Immigration Bill
Baroness Smith of Basildon Excerpts(10 years, 2 months ago)
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Lord Avebury
My Lords, Clauses 41 and 42 prevent a person who is not lawfully resident in the UK from applying for a driving licence, and allow the Secretary of State to revoke the licence of a person who already has one, if he is not lawfully resident—meaning that he requires leave to enter or remain and does not have it. Under existing law, since March 2010 a person must have leave to remain in the UK for at least 185 days, ruling out the vast majority of unlawful residents—as indeed it should, because the possession of an identity document would help them to stay in this country when they are not entitled to. Asylum seekers, and those appealing against refusal of asylum, should not, however, be lumped in with illegal entrants. As long as their applications are not fully determined they are here lawfully; however, they would be caught by the 185-day rule. Most asylum seekers do not have cars, obviously, but for the few who do there is no reason that they should not continue to drive.
May I also ask about failed asylum seekers, a point I raised with my noble friend Lord Attlee in the previous debate? They cannot be sent back to their country of origin for one reason or another: generally it is because the country of origin refuses to accept them. I gave the example of Iran. My noble friend Lady Williams is also muttering in my ear about the many refugees from Zimbabwe who were stopped from returning to their country of origin for many years, with the full approval of the Home Office. Is the discretionary leave granted to them longer than 185 days? Would they be classified as lawfully resident? If they are allowed to work, as some of them are, it could be a severe disadvantage if they are not able to drive. As my noble friend the Minister will be aware, there are tens of thousands of people indefinitely stranded here because their country of origin—I named Iran and Zimbabwe but Somalia is another example—either cannot or will not accept them. Although their not being able to drive may not be the largest problem that they face, the Minister would send a glimmer of light into their lives if they could apply for a licence.
Baroness Smith of Basildon (Lab)
My Lords, I have just a couple of questions on this group. The noble Earl may recall that at Second Reading, one thing that I said we would do in examining the Bill was, to look at first, the evidence base for bringing proposals forward and the workability of the measures proposed and, secondly, the impacts—including the unintended consequences. I would find it quite helpful if the noble Earl could say something about the reasons why this clause on driving licences has been brought forward.
On the point about the revocation of driving licences I would presume that someone who is in this country, even if they do not have a legal right to be here, is taking quite a responsible attitude if they have a driving licence. It means that they would probably have insurance. If that driving licence is then revoked, their insurance will also be revoked. Does that not cause a significant problem for other drivers on the UK’s roads if they are involved in an accident with a car whose driver, because of the revocation, has no licence at that point and whose insurance will have been revoked as well? It would be helpful to hear whether any thought has been given to that.
In terms of looking at the problems on our roads for those who are not entitled to be here, if the noble Earl were to do a straw test of members of the public, I think the issue causing them the most concern would be that of foreign cars being in this country for what is obviously longer than the six months that they are entitled to be before they are reregistered. Their drivers commit numerous offences on the roads, knowing full well that no one is going to track them down or do anything about it. The Government are taking action to bring us into line with the Irish Republic on driving offences but no action seems to be being taken regarding other countries. Can the noble Earl comment on why that matter is not being dealt with while that of driving licences is? That would be helpful in trying to understand the purpose of this clause.
Earl Attlee
My Lords, perhaps I might say a few words about Clause 41. The ability to drive in the UK is an important aspect of the quality of life for many UK residents and a privilege extended to many lawful migrants. A UK licence is used not only to drive but to secure employment and a range of services, as often it is used as proof of identity. There is no reason why the privilege of a UK driving licence should be extended to migrants who come to the UK only for short periods, have no leave or are here unlawfully. The EU directives in this area already require member states to ensure that applicants for licences are normally resident in the state of application. Those who come to the UK only for short periods of less than six months, those who have no leave and those who are illegally present in the UK should not be able to obtain a UK driving licence. This has been the Government’s policy since a Written Ministerial Statement on 25 March 2010 by the then Secretary of State for Transport, the noble Lord, Lord Adonis. This policy has been adopted by the Driver and Vehicle Licensing Agency and the Driver and Vehicle Agency in Northern Ireland.
It is equally wrong that migrants who have obtained a UK driving licence and then overstayed their leave in the UK should be able to continue using that licence. There are no current powers to remove this privilege. Clause 42 will remedy this: it will provide a new power to revoke a UK driving licence held by a licence holder who is unlawfully present in the UK. It will also create a criminal offence to fail without reasonable excuse to surrender a revoked driving licence.
I turn to the amendments tabled in respect of Clauses 41 and 42. Regarding Amendments 72A, 72B and 72E, asylum seekers should not be able to obtain the advantage of a UK driving licence until granted leave. This would encourage economic migrants to misuse the asylum system to the detriment of genuine asylum seekers. I fear that I can be no more helpful than I was for the previous amendment. Driving is indeed an ideal route to employment for migrants, but only when they have acquired the right to be here. My noble friend Lord Avebury again raised the issue of failed asylum seekers who cannot go home. It may be a difficult issue, but it is not a good reason for agreeing to open the floodgates to encourage asylum seekers.
The Government do not intend to seek blanket revocations of driving licences and asylum seekers complying with the immigration process who already hold a licence will not generally face this sanction. Refugees will be able to obtain a UK driving licence provided they meet the relevant requirements.
On Amendments 72C and 72F, the grant of a licence is currently, and will remain, an administrative process. A person refused a licence on the grounds that they do not satisfy the residency requirements may make representations to the Home Office or reapply for the licence with the relevant proof of identity. Allowing a right of appeal direct to the courts against a decision not to issue a licence will simply drive up costs for all involved.
Turning now to Amendments 72D and 72G, an appeal against a decision to revoke or grant a licence is not the appropriate place to consider the merits of an immigration claim. This should be done via an immigration route for which appropriate appeals mechanisms already exist. It is not appropriate to allow a court hearing an appeal to consider a change of circumstances following revocation. For the affected person, the easiest and cheapest remedy is to apply for a new licence having obtained the necessary immigration leave.
The noble Baroness, Lady Smith, talked about the difficulty of a motorist having no licence, resulting in the motorist having no insurance either. I agree with the circumstances described. The police will not necessarily detect this by checking the automatic number plate recognition system, under which uninsured drivers can be detected; I have seen that happen. I accept that it will be detected only if the police actually stop the motorist in question, but that is an unintended consequence and there is little that can be done about it.
Baroness Smith of Basildon
I thank the Minister for that helpful explanation. Does this not then fall into the category of unintended consequences? The noble Lord says that the only time it will come to light is if the police stop the vehicle for some other reason. That is not the only time it will come to light. If that driver is involved in an accident in which they are at fault, the other driver will be unable to claim any compensation or on their insurance. The UK driver, going about their lawful business, will be disadvantaged by such a policy.
Earl Attlee
I agree with the facts as described by the noble Baroness. She will of course be aware of the Motor Insurers’ Bureau scheme, which provides cover where someone has an accident with an uninsured motorist.
Baroness Smith of Basildon
Can the noble Earl assure me that the Government have been in contact with the Motor Insurers’ Bureau, and that it would in fact cover those kinds of circumstances, where the Government withdraw a licence and therefore insurance from somebody who had been insured?
Earl Attlee
My Lords, the situation is no different from that of a young tearaway motorist who loses their licence because they are banned, and then continues to drive without insurance. It is just another category of someone who is driving illegally.
I have listened carefully to what noble Lords have to say, but I have to stand my ground and hope that my noble friend will feel able to withdraw her amendment in due course.
(c) the court gives the Secretary of State permission under subsection (4B).(4B) This subsection applies if the Secretary of State—
(a) makes the relevant decisions in relation to an individual in a case which falls within subsection (4A);(b) makes an application to the court for permission to make an order.(4C) The application must set out how the deprivation is conducive to the public good and how the person, while having that citizenship status, has conducted himself or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, and of the islands, or any British overseas territory.
(4D) The function of the court on the application is—
(a) to determine whether the relevant decision of the Secretary of State is in accordance with the law, and(b) to determine whether to give permission to deprive a person of citizenship in a case which falls within subsection (4A).(4E) In a case where the court determines that a decision of the Secretary of State in relation to the conditions set out in subsection (4A)(b) is not in accordance with the law, the court may not give permission under this section.
(4F) In any other case, the court may give permission under this section.”
Baroness Smith of Basildon
My Lords, Clause 60, on deprivation of citizenship, is very important and far-reaching. There are two groups of amendments on this issue. I shall make my main remarks on this group and make a couple of comments on the second group.
Clause 60 amends Section 40 of the British Nationality Act 1981 to enable the Secretary of State to deprive someone of their citizenship even if that would make them stateless, but only if the citizenship has been gained through naturalisation and the Home Secretary is satisfied that the deprivation is, in the words of a government new clause introduced by her in the House of Commons,
“conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom”.—[Official Report, Commons, 30/1/14; col. 1026.]
Currently, the law allows the Home Secretary to deprive a person of their citizenship status for two reasons: first, if the person acquired it using fraud, false representation or concealment of a material fact; or, secondly, if the Home Secretary is satisfied that, in doing so, it is conducive to the public good and that the person would not be left stateless as a result. Clause 60 seeks to amend the second condition to, in the words of a Minister in the other place,
“ensure that individuals who are a serious threat to this country cannot retain citizenship simply because deprivation would leave them stateless”.—[Official Report, Commons, 11/2/14; col. 259WH.]
I question the word “simply” in that context. It would be helpful if the Minister could clarify whether there are any other areas of law in which we have different categories of citizens.
I know that everyone in your Lordships’ House without exception wants to do all they can to protect citizens from a potential terrorist threat and activity at home and abroad, and, indeed, recognises that we have international obligations in this regard as terrorism is a global threat. The Home Secretary, Theresa May, is aware of the seriousness of the issue before us today. She recognises that depriving an individual of their citizenship,
“is one of the most serious sanctions a state can take against a person”—[Official Report, Commons, 30/1/14; col. 1038.]—
and we agree with that. This clause was tabled just 24 hours before Report stage in the other place, with no prior consultation, let alone explanations or agreement, and a very truncated debate. Parliament has had little opportunity to scrutinise this measure, which has massive consequences and implications both for the individual and for the state, and for other countries.
We have tabled Amendments 74 and 79, which add a permission stage. Effectively, the Secretary of State would be required to seek permission from the court before making an order. I readily admit that the drafting is not perfect; we are not wedded to any specific wording here. However, we need a response from the Minister on the principle of oversight.
Clause 60 is a response to the judgment about Hilal Al-Jedda by the Supreme Court, which clarified that the Secretary of State could not withdraw citizenship from an individual if this would leave them stateless. For the Government to do so would lead to one of two scenarios. The first is that a former citizen would remain locked in the UK, unable to leave, work or receive any support, but the Government would still have obligations to that individual. In January last year, the Department for International Development published guidance on how a stateless person could apply for leave to remain in the UK.
The second scenario is that the former citizen, whom the Government consider to be engaged in actions prejudicial to UK interests, is left stateless in another country. I would be very interested to know what discussions the Government have held on this proposal with other countries, such as the USA or Germany, which have not given themselves the power to make other citizens stateless. The fight against terrorism is international and global. What are the implications for national and international security of allowing terror suspects to be loose and undocumented in whatever country they happen to be in when their citizenship is revoked? A number of issues arise from this clause. First, what will be the process for making an order under this clause? The Minister, James Brokenshire MP, has said that the process will,
“involve extensive research and understanding of an individual’s previous behaviour, any potential human rights issues and the threats that they pose to the UK. Officials from the Home Office and other Departments are consulted before the information is reviewed and a final decision made by the Home Secretary”.— [Official Report, Commons, 11/2/14; col. 259WH.]
The information provided by the department also suggests that the welfare of any children involved would be a consideration. Can the Minister provide further information or clarification on the specific grounds the Secretary of State would consider? Will the Home Secretary be able to take political considerations into account? Will she consult her Cabinet colleagues, for example, or will this decision be made on the advice and information from the security services? Obviously, with such a serious issue, there must be absolute certainty about the decision-making criteria. Accurate, factual information and risk assessments are of paramount importance.
I wonder whether the noble Lord could help me understand a particular case from 2011, which was brought to my attention by the Bureau of Investigative Journalism. It is the case of Y1. The witness statement from the deputy director of the Office for Security and Counter-Terrorism, on behalf of the Home Secretary, stated that the security service considered that Y1,
“presented a substantial risk to UK national security”.
He added that there was clear information that depriving Y1 of British nationality was conducive to the public good. However, he also stated that although they considered that Y1 presented such a risk, they also believed that,
“his detention had reduced the immediate risk he posed and judged that there may be more options for controlling that risk if Y1 were in the UK”.
That is a direct quote from the witness statement that was presented to the court. I read that as the security services wanting Y1 to be in the UK so that they can monitor his activities. They would be unable to do so if he were outside the UK and stateless. Following Y1’s appeal to the Special Immigration Appeals Commission, the judges reported that:
“Ultimately, the Home Secretary rejected the advice of the Security Service on the ‘management’ issue. Following consultation with other senior Ministers, the decision to deprive”,
him of citizenship “was made”.
I do not raise this to question the Secretary of State’s judgment, but I seek clarity on the process. That is why I added my name to the amendment in the next group, tabled by the noble Lord, Lord Pannick. Amendment 79C would require guidance to be published on the process to be followed. It seems to me that we need far more information on how the Secretary of State will make a decision.
Lord Taylor of Holbeach
The noble Baroness will have to allow me to write to her on that issue. The Government have responded to the report of the Joint Committee on Human Rights, so she may find that the answer is in there. If not, I will seek to provide her with that answer.
As I said, Clause 60 is consistent with the UK’s obligations under international law. As I have set out here, and as accepted by the JCHR in its recent report, this clause is in accordance with international law by virtue of the UK’s declaration upon ratifying the 1961 convention and the domestic legislation that existed at the time. There is therefore no question of the clause undermining our international obligations. We are adapting and responding to the threat that the UK faces, but acting within our international obligations. Amendment 76 would be an unnecessary addition to the Bill.
The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Pannick, asked if we were contravening international law by making people stateless. I have given the answer to that. As a party both to the UN Convention on the Reduction of Statelessness of 1961 and the UN Convention Relating to the Status of Stateless Persons of 1954, the UK is obliged to comply with the provisions of those conventions, which we would continue to do. If a person was recognised as a stateless person and inside the UK, they would have—as my noble friend Lady Hamwee rightly pointed out—protection against removal and a right to work and study. Depending on circumstances they may be granted access to public funds and be able to apply for a stateless person’s travel document. Those, therefore, are the facts: we would not seek to ride roughshod over those conventions that we have signed up to.
Baroness Smith of Basildon
I did not intend to intervene until the noble Lord had spoken, but there is a lack of clarity in what he has just said. It does not seem to be the same as what the Minister, James Brokenshire, said in the House of Commons. He said that special consideration may be given, and that if leave to remain or some other kind of leave to be in the country was given, conditions would be attached to it. He mentioned new conditions. Is that the noble Lord’s understanding, or is this something different?
Lord Taylor of Holbeach
I must say that nothing I have said implies that there may not be conditions. They are frequently imposed on people who may pose a threat to this country, and this case is no different. However, I have said that the right to protection against removal would be part of our obligation under the existing conventions, and we would not seek to do otherwise than honour those conventions.
On the challenge made by the noble Baroness, Lady Smith, about the question of deprivation action taking place only in the UK, that is the salience of Amendment 76A. The purpose of the new power is not to target naturalised people who are abroad, but to allow the Secretary of State to take timely action against individuals, whatever their location at the time the decision is made.
However, it is a fact that in some cases key information comes to light when a person is outside the UK. Indeed, often travel abroad to terrorist training camps or to countries with internal fighting is the tipping point—the crucial piece of the jigsaw—that instigates the need to act, given the potential danger that those individuals would present on their return to the UK. The Home Secretary therefore needs to be able to determine the most appropriate response and timings to deprive a person of citizenship, regardless of whether they are inside or outside the UK.
Lord Taylor of Holbeach
The noble Baroness is right. I was getting muddled between the two responses. The second report has not yet been responded to; it will be. I hope that it can address some of the issues raised by the noble Baroness.
The noble Baroness, Lady Smith, referred to the question of whether there was some difference between what James Brokenshire said and what I said in my speech. Perhaps I can explain that by saying that where a person cannot be removed to another country, we would consider whether a discretionary granting of leave was appropriate. An option would be for the person to be placed on limited leave, with conditions such as regular reporting restrictions or the need to notify the Home Office before taking up work or study in a particular field. I hope that explains that there is no difference, and I think it backs up my supplementary answer to the noble Baroness when we debated the issue.
Baroness Smith of Basildon
I am grateful to the noble Lord for coming back to me on that point, but there are numerous other questions that he has failed to answer. He has not answered any questions about whether there are any other areas of law in this country that allow for two categories of citizenship. He has not told us whether there have been discussions or consultations with other countries to which British passport holders may travel—
Lord Taylor of Holbeach
On that first question, perhaps I could ask what the noble Baroness means by “two categories” of citizenship.
Baroness Smith of Basildon
In most countries, if someone is a citizen then they are a citizen. If someone is a natural born citizen of this country, their citizenship cannot be removed and they cannot be made stateless. Yet in this Bill the Government propose that if someone is a naturalised citizen of this country—as are Members of your Lordships’ House—they could have their citizenship taken away, even if they would be made stateless. I thought that that was clear, and that it was the point of what the Government sought to achieve.
Lord Taylor of Holbeach
Surely the categorisation is about naturalised British citizens and not about whether they are stateless. Therefore, this is in existence because it already exists in UK law.
Baroness Smith of Basildon
I think that the noble Lord is missing the point. My understanding was that if someone was a naturalised British citizen, he or she had all the rights and responsibilities of any other citizen. That is changed by this legislation. I was asking whether any other area of law is responsible. The noble Lord can come back to me on that. The position would be changed by this legislation because a naturalised citizen can be stripped of their citizenship and be left stateless. If I am correct in my understanding, a British-born citizen could not be left stateless. Only naturalised citizens could be made stateless by this legislation. Perhaps the noble Lord wants to respond to that.
Lord Taylor of Holbeach
I am afraid that there is a disconnect in our train of thoughts on this. I will write to the noble Baroness to explain exactly how this operates. The only change made by Clause 60 is that statelessness is no longer a reason why naturalised citizens should not be deprived of their citizenship. It is not a question of two categories of citizenship based on whether a person is naturalised or not.
Baroness Smith of Basildon
I think that it does and I will look to the lawyers on this issue. I also look forward to receiving the letter. Only naturalised citizens of this country could be made stateless. Natural-born citizens could not be made stateless by this legislation. However, I have other questions. I asked about consultation and discussions with other countries on the impact of people travelling overseas on a British passport and having their citizenship withdrawn. The noble Lord has not come back to me on that point. He has no more information on the 27 people. He has not come back on the issue of someone not being able to get citizenship in another country. We have the short-term answer but not the long-term answer. A number of questions remain unanswered.
The noble Lord is always very gracious and helpful in writing to noble Lords when he has not been able to answer questions. However, this clause has had very little scrutiny in Parliament. To have tabled it at the last minute, literally about 24 hours before Report in the other place, was disgraceful. It would have been helpful if all those answers had been addressed today to allow a full and proper debate. I am grateful to the noble Lord for writing to us but that is not a good principle when issues have not been debated in the other place. After the noble Lord has written, the only discussion that we will have will be at Report stage. I find that unsatisfactory.
Lord Taylor of Holbeach
If the noble Baroness had advised me in advance of the things she was uncertain of, I would have done my best to provide her with those answers. I have limited resources available to me at the Dispatch Box and a limited amount of time. I have suggested to the noble Lord, Lord Pannick, that it would be very useful if we could discuss this matter before Report stage. In the mean time, if noble Lords have any questions other than those that they have raised today, which I will address in writing, please advise me. It is important to get this legislation right. I believe in being able to scrutinise legislation in this House, in Committee and at all stages of a Bill.
I apologise for not answering all the questions but I have done my best. The noble Lord, Lord Pannick, advised me that he considered that my reply had been helpful. I seek to be helpful to the House.
Baroness Smith of Basildon
The noble Lord always seeks to be helpful. My point is a broader one of scrutiny and the lack of time available for discussion, but I would welcome any meeting. I also say that my resources are somewhat more limited than his. I sometimes felt that in his response we were having a slightly different debate. He was responding to a debate about deprivation of citizenship. Most noble Lords who spoke in today’s debate were talking about statelessness and its implications for the security of the UK. There was little argument that there might be a need at times for people to have their citizenship taken from them or revoked. That was understood. It is the changes being made by this legislation that would create a position of statelessness that cause the most concern.
The reason I say that great scrutiny is required is to establish evidence as to whether the measure is necessary. I thought that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, was extremely helpful in his take on the measure before us. I also ask whether this measure achieves the objectives that the Government are seeking. The noble Lord and his party do not have a monopoly on wanting the citizens of this country to be safe and secure. I am sure that is the objective of every Member of your Lordships’ House. However, we do have to consider the wider impact and unintended consequences of any legislation that is brought before your Lordships’ House. There is much concern about the measure. Noble Lords have asked many questions and the opinions of respected and eminent lawyers have been quoted. That is because of concern that it does not achieve the objectives that the Government are seeking. Most importantly, it does not make the citizens of this country, or more widely, safer or more secure if people are deprived of citizenship in a way that makes them stateless.
I take on board entirely the comments made by the noble Lord. He was talking about individuals who have committed acts that are a danger to this country and that may involve terrorism. Why, if there is evidence of that, could it not be presented as evidence against those people? Instead, the Government want to make them stateless. There are consequences around statelessness that give rise to concern for public, national and international safety. I look forward to receiving further information from the Minister. The jury is still out on this. I have not been convinced that the measure proposed by the Government does what it seeks to do or is an appropriate way forward. I beg leave to withdraw the amendment.
Baroness Lister of Burtersett
My Lords, I am pleased to support these amendments. I think that I have already said more than enough about Clause 60, but I could not help but notice that no one spoke in support of it other than the Minister, and so I see these amendments as a kind of absolute bottom line. If we are going to be saddled with Clause 60, I hope that the Government will see fit to accept these procedural process amendments as a kind of minimal response to the grave concerns that have been expressed across the Committee.
Baroness Smith of Basildon
My Lords, my comments are equally brief. I have added my name to one of the amendments, and I think that the idea of an independent reviewer and a sunset clause are reasonable and worth further consideration by the Government. Like our amendment, they would provide greater oversight, which I would have thought all parties would welcome. Perhaps I may add one point. It may be possible that an existing independent reviewer could fulfil the role, and I think that we would all be willing to discuss how that could best be achieved.
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 Smith of Basildon
My Lords, I have just a couple of queries relating to Schedule 8 on “Embarkation checks”. This obviously requires co-operation and action from the airlines.
I was a bit concerned to receive an e-mail and a briefing note from the British Air Transport Association expressing its concerns about the schedule—not about the principle or what it seeks to do but the way it could be achieved. It says that it has worked very closely with the Government to ensure that e-Borders is in place—it has invested in that—but it is concerned that it will not be able to use passenger data for e-Borders as a new system is being brought in. It is seeking assurances from the Minister about the action that is being taken to work with the UK airlines, which of course have responsibility. It is concerned about longer boarding times and, most importantly, the risk at borders, because it feels that introducing the checks at border gates will require unqualified customer service staff to take on the role of an immigration officer without having the training to do so. It also feels that in some airports there are physical constraints because there is not sufficient or adequate infrastructure to support the efficient and timely carrying out of the checks. It also mentions issues around cost.
My understanding is that the British Air Transport Association has put a proposal to the Home Office on how to address this and how it can meet the requirements of the legislation without incurring additional costs, delays, constraints or compromises in security, which is another concern. I would be grateful if the noble Lord could address those points, and tell us what discussions are ongoing at the moment and when the Home Office expects to reach agreement on this. My fear is that if the association says that it physically cannot undertake measures in the Bill, a very serious situation then emerges.
Lord Taylor of Holbeach
My Lords, this is an opportunity to discuss this development, which forms part of the strategy and is widely supported.
I am very pleased to have the support of my noble friend Lord Avebury on this issue. He asked whether he was correct in his assumptions. I can tell him that he is: for the vast majority of individuals, the embarkation checks will be quite simple and straightforward and the existing officials employed by ports and airlines will be trained to do this task using very limited examination. The checks will allow those who currently have a role in outbound passenger processes to be designated and trained to perform the basic checks to establish a person’s identity, to collect the data necessary to identify threats or persons of interest and to confirm departure, so it is only those who are of interest who would be dealt with. It is not intended that designated persons should exercise any other powers of an immigration officer, such as powers of search or detention.
The exit checks will allow us more easily to identify those who have overstayed their visas and will help us improve measurements of migration so that we have a sounder basis for policy-making. The Government are confident that Clause 61 and Schedule 8 as drafted will provide the full range of powers necessary to conduct embarkation checks at the border and to collect all the information necessary to deliver in full an exit check capability.
The noble Baroness referred to a briefing that she had had. I have not seen that briefing but we are working closely with airlines to ensure that those checks can be conducted with minimum if any delay. We want to control departures in the same way as we control people coming into this country. We have introduced a new system for general aviation, the collaborative business portal, which allows operators to enter their data online. We do not plan to use the embarkation check powers in the Bill for general aviation and general maritime operators. We are working with them on a co-operative basis to enable them to come up with solutions that deliver our objectives, and those discussions are going very well.
I was asked by my noble friend whether we would achieve 100% coverage of exit checks. As I say, our target date is April 2015 and we are still sticking to that. We will have the arrangements in place to enable checks on those who leave the UK on scheduled commercial air, sea and rail services.
The noble Baroness, Lady Smith, asked whether this would lead to long delays at ports. We see the checks as being important, but our aim is to integrate them within the grain of existing processes in order to minimise the impact on passengers at ports. We are introducing the powers in the Bill so that we do not need to use immigration officers to do this work but, rather, can use existing staff, properly trained to deal with this particular process.
Baroness Smith of Basildon
I think that that is the point I was making. One of the issues raised by air transport operators was that it would not be qualified immigration staff undertaking checks but rather customer service staff.
Also, I think the Minister said that there would be two dates. He said that all the exit checks would be in place by April 2015 but then said that the system would not be rolled out in every place. I am trying to understand whether this really makes our borders more secure, or whether the fact that unqualified customer service staff instead of immigration staff are undertaking checks will cause a problem.
Lord Taylor of Holbeach
Not at all. These are not customer service staff but designated persons who will have the authority to do the task of exit checks. They will be designated and trained to perform the basic checks required that will deliver the policy.
I do not think that I said that this would be rolled out. I said that we intended to have the checks in place by April 2015. That is the plan, and it is going according to plan. I hope that the Committee will accept that.
Lord Taylor of Holbeach
All I can is that if my noble friend is flying to Düsseldorf, she can expect to have her passport checked at that time. She will know that that is what is happening. There is no difference.
Baroness Smith of Basildon
I am sorry, but I seek clarification on this. Does that mean that those airlines already compliant with providing passenger data through e-Borders will still have to have these additional checks undertaken at the point of leaving the country?
Lord Taylor of Holbeach
We are working with the airlines to find ways in which the existing advance passenger information can be incorporated into these checks. The advance passenger information provides only so much information. It is very useful and gives names, but it does not necessarily give the details of the individual’s passport or any visa requirements on that passport. That is a matter for examination, and the designated staff will be in a position to check that material at the time the person leaves the country.
Immigration Bill
Baroness Smith of Basildon Excerpts(10 years, 2 months ago)
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Baroness Williams of Crosby (LD)
My Lords, I share the view of my noble friend Lady Hamwee about the useful contribution made by the noble Lord, Lord Best. Some of us know what a tremendous contribution he has made over the years, both to the whole position of immigrants to this country and, not least, to the position of people seeking to study at our universities.
I want to ask two questions. The first is about the desperate pressures on the housing market, not least in London, which remains a magnet for many overseas students. This was exemplified again to me this morning when in one post I received no fewer than two letters from distinguished estate agents in London begging me kindly to sell my rather humble single-bed flat, in a rather seedy part of Victoria, on the grounds that I would make thousands of pounds of profit if I did so. Such lettings or sales almost certainly do not go to students in any situation. Given that there is a huge pressure of demand on the market, not least from people working in this country, often in a fairly short-term capacity, let alone from the literally thousands of houses in London that are now being let or sold to overseas investors who have no intention of living in them or inhabiting them—as anyone can see who takes a good look at Highgate or some other fashionable areas of London, many of those properties remain empty for several years on end—it really is something of a scandal that that is the way that the housing market has played out. It is becoming close to impossible for many overseas students of modest means to find anywhere to live at all, which is why we see increasing numbers of people packed into overcrowded rooms, flats or basements in a desperate attempt to find somewhere to live.
We have been helped by the noble Lord, Lord Best, and my noble friend Lady Hamwee, who gave specific and concrete suggestions about ways in which this situation might to some extent be eased. In the end, it can be seriously eased only by a deliberate attempt to create more student accommodation, but that is not going to happen in the very short run, and therefore anything that exempts accommodation specifically directed to and planned for students is of great benefit in this desperate situation.
Secondly, I want to draw attention to a group who are not assisted by being specifically registered by their university and helped by student unions and the like. I reiterate what I said in an earlier session of this Committee when I pointed out that no less than 33% of academics currently serving in Russell group universities come from overseas. The figure is about 28% for universities as a whole. These men and women are here because they are outstanding in their line of study or profession. They bring to that study their knowledge of another part of the world and the ways in which in different cultures different answers are found. They do not have the benefit we have given to overseas undergraduate students who are registered at their university. They are mostly out there looking for accommodation for themselves, and many of them have no knowledge of this country or its housing market and are quite easily persuaded to make not very sensible arrangements.
Yet let us be quite clear that, without those academics, the quality of first-class higher education would deeply suffer because it is increasingly a global situation and a global statement about the quality of a university. Anybody who knows the Russell group and some of the outstanding new universities will know that it is that huge input of talent and ability from other countries that makes a university not just a good place but a great place. What the noble Lord, Lord Best, has proposed, not least in his final amendment, could be very helpful to people who are without the kind of expert advice that undergraduates can at least hope to get. It is essential that we recognise the importance of tackling this matter.
The noble Lord, Lord Best, referred to children. Many academics will be married with children and will want to bring their dependants with them. The noble Lord, Lord Best, pointed out the problem of trying to sort out the migrant status of family members who have come with the head of household who is taking up an academic position, particularly children over the age of 18 who still live with their parents, as many do abroad. How big an obstacle are we placing in the way of such men and women unless we adapt and attract the kinds of solutions that he and my noble friend have tried to put forward this afternoon?
I shall not continue at greater length. Members of this House will know of my huge concern about one of the greatest and most effective exports of this country. Incidentally, it is one of its sources of innovation and enterprise with no less than one in seven new firms and 14% of new jobs being created by migrants, and those figures are higher than the proportion for their British-born equivalents. They make such a huge contribution to this country’s ability to maintain and improve its economic position that it takes my breath away that we should have this kind of legislation before us. I shall not pursue that matter, but I hope the Minister, for whom I have great respect, as we all do, will look very seriously at the proposals in this area of the Bill to deal with the dangers that could arise from the insistence on tenants being, effectively, monitored and overseen by landlords with all the rather frightening consequences of that concept.
Baroness Smith of Basildon (Lab)
When the noble Lord, Lord Best, with his experience and expertise on housing, speaks on issues such as this, we all do well to listen. I am sure the Minister has taken on board his comments. On the issue he raised about students, the Minister has made clear that the Government will bring forward an amendment to address this issue, and I welcome that. I hope he will listen, take on board and incorporate the comments made by the noble Lord, Lord Best, which are very helpful indeed. I welcome the fact that the Minister has listened and intends to table an amendment. I also welcome this recognition by the Government of how clumsy this provision in the Bill is, and the consequences of that. I will not speak at length today, because I spoke at length on earlier amendments covering the same issues.
The amendments tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Best, address, as the noble Baroness, Lady Hamwee, said, the principle, practicality and workability of the provisions on landlords. Notwithstanding the comments of the noble Baroness, Lady Williams, the provisions do not just affect students, as I know she has acknowledged. These provisions on landlords will impact on many people to the detriment of many UK-born and British citizens and those who have a legal right to be here. I welcome the opportunity to look at some of the practicalities.
I notice that the impact assessment for the Bill comes straight to one of the points made by the noble Lord, Lord Best. Under the heading, “What is the problem under consideration? Why is government intervention necessary?”, the impact assessment comments:
“Housing is a key enabler of illegal migration. … Government intervention is necessary to deter illegal immigration”.
I disagree with that. The problem here—the concerns that have been raised in the amendments—is about whether it is the landlord’s role to take action to deter illegal immigration in the way that the Government suggest.
What I am concerned about is highlighted by the comments of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Best. It is becoming increasingly clear what limitations, pressures, problems and responsibilities these provisions are going to have and what impact they will have on those entitled to live and work in the UK, including UK citizens. The noble Lord, Lord Best, and the amendment of the noble Baroness, Lady Hamwee, have highlighted concerns regarding the impact on landlords.
The Government estimate in their impact assessment that they will take fines of £6.8 million from landlords over the next 10 years. The point has been made to the Minister that that could be seen as, and could well become, a disincentive to those who currently rent out. It would be helpful if the Minister could tell us whether, given that this also includes rooms which have been rented to lodgers, any assessment has been made on the impact of availability of homes or rooms to rent in the private rented sector. The noble Baroness, Lady Williams, mentioned the letters that she has received from estate agents wanting to rent or buy her property. Anybody who has lived in London will have regularly received such letters from companies offering vast amounts of money to rent a room. Can the Minister tell us whether any assessment has been undertaken of the impact that these proposals could have on the availability of properties or rooms to rent?
I will not go through each amendment—I raised a number of questions which I had on Monday—but the amendments would bring some clarity to the issue. If we take the questions raised by these amendments, those that will be raised in the next group of amendments, those that were raised in yesterday’s discussion on whether the clause should stand part of the Bill, and proposals for a pilot—I welcome the Minister’s letter and look forward to discussing the Government’s proposals for a pilot—it is increasingly clear that there is little to commend these clauses. I hope that, in his response today, the Minister is able to address the concerns that have been raised by noble Lords here today and some of those still outstanding from our previous debates.
Baroness Neville-Rolfe (Con)
My Lords, I will make two brief points. First, I welcome the broadening of the exemption for students which my noble friend outlined late in the debate on Monday. That seems to be relevant to Amendment 54ZZA, and we all look forward to seeing the new wording on Report, recognising the importance of our student population.
Secondly, I will comment on the idea outlined by the noble Lord, Lord Best, for an approved agency arrangement. This may be a good idea, but it will of course come at a cost. I would prefer a simple system that would allow landlords to do the checking themselves by having proper guidance for small landlords, both through the normal trade associations and guidance and on gov.uk. In that way enforcement can be minimised, fines avoided, and compliance maximised. The trial run that all noble Lords seemed to be agreed on in the earlier discussion in Committee should be used to test the workability of these important proposals.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
I am delighted that we now have another name for the rollout and the trial run; we are accumulating quite a vocabulary of descriptions for this important part of the development of this legislation. I am grateful to all noble Lords who have spoken. We have moved down to some detail, which it is important that we use Committee to tackle. I am grateful in particular to the noble Lord, Lord Best, for tabling his very thoughtful amendments, and to my noble friend Lady Hamwee for hers. They are clearly intended to improve this part of the Bill. I welcome the opportunity I had to meet with the noble Lord, Lord Best, as I explained already, and with a number of interested bodies to discuss these provisions. My door remains open to the noble Lord; some of the suggestions he has made today require further exploration jointly between government and their advocates, so I hope that this will be a beginning.
This group of amendments includes some interesting suggestions, which I will reflect on further, as is right and proper. However, some of them would represent a retrograde step. We can take things in a different direction and further forward than perhaps the amendments aim to take them. I remind noble Lords that the aim of the legislation is to require landlords to conduct immigration checks on all adults who it is intended will occupy the property when the tenancy is created. It does not require all such adults to be named on the tenancy, although that may become common practice in future, and the Bill allows landlords to delegate the task of performing checks to a letting agent. The checking requirement applies only where the property is occupied for rent or lodging as the person’s main or only home.
That is an important measure, and the Government are right to identify housing as one of those facilities which, if controlled by measures as provided for in the Bill, will serve as a deterrent to illegal immigration. I am sure that the noble Baroness will share that view, just as both parties agreed that employers’ checks on people seeking work have been effective in that regard.
The Bill does not require the landlord to monitor who is living at the property once the tenancy has been created. While some landlords already require their tenants to inform them of changes to the composition of the household, some do not, and we recognise that. Where a tenant sublets the property or accepts a lodger without the landlord’s knowledge, that tenant effectively becomes the landlord under the scheme, so to a degree the landlord’s responsibility applies to the person who occupies the house as a principal home.
Baroness Smith of Basildon
Can the Minister clarify whether that is the case only if the tenant accepts payment by the lodger? Presumably, if they accept someone to stay in the property as a guest, nobody will be liable to check their immigration status.
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 Smith of Basildon
I am grateful—that is very helpful. But perhaps the Minister could address the point made by the noble Baroness, Lady Hamwee, and myself about a loophole. It does not have to be the market rent; it could be an exorbitant rent to one tenant to allow others to stay there for free. If he could address in the letter whether that is a loophole, that would be very helpful.
Lord Taylor of Holbeach
Yes, I will do it in the letter. I feel that if I try to do so here today, I might get into even deeper water than I am already swimming in.
Home Office immigration enforcement will enforce the scheme in the normal course of its activities. Where illegal immigrants are detected during illegal working operations, when arrested for criminal offences, or as a result of intelligence, immigration enforcement will investigate where the person is living. This will include establishing whether the new duty on landlords has been breached, who owns or controls access to the property, and who is collecting the rent. That ties up with the consideration that the noble Baroness asked me to look at earlier.
The checking requirement will apply only to adults, and the person’s age as a matter of fact will be apparent from the documents presented. The system of document checks has been adjusted, following consultation with landlords, to reflect closely existing check practice by landlords. Where these simple checks are completed, the Bill makes it clear that the landlord will have an excuse, and therefore will not be culpable under the provisions of the Bill. Only original documents can be accepted in view of the obvious risk of forgeries, as noble Lords will understand.
Earlier in the Committee’s deliberations—I am grateful for the comments of my noble friends Lady Neville-Rolfe and Lady Williams of Crosby—I announced the Government’s intention to bring forward on Report an amendment to broaden the exemption for student accommodation owned, managed or arranged by higher education institutions in all parts of the UK. Obviously, we await the full detail of the amendment, but I think this very much meets the point that noble Lords have made. This is an important area for two reasons: first, because it reinforces the message that I am trying to get over that we want to make it clear that we are supportive of the university sector in this country; and, secondly, because it introduces the concept that there can be no need for double checking in this area given that the university has already satisfied itself that its students are properly entitled to be in this country. I note the suggestion about the engagement of Section 233 in the amendment of the noble Lord, Lord Best, and I have already noted my noble friend’s contribution on the council tax exemption point.
The noble Lord, Lord Best, has raised concerns about people who are in need of support at a time of homelessness or the threat of homelessness. The exemptions in Schedule 3 already deal directly with the work of hostels and refuges and the work of local authorities, where they are providing assistance to comply with their duties, or are providing assistance on a discretionary basis to a person who is homeless or threatened with homelessness. Therefore, we have made this clear in the Bill.
The noble Lord makes a very interesting suggestion in advocating, and elaborating on, a role for a verifying body to support small landlords in performing the required checks. I say, in the modest way that Ministers do, that I undertake to reflect further on the merits of this suggestion. This is an interesting matter for us and the noble Lord to discuss. The Government want these arrangements to be workable in practice. I think my replies have shown that the Government see this as an important aspect of policy but it must be practical and work for landlords and people who want housing. We also want these arrangements to be successful in achieving the policy objective of deterring illegal migration.
I think I have made it plain that I want to engage with noble Lords. I hope that, in the light of the reassurance I have given, and, indeed, my promise to write in detail specifically on the division of responsibility—that is essentially what we are talking about in relation to the definition of a tenancy and landlords’ responsibilities—the noble Lord will withdraw the amendment.
Baroness Smith of Basildon
My Lords, these amendments build on the two previous debates that we have had on this issue and highlight its difficulties and complexities. I know that the Minister will give an explanation of these but I ask him to take on board the points that have been raised today, and the other points raised on Monday at Questions, which strike at the heart of what these clauses seek to do.
What worries me is that if landlords are going to rent out their properties and want to abide by the law, they will need to have absolute clarity about what is expected of them. The noble Baroness, Lady Hamwee, thought that she was testing the patience of the Committee. I do not think she was because, for example, Amendment 55Q makes an important point. I worry that the measure outlined in that amendment could be a further deterrent to landlords to rent.
The noble Baroness mentioned the code of practice and the documents available. As I said on Monday, the Government have tried to be helpful by increasing the number of documents available. However, I am not sure how helpful that is because it creates even greater complexities. I had hoped for an explanation of why under List A of acceptable documents, 10f has only a full stop. Presumably there is something missing and there will be another document at some point.
Lord Taylor of Holbeach
It is only a draft document. There may well have been other matters under consideration at the time.
Baroness Smith of Basildon
So there may be further documents which are acceptable. I appreciate that.
However, clarity for landlords is crucial, particularly if they are expected, according to the impact assessment, to pay £6.8 million-worth of fines, which is the Government’s break-even policy objective. Every time I read the landlords’ guidance it raises more questions than answers and I am sure it will be the same for landlords. If I were a potential landlord I would regard this as a disincentive.
In the previous debate I asked the Minister a question about landlords seeking to play safe and the noble Baroness, Lady Hamwee, has reminded me that I did not receive a response. The worry is that landlords will look at the obligations placed on them and want to choose tenants who most look like, sound like and are easier to identify as, in their eyes, British citizens. Rather than choosing those who may even have permanent leave to remain, they are going to play safe. There is a discriminatory aspect to that. However, the specific question I asked was whether the Government have made any impact assessment of the impact of the legislation on the availability of rooms to rent in the private rented sector. It would be helpful to know if any consideration has been given to that point.
Lord Taylor of Holbeach
I am grateful for both the debate and the amendments tabled by my noble friend. They contain constructive suggestions and are designed to make this part of the Bill work, an aim which noble Lords will share. The amendments seek to exclude vulnerable people and students from the provisions of these clauses. I have already referred to the Government’s plans in relation to students. However, I wish to provide some reassurance in relation to those who may be vulnerable.
On the point made by the noble Baroness, Lady Smith, discrimination is a concern. Certainly if it became widespread it would destroy the credibility of these arrangements. That is why there is a code on discrimination running parallel with the code of practice. As noble Lords will know, to breach this code and to act in a discriminatory fashion is against the law in any event, and so it is part and parcel of the package of non-regulatory measures being brought forward to reinforce these particular provisions.
Clause 16 provides discretionary powers for the Secretary of State to authorise a tenant who has no lawful status to rent property. This will include asylum seekers, who will be able to confirm that they have a right to rent with the landlords’ checking service, or a landlord may conduct a check directly with the service. This discretion will be exercised where a failed asylum seeker is unable to return home because of a recognised barrier.
Tenants housed by virtue of children or national assistance duties are also covered in exclusions. Schedule 3 provides that any accommodation provided to a person as a result of a duty on a local authority is excluded—that is, a duty on a local authority in respect of any obligations to vulnerable people. It does not seek to particularise the duties, including the respective Acts and orders relating to children or social care; it is a general obligation which local authorities may have to individuals. Therefore the amendment proposed by my noble friend is not necessary given the wide scope of this exclusion.
The amendments are also intended to provide further protection to landlords. The provisions create a civil penalty scheme which the Government are committed to applying on a light-touch basis. Where a suspected contravention is discovered, the Secretary of State may issue a penalty notice, including where they are not immediately contactable. The landlord is then afforded a right to raise objections. Where these objections show that the landlord has a statutory excuse from a penalty, they will be notified in writing. No further consequences will arise if the objections show that the landlord has a statutory excuse.
The power to increase a penalty is important—it is a kind of parallel power—as it may not be immediately clear whether the landlord has been previously penalised in this way. The landlord may, where it is decided to maintain a penalty, appeal to the courts. That is the right order of events: rather than going immediately to appeal, adjudication can take place informally between the landlord and the Secretary of State.
It is proposed that where a penalty remains unpaid the Secretary of State should be able to pursue recovery through the courts if the penalty were due under a court order in exactly the same way as a civil penalty. In cases where an appeal has been heard by the courts, this avoids the landlord, the Secretary of State and the courts having to return to the same court to hear an application for judgment for an amount the court has already determined should be paid by the landlord.
Turning to Amendments 55A and 55B, to which my noble friend wanted me to pay attention, I remind the House that the proposed sanction is a civil penalty, an administrative scheme; it does not form part of a criminal investigation. Clause 23 places a responsibility on the landlord and/or agent to evidence that they have complied with the prescribed requirements and have maintained an excuse against a penalty where necessary. That does not mean to say that the Secretary of State is not required to establish that there has been a contravention of Clause 17 to justify the issue of a penalty notice, nor that the Secretary of State will not engage with the landlord or agent and give them the opportunity to establish an excuse before a penalty notice is issued. I can confirm that the intention is that landlords and agents will be invited to demonstrate their excuse before a penalty notice is issued. However, in cases where the landlord or agent refuses to co-operate with an investigation, the Government consider that this is a proportionate and practical approach. The landlord or agent can easily prove that they have undertaken the checks by producing copies of the relevant evidence, whereas it would be difficult for the Secretary of State to establish a negative and establish that the prescribed requirements were not complied with.
Baroness Smith of Basildon
I apologise because I now understand why the noble Lord is inching towards our pilot. However, I have asked him a question in the last two debates: has any assessment been undertaken of the impact of this part of the Bill on the availability of rooms to rent and properties to rent?
Lord Taylor of Holbeach
I cannot give the noble Baroness an absolute answer to that question. Of course one of the reasons why the rollout is important is that we need to check to see if there are any adverse implications in this policy.
Immigration Bill
Baroness Smith of Basildon Excerpts(10 years, 2 months ago)
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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 Smith of Basildon
My Lords, I want to make just a brief observation and ask a quick question. I am quite curious about the analysis of the costs and benefits of this proposal. The point that I want to make is similar to that made by the noble Lord, Lord Avebury. What is the extent of the problem that the Government are trying to resolve? My understanding is that many people on low or irregular incomes find it quite difficult to access bank services in the first place. Is there is a significant problem here that the Government are seeking to address?
I also notice that the clause is headed, “Prohibition on opening current accounts for disqualified persons”. It is not a prohibition on holding a bank account. What if somebody legally opens a bank account while they have leave to remain but their leave to remain is then revoked or expires? What action is the bank supposed to take in those circumstances? The very helpful guidance from the Home Office says that this is to ensure that there is a reduced risk of extending credit to individuals who are likely to be removed from the country at short notice. I should have thought that those whose leave to remain was revoked or had expired would be in that position. If the noble Earl could answer those questions, it would be helpful.
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.
Immigration Bill
Baroness Smith of Basildon Excerpts(10 years, 2 months ago)
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Baroness Smith of Basildon (Lab)
My amendment is the second in this group and is the only one that deals with domestic violence. I thought that it would be helpful to include the amendment in this group rather than have a separate debate on domestic violence.
I want first to turn to the housing provisions, which require landlords to check the immigration status of those to whom they let. I said at Second Reading that we have serious concerns about these measures and we have tabled a number of amendments to the relevant part of the Bill. I shall not go into detail here because it is a separate debate for, one hopes, later today.
I want to put on record our concern about the workability and what I will refer to—I hope that this is accurate—as the unintended consequences of the provisions. The Government should be aware of the impact of the proposals on vulnerable persons, such as pregnant women and many others, as the noble Earl, Lord Listowel, highlighted. The amendments in this group highlight the concerns about those issues.
Not everybody in life is well organised, not everybody has all their documentation up to date and not all landlords will be able to fulfil—or, perhaps, even understand—all their obligations under the Bill. People can make mistakes. I think that I am a well organised person, but can I say that I have never forgotten to pay a bill or never missed my MoT date? Of course I cannot; we all make mistakes.
We learnt that when the former Immigration Minister, Mr Mark Harper, had to resign. Even with all his good intentions and integrity, wanting to obey the law and trying to do so, he still made a mistake. There are great concerns about those whose lifestyles may be a bit more chaotic, or those who are here legally but do not have the right kind of documentation. That could include pregnant women and victims of domestic violence. They might end up being refused accommodation as a result of these measures because landlords do not want to take the risk of making a mistake. The danger is that that could result in them falling into the hands of rogue landlords or becoming homeless.
I hope that the Minister can be clear on whether those issues were considered when discussions were held on including the provisions in the Bill. If they were considered and the Government are aware of all those consequences for vulnerable groups, how will they address them—in particular, under this group of amendments, pregnant women and victims of domestic violence?
Most of the amendments referred to the health charges. There is a lot of confusion about the measures in the Bill and other measures announced by the Government. They must recognise that they must take responsibility for any confusion. The Government’s rhetoric and the sweeping statements that we have heard about what they call health tourism add nothing to the seriousness and quality of the debate. Again, I do not want to go into the wider issues—we will have a wider debate on health charges later, and I will raise the bulk of the questions and concerns that we have then—but I want to ask a few questions on specific issues raised by this group of amendments.
I want to be clear from the outset that we agree with the principle of a one-off health surcharge. It is not unreasonable that those who use the NHS contribute to it. My understanding is that all those who have paid the charge would then have full access to the NHS, but the Government’s consultation document then excludes a few treatments. That is not in the Bill, but it starts to cause confusion. In particular, the consultation document states:
“It may be appropriate to build in a very limited set of excluded treatments for which specific charging should still apply. These might include any or all of the following”.
One of those in the list is services for pre-existing pregnancies. As I said, that is not in the Bill, and that is why I want some clarification. As I read it, that seems to mean that women who have paid the visa charge and come to the UK already pregnant—presumably at whatever stage of pregnancy, whether they know about it or not—will nevertheless have to pay for treatment related to their pregnancy. Is that all treatment or some treatment? We just do not know, and the Bill does not provide any clarity on that. I wonder whether when those women get their visas they get a pregnancy testing kit at the same time to check whether they are pregnant.
A number of groups are to be exempt from paying the health surcharge on humanitarian grounds. We totally support that; it is absolutely right. The Department of Health said that that would include refugees, asylum seekers and victims of human trafficking—presumably, whether or not they are pregnant. I know that victims of trafficking will now be debated in a separate group, but I want to press the Minister on how this will work in practice, as there will be cases when they will present to the authorities only when they are pregnant. Trafficked women will not, by definition, have paid the charge. The UK Human Trafficking Centre suggested in its 2012 baseline survey that more than half of all trafficked victims were not referred to the relevant authorities for assessment, so how will we know who they are?
Specifically on domestic violence, what will happen to women who are trying to escape a violent relationship and who, in fleeing the home, are left without any evidence of their entitlement and no information on their immigration status? They may be UK citizens or have indefinite leave to remain but do not have the documentation. They have fled their home because of violence and to protect themselves and their children. Women who flee a violent partner often do so at the time of the most extreme circumstances that they can face. They will not have time to pack up their belongings, hunt for their passport, pack it into their bag, fold up their documents and bring those out with them. They are going to flee the home to protect themselves and their children so when they present for housing they will, if they are fortunate, be placed in a hostel or refuge. If I am correct, the Government are quite rightly exempting that. However, others will just run and, having run, will try to find suitable accommodation.
With the financial difficulties being faced by women’s aid groups across the country—I declare an interest in that I am patron of Basildon Women’s Aid—supply cannot always meet demand. What do the Government expect these women to do? How will they find accommodation? Will a sympathetic landlord be forced to turn them away if they do not have their documents and, if they are pregnant, where are they going to give birth if they have been turned away by a landlord? Where will their home be? A number of questions are being asked today, and I think that there will be many more from other noble Lords who have amendments in this group, about the implications of Clauses 33 and 34 for pregnant women and victims of domestic violence.
I have spoken to the Minister about this already, so he is aware of my concerns. However, we need far greater clarity about what is in the scope of the Bill and what has been just government rhetoric or other issues which the Government pretend they will take later. What is going to happen and how will it work in practice? I would find it quite helpful if the Minister could help me understand the position of someone who is here legally but who has not paid the visa surcharge—because they are here at present and that surcharge has not come in—and does not have permanent or indefinite leave to remain. What is their position regarding healthcare? I am assuming that transitional arrangements will make provision for that but I am not clear on how that will work in practice. If the Minister can shed any light on that, it would be extremely helpful.
Baroness Cumberlege (Con)
My Lords, I have two amendments in this group—Amendments 59 and 63. I declare my interests, which are in the Lords’ register.
We received a very interesting letter from my noble friend Lord Howe over the weekend. His letter explains that Clauses 33 and 34 are designed to break, or perhaps put a stop to, the activity of health tourism. It is absolutely right that we should do that. Having read his letter, I understand that estimates suggest that between £70 million and £300 million of costs—it seems to be rather a large gap—are attributed to people who deliberately travel to England to get free healthcare because their treatments are so expensive in their country of origin. In no way should we entertain health tourism; it should be detected and the individuals suitably charged. The NHS, as we know, is enormously generous and supported by us all through our taxes. The whole purpose is that we should contribute, through our taxes, to the well-being of our own country’s health.
I have had a long-time interest in maternity services. As the noble Earl, Lord Listowel, indicated in introducing his proposed new pregnancy and maternity clause, there really are few things more important to a woman than bringing a new life into the world. It is a journey of dramatic physical, psychological and social change; of becoming a mother, of redefining family relationships and in taking on the long-term responsibility of caring for and cherishing a newborn child. If the needs of child-bearing women and their babies are ignored, then not only are the physical, social and psychological long-term effects damaging to those concerned but the economic implications for the country are considerable.
Baroness Smith of Basildon
I apologise for interrupting the Minister, and I am grateful for his response to my queries. I am still slightly confused on the issue of pregnant women. I think that he said that the Bill allows for such charges but there is no intention to make them. If I have that wrong, perhaps he could clarify it for me. The only reason it has been flagged up is that the public health consultation mentioned additional charges. I want to be absolutely clear that if a woman has paid the surcharge, there is no additional charge to be made. I may have misunderstood, but what he said seems slightly contradictory.
The other point is on transitional arrangements. If someone is already here legally, my question is about the practicality and workability of the measures. How will we be able to distinguish between someone who has paid the surcharge but is here illegally and someone who is here legally but has not paid the surcharge?
Lord Patel
If the Minister will allow me, before he answers the noble Baroness, can I make something clear? We keep confusing surcharge with levy. Let us talk about the levy that will be imposed on people coming here who are not visitors. Once that levy has been paid, it will allow them to access all health services. Is that quite clear?
Baroness Smith of Basildon
I am sorry to intervene on the noble Lord; I know that noble Lords are anxious to get on to the next debate. The answer the Minister gave me was not the answer to the question that I asked. I asked about those who have leave to remain in this country and are here legally—they could be UK citizens—but, having fled the domestic home where they have been subjected to violence, do not have the documents to show to a landlord and so cannot prove their status. How does the noble Lord intend for that matter to be dealt with, given the problems that it will cause to women fleeing domestic violence?
Lord Taylor of Holbeach
My Lords, I remember that the noble Baroness painted this scenario and I understood it well enough; I am sorry if I missed that point in picking up another. There are exceptions for refuge accommodation and local authority-provided housing. After all, a broad range of individuals are in this situation. Social services will be able to help them with long-term housing needs and asylum seekers will also be authorised to rent. If I have not satisfied the noble Baroness, I do not want to mislead her or the House by giving her an off-the-cuff response which is beyond my brief at the minute. I will write to her, and copy in everyone, on this matter.
I am looking through these notes, and see that I have satisfied a number of questions—such as those raised by the noble Lord, Lord Patel, on children—in the way in which I have answered the broader matters. However, I recognise, too, that I may not have covered all the points made by noble Lords, but I am very mindful of the time. If noble Lords will forgive me, I will ask the noble Earl, Lord Listowel, to withdraw his amendment. I thank all noble Lords who have contributed to the debate, which is by way of a warm-up, I suspect, for further adventures in these fields with the amendments that are yet to come.
Immigration Bill
Baroness Smith of Basildon Excerpts(10 years, 2 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, in moving Amendment 50, I will speak also to the other amendments in my name and those of my noble friends Lord Rosser and Lord Stevenson and the noble Lord, Lord Best, and our clause stand part debate.
It is already the case that local authority housing associations cannot let to illegal migrants. We agree with the principle of making it more difficult for illegal migrants to rent property but we have very serious concerns about the workability, effectiveness and possible unintended consequences of this clause. We want legislation that works. We do not want legislation that is ineffective and puts unnecessary, onerous and disproportionate restrictions and obligations on UK citizens but does not impact on the real issue.
We have tabled a number of amendments. As I said, the first is a clause stand part debate on Clause 15 to ensure a general discussion on all these parts of the Bill. Amendments 50 and 51 would put in legislation the principle of a pilot for these provisions. Amendment 56C would require the Government to make landlords aware of the code of practice. Amendments 55T and 56A would implement the recommendations of the DPRC to require that the code of practice be made by order, and Amendment 56E would question the dehybridisation provision.
We have a number of other groups—I think it is three—on the housing issue. It might be helpful if I address the principal points in this debate and comment only briefly on the other groups. My noble friend Lord Stevenson has already addressed concerns about how these proposals will impact on students. I hope noble Lords will forgive me if I speak a little longer on this group of amendments, but I do not intend to speak on the other groups of amendments, other than perhaps a very brief sentence or comment. So I will speak slightly longer than I would normally.
I have found it difficult to find anybody who is in favour of this clause who thinks that it will work in practice. The evidence sessions in the other place should have given the Government cause to pause and reconsider, given the views expressed. Opposition to these measures comes from a whole range of organisations that have to deal with the consequences, from Crisis and Shelter, which deal with housing for some of the most vulnerable in society, to the organisations that represent landlords.
The Residential Landlords Association survey identified opposition from 82% of its members. Carolyn Uphill, chairman of the National Landlords Association, said in her evidence to the House of Commons committee:
“It is going to impose an administrative burden on landlords who are not experts in immigration … The principle of checking identity is not so much the worry as the logistics of how that is done and understanding the documentation”.
In the same evidence session, Richard Jones, policy director of the Residential Landlords Association, said that,
“we think that the Bill and its provisions are not workable and will not be effective in achieving the objectives set out”.—[Official Report, Commons, Immigration Bill Committee, 29/10/13; col. 43.]
They are not questioning the principle, just whether the provisions are workable for those who have to implement them. I am still unclear whether the Government have fully assessed all the implications of this clause, including the unintended consequences.
In its most recent report on the work of the UK Border Agency, this time last year, the Home Affairs Select Committee said:
“The proposed new housing measures in the Immigration Bill must not produce a bonanza for unscrupulous landlords who already operate outside the law”.
The landlords’ organisations are not complaining about the principle of letting only to those who are legally in the country but about the workability of the measure, whether it places unfair and unreasonable demands on landlords to enforce it and whether it will also cause significant problems and hardship to many others seeking to rent a home.
I understand the concerns that have been raised by landlords because in effect this clause outsources immigration responsibilities to others, including landlords. The Government’s code of practice for landlords—I am grateful to the Minister for supplying it so we could look at it—is supposed to provide safeguards and reassurances when it comes to implementation. I wish it had done so but I am not reassured. I have read through the guidance in the code of practice and it seems to raise as many questions as it seeks to address—the issues have already been raised. It states that landlords should make checks on,
“person(s) with whom you are entering into a contractual agreement … and any adult persons who will occupy the premises under that agreement”.
Can the Minister be precise about exactly who is included in this? The code states that,
“the tenant who is sub-letting will be the responsible landlord for the purposes of this scheme”.
But how will they be made aware of this? Will there not be a loophole for unscrupulous landlords who collect rent via one tenant, thereby evading their responsibilities should there be further sublets? What about the tenant who allows guests to stay, even long term? Will they or will the landlord be responsible? It is not difficult to imagine how those who are not here legally could stay with or even rent from friends without the landlord ever knowing.
The draft code of practice also lists a number of documents which are acceptable—if the Minister reads the list, he will find that there is a mistake in at least one. This includes a passport or a birth certificate, but also a letter from the police confirming that the person has had their documents stolen. Even a UK firearms licence would be acceptable proof to a landlord that a person can rent. A number of documents are listed, many of which will not be familiar to most landlords. How will landlords be able to familiarise themselves with, and understand and recognise, all those documents, including how genuine they are? I think that the Government are trying to be helpful in broadening the number of documents, but what they have done in effect is cause even greater potential for confusion.
One of the Government’s retorts to these concerns has been to say that under employment rules businesses already check a person’s status and do so without difficulty. It is misleading to suggest that businesses, even very small businesses, which are required to undertake employment checks operate on a scale that is comparable to private landlords, some of whom may let only one property—it might even be just a room in a property. Seventy-eight per cent of landlords in the private rented sector own just one property that they rent out.
As we know, employers can make mistakes when acting with the best of intentions. The noble Lord’s former ministerial colleague, Mark Harper, made such a mistake when he found that he was employing a domestic cleaner who was an illegal migrant. He has made it clear that he did his best to undertake the appropriate checks required. He thought that he had done so, but he had made mistakes. Mark Harper was very clear: he had checked his cleaner’s passport; he had checked the documentation—the letter from the Home Office; and he copied them at the time. But more than six years later, when he was taking this Bill through the other place and quite reasonably and responsibly wanted to double-check the information that he had been given, he could not find it, and his cleaner was unable to provide her copies. It was only then, after checking with immigration officials through his private office, that he found that the information that he had been given but could not find was incorrect.
How many landlords can be confident that if they make a similar mistake, they will be believed and not face the penalties and fine? The danger is that some landlords will understandably play safe and ask everyone for their passport, thereby disadvantaging all those without a passport or without immediate access to it. In Mark Harper’s case, the passport and the letter from the Home Office were fake or perhaps belonged to someone else. How many landlords are going to worry about making a mistake and, in some cases, not rent out their room or property at all?
I am also unclear about enforcement. How will it be established that a landlord has acted in breach of their duty and how will the fine be collected? What provisions will be made for landlords who repeatedly and deliberately break the law but pay the fine each time—those unscrupulous landlords whom we want to discourage while encouraging responsible ones? What will be considered sufficient checks, as referred to in the legislation? If we look at what excuses landlords are allowed to use to avoid action being taken against them, we see that they include notifying the Home Office of the contravention as soon as possible, but could this lead to landlords using notification as a shield and then the Home Office being overwhelmed by the number of inquiries that they might receive? Another excuse is based on the premise of landlords understanding the period for which the immigration document is valid or for how long a person has been granted leave, but that is not always straightforward and it can be very difficult to understand that documentation. Under Clause 27, the code of practice, which should set out all the detail about this, is to be laid before Parliament. We have seen the draft and, given that many questions remain, we and the Delegated Powers and Regulatory Reform Committee think that that is insufficient and that the code should benefit from parliamentary scrutiny. That is why we have tabled Amendment 55T to give effect to that.
Baroness Smith of Basildon
I am grateful to all those who have spoken in this debate. The Minister has indeed spoken at some length, and I would like to read Hansard and reflect on some of the comments that he has made.
I have a couple of observations. I think that the Minister said previously, in relation to Clauses 32 and 33 regarding the health surcharges, that, and I paraphrase, he did not want to make nurses and doctors into immigration agents, yet that is what the Government are doing to landlords in this clause. I must admit that he has not reassured me on the effectiveness of the measures in tackling the problems of illegal immigration, which is the process, but neither has he reassured me that it does not place disproportionate and unnecessary restraints and obligations on British citizens and overseas visitors who have a right to be here. I am not convinced that the balance is right or that this measure achieves its objectives.
I think that there is widespread support for a pilot. I will read what the Minister has said, and I know that he has tried to reassure noble Lords that his phased rollouts are the same as or better than a pilot, but they are still a commitment to proceed. The thing about a pilot is that it has to come back to your Lordships’ House to be re-evaluated and looked at. He says that decisions on a phased rollout will be taken in the next Parliament but in fact decisions will be taken in the Bill. As I understood it, he said that a decision would be taken in the next Parliament if there were concerns. I am not convinced that I am satisfied that that fully addresses the point that I was raising about a step-by-step process to see if this works and, if it does not, whether to proceed. The point made by noble Lords around the House today is that they are not convinced about the workability—which is a word—of these measures, and that they would want to be reassured before the measures went ahead. An individual pilot would do that. I shall look at exactly what he said and reflect on it.
The Minister has made clear the Government’s view on the issue of unlawful discrimination, but whether the measures proposed fully address it has yet to be proved. I think that the Government are right to reflect on the detail of the higher education further exemptions and look at bringing forward a better amendment.
I return to the issue that was not really addressed to my satisfaction: victims of domestic violence who may not have the appropriate documents. The Minister skated over that. We are talking about people who may have left their home in a hurry and do not have the available documents but are legal citizens and have the right to be here. I still think that they are placed in the most difficult positions if they are not able to rent.
My noble friend Lady Lister made a point about lodgers. She gave the example of the bedroom tax, where the Government have advised people to take lodgers. Those people will be subject to the provisions of this Bill and could find themselves facing a fine because they have not complied with it, even though they were told by the Government to take in lodgers and now much more onerous conditions have been put on that.
I ask the Minister to reflect on the conditions here. I notice that item 10f in list A of acceptable documents in the draft code of practice for landlords is simply a full stop. I am sure that that is not a document that the Government require. Obviously the documentation has some work to be done.
I am not entirely satisfied. I appreciate that the Minister has made an effort and taken a great deal of time to try to address all the points. I will read what he said in Hansard and reflect on the comments that he has made. For now, though, I beg leave to withdraw the amendment.
Immigration Bill
Baroness Smith of Basildon Excerpts(10 years, 2 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, although there are other speakers in this debate, I am rising early because I have a number of questions and I thought it would be helpful to give the noble Lord time to seek inspiration to respond to them.
As we have heard, Clause 3 amends the Immigration Act 1971 to ensure that in certain circumstances, that is, where removal is scheduled for the next 14 days, the Home Secretary must consent before a person is released on bail. It also amends the tribunal procedural rules to prevent repeat bail applications in the absence of a material change in circumstances, as we heard from the noble Baroness, Lady Hamwee. Our Amendment 18 is very specific. It specifies:
“In deciding whether to give consent to bail, the Home Secretary will consider whether the applicant is pregnant”.
Matters have not been very clear so this is a probing amendment. We chose the issue of pregnancy but we could have chosen anything else. The reason for tabling this amendment is more general. We are seeking clarification as to when the Home Secretary will approve bail, and what additional considerations will be taken into account.
Reading the clause and reading the debates that took place in the other place, it seems that there is a lack of clarity about what is intended by this clause. We understand that shortly before a person is due to be removed, there is a higher risk of absconding, and that it is right that in those circumstances bail should not be granted when the risk of absconding is high, unless—as the Government state at present and in the Bill—there are exceptional circumstances. The government statement of intent says:
“If the immigration judge considers that there are exceptional circumstances that mean an individual should be granted bail, despite removal being imminent, the Secretary of State will give serious consideration to release”.
Then it cites possible examples, including persons who are recently bereaved or have complex medical requirements.
It would be interesting to know what other circumstances the Government envisage here and to hear other examples of issues that should be considered by the Secretary of State when bail is being granted. We have proposed that one of them is being pregnant but I assume that the Government have other issues in mind. We have heard about mental health examples. That is one that came to mind, as well as primary care givers for young children or where somebody is dying. I appreciate that the pregnancy one is a narrow example. I am trying to understand how the government proposal works in practice and whether it will be effective or make any difference at all. For example, I should have thought that the risk of somebody absconding is something that the tribunal would take into account at the moment, as with bereavement and complex medical needs. What additional factors would then be taken into account by the Secretary of State that are not currently taken into account by the tribunal? If there are matters that should be taken into account by the tribunal but are currently ignored, should not the tribunal rules or the guidance be amended?
Under the Bill, the final decision would rest with the Secretary of State, so it is important to understand how and according to what factors and processes she—or perhaps in future, he—will make her decision. I found the debate in the other place in Committee quite helpful. The Minister there, when asked on the above point what other considerations would the Secretary of State take into account, said:
“The Secretary of State will consider the same factors as a tribunal, but she has ultimate responsibility for enforcing immigration action”.—[Official Report, Commons, Immigration Bill Committee, 5/11/13; col. 165.]
If no new factors are to be considered, why not leave the decision with the tribunal? It would be helpful to hear and understand the evidence showing that this measure is necessary, and showing how it would make a difference. Will the Home Secretary re-examine the evidence put before the tribunal, or will she exercise her power on other grounds even though that is not what the Minister, Norman Baker, said in the other place? It would also be helpful to understand the cost implications of any challenge to the Secretary of State’s decision. Again, the Government’s statement of intent says:
“Legality of detention will still be challengeable by way of judicial review or habeas corpus applications”.
However, given that the Secretary of State will exercise the power in this clause only when the immigration judge has said that there are exceptional circumstances that mean that an individual should be granted bail, if there is no clarity about the grounds on which the Home Secretary is making her decision, does that make a legal challenge more likely?
Further, given that a case of unlawful detention, if it were brought, would be heard in the High Court, is there not a danger of it becoming more expensive and more time-consuming, and causing more delays and imposing more costs to the taxpayer, than the fairly simple decision of whether to grant bail? The Government say that the current system costs money. That is one of the reasons for introducing the new measure. What consideration has been given to the possible costs of challenges under this system? My colleague Helen Jones asked this point in the Commons and the Minister, Norman Baker, did not really address the point, so it would be helpful if the Minister was able to respond today.
Leaving costs aside, what about those who cannot afford a judicial review claim? What will their recourse be if they believe a decision is wrong and the Home Secretary has overruled the immigration judge? Let us be clear: this matter goes to the Home Secretary to refuse an application for bail only if the immigration judge has said that there are exceptional circumstances in which bail should be granted. Therefore, I am still somewhat confused about whether the Home Secretary will take into account matters other than those considered by the tribunal and the immigration judge. Norman Baker says that she will not, but that raises the question about the evidence base for this change. From the response of Norman Baker in Committee in the other place, it appears that the Home Secretary could be making a political decision in overruling the immigration judge. There must be a concern that the decision-making process is therefore open to greater and more expensive legal challenge.
In trying to understand the clause, it would be helpful to clarify whether, when a bail applicant is told of a bail decision, they will be told whether the decision has been taken by an immigration judge or the Home Secretary. If they are not granted bail, will they know that in some circumstances that may have been a decision where the Home Secretary has overruled the immigration judge who has said that there are exceptional circumstances? Will the applicant know what the process is in that case? If, as Norman Baker has said, no new factors will be taken into account, the question will be whether the decision has been taken on the facts, or whether it has been taken on political grounds. Unless it is absolutely clear what criteria the Home Secretary has used, surely that could make it far more likely that those decisions will be legally challenged.
I am genuinely trying to fully understand why the Government are bringing forward the change. What difference will it make, if there is no difference in the criteria looked at, and what are the cost implications of what could be an increase in the number of judicial reviews? I have read the debate in the other place and the material that the Minister and the Government have provided, and these questions remain outstanding. It would be helpful if the Minister could provide some clarity on these points and the reason for this clause.
Baroness Smith of Basildon
I am grateful to the Minister for addressing the amendment, but he will know that that was not the substance of the questions that I asked. It was used as an example to raise two issues, the first being the criteria that the Home Secretary would use and the second, significantly, whether an individual who had had bail denied would be told whether the Secretary of State had overruled the tribunal judge. The amendment was just probing. If the Minister could address the questions that I asked, I would be grateful.
Lord Taylor of Holbeach
I was about to go on to develop the theme based on the noble Baroness’s example. I cannot give an exhaustive list of the circumstances where the Secretary of State might consider it right to intervene, but examples which we have already given in the statement of intent are good ones. Mental health and family bereavement are examples of such circumstances which I hope the noble Baroness will understand. We expect the power to be exercised in a relatively small number of cases.
Baroness Smith of Basildon
I think the Minister has missed the point that I made. I was probing not what the exact examples would be but the criteria that the Secretary of State would use given that she will have the ability to overturn a decision by a tribunal judge. In the other place, Norman Baker said that there were no other grounds that she would look at, yet that begs the question about it being a political decision. What grounds will the Secretary of State use if she decides to overturn the decision of a tribunal judge?
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 Lister of Burtersett
My Lords, as a member of the Joint Committee on Human Rights, I speak in particular to Amendment 27. At Second Reading, the Minister included in his list of myths surrounding the Bill that it undermines access to justice. The Joint Committee therefore looked again at this question. As the Minister may be aware, we published a second scrutiny report today. We write:
“We have considered carefully the Government’s argument that the right of effective access to a court or tribunal in immigration and asylum cases will be preserved by a combination of the continued availability of full appeals in cases concerning fundamental rights, the new system of administrative review, and the availability of judicial review, and its argument that the practical effectiveness of judicial review will not be affected by the proposed reforms to legal aid and judicial review itself. We do not share the Government’s confidence”.
We go on to say:
“We have already reported our concerns about the implications of the proposed residence test on effective access to justice. We have also inquired into the Government’s proposed reforms to judicial review and we will be reporting our conclusions in due course. For present purposes it is sufficient to say that, while we accept that it is a perfectly legitimate objective for the Government to seek to reduce the risk of unmeritorious claims being brought, we do have serious concerns about the effect of some of the Government’s proposed judicial review reforms on the practical ability to bring meritorious challenges to decisions, including in the immigration and asylum context … We also draw to Parliament’s attention the paradoxical fact that after years of seeking to reduce the number of immigration and asylum judicial review cases that have been causing backlogs in the High Court, including by transferring such cases from the High Court’s jurisdiction to the Upper Tribunal, the Government is now seeking to justify a significant reduction in appeal rights by reference to the continued availability of judicial review … In light of our concerns, we recommend that the removal of appeal rights for which the Bill provides should not be brought into force until Parliament is satisfied that the quality of first instance decision-making has improved sufficiently to remove the risk that meritorious appeals will be prevented from being brought”.
In other words, we express the spirit of Amendment 27.
Going beyond that, and speaking in a personal capacity, I also support my noble friends in their opposition to the question that Clause 11 should stand part of the Bill.
Baroness Smith of Basildon
My Lords, I speak to our Amendments 27 to 29, and to the question that the clause stand part of the Bill. We have heard examples from the noble Lord, Lord Hannay, and my noble friend Lady Lister of why we consider this clause one of the most controversial in the Bill.
The Government have made it clear that the clause reduces the number of immigration decisions that can be appealed from the current 17 to just four. Only three types of decision will remain appealable: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information could not be challenged before a tribunal. Instead, the Government’s plans are that an administrative review system be set up to, according the Government’s fact sheet on the clause,
“provide a proportionate and less costly mechanism for resolving case working errors”.
We can all sign up to a process that gives timely, accurate decisions with a swift process to address any errors. However, taken in context, that is not what this clause does. We have therefore tabled a number of amendments, and have given notice of our opposition to the clause standing part of the Bill. Often, clause stand part debates are used as a kind of probing amendment, a technical way of ensuring discussion on the principle of the clause or an attempt to tease out the detail and address questions. We will be doing that with this clause. However, I also say to your Lordships’ Committee that removing the clause entirely would be our preference given the current position. Failing that, our Amendment 27 would ensure that appeal rights could not be abolished until the quality of Home Office decision-making for managed migration is deemed by the Independent Chief Inspector of Borders and Immigration and the Secretary of State to be efficient, effective and fair. That would require that the provision be introduced by order subject to affirmative procedure; that is also the position of the Joint Committee on Human Rights.
We have also tabled Amendments 28 and 29 to introduce two new clauses. Amendment 28 would require the Secretary of State to undertake an impact assessment before being able to commence the clause. The issue of students, as raised by the noble Lord, Lord Hannay, would be relevant to Amendment 28. Amendment 29 would require the Secretary of State to undertake a review of the number of people successfully deported within a calendar year of a decision under Clauses 11 to 14.
We have tabled those amendments because of deep concerns about the clause. Our country has one of the most highly respected judicial systems in the world, and the right to appeal is a fundamental principle of British law. There can be few decisions more important, or which have a greater impact on an individual or community, than who is able to live here. These are decisions of life and livelihood which affect families, communities and, potentially, businesses and employers.
The noble Lord, Lord Hannay, has highlighted the situation with students. Other noble Lords are concerned about the position of families and children. However, we are looking at the wider concerns and principles raised by the Bill. The evidence, and the impact on businesses and the economy, make it very important that we get these decisions right. It is right that such a decision should be challengeable and that recourse should be available.
Water Cannons
Baroness Smith of Basildon Excerpts(10 years, 3 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, it is a tragic irony that we are discussing water cannon at a time when significant parts of the country are desperate for water pumps. However, I congratulate the noble Baroness, Lady Jones, on securing this timely and relevant debate as the Mayor of London is currently undertaking what some would call a consultation, and he calls an engagement, on the use of water cannon in London. Water cannon have never been used in London or anywhere else in England, Scotland or Wales. But, as we have heard, they have had some use in Northern Ireland at times of extreme and violent disorder as an alternative to AEPs—attenuating energy projectiles or baton rounds—or at a stage before employing AEPs to try to avoid doing so. I understand that although the use of cannon is an operational decision by the police, the Home Secretary has to license their use in other parts of the UK before the police can purchase them or decide whether it is appropriate to use them.
The London riots of 2011 led to some consideration of whether water cannon could be used in similar circumstances. The Mayor of London, Boris Johnson, has written to the Home Secretary saying that he is,
“broadly convinced of the value of having water cannon available to the MPS”.
He then states that he will undertake a “short period of engagement”, to confirm support in London. He adds:
“Should the engagement plan reveal serious, as yet unidentified, concerns I will, of course, take these into consideration and share them with you”—
the Home Secretary—
“before you make any decision to license this non-lethal tool”.
However, if we look at the views of ACPO in its useful report of 8 January 2014, in reference to the safety of water cannon, ACPO relies wisely on the evidence from the independent Science Advisory Committee on the Medical Implications of Less-Lethal Weapons. The term “less lethal” is used, as opposed to the “non-lethal” used by the Mayor of London, because ACPO accepts,
“that water cannon are capable of causing serious injury or even death”.
ACPO also stresses the training and experience of officers and that there have been no reported injuries when used by the PSNI.
I am not going to be alarmist over their use. I appreciate that they do not have to be used at full velocity and that officers are trained to use the cannon in different ways, from full jet to a diffused spray as a mist. I also know that to avoid medical problems, bizarrely, the water has to be heated before it can be used from a water cannon. However, I question why the mayor has informed the Home Secretary that this is a non-lethal weapon when ACPO clearly advises that it is less lethal. There is a difference. The risks may be minimal, but they must be accurately weighed up and taken into account.
However, other noble Lords have raised the crucial question for this debate: why would the Mayor of London want to deploy water cannon in London? I find the circumstances in which ACPO indicated that they might have been used extraordinary. I am very pleased to note that my noble friend Lord Harris referred to the Daily Telegraph as his source of information. I confess that I got the same quote from the Guardian. It could even have been in the Daily Mail. However, the newspapers clearly accurately report the ACPO justification for asking for water cannon because of the need to police protests resulting,
“from ongoing and potential future austerity measures”,
which was exactly the comment that raised concern with me.
Do the Mayor of London and the Government really anticipate that their policies will cause such widespread civil and violent disorder that there will be no alternative but to douse protesters with water? Apparently so, according to the Home Office spokesperson. In the same newspaper, possibly also in the Telegraph, they said:
“We are keen to ensure forces have the tools and powers they need to maintain order on our streets. We are currently providing advice to the police on the authorisation process as they build the case for the use of water cannon”.
While admitting that the use of water cannon has little effect on the kind of fast, agile disorder that we have seen in London, the report gave examples, as previously referred to, of when they could have been used. One was the Countryside Alliance march of 2010. I bow to the superior policing knowledge of my noble friend Lord Harris and the noble Lord, Lord Paddick, and I am no particular fan of the Countryside Alliance given its obsession with fox hunting, as noble Lords will know. However, the idea that the Met, on that occasion, could have used water cannon against members of the Countryside Alliance would have done absolutely nothing to improve the perception of some on that march that it was a town versus country issue.
I cannot see how it would in any way have improved relations in the city to use water cannon on that occasion, or indeed during the student protests last year. There were those who behaved appallingly and dangerously, and there were some who behaved violently but it was a long way from the kind of violent disorder that we saw when cannons were used in Northern Ireland. For example, at the protests at Whiterock and the Ardoyne in 2005, the police were under fire from live rounds, cars were being set on fire and missiles were being thrown. That is a very different situation from those we have seen in London, whether with students or the Countryside Alliance. The scenes of protest seen in Brazil recently travelled round the world in real time. Following the Belfast protests last year, there was a huge fear of their economic impact and of an international reputation being destroyed. What impact would it have around the world to see London under siege and cannons being employed? What would be the impact on the economy of London, or on our visitors and tourists?
As the noble Baroness, Lady Jones, said, the costs are well documented: you do not buy cheap cannons. However, the Mayor of London has indicated that although the Home Secretary has declined to contribute to the costs, he will find the money should she license the use of the cannon. Initially, there was some expectation that other police forces would have wanted to contribute to the costs of police cannon. That now seems unlikely. Already one police chief, as we have heard, said that they would be,
“as much use as a chocolate teapot”,
for quelling disorder and there was no support from five of the six largest forces in the country with the PCCs for Greater Manchester, West Yorkshire, Merseyside and Thames Valley all rejecting the plans. It therefore seems highly unlikely that they would be willing to share the costs.
Tony Lloyd, the PCC for Greater Manchester, remains sceptical. He said:
“No convincing argument has been made about how water cannons could improve policing or community safety … Before we moved anywhere close to using them on our streets, there would need to be a full and proper public debate about when they would be used, how they would be used and why they would be used. For example, they would have been completely ineffective on the streets of Manchester and Salford during the 2011 riots”.
The chief constable of Greater Manchester, Sir Peter Fahy, is in complete agreement with Tony Lloyd on that issue. Jane Kennedy, the PPC for Merseyside, where Sir Bernard Hogan-Howe once served, was also dismissive. She said:
“The chief constable, Jon Murphy, and I have considered the use of water cannon”—
so they have considered it—
“and believe them to be of limited value for Merseyside. I would not want to see precious resources diverted to purchase such vehicles when their value is yet to be proven”.
There is little support outside London on operational grounds.
The Mayor of London and ACPO have failed to convince their colleagues across the country that involving water cannon in policing demonstrations against the Government is a good use of resources. There are now 3,000 fewer police officers in London than when the Government took office and I wonder whether local police officers think that water cannon is the better use of police resources in those circumstances. London is a wonderful capital city. Like all cities, it has its problems but, in terms of policing priorities, I have not been convinced yet by the arguments put forward that water cannon are the answer. If the Home Secretary is to grant a licence and if the Mayor of London wants to use Londoners’ money to buy water cannon, the case needs to be far stronger than it is at present.
Hillsborough
Baroness Smith of Basildon Excerpts(10 years, 3 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, I am grateful to and thank the noble Lord for repeating the Statement of the Home Secretary. It is very helpful for your Lordships’ House to be updated on the process and on progress being made. I also welcome the fact that the Minister reiterated the apology. We add our tribute to the families, survivors and all those who have had to campaign for the truth and for justice.
Twenty-five years later, as the new inquests begin, the families will have to relive that day, in granular and sometimes very graphic detail for each of the 96. It is necessary to establish the precise details and the truth but it will be traumatic. What action will be taken across government to ensure that counselling support is made available to the families having to attend the inquests?
I listened to the Statement in the other place and I should like to probe further one issue that was raised. The Minister will be aware of the concern of the families and the campaigners for justice that they were subject to undercover surveillance, not exclusively but including their phone calls being intercepted. The Home Secretary was unable to confirm or deny those fears in the other place. The Minister will recall discussions that we had on covert surveillance during the Anti-social Behaviour, Crime and Policing Bill and the need for independent oversight following the experience of my noble friend Lady Lawrence. Given the circumstances, will the Government reconsider whether in this case it would be appropriate, because it is relevant to the inquiry, for any and all information relating to surveillance to be made available, including whether any requests were made to the Home Secretary? I am sorry to press the Minister further on this, but I know that he will understand the depth of feeling on this issue.
The Minister will also understand the anger over so many of the police and witness statements being altered. Presumably, that was to hide the truth so that they could not get the facts of what really happened on that day. It is vital that those who gave witness statements at the time feel able to come forward and verify their statements or take action to put the record straight if their statements were changed. What message or reassurance can the Minister give to those witnesses to encourage them to come forward? To paraphrase the words of the Home Secretary, we need these statements because we need to get to the truth in order to ensure justice.
Immigration Bill
Baroness Smith of Basildon Excerpts(10 years, 3 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, I am grateful to the Minister for his explanation of the Bill and for meeting me, my noble friend Lord Rosser and the former Immigration Minister last week. We know that there is considerable concern about immigration and we appreciate that at times its pace has been too fast. The duty of government is to manage immigration in a way that is fair and just to citizens and fair and just to those who wish to live and work in the UK. Even though we support some of the measures in the Bill, it does not tackle the issues that could really make a difference and are of the greatest concern. A number of the measures fall in what could be called the realm of unintended consequences in that they have a significant and disproportionate effect on law-abiding British citizens, legal visitors, and visa holders who are an asset and contribute positively to the UK.
The Government’s policy of managing and reducing migration is deeply flawed. Their net migration target is a measure for success, but does not target the right things. It means that highly qualified UK professionals who leave to work abroad are classed as a government success. Fee-paying students, including those studying for doctorates and undertaking valuable research, who no longer come to the UK but now pay fees to study and develop research in other European countries, are also classed as a success. That is not our definition of a successful, well managed immigration policy. It is not just about numbers. It is about people and the contribution that they make, and also our international humanitarian obligations, such as in the case of Syrian refugees fleeing horror, torture and rape.
We are in total agreement that we need to tackle illegal immigration. We need to do more to ensure that foreign criminals are deported, but illegal immigration is getting worse and the Government appear to have been remarkably lax in tackling it. Just last week Judge Richard Bray said that the Home Office and the Border Force were “hopelessly undermanned”, which had led to an Albanian national who, having been convicted of drugs and violent offences, was imprisoned and then deported three times on three separate occasions—and yet each time he returned to the UK to reoffend.
That is where real, determined and effective action needs to be taken. The number of foreign criminals deported has fallen by more than 13%, from 5,471 to 4,700. Between 2011 and 2012 the number of businesses fined for using illegal workers plummeted by nearly half, from 2,269 to just 1,215. So under this Government the number of people stopped from entering the UK at our borders has halved, the number of people removed for breaking the rules is down by 7%, and only half as many businesses have been fined for employing illegal workers. Either the extent of the problem has been vastly reduced under this Government or they are incompetent in managing our borders and addressing the problem of illegal immigration.
The response of the Government is not to look at tackling the problem at source. It is not to seek in this field to manage borders effectively and combat people trafficking. It is not to examine whether the Government have deployed adequate resources or made cuts to the bone, making it harder for immigration officials to do their jobs. The Government’s response is this Bill. It is in effect to outsource their responsibility for illegal immigration to landlords and nurses, for example. We have said time and again that the Government’s focus in dealing with immigration is wrong and ineffective on illegal immigration. That leads to greater exploitation and abuse of migrants, has a far greater negative impact on the UK as a whole and undermines public confidence. So while the Government have deliberately presided over a massive fall in the number of university students paying to study in the UK, students who contribute intellectually and financially, they have been totally ineffective in tackling the shocking abuse in student visitor visas, as highlighted in tonight’s “Panorama” programme.
There are real concerns about some of the measures in the Bill but we have grave concerns about what is not in the Bill. Where are the measures that would really make an impact on illegal immigration? Where are the measures to protect workers from being undercut on wages or being put at risk from lax working conditions, or from gang masters exploiting the weak and desperate to work?
We welcome a sensible debate about managed migration and immigration and its impact on the lives of citizens and migrants. Where measures are sensible they will have our support. For example, we all want to see stronger action against sham marriages. We will apply three tests to the Government’s proposals. First, we will look at the evidence base for the proposals that the Government are bringing forward. Secondly, we will look at the practicality, workability and proportionality of the proposed measures. Thirdly, we will look at the effectiveness and impact of those proposals, including on the wider population. For example, the Government claim that their measures to tackle illegal immigration by in effect co-opting landlords as immigration officials will reduce the housing available for illegal immigrants and therefore increase the number leaving the country. However, they also admit that the costs exceed the benefits that they can quantify and they have no idea how many illegal immigrants would be affected. They have no idea whether there would be any impact on the number of homes available to rent.
The Bill is clear that landlords should not act in a discriminatory way. How is that going to work in practice? Most landlords already undertake checks. The Residential Landlords Association fears that:
“Landlords will have to cover their backs and avoid accusations of discrimination by examining identity documents of all potential tenants”.
Will all potential tenants need to have a passport with them? What about the 17% of British citizens who do not have a passport? What other documents will be acceptable? How will landlords know what documents they should use and recognise? What about the woman fleeing a violent home who does not have access to any documentation to prove her citizenship? What about students who, although studying here legally, will be unable to present their passports to prospective landlords until they are in-country but need to arrange accommodation before they arrive?
As conscientious as law-abiding landlords will be, the Government know that it is possible to get it wrong and make a mistake. When the Minister, Mark Harper, employed his cleaner, he was confident that he had undertaken the appropriate checks on her nationality. He is an intelligent man. He knows the law and would have done his utmost to comply with it. But he made a mistake. He got it wrong. How many landlords could make a similar mistake? If the Immigration Minister can so easily get it wrong, how can the Government possibly think that each and every landlord in this country, whether renting 100 properties or, to echo the point of the noble Lord, Lord Cormack, just one, is qualified to act as an immigration official? Good legislation has to work in practice, which is why we will table amendments for a UK-wide pilot to be undertaken and will forensically question the Government on this and other measures.
Clauses 33 and 34 on health are narrower than the Government’s spin doctors have implied, and indeed narrower than what the Government have already produced proposals on, including charging for access to GPs to tackle what Ministers call “health tourism”. These proposals are more limited but still require further examination. Clause 33 makes provision for a new charge as a condition of certain visas and Clause 34 redefines who is liable for charges—that is those without indefinite leave to remain.
The principle that visitors to this country who are not entitled to free healthcare can be charged by the NHS is already established but, according to the Bill, the money collected via the visa system does not go directly towards NHS healthcare but to the Consolidated Fund. The Minister said that it would go to special projects. I do not know whether the Government will be bringing forward an amendment to that effect. Bizarrely, this could lead to greater costs and less income for the NHS if you take into account that a number of those would pay or have insurance. The Government now intend to replace this with a visa charge that will not do direct to the NHS. It would be helpful to develop further in Committee how that charge will go to the NHS and what it could be used for if it cannot be used for their treatment. Will redefining those liable to pay mean that those legally working in this country and paying taxes will also have to pay for healthcare? There are a number of areas to probe further in Committee on access to services.
There are two further issues I wish to raise with the Minister today. The first is in Part 2. Clause 11 removes the right of appeal for First-tier Tribunal cases. We know the system is a mess. Successive reports from the Home Affairs Select Committee and the Independent Chief Inspector of Borders and Immigration have highlighted problems. There are serious delays and the quality of decision-making is poor. The most recent statistics reveal that 32% of deportation decisions and 49% of entry clearance decisions were successful appealed last year. These are cases where the Home Office got it wrong, but instead of trying to address the initial decision-making problems, the Government are now seeking to remove the right to appeal these wrong decisions. I think the Minister said that they want to get it right the first time. That is right, but what happens is that the Government do not like losing appeals so they want to abolish them. If we get decisions right the first time, there would be no need for so many appeals. Given that the Government’s own estimate of the cost of the new system of judicial review that they seek to put in place is around £100 million, would it not be better to put more effort and resources into getting the initial decision right?
When this Bill was debated in the other place, just 24 hours before Report a new amendment was tabled by the Government, which has now become Clause 60 of this Bill, on deprivation of citizenship. Currently, Governments can remove citizenship from individuals in certain circumstances but only if they have citizenship of another country so that they are not left stateless. The Government’s new proposals remove that condition so that the Home Secretary can deprive a naturalised citizen of their citizenship if the Home Secretary is satisfied that it is conducive to the public good as that person has conducted themselves in a manner prejudicial to British interests.
We accept that there can be a problem with those who become naturalised British citizens as adults and then abuse that right and may not even live in the UK, but there are serious questions, including those about the impact on national and international security, that must be addressed as it is a very extensive and significant power to give to a Secretary of State. We will table an amendment that this clause should include judicial oversight.
Our approach to this Bill will be to support sensible, practical measures. We will question those measures that appear ill thought out, unworkable or place disproportionate burdens on law-abiding citizens without seriously addressing the real problems. We will suggest improvements where we consider the measures proposed are fundamentally flawed and we will propose new measures that really could help tackle problems of illegal immigration. I hope that the Government will listen.
Citizenship (Armed Forces) Bill
Baroness Smith of Basildon Excerpts(10 years, 3 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, I think that the noble Lord, Lord Cormack, is right to say that the Bill will receive unanimous support across your Lordships’ House. We certainly welcome the Bill and join other noble Lords in congratulating Jonathan Lord and the noble Lord, Lord Trefgarne, on bringing it forward to your Lordships’ House. In addition to its content—which, rightly, has widespread support—the Bill has the advantage of being short and very clear and precise in what it seeks to do. Such clarity of purpose is very welcome in a Private Member’s Bill. I also join in the tributes to members of our Armed Forces. The right reverend Prelate the Bishop of Wakefield and the noble Lord, Lord Cormack, spoke with eloquent passion on that issue, and I concur with the comments they made.
We all read and see reports of the activities of those who serve in our Armed Forces, both at home and abroad, but it is really only by talking to them and their families that we can fully appreciate the extent of the work they do and the sacrifices that they and their families make. We welcome the Bill. The principle enshrined in the Armed Forces covenant—that no member of the Armed Forces should face disadvantage as a result of their service—is a very important one. We must also recognise that to fulfil that commitment to our service men and women, they will at times receive special and different treatment to ensure that they do not face discrimination or disadvantage. That principle has our total support. It is also right that it should apply to those who serve and apply for British citizenship.
I know that in the other place they had lengthy debates, which I have read, and they looked at all the potential problems with the Bill; but there are none. Although I do not think that that kind of debate will be necessary here, a couple of outstanding matters were raised in the other place which I do not think were addressed by the Minister, Mr Harper. Perhaps the noble Lord can help with those, either today or in writing.
First, can he clarify the numbers? Government immigration policy has been largely based on numbers—for example in respect of net migration and immigration —but the number of people who will be affected by the Bill is not very clear. I think the noble Lord, Lord Trefgarne, said there will be no impact on numbers, but the estimates that I have seen from looking at the debates in the other place range between 100 and 300. It is slightly unclear. It may be that there is no reliable estimate—I have no difficulty with that—and that the strength of the case of those who are serving in our Armed Forces and wish to become British citizens is enough in itself. However, if there is any reliable estimate of numbers, that would help your Lordships’ House.
The second point was a specific example raised by both Diana Johnson and Steve Reed, my honourable colleagues in the other place. I am aware of the general point, and the Minister may be too, but I will put it to him and hope that he can help me, even if it is in writing after today’s debate. If the length of service is cut short by a military injury or due to an injury sustained while serving in HM Armed Forces an individual cannot fulfil all the criteria required for citizenship, although in both cases he or she would have done so without such an injury, would they still be granted citizenship? It is a matter that can be addressed in guidance, and I do not intend to hold up the debate in any way, but I would be grateful for the noble Lord’s assurances on that point.
We agree that foreign and Commonwealth citizens who serve this country in the Armed Forces should not face disadvantages for doing so when applying for British citizenship. We are pleased to support the Bill.