Relocation of Migrants in need of International Protection (Opt-in Decision)

James Brokenshire Excerpts

Monday 14th December 2015 Commons Chamber

[The Minister for Immigration (James Brokenshire)]

I beg to move,

That this House takes note of European Union Documents No. 9355/15 and Addendum and No. 11132/15, international protection for the benefit of Italy and Greece, No. 11843/15 and Addendum, establishing a crisis relocation mechanism, and No. 11844/15 and Addendum, international protection for the benefit of Italy, Greece and Hungary; and agrees with the Government’s decision not to opt in to proposals establishing provisional measures for the relocation of individuals in need of international protection or to the proposal establishing a crisis relocation mechanism.

The motion covers a series of EU proposals on the relocation of migrants within the EU. They formed a central part of the EU’s summer response to the ongoing migration crisis and have been the subject of long negotiations within the EU and of previous debates in the House.

The current migration crisis has been described as the worst refugee crisis since world war two. It has severely tested the ability and resolve of the EU and member states to provide a comprehensive and sustainable response that is able to support member states under the most pressure and ensure protection for those in real need of it. The situation has been and remains complex and fast moving. Proposals have been brought forward and adopted extremely quickly; at times, Interior Ministers have met almost weekly, and as soon as proposals were adopted, they were often superseded by others.

Since the crisis began, the Government have been clear about our views on relocation: it is the wrong response. It does absolutely nothing to address the underlying causes of the crisis and does nothing more than move the problem around Europe. Relocation also reduces incentives for member states to tackle abuse, process applications and strengthen their borders. It may also encourage more migrants to travel illegally to the EU. We must ensure that the permanent relocation proposal does not reduce the obligation on all member states to have fully functioning border and asylum systems.

The Government have consistently stated that the UK would not opt in to measures, whether temporary or permanent. I apologise to the House for the fact that we have had to override scrutiny on these relocation measures. The European Commission brought forward proposals on relocation as a response to an emergency situation. The Prime Minister and Home Secretary were required to make the Government’s views on such measures clear in hastily arranged EU Council meetings.

The debates on relocation continue within the EU. Only a tiny number of people have been relocated under the agreed temporary measures and many member states are now stepping back from their previous commitments. Concern is growing about the merits of the permanent mechanism.

[Mr David Nuttall (Bury North) (Con)]

Does my hon. Friend agree with the position of Slovakia? It believes that the decision should have been taken by unanimity.

[James Brokenshire]

Obviously, we are not party to the arrangements as we are using our opt-out. My hon. Friend highlights some of the issues that have arisen since the measures were put into place. I am aware that Slovakia and Hungary have recently filed legal challenges in the European Court of Justice against the relocation scheme. There are relevant concerns. In our view, the proposals are ill conceived and many more now question the viability of relocation as a tool to manage the migration crisis.

[John Redwood (Wokingham) (Con)]

I strongly support the Government’s decision to opt out. Will the Minister explain something? Under the scheme that was agreed, if migrants were allocated a given country to settle in but then decided they would rather live in another EU country, what would stop them from moving?

[James Brokenshire]

My right hon. Friend has highlighted what might be described as secondary movement, and we remain conscious of that. Obviously, there is secondary movement within the Schengen area, but we maintain our own border controls and visa requirements. Practical issues with the scheme have been highlighted; to date, only about 160 people have been relocated under the measures thus far.

Rather than relocating those arriving in Europe, the Government have made clear that our policy is to focus our efforts on resettling vulnerable people in need of international protection. We continue to make the case that this is not just an EU problem but an international issue requiring concerted action from a whole range of international parties.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

Is not the problem on secondary movement the fact that once migrants have become citizens of an EU member state, the free movement of people means that they are entitled to go anywhere? Even under our own laws, asylum seekers go to the head of the queue in getting nationality.

[James Brokenshire]

My hon. Friend makes an important point in respect of rights and entitlement to citizenship, but he will know that there are certain tests that we adopt—good character requirements, for example—and other steps that we take to assure ourselves in respect of those who may be granted citizenship, and that that process is conducted over a number of years before someone would be so entitled. Citizenship is certainly not automatic. I underline the point that I made—we maintain our own visa and border requirements in respect of those who come here, and adhere to them clearly for those who are not EU citizens.

[Kelvin Hopkins (Luton North) (Lab)]

There is another problem that arises before secondary movement. What if the refugees do not want to go to the countries to which they have been allocated? If they are put on trains and forcibly sent to countries that they do not want to go to, that has echoes of uncomfortable times in the past.

[James Brokenshire]

The hon. Gentleman makes a valid point about the operation of the scheme. That has been a practical issue for EU member states that are party to the scheme when migrants have displayed an unwillingness to participate in the relocation arrangements envisaged by the measures to be debated this evening. Such practical issues have to be confronted.

The migration crisis is constantly changing and requires a flexible but robust response. Our approach has been designed to protect the UK interest while making a contribution to helping those in need and addressing the unprecedented challenge faced by our partners. Relocation is not proving to be successful. In our view, time would be better spent on measures that would make a real difference. We must secure the external border, quickly provide protection to those who need it and return those who do not. That is where the focus of this Government will remain, and I trust that the House will be minded to support the motion.

--- Later in debate ---

[Sir William Cash]

It is indeed. I always want to encourage the Government to do better, but on this occasion they have done a lot worse. The delay in scheduling opt-in debates is inconsistent with the letter and spirt of the commitments made to Parliament by the Minister for Europe. I would be grateful if the Minister for Immigration would deal with that, because he owes not only the European Scrutiny Committee, but, much more importantly, the House and this country’s voters an apology for the way in which it has been dealt with. I am sure he will give that apology; perhaps he would like to do so now. Is there a chance that he might? Is he listening to what I am saying?

[James Brokenshire]

I am grateful to the Chair of the European Scrutiny Committee for allowing me to intervene on him. As I said when I gave evidence to the Committee, the Government have had to deal with a fast-moving situation, and, as I have already indicated today, we are sorry that it has not been possible to have the debates in the way we would have chosen to have them, but that is a reflection of the exceptional circumstances with which we have been dealing. There have been opportunities for debates and to respond to questions by way of statements, but that is the situation to which we have been seeking to respond.

--- Later in debate ---

[James Brokenshire]

We have certainly heard a number of important points, which in some ways have strayed more widely than the measures in the motion before the House and which may also arise in the debate to follow.

We will continue to work with European partners to develop and implement a sustainable and comprehensive solution that allows people to live fulfilling lives in their home countries or in countries of first asylum. Intra-EU relocation should not, in our judgment, be the response. The Government have been clear that the UK will not take part in it and have urged the EU to concentrate on actions that address root causes, control illegal migration and tackle abuse, not just actions that respond to the consequences of large-scale spontaneous migration. We have also been clear that, despite weaknesses in the Dublin arrangements, which we agree need reform, their underlying principles remain sound, with member states taking full responsibility for the effective functioning of their own border and asylum systems.

In our discussions with the EU we have been measured and constructive, while promoting and defending UK interests. Our approach reflects the need for a concerted humanitarian response for those who need our protection. On the issue of solidarity, let me underline the front-line and other support that this country has given through the European Asylum Support Office, Europol, our search and rescue operations, our support for the common security and defence plan and our approach to resettlement, as well as the aid assistance that has been provided. Underpinning all that work is the idea that measures should not undermine the principle that asylum should be sought in the first possible safe country. Therefore, I urge the House to support the Government’s motion.

Question put.

European Agenda on Migration

James Brokenshire Excerpts

Monday 14th December 2015 Commons Chamber

[The Minister for Immigration (James Brokenshire)]

I beg to move,

That this House takes note of European Union Documents No. 8961/15, a European Agenda on Migration, No. 9345/15, EU Action Plan against migrant smuggling, unnumbered Document, a Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR Med), unnumbered Document, a Council Decision to launch EUNAVFOR Med, and a Draft Action Plan on Stepping up EU-Turkey cooperation on support of refugees and migration management in view of the situation in Syria and Iraq; and supports the Government’s aim of working with the EU and Member States and other international partners to develop a coherent and sustainable approach to addressing current migratory pressures, focused on shorter and longer term actions to break the business model of people smugglers and traffickers, to break the link between rescue at sea and permanent settlement in the EU, and to address the root causes of migrants’ journeys.

Today’s debate offers an important opportunity to look at the range of measures proposed to address the migration situation. The first of the documents listed on the motion, the “European Agenda on Migration”, was published on 15 May and sought to provide a blueprint from which to address the worsening situation by outlining an overview of the various measures available to the EU. It is fair to say that subsequent documents listed for the most part provide the detail of that blueprint.

The Government support many aspects of the European agenda. We agree that there should be more effective joint action on returns and against people smugglers. We favour stronger co-operation with third countries, as well as more effective management of the external border. Indeed, we have continued to press our European partners on those points, both before and since the publication of the Commissioner’s communication.

We have also welcomed the proposals against migrant smuggling. Its focus on strengthening co-operation to tackle the gangs profiting from the crisis through people smuggling, including enhanced approaches with international partners, is sensible, and we support the strategic priorities outlines.

[Sir Gerald Howarth (Aldershot) (Con)]

Does the Minister agree with me that it does not sit well with Mrs Merkel that she should be criticising the Hungarians who have done their level best to implement the Schengen arrangements, as they are required to do, by seeking to secure their border, which is the European border? Has the Minister or the Home Secretary had an opportunity to speak to Chancellor Merkel to say that she should be supporting the Hungarians, not attacking them?

[James Brokenshire]

As my hon. Friend will know, we are not part of Schengen, so the operations to deal with internal Schengen arrangements are for those who are party to them. As was discussed in the previous debate, what happens at the external Schengen border is important, which is why we have sought to support Frontex in a number of its activities, given the potential impact on us in the UK.

Looking at the approach off the coast of the European border, it is interesting to note how the subsequent Council decision on an EU military operation in the southern central Mediterranean has in many respects been a positive step in the joint efforts to break the business model of the people smugglers. That has had the UK’s full support. On 7 October, the operation moved into phase 2, the high seas phase, and was renamed Operation Sophia, in which the UK is playing an important role.

The purpose of Operation Sophia is to tackle the human smugglers and traffickers, disrupting their business model, which trades so carelessly in the lives of others. We must not forget, however, that Operation Sophia is only one part of the Government’s support for sea operations in the region. Since May, the UK has saved over 9,000 lives in the Mediterranean.

The last document listed, the proposed Turkey-EU action plan, has been broadly welcomed by political leaders across the EU and was the subject of an EU-Turkey summit on 29 November. The Government share the view that a plan of this kind is needed in order to ease the refugee burden on Turkey, while preventing further uncontrolled migration to the EU. Turkey is a key relationship partner for the EU and is a country with which the UK has had close co-operation for some time. It also has a pivotal role in the migration crisis, given that so many of the migratory flows through Greece and the western Balkans come through Turkey.

[Sir William Cash (Stone) (Con)]

Does my right hon. Friend concede that there could be an element of disingenuousness in the embracing of Turkey in this context, given that so many of the problems that we have seen recently have come through Turkey?

[James Brokenshire]

It is important to look at the action plan to provide an overarching response to the challenges we face. Clearly, that involves Turkey as an active partner, which means working within Turkey and alongside it further afield. It is important to recognise and support Turkey’s efforts in hosting well over 2 million Syrian refugees. It is important to continue to retain that focus, which is why we are providing financial support as part of an overarching package to assist with the efforts taking place in Turkey.

However, I stress the importance of the Prime Minister’s announcement that, as part of the United Kingdom’s responsibilities, we would resettle 20,000 of the most vulnerable Syrian refugees over the next five years. We remain on track to resettle 1,000 before Christmas, building on our previous scheme. However, it is neither feasible nor desirable for us to try to meet the needs of all those who require protection within the European Union, nor is it the right solution for the majority. That is why the Government have placed so much emphasis on supporting protection in refugees’ regions of origin, and we have committed a further £100 million to fund refugee camps on Syria’s border.

As well as focusing on humanitarian assistance, the Government have consistently focused on finding a comprehensive and sustainable solution to the refugee crisis. The Prime Minister has continued to emphasise the need of the EU to deal with the root causes of the crisis, rather than merely responding to its consequences.

In Syria, that means working with the international community to end the brutal conflict there, and to defeat Daesh. The recent development of a Syrian opposition negotiating committee following talks in Riyadh last week is a positive addition to the peace plan that was produced in Vienna last month. It could be an important step towards a solution in Syria, and therefore part of the long-term solution to the migration crisis. In Libya, that means helping to form a Government of national accord which can regain control of the country’s borders and tackle the smuggling gangs. A strong, unified response to Libya, like the one that was demonstrated only yesterday in Rome, is imperative to securing the political agreement that will allow that country to move towards improved security. And, as I have said, in Turkey that means working towards comprehensive border management, ensuring that a humanitarian response is given to those who reach the country while also disrupting the organised criminal networks that seek to profit from the flight of others.

The situation relating to the migration crisis is constantly changing. The Government maintain a watch on all developments, so that we can reshape and refresh our engagement and share our expertise and resources in a targeted way to protect the UK’s national interest, assist our European partners, and ensure that our efforts have the greatest impact on the support that we offer. We remain committed to effective practical co-operation with our European partners in pursuit of this agenda, and that is what the motion underpins.

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[Sir William Cash]

Unfortunately, the Minister was not here when I spent a little time talking about the Schengen aspect of this in a previous debate. I believe that the current proposals, which increase the range of the border issue to external borders and include Schengen, will burst. This is not going to work. There is not the money to pay for it. The failure rate of Frontex is evident. I believe that the arrangement will not work in future, and the fact that we are not a member of Schengen will not alter the pressures of the kind we have witnessed recently that come as a result of people entering the Schengen area and, having acquired a passport and EU citizenship, making their way through the whole of the EU.

I accept that Schengen is not, for the moment at any rate, part of the UK’s bailiwick, but the pressures that are now beginning to grow are increasing the necessity for us to leave the EU, because, from what I have been hearing from other member states, Schengen is becoming a potent force towards a greater degree of emphasis on political union. It is a most remarkable state of affairs. The Minister for Europe was not here earlier, and I see him puzzling over what I am saying, but I say emphatically that the Schengen agreement is not only under review but already being broken by a series of countries. However, there is an enormous desire to make it work even more effectively. As it does so, the pressures for political union within the Schengen area will tend to increase.

Before I turn to the 1951 UN convention and the EU charter of fundamental rights, I want an answer to the question that I put to the Minister for Immigration earlier about how much, if at all, the United Kingdom is liable to contribute to the EU border force. Is it true that we will contribute £150 million?

[James Brokenshire]

indicated dissent.

[Sir William Cash]

It is not true, apparently, but I will be glad to hear the Minister say it.

[James Brokenshire]

Time did not allow me to respond to my hon. Friend’s question in the last debate, but we do not contribute to the core funding of Frontex. The agency is funded through a specific mechanism. He will know that we are not part of the Schengen arrangements, to which Frontex relates. We provide operational support through vessels, expertise and briefing.

[Sir William Cash]

I heard much the same back in the days of the Maastricht treaty, when we were told that we were not going to have creeping federalism. I sincerely believe that what the Minister has just said is what he believes will happen, and I trust him to say exactly what is going on—I will take his word for it—but the pressures are there. That is all I am saying.

[James Brokenshire]

My hon. Friend will no doubt take a great interest in the announcements that we are expecting to be made tomorrow about the EU border force. We will look closely at the proposals, but we will not take part in them because we are not part of the Schengen arrangements. To ensure that our national interests are protected, we will scrutinise them carefully.

[Sir William Cash]

I am extremely grateful to the Minister for those remarks.

The UN convention on refugees was incorporated into EU law by virtue of the charter of fundamental rights, so when the European Court of Justice implements EU policies, it interprets key passages such as the right of migrants to claim asylum if they reach EU territory, under article 18 of the charter, and the non-refoulement prohibition on removal to an unsafe state, under article 33 of the UN convention. There is therefore interaction between the 1951 UN convention and the charter of fundamental rights.

As the Minister will know only too well, the European Scrutiny Committee looked at the problem of the charter of fundamental rights in the last Parliament and came to the conclusion that we should override it. I do not want to go back into that debate too much, but I remind him that the previous Labour Government were completely against the incorporation of the charter into the Lisbon treaty. Furthermore, the noble Lord Goldsmith, who was the then Prime Minister Tony Blair’s envoy, sought and achieved a protocol that, on the face of it, excluded the charter of fundamental rights from UK legislation. We argued about that in the European Scrutiny Committee at the time, and I and other members of the Committee warned that it would not stick. Sure enough, as usual—I say “as usual” with regret—our prediction was right, and the European Court of Justice is now applying the charter of fundamental rights within the scope of European law. That is part of the problem, because as I have said, the charter incorporates the UN convention on refugees and all the definitions that go with it. As I said, I believe that those definitions must be reviewed, but they cannot be reviewed if they are part of the charter, which is applied by the European Court of Justice.

For practical purposes, the whole issue is caught up in the acquis communautaire. That is causing an enormous problem of interpretation and a logjam in the ability to deal with migration policy. I freely admit that a lot of this is a bit complicated, but unfortunately many people over the years have failed to understand that European Council and Council of Ministers meetings are not just about people sitting around and deciding to tweak education policy or transport policy, as Cabinet meetings might be in relation to domestic legislation. Decisions at those meetings lock the United Kingdom into legal obligations that can be removed only by the unanimity of all member states. That is the problem—it is a legal and political system, and it affects the issue of whether people are refugees or migrants.

I have no less sympathy for genuine refugees than anybody else. I have devoted a great deal of my time in the House to international development issues such as sanitation and water and people who are in refugee situations, but the current problem is not the same thing. It is not about having policies that we can rearrange and adjust; it is about the fact that we are being driven into a deeper acquis. That needs to be said in this debate, because the charter of fundamental rights means that the human rights dimension of the current problem, including the definition of refugees and asylum seekers, is locked into the acquis. In my opinion, that is one reason why so few of them are being dealt with appropriately.

As the Minister and I, and all of us, know only too well, the UK is not part of Schengen, but we are part of the Dublin regulation, which means that EU states and other UN convention signatories are obliged to allow for asylum claims as of right if a migrant reaches EU territory. However, the UN convention is not specific about how that obligation needs to be disposed. Arguably, to claim asylum under the convention, a refugee needs to arrive directly from the state from which they are fleeing. In practice, that can mean that an applicant has not been processed elsewhere en route. We are now dealing with 900,000 people, and the scale of the situation is as much of a problem as anything else.

Under the convention and the charter of fundamental rights, frontier states are not—I repeat not—allowed to block the entry of those with a genuine right to claim asylum. The question of setting up a border fence—as I said earlier, there is more barbed wire in Europe than at any time since the cold war—is extremely uncertain in law. The non-refoulement prohibition in the UN convention on the removal of an asylum seeker to an unsafe state can also be interpreted in different ways, including so as not to exclude removal to a safe third state or safe recent transit state. I want to get this on the record, because it is important that the Government look at it all carefully when they get the opportunity to do so. As I said, the charter of fundamental rights is subject to the European Court of Justice, whereas the United Nations convention is only a convention. We are dealing with a complicated legal situation, which I believe is generating even more problems from the European Union.

Although I accept entirely that this motion is merely one that “takes note”, many of the things that I have said have not been incorporated in the motion. I say with great respect to the Minister and to the Minister for Europe that some of these issues are difficult and intractable, but they none the less relate to the Schengen area and have a continuing and ongoing effect on the UK. I say that because as long as we remain part of this European Union—the Minister will accept that I do not think we should any more—we do not alter the fact that we are affected by these things. This migrant issue, with all the tragedies it involves for those who are drowning in the Mediterranean and with the great deal of problems that come from fake passports, jihadists and so on, makes the situation even worse. I simply say to the Minister that he should not think I am asking him to reply to all these points this evening, as I am sure he will not have the chance to do so. Will he, however, please take note of the fact that there are other arguments than those contained in the motion?

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[James Brokenshire]

With the leave of the House, Madam Deputy Speaker, I will respond briefly to some of the points that have been raised during the debate.

Organised immigration crime is an important issue. It is worth underlining that in recent months we have developed a 90-member-strong organised immigration taskforce which has had a strong focus on the crime networks operating in some source countries and at transit points, including the Mediterranean, as well as the UK border and in France. We have disrupted more than 600 organised crime groups this year, and our taskforce will be expanded to a 100-strong team. Access to and sharing of data is vital to joint efforts to combat the criminal gangs. In the Government’s view, it is essential that enhanced data sharing, including with Europol, forms part of the EU’s response.

The Chair of the European Scrutiny Committee, my hon. Friend the Member for Stone (Sir William Cash), asked about the Government’s priorities for action by the EU. I have written to the Committee on this previously, but to underline the position, we have highlighted four points: first, how EU money is spent on tackling problems at source in transit countries; secondly, an increased focus on fighting organised crime, with better joining up between member states; thirdly, dealing with economic migration regarding those who enter the EU without effective controls staying without consequence, where the issue of claims of refugee status not made out needs to be addressed more firmly; and fourthly, a stronger coherence between upstream development work and the return of economic migrants.

My hon. Friend highlighted the issue of Dublin. We strongly support the Dublin regulations. We believe that an applicant’s asylum claim made in the EU should be dealt with by the member state most responsible for their presence in the EU. We are aware, however, that the Commission is reviewing the Dublin regulations with a view to bringing forward a new measure next spring. We are co-operating with that review, but we believe that the long-standing principles at the heart of the Dublin system are the right ones, and that it would be a major error to replace them with completely different, untried and untested measures.

In respect of the operations in the Mediterranean and Operation Sophia, we are in phase 2, which is the high seas operation. The House will no doubt be updated, through reports of EU Council of Ministers meetings, should there be further progress, which we look to. This is very much focused on the situation in Libya. We welcome the support from a broad range of Libyans from across the political spectrum in recognising the urgency of creating a long-awaited Government of national accord, and urge all political actors to sign on 16 December. The Rome ministerial meeting of 13 December demonstrated unified international support for the UN-led effort to establish a Government of national accord in Libya. We continue to support that and to see it as a priority for moving forward.

The EU-Turkey action plan covers most of our priority areas, including controlling the flow of migrants to the EU from Turkey. It is about improving education, health and labour rights for Syrian refugees in Turkey to address the potential push factors for further migration. It is important to stress that Turkey is accepting the return of some failed asylum seekers and tackling smuggling networks. The agreed action plan incentivises Turkey to do more on border management. It does not guarantee visa liberalisation in relation to Turkey, and the UK does not have to offer a reciprocal visa concession. It is important to underline and stress that.

[Jim Shannon]

In an earlier intervention, I mentioned the human rights abuses taking place in Turkey. Has the Minister had any discussions with his ministerial colleagues about that matter? It is clear to me and many other Members that those human rights abuses have not stopped; indeed, they are continuing.

[James Brokenshire]

I underline to the hon. Gentleman that, although we support Turkey’s EU accession process and are working on it closely with Turkey, EU member states and the European institutions, the accession process recognises that Turkey needs to do more to meet EU standards through continuing reform, particularly in the area of fundamental rights and the rule of law. Active and credible accession negotiations remain the best way for Turkey to make further progress.

We have touched on the hotspots issue. The UK stands ready to support, through the European Asylum Support Office and others, and to ensure that the appropriate support mechanisms are in place.

Our position on the migration crisis is practical, pragmatic and focused on the need for a concerted humanitarian response for those who need our protection; ensuring the sustainability of EU asylum systems; pursuing effective co-operation with EU partners; combating illegal migration and those who profit from it; and protecting our security. That is where the Government’s focus remains, and I urge the House to support our motion.

Question put and agreed to.

Resolved,

That this House takes note of European Union Documents No. 8961/15, a European Agenda on Migration, No. 9345/15, EU Action Plan against migrant smuggling, unnumbered Document, a Council Decision on a European Union military operation in the Southern Central Mediterranean (EUNAVFOR Med), unnumbered Document, a Council Decision to launch EUNAVFOR Med, and a Draft Action Plan on Stepping up EU-Turkey cooperation on support of refugees and migration management in view of the situation in Syria and Iraq; and supports the Government’s aim of working with the EU and Member States and other international partners to develop a coherent and sustainable approach to addressing current migratory pressures, focused on shorter and longer term actions to break the business model of people smugglers and traffickers, to break the link between rescue at sea and permanent settlement in the EU, and to address the root causes of migrants’ journeys.

Serious and Organised Crime: Prüm Convention

James Brokenshire Excerpts

Tuesday 8th December 2015 Commons Chamber

[Damian Green]

My right hon. Friend knows that. The idea that everything that the European Court of Justice does is bad or somehow goes against civil liberties and freedoms is simply wrong, as I am sure he would acknowledge.

[The Minister for Immigration (James Brokenshire)]

It is worth putting it on the record that the Prüm decisions are caveated by national law. Article 12 states that the searches must be conducted

“in compliance with the searching Member State’s national law.”

[Damian Green]

I am deeply grateful to my right hon. Friend. I hope that that reassures those who have doubts on that score.

It has become fashionable in this House in recent days to quote dead communist dictators.

--- Later in debate ---

[The Minister for Immigration (James Brokenshire)]

I thank all those who have taken part in this debate. We have been listening very carefully to the range of opinions expressed and the different views provided by the right hon. Member for Leigh (Andy Burnham), my hon. Friend the Member for Stone (Sir William Cash), the hon. and learned Member for Edinburgh South West (Joanna Cherry), my right hon. Friend the Member for Ashford (Damian Green), the right hon. Member for Leicester East (Keith Vaz), my hon. Friend the Member for Berwick-upon-Tweed (Mrs Trevelyan), the hon. Member for Fermanagh and South Tyrone (Tom Elliott), my hon. Friend the Member for Daventry (Chris Heaton-Harris), the hon. Member for Belfast East (Gavin Robinson), my hon. Friends the Members for North East Somerset (Mr Rees-Mogg) and for Wycombe (Mr Baker), and the hon. Member for Rotherham (Sarah Champion). It is good that we have had a debate representing all the different points of view. It is also right that we underline the benefits that are provided through the Prüm decisions.

Before I respond to the specific points that have been raised, I would like to make some opening comments and observations. The evidence gathered, both from our own pilots and from others already operating the system, shows overwhelmingly that signing up to Prüm will benefit our police and help to keep the country safe. This is not a case of guessing what will happen—we actually have the evidence. As the now Leader of the House told us in July 2014, we want to “participate in measures” that contribute to

“the fight against international crime”.—[Official Report, 10 July 2014; Vol. 584, c. 547.]

That remains our position, and in our judgment Prüm is clearly in that category.

When I see that a foreign national who was walking around free in the UK is now behind bars because of our pilot, I can only conclude that that is a good thing. I want to see foreign criminals arrested and kicked out of this country, and I know that that view is shared across the House and by the public. Prüm’s use in investigating and identifying at least one of the Paris attackers seems particularly pertinent at this time. From my time as Security Minister, I know how important it is that we give the police the tools they need to do the vital job of keeping us safe. Indeed, keeping the public safe is the most important task entrusted to us as Members of this House.

We already exchange information with other countries. Prüm is about automating and speeding up that co-operation, making it business as usual for our police and increasing their capabilities to solve crime. When my right hon. Friend the Home Secretary spoke earlier, she quoted various senior law enforcement officers who support joining Prüm. When one thinks that it can take months for the Interpol system to work, but that, under Prüm, vehicle data, DNA and fingerprints would be available in only 10 seconds, 15 minutes and 24 hours respectively, one begins to understand why they are supportive. When the heads of the Metropolitan Police, the National Crime Agency and the Crown Prosecution Service are all so unequivocal about that fact, it is important that we pay attention.

It is worth repeating that the Director of Public Prosecutions has said that the existing process, most notably the lack of response times,

“often leads to delay and can, in some cases, take many months for a response to be processed. Delay provides the assailant with time to leave the UK or even commit further offences both of which are unacceptable.”

She added:

“The automated search and comparison of data provided by the Prüm Decisions, together with mandatory response times, is more likely to lead to the earlier detection of crimes and detention of those responsible. Prosecutions will be able to take place with evidence which is otherwise unavailable. This will in turn reduce the number of unsolved crimes, such as murder and rape, committed by foreign nationals, and provide an improved service to the public, victims and their families.”

Therefore, this is not only about locking up criminals, but about justice for victims.

[Lady Hermon (North Down) (Ind)]

The Minister will know from the comments made by a number of Members that there has been criticism of the fact that the Irish Government have, to date, not signed up to the convention. I am curious to know whether any Home Office Minister has spoken to any Irish Government Minister about improving co-operation in policing and fighting terrorism. It is really important that the British and Irish Governments co-operate on that very serious issue.

[James Brokenshire]

I assure the hon. Lady that we have regular discussions with the Republic of Ireland Government about issues of security and safety and the operation of the common travel area, recognising some of the shared risks and themes. Indeed, the most recent discussion took place only last week, when I had a conversation with the Irish Justice Ministers. We take these things extremely seriously, recognising the specific issues and challenges that we need to keep in mind, which is why there is open dialogue.

[Bob Stewart]

I am still confused about why Interpol takes months to provide such information when this Prüm organisation can do it in minutes or seconds. Something is wrong. Why is Interpol so incompetent?

[James Brokenshire]

In making his point, my hon. Friend conflates two different things. The Prüm process that we are contemplating is an automatic one: in effect, it is a means, a system or a portal through which member states can search information held by other member states. Interpol processes are much more manual and therefore more intensive, which explains the differences in time. We have obviously considered the issues very carefully. The Interpol arrangements remain absolutely valid, and we will continue to seek further improvements in them, but that does not stand in the way of what has proven to be an effective and fast system that will aid us in the fight against criminality.

Crucially, security, public protection and civil liberties all need to be balanced. I have been very clear about that from the outset. That is why I, along with the Home Secretary, have insisted that searches should be made only against the DNA and fingerprints of those convicted, that UK scientific standards apply before we release any personal data and that both the Biometrics Commissioner and the Information Commissioner will be involved in the process. With the oversight arrangements that have been outlined, drawing in representation from across the United Kingdom, that point remains valid. I believe that we have got the balance right: Prüm will help us to protect the public in a way that fully respects civil liabilities. The National DNA Database Ethics Group believes the same. That is why we have brought the motion before the House today.

I will respond to several of the themes expressed, particularly in relation to the jurisdiction of the European Court of Justice. I want to make it very clear to the House that the UK is clear that it cannot support an EU criminal justice system. In any case, Prüm is about making existing co-operation work more efficiently, rather than about creating rules of criminal procedure.

To respond to the points made by my hon. Friends the Members for Daventry and for Berwick-upon-Tweed, we will look at new proposals in this area case by case. We will put the national interest and the benefits to our citizens and businesses at the heart of our decision making. We will consider each opt-in decision with a view to maximising our country’s security, protecting civil liberties, preserving the integrity of our criminal justice system and our common law systems, and controlling immigration. Equally, I say to my hon. Friend the Member for North East Somerset that this Government will not opt in to a proposal concerning a European public prosecutor.

On the specific issues of the oversight and role of the jurisdiction of the European Court of Justice—for example, whether it has an impact on the operation of our DNA database—I underline that Prüm decisions are all about the exchange of data, not the manner in which we hold data for domestic purposes. Article 72 of the treaties makes it very clear that how we deal with DNA for our own security is a matter for member states.

On the broader themes of ECJ jurisdiction, I repeat what the Home Secretary said earlier. It is very clear that we are allowed to limit searching to conviction-only profiles. Articles 2.1 and 2.3 of the principal Prüm decision make it clear that we simply need to inform the general secretariat of the Council about which profiles will be made available for searching under Prüm. In terms of imposing a higher scientific standard before we release personal data, article 5 of the principal Prüm decision makes it clear that the process for following up a hit is subject to national law, not EU law.

Points have been made about whether there is evidence of benefits, and I think reference was made to anecdotal data. I would highlight the results of our pilot: about 2,500 pilot crime scene profiles were sent to four member states, which yielded 71 scene-to-person matches and 47 scene-to-scene matches. Those hits involved a wide range of crimes, including rape, sexual assault and arson, as well as domestic and commercial burglaries. That again highlights the real benefits that have been shown by the measure.

[Tom Elliott]

When we are in the Prüm system, how will things be different from what we have now in relation to the European Court of Justice?

[James Brokenshire]

Obviously, in deciding to opt into the Prüm decisions, the Prüm decisions will become subject to the jurisdiction of the European Court. [Interruption.] If the hon. Gentleman will let me finish, many other European countries have been subject to this for a number of years. It is about the interpretation of the decision and is therefore about the practical operation. That is why I made the distinction about the safeguards that are contained in the Prüm decisions in respect of how we hold data. The decisions state that that will be subject to national law, as will the action that is taken against the hit. Therefore, it is national law that will determine the decisions that are made. That is why the Prüm decisions are expressed in the manner they are. The extent of the European Court of Justice’s jurisdiction therefore relates to the automaticity of the process. That is why it is our judgment, again to reflect the point made by my hon. Friend the Member for Daventry, that it is in the best interests of this country to opt into Prüm because of the practical co-operation measure it provides.

The hon. Member for Fermanagh and South Tyrone asked about a legislative consent motion. Obviously, no requirement for one arises directly from the motion, but there are ongoing discussions regarding implementation and whether the regulations, a draft of which has been published, will require a legislative consent motion.

The hon. and learned Member for Edinburgh South West highlighted the Eurodac regulations. They state that a Eurodac search for law enforcement purposes should take place only to investigate serious crime, including terrorism. I hope that provides her with some reassurance.

My right hon. Friend the Member for Ashford asked about ANPR. There will be no access to historical ANPR data through Prüm. Any request for such data would have to be made through a judicial mutual assistance request. I hope that is helpful to him. The vehicle data are very basic. They include keepers’ details and details about vehicles. That may be relevant if one is trying to establish whether the authorised person was driving the vehicle and whether a vehicle has been used in connection with serious crime.

The hon. and learned Member for Edinburgh South West asked about the nature of that database. We do not split the DVLA’s database into those who have been convicted of an offence and those who have not. Practically, it would be very difficult to do that. We take the pragmatic view that it is appropriate to allow the search. Information on the keeper to whom a vehicle is registered may be relevant to an investigation into who was driving the vehicle. We therefore judge that we have the appropriate balance.

I underline that there are separate processes to determine what further steps may be taken. The European arrest warrant has been highlighted. That is a separate process from the Prüm process, which is about identifying whether there is a hit and whether further investigation should happen. Any actions that follow will be determined through separate processes. I underline the steps that the Government have taken to provide further protections in respect of the European arrest warrant, pre-trial detention, proportionality and various other matters.

Ultimately, the choice before the House this evening is straightforward. Do we want to give our police the tools they need to do their job; tools that will let them solve crimes and lock up foreign criminals; tools that have been shown to work; tools that will keep the British public safe, but that will do so in a way that is consistent with our values and that will protect the rights of British citizens? I believe that we should do so. That is why the Government support signing up to Prüm and why we judge that the measures are appropriate. We judge that they are bounded by safeguards that will be effective, but that they will make the difference in the fight against crime and the fight against terrorism by ensuring that our law enforcement agencies have the tools that they need to keep our country and our citizens safe. I commend the motion to the House.

Amendment proposed: (a), leave out from ‘deported’ to end and add—

‘, does not support opting in to the Prüm Decisions because of the need to protect the civil liberties of British citizens, because of the risks to UK sovereignty posed by accepting the jurisdiction of the European Court of Justice (ECJ) in this area and because it would mean missing the opportunity to require a better arrangement, noting that the Government’s policy is to renegotiate the jurisdiction of the ECJ and the result of the referendum in Denmark preserving that country's opt-out from such measures that will require Denmark to negotiate on an intergovernmental basis; notes that necessary international cooperation against terrorism and serious crime does not, and did not prior to the Lisbon Treaty, require the UK to accept the supremacy of EU law, the jurisdiction of the ECJ or the application of the Charter of Fundamental Rights; and therefore requires the Government to secure alternative arrangements outside the jurisdiction of the European Court of Justice.’.—(Sir William Cash.)

Question put, That the amendment be made.

Riot Compensation Bill

James Brokenshire Excerpts

Friday 4th December 2015 Commons Chamber

[Mr Lammy]

The hon. Gentleman is right, of course. The riot claims bureau will be a step forward, but let us be absolutely clear about it. It sounds good, does it not, the riot claims bureau? We get the sense of bureaucrats hard at work somewhere in the Home Office as we speak. No one is staffing the riot claims bureau as a result of the Bill; I suspect it will be brought together rapidly in the event of a riot.

It is important to ensure that the expertise and knowledge are present, that there have been practice exercises and that there is understanding of the sorts of communities that experience such things. There must be a sense that we must put small businesses first on these occasions, because often the big businesses can defend themselves. Members might remember from the riots the atrocious behaviour of the head of JD Sports, who said that it was great that people were breaking down windows to grab trainers because it showed how important his products were. I would suggest that that chief executive can defend himself, but he was in a very different position from those on the high street.

I pay tribute to Sir Bill Castell, chair of the Wellcome Trust and one of the great industrialists of our country. He was chair of the High Street Fund, which did so much to support small businesses across the country. I will never forget Sir Bill ringing me up just a day after the riots, determined to make a difference and to bring big business together to support small business and to bring those funds to individuals. I will also not forget Bill’s consternation that months later funds had not been paid out under the Riot (Damages) Act and that when those funds were paid out, despite the fact that the High Street Fund was a charity relying on contributions from big business, they were discounted against that money. I say to the hon. Member for Dudley South, will we see that happen again?

In these circumstances, when there is philanthropy and charity and when human beings come on side and say that they will support somebody, that should not be discounted against the obligations of the state. We should not be saying that it is for charity to pick up the tab and reduce the burden that we all face as taxpayers when consents break down in this way. I know that Sir Bill felt very strongly about that and I hope that we might get an answer about what will happen in the future in this regard.

I come back to the point about the expertise. Will the bureau have the expertise? How many people will staff it? How will it be brought together? How will it be different from the patchy performance we have seen? For example, I understand that the police in Manchester performed quickly and were able to pay out quickly, although they had a smaller group of businesses involved, whereas the Met were woefully slow in paying out. That led to the then Leader of the Opposition coming to the Dispatch Box during Prime Minister’s questions and asking when businesses would receive their funds. He did that well over a year after the riots—the Met’s performance was that poor. It is important to understand what the bureau will look like and to make sure that it is not just a fancy name, but will work effectively.

I come to the role of loss adjusters. The hon. Gentleman is right that new-for-old compensation will mitigate some of the insensitivity that so many business owners said they experienced as they were quizzed about the age of their products, whether they were sure those products were in the premises, where they were in the building, why they could not get into the building, why their English was not good enough to fill in a form, and so on. I hope new for old will lead to a better system.

In these circumstances there should be a loss of earnings component. If we were able to pay out relatively quickly, the loss of earnings component would be reduced, which was not the case last time round when the process was so poorly handled. Many of us may not be here for the next set of riots in our country. I hope we are not here—I hope it is that far away—but if the claims process goes on for a long time, there is a terrible loss of earnings for small businesses. I can think of a wonderful mechanic’s business that was burned to the ground. It sat next to the iconic Union building in Tottenham that was also burned to the ground. I think of the wonderful Cypriot owner. He came to see me, devastated by the flooding and destruction of his family business. The road was shut off, the building next to it had been burned down and it was months before he could get into his business premises. He had a heart attack. He was laid low at home, panicking about the pressure of finance and money. I will remember that man and his family for the rest of my life. So I believe that loss of earnings should be a component of the compensation. Consequential earnings are also fundamental when the state breaks down in this way.

The cap of £1 million is right and totally understandable. It is important, though, that that cap is sufficiently high to compensate the vast majority of businesses. I think that that probably is the case, but I would like reassurance that it is index-linked and will rise. It is £1 million today, but what will it be in 50 years or 100 years? In areas of the country that are fragile, where there is deprivation or pockets of deprivation, we must not scare big business away because it fears that it would not be adequately compensated in the event of a riot. We must not do what has happened in other parts of the world, particularly the United States. It is important that private insurance is available for larger businesses for which, if they were to suffer a loss, it would be substantially more than £1 million.

It is easy to see how a relatively small business with stock could lose more than £1 million over several months in the circumstances. I am a little bit nervous about what the effect of the cap may be and whether it will harm regeneration and the prospect of those communities moving forward towards prosperity through regeneration. On the whole, people do not tend to riot if they have a job and a mortgage, but in parts of the country that cannot always be guaranteed, so it is important that big business is there, small business is supported, the £1 million cap is not too low, and that we are sure the insurance industry will provide support beyond that £1 million.

We need to be clear that under-insurance is common in the kind of communities that saw rioting in 2011 and communities where riots have historically taken place in this country. Because of the delicate margins with which businesses operate in such communities, there is often under-insurance. It was the people who were under-insured who paid the heaviest price last time round. They were able to claim from the High Street Fund, but that was discounted down the line. They were the ones who found it hardest to get payments under the Riot (Damages) Act in good time.

The 42 days feels like a long period. People know the riot has happened to them. They must know that there is some means of compensation. People say that on the news, but it does not reach them because they are in shock, because everything they own has been burned to the ground, and they have no paperwork, they have no ID, they do not know who they are. This is not just about shops; it is about homes as well. I am worried about the 42-day period. I can think of many constituents who would not meet that.

[The Minister for Immigration (James Brokenshire)]

It might help the right hon. Gentleman to know that if the Bill were to pass, that would be dealt with in regulations. Our intention is that the 42 days would be a notification period—a time for people to give notice that they were going to make a claim—but there would a further 90-day period to quantify that claim and provide further details. I hope I can offer him some reassurance that we are thinking carefully about lessons from 2011 and about time periods that will allow people to gather paperwork and quantify the amounts that they are claiming for.

[Mr Lammy]

I am grateful for that indication. My hon. Friend the Member for West Ham (Lyn Brown) on the Opposition Front Bench also has the kind of constituency where I am sure she would recognise that, in our multicultural London, many businesses are run by people who speak English as a second language and who, in times of riots, are a long way from the state. That is because they do not rely on the state very much at all. Even notifying their intention to make a claim is not something that they would understand. Many of my constituents did not understand that they could make a claim. They simply sat with their head in their hands, under-insured and not aware that the state would support them in this way. They got to the understanding that they could make a claim because word about the High Street Fund spread quickly among the businesses alongside theirs. That was how they started to realise that they, too, could make a claim. I am grateful that the Minister has indicated some flexibility on that, but I wanted to stress my concerns that people might be caught out of the system.

I broadly welcome what has been said today, with some reservations about the nature of the bureau and the expertise that it will need, and real concern that we should understand the sort of areas that can experience riots in our country and why it is important that, as a nation, we support those communities.

There is a potential conflict between the Met declaring a riot and the fact that the budget comes from the declarer. I hope that the Minister will say a little more about the circumstances in which a riot is declared, because in 2011 the situation was so patently clear that it would have been very hard for the Met not to declare a riot, but that is not always the case. I remember just a few hours into the rioting the former Member for Holborn and St Pancras said to me, “Watch and see if it actually declares this to be a riot.” I would therefore like some reassurance about the circumstances in which a riot is declared, because that could be a source of contention.

When the London Assembly looked into the 2011 riots, it came to the view that the police were handling the situation so badly that the money ought to be in the local authority’s pot. There is some merit in that, because local authorities are much closer to local businesses and can liaise very intently with Government. The money is coming from the Treasury anyway—let us be clear about that—but how it works within Government is the big question. I had sympathy with the London Assembly’s view, although I think that it is important that the police understand that consent must not break down and that, if it does, it comes from their budget stream. There is a discussion to be had about that potential conflict. The Bill is settled on the money coming from the police. It is therefore important to understand the moment at which a riot is declared and how that decision is reached.

There was a sense in those early months that the Met was losing money as a consequence of having to give money out—that there was no extra money from the Treasury. We need our most deprived communities to be policed; we do not want all the money available to go to compensation. That is a complexity in the Bill that I think requires further explanation.

--- Later in debate ---

[Kevin Foster]

I thank my hon. Friend for that intervention. As he says, the result is that a lot ends up going to the insurance companies, although I think that we will need to consider carefully the impact of any change, because, as my hon. Friend the Member for Morecambe and Lunesdale (David Morris) and the right hon. Member for Tottenham have pointed out, ultimately insurance is based on the premiums paid by people, so there is a balance to be struck. If the risks to insurers increase and the amount they have to pay out increases, much of that will likely be recovered through increased premiums. That is why we will need a good discussion about that in Committee. [Interruption.] I see the hon. Member for West Ham (Lyn Brown) nodding. It makes sense to update the legislation.

I was particularly struck by an intervention by the hon. Member for Croydon North (Mr Reed) on my hon. Friend the Member for Dudley South (Mike Wood). He said that people who had tried to help out their neighbours with a charity collection found that they had probably ended up helping out those responsible for paying compensation. The Bill Committee should look at that. People who give money and assistance voluntarily and out of the goodness of their hearts would not want to think that they were, in effect, saving money for the person who was supposed to pay compensation. They are de minimis amounts, but the details should certainly be looked at in Committee.

On limits placed on compensation, it is right to discuss the role of the taxpayer in protecting people against the breakdown of public order and the legitimate role of private insurance. There are other crimes whereby, if someone is not insured, they will not be compensated for their losses. Nobody chooses for their shop or premises to be affected by a riot, or to have their home burgled or for someone to steal large amounts of money from them. Nobody chooses for someone to commit arson and set fire to their business, potentially causing huge amounts of losses and, in some cases, putting them out of business. It is important that we look at the traditional approach taken to riots, but we must also balance that with what is appropriate for private insurance, particularly with regard to consequential loss. It is difficult to know where to draw the line, which is why it makes eminent sense to have a more modern definition.

The current time limit is also a subject of debate. It has been proposed that there should be a 42-day limit during which people could make an initial claim. As I said in an intervention, I suspect that not many people, including virtually everyone in this House, were aware of the impact of the Riot (Damages) Act 1886 until after the 2011 riots, which brought the issue suddenly to the fore. It would probably be much easier for various communities to understand modern legislation. I was reassured to hear the Minister say in an intervention that, under the 42-day limit, people could simply say, “I am likely to submit a full claim.”

[James Brokenshire]

indicated assent.

[Kevin Foster]

The Minister nods. It makes sense that people should not have to get absolutely everything together and that they would then have a further 90 days to make the full claim. That could be explored further in Committee, but it will give anyone affected by a riot, who will clearly be going through emotional distress and experiencing financial problems, the opportunity to flag up their claim and then submit the detail. That is far fairer than the current situation. If we do not agree to give the Bill a Second Reading, we must remember that we will end up not in a better position, but with that laid out in 1886, which has made it extremely hard for many people who are not conversant with the financial system. Unlike larger businesses, many smaller businesses do not have an accounts department to file a claim for the compensation they are due. That is another good reason to support the Bill.

On the provision on the replacement of property, it is bizarre to argue in favour of old for old. As my hon. Friend the Member for Dudley South touched on in his introduction, that means that people have to find something that matches what they have lost. It is unlikely, particularly in the aftermath of a riot, that they are going to find a five-year-old piece of equipment of exactly the same make and in exactly the same condition as that which has been lost. That is why insurance has changed from an old-for-old and like-for-like approach, as was the case in the Victorian era, to allowing people practically to replace an item.

On the limitation of damages, I suspect that many businesses that get same-for-same compensation end up using consequential loss compensation to find the piece of equipment they need to replace the item for which they are being compensated. Businesses in more deprived communities are less likely to have the most modern, advanced and expensive equipment, so they spend a lot of time trying to find a new piece of kit, whereas a large business can bring in replacement equipment from elsewhere as part of its existing renewal process. The proposed reform is eminently sensible. It will put smaller businesses in the same position as their wealthy counterparts. They will be able to buy a replacement and avail themselves of the compensation at a later date. Many Members have indicated how important that is and I think it is the most sensible change among a raft of very sensible changes proposed by the Bill.

It is also appropriate to introduce a structure to decide what constitutes a riot. I also agree with the proposal to transfer claims nationally if more than one area is affected or there is a particularly significant riot. Clearly, the Committee will discuss the detail—it is not a matter for the Second Reading debate—but the proposed provisions make eminent sense. I look forward to them being fleshed out in more detail in Committee.

It has been a pleasure to speak in this debate and to have heard some of the other comments that have been made. I thank my hon. Friend in particular for the work he has done in promoting the Bill. We should give it a Second Reading so that we can have riot damages legislation that is fit for the 21st century, not the needs of the 19th century.

--- Later in debate ---

[The Minister for Immigration (James Brokenshire)]

I thank hon. Members from both sides of the House for an informative and passionate debate that has reflected the interests of their constituents on the issue of riot compensation. I particularly commend my hon. Friend the Member for Dudley South (Mike Wood) for his hard work, his approach in bringing the Bill before the House, and the way that he has sought to conduct this morning’s debate. He has achieved consensus on the need to move forward and the need for change, and I know how hard that can be. He stated that as a new Member, he has become popular ever since he was successful in the ballot to introduce a private Member’s Bill, but given how he has conducted himself thus far, I suspect that he will remain very popular in future, and I commend him for that.

I have listened to the speeches made during this debate, and there is no doubt that the 2011 riots remain fresh in the minds of many. As my hon. Friend said, it is important that we respond effectively and promptly to those whose lives have been wrecked as a consequence of the riots. I share his hope that this Bill will never be used, but it is right that we prepare for such eventualities and learn the lessons of the past to meet the potential challenges of the future. The Government acknowledge that payment of riot compensation in the aftermath of August 2011 was not as streamlined as it could have been, first because processes had to be put in place at short notice, and secondly because decision makers were required to work with a piece of legislation that is almost 130 years old.

We may not have “riotous” assembly in this House—we certainly do not—but we might have “tumultuous” assembly. The sense that that terminology may remain—and indeed was—relevant when claims were being considered after the August 2011 riots, underlines the need for us to improve and modernise the way that we approach the payment of compensation to individuals and businesses who experience losses or damage to property caused by riots. I therefore commend the hon. Members for Ealing Central and Acton (Dr Huq) and for West Ham (Lyn Brown), the right hon. Member for Tottenham (Mr Lammy), and my hon. Friends the Members for Torbay (Kevin Foster), for Solihull (Julian Knight), and for Bury North (Mr Nuttall), who broadly welcomed the need to move forward on this issue.

[Mr Lammy]

The Minister may recall the former Member for Croydon North, Malcolm Wicks, who is no longer with us. He made an important contribution to the Croydon community immediately after the riots.

--- Later in debate ---

[James Brokenshire]

The right hon. Gentleman is right to remember Malcolm Wicks, and the steps that he took in his community. That is reflected by the hon. Members who represent Croydon today and who are following through on that tradition of representing their constituents at what was an extraordinarily difficult time. That shows how we as Members of Parliament can respond and be community champions in seeking to provide aid and assistance to our constituents at times of significant trouble in their lives. The right hon. Gentleman is right to remember those who have served this House with dignity and honour in achieving that, and I underline what he has said.

We recognise that change is needed, and in keeping with the overall objective of modernising riot compensation arrangements, the Bill simplifies the definition of a riot that is to be used when determining claims. Currently, decision makers must consider the definition in the Riot (Damages) Act 1886, and the Public Order Act 1986 when determining whether individual claims should be considered as relating to a riot. The Bill would introduce such simplification, for which there is a clear need.

If the Bill is enacted, guidance will be produced to better inform decision makers about how to apply the right definition. That will help when dealing with more difficult scenarios, such as whether all members of a riotous group must have entered a building where damage occurred in order for it to meet the definition. There will always be claims that are likely not to qualify, and guidance must be included to enable decision makers to weed out opportunistic claims. We are clear about the need to provide further guidance, which we hope will assist with that.

[Bob Stewart]

Huge damage was done in areas such as Tottenham and Croydon, but in Beckenham just three businesses were damaged. The riot was not as big, but those affected suffered just as much. When we define a riot, we must be careful about the language we use so that those people can be included in compensation arrangements.

[James Brokenshire]

My hon. Friend rightly makes a point about the need for certainty and clarity, and that is precisely what the Bill provides. Clause 1(6) seeks to achieve that by reference to the 1986 Act, and it is right to provide the sense of certainty outlined by my hon. Friend. The right hon. Member for Tottenham and my hon. Friend the Member for Bury North mentioned the need to inform the public about this issue, and if the Bill is enacted we would produce guidance to inform the public about the process and entitlements in the Bill, and subsequent regulations.

There has been some debate about why the Bill seeks to set the cap at £1 million. Alternative proposals were considered, but I think my hon. Friend the Member for Dudley South has captured well the analysis that informed his thinking, which I know is based on research. Such a cap would have dealt with around 99% of claims made after the 2011 riots. We have also discussed the fact that the Bill does not provide cover for consequential loss. The independent reviewer thoroughly considered that issue when considering recommendations, but believed that that would be a step too far in a Government scheme. We agree with that analysis, particularly given the potential impact on the public purse, which is likely to run to tens of millions of pounds. The Bill is not intended as a catch-all, but it was right to raise the issue of its inter-relationship with insurance. This is intended as a safety net, not as an alternative to insurance provision.

We have touched on how the Bill would seek to cover motor vehicles—an issue that, as we have heard, could not have been captured by the original 1886 Act. Again, the cover is not intended to replace insurance, and any claims would be checked to ensure that the vehicle was maintained in full compliance with the law. My hon. Friend has struck the right balance in bringing forward those provisions.

The Bill would also make provision for a riot claims bureau. It is not intended for a bureau to be in place for every instance of rioting—for example, it would not be efficient to make such arrangements where a small-scale disturbance occurred that was perhaps confined to one force area. Experience has highlighted the approach that should be taken to allow for a speedier, more efficient and effective response. The Bill provides for that flexibility, as well as allowing for further regulation.

The right hon. Member for Tottenham talked about how the arrangements would differ from those in the past. If the Bill were to proceed, our approach would be to create regulations setting out the detail of the bureau. The Home Office has had discussions with the insurance industry, police and loss adjusters, and I anticipate that there would be a management board made up of relevant experts, overseeing contracted loss adjusters who would have the capability and capacity to respond quickly. Again, that reflects some of the lessons we have learned.

[Mr Lammy]

I am grateful for that reassurance. The management board sounds very sensible. There has been some suggestion from the Home Office that some of the expertise that existed following the Bradford and Oldham riots in 2001 has been lost. Might there be a mechanism to contact staff with previous experience of riots—or indeed of floods, after which similar issues come up—so that their expertise can be drawn on quickly?

[James Brokenshire]

The right hon. Gentleman makes an interesting and fair point. Should the Bill proceed, there will be an opportunity to reflect on such experience when we form the regulations that will set out the structure of the bureau. I hope that we will be able to learn the lessons not only from 2011 but from other times when compensation has been paid. The parallel that he draws with a flooding incident is important.

We believe that the structure of primary police liability, albeit that it was set out in 1886, remains valid. When the police fail to prevent the breakdown of law and order in such a way that a riot occurs, we judge that they should provide compensation to those who have suffered financial loss through no fault of their own. I have sympathy with the arguments that have been made about that strict liability approach, but the independent reviewer came to the same conclusion after much consideration and discussion with police and other stakeholders.

The Bill will bring much-needed reform by ensuring that after future riots, there will be modern, transparent and fair arrangements for individuals and businesses that have experienced losses through no fault of their own. Important points have been made today about payment arrangements, including points about charity payments by the hon. Member for Croydon North (Mr Reed) in an intervention and by the right hon. Member for Tottenham and my hon. Friend the Member for Torbay in their speeches. It is our intention that charitable donations should not be deducted from compensation, but that formal aid such as that funded by local government should be. I think that clarity can be provided.

The hon. Member for Ealing Central and Acton talked about the police marking their own homework, and other Members developed that theme. We expect claims, other than those of relatively low value, to be subject to a loss adjustment-type process, as most insurance claims are. I also underline that clause 9 provides for a reviews and appeals mechanism, which gives an important assurance about how claims will be addressed.

My hon. Friend the Member for Morecambe and Lunesdale (David Morris) rightly focused on small business, and he asked whether mobile businesses might be covered. That is an interesting question that may be worthy of further development in Committee. Members also mentioned the compensation cap, and as we have heard, there is provision for it to be extended. Any legislation requires regular Government assessment, and there are processes in place for that, which I hope will allow for reflection on the level of the cap. I am sure that that point, too, will be subject to further examination in Committee.

Several of the proposals in the Bill will make compensation arrangements more generous. The way compensation has been paid in the past has created hardship for some vulnerable people and businesses, and it is right to ensure that those in the greatest need can recover more easily from the impact of riots. We are mindful of our responsibilities to protect public money, and the proposals to limit payments to large businesses and to apply excesses to compensation will help balance out the impact of increased compensation.

Ultimately, however, the purpose of the Bill tabled by my hon. Friend the Member for Dudley South is to protect vulnerable people from hardship. The current provisions may have been suitable to provide for the living standards of Victorian Britain, but they do not reflect the needs of our modern society. That is why I agree with him about the need for change. I commend him again for bringing the Bill before the House. In the light of today’s debate and the clear need for reform, I hope that the House will not just commend him but give his Bill a Second Reading.

Immigration Bill

James Brokenshire Excerpts

Tuesday 1st December 2015 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

I shall speak to the amendments in my name. I hope it will be helpful to the House if I indicate as I go through them which of those amendments I currently intend to press to a Division, so that the Minister will know.

I start with the labour market provisions and say at the outset that we on the Labour Benches support the establishment of a director of labour market enforcement. This will provide strategic leadership, which is much needed and very welcome. The real issues in relation to the director are resources and focus. In Committee we heard evidence from Professor Metcalf, who is chair of the Migration Advisory Committee. He said that he understood the issues of public finances, but he did not think the enforcement bodies had enough resources. He pointed to the fact that on the evidence in the report on low-skilled work, Her Majesty’s Revenue and Customs could be expected to visit any given premises once every 250 years and that there was the prospect of a prosecution every 1 million years.

I accept that any investigation would be intelligence-led and targeted, but those figures are stark and point to the problem of resourcing. As another example, the Gangmasters Licensing Authority investigations dropped from 134 in 2011 to 68 in 2014. Clearly, we cannot deal with resources here in this debate, but amendment 18 is intended to give a focus to the director, to ensure that the functions of the director are exercised for the purpose of protecting the victims of labour market exploitation and to make this explicit on the face of the Bill. This mirrors the way in which the Modern Slavery Act 2015 dealt with the functions of the Anti-Slavery Commissioner established by that Act.

There is therefore a good precedent for the amendment. It provides clarity and it avoids any misconception or temptation about this role, which is being introduced in an immigration Bill—namely, that it should be about labour market enforcement, not immigration control. The experience of other countries suggests that this is the right focus for this important role.

Amendment 19 would omit the proposed illegal working offence and maintain the status quo. Time and again in the House and elsewhere the point has been made about the exploitation of the vulnerable. The Migration Advisory Committee reported in 2014 that

“the combination of non-compliance and insufficient enforcement can lead to instances of severe exploitation, particularly of vulnerable groups such as migrants.”

The Committee said in the same report:

“We were struck on our visits around the country by the amount of concern that was expressed by virtually everyone we spoke to about the exploitation of migrants in low-skilled jobs.”

There is a great deal of other evidence to the same effect. What is desperately needed is more resources for inspections, a focus on exploitative employers and a mechanism to encourage employees to have the confidence to come forward. The new provision cuts across that.

Clause 8 is likely to ensure that the most exploited and vulnerable will become even more so; in effect, it will simply strengthen the hand of gangmasters over exploited workers. It also fails the test of necessity. There are already criminal provisions relating to those who have breached immigration rules and there is no need to introduce a new criminal offence for employees. We are talking about the most vulnerable and exploited people, who need the confidence to come forward if the director is to achieve the functions set out in the Bill. My current intention is to push amendment 19 to a vote, although obviously I will listen to what the Minister has to say.

I turn to amendment 20, which also relates to the offence of illegal working. It is a strict or stark offence: an employee who simply does not have the right immigration status commits an offence and has no defence at all. I shall give an example of the injustice likely to be caused. If an employee in good faith relies on his or her employer to sponsor him or her, but something wrong in the process means that as a matter of law, and unbeknown to them, they do not have the right immigration status, they automatically commit an offence and have no “reasonable excuse” defence. That cannot be right for a new criminal offence in this field. With all due respect to the Director of Public Prosecutions, it is not good enough to say that the prosecution must weed out those cases. There needs to be a defence in statute to cover cases of mistake and error that are not the employee’s fault.

I turn to the provisions on landlords and the right to rent. The background is important during this Report debate. The Immigration Act 2014 introduced a civil penalty scheme in relation to the right to rent. That was discussed in the House; there were concerns about the impact it would have in practice and in particular about whether there would be any discriminatory effects. Assurances were given about piloting and properly evaluating the civil penalty scheme before it was rolled out. This Bill, in 2015, proposes to extend the civil penalty scheme by introducing a criminal penalty before there has been a full and meaningful evaluation.

As was mentioned on Second Reading, the Joint Council for the Welfare of Immigrants carried out an evaluation showing, alarmingly, that 42% of landlords said that the right to rent provisions made them less likely to consider accommodating someone who did not have a British passport. At that stage, we did not have the advantage of the Home Office evaluation, which was made available in Committee, as the Minister said it would be. That evaluation, however, was small and narrow. The Home Office itself said that it was not sure about the statistical significance of part of the evaluation and that the sample sizes were too small to draw any robust conclusions. We say that the assurance in relation to the civil penalty scheme has not been fulfilled and there is no warrant for extending the scheme to include a criminal sanction.

Amendment 22 deals with the position of landlords who, under the current provisions, would automatically commit a criminal offence the moment they were served notice that they had a tenant without the right to rent. They would be criminalised notwithstanding the period between receipt of that knowledge, normally by a notice, and their best prospect of getting anybody evicted. A reasonable, objective landlord who received a notice and acted on it immediately would still be criminalised during the process. There cannot be any sensible or compelling case for that state of affairs, which causes great concern to landlords and puts them in an impossible position. I understand that the Government may be considering the issue and obviously I shall listen carefully to what the Minister says. On the face of it, however, it is difficult to see that there could ever be a case for such a measure.

Amendments 23 to 26 all relate to the important issue of summary eviction. The Bill introduces a fast-track process—innovative in this field—in which a notice from a landlord stands as a court order, leading to provision for summary eviction. Some 30 or 40 years ago, the House set its face against summary evictions for a very good reason: there were too many examples of locks being changed and families literally being put out on to the street to sleep on the pavements. Everybody agreed that there should be due process before individuals and families, particularly families with children, were evicted. The Bill cuts through that protection for no good reason. In this country in the 21st century no group of individuals should—for whatever reason, and whether renting lawfully or not—be subject to summary eviction proceedings that, as I said, we turned our back on a long time ago.

I move on to immigration detention, which has already been touched on and is a matter of increasing concern to many in this House and beyond. The fact of immigration detention causes real distress and anxiety, particularly among vulnerable groups, and its indefinite nature adds to that. There is strong evidence of the impact on varying groups, particularly women. I think I am right in saying that the UK is the only country in Europe that does not have a time limit of any sort on immigration detention. That has been the subject of inquiry by the all-party groups on refugees and on migration. They concluded:

“We believe that the United Kingdom has a proud tradition of upholding justice and the right to liberty. However, the continued use of indefinite detention puts this proud tradition at risk.”

The reforms suggested by the cross-party joint APPG group were backed by the House of Commons when they were debated in September this year, and a motion supporting them was passed. The issue is one of increasing concern and justifying indefinite immigration detention is increasingly difficult. Amendment 32 is intended to deal with that by introducing a 28-day limit, which many people feel is the right one.

New clause 13 is intended to allow a review by an independently chaired panel to consider the issues and report to Parliament within three months; it is not premised on a fixed period. It is important that there is progress on these issues. Immigration detention is a real cause for concern and this is an opportunity to do something necessary.

[The Minister for Immigration (James Brokenshire)]

The hon. Gentleman just said that new clause 13 does not prescribe a particular length of time, yet paragraph (a) specifies a 28-day time limit. Will he confirm that that is his position?

[Keir Starmer]

I apologise. I meant that it proposes a review of the time limit rather than a time limit itself, and that therefore, given the nature of the review, it would be open to it to look at other options. There are shared concerns across the House about immigration detention and its indefinite nature. There will be disagreements as to the precise time limit, if there is to be one, and that can be discussed, but at this stage sitting back and simply accepting the status quo is not an acceptable way of proceeding. However, I will obviously listen to what the Minister has to say on this.

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All the evidence tells us that is not what happens. I will tell the House why. For many asylum seekers, there is no choice. Sleeping on the street in rainy, freezing-cold Britain, going hungry day after day and knowing they are despised by many of the people who pass them by is preferable to returning somewhere where they face all that and are in danger of being raped or even murdered. That is what the evidence tells us. That is what those who work with destitute asylum seekers tell us. That is what asylum seekers themselves tell us. There is one hour to go for those on the parliamentary estate who are watching this debate on television to go to Committee Room 14, where they will find Sanctuary, a fantastic organisation, with dozens of asylum seekers who will tell them that face to face.

[James Brokenshire]

We discussed this matter in Committee. The hon. Lady refers to asylum seekers. Does she mean failed asylum seekers—in other words, people who have claimed asylum but whose claims have not been upheld—because obviously, those who are asylum seekers are supported through the system?

[Anne McLaughlin]

I thank the Minister for giving me the opportunity to make a point about the language that we use. He says “failed asylum seekers”; I say “refused asylum seekers”. Let us not forget that the majority of those who are refused—or failed—by this Government go on to win their appeal when it comes to court.

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[Richard Fuller]

I wish to speak to the new clauses and amendments dealing with immigration detention. New clause 8, which stands in my name, would exempt certain persons from detention. New clause 9 and associated amendment 32, tabled by the Opposition, would provide for a time limit. New clause 13, which stands in the name of my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) and many others across the House, would provide for a review of the role of detention centres in our immigration control system.

Before turning to those new clauses and amendments, however, I want to make a brief comment about the amendments tabled by the SNP. Those amendments have nothing to do with separation, but come from an acute sense that the direction of travel in the Bill, which is to make it harder for people here illegally to stay in the country, pushes against not just things we all agree are wrong, such as exploitation, but against our compassion. SNP Members are absolutely right to ask whether we have got the balance right, and they made some strong points in Committee and today.

The amendments and new clauses focus on immigration detention because for so long now we have lacked control over our immigration detention system. We allowed a culture of disbelief to grow up within it such that the people caught up within the system had no way of managing their rights. It is right that we look for a fundamental change. Immigration detention has moved from being a part of the immigration system to being the substantive and default position. The focus is on looking tough rather than being effective. It would be nice to hear from the Minister that he gets that and that he is focusing on an effective way to achieve what the people of this country want: that we remove, effectively and compassionately, people with no right to be here, while standing up for things we want to protect—namely, our compassion and our values. If some of the amendments we are proposing today are not pressed or if we do not hear a sufficient response from the Minister, I fear that the true victims will continue to be the British sense of compassion and the British sense of justice when we manage immigration.

[James Brokenshire]

I thank my hon. Friend for his contribution, as well as my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) for his. I want to emphasise that that sense of efficiency and effectiveness is absolutely at the heart of the work we are undertaking and of the broad review currently under way. My hon. Friend the Member for Bedford (Richard Fuller) makes some important points about vulnerability, and he knows that Stephen Shaw’s review will focus on that. We will come back to the House soon—before Committee stage in the House of Lords—to respond to the report and to allow, I hope, further detailed examination.

[Richard Fuller]

I am very pleased that the Shaw review will be available for their lordships to review in tabling amendments. I can assure the Minister that, should amendments come to this House to ensure that pregnant women and victims of torture and rape are exempted from our immigration detention estate, I will support those amendments at that time, if the Shaw review has not done a sufficient analysis.

There is no point going over our concerns again that the report has not been available to us in this House—we shall wait on their lordships—but I know that there will be women in Yarl’s Wood detention centre right now who have been victims of torture or rape. We also know that in the last year 100 pregnant women were put into Yarl’s Wood detention centre. This is not one or two cases; it is a significant part of what is happening, and that points to the reason behind new clause 8: the limits on the Minister’s ability to control the action on the ground. The procedures can look perfect on paper, but we know that in practice they are failing and falling down. That is why new clause 8 and the associated amendments aim to restrict the types of people who might fall foul of those processes.

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There are therefore powerful arguments at every level for a shift in policy. I hope the Minister will commit in his response to seeking to limit and reduce the time that people spend in detention.

[James Brokenshire]

I thank all right hon. and hon. Members for their contributions on a range of issues, which have highlighted the concerns, passion and interest that so many people have shown throughout the consideration of this Bill. The debate we have had over the last hour and 50 minutes has again underlined that interest and focus, and it is important that the House has been able to debate in this way.

I want to start with the issue of immigration detention, which is one of the key elements of the debate. I want to underline at the outset the fact that the Home Office has a policy to safeguard against unnecessary or arbitrary detention. The presumption is in favour of liberty. Cases must be considered on their individual circumstances. Detention must be used sparingly and for the shortest period necessary. That goes to the heart of some of the elements in new clause 13, which was tabled by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes). This is about having a system that is efficient and effective, but that also treats those within it with dignity and respect.

[Keir Starmer]

rose—

[James Brokenshire]

If I may, I would like to finish this point and then take interventions. I want to set out the fact that the Home Office is conducting detailed analysis of the purposes behind that—in other words, moving towards the policy that I have underlined, including looking at the checks and balances in the systems to ensure that we have a more efficient and more effective process so that people are removed more swiftly and speedily. We also need to reflect on how that sits within an overall framework of removal.

I believe that it is accepted here that detention plays an important role in managing immigration and managing people towards removal, but it has to have removal as its focus. Yes, of course, for certain groups such as foreign national offenders or in certain national security cases, detention might be needed for a slightly longer period, but always with the focus on the realistic prospect of removal taking place. We will come back to this House in the new year—and we intend this to be before the Bill has passed through both Houses—setting out the much broader piece of work that we are undertaking.

Other amendments relate to the issues of vulnerability raised by Steven Shaw. As I have indicated, we intend to respond to it before the Bill has started its Committee in the House of Lords, and we shall also set out proposals for a new detained fast-track, which I suspended because I was not satisfied that the necessary safeguards were in place. It is the sense of how we construct an efficient and effective detention policy that goes to the heart of the issues I have highlighted—of considering cases on their merits, but using detention sparingly and for the shortest period necessary that is consistent with our policy, which must be upheld.

[Keir Starmer]

Does the Minister agree that the reviews he has summarised deal with the issues raised in paragraphs (b) through to (e) in new clause 13? Having set out the policy carefully, does he agree that it is consistent with the principle that we should seek to limit and reduce the time spent in immigration detention?

[James Brokenshire]

As I have said, the current Home Office policy is to use detention sparingly and for the shortest period necessary, which is why our work on ensuring a more efficient and effective system consistent with our obligation is absolutely consistent with the themes redolent in paragraphs (b) to (e) of new clause 13. The difference is that I believe that having a 28-day time period does not advance the cause. It is a blunt instrument that does not take account of the full range of different circumstances that are redolent here from foreign national offenders to those who might not be compliant with the requirements we put upon them or who abscond, so we need to look at the situation on a case-by-case basis. I repeat, however, that we are conducting our review in the light of our focus on efficiency and effectiveness, and we will revert to the House as I have outlined.

A number of other points, including about the right to rent, have been highlighted in the debate. The right-to-rent scheme restricts the access of illegal migrants to the private rented sector, stopping them setting down roots and building ties. The scheme, which has been rolled out to parts of the west midlands, has not proven difficult or burdensome for landlords, but it has led to illegal migrants being apprehended.

The scheme has been in place for one year and is working as intended. The Government published an extensive evaluation of the right-to-rent scheme’s first six months, and this found no hard evidence of discrimination or any new barriers to lawful residents accessing the private rented sector. Repealing the right-to-rent scheme would remove a significant part of the Government’s measures to deter illegal migration. The Bill’s provisions on residential tenancies are aimed to make it easier for the majority of reputable landlords to evict illegal migrant tenants and to crack down further on those rogue landlords who do so much to damage the sector.

The offences are framed to allow for the prosecution of those who are or who have knowingly rented to illegal migrants or who have or had reasonable cause to believe that they were renting to illegal migrants. We believe that that is the right approach, but a conviction will be possible only where the offence has been proven to the criminal threshold of beyond reasonable doubt. These offences are not designed to catch out a landlord who has made a genuine mistake, and it is difficult to foresee a situation in which it would be in the public interest to pursue a prosecution against a landlord making reasonable efforts to remove illegal migrants from their property.

There are concerns about people being evicted without adequate notice or without sufficient safeguards in place—and points were raised about these in the debate on some of the other amendments. However, safeguards already exist. The Secretary of State will serve notices only where she is satisfied that the migrant is here unlawfully and only after taking the migrant’s circumstances into consideration. Should there be recognised barriers to illegal migrants leaving the UK that are not of their own making, these will be taken into account.

The hon. Member for Glasgow North East (Anne McLaughlin) asked about measures relating to charities. Amendment 46 would create what we regard as a significant loophole in the right-to-rent provisions. It could lead to endless quibbling about what is meant by “significantly exceed the costs” and indeed about what constitutes “costs”. I responded in Committee to give an assurance on a number of different aspects, and said that many of the shelters would fall outside the provisions. Our concern is that rogue landlords would take advantage of the measures that the hon. Lady outlined, and we would not want to create such a loophole.

In the debate in Committee on the director of labour market enforcement, there was strong support on all sides for the creation of such a director, which has been reflected in today’s debate, too. The director’s role is already set out in the Bill. The director will set out the strategy for our enforcement bodies to stop exploitation and non-compliance across the spectrum, but there is a difference between the role of the director and that of the anti-slavery commissioner. If we look at all the different aspects of the labour market enforcement strategy, we judge that the provision is right, but we will obviously continue to reflect to ensure that it is appropriately framed.

On the issue of resources, we have recently announced that we will increase HMRC’s budget for 2015-16 by £4 million around the issue of the national minimum wage. The director will analyse the available funds across all the different aspects for which he or she would have responsibility.

Some have raised concerns about the offence. The Government would not want to prosecute those who have been forced to travel here and exploited for the profit of others, which goes to the heart of the matter. That is why the offence is not aimed at the victims of modern slavery. The statutory defence in section 45 of the Modern Slavery Act 2015 will apply.

On some of the issues raised by SNP Members, we maintain that the heart of the issues that matter here are reserved, so it would not be appropriate to accept the proposed amendments. New clause 16 would amend the compensation arrangements for those experiencing financial detriment as a consequence of an illegal working closure notice, but we believe that these provisions are already covered in paragraph 15 of schedule 3 and related safeguards, which are, in our judgment, sufficient. As for James Ewins’s review of overseas domestic workers, it will shortly be published and will no doubt be subject to further consideration at that stage.

I reiterate to right hon. and hon. Members that we have given careful consideration to the Bill and have reflected on a number of the points raised. I hope that, with the assurances I have given, right hon. and hon. Members will be minded not to press their amendments and new clauses to the vote.

[Stuart C. McDonald]

I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Clause 8

Offence of illegal working

Amendment proposed: 19, page 5, line 2, leave out clause 8.—(Keir Starmer.)

To omit the clause on the new illegal working offence and maintain the status quo.

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Brought up, and read the First time.

[James Brokenshire]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Mrs Eleanor Laing)]

With this it will be convenient to discuss the following:

Government new clause 4—Duty to provide information for the purposes of transfers of responsibility.

Government new clause 5—Request for transfer of responsibility for relevant children.

Government new clause 6—Scheme for transfer of responsibility for relevant children.

Government new clause 7—Extension to Wales, Scotland and Northern Ireland.

New clause 1—Extended criteria for refugees joining refugee sponsors—

‘(1) Rules made by the Secretary of State under section 3 of the Immigration Act 1971, shall make provision for persons outside the United Kingdom to apply for family reunion with persons recognised as refugees in the United Kingdom, or granted humanitarian protection in the United Kingdom on or after 30 August 2005, who are their children, grandchildren, parents, grandparents, spouses, civil or unmarried partners or siblings.

(2) Rules made under subsection (1) may—

(a) make provision for dependants of the persons therein mentioned;

(b) make provision for a person who the Secretary of State is satisfied was a dependant of the refugee or person granted humanitarian protection or a member of their household at the time the refugee or person granted humanitarian protection left the country of his habitual residence;

(c) restrict provision for siblings applying to join family in the UK to those who have not formed their own independent family unit outside of the UK.

(3) Family members seeking leave to enter or remain in the United Kingdom must—

(a) be applicants who would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right;

(b) be applicants who would not be excluded from humanitarian protection for any reason in the immigration rules in the United Kingdom.’

This new clause would allow those separated from their family, and who have refugee or humanitarian protection status in the UK, to sponsor family members beyond spouses or under-18 children to join them. It would also remedy an anomaly that prevents children with refugee status in the UK from sponsoring their parents to join them.

New clause 11—Review of rules relating to refugee family reunion—

‘(1) The Secretary of State must undertake a review of the current rules on refugees or those granted humanitarian protection reuniting with close family members in the UK.

(2) The review under subsection (1) must consider—

(a) the failure to implement Dublin Convention III, which allows for spouses or children under 18 with refugee status or those granted humanitarian protection to be reunited with family members in the UK;

(b) options for allowing British citizens to sponsor close family members recognised as refugees or granted humanitarian protection; and

(c) options for extending the criteria for family reunion to include children, grandchildren, parents, grandparents, spouses, civil or unmarried partners or siblings who have refugee status or have been granted humanitarian protection and have close family members in the UK.

(3) This review under subsection (1) must be completed and a copy must be laid before Parliament within six months of this Act receiving Royal Assent.’

Amendment 29, page 40, line 14, leave out clause 37.

Government amendments 5 and 6.

Amendment 31, in schedule 8, page 109, line 29, leave out from “(6)” to end of line 30 and insert—

(none) “, for “section 4 or 95” substitute “section 95”;

(iii) in subsection (7) for “section 4 or 95” substitute “section 95 or 95A”.”

See explanatory statement for amendment 30.

Amendment 40, page 112, line, leave out sub-paragraph (5).

This amendment ensures that families with children under 18 receive section 95 support until they leave the country.

Amendment 30, page 113, line 13, at end insert—

‘(2A) If the Secretary of State decides not to provide support to a person or not to continue to provide support to them, under this section , the person may appeal to the First Tier Tribunal.’

To reinstate a right of appeal against Home Office decisions to provide support (under Section 95 or new 95A).

Amendment 2, page 119, line 21, at end insert—

‘(43A) The Immigration Act 1971 is amended as follows.

(43B) After section 3(9) (general provisions for regulation and control) insert—

“(10) In making rules under subsection (2), the Secretary of State must have regard to the following.

(11) Rules must provide for persons seeking asylum, within the meaning of the rules, to apply to the Secretary of State for permission to take up employment (including self-employment and voluntary work) and that permission must be granted if—

(a) a decision has not been taken on the applicant’s asylum application within six months of the date on which it was recorded, or

(b) an individual makes further submissions which raise asylum grounds and a decision on that fresh claim or to refuse to treat such further submissions as a fresh claim has not been taken within six months of the date on which they were recorded.

(12) Permission for a person seeking asylum to take up employment shall be on terms no less favourable than those upon which permission is granted to a person recognised as a refugee to take up employment.”’

Amendment 42, in schedule 9, page 121, line 26, leave out paragraph 2.

This amendment removes those provisions added by Schedule 9 that would prevent local authorities providing leaving care support under the Children Act 1989 to young people who are not asylum seekers and do not have leave to remain when they reach the age of 18 years.

Government amendment 7.

Amendment 43, page 122, leave out lines 16 to 34.

This amendment removes those provisions added by Schedule 9 to the Immigration Bill that would prevent local authorities providing leaving care support under the Children Act 1989 to young people who are not asylum seekers and do not have leave to remain when they reach the age of 18 years.

Amendment 44, page 122, line 46, at end insert

‘and,

(c) he entered the UK as an adult.’

This amendment enables local authorities to provide leaving care support under the Children Act 1989 to young people who do not have leave to remain and are not asylum seekers.

Government amendments 8 to 12.

Amendment 45, page 124, leave out from line 11 to line 13 on page 125 and insert—

‘10B The Secretary of State shall provide adequate funding to local authorities to enable them to meet their duties under the Children Act 1989 to persons who do not have leave to enter or remain and are not asylum seekers.’

This amendment provides for the Secretary of State to make funding available to local authorities, as the specialist agency responsible for care leavers, to meet the duties set out in the Children Act 1989 in relation to young people who do not have leave to remain and are not asylum seekers.

Government amendments 13 to17.

New clause 2—Automatic deportation under the UK Borders Act 2007—

‘(1) Section 32 of the UK Borders Act 2007 is amended as follows.

(2) In subsection (2) substitute “12” for “6”.’

This new clause would require that non-British citizens who commit offences and are sentenced to 6 months in prison are deported automatically.

New clause 10—Offence of presence in the United Kingdom without legal authority—

‘(1) Any person who is present in the United Kingdom after 1 June 2016 without legal authority shall be guilty of an offence.

(2) Any person who after 1 June 2016 enters or attempts to enter the United Kingdom without legal authority shall be guilty of an offence.

(3) A person guilty of an offence under subsection (1) is liable on summary conviction—

(a) to imprisonment for a term not exceeding six months;

(b) to a fine which in Scotland or Northern Ireland may not exceed £5,000, or to both.

(4) Any person who is convicted of an offence under subsection (1) shall be subject to a deportation order unless the Secretary of State deems such a deportation order to be against public interest.

(5) For the purposes of subsection (2) above, a deportation order shall be deemed to be in the public interest unless a certificate to the contrary has been submitted by the Secretary of State to the court.’

This new clause makes provision for criminal sanctions including deportation orders against those who have entered the United Kingdom illegally or who remain in the United Kingdom without legal authority. It adds to the existing offences under Section 24 of the Immigration Act 1971.

New clause 12—Right of residence: registration certificates—

‘(1) Section 7 of the Immigration Act 1988 is repealed.

(2) Notwithstanding the provisions of the European Communities Act 1972, or any other enactment, any non-UK citizen resident in the United Kingdom without authority to remain in the United Kingdom provided by a valid visa, visa waiver, residence permit or other official permission must apply for a registration certificate to confirm their right of residence in the United Kingdom.

(3) The Secretary of State shall by regulations prescribe the content of application forms for registration certificates and for the grounds on which an application made may be granted or refused and arrangements for appeals and final adjudications.

(4) The Secretary of State shall establish the registration certificate scheme, comprising the matters mentioned in subsection (3) and such other matters as he thinks necessary and expedient, by 30 November 2016.

(5) Any person present in the United Kingdom after 31st December 2016 without legal authority or without having applied on or before 31st December 2016 for a registration certificate under subsection (2) above shall be guilty of an offence.

(6) Any person who, after 31st December 2016, enters or attempts to enter the United Kingdom without legal authority shall be guilty of an offence.

(7) A person guilty of an offence under subsections (5) or (6) is liable on summary conviction—

(a) to imprisonment for a term not exceeding six months; or

(b) to a fine which in Scotland or Northern Ireland may not exceed £5,000; or

(c) to both.

(8) Any person who is convicted of an offence under subsections (5) or (6) shall be subject to a deportation order unless the Secretary of State deems such a deportation order to be against the public interest.

(9) For the purposes of subsection (8) above, a deportation order shall be deemed to be in the public interest unless a certificate to the contrary has been submitted by the Secretary of State to the Court.

(10) Any power to make regulations under this section is exercisable by statutory instrument.

(11) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.’

New clause 14—Minimum income requirement for partner visas—

‘(1) The Secretary of State shall within six months after this Act receives Royal Assent amend the Immigration Rules regarding a person applying for entry clearance to, leave to remain in or indefinite leave to remain in the UK as the non-EEA national partner or dependent child of a person who is—

(a) a British citizen; or,

(b) present and settled in the UK; or

(c) in the UK with refugee leave or humanitarian protection

to make provision as set out in this section.

(2) The minimum annual income requirement—

(a) for the sponsor of the partner shall be the equivalent of one year’s full-time salary (net of tax and national insurance contributions, and allowing for four week’s holiday) at the rate of the National Minimum Wage as it applies to that individual;

(b) for the first child in addition to the partner the additional sum of £2,500;

(c) for each further child the additional sum of £2000.

(3) The minimum annual income requirement as specified in subsection (b) may include financial support from third parties.

(4) In this section “full-time” will mean 35 hours a week.’

New clause 15—Adult dependant relative visas—

‘(1) The Secretary of State shall within six months after this Act receives Royal Assent amend the Immigration Rules regarding Entry Clearance in respect of an adult dependant relative of a person who is—

(a) a British Citizen; or,

(b) a person settled in the UK; or

(c) in the UK with refugee leave or humanitarian protection

to make provision as set out in this section.

(2) The Immigration Rules for persons specified in subsection (a) must not require as condition for entry that in the country where they are living—

(a) the required level of care is not available;

(b) there is no person in that country who can reasonably provide the required level of care;

(c) the required level of care is not affordable.

(3) The applicant shall be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds for five years.’

Amendment 39, in clause 20, page 25, line 18, at end insert—

‘(2A) In paragraph 2(2) after “examine” insert “at the point of entry into the United Kingdom.’

This amendment would end the practice of conducting speculative, in-country spot-checks and restrict the power to the point of entry into the UK.

Amendment 36, in clause 25, page 32, leave out lines 20 to 23.

This amendment removes proposed extension of powers of relevant officers—custody officers, prison officers or prisoner custody officers—to conduct strip searches of detainees for documents which “might” establish a person’s nationality or indicate “the place from which the person travelled to the UK or to which a person is proposing to go”.

Government amendments 3 and 4.

Amendment 27, page 39, line 6, leave out clause 34.

Amendment 28, in clause 34, page 39, line 19, at end insert—

‘(5A) After subsection (3) insert new subsection—

“(3A) Before a decision is taken to certify a human rights claim the Secretary of State must obtain a multi-agency best interests assessment in relation to any child whose human rights may be breached by the decision to certify.”’

To make sure that before a decision is made to certify any claim for out of country appeal, the best interests of any child affected by this decision must be considered.

Amendment 34, in clause 58, page 50, line 11, at end insert—

‘(3A) Part 7 shall not come into force in Scotland without the consent of the Scottish Parliament.’

To prevent language requirements on public sector workers applying in Scotland without the consent of the Scottish Parliament.

Amendment 1, in clause 59, page 50, line 18, leave out subsection (2).

Amendment 37, in schedule 7, page 97, line 9, at end insert—

‘( ) The following provisions apply if a person is detained under any provisions set out in paragraph (current paragraph 1(1))—

(a) the Secretary of State must arrange a reference to the First-tier Tribunal for it to determine whether the detained person should be released on bail;

(b) the Secretary of State must secure that a first reference to the First-tier Tribunal is made no later than the eighth day following that on which the detained person was detained;

(c) if the detained person remains in detention, the Secretary of State must secure that a second reference to the First-tier Tribunal or Commission is made no later than the thirty-sixth day following that on which the detained person was detained and every twenty-eighth day thereafter;

(d) the First-tier Tribunal hearing a case referred to it under this section must proceed as if the detained person had made an application to it for bail; and

(e) the First-tier Tribunal must determine the matter—

(i) on a first reference, before the tenth day following that on which the person concerned was detained; and

(ii) on a second and subsequent reference, before the thirty-eighth day following that on which he was detained.

( ) For the purposes of this paragraph, “First-tier Tribunal” means—

(a) if the detained person has brought an appeal under the Immigration Acts, the chamber of the First-tier Tribunal dealing with his appeal; and

(b) in any other case, such chamber of the First-tier Tribunal as the Secretary of State considers appropriate.

( ) In the case of a detained person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 applies (jurisdiction in relation to bail for persons detained on grounds of national security) a reference under sub-paragraph (3)(a) above, shall be to the Commission and not to the First-tier Tribunal.

( ) Rules made by the Lord Chancellor under section 5 of the Special Immigration Appeals Commission Act 1997 may include provision made for the purposes of this paragraph.’

This amendment makes provision for automatic judicial oversight of detention after eight days, then after a further 28 days, and every 28 days for so long as detention lasts.

Amendment 38, page 102, line 9, leave out sub-paragraphs (1) to (3) and insert—

‘(1) The Secretary of State must provide, or arrange for the provision of, facilities for the accommodation of persons released on immigration bail.’

This amendment makes provision for an impecunious detainee to be furnished with an address to facilitate their applying for bail, without which they are unlikely to be granted bail.

[James Brokenshire]

In this part of the debate we turn to amendments and new clauses concerning the asylum system and the arrangements made for the support of failed asylum seekers who the courts have agreed do not need our protection.

The crisis in Syria and events in the middle east, north Africa and beyond have seen an unprecedented number of migrants and asylum seekers arriving in Europe. Some have gone on to reach the UK via northern France, including many unaccompanied asylum-seeking children. There are now nearly 1,000 unaccompanied asylum-seeking children in Kent County Council’s care, 300 of whom have had to be placed in other local authority areas. I would like to put on record my thanks to all those in Kent—all the officers and others—for the way in which they have responded to this challenge, but in our judgment a national response is required.

Additional funding has been made available to local authorities who take on responsibility for unaccompanied asylum-seeking children from Kent. We hope that the dispersal arrangements that have been put in place will remain voluntary. However, we have tabled new clauses 3 to 7 and Government amendments 5 and 6 to underpin the voluntary dispersal arrangement and, if necessary, enforce them, although we see this as a reserve backstop power. The amendments introduce a new power to facilitate the transfer of unaccompanied asylum-seeking children from one local authority to another; enable the Secretary of State to direct local authorities to provide information about their support to children in their care—this will inform new transfer arrangements; enable the Secretary of State to direct a local authority that refuses to comply with a request to accept an unaccompanied asylum-seeking child to provide written reasons; enable the Secretary of State to require local authorities to co-operate in respect of transfers; and enable the provisions to be extended across the UK by regulations, subject to the affirmative procedure and informed by further dialogue with the devolved Administrations.

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[Anne McLaughlin]

Does the Minister agree that the children of parents who will not return—to my mind, mostly because they cannot—face genuine obstacles to returning, namely their parents, and that we should therefore support those children because they have absolutely no choice in the matter?

[James Brokenshire]

We had detailed and considered debate about this in Committee, to which the hon. Lady was party. The point I made there is that the family returns process engages with this so that we assist and work with families to bring about their return. She will recall our debates about the support that can still be made available by local authorities in respect of destitution cases. That support is potentially still available as we continue, as part of this process, to assist families in their entirety, with the appropriate safeguards, in seeing that they are returned if they do not have the right to remain in the UK.

The appeal statistics on asylum support do not give the full picture. In the year to August 2015, 37% of asylum support appeals were dismissed. Forty-one per cent. were allowed, but in many cases this was because the person provided only in their appeal the evidence required for support to be granted. Many of the remainder were remitted for reconsideration or withdrawn, in many cases also in the light of new evidence provided in the appeal. Few appeals related to the issue of whether there was a practical obstacle to departure from the UK. The previous independent chief inspector of borders and immigration found in his July 2014 report on asylum support that 89% of refusals were reasonably based on the evidence available at the time.

Amendments 42 to 45 would reverse the Bill’s reforms of support for adult migrant care leavers and require that they be provided with local authority support under leaving care legislation, even though all their applications and appeals to stay here have been refused. We believe that these changes are wrong in principle. Public money should not be used to support illegal migrants, including failed asylum seekers, who can leave the UK and should do so. The amendments would create obvious incentives for more unaccompanied children to come to the UK to make an unfounded asylum claim, often by using dangerous travel routes controlled by smugglers and traffickers. We are speaking of adults. If their asylum claim has been finally refused, automatic access to further support from the local authority should cease at that point. The Bill makes appropriate provision for their support before they leave the UK.

Amendment 2 would allow permission to work where an asylum claim has been outstanding after only six months, remove the caveat that any delay must not be of the asylum seeker’s own making, and lift all restrictions on the employment available. As we debated in Committee, we do not consider this to be sensible. We met our public commitments to decide all straightforward asylum claims lodged before April 2014 by 31 March 2015 and to decide all straightforward claims lodged from 1 April 2014 within six months. About 85% of cases are straightforward. We judge that this policy strikes the right balance. If an asylum claim remains undecided after 12 months, for reasons outside the person’s control, they can apply for permission to work in employment on the shortage occupation list. This is fair, reasonable and consistent with EU law.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

The Minister has talked about making regulations to extend provisions to Wales and about skills requirements. Does he agree that the Bill should recognise, in dealing with asylum claims, the distinct skills and immigration requirements of Wales, and enable the Welsh Government to provide input into Home Office immigration policy?

[James Brokenshire]

I am afraid that I do not, on the basis that immigration is a reserved matter. The hon. Lady may be aware that the Migration Advisory Committee analyses differences in this regard between the countries of the UK, as well as regional differences. For example, in Scotland there is a separate shortage occupation list, so there is an ability to reflect variations across the UK in assessing evidence and policy.

New clauses 1 and 11 would widen the scope for refugee family reunion. I am aware of the calls from the Refugee Council and others for that. We recognise that families may become fragmented because of the nature of conflict and persecution, and the speed and manner in which those seeking asylum often flee their country of origin. Our policy allows the immediate family members of a person with refugee leave or humanitarian protection —for example, a spouse or partner, and children under the age of 18 who formed part of the family unit before the sponsor fled their country—to be reunited with them in the UK. The immigration rules allow for the sponsorship of other family members. By contrast, some EU countries require up to two years’ lawful residence before a refugee becomes eligible and impose time restrictions on how quickly family members must apply once their sponsor becomes eligible.

We have granted over 21,000 family reunion visas over the past five years. In our judgment, widening the criteria for inclusion would not be practical or sustainable. It might be a significant additional factor in how the UK is viewed by those choosing where among the different jurisdictions to make their asylum claim, and it would undermine our wider asylum strategy. Some have asked whether we have fully implemented the Dublin regulations. In our judgment, we have. The challenge is to get family members to make claims in EU countries to establish the links that operate under the Dublin regulations. That is often the impediment standing in the way of those who are entitled to this, but who need to start by making their claim in an EU country.

[Caroline Lucas (Brighton, Pavilion) (Green)]

Does the Minister not accept that the definition of a family is drawn incredibly tightly and is very cruel, for example to those with siblings or children over the age of 18? He says that extending the criteria would not be efficient or effective, but it would actually be one of the most effective ways of granting refugee status to more people. Such people will not put great pressure on our services because they will largely be looked after by their families.

[James Brokenshire]

I recognise the manner in which the hon. Lady advances her point, but our judgment is that the policy strikes the right balance. Our family resettlement policy has rules, but equally, certain circumstances—for example, where there are older relatives, or issues relating to illness or medical need—allow for some greater flexibility within those existing rules. From our standpoint, the steps we are taking on resettlement are about an assessment of vulnerability. That is redolent of the approach we are taking in the camps, through the United Nations High Commissioner for Refugees, and how we are seeking to deal with resettlement.

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

rose—

[James Brokenshire]

I am delighted to give way to the right hon. Lady, who tabled new clause 1.

[Yvette Cooper]

May I press the Minister on the people who are currently excluded by the rules? For example, a case has been raised with me about a family of refugees from Syria. The parents are in this country with their younger children, but their 19-year-old daughter is still in Lebanon. She is unable to join them, even though she is also a refugee from Syria, because she is over 18, which is surely wrong. As a result, they are worried that they may have to pay people smugglers and traffickers to get her to Britain, which is a huge risk and would mean breaking the law.

[James Brokenshire]

As the right hon. Lady knows, the current regulations are framed in a way that allows the resettlement of children under the age of 18. Our judgment is that that is framed in the right way. Adults seeking protection can use the normal route of claiming asylum in other countries. We do not think that resettlement should be extended beyond the current framework. As I have said, there are exceptions to that, particularly in cases of older relatives who have an illness. The rules can operate in a way that allows entry clearance officers to take such factors into account. Clearly, the rules are examined case by case, including by looking at whether leave falling outside the rules may be appropriate in certain circumstances.

[Yvette Cooper]

What is the option for that 19-year-old and so many other similar cases? Where does she go—should she get a boat across to Greece and try to apply there? The Dublin III arrangements are not working for people arriving in Greece and Italy. There are huge numbers of examples of that. What does the Minister say to that 19-year-old?

[James Brokenshire]

We think that the Dublin arrangements are the right way to provide consistency of approach across the whole EU in dealing with what some have described as asylum shopping and with people’s ability to choose the jurisdiction in which they claim asylum. The key element is that we achieve a stable Syria, so that the people in those camps can see a stable future in which they will be supported there. Our response in relation to humanitarian protection, including the £1.1 billion that the Government have committed, absolutely matters. It is not simply about direct humanitarian protection; it is about education, about giving people a sense of hope and purpose and about ending up with a stable Syria to which people will be able to return as soon as possible.

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[Mr Christopher Chope (Christchurch) (Con)]

Does my right hon. Friend accept that, in 2013, the latest year for which I have statistics, there were only 72 convictions in magistrates and Crown courts for all the offences mentioned in section 24? Does he think the Government are taking the matter seriously enough?

[James Brokenshire]

I pay tribute to my hon. Friend for the way in which he has advanced these issues and underlined the need for us to remain focused on the removal of those who have no lawful authority to be here and to address those who have sought to come into the UK by clandestine means. The most effective way of dealing with those matters is to have an effective removal process, and that is why we are legislating in this way in the Bill. I also want to highlight the work that we discussed in our debate on the previous group of amendments. We are working to achieve a speedier and more efficient and effective use of detention and to determine how that plays into a more effective removal process more generally. The measures are already in place, but my hon. Friend’s points relate fundamentally to our achieving more efficient and effective removal, which is an aim I share.

[Richard Fuller]

May I take my right hon. Friend back to new clause 2, which relates to the deportation of non-British citizens who have committed offences here? I am persuaded by his response to the new clause, which was tabled by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), but will he tell us a little more? I understand that there is a number of countries to which it is extremely difficult for us to deport people in these circumstances. Are moves such as we have seen in relation to Jamaican prisons relevant to this issue, and has any progress been made with those other countries?

[James Brokenshire]

My hon. Friend makes an important point. The issue of prison conditions is relevant, for example, as are prisoner transfer agreements and the bilateral arrangements that we have in place. Work is being done across Government on the return of foreign national offenders, which I know was a particular issue for my hon. Friend the Member for Enfield, Southgate, not simply in the Home Office, but in the Foreign Office, the Ministry of Justice and elsewhere, to look at these issues in the round and see what measures and mechanisms are available to us to enhance the process. My hon. Friend the Member for Bedford (Richard Fuller) was right to frame his point in that way. I assure him and my hon. Friend the Member for Enfield, Southgate that we are taking a joined-up approach across Government to use the measures that are available to us to enhance our response in respect of returns.

New clause 12 seeks to create a system that requires non-UK nationals, including EU nationals, seeking leave to enter and remain in the UK to obtain legal authority to remain in the UK. I agree with much of the thinking of my hon. Friend the Member for Christchurch (Mr Chope), but new clause 12 essentially seeks to curtail the free movement of EU citizens to the UK under existing treaty rights. I am not sure that legislation is the right way to approach that.

The Immigration Act 2014 limits the factors that draw illegal migrants to the UK and introduces tough domestic reforms to ensure that our controls on access to benefits and services, including the NHS and social housing, are among the tightest in Europe. We believe that the way to bring about real change is through effective renegotiation with the European Union. My hon. Friend the Member for Christchurch will be well aware of the letter the Prime Minister sent to Donald Tusk, the President of the European Council, to set out our approach and the broader stance we seek to take.

New clause 14 would require the Secretary of State to amend the minimum income threshold requirement for sponsoring a non-EEA national partner and any non-EEA national dependent children to settle in the UK. That would undermine the impact of the minimum income threshold, which the courts have agreed correctly reflects the public interest in controlling immigration to safeguard the UK’s economic wellbeing by preventing family migrants from becoming a burden on the taxpayer and by promoting their integration. A couple with income equivalent to the national minimum wage can still access income-related benefits and tax credits. A minimum income threshold set at that level would therefore not be sufficient to prevent burdens on the taxpayer once the migrant partner reached settlement and had full access to welfare benefits. It would also provide less support for the migrant partner’s integration in society. That is simply not an adequate basis for sustainable family migration and integration.

[Stuart C. McDonald]

Will the Minister clarify his position on the rules that prevent potential income from a non-EEA spouse from being taken into account? That income is not a burden on the UK taxpayer, so why is it still the Government’s position that it should be excluded?

[James Brokenshire]

As I have indicated, it is about creating a long-term stable position on what may be considered a burden. I underline that we continue to look at the specific rules on what is and what is not taken into account. I am happy to reflect further on the point that the hon. Gentleman has highlighted. The Government’s approach has been challenged in the courts and the relevant monetary threshold has been upheld. We will continue to analyse experience and evidence in respect of this matter, but our judgment is that the way in which we assess what is counted is right.

New clause 15 would require the Secretary of State to amend the entry clearance rules for non-EEA national adult dependent relatives to remove the current requirement that the personal care needs of that relative cannot be met in their country of origin. Again, that would represent a significant dilution of the reforms implemented in July 2012. The route for adult dependent relatives was reformed because of the significant NHS and social care costs that can be associated with these cases. The route now provides for those most in need of care, but not for those who would simply prefer to come to live in the UK. The family immigration rules that we reformed in the last Parliament are having the right impact and are helping to restore public confidence in this part of the immigration system. If personal care needs can be met in someone’s country of origin, it is not right to allow them to travel to the UK for that purpose.

[James Cleverly (Braintree) (Con)]

Is it not the case that many of the frictions between immigrant and settled communities relate to fears about the abuse of the health and care system, and that having a clear framework that makes explicit the limits of what we will and will not accept will go a long way towards calming the nerves of the host communities in respect of the new entrants to their areas?

[James Brokenshire]

I thank my hon. Friend for his intervention. That is what we have done. We must also ensure public confidence more generally about where costs should lie, and ensure that understandable concerns about access to healthcare are framed rightly. That is why we introduced the immigration and health surcharge in the last Parliament.

Amendment 39 seeks to restrict the power of immigration officers to examine someone in-country. As my hon. and learned friend the Solicitor General—he is sitting alongside me—said in Committee, the power to examine someone in-country is essential, for example when immigration officers are questioning persons who have been seen climbing out of lorries on motorways or at service stations, and who are therefore suspected of having entered the UK illegally.

Officers working in immigration enforcement do not conduct speculative spot checks. To examine a person after the point of entry, an immigration officer must have information that causes them to question whether someone has the right to be in the UK, as set out in the 1987 case of Singh v. Hammond. Our published guidance reflects that judgment, and makes clear that when conducting an in-country examination, immigration officers must first have reasonable suspicion that a person is an immigration offender, and they must be able to justify that reasoning. If the power of examination is limited only to the point of entry, the ability to conduct in-country enforcement operations would either be severely hampered, or it could risk unnecessary arrests.

Government amendments 3 and 4 are minor and technical, and replace “strip search” with “full search” to allay concerns that the person is stripped completely naked during such a search when that is not the case. We judge that the term “full search” more appropriately reflects the nature of the power.

Amendment 36 seeks to remove the power to conduct such searches from detainee custody officers, prison officers and prisoner custody officers when they are searching for nationality documents. As the Solicitor General said in Committee, the reality of detention is such that items are often concealed below clothing. It may therefore be necessary in some cases to remove the detainee’s clothes to locate documentation and other items. Of course, such a power must be governed by appropriate safeguards, and used only when necessary, and it may not be exercised in the presence of another detained person or a person of the opposite sex. Removing altogether the ability to search in that way would create an easy way for detainees to thwart removal efforts.

Amendments 27 and 28 are to clause 34. Section 94B of the Nationality, Immigration and Asylum Act 2002 allows human rights claims and deportation cases to be certified to require an appeal to be brought from outside the UK, where to do so would not cause serious irreversible harm or otherwise breach human rights. Clause 34 extends that power to apply to all human rights claims, but amendment 27 would remove that clause from the Bill. Extending such a power to all human rights claims is a Government manifesto commitment and builds on the success of section 94B, which was introduced by the Immigration Act 2014 and has resulted in more than 230 foreign national offenders being deported before their appeal.

The Court of Appeal recently considered two cases concerning the operation of that power. It held that the Government are generally entitled to proceed on the basis that an out-of-country appeal is a fair and effective remedy. The amendment would prevent the Government from meeting their manifesto commitment to extending that successful power, the operation of which has recently been endorsed by the Court of Appeal.

Amendment 28 relates to the best interests of children. It seeks to impose an obligation on the Secretary of State to conduct a multi-agency best-interest assessment for any child whose human rights may be breached by the decision to certify. The amendment is unnecessary because, before any decision to certify is made, the best interests of any child affected by that decision must already be considered. Section 55 of the Borders, Citizenship and Immigration Act 2009 imposes a statutory duty on the Secretary of State to consider the best interests of any child affected by a decision to certify. Where the person concerned makes the Secretary of State aware of the involvement of a child who may be affected by her decision, the Secretary of State will ensure that the best interest of that child is a primary consideration when deciding whether to certify. That consideration is supported by published guidance and will take into account all the circumstances of the case.

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[Gavin Robinson]

It is a wonderful tenet of our democracy that if people wish to choose an individual to represent them irrespective of their linguistic gymnastics, and are satisfied that that person will do so ably and capably, it should be within their gift to endorse them. However, when it comes to those employed in our public services throughout the UK, I think not only that this should be a requirement, but that it should apply in Northern Ireland as well.

Having made such points, it is fair to recognise what the Minister outlined in his opening speech on this tranche of amendments. He said that there are implications for the devolved Administrations and institutions, and that what has been fairly replicated for the devolved Administration in Scotland should most properly have formed the basis of our amendment 1. I accept that point, so if he considers the amendment defective, I will take that on board. However, the principle is well worth pursuing. He helpfully outlined that the Government intend to look at the issue again in the other place, which I welcome.

[James Brokenshire]

It may help the hon. Gentleman to say that, as I indicated in my speech, certain drafting issues need further attention to make the provision effective and consistent with those in the other nations of the UK, but we certainly intend to return to it in the Lords.

[Gavin Robinson]

I am grateful to the Minister for his comments.

While we are on that topic, may I suggest that there is further work to be done in the other place? Schedule 11 relates to maritime enforcement. Reference was made on Second Reading to the failure of the schedule to mention the Belfast harbour police. I think the Minister took on board the fact that it is a properly constituted, legitimate authority that is mandated to operate within the port. It is a private police force, but it looks after the security of the port. I believe that an additional provision relating to the Belfast Harbour Police could be inserted into the Bill in the other place, should the opportunity to do so arise and should such a provision have the Government’s backing. If we are intent on pursuing the thrust of the Bill, and the protections that the maritime provisions will provide, it is important that we give that matter consideration in the other place.

I want to raise a couple of issues that have arisen in recent years that relate to immigration in general and to the UK Border Force in particular. They relate to the new clauses and amendments, so I shall not be straying too far from the subject. Border Force runs a skeleton operation in Northern Ireland. In fact, one could easily be forgiven for thinking that its effective operational role related only to mainland GB.

There are ferry links between my constituency of Belfast East and that of my right hon. Friend the Member for Belfast North (Mr Dodds), and the constituency that Stranraer rests in. I am struggling to remember which one that is, but I think it is Dumfries and Galloway. Stena goes there. UK Border Force will be waiting in Scotland for anyone travelling from our part of the UK to that part of the mainland. Should anyone wish to board the vessel in Belfast in a vehicle, they will not be searched or questioned at all. Foot passengers will go through more invasive security procedures, but the immigration screening does not take place in Belfast. That omission should be looked at.

I want to mention the case of Myriama Yousef. She is a wonderful character who sought asylum in Belfast and received great assistance from the Belfast Central Mission, the Methodist church in the city. I have to be careful about the terminology I use to describe her case. She is either a failed asylum seeker or a refused asylum seeker. She is someone who sought asylum in the United Kingdom and was turned down. She had to spend time in the Larne House detention centre, which is located within the Larne PSNI station. Anyone with any knowledge of security arrangements in Northern Ireland will know that the police stations there are not the most welcoming or inviting places. That is a consequence of our history. Anyone who is detained for immigration reasons in Northern Ireland is held there, in what looks like a military compound, with sangars, high fences, security lighting and security cameras. It is not an acceptable place. Myriama Yousef was deported to the country from which she had entered the UK. She was removed to Dublin, at which point she immediately got on the Ulsterbus, paid her £8.50 fare and was back in Belfast within two hours. Following her subsequent detection, she was brought to Yarl’s Wood.

Another case relates to a point made by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper). She talked about a 19-year-old in Beirut who was separated from her family, but this case relates to Johnny Sandhu, an Indian-born solicitor from Northern Ireland who operated in Limavady. He was detected in the serious crime suite inciting a member of the Ulster Volunteer Force to commit murder so that they could evade prosecution. He was subsequently jailed for 10 years and, on his release, he was deported back to India. His family, who relied on him, were left in Northern Ireland. His children, who were going through the education system and doing their GCSEs at the time, were not in a position to up sticks and leave, but their father was never in a position to come back to the United Kingdom.

I would be grateful if the Minister considered cases such as that and the one raised by the right hon. Member for Normanton, Pontefract and Castleford to see how we can be a little more compassionate and recognise that, when someone’s 18th birthday strikes, they do not cut all ties or lose all connection with their family. We should consider how we, as a country, can best ensure that the family unit is held together.

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[Paul Blomfield]

In view of the time and our keenness to hear the Minister respond, I will just raise a couple of brief points. Amendment 7 has not been discussed so far this afternoon, and it is unfortunate that it is being introduced at this stage, because we did not get the opportunity to consider the principles behind it in Committee. Those include fundamental principles about the removal of access to higher education for a significant cohort of young people. The amendment will prevent local authorities from providing funding to facilitate access to higher education for care leavers whom they are supporting but who have limited leave to remain.

In the explanatory notes, the Government say that that measure will be replaced by a requirement to qualify under student support regulations, which implies that that is an easy alternative route. However, they know that that is disingenuous, because under those regulations young people who have not been recognised as refugees qualify for such a loan only if they have had leave to remain for three years, or if they have lived in the UK for more than half their life. In effect, that measure cuts off access to higher education for a significant proportion of young people who will, in many cases, gain leave to remain in the UK and build their lives here. That is not only discriminatory, but it prevents young people at a crucial point in their life from developing the skills that will provide them with productive careers and an opportunity to give back to society.

The Government have also said that they are concerned about an undue burden on local authorities because people in that situation are required to pay overseas student fees. It would be easy to legislate to give them home fees student status, which would be another option for alleviating the burden on local authorities, and one that I am sure universities would be keen to embrace. I raise the point only because I hope that, when the Bill reaches the other place, this issue will be given proper consideration.

The removal of support from refused asylum seekers with families says a lot about the Bill as a good example of bad law making, with measures brought forward that fly in the face of evidence. As other hon. Members have made clear, all the evidence is that not only is it a harsh measure, but it will be counterproductive to the Government’s objectives. If we want to reduce expenditure on support for asylum seekers, the best way to do so is to conclude cases as quickly as possible. That does not require legislation: it just needs better resourcing and decision making in the Home Office.

In Committee, the Minister argued that asylum support rates are a pull factor for asylum seekers coming to the UK, despite the fact that our rates are significantly lower than those of most other countries in Europe. I challenged him to provide evidence that they were a pull factor, but he was unable to do so. I hope that now, having had the opportunity to consider the issue and to draw on the substantial support that he has, he might be able to provide the evidence that justifies the removal of that support. All the evidence that we received as a Committee suggests that it will drive the issue in the opposite direction to the Government’s objectives. It will make it more difficult for the Home Office to remain in contact with the people liable to removal and, ultimately, undermine efforts to promote voluntary departures. It will not tackle the issue: it will create destitution that will then have to be addressed by local authorities; it will create pressure on mental health services, something that we also heard; and it could leave people vulnerable to labour exploitation by pushing them into the hands of exploitative employers. For all those reasons, I urge the Government to think again on this issue.

[James Brokenshire]

Again, we have touched on several important themes in the Bill that were debated and examined in detail in Committee. We have also had additional items in new clauses that were not addressed in Committee, including those tabled by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper). We understand the depth of feeling about the human suffering in Syria and the UK and we are obviously taking several steps to respond to that crisis. I recognise the contribution that she has made to highlight several issues and concerns relating to that. We do not believe, however—I will explain how this fits into what other European countries are doing—that widening the family reunion eligibility criteria is the appropriate response. We are focusing our efforts on humanitarian aid to help the majority of refugees who remain in the region, and working with international partners to find a solution to the conflict, as well as—of course—the issue of resettlement, including of 20,000 of the most vulnerable refugees over the course of this Parliament.

The right hon. Lady asked about Dublin, and it is important to underline that the UK has fully implemented the Dublin III regulation. Those in Calais are the responsibility of the French authorities, and anyone wishing to benefit from the family unity provision of the regulation must first lodge an asylum claim in France and provide details of their family in the UK. A request will then be made to the UK to accept responsibility for that claim based on the presence of close family members—as I think the right hon. Lady recognises. As part of our joint declaration with the French Government, we continue to work with the French authorities on the overall processing of asylum claims and ways in which we can continue to support their activities. Indeed, some of the numbers they are processing and seeing outside the camps are increasing.

It is also worth underlining that our family reunion policy is more generous than our international obligations require. As I hinted at, other EU countries impose additional restrictions in their lawful residence requirements. Countries such as Denmark, Sweden and Austria have recently announced they are amending their family reunion policies, while Germany has indicated it will review its policy.

The right hon. Lady asked me about compelling humanitarian cases, and indeed the hon. Member for Belfast East (Gavin Robinson) gave another example. Where a family reunion application fails under the immigration rules, such as in the case of an 18 or 19-year-old applying to join their refugee parents in the UK, the entry clearance officer must consider whether there are exceptional circumstances or compassionate reasons to justify granting a visa outside the rules. I gave another example in relation to elderly parents, so there is that obligation on entry clearance officers. The hon. Gentleman is no longer in his place, but he also highlighted the specific issue of the Belfast harbour police. I am happy to reflect on his point, while recognising that it was established under separate legislation: the Harbours, Docks and Piers Clauses Act 1847. Information-sharing powers exist, but I am happy to look at that in further detail.

My hon. Friend the Member for Christchurch (Mr Chope) highlighted deportation. Our primary sanctions for immigration non-compliance are removal and civil penalties, which is why, in many respects, prosecution numbers are relatively low. Our focus is on removal, therefore, rather than prosecution, which can delay removal and is obviously costly. That is why we have taken this approach.

[Mr Chope]

Will my right hon. Friend accept that to remove somebody one first has to apprehend them, and that means to arrest them, which is what my amendment was about?

[James Brokenshire]

Obviously, powers of arrest do reside. Issues of detention came up in the previous debate, and I do not cut across the need to uphold the law and ensure that people are appropriately identified, and I think that removal or a civil penalty for those unlawfully employing them are appropriate measures.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), speaking for the SNP, highlighted an issue to do with the minimum income threshold. A migrant partner with an appropriate job offer in the UK can apply under tier 2 of the points-based system, but overseas employment is no guarantee of finding work in the UK.

In highlighting the issue of destitution, the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who speaks for the official Opposition, said that our arrangements would not work, based on the 2005 pilot. I gave some explanation when I opened the debate, but I would add that there will be focused and targeted engagement with appeal rights-exhausted families together with local authorities. That close engagement with families is in contrast with what happened before. The Local Government Association acknowledges the need for focused efforts to engage with families and adults to promote returns, and that is precisely what we intend to do.

We are working with local authorities to close the gaps that some have suggested might apply, and, in many ways, the LGA welcomes the steps we have taken to ensure that gaps are closed. On the issue of overseas appeals, obviously this matter has been tested by the Court of Appeal, which recently confirmed that the Government were generally entitled to proceed on the basis that an out-of-country appeal is fair and effective remedy. On access to higher education, we want equality of treatment in respect of the relevant student support regulations. We are requiring that the test should be that which is applied to other migrants and British citizens applying for a student loan under the student support regulations.

Again, there was comment about safeguards for children. I want to underline the duty we have under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children. That is something we have carefully considered throughout our consideration of these provisions and that we judge provides the necessary support and protection mechanism for children under the Bill.

Prüm Business and Implementation Case

James Brokenshire Excerpts

Thursday 26th November 2015 Written Statements

[The Minister for Immigration (James Brokenshire)]

My right hon. Friend the Home Secretary has today laid before the House the “Prüm Business and Implementation Case”, (Cm 9149), which concludes that rejoining the Prüm decisions (EU Council decision 2008/615/JHA and its implementing decision, 2008/616/JHA, in conjunction with Council framework decision 2009/905/JHA) would be in the national interest as it would help us to identify foreign criminals and solve serious crimes. This is also the view of law enforcement throughout the United Kingdom, and is based on evidence from those countries already operating the Prüm decisions and a successful small-scale pilot. It also makes clear that stringent safeguards would be put in place in implementing the Prüm decisions, meaning that no fingerprint or DNA profiles relating to innocent British citizens would be used in implementing the measures and that higher UK scientific standards would be appl ied. An oversight board, including the biometrics and information commissioners, would oversee the domestic operation of the Prüm decisions.

[HCWS336]

Immigration Bill (Fifteenth sitting)

James Brokenshire Excerpts

Tuesday 17th November 2015 Public Bill Committees

[The Minister for Immigration (James Brokenshire)]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss Government new schedule 3—Availability of local authority support.

[James Brokenshire]

I welcome you back to the Chair, Mr Bone, for our final day of deliberations on the Bill.

The new clause and new schedule 3 make changes to the availability of local authority support in England for certain categories of migrants. The new schedule is in part a companion to schedule 6, which reforms arrangements for the provision by the Home Office of support to failed asylum seekers and other illegal migrants, which the Committee has already considered. As I said during our debates, we continue to consult with local authority colleagues, in particular on the detail of the new support arrangements and how they will sit alongside other provisions. We are clear that we want to encourage and enable more migrants without any lawful basis to remain in the United Kingdom to leave in circumstances when they can do so.

In particular, we have been discussing with local government colleagues whether changes to schedule 3 to the Nationality, Immigration and Asylum Act 2002, which controls access to local authority social care for migrants without immigration status, would be helpful. Our public consultation on asylum support highlighted concerns that the framework provided by schedule 3 to the 2002 Act and associated case law was complex and burdensome for local authorities to administer and involved complicated assessments and continued litigation to establish what support should be provided in what circumstances. The Committee heard similar concerns from local authority colleagues in their oral evidence to us on 22 October.

We have listened carefully to what local authority colleagues in England told us about the scope for simplifying and strengthening some of those provisions. Our response is the amendments made by the new schedule to schedule 3 to the 2002 Act, making two key changes. First, new schedule 3 simplifies the way in which local authorities in England assess and provide accommodation and subsistence for destitute families without immigration status. It enables local authorities to continue to provide under section 17 of the Children Act 1989 for any other needs of a child or their family to safeguard and promote the child’s welfare. Secondly, the new schedule prevents adult migrant care leavers who have exhausted their appeal rights and have established no lawful basis to remain here from accessing local authority support under the 1989 Act. It makes alternative provision for their accommodation, subsistence and other support before they leave the UK.

Immigration is a reserved matter and, as we have debated previously, immigration legislation—through schedule 3 to the 2002 Act—already provides a UK-wide framework for migrants’ access to local authority services. We therefore have it in mind to seek to amend the Bill at a later stage to extend those provisions to the rest of the UK once we have had further dialogue, which is in hand, with the devolved Administrations.

Turning to the main provisions of the new schedule, paragraph 7 of new schedule 3 inserts a new paragraph 7B in schedule 3 to the 2002 Act. It provides a new simplified definition of a person without immigration status who will generally be ineligible for the forms of local authority support listed in paragraph 1(1) of schedule 3 to the Act. It replaces the convoluted immigration status definitions in paragraphs 6 to 7A of schedule 3 to the Act.

Paragraph 8 inserts a new paragraph 10A in schedule 3 to the 2002 Act, under which regulations will be made by the Secretary of State, subject to parliamentary approval, to enable local authorities to provide for the accommodation and subsistence needs of destitute families without immigration status in circumstances in which case law and human rights considerations may well mean that the local authority should provide support.

Such circumstances include where, first, the family has an outstanding specified immigration application or appeal—in a non-asylum case for which Home Office support is not provided. Secondly, the family might have exhausted appeal rights and not failed to co-operate with arrangements to leave the UK. They must also not qualify for the support available from the Home Office under proposed new section 95A of the Immigration and Asylum Act 1999, to be inserted by schedule 6 to the Bill, for failed asylum seekers with a genuine obstacle to departure at the point their appeal rights are exhausted. Thirdly, the provision of accommodation and subsistence support must be necessary to safeguard and promote the welfare of a dependent child. That will enable local authorities to take any action they consider necessary to prevent destitution pending the resolution of the family’s immigration status or their departure from the UK.

Paragraph 4 will insert a new schedule 3A to the 2002 Act, which will mean that accommodation and subsistence support will be provided to a destitute family under the regulations made under new paragraph 10A of schedule 3 rather than under section 17 of the Children Act 1989. As we discussed in respect of schedule 6, there is no general obligation on local authorities to accommodate illegal migrants who intentionally make themselves destitute by refusing to leave the UK when it is clear that they can do so. Schedule 3 to the 2002 Act already provides that a range of local authority social care is unavailable to failed asylum seekers and others who remain in the UK unlawfully except when, following what can be a complex and burdensome assessment process, the local authority decides that the provision of such support is necessary to avoid a breach of human rights or on the basis of other exceptions for which schedule 3 provides.

The new schedule will simplify the complex human rights assessment process, much of which is concerned, in line with case law, with immigration matters that are for the Home Office and the courts to determine, which the local authority has to undertake before it can assess and provide for the family’s social care needs. The provisions embody a sense of simplification.

The main social care needs of families without immigration status who seek local authority support are for accommodation and subsistence to prevent destitution. A June 2015 study by the Centre on Migration, Policy and Society at Oxford University on local authority support for such families—I referred the Committee to this in my letter that notified colleagues of the amendments—found that the welfare needs of the children at the point of referral to the local authority were overwhelmingly for accommodation and subsistence.

The new schedule will also ensure that section 17 of the 1989 Act will remain available to the local authority, together with its other powers and duties under that Act to deal with any other needs of the child or their family that the local authority considers must be met to safeguard and promote the child’s welfare while the family’s immigration status is resolved or, where it is established that they have no lawful basis to remain here, before they leave the UK. The local authority’s duty to provide for the child’s schooling and to address any specific educational needs will also be maintained.

The reforms to schedule 3 to the 2002 Act will simplify the basis on which local authorities deal with destitute families without immigration status and maintain essential safeguards. We are satisfied that they are compatible with our obligations under the UN convention on the rights of the child and article 3 in particular, which requires that children’s best interests are a “primary consideration” in all decisions affecting them. We are also satisfied that they are compatible with section 55 of the Borders, Citizenship and Immigration Act 2009 under which the Secretary of State must have regard to

“the need to safeguard and promote the welfare of children who are in the United Kingdom”

when carrying out immigration functions.

Paragraph 2 of the new schedule amends paragraph 1(1) of schedule 3 to the 2002 Act so that adult migrant care leavers who have exhausted their appeal rights and who have established no lawful basis to remain here are prevented from accessing local authority support for care leavers under the 1989 Act. Nearly all of those adult migrants are former asylum-seeking children whose asylum and any other human rights claims have failed. The provisions in the 1989 Act are geared to support the needs and onward development of young adults leaving local authority care whose long-term future is in the UK. Those provisions are not appropriate to the support needs, pending their departure from the UK, of adult migrants who the courts have agreed have no right to remain here.

Paragraph 8 will insert a new paragraph 10B in schedule 3 to the 2002 Act under which regulations will be made by the Secretary of State, subject to parliamentary approval, to enable local authorities to provide for the support of adult migrant care leavers who have exhausted their appeal rights in respect of their asylum claim but have an outstanding specified immigration application or appeal and are destitute; or who have exhausted their appeal rights and do not qualify for Home Office support under the new section 95A of the 1999 Act because there is no genuine obstacle to their departure from the UK, but to whom the local authority is satisfied that support needs to be provided. That will enable the local authority to ensure that support does not end abruptly and that there can be a managed process of encouraging and enabling their departure from the UK.

Paragraph 4 inserts new paragraphs 3B and 3C in schedule 3 to the 2002 Act, which means that support will be provided to the adult migrant care leaver under the regulations made under new paragraph 10B of schedule 3, or under new section 95A of the 1999 Act, rather than under the Children Act 1989. By virtue of paragraph 11 of schedule 3, the new regulations will enable local authorities to provide such other social care support, beyond accommodation and subsistence, as they consider necessary in individual circumstances.

We are confident that the reforms to schedule 3 to the 2002 Act will simplify how local authorities deal with destitute families without immigration status, will make more appropriate provision for support to adult migrant care leavers who have not established a lawful basis to remain in the UK and will maintain essential safeguards. The provisions in the new schedule will, like those in schedule 6 to the Bill, be subject to the new burdens assessment of the final package of changes to which we have committed.

We will continue to work closely with local authority colleagues to look at other ways in which we can improve the framework within which they work with migrants without immigration status. All are clear that we want to work together to encourage and enable more migrants who have no right to remain here and who face no barrier to their departure to leave the UK. The new provisions will help ensure that we have the right platform in place for that work.

[Chloe Smith (Norwich North) (Con)]

Obviously, since the Committee last met we have seen the appalling attacks in Paris. It will not have escaped the Minister’s attention that it is considered possible that one of the attackers entered Europe as a putative refugee. Does the Minister agree with me and many of my constituents that the work we are doing with the new clause and the new schedule, and other parts of the Bill, will simplify, strengthen and prioritise the support we can give to those refugees who need it, rather than those who may be seeking to abuse the system? He surely would agree that that is important work in light of those attacks.

[James Brokenshire]

I note my hon. Friend’s comments. She will obviously have heard the Home Secretary’s statement yesterday, and the Prime Minister will make a further statement to the House today. It is important that we do not speculate on what may or may not have happened in the appalling events that we have all seen in the past few days. We stand in solidarity with the French people at this extraordinarily difficult time. We stand against those who would seek to divide us and destroy our very way of life. We all have a common cause in standing with the French people and all those who are against Daesh and those extremist organisations that seek to threaten our very way of life.

In general terms, my hon. Friend has highlighted the issue of any threat that may exist with those seeking to come to Europe through an asylum-based route. We need to analyse the facts carefully as to what has or has not happened, but it is equally important to underline the stringent checks that we carry out in this country on those who are claiming asylum and how we believe it is essential to strengthen the screening and identification of those arriving on the shores of Europe. That is why we support the work of Frontex, the EU external border agency, in its work on debriefing those who are picked up. We also support such things as the Hotspots initiative in Italy, Greece and other countries, which ensures that those who are arriving are processed speedily and effectively.

No doubt my hon. Friend will have heard the Home Secretary’s comments yesterday on the work that is undertaken to ensure that we are appropriately screening those arriving in this country through our vulnerable persons relocation scheme. All the steps we are taking are part of our focus on the security of this country, but equally they are about ensuring that those coming to this country who are fleeing persecution and in need of support are welcomed by us and given the support that they require. We believe that that approach is entirely consistent with the proposals in the Bill and is reflected in the new clause and new schedule.

[Keir Starmer (Holborn and St Pancras) (Lab)]

May I first echo the Minister’s comments by joining him and everybody in the House in abhorring the attacks that took place this weekend in Paris, as well as all the other attacks that have taken place elsewhere. They are attacks on our values, and we must stand together in our response. Those responsible seek to divide us; we must not be divided. As was said in the House yesterday, they are attacks on our values, our principles and our approach to issues such as refugees. It is important, if we mean what we say about our values and about standing together, that we do not diminish our stand on refugees, human rights and the sort of democratic accountability that this Committee brings to how we pass laws in this country.

Those are important principles, and it is right that this Bill should go through such a process to ensure that there is no diminution of protection for asylum seekers and refugees or of human rights for anybody who finds themselves in this jurisdiction, whether they be an adult, a child, a refugee or anybody else. As human beings, they have human rights, and it is our business to ensure that those rights are fully upheld. I make those comments in response to the comments just made, but nothing that happened this weekend should lead any of us to think that weakening in any way our resolve to deal properly with refugees and human rights issues should be any part of the answer to the atrocities, which we are all united in abhorring.

I will take the new clause and schedule in the order that the Minister did. Paragraph 7 of new schedule 3 is intended to provide a new, simplified definition of a person without immigration status who will generally be ineligible for local authority support. Can he assure us that only those currently excluded from support will continue to be excluded—in other words, that this is a simplification of the process, and that paragraph 7 does not broaden the category of individuals ineligible for support listed in schedule 3(1) of the 2002 Act?

Paragraph 8 of new schedule 3 will provide for the accommodation and subsistence needs of destitute families without immigration status in certain circumstances. Our concern about the provision involves those who are seeking judicial review or have judicial review proceedings pending. Again, can the Minister set out the position on such individuals? It will be a change from the current position, and it excludes that group of individuals from protection. If that is not the case, an assurance to that effect would be helpful, and would go on the record.

Paragraph 4 inserts a new paragraph 3A into schedule 3 of the 2002 Act and relates to how we deal with destitute families. Again, there are two issues for the Minister. First, without knowing the meaning of a “genuine obstacle” to return, how can the Committee assess the impact of the provision? We are considering it against a definition that is not before the Committee. Secondly—he might have dealt with this, but perhaps he can assure me if he did not—can he confirm that the needs provided for under the section appear to be narrower than those provided for under the Children Act 1989? In other words, they appear to omit disability or education needs. Given what he just said, I might be wrong about that, and a simple assurance might deal with that point.

[James Brokenshire]

If I may intervene to save time, I explained that the provision applies to housing and what are effectively direct support needs, but that the provisions of section 17 of the Children Act 1989, which relate to other needs such as medical or care needs, will still remain in force.



[Albert Owen in the Chair]

[Keir Starmer]

I am grateful. I did think that that was what the Minister had said, and I just wanted that assurance.

Turning in a little more detail to the provisions in paragraph 2 dealing with those leaving care, former looked-after children who require leave to enter or remain when they turn 18, but do not have it or are not asylum seekers, will be excluded from receiving accommodation, financial support, a personal adviser, a pathway plan, funds for education or training and any other assistance under various provisions of the Children Act 1989 and from staying put with foster carers or maintaining contact. The Minister says that that is because the needs of those who have no right to be here are different from those of people who have their future in this country. Such individuals are former looked-after children who have just turned 18, and care leavers in such circumstances include those with no immigration status, those who arrived as children and sought asylum and were granted UASC leave, and those who came to the UK at a young age but were never helped to regularise their status.

Such people can only claim access to accommodation and other assistance in limited circumstances. The first is if they are destitute, have been refused asylum and are eligible for support and there is a genuine obstacle to them leaving the UK. The second is if they are destitute and have a pending non-asylum immigration application or appeal. The third is if their rights are exhausted, and regulations will set out the limited circumstances in which they can receive support.

The concern here is that specific provision was made in the Children Act for all children leaving care in recognition of their additional vulnerabilities and the need for additional support in order for them to have the same chances as other young people entering adulthood. The new clause and new schedule fundamentally change that position. There is a real concern that someone who has just turned 18 and who, as a matter of fact and possibly because of vulnerabilities, has simply not regularised their immigration status will be denied support under this provision, which cuts across the thrust of the 1989 Act.

--- Later in debate ---

[James Brokenshire]

I shall respond to the points that have been flagged in the order in which they were made. The hon. and learned Member for Holborn and St Pancras asked a number of questions. I underline that paragraph 7B is principally a matter of clarification. Those failed asylum seekers who claim asylum at port rather than in country are covered by the definition in paragraph 7B; we argue that that provides greater clarity. He made a point about judicial review cases. If someone has been granted permission to seek judicial review in respect of an asylum or article 3 European convention on human rights claim they will now be eligible for section 95 support under schedule 6 to the Bill.

The hon. and learned Gentleman also asked what was meant by a “genuine obstacle to return”. We debated that previously in this Committee and as I previously stated, the principal reasons will be a lack of documentation, including travel documentation, to facilitate return, or medical issues. He commented on the needs of children leaving care—a point further developed by the hon. Member for Rotherham and the hon. Member for Paisley and Renfrewshire North. It is important to underline that the provisions relate to adults rather than children. That is important in the context of the UN convention on the rights of the child, as it defines a child as under the age of 18. Obviously, we are talking about adults who do not have that right to remain in the UK.

It may also be worth highlighting some context here. For example, in 2014 63% of asylum claims made by unaccompanied children were made by young people who arrived aged 16 or 17; therefore they had spent most of their lives outside the UK. When their claims fail and their appeal rights are exhausted, adult migrants are expected to leave this country. Any accommodation, subsistence or other support they require prior to their departure is, in our judgment, better provided under provisions intended for that purpose, not under the Children Act care leaver provisions intended to support the development of young people whose long-term future is in the UK. That is the distinction we draw.

[Keir Starmer]

What does the Minister say to the concern that those coming out of care may very well be vulnerable and traumatised, whatever age they went into care? They might not have regularised their status and will need access, for example, to an adviser even to get as far as an immigration lawyer to start the process. I appreciate what he says about age, but these are children who have just turned 18. What does he say to that group?

[James Brokenshire]

Obviously, if someone comes to this country as an unaccompanied asylum-seeking child, their case will be considered in that context and whether they become appeal rights exhausted up to the point at which they turn 18. It is not simply about how we approach this when someone gets to 18; for example, when they are 17 and a half they are reminded that they do not have status and that they should be regularising their position if they have not already done so. At that stage, obviously, the provisions that would continue to exist for a child, with the potential for a local authority to provide a personal adviser, will have been put in place.

[Keir Starmer]

That answer is inadequate. The Minister makes a distinction between those who are 18 and under 18. What he is saying is that we tell children that they must undertake whatever proceedings they need to regularise their status, and if they do not do so, when they get to 18, when they may still be very vulnerable and in need, they have missed the opportunity, perhaps because, as children, they did not understand what they were supposed to do. How is this supposed to work in practice for that vulnerable group?

[James Brokenshire]

As the hon. and learned Gentleman has already highlighted, support is provided to a child within the meaning of the Children Act. The point we are making is that when someone becomes an adult who is appeal rights exhausted, it is appropriate for the state to seek the removal of that adult from the UK in those circumstances. We are making an in-principle point about facilitating the removal of those with no rights to be here. The hon. and learned Gentleman seems to be suggesting that because someone came to this country as an unaccompanied asylum-seeking child, they have an enhanced right to remain in this country. We are saying that that is not correct. We should of course work with the Home Office to see that someone returns in those circumstances and that they are assisted to do so. Fundamentally, the provisions in the Children Act are designed for those who are likely to stay in the UK. Therefore it is our judgment that they should not apply and that is why we are bringing forward these provisions.

To the hon. Member for Rotherham I would add that we have consulted the Department for Education closely in the preparation of these provisions. The schedule therefore reflects a whole of Government view, rather than just a Home Office view.

[Sarah Champion]

May I have a brief clarification from the Minister? My understanding is that, if the child or young person is in a care home, the Minister is absolutely right—the age of 18 is the cut-off. If a child or young person is in foster care, I thought we had changed it so that the age at which they stop receiving support is now 21. Would that apply to an unaccompanied asylum seeker, or will they be discriminated against?

[James Brokenshire]

The point is that there is no discrimination. As I have already indicated, we are talking about children and the support provided under the Children Act. When someone turns 18, they are an adult and therefore we judge it is appropriate that the new provisions should apply. I think that the hon. Lady was highlighting the staying put duty in respect of foster parents. We are saying that, at the point at which someone becomes an adult, they should be leaving the UK and not staying put within the UK. Obviously, we have a strong desire to work with local authorities and with the young people themselves to support them in their departure from the UK.

I want to address the point about gaps made by the hon. Member for Paisley and Renfrewshire North, which was also made in the briefing from the Immigration Law Practitioners’ Association that I am sure hon. Members have received. We do not agree with the analysis that is given. Indeed, we think that the provisions in the new schedule will assist, because we can see that support is being provided. We are simplifying the basis on which the principal need of families without immigration status can be met by local authorities. That need is for accommodation and subsistence support to prevent destitution, as is clearly shown by the study I have highlighted and previously referred to. In respect of family groups, we are clear that section 17 of the Children Act will remain the basis on which local authorities will meet any other social care needs beyond destitution—that is, what they consider to be necessary to safeguard or promote the welfare of a child pending resolution of a family’s immigration status or their departure from the UK. I intervened on the hon. and learned Member for Holborn and St Pancras on that point.

The individual case that the hon. and learned Gentleman highlighted involved moving to DWP benefits rather than asylum support. As has been flagged previously, there have been delays in respect of some of the provisions. The Immigration Act and schedule 3 provisions we are discussing are about simplifying the process, so that there are not those laborious human rights assessments that replicate a number of other assessments in the system. The intention is to close some of the gaps, rather than extend them. That is why we take a different view from the analysis articulated by the hon. and learned Gentleman and set out in the ILPA briefing notes. We can see a difference of principle in the Committee this morning on the appropriateness of continuing Children Act provisions beyond the age of 18. Our judgment is that at that stage people should be leaving the UK rather than staying, and therefore we are talking about two distinct mechanisms and two distinct means. I hope that the Committee will be minded to incorporate the new clause into the Bill.

Question put, That the Clause be read a Second time.

--- Later in debate ---

[James Brokenshire]

I am grateful to the hon. and learned Gentleman for proposing the new clause, which seeks to introduce a power to extend the licensing regime contained in the Gangmasters Licensing Act 2004 to new sectors of the economy. It rightly facilitates a debate and I join him in underlining the important work that the GLA has undertaken and how it remains an important agency in seeking to respond to labour market abuses.

The hon. and learned Gentleman will recollect our debates on the director of labour market enforcement and the new strategy that we intend to adopt. He will also remember that I made it clear that it would be for the director of labour market enforcement effectively to make recommendations as to how resources should be applied within the overall spending envelope.

The hon. and learned Gentleman asked about the spending review. Sadly, that is a matter for others, and he will have to wait for the Chancellor’s statement next week. I am not going to tread on the Chancellor’s toes. I think that is the right and proper way. However, I want to touch on the current consultation on the role and remit of the Gangmasters Licensing Authority. Hon. Members have already voiced opinions of the work undertaken by the GLA and I hope they will welcome the consultation and the questions it asks about the GLA’s role in tackling labour market exploitation.

As demonstrated by the amendments to the Modern Slavery Act 2015, which require a review of the role of the GLA, we have taken very seriously the issues raised during debates during the passage of that Act about whether the GLA should have a wider role. Section 55 of the Modern Slavery Act already requires the Government to publish a paper on the role of the GLA and to consult on it. Our current consultation on the GLA and wider labour market exploitation fulfils that requirement.

We are unclear what the new clause seeks to achieve, given that we are in the midst of consulting on the GLA’s remit and role. In fact, our consultation goes further than the new clause proposes. We are seeking views on extending the role of the GLA beyond its current role in licensing gangmasters in certain sectors. The new clause appears to restrict the GLA’s role solely to licensing. We have a broader ambition for the GLA’s contribution to tackling exploitation, which is why we are proposing a new, wider remit for the GLA with new investigatory and enforcement powers to tackle serious cases of labour market exploitation, wherever they occur in the economy. We also want to ensure that the licensing regime can be adapted to fit the latest intelligence and the changing threat of worker exploitation in different sectors. We have set out several proposals in our consultation that we believe would achieve that.

We are looking to the role of the director of labour market enforcement to recommend any changes to the current statutory licensing regime and also to work closely with businesses to identify areas of possible self-regulation. It is the director’s role in considering the use of licensing to tackle labour market exploitation. The consultation proposes that the director should recommend extensions or reductions to the licensing remit. That may identify new sectors beyond those in the remit of the licensing regime where licensing can play a part in tackling worker exploitation.

At paragraph 137 of the consultation document, we suggest:

“a flexible and evidence-based approach to using licensing as a tool to prevent exploitation in the very highest risk sectors. Any changes to the licensed sectors would be agreed by Parliament, after Ministers had considered an evidence based proposal from the Director. This would be based on a risk based intelligence analysis of labour sectors.”

So we are envisaging a regulation-making power that would allow Ministers to change the licensing regime or the sectors covered by licensing through regulations that would be agreed by Parliament, after Ministers had considered the director’s evidence-based proposal. We believe that that would give an appropriate level of scrutiny to the evidence presented for any changes to the licensing regime.

We are consulting on the changes because we recognise the broad support to build on the effectiveness and good work of the GLA by providing the authority with further powers to increase its already strong performance. Once the consultation has closed, we will consider our response, including the funding necessary for the GLA to operate effectively in the context of the spending review, the results of which will be announced shortly. We fully expect that process to conclude during the passage of the Bill.

In the light of the proposals made in the consultation, which would extend the GLA’s enforcement function across the economy and set the framework for evidence-based decisions on licensing, we believe that the new clause is unnecessary, but we look forward to the results of the consultation and a clear, evidence-based analysis, which I hope will strengthen the GLA and our response to illegal working and to those who are abusing the vulnerable. We are adding to the GLA’s functions and to the progress in enhancing our response to bad, inappropriate and at times illegal practices in the labour market. The new enforcement measures contemplated in the Bill will strengthen the GLA.

[Keir Starmer]

The Minister resists the temptation to anticipate the Chancellor, but I wager that the resources for the GLA will go down, not up. All that will be discussed between now and what will be announced is by how much the resources will go down. I hope I am wrong, but I doubt it.

I fear what the Minister and other Ministers have said about savings and cuts. Of course I accept that efficiencies can always be made, but I have deep concerns that, in the area we are discussing, as well as in others, we will look back on the spending review and recognise that we did long-standing damage to the ability of our various agencies and authorities to carry out their necessary work, in particular with those who are most exploited in our society. However, we can return to the subject after the Chancellor’s announcement and see what the position is.

The Minister asked what the purpose of the new clause was. It was to build in a review. I listened carefully to what he said about the consultation and what might follow, and I welcome that. Given what he said about the exercise to be followed, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 6

Additional measures in relation to victims of domestic violence or human trafficking

‘(1) The Immigration Act 2014 is amended in accordance with subsection (2).

(2) In Section 21 after sub-section (4) insert—

“(4A) P is to be treated as having a right to rent in relation to premises (in spite of subsection (2)) if they are in the process of applying for leave to remain under Paragraph 289 of the Immigration Rules as a victim of domestic violence.

(4B) P is to be treated as having a right to rent in relation to premises (in spite of subsection (2)) if they have received a reasonable grounds decision from UK Visas and Immigration that they are a victim of human trafficking.”’—(Keir Starmer.)

This new clause would enable suspected victims of human trafficking or domestic violence, who do not have a final visa giving them leave to remain, the right to enter into a tenancy.

Brought up, and read the First time.

--- Later in debate ---

[Keir Starmer]

I will do my best to be as persuasive as my hon. Friend the Member for Rotherham had she spoken on the proposed provisions. It is convenient to take the two new clauses together.

New clause 6 is in essence an attempt to carve out an exemption to the restrictions on right to rent in relation to two particularly vulnerable groups—suspected victims of domestic violence or human trafficking—and gives them the right to enter into a tenancy. Our concern is the unintended consequence of those two groups not being able to be properly accommodated.

New clause 10 is different. It is intended to provide a right to rent to anyone known to and in touch with the authorities, whom the authorities have chosen not to detain, where they are in a financial position to rent privately. If they are not in a position to rent privately, they would be catered for differently through support, so this is a sub-group within the group that is known to be in touch with the authorities, but not detained. It has been suggested that the Secretary of State will exercise discretionary power in relation to that group. The new clause is intended to put that on a proper statutory basis so that that group is properly protected.

[James Brokenshire]

The Government completely agree that victims of domestic violence and human trafficking should not be disadvantaged as a result of this legislation or the previous Immigration Act. We accept that individuals in such a vulnerable position should have access to the private rented sector. The aims and objectives in new clause 6 are laudable, but we do not believe they are necessary.

When the 2014 Act was before Parliament, we were concerned that the Secretary of State should have sufficient latitude to be able to exempt specific persons from the disqualification on renting premises if need be. Subsection (3) of section 21 of that Act provides that a person is to be treated as having a right to rent if the Secretary of State has granted that person permission to occupy premises under a residential tenancy agreement. That can be exercised on behalf of vulnerable people. In addition, the Act provides exemptions whereby the provisions do not apply to certain excluded tenancy agreements. Schedule 3 specifically excludes hostels and refuges. Paragraph 6(5) to schedule 3 defines refuges as accommodation used for persons who have been subject to violence, threats and other coercive and abusive behaviour, so persons in refuges will not be disadvantaged.

Where a potential victim of human trafficking has received a positive reasonable grounds decision through the national referral mechanism, the Government fund specialist accommodation and support, as do the devolved Administrations, which is provided until a conclusive grounds decision is reached on their status as a victim and on any discretionary leave resulting from that status.

New clause 10 is also unnecessary. Persons seeking asylum who can afford to rent privately, and persons who have a genuine barrier preventing their departure from the UK, can already obtain permission to rent from the Home Office. That permission to rent mechanism already exists in section 21(3) of the Immigration Act 2014. Landlords of prospective migrant tenants who believe that they may qualify for permission to rent can contact the Home Office to conduct a right to rent check.

There is also no need for a statutory provision for permission to rent for persons granted immigration bail. Such persons are always given permission, and Home Office presenting officers have been instructed to assure immigration judges that, should they choose to release an immigrant on bail, the Home Office will provide permission to rent. That is our very clear policy. The tribunal has found this approach acceptable. It is also the case that there may be other instances where permission to rent is appropriate, such as where an illegal immigrant faces a recognised barrier to returning home.

--- Later in debate ---

[Keir Starmer]

I beg to move, That the clause be read a Second time.

I can deal with new clause 7 very briefly because, as hon. Members will see, it is associated with, and is I think the flipside of, amendment 84, which we discussed the week before last. It aims to remove the residential tenancies right to move provisions from the Immigration Act, but the Committee has already had a substantive debate on this, including discussion of the west midlands pilot, and we voted on amendment 84. In those circumstances, whatever our respective views on these provisions, I am not sure they will become any more influential or powerful by being repeated at length. I therefore do not propose to press new clause 7.

[James Brokenshire]

The hon. and learned Gentleman has clearly reaffirmed the Opposition’s position and I do not think, in the interests of time, that there is any merit in my going over some of the detailed debates that we have already had on amendment 84. We have had extensive debate on the right to rent and I know that there is a difference of opinion across the Committee. Equally I know that the hon. and learned Gentleman recognises that a vote has already been taken and that this new clause repeats some of that ground. I welcome his comment that he does not intend to push new clause 7 to a vote.

[Keir Starmer]

I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 8

Persons with a right to rent

‘(1) The Immigration Act 2014 is amended as follows.

(2) In section 21(2)(a) after “have it,” insert “subject to subsection (2A)”.

(3) After section 21(2) insert—

“(2A) P retains a right to rent under this section:

(a) for 90 days after P’s leave to enter or remain comes to an end; or

(b) until the end of the one year beginning with the date on which P’s landlord last complied with the prescribed requirements in respect of P, whichever is longer.”

(4) After section 21(4) (b) insert—

“(c) a person who has retained a right to rent under subsection (2A).”—(Keir Starmer.)

To amend the Immigration Act 2014 to provide protection for landlords and landladies from prosecution when their tenant’s leave comes to an end.

Brought up, and read the First time.

--- Later in debate ---

[Keir Starmer]

I intend to take a similar approach to new clause 8 as I took to new clause 7. It goes, again, to an issue that we have already discussed: the element of protection given to landlords who find themselves in a situation where they are immediately criminalised under the new provisions, about which we expressed considerable concern in the debate that we had the week before last. This provision deals with what we see as the injustice of that situation by providing for a 90-day grace period to protect landlords. It is, in essence, a version of the argument, or the submission, that we made two weeks ago, which was dealt with by a vote on protection for landlords. Again, I doubt that in the intervening two weeks the arguments on either side have either changed or strengthened, so I will not press the new clause.

New clause 9 has one foot in the camp of having already been discussed and one foot in the camp of being new. The last time we touched on similar provisions was in relation to a concern about those in a household who may find themselves advertising for co-tenants. The example discussed in Committee was that of students in a flat who might advertise when one of their number leaves. The Minister gave various assurances and made it clear that in those circumstances they would not come within the definition of an agent and therefore there was no need for concern. I accept that and, from memory, we withdrew the amendment on that basis.

New clause 9 is concerned with a not dissimilar situation, of a landlord renting accommodation that is shared by the landlord or a member of his or her family. It draws a distinction between, on the one hand, professional landlords, and on the other, those who simply let out a room in their house or flat. There is no real evidence on the likely impact of the new provisions on that group, but they will be impactful. New clause 9 drives at that group of individuals.

[James Brokenshire]

As the Government have explained, the new offences relating to landlords and agents will be targeted at cases where there has been repeated or particularly serious behaviour as regards renting to illegal migrants or failing to evict them. As I made clear and as we have debated previously, it is not intended to target landlords who are unaware that someone is disqualified from renting, nor will such landlords meet the

“knows or has reasonable cause to believe”

threshold required for commission of the offence. It is not intended to take steps to prosecute landlords who are taking reasonable steps to remove someone they know to be disqualified from their property. I recognise that, in part, new clause 8 goes over ground that we have debated at length in Committee, therefore I do not see a need to rerehearse some of the issues debated previously.

New clause 9 touches on some different points and seeks to place lodgers and instances where a person is renting to a family member outside the scope of the right to rent scheme. That was debated at some length at the time of the Immigration Act 2014 and was considered by the House in the context of its application to lodgers. There is already guidance about the position of those renting to close family. For example, undertaking a right to rent check provides a landlord with an excuse as regards the civil penalty. Where someone is confident that their family member is lawfully in the UK, there will be no need for them to undertake the checks to establish that excuse.

Our concern is that taking lodgers out of the scheme will mean that a significant number of illegal migrants and those who exploit them are left untouched, in essence creating a gap in the legislation. That would provide an easy means by which rogue landlords could avoid any sanctions, for instance by arguing that the property was their family home or by arranging for one tenant to take in another occupant as a lodger. Sadly, we know that there is exploitation, there are rogue landlords and that that is a risk. We believe that the checks are straightforward and should be no more difficult for someone letting out a spare room than for any other person who might be within the ambit of the Bill, for example through a formal tenancy. Anyone who accepts remuneration for renting property should accept the responsibilities involved in doing so, such as carrying out the basic checks previously debated and discussed in Committee. The concern about the gap that would be created and the risk that it might lead to further exploitation, with people being taken advantage of, means that we judge that this provision is not appropriate.

[Anne McLaughlin (Glasgow North East) (SNP)]

The Minister might remember that in a Committee sitting a couple of weeks ago I asked whether people who let out or gave a room via a charity, for no money or a token sum to cover their rising costs, were already exempt. I did not get an answer at the time, and I do not know whether that was because the Minister forgot, or did not want, to answer. Might this be an appropriate time to ask the question again? There are charities that fix destitute people up with others who have a spare room, and with some of the charities the person gets no recompense and with others they get a tiny amount to cover the increased fuel and other costs. Were such people already exempt, or will they be covered by the provisions?

[James Brokenshire]

I am sorry if I did not respond previously and I can assure the hon. Lady that it would certainly not have been from not wanting to answer. As she knows, a number of points are made during a debate and sometimes one might inadvertently pass over one of them. In respect of the right to rent scheme, and therefore the statutory excuse, which is what we are talking about, if no money changes hands the arrangement is exempt. I do not know if that helps her. There has to be what would be described in legal terms as some sort of payment or consideration for someone to be captured.

[Anne McLaughlin]

I am pleased to hear that, but some charities give a tiny, token amount for a donated room. It obviously costs more to have somebody living in a spare room, so the amount is not a profit or a commercial arrangement—it is just a token amount to cover the additional costs. Would that circumstance be exempt or would we have to introduce a provision at a later stage to exempt it?

[James Brokenshire]

It is obviously difficult, nor would it be right, for me to comment on specific arrangements. I have already talked about refuges and the separate exemptions that apply regarding the support provided for victims of trafficking, and in other circumstances within the definitions that were set out. I have spoken about the issue of nothing of monetary value changing hands, but ultimately we are looking at those with no right to be in the country. That is, I suppose, the basis of the question, and therefore some charitable support might be provided in other circumstances. That is why I must be careful in understanding the specifics, but I think that existing exemptions apply, and these were considered in detail when the right to rent scheme was original considered by the House. There are specific exemptions that we judge to be appropriate, and which cover, in particular, issues of vulnerability and abuse. Refuges play an incredible and essential role in providing appropriate support, and they are normally run by charities and other non-governmental organisations. It was right to put in those exemptions and we judge that they remain appropriate.

[Keir Starmer]

I am grateful for the Minister’s comments, in particular on new clause 8. I think he said that it was not the intention to prosecute landlords who took reasonable steps to take adequate action. As he well knows, in the end that is a matter for those who prosecute, but what he has said will now be on the record. It gives some assurance, certainly to Labour members of the Committee and also to landlords who have raised the issue with us, as well as with other members of the Committee, on a number of occasions. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 11

Eligibility for housing and homelessness assistance

“The Secretary of State shall make provision by regulations to ensure that a person granted leave to enter or remain under section 3 of the Immigration Act 1971, whether under rules made under that section or otherwise, who is eligible for public funds shall also be eligible for housing and homelessness services.”—(Keir Starmer.)

Brought up, and read the First time.

--- Later in debate ---

[James Brokenshire]

Migrants granted leave to enter or remain in the UK are generally expected to be able to maintain and accommodate themselves without recourse to public funds in the form of mainstream welfare benefits or local authority housing support. There is legislation in place to ensure that the majority of migrants cannot access those public funds. The Government are aware that in some cases a person granted immigration leave with no bar to accessing public funds might require local authority housing or homelessness support but would currently be ineligible as they are not settled here.

The Home Office is working with other Departments—the Department for Communities and Local Government in particular—to remedy the situation as swiftly as possible. It does not follow, however, that everyone who has been granted leave should have an immediate and enforceable claim to access local authority support and services, even where there is no bar to them accessing other public funds.

The No Recourse to Public Funds Network has highlighted the issue of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, which control access to homelessness assistance and still refer to the discretionary leave category. That is quite a technical but important point. I assure the Committee that we are working closely with the Department for Communities and Local Government to examine amendments to the 2006 regulations, which is the relevant point.

There is an issue here, but I hope, with that assurance, the hon. and learned Member for Holborn and St Pancras will be minded to withdraw the new clause, while noting that this is something we are aware of and will take steps to remedy.

[Keir Starmer]

The purpose of a probing amendment is to identify a particular concern and seek assurance on it. The Minister gave that assurance and says all are working on a remedy. In those circumstances, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Schedule 1

Private hire vehicles etc

Metropolitan Public Carriage Act 1869 (c. 115)

1 The Metropolitan Public Carriage Act 1869 is amended as follows.

2 In section 8(7) (driver’s licence to be in force for three years unless suspended or revoked) for “A” substitute “Subject to section 8A, a”.

3 After section 8 insert—

“8A Drivers’ licences for persons subject to immigration control

(1) Subsection (2) applies if—

(a) a licence under section 8 is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”),

(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision), and

(c) apart from subsection (2), the period for which the licence would have been in force would have ended after the end of the leave period.

(2) Transport for London must grant the licence for a period which ends at or before the end of the leave period.

(3) Subsection (4) applies if—

(a) a licence under section 8 is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period, and

(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).

(4) Transport for London must grant the licence for a period that does not exceed six months.

(5) A licence under section 8 ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a hackney carriage.

(6) If subsection (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return to Transport for London—

(a) the licence,

(b) the person’s copy of the licence (if any), and

(c) the person’s driver’s badge.

(7) A person who, without reasonable excuse, contravenes subsection (6) is guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 3 on the standard scale, and

(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.

(8) For the purposes of this section a person is disqualified by reason of the person’s immigration status from driving a hackney carriage if the person is subject to immigration control and —

(a) the person has not been granted leave to enter or remain in the United Kingdom, or

(b) the person’s leave to enter or remain in the United Kingdom—

(i) is invalid,

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or

(iii) is subject to a condition preventing the individual from driving a hackney carriage.

(9) Where a person is on immigration bail within the meaning of Part 1 of Schedule 5 to the Immigration Act 2016—

(a) the person is to be treated for the purposes of this section as if the person had been granted leave to enter the United Kingdom, but

(b) any condition as to the person’s work in the United Kingdom to which the person’s immigration bail is subject is to be treated for those purposes as a condition of leave.

(10) For the purposes of this section a person is subject to immigration control if under the Immigration Act 1971 the person requires leave to enter or remain in the United Kingdom.”

Local Government (Miscellaneous Provisions) Act 1976 (c. 57)

4 The Local Government (Miscellaneous Provisions) Act 1976 is amended as follows.

5 (1) Section 51 (licensing of drivers of private hire vehicles) is amended as follows.

(2) In subsection (1)—

(a) in paragraph (a) after “satisfied” insert “—(i)”, and

(b) for the “or” at the end of paragraph (a) substitute “and

(ii) that the applicant is not disqualified by reason of the applicant’s immigration status from driving a private hire vehicle; or”.

(3) After subsection (1) insert—

“(1ZA) In determining for the purposes of subsection (1) whether an applicant is disqualified by reason of the applicant’s immigration status from driving a private hire vehicle, a district council must have regard to any guidance issued by the Secretary of State.”

6 In section 53(1) (drivers’ licences for hackney carriages and private hire vehicles)—

(a) in paragraph (a) for “Every” substitute “Subject to section 53A, every”, and

(b) in paragraph (b) after “1889,” insert “but subject to section 53A,”.

7 After section 53 insert—

“53A Drivers’ licences for persons subject to immigration control

(1) Subsection (2) applies if—

(a) a licence within section 53(1)(a) or (b) is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”);

(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision); and

(c) apart from subsection (2), the period for which the licence would have been in force would have ended after the end of the leave period.

(2) The district council which grants the licence must specify a period in the licence as the period for which it remains in force; and that period must end at or before the end of the leave period.

(3) Subsection (4) applies if—

(a) a licence within section 53(1)(a) or (b) is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period; and

(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).

(4) The district council which grants the licence must specify a period in the licence as the period for which it remains in force; and that period must not exceed six months.

(5) A licence within section 53(1)(a) ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a private hire vehicle.

(6) A licence within section 53(1)(b) ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a hackney carriage.

(7) If subsection (5) or (6) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return the licence and the person’s driver’s badge to the district council which granted the licence.

(8) A person who, without reasonable excuse, contravenes subsection (7) is guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 3 on the standard scale; and

(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.”

8 (1) Section 55 (licensing of operators of private hire vehicles) is amended as follows.

(2) In subsection (1)—

(a) after “satisfied” insert “—(a)”, and

(b) at the end of paragraph (a) insert “; and

(b) if the applicant is an individual, that the applicant is not disqualified by reason of the applicant’s immigration status from operating a private hire vehicle.”

(3) After subsection (1) insert—

“(1A) In determining for the purposes of subsection (1) whether an applicant is disqualified by reason of the applicant’s immigration status from operating a private hire vehicle, a district council must have regard to any guidance issued by the Secretary of State.”

(4) In subsection (2) for “Every” substitute “Subject to section 55ZA, every”.

9 After section 55 insert—

“55ZA Operators’ licences for persons subject to immigration control

(1) Subsection (2) applies if—

(a) a licence under section 55 is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”);

(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision); and

(c) apart from subsection (2), the period for which the licence would have been in force would have ended after the end of the leave period.

(2) The district council which grants the licence must specify a period in the licence as the period for which it remains in force; and that period must end at or before the end of the leave period.

(3) Subsection (4) applies if—

(a) a licence under section 55 is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period; and

(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).

(4) The district council which grants the licence must specify a period in the licence as the period for which it remains in force; and that period must not exceed six months.

(5) A licence under section 55 ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from operating a private hire vehicle.

(6) If subsection (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return it to the district council which granted the licence.

(7) A person who, without reasonable excuse, contravenes subsection (6) is guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 3 on the standard scale; and

(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.”

10 (1) Section 59 (qualification for drivers of hackney carriages) is amended as follows.

(2) In subsection (1)—

(a) in paragraph (a) after “satisfied” insert “—(i)”, and

(b) for the “or” at the end of paragraph (a) substitute “and

(ii) that the applicant is not disqualified by reason of the applicant’s immigration status from driving a hackney carriage; or”.

(3) After subsection (1) insert—

“(1ZA) In determining for the purposes of subsection (1) whether an applicant is disqualified by reason of the applicant’s immigration status from driving a hackney carriage, a district council must have regard to any guidance issued by the Secretary of State.”

11 In section 61(1) (suspension and revocation of drivers’ licences) before the “or” at the end of paragraph (a) insert—

“(aa) that he has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty;”.

12 In section 62(1) (suspension and revocation of operators’ licences) before the “or” at the end of paragraph (c) insert—

“(ca) that the operator has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty;”.

13 In section 77 (appeals) after subsection (3) insert—

“(4) On an appeal under this Part of this Act or an appeal under section 302 of the Act of 1936 as applied by this section, the court is not entitled to entertain any question as to whether—

(a) a person should be, or should have been, granted leave to enter or remain in the United Kingdom; or

(b) a person has, after the date of the decision being appealed against, been granted leave to enter or remain in the United Kingdom.”

14 After section 79 insert—

“79A Persons disqualified by reason of immigration status

(1) For the purposes of this Part of this Act a person is disqualified by reason of the person’s immigration status from carrying on a licensable activity if the person is subject to immigration control and —

(a) the person has not been granted leave to enter or remain in the United Kingdom; or

(b) the person’s leave to enter or remain in the United Kingdom—

(i) is invalid;

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise); or

(iii) is subject to a condition preventing the individual from carrying on the licensable activity.

(2) Where a person is on immigration bail within the meaning of Part 1 of Schedule 5 to the Immigration Act 2016—

(a) the person is to be treated for the purposes of this Part of this Act as if the person had been granted leave to enter the United Kingdom; but

(b) any condition as to the person’s work in the United Kingdom to which the person’s immigration bail is subject is to be treated for those purposes as a condition of leave.

(3) For the purposes of this section a person is subject to immigration control if under the Immigration Act 1971 the person requires leave to enter or remain in the United Kingdom.

(4) For the purposes of this section a person carries on a licensable activity if the person—

(a) drives a private hire vehicle;

(b) operates a private hire vehicle; or

(c) drives a hackney carriage.

79B Immigration offences and immigration penalties

(1) In this Part of this Act “immigration offence” means—

(a) an offence under any of the Immigration Acts;

(b) an offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit an offence within paragraph (a); or

(c) an offence under section 1 of the Criminal Law Act 1977 of conspiracy to commit an offence within paragraph (a).

(2) In this Part of this Act “immigration penalty” means a penalty under—

(a) section 15 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”); or

(b) section 23 of the Immigration Act 2014 (“the 2014 Act”).

(3) For the purposes of this Part of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty if—

(a) the person is excused payment by virtue of section 15(3) of that Act; or

(b) the penalty is cancelled by virtue of section 16 or 17 of that Act.

(4) For the purposes of this Part of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—

(a) the period for giving a notice of objection under section 16 of that Act has expired and the Secretary of State has considered any notice given within that period; and

(b) if a notice of objection was given within that period, the period for appealing under section 17 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.

(5) For the purposes of this Part of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty if—

(a) the person is excused payment by virtue of section 24 of that Act; or

(b) the penalty is cancelled by virtue of section 29 or 30 of that Act.

(6) For the purposes of this Part of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—

(a) the period for giving a notice of objection under section 29 of that Act has expired and the Secretary of State has considered any notice given within that period; and

(b) if a notice of objection was given within that period, the period for appealing under section 30 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.”

Private Hire Vehicles (London) Act 1998 (c. 34)

15 The Private Hire Vehicles (London) Act 1998 is amended as follows.

16 In section 1(1) (meaning of “private hire vehicle” etc)—

(a) omit the “and” at the end of paragraph (a), and

(b) at the end of paragraph (b) insert “; and

(c) “operate”, in relation to a private hire vehicle, means to make provision for the invitation or acceptance of, or to accept, private hire bookings in relation to the vehicle.”

17 (1) Section 3 (London operator’s licences) is amended as follows.

(2) In subsection (3) for the “and” at the end of paragraph (a) substitute—

“(aa) if the applicant is an individual, the applicant is not disqualified by reason of the applicant’s immigration status from operating a private hire vehicle; and”

(3) After subsection (3) insert—

“(3A) In determining for the purposes of subsection (3) whether an applicant is disqualified by reason of the applicant’s immigration status from operating a private hire vehicle, the licensing authority must have regard to any guidance issued by the Secretary of State.”

(4) In subsection (5) for “A” substitute “Subject to section 3A, a”.

18 After section 3 insert—

“3A London PHV operator’s licences for persons subject to immigration control

(1) Subsection (2) applies if—

(a) a London PHV operator’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”);

(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision); and

(c) apart from subsection (2), the period for which the licence would have been granted would have ended after the end of the leave period.

(2) The licence must be granted for a period which ends at or before the end of the leave period.

(3) Subsection (4) applies if—

(a) a London PHV operator’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period; and

(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).

(4) The licence must be granted for a period which does not exceed six months.

(5) A London PHV operator’s licence ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from operating a private hire vehicle.

(6) If subsection (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return it the licensing authority.

(7) A person who, without reasonable excuse, contravenes subsection (6) is guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 3 on the standard scale; and

(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.”

19 (1) Section 13 (London PHV driver’s licences) is amended as follows.

(2) In subsection (2) for the “and” at the end of paragraph (a) substitute—

“(aa) the applicant is not disqualified by reason of the applicant’s immigration status from driving a private hire vehicle; and”

(3) After subsection (2) insert—

“(2A) In determining for the purposes of subsection (2) whether an applicant is disqualified by reason of the applicant’s immigration status from driving a private hire vehicle, the licensing authority must have regard to any guidance issued by the Secretary of State.”

(4) In subsection (5) at the beginning of paragraph (c) insert “subject to section 13A,”.

20 After section 13 insert—

“13A London PHV driver’s licences for persons subject to immigration control

(1) Subsection (2) applies if—

(a) a London PHV driver’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”);

(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision); and

(c) apart from subsection (2), the period for which the licence would have been granted would have ended after the end of the leave period.

(2) The licence must be granted for a period which ends at or before the end of the leave period.

(3) Subsection (4) applies if—

(a) a London PHV driver’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period; and

(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).

(4) The licence must be granted for a period which does not exceed six months.

(5) A London PHV driver’s licence ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a private hire vehicle.

(6) If subsection (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return the licence and the person’s driver’s badge to the licensing authority.

(7) A person who, without reasonable excuse, contravenes subsection (6) is guilty of an offence and liable on summary conviction—

(a) to a fine not exceeding level 3 on the standard scale; and

(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.”

21 (1) Section 16 (power to suspend or revoke licences) is amended as follows.

(2) In subsection (2) before the “or” at the end of paragraph (a) insert—

“(aa) the licence holder has, since the grant of the licence, been convicted of an immigration offence or required to pay an immigration penalty;”.

(3) In subsection (4) at the end of paragraph (a) insert—

“(aa) the licence holder has, since the grant of the licence, been convicted of an immigration offence or required to pay an immigration penalty;”.

22 In section 25 (appeals) after subsection (7) insert—

“(8) On an appeal under this Act to the magistrates’ court or the Crown Court, the court is not entitled to entertain any question as to whether—

(a) a person should be, or should have been, granted leave to enter or remain in the United Kingdom; or

(b) a person has, after the date of the decision being appealed against, been granted leave to enter or remain in the United Kingdom.”

23 After section 35 insert—

“35A Persons disqualified by reason of immigration status

(1) For the purposes of this Act a person is disqualified by reason of the person’s immigration status from carrying on a licensable activity if the person is subject to immigration control and —

(a) the person has not been granted leave to enter or remain in the United Kingdom; or

(b) the person’s leave to enter or remain in the United Kingdom—

(i) is invalid;

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise); or

(iii) is subject to a condition preventing the individual from carrying on the licensable activity.

(2) Where a person is on immigration bail within the meaning of Part 1 of Schedule 5 to the Immigration Act 2016—

(a) the person is to be treated for the purposes of this Part as if the person had been granted leave to enter the United Kingdom; but

(b) any condition as to the person’s work in the United Kingdom to which the person’s immigration bail is subject is to be treated for those purposes as a condition of leave.

(3) For the purposes of this section a person is subject to immigration control if under the Immigration Act 1971 the person requires leave to enter or remain in the United Kingdom.

(4) For the purposes of this section a person carries on a licensable activity if the person—

(a) operates a private hire vehicle; or

(b) drives a private hire vehicle.

35B Immigration offences and immigration penalties

(1) In this Act “immigration offence” means—

(a) an offence under any of the Immigration Acts;

(b) an offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit an offence within paragraph (a); or

(c) an offence under section 1 of the Criminal Law Act 1977 of conspiracy to commit an offence within paragraph (a).

(2) In this Act “immigration penalty” means a penalty under—

(a) section 15 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”), or

(b) section 23 of the Immigration Act 2014 (“the 2014 Act”).

(3) For the purposes of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty if—

(a) the person is excused payment by virtue of section 15(3) of that Act; or

(b) the penalty is cancelled by virtue of section 16 or 17 of that Act.

(4) For the purposes of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—

(a) the period for giving a notice of objection under section 16 of that Act has expired and the Secretary of State has considered any notice given within that period; and

(b) if a notice of objection was given within that period, the period for appealing under section 17 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.

(5) For the purposes of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty if—

(a) the person is excused payment by virtue of section 24 of that Act; or

(b) the penalty is cancelled by virtue of section 29 or 30 of that Act.

(6) For the purposes of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—

(a) the period for giving a notice of objection under section 29 of that Act has expired and the Secretary of State has considered any notice given within that period; and

(b) if a notice of objection was given within that period, the period for appealing under section 30 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.”

24 In section 36 (interpretation) at the appropriate place insert—

““operate” has the meaning given in section 1(1);”.” —(James Brokenshire.)

This amendment amends the licensing regimes for taxis and private hire vehicles in England and Wales to prevent illegal working in these sectors. It includes the addition of requirements for licence grant to be conditional on leave and for licence length to be limited by a person’s leave duration.

Brought up, read the First and Second time, and added to the Bill.

New Schedule 2

Duty to supply nationality documents to Secretary of State: persons to whom duty applies Persons to whom section 20A applies

1 This is the new Schedule A1 to the Immigration and Asylum Act 1999 referred to in section (Supply of information to Secretary of State)—

“Schedule A1

Persons to whom section 20A applies

Law enforcement

1 The chief officer of police for a police area in England and Wales.

2 The chief constable of the Police Service of Scotland.

3 The Chief Constable of the Police Service of Northern Ireland.

4 The Chief Constable of the British Transport Police Force.

5 A Port Police Force established under an order made under section 14 of the Harbours Act 1964.

6 The Port Police Force established under Part 10 of the Port of London Act 1968.

7 A Port Police Force established under section 79 of the Harbours, Docks and Piers Clauses Act 1847.

8 The National Crime Agency.

Local government

9 A county council or district council in England.

10 A London borough council.

11 The Greater London Authority.

12 The Common Council of the City of London in its capacity as a local authority.

13 The Council of the Isles of Scilly.

14 A county council or a county borough council in Wales.

15 A council constituted under section 2 of the Local Government etc (Scotland) Act 1994.

16 A district council in Northern Ireland.

Regulatory bodies

17 The Gangmasters Licensing Authority.

18 The Security Industry Authority.

Health bodies

19 An NHS trust established under section 25 of the National Health Service Act 2006 or under section 18 of the National Health Service (Wales) Act 2006.

20 An NHS foundation trust within the meaning given by section 30 of the National Health Service Act 2006.

21 A Local Health Board established under section 11 of the National Health Service (Wales) Act 2006.

22 A National Health Service Trust established under section 12A of the National Health Service (Scotland) Act 1978.

23 A Health and Social Care trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991 (SI 1991/194 (NI 1)).

Registration officials

24 The Registrar General for England and Wales.

25 A superintendent registrar of births, deaths and marriages.

26 A registrar of births, deaths and marriages.

27 A civil partnership registrar within the meaning of Chapter 1 of Part 2 of the Civil Partnership Act 2004 (see section 29 of that Act).

28 The Registrar General for Scotland.

29 A district registrar within the meaning of section 7 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965.

30 A senior registrar within the meaning of that section.

31 An assistant registrar within the meaning of that section.

32 The Registrar General for Northern Ireland.

33 A person appointed under Article 31(1) or (3) of the Marriage (Northern Ireland) Order 2003 (SI 2003/413 (NI 3)).

34 A person appointed under section 152(1) or (3) of the Civil Partnership Act 2004.

Other bodies: Northern Ireland

35 The Northern Ireland Housing Executive.” —(James Brokenshire.)

This amendment inserts a new Schedule A1 into the Immigration and Asylum Act 1999 listing the bodies which are subject to the duty to provide nationality documents to the Secretary of State under the new section 20A for that Act (see NC15).

Brought up, read the First and Second time, and added to the Bill.

New Schedule 3

Availability of local authority support

1 Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support) is amended as follows.

2 (1) Paragraph 1 (ineligibility for support) is amended as follows.

(2) In sub-paragraph (1) (excluded support or assistance) after paragraph (g) insert—

(ga) in relation only to a person to whom this paragraph applies by virtue of paragraph 7B—

(i) section 23CZA of that Act (arrangements for certain former relevant children to continue to live with former foster parents), or

(ii) regulations under section 23D of that Act (personal advisers),”.

(3) After sub-paragraph (2) insert—

“(2A) In the case of the provisions referred to in sub-paragraph (1)(ga), sub-paragraph (2) applies only in relation to a person to whom this paragraph applies by virtue of paragraph 7B.”

3 (1) Paragraph 2(1) (exceptions) is amended as follows.

(2) In paragraph (c) for “or 10” substitute “, 10, 10A or 10B”.

(3) After the “or” at the end of paragraph (c) insert—

(ca) under section 95A or 98A of the Immigration and Asylum Act 1999 (support for failed asylum seekers etc), or”.

4 After paragraph 3 insert—

3A Notwithstanding paragraph 3, paragraph 1(1)(g) prevents a local authority in England from providing support or assistance under section 17 of the Children Act 1989 to a person in respect of a child if —

(a) the support or assistance is of a type that could be provided to the person by virtue of paragraph 10A (see paragraph 10A(7)), and

(b) support is being provided to the person by virtue of paragraph 10A or there are reasonable grounds for believing that support will be provided to the person by virtue of that paragraph.

3B Notwithstanding paragraph 3, paragraph 1(1)(g) prevents a local authority in England from providing support or assistance under section 23C, 23CA, 24A or 24B of the Children Act 1989 to a person if—

(a) support is being provided to the person by virtue of paragraph 10B or section 95A of the Immigration and Asylum Act 1999, or

(b) there are reasonable grounds for believing that support will be provided to the person by virtue of that paragraph or section.

3C Notwithstanding paragraph 3, paragraph 1(1)(ga) prevents a local authority in England from providing support or assistance under a provision mentioned in paragraph (ga) to a person if—

(a) support is being provided to the person by virtue of paragraph 10B or section 95A of the Immigration and Asylum Act 1999, or

(b) there are reasonable grounds for believing that support will be provided to the person by virtue of that paragraph or section.”

5 In paragraph 6 (third class of ineligible person: failed asylum-seeker), in sub-paragraph (1), in the words before sub-paragraph (a), after “person” insert “in Wales, Scotland or Northern Ireland”.

6 In paragraph 7 (fourth class of ineligible person: person unlawfully in United Kingdom), in the words before sub-paragraph (a), after “person” insert “in Wales, Scotland or Northern Ireland”.

7 Before paragraph 8 insert—

“Sixth class of ineligible person: person in England without leave to enter or remain

7B (1) Paragraph 1 applies to a person in England if—

(a) under the Immigration Act 1971, he requires leave to enter or remain in the United Kingdom but does not have it, and

(b) he is not an asylum-seeker.

(2) Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).”

8 After paragraph 10 insert—

“Accommodation and subsistence etc: England

10A (1) The Secretary of State may make regulations providing for arrangements to be made for support to be provided to a person to whom paragraph 1 applies by virtue of paragraph 7B(1) and—

(a) who is destitute,

(b) who has with him a dependent child,

(c) to whom section 95A of the Immigration and Asylum Act 1999 does not apply, and

(d) in relation to whom condition A, B, C or D is satisfied.

(2) Condition A is that—

(a) the person has made an application for leave to enter or remain in the United Kingdom and has not withdrawn the application,

(b) where regulations under this paragraph require that the application must be of a kind specified in the regulations for this condition to be satisfied, the application is of that kind, and

(c) the application has not been determined.

(3) Condition B is that—

(a) the person has appealed under section 82(1), and

(b) the appeal is pending within the meaning of section 104.

(4) Condition C is that—

(a) the person’s appeal rights are exhausted, and

(b) he has not failed to cooperate with arrangements that would enable him to leave the United Kingdom.

(5) Condition D is that the provision of support is necessary to safeguard and promote the welfare of a dependent child.

(6) Arrangements for a person by virtue of this paragraph may include arrangements for a dependant.

(7) The support that may be provided under arrangements by virtue of this paragraph may take the form of —

(a) accommodation;

(b) subsistence in kind, or cash or vouchers to pay for subsistence.

(8) Subsections (3) to (8) of section 95 of the Immigration and Asylum Act 1999 (meaning of “destitute”) apply for the purposes of this paragraph as they apply for the purposes of that section.

(9) For the purposes of sub-paragraph (2) regulations under this paragraph may provide for circumstances in which—

(a) a person is to be treated as having made an application for leave to enter or remain in the United Kingdom (despite not having made one);

(b) a person is to be treated as not having made such an application where the Secretary of State is satisfied that the application made is vexatious or wholly without merit.

(10) For the purposes of sub-paragraph (4) a person’s appeal rights are exhausted at the time when—

(a) he could not bring an appeal under section 82 (ignoring any possibility of an appeal out of time with permission), and

(b) no appeal brought by him is pending within the meaning of section 104.

10B (1) The Secretary of State may make regulations providing for arrangements to be made for support to be provided to a person to whom paragraph 1 applies by virtue of paragraph 7B(1) and—

(a) who is a former relevant child within the meaning of section 23C of the Children Act 1989,

(b) to whom section 95A of the Immigration and Asylum Act 1999 does not apply, and

(c) in relation to whom condition A, B or C is satisfied.

(2) Condition A is that—

(a) the person is destitute,

(b) the person has made an application for leave to enter or remain in the United Kingdom and has not withdrawn the application,

(c) where regulations under this paragraph require that the application must be of a kind specified in the regulations for this condition to be satisfied, the application is of that kind, and

(d) the application has not been determined.

(3) Condition B is that—

(a) the person is destitute,

(b) the person has appealed under section 82(1), and

(c) the appeal is pending within the meaning of section 104.

(4) Condition C is that—

(a) the person’s appeal rights are exhausted, and

(b) a person specified in regulations under this paragraph is satisfied that support needs to be provided to the person.

(5) The support that may be provided under arrangements by virtue of this paragraph may, in particular, take the form of —

(a) accommodation;

(b) subsistence in kind, or cash or vouchers to pay for subsistence.

(6) Subsections (3) to (8) of section 95 of the Immigration and Asylum Act 1999 (meaning of “destitute”) apply for the purposes of this paragraph as they apply for the purposes of that section.

(7) For the purposes of sub-paragraph (3) regulations under this paragraph may provide for circumstances in which—

(a) a person is to be treated as having made an application for leave to enter or remain in the United Kingdom (despite not having made one);

(b) a person is to be treated as not having made such an application where the Secretary of State is satisfied that the application made is vexatious or wholly without merit.

(8) For the purposes of sub-paragraph (5) a person’s appeal rights are exhausted at the time when—

(a) he could not bring an appeal under section 82 (ignoring any possibility of an appeal out of time with permission), and

(b) no appeal brought by him is pending within the meaning of section 104.”

9 In paragraph 11 (assistance and accommodation: general), in the words before sub-paragraph (a), for “or 10” substitute “, 10, 10A or 10B”.

10 In paragraph 13 (offences), in sub-paragraphs (1)(b) and (2)(a), for “or 10” substitute “, 10, 10A or 10B”.

11 In paragraph 14 (information), in sub-paragraphs (1) and (2), for “or 7” (as substituted by paragraph 25(8)(b) of Schedule 6) substitute “, 7 or 7B”.” —(James Brokenshire.)

This new Schedule simplifies the basis on which local authorities in England assess and provide accommodation and subsistence for destitute families without immigration status. It prevents adult migrant care leavers who have exhausted their appeal rights accessing Children Act support and provides for their pre-departure support.

Brought up, and read the First time.

Question put, That the schedule be read a Second time.

--- Later in debate ---

Question proposed, That the Chair do report the Bill, as amended, to the House.

[James Brokenshire]

On a point of order, Mr Owen, before we reach the formal conclusion of the Committee with the final motion for our consideration, I very much thank you and your co-Chair, Mr Bone, for the manner in which you have chaired our deliberations. At times you have provided us with sage advice on procedure and the conduct of our consideration of the Bill, so I thank both of you for the exemplary way in which you fulfilled your duties. You will have been ably assisted by the Clerks in so doing, so on behalf of the Committee I underline our thanks to them and all the officials. That support has ensured that our proceedings have always been in order and that we have conducted our business appropriately, so I extend those thanks.

I also extend thanks to the officers of the Official Report. They have ensured that our words have been faithfully replicated. Those who will consider the Bill as it passes to Report and onwards will know that our deliberations and debates have been appropriately and faithfully recorded. I also thank the Doorkeepers and all those who have kept us safe and secure throughout our consideration of the Bill.

On the Government side, I thank my officials and the Bill team for all the support they have provided to me and the Solicitor General during our debates and discussions. I also thank the parliamentary draftsmen for the expert advice that that team has given in the preparation and drafting of the Bill, as well as on some of the more technical amendments that we have laid. I also thank the Solicitor General for the support that he has given, for all his sage interventions and for leading on particular parts of the Bill.

I also thank the Whip, my hon. Friend the Member for Dover, for always ensuring that we are conducting our proceedings appropriately and for moving to adjourn at the end of the day. I also thank my Parliamentary Private Secretary, my hon. Friend the Member for Calder Valley, for his support, and all Members on the Government side.

Oral Answers to Questions

James Brokenshire Excerpts

Monday 16th November 2015 Commons Chamber

[Greg Mulholland (Leeds North West) (LD)]

2. What assessment she has made of the adequacy of complaint procedures in respect of rejected passport applications.

[The Minister for Immigration (James Brokenshire)]

Her Majesty’s Passport Office takes complaints seriously and has a robust process to examine customer concerns. Ultimately, complaints can be referred to the independent Parliamentary and Health Service Ombudsman for adjudication.

[Greg Mulholland]

I thank the Minister for that answer. May I bring to his attention the case of Muhammad Ifran Ayub, who is seriously ill awaiting a heart transplant and has been trying for two years to get a visa for his two-year-old son, who is currently in Pakistan away from both parents? There have been a series of failures in dealing with this case. Will the Minister meet me and the family to discuss it?

[James Brokenshire]

I will always consider representations made by right hon. and hon. Members. It is difficult for me to comment in detail on the Floor of the House on the individual circumstances of the case, but HM Passport Office has to examine documentation very carefully and, sadly, fraud and other criminality can at times be involved. It needs to consider cases dispassionately and, when there are compelling circumstances, reflect them in the decisions it takes. I will look at the facts that the hon. Gentleman has raised.

[Stuart Andrew (Pudsey) (Con)]

3. What assessment she has made of the performance of the police in tackling hate crime.

--- Later in debate ---

[Helen Whately (Faversham and Mid Kent) (Con)]

T2. More than 1,000 unaccompanied asylum-seeking minors have arrived in Kent this year, putting immense pressure on local services. Kent welcomes the Government’s commitment to increased funding, but foster homes are full so we need to find homes for those young people around the country. What steps are the Department taking to create a dispersal system for unaccompanied asylum seekers?

[The Minister for Immigration (James Brokenshire)]

I commend Kent County Council on the work it has done in dealing with the pressures of unaccompanied asylum-seeking children. We continue to work with Kent, the Department for Education and the Local Government Association to ensure a more equitable dispersal of unaccompanied asylum-seeking children, and we hope to come to the House shortly with further details on such schemes.

[Margaret Ferrier (Rutherglen and Hamilton West) (SNP)]

T6. Despite the fact that we have the Regulation of Investigatory Powers Act 2000, the Data Retention and Investigatory Powers Act 2014 and the Counter-Terrorism and Security Act 2015, the Government are pushing through yet another Investigatory Powers Bill. Will the Home Secretary let us know whether commercial virtual private network providers will be classed as telecommunications operators under the Bill?

--- Later in debate ---

[Rob Marris (Wolverhampton South West) (Lab)]

About a fortnight ago, with the competence for which it is renowned, G4S placed dozens of asylum seekers in two unsuitable hotels in my constituency, with no prior liaison with the council. Will the Minister assure me that in future, not only in Wolverhampton but around the country, there will be liaison by agencies such as G4S before asylum seekers are placed?

[James Brokenshire]

I will certainly look into the facts the hon. Gentleman has brought to the House’s attention. Sadly, when there are pressures, asylum seekers sometimes have to be placed in temporary accommodation, such as hotels, but we are absolutely clear that it should be for the shortest time possible, and liaison with local authorities is clearly an important part of that.

[Luke Hall (Thornbury and Yate) (Con)]

T10. Following the pause in developing a new funding formula, will my right hon. Friend assure me that the Department will work with PCCs and chief constables to find a formula that works for my constituents in Avon and Somerset?

--- Later in debate ---

[Alison Thewliss (Glasgow Central) (SNP)]

The Foreign and Commonwealth Office advises against all travel to Yemen and says that anyone in Yemen should leave immediately. Why, then, does the Home Office think it appropriate to deport my constituent there?

[James Brokenshire]

We keep our country guidance up to date, and it is reviewed in the light of circumstances, but, ultimately, decisions on whether people should be removed to particular countries are determined by the courts.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

It is now quite clear that the hundreds of thousands of migrants who have entered Europe over the last few months have not undergone basic security checks. Is now the right time for the EU to reconsider the principles of free movement of people and labour?

[James Brokenshire]

It is clear that significant lessons need to be applied and examined. We are clear, from our perspective, about the checks we put in place at our borders, and in the light of the weekend’s events, Border Force has strengthened its activities at the channel ports, which is the right thing to do.

Immigration Bill (Thirteenth sitting)

James Brokenshire Excerpts

Tuesday 10th November 2015 Public Bill Committees

[The Minister for Immigration (James Brokenshire)]

We have already had a wide-ranging debate on schedule 6, so I do not intend to return to some of the “in principle” issues of which we have had significant discussion. The two amendments in the group, however, touch on the narrow issue of further submissions and concern how we propose to deal with failed asylum seekers who submit further submissions such that their removal would breach the UK’s obligations under the convention on refugees or under article 3 of the European convention on human rights.

A procedure is set out in paragraph 353 of the immigration rules for dealing with such cases, which broadly results in three possible outcomes for the submissions: outright rejection; rejection, but there is a fresh right of appeal against the decision; or acceptance, and the person is granted leave to remain in the UK. Only about 15% of cases are granted leave to remain. Most are found to be without merit and often merely repeat matters already considered and rejected by the immigration judge who dealt with the asylum appeal.

Under existing arrangements, section 4(2) of the Immigration and Asylum Act 1999 is used to support persons who have made further submissions and who require support if they would otherwise be destitute while the submissions are under consideration. Section 4 is to be repealed by the Bill, but we consider it appropriate to retain a mechanism to support those who have lodged submissions, and the Bill does so by amending section 95 of the 1999 Act in order to provide an avenue of support under that measure, subject to the conditions that I will describe.

The system would be wholly unmanageable if a failed asylum seeker were immediately able to access support solely by lodging further submissions and, if the submissions were to be rejected, to continue to receive that support for a “grace period”—21 days for a single person—before that support is stopped. That would be the impact of the amendments.

To illustrate my point, on day one, the failed asylum seeker might lodge the further submissions and be eligible for support. Then, even if the submissions were rejected on day two, they would be entitled to support for at least another 21 days—longer if children were in the household, up to 28 days—during which time they would be able to lodge fresh submissions and so continue the cycle. Therefore, under schedule 6 to the Bill, the arrangements will not work in that way.

Instead, the person will be eligible for support only if the submissions have remained outstanding for a period set out in regulations. We have not made a final decision on how long that period will be, but we expect it to be five working days in most cases, although there may be issues of vulnerability. The shadow Minister, the hon. and learned Member for Holborn and St Pancras, has set out some of the policy framework that will inform that. In effect, the position will remain largely unchanged from current arrangements.

Once submissions are lodged, the person may seek support under section 4(2) of the 1999 Act, but that is normally provided only if a decision on the further submissions and accompanying support application is not made within five working days. Special consideration will continue to be given to cases in which the person is clearly in a vulnerable position, for example because of a disability or in the case of a pregnant woman. In such cases, support is usually granted if a decision on the further submissions is not made within two working days. We expect to continue those special provisions under the new arrangements and will reflect them in the regulations.

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[Gavin Newlands]

Absolutely. I agree with the hon. Gentleman. I think I referenced Lord Green’s evidence on children in an earlier sitting.

If the clause is left unamended, it will see us punishing children for their parents’ actions. If pursuing the goal of removing all forms of support is intended to cut the costs to the Government, the clause also fails on that account. We have received countless pieces of evidence suggesting that removing all support will see us simply pass the costs from central to local government. That was articulated during an evidence session by Stephen Gabriel, who said:

“if the Home Office stops supporting those families, that will potentially have a negative impact on the local authority. That could be a challenge for the local authority.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 71, Q162.]

Liberty has further made the point that, despite assurances from the Government, it seems inevitable that

“some costs will be transferred to local authorities because the…removal of accommodation and support, from children in particular, risks violations of the Article 3 prohibition on inhuman and degrading treatment.”

Given all that, and given the strength of feeling evidenced in a number of contributions to the debate, I hope Government Members will give the amendment serious consideration.

[James Brokenshire]

We have obviously had a wide-ranging debate on the amendments. In many respects, it has repeated some of the in-principle issues Opposition Members highlighted in respect of schedule 6. I therefore do not intend to spend a huge amount of time repeating the arguments we debated last week.

Amendment 226 seeks, in essence, to maintain the pre-existing arrangements. Under the current provisions in the Immigration and Asylum Act 1999, failed asylum seeker families continue to receive Home Office support as though their asylum claim and any appeal had not failed, with the onus on the Home Office to demonstrate non-compliance with return arrangements before support can be ceased. The amendment would maintain that position. We believe that is wrong in principle and would send entirely the wrong message to those who do not require our protection. It would also continue to undermine public confidence in the asylum system.

The current position needs to change. Failed asylum seekers are illegal migrants. Our focus should be on supporting those who have not yet had a decision on their asylum claim and who may need our protection, rather than on those who the courts have agreed do not need our protection and should leave the UK. Instead of indefinitely supporting failed asylum seekers because they have children, we need a better basis of incentives and possible sanctions. We, together with local authorities, can then work with these families in a process that secures their departure from the UK, and schedule 6 to the Bill will deliver that.

Home Office support will, of course, remain available if there is a genuine obstacle to the family leaving the UK. Opposition Members sought again to highlight the 2005 pilot, but I have already indicated the differences between these arrangements and the pre-existing arrangements. We have reflected carefully on those experiences and taken account of them, in order to provide a different approach. If failed asylum seekers decide to remain here unlawfully rather than leaving voluntarily, they should not automatically continue to receive Home Office support simply because they have made a failed asylum claim. We need a better basis of incentives, and we believe the Bill will deliver that.

[Paul Blomfield]

I am listening carefully to the Minister’s response to points made by Opposition Members. Does he accept there is a real risk that this measure will leave some families in destitution and therefore open to the sort of exploitation that part 1 of the Bill seeks to avoid?

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[James Brokenshire]

That is why the arrangements have been framed as part of a continuing process in respect of those whose asylum claims have not been upheld by the courts, in terms of the notification periods and further safeguards that exist.

The hon. Member for South Shields has highlighted on a number of occasions the position of local authorities and whether this measure will transfer costs and obligations to them. I have responded to that previously. We propose that Home Office support will continue to be available to a failed asylum seeker with a dependent child or children while there remains a legal obstacle to their departure from the UK—for example, outstanding further submissions, documentation not being available or practical obstacles such as medical reasons. Human rights issues should not be engaged by the cessation of Home Office support, as any risk of destitution could be avoided by the family’s departure from the UK with assistance with the required travel costs or by their compliance with the conditions of Home Office support—for example, in applying for any travel documents required to facilitate their departure. The package of measures will be subject to the new burdens assessment process in the usual way. I say to the hon. Lady that a system has been put in place to ensure that issues related to the transfer of burdens are properly factored in and addressed.

Schedule 3 to the Nationality, Immigration and Asylum Act 2002 provides for a process whereby local authorities assess human rights-related issues such as destitution. That will continue to apply. Equally, our duties in respect of children under section 55 of the Borders, Citizenship and Immigration Act 2009 will still apply. We are discussing with local authorities the practical implementation of streamlining some of the processes in schedule 6 to those in schedule 3 to the 2002 Act, to ensure that they operate efficiently and effectively. That feeds into the concept of family returns, which I spoke about previously, and the considered fashion in which we are approaching this. This is not come automatic cliff-edge point, as the provisions will apply to those who have a negative asylum decision subsequent to the Bill being in place. Therefore, it forms part of the overall removal strategy that I have previously explained.

[Anne McLaughlin]

I cannot remember his exact words, but the Minister seemed to say that families are choosing, and refusing, to go back to where they came from, and therefore they cannot get support. Without going into the arguments of whether they can go back, do the children of those parents have any choice? Can the children choose to go back to where their parents came from, or are they at the mercy of decisions made by the adults around them? If the answer is that they are at the mercy of those adult decisions, do we owe them anything?

[James Brokenshire]

I understand how the hon. Lady seeks to argue her points and I know how strongly she feels on these issues. If one follows the line of what she has just said, it would be impossible to deport any families who are here illegally. She indicated that because someone had a child, it is not the child’s fault that the family are about to be deported; therefore the family cannot be deported. I respect her position in articulating that, but I cannot agree with it.

[Anne McLaughlin]

On a point of clarification, I was not saying anything of the sort. I said that while they are here and those children have no input into the decision making, should we support them or punish them as well, because of the decisions of their parents?

[James Brokenshire]

The hon. Lady says that if parents who are deliberately trying to frustrate the system have children, the state should automatically continue to support them. The point of the measures is that, on the basis of remaining obstacles, support will continue for all of the family in that situation.

That is why we have the family returns process. We have assisted return, where families are actively encouraged and assisted to leave while we put the family returns process in place, which has the humane nature of supporting people to see that they return. Obviously, where there are barriers to removal, support will remain, as I have already indicated.

[Simon Hoare (North Dorset) (Con)]

We have heard the hon. Member for Glasgow North East, but she has a topsy-turvy way of looking at the issue. Surely, parents have the primary duty of care for their children. The hon. Lady and the amendment seem to suggest that parents can abdicate that responsibility but expect the state to step in to have a greater level of care and concern for their children. That is loco parentis gone bonkers.

[James Brokenshire]

My hon. Friend makes a clear point on where support should be provided. We do have duties in respect of section 55 of the Borders, Citizenship and Immigration Act 2009. Under section 55, child welfare does not require—if a failed asylum-seeker family decides to remain here unlawfully when they could and should leave the UK—that they should automatically and indefinitely continue to receive support simply because they have made a failed asylum claim. That is the nub of the argument. I appreciate that there is a fundamental difference in the Committee. I note that hon. Members are seeking to catch my eye to give way. That is the nub of the argument and it seems there is a difference on that principle.

[Anne McLaughlin]

The Minister is talking about people who have barriers to returning being exception, but regardless of the arguments about whether the adult is able to make that decision, the barrier to the child returning may be the parent’s decision. In that case the child will have barriers, but will not be an exception because the parents are not seen to have barriers.

On abdicating responsibility, I thought that if a parent was deemed to do that—I am not arguing that asylum-seeking parents are doing that—the state was supposed to take over. I thought that was what the legislation that the hon. Member for South Shields mentioned was about. Is there a duty on the state to take over if responsibility has been abdicated?

[James Brokenshire]

I think the hon. Lady is confusing certain issues. As I have already indicated, certain obligations exist under schedule 3 and also under section 17 of the Children Act 1989. We are discussing in detail with local authorities the interrelationship between such backstop support powers and how the different regimes fit together. That needs to be done in the joined-up fashion of understanding that if families are here unlawfully, they could and should leave and there needs to be encouragement through the returns process to ensure that they do. It is in that considered way that we propose the provisions, although hon. Members may disagree with our approach. That is, however, the stance that we seek to take, given the factors I identified and the interrelationship with local authorities I indicated.

Let me turn to amendment 227, which seeks to set the level of the cash allowances given to asylum seekers at 60% of the income support rate for people aged over 25. That would raise the amount provided from £36.95 to £43.86 a week.

The cash allowance is only one element of the support package provided to ensure that asylum seekers are not left destitute. That package needs to be seen as a whole. Accommodation is provided free and comes fully furnished and equipped with bed linen, towels and kitchen utensils. Utilities such as gas, electricity and water are also provided free. Recipients receive free healthcare and schooling for their children. The cost of travel to appointments to pursue an asylum claim—to attend asylum interviews, appeal hearings and meet legal advisers, for example—is also provided separately.

[Keir Starmer]

Will the Minister confirm to members of the Committee who seek comfort from the fact that we have just discussed provisions that apply to asylum seekers who have exhausted their process, that we are now discussing something that applies to all asylum seekers, including, for example, a Syrian who has got to this country in the last few months by whatever means? I take into account what he said about accommodation, but in relation to the comments of the hon. Member for Glasgow North East, the rates in the package are £1.23 a week for toiletries and 69p for healthcare. Given the particular examples that she gave, which made people feel uncomfortable, perhaps Members would like to go to Boots this afternoon and see what they could get for that.

[James Brokenshire]

The hon. and learned Gentleman wrapped up two points. He said that the package would apply to Syrians applying for resettlement here, but that is a separate regime. [Interruption.] He used the pejorative term of Syrians, so it is important to understand the support provided through resettlement when refugee status is accepted, because then there would be entitlement to mainstream benefits. We are talking about the mechanism for those of all nationalities who have claimed asylum in the country but whose claims have not yet been determined.

[Keir Starmer]

The Minister will know that I deliberately did not give that example. I said a Syrian who had arrived in this country from Europe or somewhere—not on the package. Any Syrian who is now in Europe and arrives in this country not under the resettlement regime will come on to this regime. That is the example I was giving.

[James Brokenshire]

I am grateful to the hon. and learned Gentleman for that clarification, because he had not given that clarity initially and it is important to understand the different regimes that operate for those with refugee status and for someone who has come here and claimed asylum. It is helpful that he explained his intent. That is why I said what I did about how asylum support rates are intended to operate for all nationalities of people claiming asylum in this country.

I come on to the second point about the amount of cash, having already indicated to the Committee all the other support mechanisms provided to those seeking asylum fairly and appropriately. The cash amount is provided with reference to a specific legal test set out in section 95 of the Immigration and Asylum Act 1999. The allowance is there to cover what is described as “essential living needs”.

The Home Office reviews the level of the cash allowance each year but the way that review is conducted changed in 2014. Following a judicial review, the Home Office put in place a new assessment methodology designed to give full effect to the findings of and the valuable guidance given by the court. It is important to understand how the rates are set in the context of what the court said and the guidance that it provided. First, a careful assessment is made to identify all needs that are essential and not covered through some other part of the package.

The needs identified in this way are: sufficient food to eat healthily, adequate clothing, provision to cover toiletries, household cleaning items and non-prescription medicines, sufficient provision for travel and communications for everyday purposes and to maintain interpersonal relationships and a minimum level of participation in social, cultural and interpersonal relationships. That is a term of art and an essential need identified by the court. Having identified all these particular needs, an assessment is made of how much money is required to meet each of them. This is done through a mixture of market research into the cost of the particular items and analysis of Office for National Statistics data about expenditure on the items by people in the lowest 10% income group of the UK population. This approach resulted in the allowance for a single asylum seeker being set at £36.62 per week in 2014, rising to £36.95 per week from April 2015. In 2015 we also decided that providing £36.95 for every person in the household—in other words for the asylum seeker and each dependant—would be sufficient to cover the essential living needs of all family groups. This is because of the economies of scale available to large households and is an approach taken by other European countries as well.

I recognise that many organisations representing asylum seekers and children disagree with the changes, but none of these groups has provided detailed evidence to show that the findings of the review are wrong.

[Paul Blomfield]

The Minister referred to ONS data in his justification for the formula that the Home Office uses. He will acknowledge that the Home Office deliberately reduces the sum calculated as essential by the ONS in several key respects, for example for clothing. How does he justify that?

[James Brokenshire]

I am looking at a letter sent out in July at the time of the consideration of the review and there are some adjustments. I am looking at an adjustment in relation to food and non-alcoholic drinks which was set under ONS expenditure data in 2013 but was increased after reasonable adjustment. So there is no mindset of trying to adjust down, but of seeking a fair and appropriate approach in respect of the attributable costs.

[Paul Blomfield]

The Minister’s point about food is of course right. Clothing goes in the other direction. If we look at all the essential living needs, the ONS data would suggest that a level of £40.47 was appropriate, which the Home Office has downgraded to £36.95. Is that not the case?

[James Brokenshire]

The hon. Gentleman was seeking to impute that there was a preordained mindset to adjust everything down. I have already given him an example where there has been an adjustment up. It is that fair assessment, subject to reasonable adjustment, based on the twin tests of ONS data and market research data on costs, which produces the figure. I say to him again that concerns have been expressed by various groups representing asylum seekers and children, but none has provided detailed evidence to show that the findings of the review are wrong. We will continue to assess, we will hold a further review of the allowance levels for 2016 and we would welcome detailed evidence and submissions about the level of the allowance. That is the right forum to address any perception that the allowances are not adequate.

We also do not consider that seeking to apply this to a level under income support is appropriate. It is not referencing the essential living needs test. This was debated by the other place on 27 October, when a motion to annul the regulations that implemented the findings of the most recent review was rejected. I recognise that there are differences of view on this but, on this detailed analysis, on some of these specific items, I would welcome further submissions to show whether the evidence that has been presented to us needs further reflection. Obviously we would consider that in setting the levels for 2016, but I urge that the amendment be withdrawn.

[Keir Starmer]

The two amendments go to the heart of one of the most important provisions. On the withdrawal of support from certain categories, I will not rehearse the powerful argument showing that all the evidence says that this will not achieve the desired objective and in all likelihood will push people into destitution and exploitation. That is why it is such a fundamental issue.

A lot has been said already about the daily rates. It is true that the food and non-alcoholic drink rate is up from the ONS data to £24.96. That is just over £3.50 per day for the very many weeks and months that it takes for a decision to be made about someone who is seeking asylum and may have come from any number of countries, fleeing persecution. All the other rates that have been adjusted, have been adjusted down.

[James Brokenshire]

Not true.

[Keir Starmer]

All the others that have been adjusted have been adjusted down. Some have not been adjusted. I will happily take an intervention if I am wrong about that. Clothing and footwear has gone down from £4.62 to £2.51, and travel from £3.62 to £3. That is 45p or so a day for travel. I do not know in which city people are expected to live for these weeks or months, but travelling for 45p a day is not an easy task. There are not many bus fares that can be bought for that even in one direction. On those adjustments down, the question that my hon. Friend the Member for Sheffield Central put was not whether this was a preordained decision but whether that downward trend could be justified. That question was not answered.

The amendments go to the heart of this part of the Bill and I will press them to a vote.

Question put, That the amendment be made.

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[Sarah Champion]

I would like to build on my hon. and learned Friend’s well made argument. I thank the Regional Asylum Activism Project for Yorkshire and Humberside for their help.

Despite often arriving in the UK with a host of skills and experiences gained in their country of origin, hardly any asylum seekers are allowed to work while their claim is being assessed by the Home Office. Only asylum seekers who have waited over 12 months for an initial decision on their case are eligible to apply for permission to work, but even those granted permission to work are not allowed to work in a self-employed capacity, set up a business, or take up a job that is not included on the highly specialised shortage occupation list. The current restrictions on accessing employment for people seeking refugee protection stops many highly skilled, experienced and educated individuals from contributing to the UK’s economy and society. For example, refugees started Marks & Spencer and brought us fish and chips and the Mini. People seeking refugee protection today will include, among many others, entrepreneurs, doctors, nurses, engineers, teachers, scientists and solicitors. Fundamentally, allowing asylum seekers to work will make economic, social and political sense.

First, on economics, if asylum seekers were granted permission to work, they would be able to contribute to the UK economy immediately through income tax, adding directly to the UK’s coffers. Equally, amounts spent on asylum support would decline, resulting in a net benefit to the economy. That has been recognised by the European Commission, which states:

“Mandatory unemployment… imposes costs on the State through the payment of additional social welfare payments.”

Government research has also recognised that delayed entry to the labour market, loss of skills and confidence, and difficulty getting qualifications recognised in this country can cause problems even when status is granted, leading to high levels of unemployment and underemployment. Allowing people to work while waiting for their asylum claim decision will not only allow them to start rebuilding their lives free from persecution, but allow them to start the journey towards meaningful employment as soon as possible.

Secondly, the indirect costs of enforced poverty are significant. Without the right to work, people in the asylum system are forced to rely on Government support to survive, but with asylum support rates set at £5.28 a day—barely 50% of the income support equivalent—many in the asylum system are forced into institutionalised poverty. As I and other hon. Members have said, extended periods living in poverty have huge impacts on physical and mental health and self-esteem. For some, a reliance on Government support is considered shameful, as they are unable to support themselves and their families; that concern has been raised by the cross-party parliamentary inquiry into asylum support for children and young people. Research from the University of Leeds and the University of Salford found that the experience of poverty was a key factor in pushing many individuals in the asylum process into exploitative and precarious working conditions. I suggest that providing those in the asylum process with the legal permission to work is in line with the Government’s commitment to ending modern day slavery.

Thirdly, the rationale for the current policy does not hold up. The reasons for restricting permission to work for asylum seekers hinge on the idea that it will act as pull factor, but it is important to remember the conclusions of research the Home Office commissioned in 2002:

“There was very little evidence that the sample respondents had a detailed knowledge of: UK immigration or asylum procedures; entitlements to benefits in the UK; or the availability of work in the UK.”

That was confirmed by a review of the 19 main recipient countries for asylum applications in the OECD in 2011, which concluded that policies that relate to the welfare of asylum seekers did not impact on the number of applications made in destination countries. All but one of the countries that granted permission to work to people seeking asylum received fewer asylum applications than the UK in 2012 and 2013.

A change of policy to allow asylum seekers the permission to work is long overdue. In 2007, the Joint Committee on Human Rights described the denial of the right to work for asylum seekers as part of a “deliberate policy of destitution”, which was breaching human rights. In 2013, the cross-party parliamentary inquiry into asylum support for children and young people called for parents and young people to be given permission to work while their claims were being decided. Thirteen local authorities have passed motions condemning the destitution of people seeking asylum. To date, 71 current Members of this House, of all political persuasions, have signed Still Human Still Here’s declaration on permission to work. They join the Trades Union Congress and a broad coalition of organisations, from Refugee Council to Crisis, Doctors of the World to The Children’s Society, in their call for people seeking refugee protection to be allowed to live in dignity, not destitution.

Allowing asylum seekers permission to work will enable many to support themselves through the asylum process. We should grant permission to work to all asylum seekers if they have been waiting more than six months for an initial decision, up until their protection needs are recognised or a safe route back to their country of origin has been negotiated. For this reason, I urge the Minister to support the amendment.

[James Brokenshire]

This is clearly a debate that has been going on for some time. I know there are differences of opinion on the time period that should or should not operate for those who have claimed asylum in this country. The amendment would radically change existing permission to work arrangements for asylum seekers, allowing permission to work where an asylum claim is still outstanding after six months instead of 12 months, removing the caveat that any delay must not be of the asylum seeker’s own making and lifting all restrictions on the type of employment available. Those are the three elements that have been advanced by Opposition Members.

The amendment would enable persons to take any employment of their choice, rather than be restricted to those on the shortage occupation list published by the Home office. The arguments made were initially about compliance with some of our EU obligations and what other EU partners are doing—I will come on to that—and then, separately, what those who are working could contribute. Also, some evidence was adduced on whether permission to work is a pull factor. Let me deal with each in turn.

On the issue of the EU, our current position is consistent with our obligations under the EU reception conditions directive, which sets out the minimum benefits and entitlements afforded to asylum seekers while they await a decision on their claim. That is reflected in part 11B of the immigration rules, but we decided not to opt in to the recast reception conditions directive requiring member states to grant automatic access to the labour market for asylum seekers after nine months, regardless of a decision at first instance being taken, because we considered the Commission’s proposal could undermine our asylum system by encouraging unfounded claims from those seeking to use the asylum system as a cover for economic migration.

It is important to understand that asylum claims cover a range of different circumstances and scenarios. Someone might have claimed asylum at their point of arrival, or been smuggled into this country and then claimed asylum. Someone may already be in the UK, having come via a lawful route, and circumstances change in their home country, so they might claim asylum, or they simply seek to stay here and they use an asylum claim as a means of extending their stay in this country. Sadly, that is the reality of some of the asylum claims that we seek to respond to within the system.

The amendment poses a challenge. Should we be taking steps that are more consistent with our EU partners? I think that in the UK it is right that we should form our own decisions, based on our assessment of our asylum system and what we judge is in the best interests of this country, while supporting the processing and the proud tradition that we have had in this country of granting asylum in this country.

On the labour market issues, an argument was advanced in the context of the asylum support budget, but that argument does not take into account the potential to open up the resident labour market in a way that could blur the distinction between economic migration and asylum. I genuinely worry about measures that blur that distinction. People could apply for asylum but not engage with the process, with the deliberate intent of delaying the process so that they can then be granted the benefit of being able to work after the end of the six-month period. We are concerned that this may lead to an increase in asylum applications that would divert valuable resources away from ensuring that those genuinely in need of protection are recognised quickly, enabling them to integrate and begin rebuilding their lives. That is the approach that we have taken in seeking to ensure that the processing of asylum claims is much better than it was when this Government came in.

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[Paul Blomfield]

If that is the case, presumably the amendment presents no risk or significant worry to the Government. Does the Minister accept that the longer somebody is out of the labour market, the more difficult it is for them to integrate—to get back into the labour market, to contribute to society and so on? Is there not an assumption of failure or refusal underlying the Government’s position, when in fact a very large number of asylum applicants are successful and we all share the objective of seeing them successfully integrate into the labour market?

[James Brokenshire]

The hon. Gentleman makes the point that I was underlining about the need to see that asylum claims are processed as efficiently and effectively as possible. However, I do think that the amendment would blur the lines and might well lead to spurious or inappropriate asylum claims being made, perhaps by people already in this country coming to the end of their stay, whether they came as visitors, students or via other routes. That is a real challenge. The amendment would undermine the integrity of what we all believe in: providing protection to those who are fleeing persecution, ensuring that we have a system that is efficient, effective and focused on making those decisions and seeing that people receive support as recognised refugees at the earliest opportunity. It risks more claims, of whatever character, being made.

We also have to bear in mind the resident labour market. It is argued that if you give an asylum seeker the right to work, you are, in essence, denying a job to someone who is already living in this country lawfully. Because of the implications of that we judge that it is right to have a system that recognises that if there is delay—we judge that 12 months is the right period—people can work, but they should not be seeking to frustrate or delay the system; that test has to be captured as well. It is about shortage skills, those that are needed. That is why the focus is there, otherwise we get into a blurring of issues in relation to economic migration. We must do our utmost to ensure that people in this country who have the skills and the ability are able to access the job market.

[Sarah Champion]

I hear the Minister’s argument. Does he know—if he does not, perhaps he will write to us—the average length of time that an asylum claim takes? From the casework that I get, it seems to be considerably more than 12 months normally, so does his argument stack up? What is the difference between six months and 12 months if the average is 18 months?

[James Brokenshire]

I can tell the hon. Lady that 85% of cases are straightforward and we have a service standard of dealing with those within six months. We dealt with a big backlog earlier this year—that is why I make the point about the effort that has gone in. Many people in the asylum processing system will say that asylum processing is probably in as good a place now as it has been in for many years, but of course I look for further improvements; we do not sit back. Equally, it depends on some of the pressures in terms of changes or increases in the numbers of those who are claiming asylum. We are very vigilant in monitoring how we are dealing with this. I can say to the hon. Lady that 85% of cases are straightforward and that our service standard is to deal with those within six months. Obviously, it is difficult to know what proportion of the people in her constituency may be in the situation she describes; it is difficult to draw that parallel. However, I hope that it is helpful at least to set out the approach that we are taking and that balance in terms of how asylum claims are dealt with.

We judge that the current policy strikes the right balance. Asylum seekers are provided with support and accommodation, but if their asylum claims are undetermined for 12 months for reasons outside their control, they can apply for permission to work. We believe that that is a fair and reasonable policy that we should keep. For the reasons that I have outlined, we ask that the amendment be withdrawn.

[Keir Starmer]

The Minister puts forward a number of good reasons for the decisions to be made within six months and prays in aid the service standard, which is to be supported, but the real question is: how many cases are actually decided within the service standard? We all have examples of where they are not. We know that the number is roughly 3,600. I am sure that the Minister did not welcome the ombudsman’s report published this morning, or at least reported on this morning, about the very high level of complaints upheld by the ombudsman, particularly in relation to immigration decision making. That does not mean that things are not moving in the right direction, but it does mean that very many cases are not decided within the six-month period.

[James Brokenshire]

The point that I was making about the service standard for dealing with the 85% of cases that are straightforward was that that has been met. I do not know whether that is helpful to the hon. and learned Gentleman in relation to his point.

[Keir Starmer]

I am grateful to the Minister for that, but it still leaves outstanding the 3,600 cases in which people have not had their decision made within the six-month period. The Minister says that there is a concern that if there is a change in the current regime to a six-month regime, that may lead to adverse consequences, but as I understand it, that is simply unevidenced. Whatever research has been carried out in this area, it is unevidenced. It is a fear, but it is an unevidenced fear. The reason why I cited the EU provisions was not so much to argue that we should necessarily align ourselves with the EU position and should not take our own position as it was to say that it is much more difficult to make the argument that a six-month regime would operate as a pull factor if other countries are operating that regime at the moment.

[James Brokenshire]

Will the hon. and learned Gentleman accept that the evidence that has been cited is from prior to the current migration crisis and that many EU countries are reflecting on their support and other mechanisms for providing asylum, precisely because of a number of these factors?

[Keir Starmer]

I do accept that, although I think that anyone in this Committee would be hard-pressed to say that the migration crisis of this summer was linked in any way, shape or form to whether someone could work after six months or after 12 months.

[James Brokenshire]

The reason why I intervened on the hon. and learned Gentleman was that his hon. Friend the Member for Rotherham, I think, had alluded to the timing of the reports. The point that I was trying to get across—I will make it briefly in this intervention—was that, sadly, we do see people traffickers, through social media and other means, seeking to set out the position of certain member states and what people are entitled to and, in a very deliberate way, encouraging people to try to come to other European countries.

[Anne McLaughlin]

Will the Minister take an intervention?

--- Later in debate ---

Maritime enforcement

[James Brokenshire]

I beg to move amendment 105, in schedule 8, page 107, line 34, leave out sub-paragraphs (ii) and (iii).

This amendment makes minor drafting changes by omitting the unnecessary alterations to the conjunctions in section 25B(3) Immigration Act 1971.

[The Chair]

With this it will be convenient to discuss Government amendments 106 to 112.

[James Brokenshire]

Amendments 105 to 112 are technical corrections to the drafting of the Bill. I will provide a brief explanation.

The lead amendment makes minor drafting changes by omitting the unnecessary alterations to the conjunctions in section 25B(3) of the Immigration Act 1971. Amendment 106 makes a minor amendment to correct the reference to which paragraph requires amending. Amendment 107 ensures that immigration officers must seek authorisation from the Secretary of State before exercising the maritime powers in relation to a foreign ship, or a ship registered under the law of a relevant territory, within UK territorial waters adjacent to Northern Ireland. That aligns the provision with the equivalent provisions applicable to UK territorial waters adjacent to England, Wales and Scotland. Amendment 108 removes the superfluous definition of “home state” and has no substantive effect. Amendments 109, 110, 111 and 112 are all minor drafting changes to ensure consistency of language throughout the schedule.

Amendment 105 agreed to.

Amendments made: 106, in schedule 8, page 108, line 9, leave out “28A” and insert “28A(3)”.

This minor amendment substitutes “28A” for “28A(3)” to correct the reference to which paragraph requires amending.

Amendment 107, in schedule 8, page 109, line 26, after “before” insert “an immigration officer,”.—(James Brokenshire.)

This amendment ensures that immigration officers must seek authorisation from the Secretary of State prior to exercising the maritime powers in relation to a foreign ship or a ship registered under the law of a relevant territory, within UK territorial waters adjacent to Northern Ireland. This aligns the provision with the equivalent provisions applicable to UK territorial waters adjacent to England, Wales and Scotland.

[Keir Starmer]

I beg to move amendment 229, page 109, line 35, in schedule 8, at beginning insert—

‘( ) Hot pursuit can only be commenced when a ship is in United Kingdom waters.”

Probing amendment to provide the Minister with an opportunity to confirm that hot pursuit will only start when the ship is in territorial waters, as required by Article 111 of the UN Convention on the Law of the Sea.

The amendment is a probing one and, following our debate, we might not have to press it to a Division. There are provisions on hot pursuit in article 111 of the UN convention on the law of the sea. We tabled the amendment to seek assurance that the schedule, which is on maritime enforcement, is aligned with that international obligation, providing the Minister with the opportunity to confirm that hot pursuit will start only when a ship is in UK territorial waters. If that is the case, the provisions in the schedule will align with article 111 of the UN convention and the amendment is unnecessary.

[James Brokenshire]

The right of hot pursuit from territorial waters into international waters has long formed part of UK common law and reflects the provisions in article 111 of the UN convention. The Bill preserves the common law position by virtue of new section 28P(10) of the Immigration Act 1971, inserted by schedule 8. I can therefore confirm that under the maritime powers in the Bill, hot pursuit will commence only when a ship is in territorial or internal waters, as permitted by article 111 of the UN convention. In the light of that assurance, I hope the hon. and learned Gentleman is minded to withdraw the amendment.

[Keir Starmer]

I am, and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 108, in schedule 8, page 111, leave out lines 21 to 24.—(James Brokenshire.)

This amendment removes the superfluous definition of “home state” and has no substantive effect.

--- Later in debate ---

[Keir Starmer]

I will deal with the amendments in the group together, as amendments 237 and 238 would simply apply the provisions of amendment 236 to Scotland and to Northern Ireland. Again, it may be that the Minister’s remarks mean that there is no need to press the amendment.

Our concern is that the powers in the schedule for immigration officers to detain or search those found on boats in UK territorial waters should not be used to push back asylum seekers arriving by boat. As things stand, claims for asylum can be made in UK territorial waters, and if made are dealt with in accordance with the appropriate procedures. There is a wealth of support for that remaining the position. The amendment is probing, and if the Committee is given an assurance on the issue I have raised, I may not need to cite that great wealth of support.

[James Brokenshire]

I will give a brief response to the hon. and learned Gentleman’s probing amendment. The powers in the Bill do not permit officers to turn vessels back. Under the power, vessels may be diverted only to a port in the UK. Upon arrival in the UK an individual wishing to claim asylum may do so and will be processed in the ordinary way. As is the case for all persons arriving in the UK, they will be subject to an immigration examination under the Immigration Act once they have arrived on land, and may also be detained under relevant provisions pending an immigration decision. If they are assessed as being an illegal entrant or attempted illegal entrant, they will be processed under paragraph 9 of schedule 2 to the 1971 Act, and removed accordingly.

[Keir Starmer]

I am grateful to the Minister for that assurance. What he has just said will appear on the record of the proceedings in Committee. In those circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Immigration Bill (Twelfth sitting)

James Brokenshire Excerpts

Thursday 5th November 2015 Public Bill Committees

[The Solicitor General]

I hope I can deal with clause 33 as expeditiously as possible. As I mentioned earlier, the 2014 Act reformed rights of appeal and refocused the appellate system on appeals against decisions that affect protection and human rights claims. Before the changes made by the 2014 Act, there was a right of appeal where leave to enter the United Kingdom had been refused. Paragraph 2A(9) of schedule 2 to the 1971 Act provided a right of appeal where a person who had been granted entry clearance prior to their arrival had had that clearance cancelled on arrival at the UK border. It did that by providing that such cancellation decisions equated to refusals of leave to enter—in other words, it brought them within the definition of section 3D of the 1971 Act.

The changes made to appeal rights by the 2014 Act mean that there is no longer a right of appeal against the decision to refuse leave to enter, so paragraph 2A(9) no longer serves any purpose. For the same reasons I outlined earlier, it is right to remove it from the statute book to avoid unnecessary confusion. There is a saving provision in place to preserve the appeal rights of persons with a pending appeal against the cancellation of entry clearance under the previous appeals regime. Transitional provisions are in place so that there is no undue prejudice to individuals whose cases are currently in the system. For those reasons, I commend the clause to the Committee.

Question put and agreed to.

Clause 33 accordingly ordered to stand part of the Bill.

Clause 34

Support for certain categories of migrant

Question proposed, That the clause stand part of the Bill.

[The Minister for Immigration (James Brokenshire)]

We now move to a new part of the Bill, part 5, which deals with support for certain categories of migrant. Some detailed amendments have been tabled to schedule 6, and clause 34 is almost like a bookmarker to insert schedule 6 into the Bill’s substantive provisions. It might help the Committee in its consideration of those amendments when we debate schedule 6 if I set out the Government’s overall intentions in introducing the measures and explain how they are intended to operate.

The starting point should be the basic policy that we are seeking to advance. We say that it is not appropriate for public money to be used to support illegal migrants, including those whose asylum claims have been found to be without merit, who can leave the UK and should do so. That is the starting point for understanding how schedule 6 will apply. It will restrict the availability of such support, consistent with our international and human rights obligations, and will remove incentives for migrants to remain in the UK when they have no lawful basis for doing so—I stress the latter point. In doing so, the Bill addresses long-standing issues with the system of asylum support.

[Paul Blomfield (Sheffield Central) (Lab)]

rose—

[James Brokenshire]

If I may, I will finish this point and then give way.

The system that Parliament legislated for in the Immigration and Asylum Act 1999 to discharge our international obligations towards those seeking asylum in the UK is too often used to support those whose asylum claim has failed and who have no lawful basis to remain in the UK. On 31 March this year, we were providing support to an estimated 15,000 failed asylum seekers, their dependants and others. In 2014-15, such support cost an estimated £73 million.

[Paul Blomfield]

The Minister said a moment ago that the Government’s intention for this measure is to remove the incentives for people to stay in the UK. Does he acknowledge that the Home Office’s pilot, among a wealth of other evidence, demonstrated that there is no indication that this measure will succeed in helping the Government to achieve that policy objective?

[James Brokenshire]

The hon. Gentleman, in his normal, sage way, has pre-empted me. I intend to address the 2005 pilot directly. I will explain to the Committee why we judge that the arrangements in schedule 6 are different and why they are appropriate. In some ways, we have learned from the provisions that applied under the previous Labour Government.

Let me return to my principal point about providing support for those whose appeal has been analysed by the court and who have, as the lawyers would say, exhausted their appeal rights in relation to asylum and article 8 and have not made further submissions—we will discuss a detailed amendment to schedule 6 that pertains to further submissions. We believe it is wrong in principle to provide support in those cases, because it sends the wrong message to people who do not require our protection and seek to exploit the system. It also undermines public confidence in our asylum system.

Under the current system, failed asylum-seeking families continue to receive Home Office support as though their asylum claim and any appeal had not failed. The onus is on the Home Office to demonstrate non-compliance with return arrangements for support to be ceased. We believe we need a better basis on which to engage with those families, with local authorities and others, and a process that secures more returns. Our judgment is that schedule 6 will support that aim. We should focus on supporting those who have not yet had a decision on their asylum claim and who may need our protection, not on those who the courts have agreed do not need our protection and should leave the UK, subject to certain caveats in relation to proposed new section 95A of the Immigration and Asylum Act 1999, which we will debate in detail.

Schedule 6 makes two key changes to the existing support framework. First, those who have children with them when their asylum claim and any appeal is rejected will no longer be treated as though they are still asylum seekers. They will cease to be eligible for support under section 95 of the 1999 Act. Secondly, section 4 of the 1999 Act will be repealed, and support will be provided to failed asylum seekers and any dependent children only if there is a genuine obstacle that prevents them from leaving the UK. I appreciate that those changes raise important issues, as our public consultation highlighted. We have provided members of the Committee with a copies of our response to the consultation and the policy equality statement on these measures. I look forward to discussing many of those issues when the Committee debates the amendments to schedule 6.

[Keir Starmer]

The Minister dealt with the issue of cost and said that money ought to be spent on other cases, and he has now moved on to children. A concern was expressed in evidence about the duties under the Children Act 1989. Has there been an assessment of the likely cost overall—not to the Home Office budget but to public funds—of bringing these provisions into effect? In other words, has there been an assessment of how many are likely to go to local authorities and what the cost will be?

[James Brokenshire]

The hon. and learned Gentleman will have, in his detailed way, seen the impact assessment, which gives the macro impact on cost savings. I would make the point—which I will underline in further comments—about the new burdens analysis that we will conduct with local authorities. I have been clear in all my discussions with local government and other partners that this is not about trying to move a cost from one budget to another.

We will come to the detailed provisions of the separate support under schedule 3 to the Nationality, Immigration and Asylum Act 2002 which local authorities may have a duty to fulfil under their human rights obligations. There is a separate mechanism that can apply and can fall on local authorities in those circumstances. It is precisely the work we are doing with local authorities to ensure an effective join-up between this arrangement and the separate schedule 3 arrangements which would apply to local authorities. I will come back to some of these points when discussing later amendments, because I know that some of the cost issues and minimum support requirements are further explored by them.

We have reflected carefully on what the consultation responses said about the experience of the 2005 pilot of the cessation of support for failed asylum seeker families under schedule 3 to the 2002 Act. We have taken account of that experience in providing, under this Immigration Bill, what we judge is a different approach.

First, under schedule 3 to the 2002 Act, the onus is on the Home Office to show that a family is not co-operating with arrangements for return. To qualify for support under new section 95A of the 1999 Act, as provided for by this Bill, the onus will be on the family to show that there is a genuine obstacle to their departure.

Secondly, the 2005 pilot involved a largely correspondence-based process for terminating support in family cases that had exhausted their rights of appeal in the 11 months prior to the commencement of the pilot, so some of the cases in the study were actually quite old. By contrast, the new approach will involve a managed process of engagement with the family, in tandem with the local authority, following the end of the appeal process, to discuss their situation and the consequences of not leaving the UK in circumstances where they can do so. Rather than this being a sudden change, it is part of a continuing process and dialogue with those families who will be affected.

Hon. Members will no doubt have noted that the transition provisions make it clear that this is about new cases, thus underlining that sense of a transition from appeal rights being exhausted and the cessation of potential support. No doubt we will get into the cooling-off period in moving from that arrangement to the cessation of support. That is something we are still reflecting on, on the basis of the submissions we received during the consultation. It is important to see this in that way: Home Office support will remain available if there is a genuine obstacle to the family leaving the UK.

Thirdly, we think circumstances have changed. It is now generally recognised that the taxpayer should not have to support illegal migrants who could leave the UK. We intend to work closely with partners in local government and elsewhere to achieve that outcome, because this is not simply about changing the law; rather, it is about some of the practical join-ups for local authorities. As I have reflected, some of the other regimes equally apply to local government.

We continue to consult with local government colleagues, in particular on the details of the new arrangements. I am grateful to the Local Government Association, the Association of Directors of Children’s Services, the No Recourse to Public Funds network and other colleagues for their continued engagement with the Home Office on these issues. All are clear that we want to reduce overall costs to the public purse and encourage and enable more migrants, without any lawful basis to remain here, to leave the UK in circumstances when they can do so.

--- Later in debate ---

[James Brokenshire]

My hon. Friend’s point relates to my earlier point about confidence in the asylum system and ensuring that we are using public funds effectively and appropriately. The Committee may differ on that principal point, but I respect that and we will no doubt come to discuss it.

I return to the point that, for those who have had an asylum claim assessed and considered invalid by the court and who have not made further submissions, then unless there are obstacles that mean that they should not return, we say that, as a matter of policy, public funds should not remedy that. The remedy is that those people leave.

[Keir Starmer]

Will it not cost more if families disappear, as they did under the 2005 pilot, when 16 families dropped off the radar? I do not know whether they were ever picked up again. Does the idea that money can be saved and slipped into the Syrian refugee budget take families disappearing into account?

[James Brokenshire]

I was certainly not saying that money would transfer in that direct sense. As the hon. and learned Gentleman will know, we seek to provide support through the official development assistance that applies in the first year. That was why I was making a point about overall confidence in the asylum and immigration systems and in the rules being upheld. That is the broader issue.

I underline that we are continuing, with local government colleagues, to look at whether further provisions would assist in reducing costs, perhaps in respect of schedule 3 to the 2002 Act, which controls access to local authority social care for migrants without immigration status. We are listening carefully to what local authorities are telling us about the scope for simplifying and strengthening some provisions. Some of the processes are quite clunky and complicated, such as the separate human rights assessments that local authorities must undertake, so we are having discussions with local government about implementing a clear, streamlined process that still recognises existing human rights obligations. We need to understand that properly and appreciate how the asylum and immigration systems sit alongside each other so that safety nets operate effectively.

On the hon. and learned Gentleman’s point about people disappearing, this process is part of a continuum and is not a sudden arrangement. We will reflect further on the cooling-off period from indications being made and families being reminded of what will happen, which is currently 28 days. Discussions on such issues continue. We want families to be in no doubt. Clarity in the immigration system, in particular around assisted return, as we have debated previously, is really important to help people to make decisions.

[Keir Starmer]

I am grateful to the Minister for his generosity in giving way. I understand his point about the policy objective and the rules on removal being complied with, but in circumstances when the desired objective is not achieved and when the family does not go and there are children, will the cost to the taxpayer go up or down as a result of the change?

[James Brokenshire]

The hon. and learned Gentleman is clearly thinking about some of the hypotheticals and the relationship with local government. Our regulatory impact assessment has given us the best assessment based on our analysis of the operation of the scheme in terms of the potential savings. It has therefore taken into account some of those detailed thoughts on whether this represents a transfer of a burden from one place to another. We continue to discuss that with local government, because it concerns the new burdens analysis. I believe that is the point the hon. and learned Gentleman is trying to make: what the new burden on local government might be as a consequence of these changes and how local government might see some issues arising. It is precisely on that detail that we are continuing our engagement with local government, in order to understand that as clearly as possible and to reassure local authorities that this is not about a budgetary transfer.

[Keir Starmer]

I am grateful to the Minister for allowing me to explore the matter in this iterative way. In order to make that assessment of cost, there must be some analysis of how many families will not leave as a result but will, in fact, stay. It is not possible to work out the cost to local authorities, however streamlined and whatever the discussions, without having in mind an assessment of how many families will not leave and will have to be provided for. What is that number and percentage?

[James Brokenshire]

Obviously we are looking at schedule 6 provisions and the changes under the new section 95A support mechanism within schedule 6. The regulatory impact assessment sets out our best analysis of the overall savings to the public purse, and it would be invidious for me to try to provide percentage assumption rates.

This is about departures and encouraging people to leave. It is also about section 95A support where there are barriers to removal. That is likely to be where there is no documentation or difficulty in obtaining it to facilitate departure, or medical issues. Let us not forget that, in conducting its duties, the Home Office will have obligations under section 55 of the Borders, Citizenship and Immigration Act 2009 which it will need to factor in when taking decisions.

[Mrs Emma Lewell-Buck (South Shields) (Lab)]

When referring to the impact assessment, the Minister said the cost was around £32 million. Is that not a drastic underestimation? I do not believe that takes into account the local authorities’ statutory duties under homelessness legislation, the Children Act 1989 or the principles of the Care Act 2014. Will the Minister please clarify?

[James Brokenshire]

I think the hon. Lady is alluding to some of the points I discussed concerning schedule 3 of the 2002 Act: the Human Rights Act assessments that local authorities need to undertake. We seek to continue our engagement with local authorities about the new burdens assessment.

The published impact assessment will be revisited and republished, if required, in relation to further analysis of the new burdens work. Although we have published our regulatory impact assessment based on the evidence provided at the date of the Bill’s publication, it will continue to be reviewed in the light of further discussions with local authorities.

It is not that our minds are closed on that. Rather, having given the best assessment of the savings that the hon. Lady has identified, we will keep this matter under examination. If the measures led to, or risked leading to, migrants being supported by local authorities when they would previously have been supported by the Home Office, we have made it clear through the consultation that we would wish to discuss and address those impacts and their financial implications with local authorities and the devolved Administrations in accordance with the new burdens doctrine.

[Mrs Lewell-Buck]

I think what the Minister is saying is that the £32 million is an underestimate.

[James Brokenshire]

Not necessarily.

[Mrs Lewell-Buck]

I am struggling with this. The Minister says that conversations are going on with local authorities, but should those conversations not have happened before the legislation was put in place? It seems a bit back to front to me.

[James Brokenshire]

No. As always with legislation, we have to have it in place and, as a result, that sometimes provokes further discussion. We have been running a consultation, which we published earlier this week, and the hon. Lady will find in it the response and the feedback, as well as some of the points that we have said we will reflect on further. That is the right and appropriate way in which to deal with the matter. We judge the provisions to be appropriate to the policy intent that I have outlined, so the clause should stand part of the Bill.

[Keir Starmer]

The Minister rightly makes the point that if there are rules, they should be complied with, and that there is a public interest in ensuring that rules are complied with. I concur with that. He said that another objective behind the measure is to facilitate removal, according to the rules. That is the objective, but one of the concerns about the clause is that all the evidence suggests that that objective will not be fulfilled.

I will turn first to the 2005 pilot and then address the Minister’s points about what is in the Bill being different. The pilot, under the existing scheme, involved 116 families, and there were two reports or evaluations, one published in 2006 and the other in 2007. It is worth running through some of the numbers, because they show a lot of the causes of concern.

The 2006 evaluation, published by the Refugee Council and Refugee Action, found that of the 116 families, only one left the country as a result of the pilot under section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, while three signed up for voluntary return and another 12 took steps to obtain travel documents. By contrast, 32 families—I think I said 16 earlier—went underground, without support, housing or access to health or welfare services. That was the impact. Nine families were also removed from the pilot because their cases were reviewed as part of the process and it was found that their claims should not have been refused. Many of the families had serious health and mental health problems. The 2006 review therefore found the approach in the pilot to be wholly counterproductive, even for the Government’s own objective.

The Home Office review was published a year or so later, in 2007, and concluded:

“In the form piloted section 9 did not significantly influence behaviour in favour of cooperating with removal—although there was some increase in the number of applications made for travel documents. This suggests that the section 9 provision should not be seen as a universal tool to encourage departure in every case.”

The scheme has been rarely if ever used since, because it was considered a policy failure, but now that failure is to become the norm under the provisions of the Bill. The Minister said that in the Government’s judgment there was such a difference between the new scheme and the one piloted in 2005 that the results of the pilot were unlikely to be repeated. He gave three reasons. First, the onus is now on the applicant and not on the Home Office to prove or disprove, as the case may be, the obstacle to return. I will hear whatever the Minister has to say on that, but I am not sure that that is a reason. It is a difference between the two schemes, but why that difference makes it more likely that people will leave, rather than not leave, as in 2005, he will have to enlighten me about.

Secondly, the old scheme was correspondence-based, but the new one is a managed process involving contemporary decisions. I can see that that makes a difference and it might have some impact, but the results of the pilot were so profoundly claimed by pretty well everyone to be a complete failure that it is hard to see that that difference will be the silver bullet.

--- Later in debate ---

I listened carefully to what the Minister said about costs. I recognise why he said that the Government’s mind is not closed on the cost implications and that further assessments are being carried out. However, when the costs are fully assessed and local authorities’ various assessments and duties are satisfied, if it transpires that this measure costs more than it saves, how will the Government respond?

[James Brokenshire]

Let me respond to the points raised in the debate. I want to underline the change in the nature of administration in the immigration system which has taken place. We scrapped the UK Border Agency and we have now established separate commands: UK Visas and Immigration, which processes asylum and other visa claims, Immigration Enforcement, and Border Force.

The proposals I have outlined are about embedding the work with local authorities. We are working more closely with local authority colleagues, drawing on their experience and ours of effective family engagement. In particular, that work will build on our existing family returns process, in which a dedicated family engagement manager works directly with the family. From 1 April to 2 October, the process achieved the return of 377 families. The point I therefore make to the hon. and learned Gentleman—perhaps this is why he did not grasp my third point, on the public policy objective—is about the alignment between activity in local and central Government, with that shared endeavour.

In many ways, that takes us back to the point made by the hon. Member for South Shields about these measures simply passing the cost of supporting destitute failed asylum seekers and their families on to local authorities. The proposals have been carefully framed to avoid that. The Home Office has consulted local authorities on the proposals and will continue to do so. There is no general obligation on local authorities to accommodate illegal migrants who intentionally make themselves destitute by refusing to leave the UK when it is clear that they can. None the less, we are considering whether it might be necessary or helpful to clarify that, perhaps in schedule 3 to the Nationality, Immigration and Asylum Act 2002.

Schedule 3 to the 2002 Act provides that, across the UK, a range of local authority-administered welfare provisions are generally unavailable to failed asylum seekers and their families who remain in the UK unlawfully. It enables such support to be provided where necessary to avoid a breach of a person’s human rights, but such a breach will not generally arise if the person or family can leave the UK. We are working with local government on precisely that interface and whether further clarification may be helpful.

Let me provide further amplification of what I have said about the impact assessment. It currently assumes that 10% to 20% of individuals who lose Home Office support under schedule 6 may move on to local authority support, pending the outcome of a further non-asylum, article 8-based application to the Home Office. We have factored in a figure in relation to that. The figure will be reviewed as part of the “no new burdens” analysis, but as I have said, the legislation has been framed to avoid that. We have considered that as part of the impact assessment. Although the hon. Lady suggested the figure may be an underestimate, our judgment is that we have undertaken the best assessment and have carefully factored in some of those issues.

[Keir Starmer]

I think the Minister may be moving on from the question of what impacts on the minds of individuals and their families. In the end, whether the Government have aligned or realigned with local authorities or are working well with them is not the central question. The central question is: what operates on the minds of these individuals that improves the chances they will leave in circumstances where, in the past, they have not?

As I understand it, the 2005 pilot was a failure. The family returns policy, by contrast, is thought to have been successful, but that scheme runs under the current support regime. Rather than introducing an element that has failed in the past, would it not be far better to simply put the focus on improving the family returns process—in other words, to focus on what persuades people to go? We have a scheme that seems to be working pretty well, so we should focus on that and make it work even better. How does taking away support help to improve the scheme running at the moment?

[James Brokenshire]

I have two points for the hon. and learned Gentleman. The first comes back to my point about administration and public policy and aligning local and central Government to give families a consistent and clear message about the likely outcomes. This scheme will start before the cessation of support, and we have underlined that. A clear message is important in order to ensure that families understand what is likely to happen to them, and consistency is being provided by both the Home Office and local government.

Secondly, the hon. and learned Gentleman rightly touched on issues with assisted voluntary return and on family returns. This is about both elements combined. Assisted voluntary return for families is a scheme for families comprising a maximum of two adult parents and at least one child. Families who leave the UK under that scheme qualify for support in the form of advice and financial assistance both pre and post-departure, help with travel arrangements, medical assistance and support following arrival in the country of return.

From January, the assisted voluntary return programme will be administered directly by the Home Office, which we judge will enable us to work closely with local authorities and other partners to deploy the scheme more flexibly. In particular, we will be able to ensure that the scheme is targeted at and promoted effectively for newly appeal rights-exhausted families as part of a focused engagement with them about the available options and the consequences of not accepting the help and advice available. Those factors, together, respond to the hon. and learned Gentleman’s point about what is likely to change behaviour, and we judge that they are the right way forward to meet the underlying policy objective.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Mrs Lewell-Buck]

As always, it is a pleasure to serve under your chairmanship, Mr Owen. I will speak briefly to amendment 222, which would grant a right of appeal to those who are refused support by the Home Office, or whose support is discontinued. The right to appeal is important both for the individual concerned and because of the difficulties that the withdrawal of support for failed asylum seekers will create for local authorities, about which hon. Friends and I have already spoken.

It is necessary to set out the effect of clause 34 and schedule 6, to underline exactly why it is vital to have a right of appeal. The schedule as it stands will inflict destitution on families with children. Whereas in the past the Secretary of State could provide accommodation and support to help families survive, the new mechanism will impose a burden of proof on asylum seekers. They will need to show that they are destitute and that there is a genuine obstacle preventing them from leaving the country.

[James Brokenshire]

The hon. Lady has just said that the schedule will have an impact on asylum seekers; it will not. The mechanism in it relates to those whose asylum applications have been determined and have been found to have no grounds. I make that distinction because I want to underline that support is there for those who are having their asylum claims assessed.

[Mrs Lewell-Buck]

I thank the Minister and apologise for my semantics.

We do not know what the “genuine obstacle” that must be preventing people from leaving the country means, because it has yet to be defined in regulations. We are potentially talking about denying support to extremely vulnerable families, so the House should be able to discuss and vote on that in primary legislation. My hon. Friend the Member for Rotherham made that point well in our evidence sessions. That definition will effectively define the scope of support given to people, and it could leave families homeless and destitute. We should be debating that definition now. It is not something to be nodded through the House at the whim of the Secretary of State.

--- Later in debate ---

[James Brokenshire]

I will respond to each of the points made by Labour Members. The points made by the hon. Member for Sheffield Central undermine the appropriateness of the various measures in the Bill to confront illegal working, including the extension of the right to rent scheme to ensure against abuses. We are joining up enforcement against rogue landlords and those who are abusing their position in that way.

Furthermore, the immigration system in operation in 2008 was in a poor condition under the previous Labour Government. It was in need of significant change and reform to get it to do the job in hand. That is why I emphasised the coalition Government proceeding to scrap the old UK Border Agency and putting in a different form of administration, which we judge to be improving the system, rather than making it worse.

I will also respond to some of the statistics proffered in support of change, because that might paint a slightly different characterisation from the one we have heard thus far.

[Paul Blomfield]

rose—

[James Brokenshire]

First, I will give way to the hon. Gentleman, who was trying to catch my eye.

[Paul Blomfield]

Indeed I was trying to catch the Minister’s eye. I think he would recognise—as I hope he will now—that the comments made by the now Secretary of State for Work and Pensions were not related to the particular forms of administration or organisation at the time. They were made about the principle of pushing people into destitution in order to create an environment that might encourage them to leave, which was one of the objectives that the Minister present said were behind his policy.

[James Brokenshire]

What I have said is behind the policy is a question of a firm and clear approach on the options and on the process that I outlined in the preceding debate.

I am sorry if the hon. Member for South Shields thought that I was trying to be pedantic in some way; I was not. There is an important distinction between those who are claiming asylum but have not had their rights assessed—it is appropriate to support them, but I am sure we will come on to those issues generally—and those who have had their claim assessed by the courts and determined to be not valid, or not grounded. In that context, therefore, if those families and people decide to remain here unlawfully, rather than leaving voluntarily, they should not automatically continue to receive Home Office support simply because they have made a failed asylum claim.

That is the principle. It is not about being “nasty”, as the hon. Member for Sheffield Central pejoratively sought to characterise things. It is about fairness, confidence and clarity in the system. That is the approach that we are setting out in the Bill and, as I hope he will understand, the approach that I have sought to annunciate in the manner in which I have put forward the proposals.

[Paul Blomfield]

Specifically on the point about fairness in the system—which we would all agree with—why is fairness assisted by removing the right to appeal?

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[James Brokenshire]

I will come to that. The issue is equally one of fairness to those who play by the rules—those who put in applications, are here lawfully, and have not sought to overstay their visa or put in an asylum claim to try to drag it out in a further attempt to remain in the country. It is fair to those people who have done the right thing that people who do not have that right should leave. We need a better basis of incentives and possible sanctions and, together with local authorities, we need to engage with families in the process to secure more returns and to underline those clear messages.

[Sarah Champion]

I genuinely do not think that any of my colleagues are disagreeing that we want a strong, robust system. We are trying to argue that, looking at the number of appeals decisions that are overturned, the system is not strong and robust. We want a fair system too, but there are people falling through the net, who then get a fair outcome on appeal. To lose that right of appeal does not seem to provide that justice that the Minister seeks.

[James Brokenshire]

Obviously we have existing arrangements under sections 95 and 4 of the Immigration and Asylum Act 1999. We are moving towards a different arrangement under proposed new section 95A, which will apply where there is a genuine obstacle to departure. To be clear, that will be defined in regulations. We expect that obstacle to be either the lack of necessary documentation or a medical reason. Of course, the person will need to show that they are making reasonable steps to obtain the relevant documentation. The Bill does not provide a right of appeal against the decision that no such obstacles exist because that should be a straightforward matter of fact for which a statutory right of appeal is not needed.

[Keir Starmer]

Will the Minister give way?

[James Brokenshire]

Before I give way to the hon. and learned Gentleman, I want to return to the issue of standards and Home Office decision making. I think the hon. Member for Rotherham said that her figures were from 2011. I point to the report of the previous independent chief inspector of borders and immigration, John Vine. I do not think anyone on the Committee would be backwards in coming forwards to identify weaknesses in the system and to expose matters of concern to him. It is worth highlighting his report of July 2014—a later period than that of some of the statistics that have been cited. He conducted an investigation of the whole system of asylum support. It is a long report, but the “positive findings” section of the executive summary noted:

“We found that the decision to grant or refuse asylum support was reasonable in most of the cases we sampled (193 cases out of the 215 cases—90%). We saw many examples of good practice, including staff taking extra steps to ensure that they made the right decision first time.”

He continued:

“In cases where applicants were refused support, we found that in 92 of 103 cases (89%) the decisions made by Home Office staff were reasonable. This was a good performance. Additionally, we found that of 12 cases where an appeal was lodged, only two (17%) were allowed by the First-Tier Tribunal. This is lower than the overall allowed appeal rate for asylum support refusals or terminations.”

The system has been characterised as not operating well and, in fairness to the Committee, it is important that I put that report on the record.

We always look for improvement, which is why we changed the system. We have separate directorates looking at different aspects so that we can hold to account and have better clarity of focus and attention. I will always challenge the relevant directors general to achieve that sense of continued improvement, but it is important to contextualise.

[Keir Starmer]

I want to take the Minister back to the question that my hon. Friend the Member for Sheffield Central asked about the fairness of removing the right of appeal. The Minister’s response was that, equally, we have to be fair to those who play by the rules and make their applications properly. What about the failed asylum seeker who establishes a genuine obstacle and takes on the onus? What happens if that is accepted but the assessment of whether he or she needs support—whether he or she is destitute—is wrong? He or she has done all they can and accepted the burden, but the assessment of whether they need support is wrong. The Red Cross told us that there are a number of cases where that is precisely the situation. The Red Cross often supplies a report, and it is a dead cert winner on appeal. Why is it fair to that person to remove their right to appeal when they will otherwise be destitute?

[James Brokenshire]

The issues that we are dealing with are specific matters of fact, and it remains open to the individual concerned to draw their circumstances to the Home Office’s attention. I take the hon. and learned Gentleman back to how we intend to operate these arrangements. We are not doing this by correspondence; it is being worked through as part of an overall process towards the removal of that individual. The judgment has effectively been taken, and contact is therefore being maintained with the individual, so it is more of the joined-up approach on which I have already responded. That is why, in our judgment, it is a question of looking at the simple elements and at what will be the barriers to removal.

[Simon Hoare]

I do not want to add an unnecessarily acid tone to the debate—[Interruption.] I do not necessarily want to do it, but that does not mean that I will stop myself. I hear what Opposition Members are saying about fairness, but was it fair to those who were making applications and appeals, and so on, who discovered post-2010 that the Home Office had shoved all their paperwork down the lift chutes of abandoned offices? The Home Office had let the whole damned business get so out of control and had become so overwhelmed that it decided that putting the paperwork into the “too hard to deal with” tray was the best option.

[James Brokenshire]

I know this message might not be appreciated by some members of the Committee, some of whom were not here when we experienced some of those practices after coming into government in 2010. I heard, and continue to hear, some extraordinary stories about some of the practices that existed before some of the arrangements that we have now put in place, which is why it is right to focus on some of the administration issues. That is why I referenced the chief inspector’s report. Yes, there is still work to do, and we have been clear on the change and reform that we seek to make to the effective operation of the immigration system. The situation that we picked up was pretty bad. My hon. Friend makes the point clearly and firmly on why some—

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[The Chair]

I call the Minister to come back to the amendment before us.

[James Brokenshire]

I appreciate your direction, Mr Owen, but I think that the history has some relevance to how we administer these rules and requirements and some of the evidence that has been adduced to the Committee. I have tried to bring us into the here and now with what these provisions are intended to do and, through reference to the ICI’s report, to give further clarity on the focus attached to this matter and the decision-making processes. I recognise that this debate is primarily about the rights of appeal. In many ways, we have strayed quite widely, but I appreciate that there are strong feelings on this issue. I respect that, and the House should be able to allow for lively and robust debate where there are differences of opinion. The debate has been helpful, I am sure. Obviously it will be a matter for you, Mr Owen, as to whether we have a subsequent schedule 6 stand part debate, given the wider discussions. I understand that there is a point of difference on some of the principles and I respect that difference. Obviously it will ultimately be for the Committee to determine the decision in relation to the amendment.

[Keir Starmer]

We should all support the measures to improve the decision making. It is good that decisions are improving, and if the success rate is going up in the way suggested in the latest statement, we should put it on the record that we support that; that is a good thing. But is there a target or expectation for right decisions? In other words, is there a target of 90% right or 95% right? What is the threshold? What is the level that the Home Office considers good enough to remove the right of appeal?

[James Brokenshire]

I think the hon. and learned Gentleman is seeking to frame this in a slightly different way. The figures that I referred to related to the system as was. Obviously we are contemplating changes. The point I have made to the Committee is about the nature of the decisions—the very fact-based approach that in our judgment should be clear as to whether there are those barriers to removal. It is on that basis that we judge the formal right of appeal. That is not to say that the person would not make representations to the Home Office—or, through the regular contact that we would have, that assessment could be made—but it is on that basis that we have formed that judgment.

[Paul Blomfield]

I would like the Minister to respond to statistics that have been cited. He made a powerful case and cited a report in favour of the effectiveness of the system, but by doing so sought to invalidate the suggestion of a 62% success rate in the appeal system. He will know, I think, that the Asylum Support Appeals Project receives the statistics from asylum support tribunals and analyses them. Does he recognise that the figure cited of 62% was based on that analysis, between September 2014 and August 2015, where, of the 2,067 applications for appeals against a Home Office refusal of asylum support, 44% were allowed by the tribunal and 18% were remitted—sent back—to the Home Office for it to take the decision afresh or withdrawn by the Home Office as it acknowledged its decision making was flawed? That 62% is therefore robust, is it not?

[James Brokenshire]

No. As I think my hon. and learned Friend the Solicitor General has highlighted, our judgment is that appeal statistics are not a good indicator of the quality of decision making. That is why I referred to the ICI’s report, in which he does the audits of performance. That obviously gives us oversight. Those figures do not, for example, take into account the fact that many appeals are allowed, as my hon. and learned Friend said, or remitted, because the appellant provides the necessary evidence of their eligibility to receive support only at a later stage. It is therefore important to contextualise this properly.

I recognise that there is a fundamental difference of opinion. We can continue the debate in the same manner, but our judgment is that, on the basis of the measure—ultimately, we are debating this particular amendment on appeals—and on the basis of my characterisation of how the system is intended to operate and how the administrative arrangements will function, the amendment is not needed. I therefore ask the hon. and learned Gentleman to withdraw it.

[The Chair]

Before I call Keir Starmer, the Minister was being helpful and measured when he talked about having a debate on schedule 6. We have a lot of amendments to go through; we might cover a lot more ground before we get to schedule 6. I will make a judgment at that time, so I ask Members to speak to the amendments before us, whether they be Opposition or Government amendment.

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Division 25

Ayes: 7

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Labour: 5
Scottish National Party: 2

Noes: 9

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Conservative: 8

[James Brokenshire]

I beg to move amendment 96, in schedule 6, page 91, line 2, after “(2)” insert “, (5), (6)”.

This is a minor and technical amendment. It is consequential on the repeal of section 4 of the Immigration and Asylum Act 1999. Section 43(5) and (6) of the Immigration, Asylum and Nationality Act 2006 contain provision about tenancies granted to provide accommodation under section 4 of the 1999 Act.

[The Chair]

With this it will be convenient to discuss Government amendments 97 to 104.

[James Brokenshire]

I hope to be brief in explaining this group of amendments. Amendments 96 to 99 are all minor and technical amendment relating to the repeal by schedule 6 of section 4 of the Immigration and Asylum Act 1999. Amendments 96 and 99 relate specifically to the repeal of section 43 of the Immigration, Asylum and Nationality Act 2006, which cross-relates to section 4 and tenancies granted to provide accommodation under section 4 powers. Amendment 98 is also linked to the repeal of section 4 of the 1999 Act. Amendment 97 is also a technical and minor provision. The term “claim for asylum” no longer appears in part 6 of the Immigration and Asylum Act 1999, so the same change is needed in respect of section 141 of the 1999 Act.

Amendment 101 relates to persons supported under section 4 of the Immigration and Asylum Act 1999 when the new arrangements under schedule 6 take effect. Those persons will continue to be supported under section 4 by transitional arrangements. Section 4 support currently consists of accommodation and a weekly non-cash allowance to buy food and other essential items. The allowance is provided through an Azure card that can be used at supermarkets to purchase necessary items. There are no current plans to change those arrangements, but amendment 101 gives the flexibility to do so in future, subject to parliamentary approval of changes in regulation. Such a change might, for example, be appropriate if the numbers supported under section 4 decreased to a point at which the costs of administrating the Azure card outweighed the benefits.

That leaves amendments 100 and 102 to 104, which are minor and technical and relate to those who will remain supported under either section 4 or section 95 of the 1999 Act under transitional arrangements. The amendments will ensure that future and current dependants of those persons may be supported under the provisions. That will mean, for example, that a child born to a person already in receipt of support under section 4 or section 95 of the 1999 Act under the transitional arrangements will also be able to be supported under those arrangements.

Amendment 96 agreed to.

[Keir Starmer]

I beg to move amendment 223, schedule 6, page 91, line 7, at end insert—

‘(2A) Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (withholding and withdrawal of support) is amended as follows.

(a) in paragraph 6(1), after “person” insert “who entered the United Kingdom as an adult”

(b) in paragraph 7, after “person” insert “who entered the United Kingdom as an adult””

To ensure that all care leavers—including young asylum-seekers and migrants who came to the UK as children—are given the support they need while they are in the UK by amending Schedule 3 of the Nationality, Immigration and Asylum Act 2002 so it does not apply to people who initially came to the UK as children. It will not create an automatic right to support but make sure that a young person is not discriminated against on the basis of his or her immigration status.

I can deal with this amendment shortly. The intention is to ensure that all care leavers, including young asylum seekers and migrants who come to the UK as children, are given the support they need while they are in the UK by amending schedule 3 to the Nationality, Immigration and Asylum Act 2002 so that it would not apply to people who initially came to the UK as children. The amendment would not create a right to support but would ensure that a young person was not treated differently on the basis of his or her immigration status.

I will come to the nub of what sits behind the amendment. For adults, support continues under schedule 3 to the 2002 Act until the individual fails to comply with removal directions, whereas support can be withdrawn for young people if they are found to be unlawfully in the UK but have not been served with removal directions. There has been criticism of the impact of schedule 3 by the Joint Committee on Human Rights and the Office of the Children’s Commissioner. The Refugee Children’s Consortium has also expressed concern about it. This is a narrow but important point.

[Anne McLaughlin]

I am going to speak very slowly and clearly. For many years, this country and other countries have struggled to support children who are leaving the care system. It has been well documented that those children’s life chances are measurably lower than those who do not go through the care system. Of course, various Governments have taken different measures to address that issue over time. When it comes to asylum seekers, however, we have a situation where children who are even more vulnerable find themselves destitute and without proper legal support when their appeal rights are exhausted, despite growing evidence that approximately 3,000 unaccompanied children come to the UK each year. This is another example of immigration legislation not keeping pace with the legislation protecting the rights of children and young people who are in our communities already but are no longer being supported by the Home Office.

We know that destitution forces young people into grave situations, some of which will be made worse by the Bill. Exploitation in all its forms, homelessness and ill health all follow on from the state turning its back on a desperate and isolated young person who has left care. It is worth highlighting an example given by the Children’s Society of a torture survivor from Iran who came to the UK aged 17. His initial claim was rejected and he went without legal representation for his appeal. Once that, too, was rejected, his support from children’s services was cut off and he was made homeless. He lost the support of the counsellor who had been helping him to deal with the trauma of the torture he had suffered. His health deteriorated further as a consequence of sleeping on the streets. I always find it useful to try to put myself in someone else’s shoes, and I think that sleeping on the streets for one night would be enough to finish most of us off. The good news is that he then received support from a charity and a fresh solicitor. His new claim was successful and he was granted leave to remain. His life was on course to be so much worse than I imagine it is now he has that support.

Amendment 223 is a sensible measure that would provide some protection for asylum seekers who have been in the care system and who are, by their very nature, among the most vulnerable in our society. I feel confident and hopeful that the Minister will support it.

[James Brokenshire]

I thank the hon. Member for Glasgow North East and the hon. and learned Member for Holborn and St Pancras for their comments, which were brief, clear and to the point.