in which the penalty is imposed, and some of those may involve mitigating circumstances.
Lord Avebury (LD)
I should like to ask a couple of questions about Clause 40. The Immigration Minister’s faux pas over the “wealthy metropolitan elite”, such as his predecessor who employed a cleaner from Nepal without checking that she had leave to remain, highlighted the inconsistency of people in senior positions of the Government being happy to employ non-EEA citizens themselves while desperately hanging on to the vain objective of reducing net immigration to below 100,000. That target was never within the realms of possibility and it should be scrapped, recognising that most components of immigration and all of emigration are outside the control of government. As the UK is doing relatively well compared with other European countries, we are an attractive destination for skilled workers from the rest of the EEA, and as my right honourable friend Vince Cable pointed out, we are benefiting from their contribution to our economy and in particular to the revenue from direct and indirect taxation that they bring.
However, we are right to deal with irregular migration from outside the EEA, and in particular the 500,000 of those irregular migrants who were lost by the UKBA and are still scraping a living in low-paid jobs—a few of them as cleaners and nannies. My question about Clause 40 is whether increasing the fines on employers who fail to check the credentials of their workers is going to be the answer. Can the Minister say whether the existing powers are being used to their full extent? In November 2012, when Tesco was found to have employed 20 non-EEA students for three times the number of hours allowed, the supermarket was fined £115,000, compared with the maximum of £200,000. In August 2013, the BBC found that since the original power to impose fines on employers was enacted in 2006, two-thirds of the £80 million fines imposed remained uncollected. The Home Office said that some fines might have been reduced or cancelled on appeal, or that some employers could have gone out of business or could have been asked to pay by instalments. How does making the penalty recoverable as if it were payable under an order of the county court, or the equivalent in Scotland or Northern Ireland, increase the probability that the money will be recovered? Can the Minister be sure that increasing the fines will not simply reduce the proportion of money that is recovered?
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.
Baroness Hamwee
My Lords, perhaps I may add markets to the mix of supermarkets, corner shops and all the rest of it. The noble Earl might find that they are the cheapest of all, but cannot be accessed. I also put into the noble Earl’s mind, perhaps for the future, the therapeutic value of being able to work.
Earl Attlee
The noble Baroness makes an extremely important point. I am well aware of it, which is why asylum seekers are able to do voluntary work.
Baroness Hamwee
( ) “Claim for asylum” has the same meaning as in section 94 of the Immigration and Asylum Act 1999 (interpretation of Part VI).
( ) An appeal is pending for the purposes of this section when it is pending under section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeal).”
Baroness Hamwee
I will speak also to Amendments 72B to 72G. The amendments take us to the clauses on driving licences. The first amendment, similar to one which I moved in respect of bank accounts on Wednesday, would allow people seeking asylum whose claim has yet to be determined—that is, there has not been a decision or an appeal is pending—to be able to drive. The period for which asylum seekers can wait is often considerably more than six months. I mention that in this context because non-EEA nationals are required to have six months’ leave to apply for a British licence.
I am concerned about the people in question seeing skills gradually tail away, not having the opportunity to integrate, not being able to volunteer—we have just been told that that is important, and indeed it is—to use their skill as a driver in a voluntary capacity.
Baroness Hamwee
My Lords, on the first of my amendments the noble Earl said that he could not be any more helpful than he had been previously on the same issue in a different context. I thought that he had been quite helpful, so I suppose that I had better go back and reread that.
Baroness Hamwee
The Minister might have added to the list of items for Report. I will look at what he has said. For the moment, I will say only that I very much regret the turn that the language of the debate has taken this afternoon, with floodgates, and the conflation of asylum seekers and economic migrants. However, we are not debating that, so I will not test the Committee’s patience by taking that further. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, this is a short amendment, which asks a short question. Schedule 7 deals with immigration advisers and immigration service providers and includes paragraphs about fees for registration. Paragraph 3(2)(b) will write into the legislation provision for the waiver of all or part of a specified fee in particular cases. The Explanatory Memorandum to the Bill indicates that the Government “plans”—that is the word used—to use the power to require the Immigration Services Commissioner,
“to waive the registration fee in relation to advisers who do not charge for their services”.
My amendment would put in a waiver in the case of an applicant which is a charity or a non-profit making organisation.
Of course, I do not disbelieve what is in the Explanatory Memorandum, but I would like to have the assurance in the legislation that the small charities and non-profit making organisations, which I suspect limp from one week to the next—I do not say that at all disparagingly—and could use a great deal more funding than they have, can know that they will not be charged for registering to give the advice which many of them so helpfully give. I beg to move.
Earl Attlee
My Lords, I hope that on this occasion I can delight my noble friend Lady Hamwee on this amendment.
Amendment 73A seeks to define the organisations which will benefit from an exemption from paying a registration fee to the Immigration Services Commissioner. I can assure the Committee that there is no intention to add a financial burden to charities, voluntary organisations or other non-profit making organisations that offer immigration advice and services.
The Government understand that if these organisations were to be charged a fee, these measures could restrict the ability of such organisations to provide services and this would have an impact on the availability of free immigration advice for those not able to pay. The intention is to continue the principle of exempting advisers who do not charge a fee for services from paying the OISC a registration fee. The discretion conferred on the commissioner in the original clause in the Bill will be consistent with the discretion that currently exists in determining exempt status.
The current application process for exemption requires the commissioner to examine the type of organisation, its status as a non-profit making organisation and its charging policy. The actions will continue to be carried out and will be part of the new registration application process.
Subject to parliamentary approval, the Government will lay an order, as provided by paragraph 3 of the schedule, to specify that those organisations which do not charge for services will not have to pay fees when they apply for registration or reapply for registration. The Government do not want the Act to include a definition of organisations not required to pay a fee because such a level of detail is not necessary for this legislation and such definitions could be open to interpretation in a manner not intended. I hope I have satisfied my noble friend and that she will feel able to withdraw the amendment.
Baroness Hamwee
My Lords, I am grateful to my noble friend. When I see the statutory instrument, I may be delighted. I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, this afternoon’s speeches have reassured me that I was not misreading the clause when I ended up, time after time, in confusion—not just as to the principle, but as to the point. I would sum up my confusion with three questions to myself. If someone is stateless, it seems he may be allowed to remain in the country, so how is the threat diminished? Indeed, is not any threat increased because of the reaction of the individual and his community against the state’s action? Secondly, what happens to his dependants—are they not likely to become more of a burden on the state? Thirdly, is this one of those occasions when neither Parliament, concerned with the principle, nor the individual, at the sharp end of the practice, is able to challenge the decision—one of those occasions of “If you knew what I know”? We are not thought police, and I was reassured when I read in the clause a reference to a person having “conducted” him or herself in a prejudicial manner—but of course we cannot know about conduct any more than thought.
Like the noble Baroness, I read the report in the Independent today and I thought it a clear example of the impact on someone left stranded. I think he was served with the decision when he was transferring between planes: he was part way—as he would have said—home, and had to return to, I think I am right in saying, Waziristan. However, he was stranded: separated from his community and perhaps family—I do not recall—in the UK, but regarded almost as an outlaw, and, as he put it, in danger from those in Pakistan and Waziristan who regarded him with considerable suspicion. It is a very disturbing story.
Lord Taylor of Holbeach
My Lords, this has been a very thorough debate on a clause which, as the noble Lord said, we owe it to discuss thoroughly.
I start by adding some further perspective to the debate on the deprivation of citizenship. The measures in the Bill to deprive someone of citizenship can be used only against someone who has chosen, as an adult—not as a child—to naturalise as a British citizen. When choosing to seek British nationality they will have taken an oath, or sworn allegiance, to Her Majesty, and pledged their loyalty to this country. Despite this—
Baroness Hamwee
“Reviews of deprivation of citizenship resulting in statelessness
(1) The Secretary of State must appoint a person to review the operation of section 40(4A) of the British Nationality Act 1981 (deprivation of citizenship), (“the independent reviewer”).
(2) The independent reviewer must carry out a review of the operation of the section in respect of each calendar year, starting with the first complete calendar year beginning after the passing of this Act.
(3) Each review must be completed as soon as reasonably practicable after the end of the calendar year to which the review relates.
(4) The independent reviewer must send to the Secretary of State a report on the outcome of each review carried out under subsection (2) as soon as reasonably practicable after completion of the review.
(5) On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.
(6) The Secretary of State may pay to the independent reviewer—
(a) expenses incurred in carrying out the functions of the reviewer under this section, and(b) such allowances as the Secretary of State determines.”
Baroness Hamwee
My Lords, the Minister has just told the House his view on the importance of the scrutiny of legislation. I have never doubted that for a moment. However, I think he probably agrees that one needs to scrutinise the implementation of legislation as well. My Amendment 79A would do that. I think that the noble Lord, Lord Pannick, and I must have tabled our amendments within seconds of one another. When his was printed, I was glad to see that mine was very close to his, and I am glad that he has added his name to mine.
I do not claim credit for any originality of drafting. I have lifted it almost word for word from other legislation that provides for the involvement of the independent reviewer of terrorism legislation. As we are told in the information pack, although the Government do not want to be overly prescriptive about the phrase,
“seriously prejudicial to the vital interests of the United Kingdom”,
they envisage it covering those involved in terrorism or espionage or in taking up arms against British or allied forces. We will all have been impressed by the diligence, the terrier-like qualities and balance shown by the various reviewers who have held the post. I suspect that the current reviewer might undertake the work, whether he was asked to do so by legislation or not. Clearly, this issue is closely related to other legislation and to other steps which the Government might take in response to—or perhaps even before they need to respond to—a terrorism threat. If we are to have Clause 60, we need a clause such as this in order to provide for a review on a periodic basis, the provision of the review to the Secretary of State, and her laying it before Parliament. I beg to move.
Lord Taylor of Holbeach
My Lords, after the passion of the previous group of amendments, I find this a little easier to respond to. The noble Baroness, Lady Smith, has made the point that there is a pre-existing independent monitor, and indeed my noble friend Lady Hamwee referred to the role occupied by John Vine. His role was set up under the UK Borders Act 2007, and he is able to monitor and report on the efficacy and effectiveness of functions relating to immigration, asylum and nationality. That includes the effectiveness of decision-making on deprivation of British citizenship, so it exists already.
This is not an annual review process, and I think that that is probably one of the things we disagree on. With all his independent inspections, the chief inspector is permitted to examine only individual cases for the purpose or in the context of considering a general issue. But it illustrates that in addition to the judicial scrutiny of individual cases—I have explained that the power of appeal still exists—Parliament has already agreed an independent inspection regime which covers nationality and hence the deprivation of nationality.
Throughout the passage of the Bill, the Government have stressed the serious nature of the cases that will be considered under this new power. Clause 60 itself carefully limits the uses of the power to circumstances where an individual’s behaviour meets a new, higher threshold of being,
“seriously prejudicial to the vital interests of the United Kingdom”.
This will ensure that the courts subject the strength of the Government’s rationale for deprivation to close and anxious scrutiny in each and every case. In this case, I do not believe a new independent reviewer is necessary.
There has been a lot of discussion regarding the requirement to publish guidance and how individual cases will be considered, evidenced and decided. As I have said, deprivation is nothing new—it has gone on under this Government and previous Governments. Established practice exists, and guidance is published for fraud and deception cases, for example. Every case is different and will have its own case-specific facts. The core requirement on officials is to assess evidence and circumstances, consult colleagues across government and carefully weigh the evidence before making a recommendation to the Home Secretary. This is central to all cases. The Home Secretary herself reviews and personally signs off all deprivation decisions. Beyond this, there is little additional detail that would necessarily be appropriate, given that matters in cases that will fall under Clause 60 will be to do with national security. More importantly, in every case, the individual will be told the reasons for the decision and there will be a statutory right of appeal to the courts in each case.
I will address the bid for a sunset clause in this matter. The Government have a responsibility to protect the public and to respond to threats, and this clause is aimed at dangerous individuals who abuse their British citizenship and threaten the security of the UK. As I have emphasised, the power will be used only against those who pose such a threat. However, it is impossible to predict as and when these threats will emerge and I do not believe it would be appropriate therefore to time-limit the clause.
As I have said, I hope we have an opportunity to meet between now and Report, and this will no doubt be one of those matters which could be discussed at that stage. In the light of these points, I hope that the noble Baroness will agree to withdraw the amendment and that other noble Lords will not press theirs.
Baroness Hamwee
My Lords, I did not have in mind the Independent Chief Inspector of Borders and Immigration but the independent reviewer of terrorism legislation—I plagiarised the provisions in current legislation on terrorism for this clause—who I think would be the appropriate reviewer to undertake the work. I am not suggesting a new reviewer. This would fit very well with, and ought to be reviewed by, the same person who considers the application of terrorism legislation. However, I do think that there should be a review and statutory provision for it. I am a little puzzled as to why the Government might resist what, in the circumstances of Clause 60, is an extremely mild proposition, but perhaps that is something that we can discuss following this stage of the Bill. I beg leave to withdraw the amendment.
Baroness Hamwee
“(a) after “immigration officer” insert “or designated person”;(b) after “lawfully” insert “and the basis of his entry including if applicable particulars of his visa”;(c) after sub-paragraph (1)(b) insert—“(ba) whether his immigration status has changed during his stay in the United Kingdom,””
Baroness Hamwee
My Lords, Schedule 8 provides for designated persons as well as immigration officers to undertake functions in connection with embarkation checks. The purpose of this amendment is not to question the designated persons but to seek, in a world where net immigration numbers and what individuals have been doing in this country before they leave it are so current, reassurance for the Committee. A section in the Immigration Act 1971 allows immigration officers who are dealing with embarkation to determine the identity of the individual, whether he entered the UK lawfully, whether he has complied with conditions of leave to enter or remain and whether his return to the UK is prohibited or restricted.
From time to time we have alluded to issues such as people coming here as students, then staying to undertake work. This may make the question about someone coming here as a student and then leaving when they leave not necessarily the right one to ask; the issues are a little more complicated than that. I am by no means proprietorial about the drafting and freely admit that it is probably rather clumsy; but assuming that the visa particulars are readily available to the immigration officer or designated person, I suggest that on exit from the UK there is a tie-up with these particulars and on whether the immigration status has changed during the stay here.
The broader question is whether the Government have given thought to whether the current powers are enough to marry up all the information with that which has been gained when the individual has come to the UK and whether they cover the issues that are a pretty hot topic on the question of net migration. I beg to move.
Lord Taylor of Holbeach
The logistics are a matter for detailed planning with the airlines. What the Bill does—what this schedule provides for—is give those people who are responsible for dealing with this work the powers which at present they do not have. Advance passenger information already supports electronic texts on a large number of outward-bound journeys. API will be part of the exit checks solution along with other options, including checks conducted and data collected at the port of departure. These matters are being discussed so that this can be done efficiently, but API is a contributory element of this provision. As to the detail of how it is going to operate in every form of transport—every airport, railway station and port—I cannot possibly say at this stage. The powers of this Bill give those who will be challenged to perform this task the right to conduct those checks. Otherwise the checks would have to be done by immigration officers and we do not consider that this is an appropriate role for the Border Force.
Baroness Hamwee
My Lords, this debate has gone well beyond my amendment. I am not entirely sure that I had an answer to my amendment, but perhaps my concentration lapsed. I beg leave to withdraw the amendment.
Immigration Bill
Baroness Hamwee Excerpts(10 years, 1 month ago)
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Lord Best (CB)
My Lords, we return to residential tenancies and come to a group of 12 amendments, of which the first nine are in my name, beginning with Amendment 54ZZA. I apologise for the number of amendments, but I will be brief in setting them out this afternoon. I am helped in speeding up the process by the very helpful points made by the Minister in our Committee session on Monday.
All these amendments are concerned with the practicalities of requiring landlords to check the immigration status of their tenants. We are past the stage of arguing whether the whole idea of imposing this new burden on landlords is a good one; rather, these amendments attempt to make the concept more workable and reduce the unfortunate consequences for tenants that it could create.
Amendment 54ZZA is about letting to students. The Minister made two welcome announcements on Monday. The first heralded the Government’s plans for an initial stage—I hope I am allowed to call it a pilot—in a single place to test the practicalities of the new scheme. The second announcement was that student lettings that are controlled, owned, managed or arranged by a registered educational institution will face no further need for immigration checking by landlords. This is obviously right since the student has been thoroughly vetted already by the higher education establishment.
Capturing the wider definition of what comprises a student letting will need a new form of words. The new clause to come before us on Report may go beyond the scope of my amendment, and the Minister may tell me that Amendment 54ZZA is now quite redundant. But perhaps the Government’s revised measure, which I think will pick up student digs that are lettings in ordinary street properties, may also benefit from the formula in my amendment, which comes from the experts at the British Property Federation.
I will explain Amendment 54ZZA. Sensibly, paragraph 11 of Schedule 3 already excludes specialist lettings to students in higher education, since they have been thoroughly checked by the university or the higher education provider. The Bill exempts traditional halls of residence using the definition that is used for council tax purposes. That definition dates back to 1991, since when there has been extensive private sector provision of purpose-built student accommodation. Amendment 54ZZA extends the exemption from the traditional university halls of residence to embrace privately provided purpose-built student halls—the smart new blocks of student flats now appearing in many university towns and cities.
To avoid going too wide, the amendment specifies that the provider must be a body covered by a code of practice officially approved under Section 233 of the Housing Act 2004. This confines the extension to private sector providers that are properly recognised as managing bona fide student accommodation in partnership with higher education bodies. The amendment avoids the bureaucracy, hassle and duplication of effort for student accommodation providers, who would otherwise have to recheck the status of the students they house when this has been done already by a higher education establishment.
Now that the Minister is willing to extend the exemption for student lettings—I know colleagues will be very pleased with that—I hope that the definition in my amendment covers at least some of the ground. To cover more of that ground, will the Minister comment on the idea put forward by the noble Baroness, Lady Hamwee, on Monday? She suggested that the perfect solution to this problem might be to allow the letter that universities issue to students to exempt them from council tax to also be proof of their exemption from immigration checks. Such an approach would exempt the great majority of students and their landlords, bringing comfort to the many Members of your Lordships’ House who are very keen to ensure that the new measure does not deter overseas students from choosing the UK for their studies.
Let me go swiftly through the rest of my amendments in this group. Amendment 54A would add to the list of exclusions from the Bill’s obligations on landlords, under the list of “excluded residential tenancy agreements”. I know that Crisis has been pleased with some helpful changes already made to the Bill, but tenancies organised for people who are or will be homeless and are placed in the private sector by a responsible body need to go on the list of exclusions in Schedule 3. Organisations such as Crisis are funded by the Department for Communities and Local Government to persuade landlords to take on homeless or potentially homeless people—indeed, the DCLG last week announced extra resources for this valuable work—but, at present, the landlord will still have responsibility for checking the immigration status of these nominees, even though they have been vetted already by the local authority, a charity or a regulated housing association.
The amendment would excuse the landlord from the potential threat that someone whose papers are not in order and who turns out to be here illegally renders the landlord subject to a fine. The arrangements for placing homeless households in the rented sector are extremely important in giving confidence to landlords to take in vulnerable tenants, including those leaving prison, who are perceived to be a high risk. It is not easy to negotiate with landlords who are understandably hesitant to take in people on the edge of homelessness. Telling landlords that they will ultimately carry the can if a household is found later to be here illegally sets up a new barrier. I hope that it is not contentious to exclude placements of this kind from the rigours of the Bill. I hope that the Minister will be able to respond sympathetically.
Amendments 55B, 55D and 55E attempt to head off a major problem with the proposed arrangements: namely, the requirement on the landlord to check the credentials not just of the tenant but of other people who come into the accommodation with the tenant, usually family members. These people are not named in the tenancy agreement and the landlord has no direct relationship with them. Here, the Bill introduces a duty for landlords that goes well beyond the comparable duty for employers. Employers are not required to make inquiries about a potential employee’s family or friends, but landlords will be expected to make thorough checks in relation to other people over the age of 18 who live with the tenant. This is fraught with difficulty and, of all the many reasons that a landlord may avoid getting involved with a particular household and risking a £3,000 fine, this scenario is about the most off-putting. The amendments would remove this extra and unreasonable duty on the landlord and confine the obligation to checking the status of the tenant or tenants who are on the tenancy agreement.
Amendment 55H would remove the obligation on the landlord to notify the Secretary of State of a change to the status of a tenant whom they have already housed. It would take away the need to recheck their immigration status after a tenancy has started. Instead, the landlord would have to reconsider the tenant’s status only when the tenancy ends and the tenant wants to renew it. Once a tenancy has been signed, the landlord clearly would not wish to engage further in these checks, and it seems a step too far to require landlords to look out for and report so-called post-grant contraventions, except when the tenancy comes up for renewal.
Amendment 55R would enable the Secretary of State to give extra time for a landlord who has received a penalty notice to bring forward an appeal if the prescribed 28 days appears in the circumstances to be too short a time. With the complexities involved in these matters, the Secretary of State might well be glad of some flexibility here in the future.
Amendment 56F addresses the tricky issue of the landlord’s obligation to establish whether a person is over 18 years old. We all know that supermarkets find it very difficult to verify a customer’s age when a young person wants to buy alcohol or tobacco. My previous amendments would remove the onerous obligation on landlords to account for the immigration status of people who are not on the tenancy agreement and with whom they have no direct dealings. This amendment is a safety net if the duty to check up on others in a household finds its way on to the statute book. It puts the onus on the Secretary of State to set out an order which makes clear that as long as the landlord or their agent takes specified steps to establish the age of the occupiers, they will not be in danger of being penalised later. Without the amendment, landlords will go in fear of a transgression, despite their best efforts, and the presence of teenage children in a household will present another reason for a landlord not to house a family for fear of breaking the new law.
Amendment 56H is my final amendment. I think it could be helpful in tackling the central problem here: namely, that respectable landlords will henceforth be extremely wary about accepting anyone for a tenancy who just possibly might be a migrant without the correct papers. The amendment shifts the burden of checking out tenants’ credentials to one or more bodies which take on that responsibility and are approved by the Secretary of State for that purpose. Those verifying bodies would no doubt charge for the service, but could make the cost quite modest through economies of scale, dealing with many hundreds or thousands of cases, and would become absolute experts in ascertaining who was and was not an illegal immigrant. As long as the landlord had received the all-clear from the approved body, which might be part of a trade association or a credit referencing agency, the landlord would not need to worry about the new liabilities that they face.
The concept of a body approved by government taking responsibility for a key aspect of the affairs of private landlords is the model used for handling tenants’ deposits. Initially three and now four agencies have been cleared to provide tenancy deposit schemes to deal with all the tricky aspects of collecting and returning deposits. Similarly, the Secretary of State approves bodies to provide ombudsman services to the sector. A similar approval mechanism could lift the burden on landlords struggling to undertake accurate immigration checks and would, I think, reduce the cost to landlords, which may get passed on to tenants if agents are involved, from about £50 a shot to, perhaps, £25.
That measure would be particularly helpful to the Home Office inquiries team, removing a lot of the pressure of fielding queries from amateur landlords up and down the country who would no longer need to bother the Home Office. That arrangement would, I hope, achieve everything that the Government want from this part of the Bill, while reducing a significant financial and administrative burden for the Home Office and greatly reassuring good landlords that they need not turn away people who might just be here illegally, because the checking has been done for them.
I hope that that idea appeals to the Minister, and I am grateful to Richard Jones of the Residential Landlords’ Association for devising it. I look forward to hearing the Minister’s response to the amendments.
Baroness Hamwee (LD)
My Lords, I have three amendments in this group. The noble Lord, Lord Best, has raised a lot of important issues—in some cases as to principle and in some as to workability, with which all of us have been concerned.
On his Amendment 56H, allowing for verifying bodies, it speaks volumes about the views of the Home Office, which we have heard in this Chamber and outside it, that such a suggestion has been brought forward. One sees the comments about the current standards of the Home Office and one looks forward to much improvement, but one can see how such a proposal has come about. I suspect that some such agencies might well grow up outside the statute if we do not provide for them. I can imagine what the Minister may say in response to the amendment—that no third party can be authoritative on this—but I can envisage small landlords casting around for an organisation that can help them with this work.
The first of my amendments, Amendment 56J, is much the same as the noble Lord’s amendment with regard to a person that a landlord thinks is under 18 but in fact turns out to be an adult, for the reasons that the noble Lord has given. Amendments 56K and 56L are to Clause 32. The first would ensure that the Secretary of State could increase only the range of agreements not treated as falling within the scheme—in other words, could increase the range of exemptions but could not bring in through this mechanism agreements that would otherwise fall outside the scheme—while the second would ensure, similarly with regard to occupants, that the Secretary of State could increase only the range of people treated as not occupying premises but could not bring in agreements that would otherwise fall outside the scheme.
I understand that a degree of modification needs to be provided for in the light of experience if the pilot—I shall continue to call it a pilot—proves to be unsuccessful. However, we should understand to whom the scheme is intended to apply at the outset—to whom and to what, I suppose. I am grateful to the noble Lord for raising such a range of issues. He is expressing the concern that we have heard already from all around the House.
Lord Taylor of Holbeach
It is not a question of payment, but of whether that is their principal or main home. If it is not, and they are just a guest for the weekend or for a month, or whatever, that would be a different matter, but if it is the person’s main home, whether there is payment is not relevant to their status. I hope that that is clear.
Baroness Hamwee
On the same point, it is common in leases and tenancy agreements to provide a prohibition against subletting or having a subtenancy. In some of the less formal arrangements that the noble Baroness and I are aware of—I am thinking now about the head landlord and tenant—it may not be normal to provide for that, even though a mortgage company that has lent on property would expect it. I hope that landlords, as we understand them in the normal way, would not be penalised if they had a fairly informal arrangement with a tenant of the sort that would fall within this that did not preclude a subtenancy or sublicence. I hope that I am being clear about that. I can see that there may be more calls on what the landlord should do by precluding the possibility of somebody coming in and lodging or having a sublicence without the landlord himself knowing—and I would not like a landlord to be penalised because of that. It is an allied point; I am seeking for there not to be more requirements on the landlord.
Lord Taylor of Holbeach
I am sorry because, as my noble friend Lord Attlee whispered to me, “You’re wrong”. He is so delicate in these matters. But I am wrong. This transfer of responsibility occurs when rent is paid; when no rent is paid, that is not an arrangement under this scheme. I hope that that is understood, and that it helps to clarify the border as to where the reporting happens.
Baroness Smith of Basildon
I am grateful to the Minister and thank him for clarifying that—we all make mistakes. Does that not seem some kind of a massive loophole in the law—the landlord will have to undertake all these checks to ensure that the landlord’s tenant is a legal citizen of this country and entitled to stay, but the person who is renting the property could then allow guests to stay permanently, with it as their main home and with no payment? It would be possible for a rogue landlord to charge exorbitant rent to one person and for the others to stay for free. There seem to be complications around that, allowing a significant loophole in this legislation, if I am correct—but I may be wrong.
Baroness Hamwee
My Lords, I might add to the complications by pointing to the provision that, although the residential tenancy agreement of rent must provide for payment of rent, it need not be a market rent.
Lord Taylor of Holbeach
Yes, a further elaboration of the point is that the restriction applies only when the person is under an agreement, formal or informal, where the tenant pays rent. The immediate landlord is responsible; if the tenant sublets without the superior landlord’s knowledge, the tenant is responsible for the subtenant. This is quite convoluted language, if I may say so, and it might help noble Lords if I wrote to clarify that point. I see the importance of making it clear where the responsibility lies in these matters; I thank the noble Baroness for raising the issue in the first place and my noble friend Lady Hamwee for her comments.
Baroness Hamwee
(a) an asylum seeker or the dependant of an asylum-seeker as defined in section 94 of the Immigration and Asylum Act 1999;(b) a person provided with accommodation under sections 17, 20, 23C, 24A and 24B of the Children Act 1989 or otherwise under that Act;(c) a person provided with support under Schedule 3 to the Nationality, Immigration and Asylum Act 2002 to avoid a breach of the European Convention on Human Rights;(d) and—(i) an applicant for or a person holding a Tier 4 visa or holding a certificate of acceptance of studies issued by an authority-funded educational institution; or(ii) an applicant for or a person holding a student visitor visa for a period longer than six months;(e) a person who is resident outside the UK and is studying English in the UK who is accommodated in homestay accommodation;(f) ”
Baroness Hamwee
My Lords, Amendment 55A is the first in a group of 12 amendments all about who falls within and outside these provisions. This may be stretching it a little bit, but something occurred to me when listening to the noble Lord, Lord Best, talk about a proposed verifying body. However, I have completely lost my train of thought. I had a really good example to support that proposal and it may come back, but I will move on to the specific amendment.
In Amendment 55A, the first paragraph would provide for not only those asylum seekers whose accommodation is provided by the Home Office—they are covered by Schedule 3—but asylum seekers who make their own arrangements for accommodation. It seems to me that they should be excluded also. On a practical level, the state might be forced to provide for those who could otherwise provide for themselves, which is one of those unintended consequences.
As regards paragraphs (b) and (c) in Amendment 55A, provision is made in Schedule 3 for accommodation from or involving local authorities, but that provision is drafted in terms of the homelessness legislation and does not cover other accommodation such as that provided under the Children Act 1989. Section 17 of that Act is used primarily to support children with their families, Section 20 to support unaccompanied children, and subsequent sections to support care leavers. Where a person is without leave to remain, they will not be entitled to social housing or homelessness assistance from the local authority but in limited circumstances a person at particular risk may be accommodated by social services under relevant legislation because of their disability or ill health.
Paragraph (d) in Amendment 55A deals with students, which I think we will come back to. I suspect that I will be pressing the Minister to go further than the amendments being dangled in front of us may go, but I look forward to seeing them. Lastly, Amendment 55A covers young people accommodated in “homestay accommodation”—I think it should have a capital H—while undertaking language courses.
Amendment 55C would provide that there should be no breach when, after entering into an agreement, a tenant becomes disqualified because of his immigration status. This is a matter that the landlords associations expressed concern about in their evidence to the Public Bill Committee in the Commons. It is a probing amendment through which I seek to understand how a landlord is to ensure that he is not in breach without frequent checks. I think that the noble Lord, Lord Best, referred to this on a previous day. If the landlord is satisfied that the tenant is a British citizen, that is one matter, but if the status is complicated or is not permanent, what is the landlord to do? It seems to me that he must keep on asking, which is impractical.
Amendments 55F and 55J are amendments to Clauses 19 and 21, dealing with excuses—that is the term used—available to landlords and agents. Clauses 19(2) and 21(2) excuse the landlord or agent from paying a penalty, having been given notice of the contravention. There is a world of difference between a contravention and merely not paying the penalty when in fact there was no contravention or, in the case of a landlord with an agent, when it was the agent’s responsibility. Therefore, I am seeking to put the position as I think it should be put, because I do not think that it is just a matter of semantics.
Amendments 55G and 55K are amendments to Clauses 19(7) and 21(7). Similarly, Amendment 55H in the name of the noble Lord, Lord Best, is an amendment to Clause 19(7). These amendments allow me to ask whether it is necessary both to have complied with the requirements during the period and to have notified the Secretary of State without delay. The amendments also enable me to ask whether the phrase,
“as soon as reasonably practicable”,
in these clauses means “without delay” in the eyes of the Government. They are not synonyms in ordinary language. I also ask the Minister to confirm that it is possible to notify the Secretary of State “as soon as reasonably practicable” under subsection (6)(a) without following the route in subsection (7)—in other words, that subsection (7) is not the only way to satisfy subsection (6)(a). I appreciate that this is not language that is holding the Committee riveted at the moment, but these small amendments could be important in practice.
Amendment 55L addresses whether or not the documents need to be “of a prescribed description”. The amendment would mean that any document could be used to prove that a person from outside the EEA had a right under European law to be in the UK or, in the case of other persons, that a document granting leave could be used. In other words, how is immigration status to be proved? I appreciate that in many ways it will be easier if there is a list. However, the list of documents has to be complete and accurate, and I am aware of the frequency of the change in immigration rules, which will affect which documents can be prayed in aid in this situation.
European nationals can bring family members with them. I was thinking about that when we were talking about people who are under or over the age of 18. Those family members may be persons from outside the EU if they have a right to be here and are not under an obligation to possess a document issued by the Home Office. They can apply for one and the Home Office is supposed to provide it within six months. Perhaps the Minister can tell us whether the Home Office wants people falling within this category to apply for documents, as I suspect that that will cause a considerable amount of extra work.
EEA nationals, as a matter of law, should be treated as well as any third-country nationals. It looks as if third-country family members will find it harder to prove their entitlement to be in the UK—even those from a family composed entirely of non-EEA citizens who have visas. There are some small categories of British citizens who do not have passports but can show that they are British through the use of a birth certificate. Is the landlord expected to know that the birth certificate belongs to the individual? The guidance for employers on checking documents, as we have already heard, is very long—more than 80 pages. The amendment probes that area further.
Lord Taylor of Holbeach
My Lords, I do not want to sound complacent because I recognise that this is a cause of anxiety which has been expressed in meetings I have attended. It has also been expressed by other noble Lords in our earlier discussions about the Bill. I do not want to lay too great a store by the codes, but those codes exist, and I do not want to lay too great a store by racial discrimination legislation, which would clearly apply in such circumstances.
What I will do is to ask the right reverend Prelate to accept that this surely applies in connection with employment. I do not know whether the right reverend Prelate feels, as he looks at the nature of people who are engaged in work in this country, that there is widespread evidence of racial discrimination, but I would have thought not. I think it is to the great credit of this country that it is able to welcome people, and this is certainly not a Bill that is designed to make people unwelcome, as long as they have a right to come here and to remain here. That is the principle of this legislation, and I hope the right reverend Prelate will be reassured by that. It is not meant complacently but I believe that, at bottom, the analogy with employer provisions is a good one and leads me to suggest that the particular fear that the right reverend Prelate refers to is not the cause for concern that he thinks it is.
Baroness Hamwee
My Lords, this discussion has confirmed for me the complexity of the provisions, and therefore the advantages in having the sort of verifying body to which the noble Lord, Lord Best, referred in the previous group of amendments. We will come later in the Bill to the position of immigration advisers and tightening up arrangements there. It seems that, as well as rogue advisers, there must be many who are simply incompetent. One could almost say, “Who can blame them?”, but nevertheless I do blame them. Any arrangements which can make it simpler for those who are, as it were, at the coalface to operate will be very welcome. This debate has confirmed that in my mind. My noble friend Lord Avebury has been muttering in my ear about whether case law on employment restrictions applies here. That is another area where I dare say the Minister would say that it depends on the facts, but it is a good illustration of what we may be dealing with.
The Minister said that there was no need for a certified copy of a document, but I was suggesting—I hope—that it could be an option. The reference to the 48 hours to check reminds us all that, in this extraordinary letting market, the property will be gone in 48 hours. The Minister in the Commons talked about the increase in the penalty being based on “aggravating factors”. He said:
“If new information comes forward that demonstrates that, for example”—
I must concede that—
“the mistake was not innocent, but some sort of connivance was involved … it seems only right … that someone looking at the issue afresh should take that into account and reach a conclusion accordingly”.—[Official Report, Commons, Immigration Bill Committee, 7/11/13; col. 272.]
In my mind, that sort of connivance would be a new fact. I would be very happy to look at the language but I am concerned about the deterrent properties of this. I would hope that we might be able to pin that down a little more.
I will carefully read what the Minister said on this as it is a technical point. He referred to the detail of Schedule 3. My noble friend again questioned whether paragraph 8 of Schedule 3 covers the ground that we are concerned about. Going back again to the workability of these arrangements, I must of course read carefully what the Minister has had to say. I thank him for his answers and for what I think he said implicitly. These are detailed points which we might, if it is appropriate, look at again before Report so that we can make sure that anything we raise on Report is justified and not already covered. The Minister is nodding. I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
I start from the position that an informed House is better able to make decisions and judgments on issues. Having said that, I am not sure that I could commit to making a periodic Statement on this issue, although I know that the Home Office will always respond to questions that might seek updated information of this type, and indeed there are other ways in which this House has the capacity to bring the Government to account on policy. At least by promising this Statement I am giving an indication that we are confident that this particular measure will be a success and raise money for the National Health Service, which will be to the advantage of the taxpayers of this country and a bargain for migrants to this country. I hope that my noble friend is reassured by that point.
Baroness Hamwee
My Lords, I am sure that my noble friend is reassured. However, I think that the Committee would also be glad to know—I do not expect the Minister to pin down the detail tonight—the range of issues that will be covered by a Statement. That addresses my noble friend’s point about the data which will be collected. We were quite rightly reminded about the costs of the services, which have not been included in our list. I am sure that there are other points as well. It is the detail that is important and that noble Lords will be interested to know. Perhaps I may leave that with the Minister as something to think about after this stage.
Baroness Williams of Crosby
If my long-suffering noble friend will be kind enough to bear with me for one minute, perhaps I may raise one further point which follows what the noble Baroness, Lady Meacher, said. I think that the Minister said in his response that it was already the case that no charges would be made under the NHS for treating infectious diseases such as AIDS and tuberculosis, and that that would still be true for those who are not permanent residents. I believe that I understood that correctly. It is therefore strange that I have had briefings, particularly from the National AIDS Trust and from bodies concerned with drug-resistant TB, asking that it should be made quite clear that there would be no charges for treatment in the cases of these wildly infectious and very frightening diseases. There is, therefore, something of a conflict of understanding which the proposal of the noble Baroness, Lady Meacher, might go some way towards meeting. However, it is troubling when a professional foundation says something quite different from what I understand we have been discussing and have been told here in this Chamber.
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Baroness Hamwee (LD)
My Lords, I may be quite wrong in my recollection, but I remember reading somewhere that only a single consultation with a GP would not be charged for. I hope that I am wrong in thinking that, but if that is the case, I am really worried. It builds on my noble friend’s point about diagnostic testing. I have a wonderful GP, but on the, happily, rare occasions on which I see him, he usually says, “Go to have a blood test and come back”, or “Let’s see how it goes and come back”.
Amendment 66E covers ground that has already been thoroughly covered by the noble Baronesses, Lady Meacher and Lady Cumberlege, about both victims of domestic abuse and persons who are believed to be victims of trafficking. The point about identifying both those groups—not all of them, but many of them, women—is very important. Often, they may not even be suspected of falling within those groups until they see a doctor. Doctors are in the best place gently to investigate how certain conditions have come about, because the patient may not be prepared to disclose the information without being encouraged to do so, and may not have disclosed it to anyone else—possibly not even to a doctor on initial consultation. Although the intention here is good, we have to be clear about how the provision will be implemented, as well as getting assurances that what we understand to be the case will be the case.
Baroness Smith of Basildon (Lab)
My Lords, there is little I can add to the points made eloquently by noble Lords—although, in an all-female debate, perhaps I should say noble Baronesses. Some points are not dissimilar to the principles that we raised on Monday about exemptions on housing issues and the rate of pregnancy and domestic violence. Again, the debate highlights confusion and a lack of clarity. The Government have to accept some responsibility for that confusion and lack of clarity.
The case raised by the noble Baroness, Lady Meacher, and reinforced by the noble Baroness, Lady Finlay, is that victims of domestic violence and victims of female genital mutilation are not just vulnerable but are victims of crime. That is a step further than vulnerable.
I recall that when I was a PPS at the Home Office many years ago, the Government piloted working with A&E departments to identify women who presented with injuries that were likely to be the result of domestic violence, to see whether we could get those cases through the courts and protect the women from being victims again. That was a very important part of A&E working as part of the whole criminal justice system. I worry that women who should present themselves to health services to receive treatment for violent injuries and FGM—the case presented by the noble Baroness, Lady Finlay, was horrific—will be victims of trafficking. We have to imagine the terror of someone who has been trafficked to the UK, often for sex or slavery. They may not speak English; they may not be aware of their legal status; they will have little trust; they will be fearful and in poor health; and they will be worried about going to the authorities in the first place because of worry about their own status.
There needs to be careful thought about how that can be managed. The Minister and the Government have been helpful in saying that victims of human trafficking will be exempt from charges. They have been very clear on that, but much concern has been raised about how to identify those women and help them come forward. What the noble Lord said was helpful, but he needs to say more.
I return to the question of what this means and the complications that other noble Lords have raised. What is the Government’s definition of success here? If their policy is successful, health services will be able to check the eligibility of those who are entitled to free healthcare and, consequently, charge those who are not eligible. The second aim is to draw to the attention of the authorities those who present and do not have a legal right to stay in this country. The point about public health is particularly pertinent here, and I would like to know what the Government are thinking on this and how they identify the problems.
If identifying those who are not legal migrants and reporting them to the authorities means that those people are less likely to report for healthcare, what are the implications for public health if someone has an infectious disease that needs treatment or a condition where a lack of early intervention means more expensive, or even emergency, care? We heard about the case in Northern Ireland. Another case I have been aware of is that of a young woman who had asthma. Simple preventive treatment would have been cheap and easy, but the care later on that was necessary because she had not had that treatment was very dangerous to her health and expensive to the public purse.
The question of far greater cost comes back to the issue of mental health cases. I take the point made by the noble Baroness, Lady Barker, on this. If someone has mental health problems, they are likely to be a danger to themselves and to others. I am sure that it is not the Government’s intention that those people should go without healthcare, but we have to recognise that there are specific obligations in those cases. I am seeking from the Minister an explanation of what thought the Government have given to these issues prior to bringing the Bill forward, and what plans are in place to deal with these kinds of issues regarding the most vulnerable—the victims of crime, those who could be a danger to themselves or to others, and those who could present at even greater cost to the public purse if they do not get the treatment that they need? I am particularly interested in the Minister’s response on this matter.
Baroness Hamwee
“( ) A person is within this subsection if he or she has made a claim for asylum which has not yet been determined by the Secretary of State or has been refused and an appeal against that refusal is pending, and—
(a) “claim for asylum” has the same meaning as in section 94 of the Immigration and Asylum Act 1999 (interpretation of Part VI);(b) an appeal is pending for the purposes of this subsection when it is pending under section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeal).”
Baroness Hamwee
My Lords, in moving Amendment 66G, I will speak also to Amendments 66H, 66J, 66K and 66L. This takes us on to the provisions regarding bank accounts, which is perhaps a slightly drier issue than others we have discussed but is very important.
The Bill prohibits the opening of current accounts for disqualified persons and regulates banks’ operations in this regard. The first of my amendments in this group would provide that someone who has made a claim for asylum which has not been determined, or whose claim has been refused but an appeal is pending, would also be covered by the exclusion. The clause, as drafted, seems to exclude persons on temporary admission. It is most likely that those on temporary admission for a lengthy period are seeking asylum. I do not suggest that many of those will have a lot of free cash and want a current account, but some whose claims have been pending for a long time may be allowed to work in a shortage occupation. I imagine that this is quite rare, but some may even be able to get some money out of their country of origin. Those people ought to be able to have a bank account. How can that be permitted if the clause remains as drafted?
Amendment 66H goes to the definition of a “disqualified person”, whom we are told in Clause 35(3)(b) is,
“a person within subsection (2) for whom the Secretary of State considers that a current account should not be opened”.
I suggest that the Secretary of State should be required in the Bill to act “reasonably”. I certainly acknowledge that, as a matter of law, it may well be that she should act reasonably, but the complete discretion is concerning. We are not told of any criteria on which the decision will be based. The Explanatory Notes state:
“The Secretary of State therefore has discretion as to who should be barred … because there will be some individuals who face legitimate barriers which prevent them from leaving the UK, even though they do not have leave. The Secretary of State may enable these persons to open a current account”.
It is important to have published on the record the criteria on which the Secretary of State will base her decision and what options someone who is not able to open a bank account has to challenge her refusal.
That takes me to Amendment 66J, because I cannot see how one would challenge the decision. Provided that they do not discriminate and act lawfully, banks can refuse to open a bank account as they choose. However, if the Secretary of State can order them to refuse to open an account, I wonder whether she can require them to make a provision for a refusal to be challenged. It is a very homegrown and underdeveloped amendment, but there has to be some means of challenging because the consequences are serious. Being refused a bank account goes to one’s credit status and to an application for a mortgage at a later stage, and a number of other consequences may apply to somebody who should never have been refused in the first place. I am seriously concerned about this.
Amendment 66K is on our old friend in Clause 36(1): “The Treasury may”—or “must” it?—“make regulations to enable” the FCA to monitor and enforce compliance. Might the Government think it right to bring the scheme into force but not have these arrangements made?
Finally, Amendment 66L is on “in particular” in Clause 36(2)(b), which provides that “The regulations may” make certain provision,
“including in particular those mentioned in subsection (3), with or without modification”.
I am not clear what is added or suggested by all that and hope that the Minister can help me on it. I beg to move.
Lord Avebury (LD)
My Lords, at the moment it is entirely at the discretion of a bank or building society to agree to open a current account in the name of a person who requires leave to enter or remain but does not have it. The status checks that the bank would carry out would be to determine whether the applicant was financially reliable rather than what his immigration status was—although if he falls within Clause 35(2)(b), he is unlikely to be acceptable to the bank.
Clause 35 provides that a bank has to refuse to open an account for a person who does not have permitted leave to remain, and who is also labelled on a database operated by an unspecified anti-fraud organisation or data-matching organisation as a person whom the Secretary of State considers should not be able to open a current account. I should be grateful if the Minister would elaborate on the details of the organisation to which the banks will have to refer and how it will be established. It means that there will be some people on temporary admission whom the Secretary of State might consider eligible to open a bank account; the Explanatory Notes say this in fact means individuals facing legitimate barriers preventing them leaving the UK.
However, neither the Bill nor the Explanatory Notes gives any detail as to how the Secretary of State will make these decisions or what rights a person will have to challenge her refusal to let him open an account. Should not an asylum seeker who has exhausted his rights of appeal against refusal but is given further temporary leave to remain be allowed to open a bank account? One thinks of the Zimbabweans who were given temporary leave over many years, many of whom opened current accounts if they satisfied the bank’s conditions. Clause 35 prohibits a bank only from opening a current account in the name of a disqualified person, not from continuing to afford facilities to such a person who already has an account. Will this be made clear in the guidance that no doubt will be given to the banks?
Amendment 66G removes from the scope of the clause asylum seekers whose claim has not been finally determined. Most of these people, as my noble friend said, will be very poor and thus unlikely to need a current account, but even those supported by the National Asylum Support Service under Section 95 of the Immigration and Asylum Act, and who receive payments fortnightly, may not wish to carry around the money they receive. A couple with two children under 16 would receive £357 a fortnight, which is quite a large sum to have in one’s pocket or handbag.
Asylum seekers whose claims have been pending for more than a year and who can find employment in shortage occupations may be allowed to work, and my noble friend Lord Roberts will suggest in later amendments that the right to work should be further extended. These people will need accounts into which their wages can be paid. For that matter, could my noble friend say how many people it is estimated will be prevented from opening accounts under this clause who would otherwise have been able to be accepted by the banks under their own rules? What is the cost to the Government of setting up and managing the database, and what is the cost to the banks of making the checks required?
On a casual inquiry at my own bank, Santander, I was told that it would open an account only for a person who was resident in the UK—rather an incongruous condition to be imposed by a foreign-owned bank. It would mean, if the bank meant it literally, that it would not open an account for an EEA citizen who owned a holiday home in Cornwall or for a foreign student—but perhaps the bank makes exceptions.
An immigration lawyer who deals with a substantial number of immigration cases told me this morning that the banks invariably refuse to open current accounts for asylum seekers and appellants. So the result that the Government are aiming for in these clauses is already being achieved by market forces. However, Clause 37 defines the term “bank” to exclude credit unions, and the London Community Credit Union confirmed to me this morning that it would be prepared to open a current account for an asylum seeker, provided of course that his papers were in order. Will my noble friend confirm that asylum seekers and those who appeal against refusal of asylum will continue to be free to open current accounts at credit unions?
Earl Attlee (Con)
My Lords, I am grateful to my noble friend Lady Hamwee for the clear and succinct way in which she spoke to her Amendments 66G to 66L. These amendments seek to make various revisions to the bank accounts provisions. The objective of these provisions is to make it much more difficult for people to operate in the UK if they do not have the appropriate immigration status to be here.
Amendment 66G would amend Clause 35(2), which sets out the group of people who may be disqualified from opening an account. This amendment would specifically add to this group asylum applicants who have an outstanding claim. I am not convinced that that is what my noble friend intended. However, I can confirm that the policy intention is not to prevent these people opening a current account. The details of persons who are liable to removal and who have exhausted all their appeal rights will be the only ones shared with CIFAS, the specified anti-fraud organisation. By definition, this will not include persons with outstanding asylum applications and appeals.
My noble friend Lord Avebury asked about CIFAS. It is already a recognised checking agency and has been selected because we believe that it is the best organisation to perform this function. I will write to my noble friend with further details about that.
My noble friend also talked about the cost of these checks. First, I make it clear that a customer applying to open a bank account will not notice any difference, as these will just be checks that the banks do electronically with CIFAS. Because they are done electronically with an existing organisation, there will not be significant extra costs.
Amendment 66H would insert the word “reasonably” into the definition of a disqualified person. This amendment is unnecessary. As a matter of general administrative law, the Secretary of State is obliged to act reasonably, as pointed out by my noble friend. If he did not act reasonably, I am sure that he could be challenged in the courts by means of judicial review.
Amendment 66J would create a right to challenge or appeal against the refusal of a bank or building society to open a current account. The refusal of an account for a disqualified person by the bank or building society is mandatory and flows directly from an individual’s immigration status and the Secretary of State’s decision to disqualify the individual from opening an account. It remains open to individuals to apply via the immigration system to regularise their status or appeal through that route as appropriate. We do not need to create a fresh appeals mechanism here. However, I want to provide reassurance that if any details given to CIFAS are incorrect or become out of date, an individual would be able to complain directly to the Home Office. In answer to the noble Baroness, Lady Smith, the prohibition is on opening an account, not having an account. If I am incorrect on that, I will write to the noble Baroness.
If there is an error at CIFAS, the Home Office would then have a legal obligation under the Data Protection Act 1998 to correct it. The Home Office exercises considerable care over the quality of the data it shares with CIFAS and has systems in place to regularly update CIFAS records if someone’s status changes. From over 100,000 cases notified to CIFAS since 2012, I am aware of only one complaint being made to the Home Office.
Amendment 66K would require the Treasury to make regulations enabling the Financial Conduct Authority to make arrangements for monitoring and enforcing compliance. The amendment is not necessary, as I can assure the Committee that we will make such regulations.
Amendment 66L would leave out the words “in particular” from Clause 36(2)(b), which refers to provisions of the Financial Services and Markets Act 2000 to which the aforementioned regulations may apply. The words “in particular” are intended to make it clear that the list of provisions is not exhaustive, and they follow similar provisions in LASPO. The list is simply intended to give a clearer sense of the provisions that the regulations are intended to cover.
In short, my noble friend Lord Avebury expressed concerns about whether these measures were appropriate. These proposals do not breach human rights legislation; they will not impact on a person’s ability to provide themselves with the basic necessities, nor prevent them interacting with the world around them. This measure is necessary and proportionate; it supports immigration control which is a legitimate aim. My noble friend was asking broadly what would be done to ensure that the measures do not have the effect of turning the individuals concerned into vulnerable people. These individuals will still be able to conduct everyday transactions using cash, but I heard the noble Lord express concern about people’s supply of cash mounting up. In the past he has chided me about the relatively limited amounts of money supplied under Section 4 support to failed asylum seekers. The measures will make it more difficult for them to obtain loans and conduct a settled life in the UK, but it will not make it impossible for them to exist.
I hope that I have reassured the Committee that these amendments, while useful for seeking assurance, are not necessary, and I hope that my noble friend will feel free to withdraw them.
Baroness Hamwee
My Lords, to pick up on the phrase my noble friend has just used about cash mounting up, that is not the point that my noble friend Lord Avebury was making. He was talking about the cash that one might have in one’s pocket immediately upon collecting two weeks’ money. It is quite a lot when you receive it but it has to be eked out over two weeks.
Earl Attlee
My Lords, is the noble Baroness talking about support under Section 4 or Section 95? If it is under Section 95, the person will still have an outstanding claim and will therefore be able to open a bank account. If I am wrong on that, I will, of course, write.
Baroness Hamwee
That is helpful. I am grateful. On the issue of the Secretary of State acting reasonably, I was seeking the criteria. I am grateful for the detail of the Minister’s responses. Obviously I need to read them, as one always does, against my questions and against Clause 38, which gives the Treasury quite wide, but not unlimited, powers to amend what will be Sections 35 to 37. The practicalities and practice of this, as my noble friend will understand, concern us. However, I am grateful for the answers and I beg leave to withdraw the amendment.
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Lord Best (CB)
My Lords, there are a number of amendments in my name to this part of the Bill but I begin by supporting Amendments 50 and 51, introduced so well by the noble Baroness, Lady Smith of Basildon. All the amendments that I support relate to the proposals in the Bill for landlords to have responsibility for checking the immigration status of their tenants. I declare my interests in social housing and the private rented sector, as in the register. I have every sympathy with the proposition that the relevant clauses should not stand part of the Bill but I recognise that there are other factors here that mean that the Government will not be persuaded to drop this measure altogether. In the amendments in my name I am therefore concentrating on ways in which its impact can be moderated.
Moreover, I have had the benefit of a very useful meeting with the Ministers—the noble Lord, Lord Taylor of Holbeach, the noble Earl, Lord Attlee, and the Minister for Immigration in the other place, James Brokenshire—at which I and colleagues representing both tenants and landlords were able to clarify a number of points. Indeed, my colleagues from the Residential Landlords Association, Crisis, the National Housing Federation, the British Property Federation and the Joseph Rowntree Foundation commended Ministers and civil servants on a number of concessions and clarifications that have allayed some of their fears. Nevertheless, it remains the case that, as I set out at Second Reading and as the noble Baroness, Lady Smith, has emphasised, this new burden on landlords is likely to have a number of unfortunate consequences.
Baroness Hamwee (LD)
I am sorry to interrupt the noble Lord in full flow; I was waiting for a point at which I could come in. I just want to clarify whether he is speaking to amendments in this group; I do not think that it contains any in his name.
Baroness Hamwee
Fine. I thought that the noble Lord was talking to his own amendments that come later on. I am so sorry.
Lord Best
I shall come to them in due course.
The average private landlord will be keen to avoid committing the new offence of allocating a tenancy to someone who is not meant to be in this country, and to avoid being fined up to £3,000. They will want to play safe and not take anyone as a tenant who might just possibly turn out to be an illegal immigrant.
It will not be an offence not to check the status of a potential tenant; it will be an offence not to have checked only if it is subsequently discovered that the tenant is here illegally. So if someone is obviously not an immigrant, there is no need to go through the process of checking them out. How much easier, therefore, to turn away anyone with the appearance of being foreign, including perfectly legitimate applicants, using any number of excuses—most often that the property has already been let. Despite the guidance being prepared by the Home Office on how landlords can avoid acting in a discriminatory way, in those markets of high demand—London, much of southern England and hotspots everywhere—I fear that the Bill could mean that anyone who could remotely be thought to be a migrant will find it very tough to get decent rented accommodation. Frankly, it is difficult enough already for anyone who is not a young UK professional to persuade landlords to take them on. Remember that there are over 1.5 million private landlords, 78% of whom, as the noble Baroness, Lady Smith, said, own just one property; they are amateurs and they are going to be highly risk-averse.
Baroness Neville-Rolfe (Con)
My Lords, I am sorry that prior engagements meant that I missed part of the Second Reading debate and could not speak then on this important Bill, which I support. I start by thanking my noble friend the Minister for the briefing he kindly provided on the residential tenancy provisions. I thank noble Lords opposite for initiating a debate on Clause 15, as it gives me the opportunity to probe the Government’s intentions and the “workability” of the provisions, to quote the noble Baroness.
I come at the subject as a business person, although I should declare an interest as the part-owner of a son’s flat which is currently let while he works out of London. We are asking the landlord community, nearly 2 million of us, to be part of the enforcement service for immigration. This is a new burden, as the noble Lord, Lord Best, has said. I understand that, for 62% of landlords, the required documentation is already available to satisfy the provisions. But that leaves a lot of people burdened for the first time, and required to keep copies and records that they do not have to worry about at present. I suspect that many will not know about the new rules and that they risk a civil penalty—£1,000 for the first offence, £3,000 thereafter— if they let to somebody whose papers are not in order.
I have a fear that the immigration authorities, in order to hit targets, could turn their attention to the easy task of cracking down on landlords who make a mistake, rather than the labyrinthine task of fighting illegal immigrants through the courts. Can my noble friend give landlords, especially small landlords who do not use expensive letting agencies, some comfort on these issues?
This is an important Bill, as I have said, and it is clearly essential that the new provisions are communicated really well. I have two thoughts on this and would be glad to hear the Minister’s reactions before we accept the provisions on landlords in Clause 15 and subsequent clauses. One is to use the web properly. We should place on gov.uk, in one user-friendly place, all the new rules for landlords, wherever they are set out, including the new online checking resource that is planned; briefing on the new biometric residence permits, which will ease landlords’ task of identification; the contact details for the phone inquiry line; and the 48-hour e-mail immigration checking service, which I agree will need to be adequately staffed, as the noble Lord, Lord Best, has said.
A different version could also be provided for tenants, including, perhaps—having listened to earlier debates—students, from whom I believe the paperwork requirements may be relatively light. It would be good for all of those people to know what the rules are and be able to check them in a simple place on the web. With modern techniques, prospective tenants could easily translate this briefing using an online app, obviating the need for expensive advice and lawyers.
Secondly, we should ask the landlords’ associations to prepare model clauses on the new immigration controls to be added to their standard shorthold lease. This would make it less likely that the new requirements were overlooked and the tenant would have to make an undertaking, which would be helpful, for example, in avoiding illegal sub-letting.
Finally, I would like to understand the Government’s intentions on timing, a point which links to Amendment 51 on a possible pilot. I believe that the Government plan to trial the new arrangements in a specific area or areas, which is an excellent idea that I would like to see applied to more areas of regulation. However, what would the timetable look like, and will the Government, as suggested by the noble Lords opposite, feel able to feed back to this House what they have learnt before the new system goes nationwide?
As a supporter of the Bill I am very keen that it should work well and not lead to an adverse reaction by small landlords or a reduction in available accommodation because people do not want to risk a fine or the hassle involved in the new scheme. The money-laundering laws were no doubt good in intent, but the repetitive bureaucracy they have introduced into every aspect of asset purchase certainly comes at a cost which affects UK productivity. I am keen to know whether we have learnt from this experience in establishing this important new regime for landlords.
Baroness Hamwee
My Lords, we have a number of amendments in this group: Amendments 56B, 56D, 56G, 87A and 89. As other noble Lords have said, there must be a pilot. I was glad to hear the noble Baroness, Lady Smith, say that she has come to the view that it should be a single pilot. However, like her, I agree that there is a world of difference between a pilot and phasing the rollout. I have a number of probing amendments in this group and some in later groups. I will deal with particular concerns amendment by amendment rather than speaking generally to the clause stand part.
On the pilot issue, in my mind this is not probing but something that has to happen, and in a single area. We are not talking about different housing markets; all noble Lords who spoke about this are concerned about what I wrote down as “bureaucracy”, although “administrative burden” is the politer way of putting it, is it not? Concerns were also expressed about discrimination and how landlords, tenants, agents, occupants—people who are not tenants in the sense in which we normally technically use that term, but who are actually tenants under the Bill as they are defined—would cope. We are also concerned about tenants and occupants who have a right to be in this country and to rent. “Workability” was the term used, which is very much in my mind. I will not take up the Committee’s time by quoting from evidence to the Public Bill Committee in the Commons, but I, like others, was struck by the sheer number of small landlords there are in this country.
We talked about a pilot, and that pilot needs to be assessed. Of course the public response to a pilot will be the overall assessment, but it occurred to me that we need a more rigorous critique, being clear and careful about the factors to be assessed and evaluated. Our Amendment 56G would require a report before the provisions come into force about the matters which should be assessed and the basis for evaluating their assessment. I have not attempted to spell those out at this point; that is a piece of work that needs to be quite careful and detailed, to be subject to discussion and to be discussed. I have said that a report should be laid before Parliament by your Lordships. I also agree that the code, which must seek to ensure against discrimination, should have parliamentary involvement.
On Amendment 56B, the dangers of discrimination are inherent—that is an issue in itself—also because of the implications for those who are entitled to be in the country and to rent, as well as for everybody else.
Your Lordships will understand that with a name like Hamwee and coming from the background that I do, I knew people whose names were not familiar to landlords when people of my generation were seeking to rent. Unlike the experience of the noble Lord, Lord Patel, when they turned up on the doorstep they were greeted with, “Oh gosh, you’re white!” That is just as bad a discrimination, of course.
I think that there should be a review following the pilot—that may be implicit in Clause 28, but I think that we should say so—and parliamentary process for each revision. Our Amendments 56B, 87A and 89 are not just little wrinkles at the end of the Bill but amount to a substantive amendment to require clear stages to the process. I can also see that we should consider a mechanism for Parliament requiring a view if that is not a review forthcoming from the Home Office, although I thought of that only yesterday.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 50B, 51B, 51C, 51D and 54ZA. This group of amendments takes us to the type of accommodation. Amendment 50A deals with a point that has been referred to already—that is, where there is no exclusive right of occupation.
The Minister has referred a number of times to the known unknowns, or the unknown knowns. I think there may be a lot of unknown unknowns in this, and my amendment asks whether the Government are confident that arrangements can work where what comes within the definition of a tenancy is, as we have heard, not what one normally understands to be a tenancy, such as lodgers and all sorts of licences which are not exclusive licences. A lot people live in premises on an informal basis, which is hardly the ideal home, but they may be the only residents, and that is what brings the accommodation into the Bill. Noble Lords have already referred to whether a landlord will go through the checks, whether discrimination will be fed and whether an underground black market will be created. Amendments 55B and 55D, tabled by the noble Lord, Lord Best, address similar points.
The Minister told us not that long ago that there would be a range of penalties. He talked about £80 perhaps going up to £500 for multiple offences and £1,000 going up to £3,000. I am not sure whether I got his words quite correctly, but he referred to something like a proper mechanism for evaluating the level of the fine. I do not know whether he is in a position to say a little more about what the mechanisms for evaluating the level will be. It is clear that the Government have given this some thought. Indeed, it was referred to in the evidence session of the Public Bill Committee by the representative of one of the landlords organisations. She said,
“we do not agree with the proposed disparity in penalties””.—[Official Report, Commons, Immigration Bill Committee 29/10/13; col. 56.]
That is not my point. I just want to get some clarity as soon as we can on this.
Amendment 50B would preclude the Secretary of State reducing the types of excluded—which I find quite a difficult term in this context—premises which do not come within the scheme.
Amendments 51B, 51C and 51D relate to the way in which refuges are defined in Schedule 3. I am delighted that refuges are now within the schedule. My amendments would be refinements. The schedule does not at the moment take account of the fact that costs may be provided by a voluntary organisation or charity. The term is simply “operated”. The Bill states,
“its costs of operation are provided wholly or in part by a government department or agency, or by a local authority … it is managed by a voluntary organisation”.
There are a variety of models. A hostel may be owned by a voluntary organisation and the provisions seem to stand being reread and made as extensive as they are in practice.
Amendment 51D would extend the group of those who might benefit from the provision from being simply those who have been subject to an incident or pattern of incidents of the behaviour spelt out to those who are threatened with or avoiding such behaviour or who might be subject to it. It is looking ahead to prevention, as it were.
I accept that it would be unusual for somebody to flee without actually having been subject to some of the behaviour that is listed here, but I want to ensure that we are as inclusive as possible. No one seeks a place in a refuge. Nor, indeed, would a refuge, the places in which are in short supply, provide a place lightly. We should not add to the difficulties of someone seeking refuge, nor to those of the refuge operator. I should perhaps declare an interest as having been chair of Refuge for some years. I would be concerned if the operators of refuges had to interrogate their prospective clients in the way that this clause might suggest.
Finally, Amendment 54ZA would add holiday and short-term business lettings to the excluded premises. I am probing here because of the amount of administration required; the Minister may disagree with that, given his earlier comments. However, I think that most noble Lords see the Bill as requiring a lot of administration. I hesitated before tabling this amendment, because I would not like to think that it might mean taking the use of accommodation as a home out of the ordinary private rented sector. I mention that in order to try to avoid the criticism, but also to probe the point that holiday and short-term business lettings may be excluded by Clause 15(4), which refers to,
“their only or main residence”.
Perhaps the Minister can help me on that one. I beg to move.
Lord Taylor of Holbeach
My Lords, I shall jump in quickly on this. I hope we can move this debate on because I think I can satisfy my noble friend Lady Hamwee on the points that she has raised.
Amendments 50A and 50B would exclude temporary living arrangements from the scheme and prevent the Secretary of State from removing living arrangements from the excluded list once added. In relation to the first point, I draw attention to Clause 15(4), which sets out that the restriction on letting will apply only to agreements which allow a person to occupy the premises as their only or main residence. Further, Clause 27 provides for the Secretary of State to set out in a code of practice the factors she considers when determining whether someone is occupying premises on this basis, and provide guidance relating to holiday lettings or lettings connected with business travel in particular. In relation to Amendment 54ZA, the Government have no intention of requiring a status check where these circumstances pertain.
Further, while other temporary living arrangements such as hostels and refuges are expressly excluded from the scheme by Schedule 3, excluding other instances of multiple occupations will simply undermine the scheme. I am looking carefully at Amendment 50B. This would restrict the Secretary of State’s power to amend the provisions in Schedule 3 in the future, so that she could not remove a description from the list. It may assist my noble friend if I clarify that the intention of this provision is not to allow the Secretary of State to reduce the scope of the exemptions from the scheme in the future: exemptions have been provided for arrangements which ensure important services can be provided to the vulnerable, and where the restriction would impose a double or disproportionate regulatory burden.
Careful consideration has been given to the drafting of the exclusions, and consultation has taken place with stakeholders. However, once the scheme is in operation the exclusions may need to be amended to ensure that they are and remain appropriately targeted. I am afraid that our experience is that circumstances may change over time and that many illegal immigrants will seek to exploit what they see as loopholes in the law. It is surely appropriate, particularly as the initial phase of rollout is to be evaluated, to allow the Secretary of State to address abuse where it may arise, sometimes of course through displacement.
On Amendments 51B and 51C, accommodation provided by charities or voluntary organisations in the form of refuges and hostels is already excluded. Similarly, Amendment 51D will achieve no more than the draft paragraph already provides in relation to excluding refuge accommodation provided to those suffering from or threatened with abusive behaviour. The Government have taken a great deal of care here and have discussed this paragraph in some depth with two leading organisations that provide such accommodation.
I hope that in light of those points I have been able to satisfy my noble friend. If not, I hope that she will come back to me after Committee so that we have the chance to talk about it. I hope that she will withdraw her amendments.
Baroness Hamwee
My Lords, on Amendment 50B, if the objective is to allow refinement rather than wholesale change, I hope that we may look at refining the provision so that that is quite clear in the Bill. Yes, I would welcome a further word on Amendments 51B and 51C. On Amendment 50A, sadly, some lodgers and some sofa surfers are using friends’ or—I do not know what the term is—lodging-providers’ premises as their only or main residence. That is an outcome of homelessness. Therefore I hear what the noble Lord says about the intention, but I am not sure that it quite meets the point that I am making. However, obviously at this time I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
My Lords, I think that most of us have spent all day trying to catch up and find out where we are. The day started off with a considerable readjustment of groupings, which has meant that sometimes matters which were going to be discussed at one point were discussed at another. I apologise if that has sometimes meant that our debates may have appeared a little disjointed.
I am sure that, in moving this amendment, my noble friend Lord Clement-Jones had not anticipated that I would be in a position to make an announcement. Although he says that it does not meet all the points that Universities UK has suggested, I think that it goes a very long way towards it. At bottom, it succeeds in making it plain that, where the university itself is responsible for arranging a student’s accommodation, be that a student coming to this country for the first time and making accommodation arrangements ahead of time, or a student already at the university who needs accommodation, they will be excluded from any further checks. I believe that this is a considerable step forward. I am pleased that I have had an opportunity to make the point again because throughout these debates we have said that we welcome the brightest and the best students. There is no limit on numbers and we are very pleased to see overseas students coming to study at our higher education institutions.
Lawful students should not be deterred by the provisions in the Bill. We need to make sure that those do not get in the way of them coming to this country. They are not designed adversely to affect students during their stay here. I understand the reasoning behind the amendments tabled by my noble friend Lady Hamwee and spoken to by my noble friend Lord Clement-Jones. We do not want to have to check the immigration status of any person more than once. Educational institutions already conduct checks of students as part of their obligations as sponsors of non-EEA migrants. They have taken a position of responsibility in respect of their students which we would like to reinforce by the amendments that we will bring forward on Report to extend their responsibilities in this regard. If accommodation is controlled by a registered educational institution, we agree that the tenancy should be exempt from any further checking requirement. The Government intend to bring forward an amendment on Report to broaden this exemption to cover a wider range of circumstances where student accommodation is arranged by the university or college.
I know that noble Lords are concerned about other matters and want to talk about other impacts of the Bill on students in general. When we had the previous debate on the amendment of the noble Lord, Lord Hannay, I indicated that I thought it would be good to have a further discussion with him. I want to make sure that we get these matters right, and it is most important that by Report we will have made every effort to do so as a result of contributions made by noble Lords. I hope that my noble friend will be prepared to withdraw his amendment.
Baroness Hamwee
My Lords, perhaps I may raise one issue for the Minister to consider before Report. Before I do so, I should say that I very much welcome the Government revisiting this issue but, as my noble friend Lord Clement-Jones said, it does not sound as if it is going to go as far as we would like.
One of the areas in which we would go further is on whether the premises are within the control of the university or college. We are looking at this matter from the student’s point of view. My noble friend Lady Manzoor, who will jump because I have mentioned her, said to me the other day that she thinks that a landlord needs to see evidence that the tenant is a student for council tax purposes. If that were so, it would go a long way towards dealing with any potential abuse. Can I leave that with the Minister to consider? Perhaps a bit of lateral thinking there might help to reassure the Government as regards the rather more extensive amendments that we are proposing.
Lord Taylor of Holbeach
It may be late but it is not too late to hear an idea that is worth considering, and I am grateful for that suggestion.
Immigration Bill
Baroness Hamwee Excerpts(10 years, 2 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, in moving Amendment 1, I shall speak also to Amendment 4. The group includes Amendments 2, 5, 6, 7 and 8 as well. This is a point at which I feel I should be instigating some sort of cabaret to retain your Lordships. Maybe a tea dance would be more appropriate for this company; I do not know.
Clause 1 provides for a new section to go into the 1999 Immigration and Asylum Act for the removal of persons unlawfully in the United Kingdom. It replaces the current Section 10 of that Act, which is headed, “Removal of certain persons”. That change is significant, and the new section would certainly give rather broader powers. Amendment 1, my first amendment, would require the Secretary of State to give notice of the removal, which should be in writing and give the date and time of the removal. At this stage, at any rate, I have referred to this as the “approximate” time in order to anticipate, and therefore not waste time on, an argument that a plane might be delayed. Talking about time without qualifying it was therefore inappropriate—that is not of course the point of this.
Amendment 4 is about notice to a family member, which new Section 10(6)(c) in effect makes optional. New Section 10 gives powers to remove the individual and family members who are not defined. None of the amendments in this group is about not removing persons who are unlawfully here, which is a different argument, but about who is to be removed and how. The Delegated Powers and Regulatory Reform Committee has expressed concerns about the provisions not being in the Bill. We have of course already seen draft regulations. They are in the pack that my noble friend has arranged for noble Lords to see, which contains a whole group of statements of intent, regulations, codes, statements of fact and so on. I thank him for that. I forgot to take it home with me on Friday but I read it, or the right bits, before tabling these amendments.
The Delegated Powers Committee found it,
“difficult to understand why operational experience should have any effect on who is to be treated as a family member”,
and recommended that the definition in the draft regulations be placed in the Bill. That seems to be an appropriate provision. Draft Regulation 4 requires notice to be given to a family member facing removal, which reflects what is currently in the 1999 Act, but the Bill provides only that regulations “may” provide for that notice. I hope that the Minister can explain to the Committee why this should not be a requirement. It seems an absolutely fundamental point and other noble Lords will have seen briefing to the effect that it has been made by the judiciary as well.
There is also a draft regulation providing that the giving of notice invalidates any leave to enter or remain, in the case of the family member previously held, that is currently in Section 10(8). Again, why should safeguards currently in primary legislation not be included in the Bill?
There are always provisions about service of notices in the draft regulations, although I do not know whether they are usual. It may not be a point for debate in Committee today but I could not help noticing that the draft regulations provide for recorded delivery of the notice that requires signing for, but there is deemed service. There must be a risk, for instance, that someone else in the house will sign for receipt of notice of something that is crucial to the person who may not actually receive it. There are deemed service provisions elsewhere in the regulations.
Less technically perhaps, there are directions for removal ceasing to have effect if the family member ceases to belong to the family. Again, that is a current provision and it would be absolutely appropriate for it to be in the legislation. In the Commons Committee, the Minister gave a number of assurances. Of course I accept them, but Governments change, as sometimes do regulations as well.
I cannot recall if the sword of Damocles fell at the end of the tale, but I am concerned about how long it may hang—perhaps for a very long time—and whether it may hang at all over a family member who has a right to leave, enter or remain in the country in his or her own right. This group extends further than these two amendments. Although we may appear to be starting the Bill almost half way through the journey—in the philosophical as well as the practical sense—that someone seeking to enter or remain in our country will make, these are very important issues. I beg to move.
Baroness O'Loan (CB)
My Lords, I wish to speak to Amendments 5, 6 and 7 in my name, and in that of the noble Baroness, Lady Lister. I speak as a member of the Joint Committee on Human Rights. These amendments were recommended in the eighth report of that committee on the legislative scrutiny of this Bill. Following the Government’s response to the committee, it produced a further legislative scrutiny report and again recommended these amendments.
The intention in Clause 1 is very simple: to simplify processes for removing people who are in the United Kingdom unlawfully and provide for removal of members of the person’s family, which provides a new Section 10 to the Immigration and Asylum Act 1999. The question of which member of an individual’s family can be removed following the removal or planned removal of an individual is to be decided in accordance with a number of policies. For example, a family member who has been a victim of domestic violence in accordance with the definition in the Immigration Rules will not be removed. Similarly, a member who is no longer in a family relationship will not be removed. There will undoubtedly be debate in your Lordships’ House about who can and cannot be removed under these provisions. Of course, the Government have stated that removals will be in accordance with existing immigration law and our international obligations.
Lord Ramsbotham
Following what the most reverend Primate said, perhaps I may say how pleased I was to hear the use of the word “better” just now in terms of oversight. I ask the Minister to accept that, hard- working though they may be, case workers have not been very good at their task and neither has there been oversight. If they had been and there had been oversight there would not have been this endless history of problems and complaints for years and years, which have been ignored. The time has come for that ignoring to stop. Therefore, I am relieved to hear mention of better oversight.
Baroness Hamwee
My Lords, the critique of what happens in practice from someone experienced as an inspector has clearly resonated around the House. We have already talked during the passage of the Bill—and I am sure we will talk again—about the importance of practice. Whatever is on paper, whether in the Bill or in regulations, is a precaution against bad practice, but it is the good practice that is important. Given the Minister’s assurances about coming back at the next stage, more formally we hope, with responses in the form of amendments to the comments of two committees, it would obviously be inappropriate for me to spend very long at this stage responding to the points that have been made. However, I will say that, like others, I read between the lines: three days does not seem very long in which to decide what to do about a decision that has been handed down and to make arrangements. But there we are.
The Minister suggested that my first amendment would reintroduce complexity. I was actually seeking to provide more clarity. When he referred to there being a provision somewhere else in the raft of immigration legislation that deals with notice in writing, I could not help thinking that consolidating all this legislation has defeated Government after Government, but it is something that is sorely needed.
I make one perhaps tiny point just to clear the undergrowth before the next stage. The noble Lord referred to Clause 67 of the Bill as providing for the negative procedure. I would have thought that it was the regulations and orders section in the 1999 Act—which actually takes us to the same point as it being negative—that would apply as Clause 1 is replacing a section of the 1999 Act. It would be helpful if before Report we could understand what the relevant provision is so that those of us who might be minded to suggest amendments know that we are proposing amendments to the correct section or clause. However, I am glad that we will have amendments on regulations which the Minister talks about as changing policy. Regulations set policy before it gets changed by subsequent regulations. That is what many of us are concerned with. I beg leave to withdraw Amendment 1.
Baroness Hamwee
My Lords, I welcome these amendments. There is frequently talk in this House, and rightly so, about caring for the interests of children, reference to Section 55, the paramountcy principle and so on—but sometimes it is easier to say it than to put it into practice. These amendments articulate the practice and are about more than just principle.
In 2009 I was refused a visit to Yarl’s Wood by the Home Office. I never discovered whether I was thought to be subversive or whether I was thought likely to be someone who might attempt to spring a detainee, but I have visited Cedars. Yes, it is for detention for the reasons we have heard, but it is also about caring for people and preparing them for return. Having seen the facilities there and talked about the work that goes on, I have to say that the Cedars centre is a great deal preferable to scooping up a child and putting them straight on a plane out of the country. The care that is given and the thought that goes into the preparation impressed me very much. When I was there, I asked about the boundary wire round the premises. Although it was quite inconspicuous, it seemed to give the feel of detention, and I had observed it going in. I was told that it was to keep out local troublemakers.
I have a number of questions. One is about allowing one parent to be returned within the 28-day period, which might mean that a family is split and a child is separated from one parent. Will my noble friend tell the House about the circumstances in which separation would occur? Secondly, subsection (2)(b) of proposed new Clause 78A talks about a single parent or a carer. Is a carer a local authority foster parent? What is a carer in this context?
As regards the family returns panel, will my noble friend give the Committee assurances about how its independence will be assured? Secondly, for reasons that I think will be obvious, will he give assurances about whether the individuals concerned will have a means of giving information or making representations to the family returns panel, or checking that the information that it receives from others is accurate? These are important provisions.
As regards unaccompanied children, other noble Lords may remember the very effective and impressive Member of this House who died some years ago, Baroness Faithfull—Lucy Faithfull. I recall her talking about meeting an unaccompanied child arriving from, I think, Somalia. She told the story of having gone to Heathrow to meet this child in a social work capacity with a bar of milk chocolate to give to the child as a present. This child had never encountered milk chocolate before and was really scared about what she was being asked to eat. That story has remained with me as an example of the cultural gulf that has to be crossed and the hard work needed in dealing with children who arrive here unaccompanied.
In what circumstances is this provision used and what change in policy does it indicate? We have had confirmation that multiple 24-hour periods will not be applied, but will my noble friend say something—I do not know whether I missed it—about monitoring the use of the provisions and publishing data on the number of occasions, the circumstances and the length of time an unaccompanied child is detained, and so on?
Lord Ramsbotham
My Lords, I, too, pay tribute to government Amendments 10, 14 and 15; 10 because of the Independent Family Returns Panel about which the noble Baroness, Lady Hamwee, spoke. I agree with the importance of independence. There is no doubt that the Independent Family Returns Panel has made marked improvements to the process since it was formed, and that it is very well led and well worth listening to. I commend the coalition on the determination with which it has pursued the detention of children. Having served on the advisory board early in 2010, soon after the election, I am glad to see this clause in the Bill.
Finally, I am very glad to see the place of detention at Cedars, and I commend Barnardo’s for the way that it has conducted the care of families who have been in that place.
Baroness Hamwee
“Presumption of liberty
(1) In the event of an application for bail from detention, an immigration office or the First-tier Tribunal must release the detained person on bail unless the First-tier Tribunal is satisfied that there are substantial grounds for belief that if released the person would—
(a) fail to comply with one or more of the conditions of bail or of any recognisance or bond, or(b) while on bail commit an offence which is punishable by imprisonment.(2) In subsection (1), “detention” has the same meaning as in Schedules 2 and 3 to the Immigration Act 1971.”
Baroness Hamwee
In moving Amendment 16 I shall speak also to Amendments 20 and 21, and included in this group are Amendments 17, 18 and 19. The first of the amendments sets out a new clause headed, “Presumption of liberty”, which covers exactly what it says. I find the term “bail” quite difficult in this context, with its connotations of the criminal justice system. Detention—or imprisonment, to be blunt about it—should require a positive decision: the rebuttal of a presumption, if you like.
The amendment may read as if I am introducing a philosophical debate, which I suppose I am, but in a rather less high-minded way I am seeking to put into the legislation what is set out in chapter 55.1.1 of the Home Office manual, Enforcement Instructions and Guidance, which states:
“The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used”.
I hope that the Minister will not argue that this is invariably followed because, like other noble Lords, I am sure, I have been given a number of examples of detention where it would be hard to argue that that is so. We are told that the UK detains people for longer than any other European country. As of July last year, 27 people had been detained for between 18 and 24 months, 11 for between 24 and 36 months and one person for up to 48 months. In December last year, some 220 people had been detained for more than six months. Many people are now detained in prisons where detention tends to go on for longer periods.
There are also a number of examples of inappropriate detention. Here I turn to my second amendment, which concerns the detention of people with mental illness. I say “inappropriate detention” as being what might be called a commensurate judicial criticism of their treatment and findings that the detention of people who are mentally ill is unlawful and breaches their Article 3 rights. I do not doubt that there will have been cases we do not know about which were settled before a full hearing, as happens a good deal in this area.
Lord Taylor of Holbeach
I hope that the examples I have given show that these are not trifling matters. Deterioration in a person’s mental health or a family bereavement are changes in the circumstances of the applicant which would mean that the Secretary of State was able to make an immediate decision without it having to go back to the tribunal for a bail hearing. This is the Secretary of State using her executive power to ensure that in circumstances where people are significantly disadvantaged by a change in their conditions the matter can be resolved. If the noble Baroness wishes me to elaborate further, I shall do my best to explain it to her in writing so that she has something more positive than just a few scattered notes from which I am addressing her.
Amendment 19 would have the effect of creating many unnecessary bail hearings in the tribunal, increasing the inefficiency and complexity of the system. An individual can still apply for immigration bail at any time or challenge the legality of their detention by way of judicial review. A significant number of individuals are released on bail by the Home Office without the need for a bail hearing—we have just heard examples of why that is so—and so to mandate a requirement in primary legislation to require bail hearings to take place will unnecessarily increase the number of hearings and will slow the system and add complexity.
Amendments 20 and 21 would make two changes. First, they would limit judicial discretion to maintain detention of those who are suffering from mental health concerns or of those who are under 17 where the judge considers immigration detention remains appropriate for their own or, in the case of those with mental health concerns, others’ protection. Secondly, the amendments would remove the requirement for repeat applications made within 28 days of a previous application where there has not been a material change in circumstances, made under the bail provisions in Schedule 2 to the Immigration Act 1971, to be decided without a hearing.
Published guidance provides that certain categories of people are considered unsuitable for detention in the first place unless there are very exceptional circumstances in play. Unaccompanied young people under the age of 18 and those suffering from serious mental illness which cannot be satisfactorily managed within detention are specifically listed as case types that should be detained only in very exceptional circumstances. However, there will always be cases with very exceptional circumstances which mean that detention is appropriate. An example may be when it is necessary for detention to continue while an individual is being or waiting to be assessed or awaiting transfer under the Mental Health Act. We may also need to hold unaccompanied children where, for example, it is in the public interest because of a risk of reoffending or a risk to national security. They may also be held for a very short period either on arrival pending collection by social services or when we are trying to remove them. In any decision to hold an unaccompanied child, we will consider our duty to safeguard and protect the welfare of children.
The noble Lords’ amendment would prevent a judge in a bail hearing from considering if very exceptional circumstances are in play and would require judges to release individuals even where there is the real possibility that this will put them into a more vulnerable situation or where they clearly pose a threat to themselves or others. Amendment 21 seeks to remove the requirement for the Tribunal Procedure Committee to change the rules to require repeat applications to be disposed of without a hearing, thus undermining the Government’s proposals. It would also allow the current inefficient bail processes to remain in place.
However, I have listened to the points made by noble Lords in this debate. It has been a good debate about a very important aspect of the provisions of the Bill. I will consider those points before we return on Report. In the mean time, I ask noble Lords not to press their amendments.
Baroness Hamwee
My Lords, other noble Lords have spoken very effectively about the impact of detention. I will just mention again the first of the amendments in this group, which is on the presumption of liberty. As we heard, a presumption of liberty is already something that judges would consider almost automatically as a matter of instinct. Of course, the drafting of the amendment could be tweaked but we are only at Committee stage. However, subject to reading Hansard and the Minister’s confirmation that the Government will consider the points before the next stage—I know he made no commitment and I would expect no less of him than that he would consider what has been said—I think that a presumption of liberty is so important that is should be in statute. Guidance can be changed. I would like to see the matter put absolutely beyond doubt. I appreciate that the amendment might have elephant traps in it—amateur amendments sometimes do. Of course, at this moment, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, when I looked at Clause 5—“detained” or “liable to be detained”—the question that arose in my mind was, “How do you know someone’s liable to be detained unless all the processes including any appeal rights have actually been pursued?”. I have two amendments in this group. Amendment 23 would leave out the second part of the new subsection (1A) introduced by Clause 8. The provision in Clause 8 is that biometric information means,
“information about external characteristics (including in particular … )”.
Paragraph (b) then refers to,
“any other information about a person’s physical characteristics”.
Well, what could those be if they are not the external physical characteristics in subsection (1A)(a)? I cannot imagine that they are internal physical characteristics. I am quite confused about what subsection (1A)(b) might mean when read with subsection (1A)(a). That is quite apart from the fact that I have a rather natural and automatic dislike for not spelling out on the face of the Bill anything that could be spelled out.
Amendment 24 would take out of new Section 8(3)(c) introduced by Clause 10 the reference to “injury”. We are told in subsection (3) that the regulations may include provision to be used for certain purposes, of which paragraph (c) is,
“in connection with identifying persons who have died, or are suffering from illness or injury”.
I assume, and I hope the Minister can confirm this, that the reference to death or illness is because of public health considerations. Why then is it necessary to refer to injury? I would be interested to know what purpose this is to serve.
Earl Attlee
My Lords, Clause 5 amends paragraph 18 of Schedule 2 to the Immigration Act 1971 to include persons who are liable to be detained. This will allow immigration officers to check the fingerprints of persons they suspect to be illegal immigrants where there is a question about their identity. The existing power allows for fingerprints to be taken only from persons who have been detained under immigration powers.
The ability to establish an identity is an essential requirement for immigration officers when undertaking immigration enforcement operations. Unless identity is established it is not possible to remove or deport illegal immigrants. At present, where immigration officers encounter people whom they suspect to be illegal immigrants and have doubts about their identity, they can check the person’s fingerprints only with their consent or following the person’s arrest. In some instances this can lead to unnecessary arrests or result in illegal immigrants not being detected. In answer to the noble Lord, Lord Rosser, surely the Committee does not want innocent people going about their lawful business to be arrested. Secondly, if the suspect does not appear to understand English, how can they give informed consent to have their fingerprints taken?
This power is intended to reflect the conditions under which the police operate. Prior to the changes made to the Police and Criminal Evidence Act 1984 in 2005, the police also needed consent to check fingerprints where a person had not been arrested. The amendment has enabled the police to make fingerprint checks without the need to arrest individuals who are suspected of committing a criminal offence and whose identity might otherwise not be readily ascertained or verified.
This clause will bring immigration officers’ administrative enforcement powers more into line with police powers. The power to check fingerprints will be limited to the purpose of verifying identity as part of an immigration enforcement investigation. The fingerprints will not be retained but rather immediately electronically checked against the immigration biometric database. If there is an existing record, this will confirm the person’s identity and potentially assist the immigration officer to ascertain the person’s immigration status. This will help avoid unnecessary arrests, allowing those legitimately in the UK to go about their business, while quickly identifying illegal immigrants.
I want to assure noble Lords that this power does not mean that immigration officers will be able to stop anyone they encounter. The person required to provide fingerprints for checking must be liable to detention under the immigration Acts. In practice this means that the immigration officer must have reasonable grounds for suspecting that they might be liable for removal from the UK. There will not be any blanket testing of people just because they look foreign. I hope that answers the question from my noble friend Baroness Hamwee about the term “liable to detention”. As I understand it, it is not a new term.
Clause 6 is intended to improve the levels of assurance about persons naturalising or registering as British citizens and to ensure that the identity of British citizens who apply for their first UK passport can be properly identified. Amendment 22 would weaken these proposals.
The power is intended to protect new British citizens from having their identity stolen by impostors by enabling a photograph submitted as part of a passport application to be checked against the new citizen’s record. If we destroy new citizens’ photographs before they obtain a passport, HM Passport Office would be less capable of confirming their identity. It would also expose HM Passport Office to fraudulent applications for British passports.
As observed by the noble Lord, Lord Rosser, over 90% of new British citizens make a passport application within one year, so very few new citizens will have their photograph retained for more than a year. I accept that this will result in a small minority of new British citizens who decide against applying for a British passport having their photograph retained for a longer period as a consequence of these provisions. However, retaining the photograph will be useful to them in protecting their identities. In particular, new British citizens who retain their other nationalities may opt to have a certificate of entitlement affixed to their non-British passport instead of obtaining a British passport.
This document is a right of abode vignette—passport sticker—that can be issued to, in addition to British citizens, certain other categories of Commonwealth citizens who have a right of abode if they have not ceased to be Commonwealth citizens. It contains a photograph of the holder, which needs to be checked against the photographs that the person may have previously submitted as part of an immigration or nationality application. Holders of valid certificates of entitlement are not allowed to hold a British passport at the same time.
Baroness Hamwee
My Lords, with regard to Amendment 23, the Minister is of course right that there is a reference further on in the new subsection that refers back to what I was seeking to take out, so my amendment is not complete. However, by mentioning that, he has drawn my attention to something else that I would like to pursue. New subsection (1B) says that an order under paragraph (b), which is about other information subject to an order by the Secretary of State,
“may specify only information that can be obtained or recorded by … external examination”.
That raises the question of whether only external examination can be used for new subsection (1A)(a), concerning,
“information about a person’s external physical characteristics”.
Perhaps he can confirm that there can be only an external examination to obtain information about the first limb in (1A).
The Minister talked about new technology, which I assume comes within the word “information”. My concern was to understand what physical characteristics there might be that were not included in (1A)(a). I accept that technology will advance, but it is what the technology is being used to identify and gain information on that concerns me. This may sound tedious but it is actually quite important. I do not know whether he is able to take the matter any further tonight; if not, I would be glad to pursue it after this stage.
Lord Rosser
Perhaps I could add one or two comments. I thank the Minister for his reply and for the amount of information contained in it. I think that I recall him saying that “liable to be detained” was not a new phrase, but I am not sure how extensively it has been used before in immigration law.
I listened carefully to what he had to say about the situation of those whom immigration officers would not want to arrest. I will read his response carefully in Hansard, but at the moment I am not entirely clear what happens when someone whom they do not want to arrest declines to enable their fingerprints to be checked. I am not sure whether they will just be allowed to go or if in fact they will be arrested, which raises the question of why the existing powers are not adequate and why this new terminology is needed. As I say, I will read very carefully what he had to say.
Finally, I asked how many cases there have been in the past 12 months of people who would have had their fingerprints taken and checked if the “liable to be detained” provision in the Bill had been in force who could not have their fingerprints taken under the current wording in the Immigration Act 1971. I was not particularly expecting the Minister to come up with an instant response, but since that calculation is presumably the justification, at least in part, for this change in legislation that we are considering, I hope he will be able to provide me with an answer to that question later on.
Earl Attlee
My Lords, there would indeed be an element of suspicion if someone declined to give their fingerprints to be checked, but I suspect there would have to be other evidence as well. I will write to noble Lords to clarify these points.
Baroness Hamwee
Will the Minister include an explanation of the statutory basis on which new subsection (1A)(a) can be obtained by external examination only? I do not doubt what he says, but the way the provision is worded raises the question.
Baroness Hamwee
My Lords, I have Amendment 80 in this group. I was prompted to table it following the discussions to which I have been party about the importance of students to this country.
While entirely agreeing with the thrust of what has been said so far, I have concerns about Amendment 26. It would have the effect of excluding—or including—a particular group that would retain a right of appeal. The new Section 82(1) would allow appeals by individuals in certain circumstances, but the noble Lord’s amendment would allow all those to whom he has referred—essentially all students—to retain the right of appeal. Students and universities are an obvious, vocal and important cohort. They have a voice that others affected by Clause 11 do not have. There will be individuals who are substantially affected as individuals, over a range of circumstances and issues. I would be concerned about picking out a single group for whom to retain a right, without considering carefully what that would say to all those other people who will be affected by this clause. There may also be practicalities which I shall not go into.
The noble Lord, Lord Hannay, said that many of our committees have said: “Please treat students not as economic migrants”. I do not doubt what he said but wonder whether we are being asked not to treat them as economic migrants or not to regard them as economic migrants. They may have slightly different meanings. However, I am absolutely convinced of the importance of the international links to which my noble friend Lord Maclennan referred. I am concerned about all the reputational issues for the UK that would flow from perceptions—we may be told that they are only perceptions but they are important—if we were thought not simply to accept students but to welcome them and seek for them to come here.
I am also concerned about what seems to be a lack of good marketing. We are told by the Government that students are welcome, but there is a problem in terms of promotion. Therefore, given that so much of the debate is actually about the number of immigrants and including students in total immigration figures, it would be right to pursue the issue regarding the number of students. We should seek not just to disaggregate the numbers, because I understand that that is done at the moment. However, that issue gets no coverage. We should be taking positive steps to make sure that it is understood how the numbers break down and that we do not prejudice ourselves by including student numbers in the total numbers and then finding that for whatever political reasons there is a target for reducing the total numbers, and the students get swept up in them.
I appreciate that there is the UN obligation and that the numbers are dealt with by the ONS and it is, in a sense, not up to the Government to publish separate figures. I know that those figures are there but they take a little seeking out and certainly do not get the promotion and exposure that they would if we were to have a debate based properly on numbers, rather than a debate that is based to a large extent on prejudices.
My Amendment 80, to which my noble friends Lord Clement-Jones, Lady Brinton and Lady Benjamin have put their names, would provide for an annual report by the Secretary of State on study-related immigration. I am sure that the amendment, which very much has amateur drafting, is riddled with technical flaws but its thrust is that we should be able to see annually,
“the number of applications to enter the United Kingdom on student visas”,
the number of applicants who actually come in on those visas, the number rejected, and an estimate of the number of people who have held a student visa who have left. We will, of course, be considering the issue of embarkation checks at the end of the Bill but one of the big holes in all the consideration of these issues is that we do not know who has gone. We also need comparative figures for other managed migration. We need this information in order to thoroughly understand what is going on. The lack of understanding is feeding a position that is entirely unhelpful.
The noble Baroness, Lady Smith, spoke to amendments regarding appeals and mentioned the proposal for an administrative review. I have an amendment on administrative reviews but it is not in this group and we will come to it on Wednesday.
Lord Tugendhat (Con)
My Lords, I very much agree with everything that the noble Lord, Lord Hannay, said and I am delighted that my name should be attached to his amendment. I shall not therefore repeat his powerful arguments but should like to add just one further thought.
As everyone in this House knows, the United Kingdom is second only to the United States in terms of the number of universities that it has in the top group of the world’s universities, not just in absolute terms but in all kinds of important subject areas such as engineering; figures last week showed that Cambridge, Imperial College and Oxford were still in the very top group. That was as much as the rest of Europe put together was able to provide.
There are many reasons why British universities are in the top group of world universities but one is that there is a free market in talent that enables them to attract it from all over the world, not only in the students but in the teaching staff. To some extent, there is a chicken and egg factor here. They are great universities partly because they can attract talent from all over the world, and because they can attract that talent they remain very good universities.
There is a similarity between the university world and financial markets. Neither of them is purely national. Both are totally international with seamless connections across the world. Therefore, if you try to turn us into an island and cut us off from this stream of talent that is crossing the world, you will do great damage to British universities. It will not show up in the short term, as the noble Lord, Lord Lea of Crondall, just pointed out. These things take a long time to show through. But it will very seriously damage over the long term the ability of the greatest British universities to remain in the top group—and not only them. For 15 years, I was chancellor of the University of Bath, a university that was founded less than 50 years ago. This has nothing to do with me because the outstanding vice-chancellors that it has had deserve the credit, but in the past 20 years the University of Bath has moved from obscurity not only into the top group in the United Kingdom but now into a number of world league tables as well. That is because it has both a student body and a faculty that are drawn from all over the world. In fact the previous vice-chancellor was American. It has had people from the Far East, North America, South America and all kinds of places.
I beg Ministers to consider the fact that clauses such as this one that we are seeking to amend have a deleterious effect on the ability of British universities to perform adequately on the world stage. We do not have so many institutions, so many industries and so many spheres of our national life that are indubitably regarded as absolutely among the best in the world. Universities are one and it would be extraordinary to kick them in the shins.
Lord Wallace of Tankerness
I did not seek to dismiss this as a statistical matter. I sought to put it into some kind of context: that over the period we have been talking about the drop was less than 3,000, and other countries saw a drop as well. The important point, which I will repeat, is that this country welcomes the brightest and best and there is no limit on the number of overseas students who can come to study here.
My noble friend asked whether students who receive visas go on to use them. All genuine students who qualify will be issued with a visa for the United Kingdom but of course they may ultimately decide to study elsewhere. I know that it may be of interest to my noble friend how many students may go to the trouble of applying for a UK visa and then choose not to travel, but I regret that that information is not available to the Government. I am afraid we cannot meet all her requests but a substantial number of the things that she was seeking in her amendment are already there.
Baroness Hamwee
My Lords, I accept that and I knew that much of what I was seeking was already published. My amendment tried simply to paint the whole story. I accept that some of the painting by numbers cannot be filled in.
A few minutes ago my noble and learned friend said that there is a good story to tell. My short point is: we need to tell it. It seems that we are not telling it and I would like to find a mechanism to get it told. I passed my noble friend Lord Clement-Jones a copy of the Home Office press release that I printed off on Friday. If I were a journalist it would not tempt me to write the good story.
Hillsborough
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Lord Taylor of Holbeach
I am most happy to take that back to the Home Secretary. I am meeting her this afternoon, in fact, and I will carry that point home. This certainly was not the press’s finest hour but, having said that, I am sure that we all cherish the fact that we have a free press in this country. However, this was a situation where, as the Statement said, the conduct of the press exacerbated a grievous situation.
Baroness Hamwee (LD)
My Lords, I welcome the Statement and the fact that the Home Secretary has chosen to make it in what I might call an unprompted manner: I think the Minister will understand what I mean. He referred to the importance of process. Perhaps I might ask him about the reference group, which I understand has been set up by the CPS, the IPCC and the investigation team to ensure the families’ rights under Article 2 of the European convention. I am sorry that I was not able to give notice to my noble friend of this question. I understand that the reference group is to monitor the progress of the investigation. That seems to raise the question: what powers may it have?
If I am giving time for inspiration by asking a second question, I hope that will be helpful. My second question is with regard to the IPCC. There was concern about the resources available for this substantial piece of work, both in itself and for any knock-on effect on the rest of the IPCC’s activities. Can the Minister tell the House whether the IPCC is as happy as one might reasonably expect it to be with the resources available, both for this investigation and the rest of its work, given the burden that this must be on it?
Lord Taylor of Holbeach
This is by far the largest investigation that the IPCC has ever been involved in. Right at the beginning, the Home Secretary wanted to emphasise that this was a priority that needed proper resourcing. I have no doubt that the resources are available to get to the truth of this matter. The challenge panel, which was mentioned in the Written Ministerial Statement on 19 December, is working well. There were a number of helpful discussions over the summer between the investigatory and prosecutorial authorities and the families to establish the best way of ensuring that they are kept up to speed with the various ongoing investigations. These discussions were chaired by Bishop James Jones. It is not so much that the reference group actually has, or even needs, power. The power lies in those bodies which are working together with the reference group. They are the people who actually have the power to pursue the inquiry and, further to that, to effect prosecutions if necessary.
Immigration Bill
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Baroness Hamwee (LD)
My Lords, is there any area of policy more prone to misinformation and misrepresentation than immigration? As the Minister said, one of our tasks in looking at the Bill will be to be clear what it is and is not about. We also have a number of other objectives, including scrutinising and questioning the whole spectrum from probing to opposition and from seeking assurances on issues of concern to ensuring that what we end up with is workable in practice. I suggest that we have another objective, which is to provide leadership on the issue of immigration. I say that because immigration is so often a proxy for xenophobia and discrimination and it behoves us to argue for what we regard as morally right and to concern ourselves also with why the subject of immigration provokes such intense reactions. We need to unpack what underlies the hostility and sometimes the fear.
It appears that although very many people say that immigration is a problem, far fewer regard it as a problem in their own area. There is considerable overestimating of the numbers of migrants, and of the numbers of migrants claiming benefits, so leadership must include bringing reality and perception a great deal closer. One of the realities is the enormous benefit Britain derives, and has derived, from migration. I have always disliked the term “brightest and best”, because it implies some sort of narrow limited categories, but I am in no doubt that migration is important for Britain’s success. In an interconnected world, Britain will be best placed as a country of one society but many cultures. So I abhor some of the rhetoric that we hear, and am distressed by some of the messages taken from that rhetoric.
This is one of those Bills where it is impossible at this stage to cover, or even refer to, all of the issues. Nor is it possible to do justice to the considerable amount of briefing that we have all received. Through the medium of Hansard I say to all those who have contacted us that not repeating their points does not mean that they are ignored. The detail will come in the days to follow, and my Liberal Democrat colleagues—there are 12 or 13 of them—will be among those who will deal with different issues both today and during the course of our debates. As so often, it is the practice as well as the policy which is important. Your Lordships have already touched on this. We know that the Government are well aware of the importance of improving the standard of service—because it is a service—as well as the mechanics of border control and all aspects of immigration.
I do not imagine that it is a lot of fun working in the Immigration Service. Upskilling, and recognition of the professionalism needed, could go towards better decision-making. We require immigration officers to deal with high volumes, high stakes and constantly changing rules. Every noble Lord will have heard tales of poor decisions which have caused at best, delay; at worst, considerable distress and injustice. Capturing useful and accurate data is obviously important in itself and because of the misperceptions to which I have referred. It will take a while for exit checks to give a full picture of who is here, who is leaving and what they have done in the mean time. This is not least because people’s activities change over the years. However I very much welcome the progress on this score.
The presentation of data is also important. Student numbers, we know, will be an issue. I am one who regards the education sector as a very important export. We import students, but we export contacts, networks and reputation. We are required, internationally, to include students in the overall numbers, but I understand from discussion with the Minister that we publish student numbers separately. Those in a position to be clear about immigration do not seem to be energetic in trying to ensure the disaggregation of the figures. The disaggregated figures do not get the media coverage which would help us all.
Still on the theme of reality and perception, one point I want to make on health charges is the importance of not deterring people from seeking care and treatment to which they are entitled. This is because the message is inaccurate. The headline is the levy. This is a comparatively small charge, not requiring complicated administration, and is a good deal lower than any insurance premium than I have ever come across. But we need to look at what the entitlements are, at fairness and effectiveness, including ensuring accessibility for vulnerable individuals, and public health concerns. Migrants do not usually fit neatly into a couple of easily dealt with categories, and the most vulnerable, the most in need of healthcare, are likely to be the most easily deterred from seeking it.
Early proposals for the health service were cumbersome, bureaucratic and thought likely to give rise to more problems than solutions. It is fair to say that the Bill has gone a long way towards giving assurances on all of this—indeed there have been changes in the progress of this. But it is also fair to say that we have a way to go on giving reassurances regarding residential tenancies. I welcome the piloting of the provisions—and I do mean a pilot—with evaluation and assessment, not simply the first phase of a predetermined rollout. I would be interested to see how the nationwide pilot to which the noble Baroness referred would work. Evaluation must extend to the unintended consequences, which may easily mean driving underground people who are too easily exploited.
There is a lot in this Bill for our lawyers and for everyone concerned with human rights to get their teeth into—and there are some real terriers among them. I have long thought that an immigration system that requires so much legal assistance is not a good one. Greater simplicity and clarity must be desirable, but whether the change to the appeals system falls on the right side of the line is something that we will have to test. To me, it is logical to use review rather than appeal if review gets the job done—assuming that it is not properly done in the first place. But we need to understand how administrative review is both different from and better than the current arrangements. I note, of course, that appeals currently achieve a very high success rate, which must say something. We will discuss, too, out-of-country appeals. It must be more difficult to ensure justice when communication is more difficult. The rationale for changing the appeals regime is to rationalise and simplify it, which is not the same as reducing rights.
I am quite sure that the Bill will not do the courts out of a job. Some of the rhetoric around this that I find offensive is the criticism of lawyers—but perhaps I would say that. I do not want to go too far in questioning the phrase in the new clause on deprivation of citizenship,
“seriously prejudicial to vital interests”.
I had thought “vital” was about life and very existence, but I shall not question that too closely because I do not want to suggest lowering the threshold for executive decisions when innocence is not presumed. As well as the central proposition we will want to understand the consequences of such decisions for the individual and his family, both legally and practically, and how the decision will make the individual less of a threat.
There are many areas where humanitarian and cost considerations coincide, and immigration detention is one of them. I was intrigued to read of the Swedish model, based on engagement rather than enforcement, with apparently a very high rate of voluntary return and financial savings. On the theme of what is right, I look forward to statutory provisions regarding child detention. I want to put on record how impressed I was when I visited Cedars by the obvious good work undertaken there by Barnardo’s, which has my admiration for having taken that work on. It cannot have been an easy decision for that charity. This House can be relied on to concern itself with everything that affects children.
My final topic for today concerns both children and adults. The Minister will not be surprised that I take the opportunity of the Bill to raise again the family migration rules introduced in 2012 with new financial thresholds for sponsoring the entry of non-EEA partners and elderly dependants. There is an extraordinary range of circumstances in which British citizens and taxpayers have found themselves, maintaining relationships through Skype, if they can, and the impact on children separated from parents would defy even those who feared the worst when the rules were introduced.
People who come to our country do not fit a single picture. The irregular migrant population is a very diverse group. Some are in low-paid occupations in the informal economy, while some contribute far more to the UK economy through labour, taxes and spending than they take out in services. Who are illegal immigrants, of course, begs the question of what we choose to make illegal.
This may not be a Bill that either coalition partner would have chosen if left to itself, but I end by repeating that, on this multifaceted area of policy, the reputation of the UK—whom it welcomes and whom it protects, including the indigenous population—as well as the language and rhetoric that it uses are at stake.
Police: Private Prosecutions
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Lord Taylor of Holbeach
Yes, indeed—I hope I have given the House an assurance that we take those remarks seriously.
Baroness Hamwee (LD)
My Lords, I am sure that the Minister agrees that trust in the police is absolutely essential. To be trusted they need to be trustworthy, and to be trustworthy they need to be seen to be trustworthy.
Lord Taylor of Holbeach
My noble friend is right about this. The public expect the highest level of professionalism and integrity from the police. Next month will be the first anniversary of the Home Secretary’s Statement to Parliament on the College of Policing, which I repeated here. The College of Policing is setting out those measures to ensure that the integrity of the police force we share is of the highest standard. This year will see the publication for the first time of a code of ethics by the college.
Anti-social Behaviour, Crime and Policing Bill
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Baroness Hamwee (LD)
My Lords, as the Minister said, I have put my name to the amendment, but the whole House will be grateful to the noble Lord, Lord Dear, for causing the Government, in the words of the Minister in his letter to a number of us, to “reflect carefully” and conclude that pragmatism was the right way.
I am pleased that the Government have decided to propose this change. I did not agree and I still do not believe that the original wording was the threat to freedom of expression which was argued, but it clearly troubled many people a great deal, and whatever the technicalities, I do not think that it is good law to have provisions which trouble people as to precisely what they mean.
I am pleased, too, that the Government have dealt with the tenure point, which was one that I and others picked up at the previous stage. What matters is that it now looks as if we will be able to shift away from the criminalisation of anti-social behaviour implicit in the current legislation and move to a new way to tackle the problem.
Lord Dear (CB)
My Lords, I of course welcome the amendment. It is, as the Minister said, substantially the same as the amendment in my name on which we voted on Report. I readily agree the inclusion of private housing in the same context as social housing, which has been on the statute book for a while.
I extend a vote of thanks at this juncture, first, to those who voted in support of my amendment on Report. I am very grateful to them for helping to preserve and protect fundamental rights under the law. I thank the Public Bill Office staff, who were, as they always are, unfailingly helpful to me in the progress of the amendment through to Report. I thank the staff of the Christian Institute, who gave me invaluable administrative help in the run-up to the vote on Report. Finally, I thank the Minister for his unfailing courtesy and help in what were not always the easiest of discussions to make progress on in this part of the Bill. Those of us who have had the pleasure of working with him before will know that that is his default mode, and I am very grateful to him.
Lord Hope of Craighead (CB)
My Lords, I add my appreciation of the work that the Minister has done with the Scottish Government to provide an amendment which is compatible with Scots law. Having read it carefully, I think that it is a very valuable addition to the armoury in Scots law to deal with this very difficult and obnoxious problem.
Baroness Hamwee
My Lords, I, too, add my thanks. This issue exercises noble Lords around the House, as well, of course, as many people outside the House. It is not a party-political matter; there may be a range of views as to the nuances of how to deal with the issue. I say to the Minister that this is a great and very important step, but he will not have heard the last of the issue of forced marriage.
Baroness Thornton (Lab)
My Lords, I welcome this amendment, to which I was very pleased to add my name. Many months ago, when we started down the route of discussing the Bill, I had a meeting with some of the brilliant organisations that work to prevent forced marriages and to support those who are escaping from them. Almost in passing they mentioned to me that they were concerned about the capacity issue. I looked at the record of the Commons debates and the discussions that took place in Committee there and I noticed that my honourable friend Gloria De Piero had raised the matter there and that she received the sort of response from the Minister there that I received in Committee here. It is a very good example of the way that Ministers in this House conduct themselves. I thank noble Lords, particularly my noble friend Lord Harris, for supporting me in pressing this matter on Report when we persuaded the Minister, as it were, to look at the matter again. I am very grateful that he did so. We have reached a very happy conclusion.