Baroness Lister of Burtersett
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Immigration Bill
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Lord Alton of Liverpool (CB)
My Lords, I am a signatory to Amendment 227, which has been so comprehensively and well introduced by the noble Lord, Lord Rosser, this afternoon. The noble Lord, Lord Bates, will recall that, prior to Second Reading, I chaired a meeting in your Lordships’ House organised by the Refugee Children’s Consortium and the Children’s Society. Some of the issues raised by the noble Lord today were raised then, and I know that they have been on the mind of the Minister.
The position of children was brought home to me by a report that appeared in the Daily Telegraph on Monday last, reiterated in the Observer on Sunday, which stated:
“At least 10,000 unaccompanied child refugees have disappeared in Europe, the EU’s criminal intelligence agency has said, as it warned many could be in the hands of traffickers.
Brian Donald, Europol’s chief of staff, said the children had vanished after arriving in Europe and registering with state authorities”.
He went on to say:
“It’s not unreasonable to say that we’re looking at 10,000-plus children”.
We should take the rights of children, which are at the heart of the amendment, very seriously within our own jurisdiction, as well as recognising that children are suffering outside our jurisdiction as a result of this massive crisis of migration.
The seriousness of this question and of out-of-country appeals was also brought home to me this morning when, with my noble friend Lord Hylton and as a result of the kindness of the noble Lord, Lord Bates, and Mr James Brokenshire in organising it for us, we visited Yarl’s Wood detention centre. I was deeply impressed by a lot of what we saw there. We were able to talk at random to people at Yarl’s Wood. I spoke to a lady who is 33 years of age. She has lived in this country for 26 years. She has three children, aged 17, 14 and 12. She was born in Somalia. Because she has some minor convictions, including things such as shoplifting in the past, this lady will be deported from this country to Mogadishu in Somalia. “Needless to say”, she said, “Every night, I sleep with my heart pounding”. I do not know, but will this woman have to launch an appeal from Mogadishu? Is this the sort of thing that could arise as a consequence of this legislation?
That is why the amendment that the noble Lord moved is so important. I have three very brief reasons why I support it. First, thousands of children, including British citizens, will be at risk of being separated from their parents or being removed from the UK before any judicial scrutiny of the Home Office’s decision and without adequate consideration of the best interests of the child. Secondly, given the consequences of inappropriate certification and the cost and obstacles to challenging certification—the only means of doing so being by judicial review—surely it is wrong to extend the existing provisions. Thirdly, Clause 34 could see more cases involving unaccompanied children or young people aged over 18 who claimed asylum alone as children, or who arrived as children and have lived in the UK for most of their lives, being certified for an out-of-country appeal and being removed to their countries of origin without a sufficient assessment of their best interests being undertaken.
The Children’s Society tells me that the provisions risk children being deprived of their parents or forced to leave the country that they grew up in before any judicial scrutiny of the Home Office’s decision and without adequate consideration of the best interests of the child. It says that this provision could see more cases involving unaccompanied children or young people aged over 18 who claimed asylum alone as children and/or who have lived here for many years and have built their lives in the UK being certified for an out-of-country appeal.
The noble Lord, Lord Rosser, was right to remind us of the implications, following the changes made under the Legal Aid, Sentencing and Punishment of Offenders Act, of the consequences of removing legal aid. I was struck by a report, again by the Children’s Society, that estimates that 2,490 children would be out of scope in a post-LASPO context. Clearly, without legal aid these children, including those in care, are unable to resolve their immigration issues, often resulting in a crisis for the child as they turn 18.
I have only one other point, which is a question to the Minister. Given the difficulties that children and families face making immigration applications because there is no legal aid for immigration claims, how will the Home Office be sure that it has all the information it needs to make a comprehensive, best-interests assessment before allowing an appeal only from outside of the United Kingdom? Before we agree the provisions of the clause or reject the amendment, we need an answer to that question.
Baroness Lister of Burtersett (Lab)
My Lords, I shall speak in support of opposing the question that Clause 34 stand part of the Bill and in support of Amendment 227, to which I added my name. In its two reports on the last Immigration Bill, the Joint Committee on Human Rights, of which I was then a member, raised serious concerns on human rights grounds about out-of-country appeals. It questioned reliance on judicial review to challenge certification. I note that the Select Committee on the Constitution suggested that we may wish to bear these concerns in mind. Indeed, I see that the current chair of the JCHR has written to the Home Secretary to raise concerns about how extension could result in families with meritorious Article 8 claims being subjected to extensive separation.
A wide range of human rights and immigration organisations have raised concerns on human rights and rule of law grounds, as access to justice is likely to be impeded, as we have already heard. On the rule of law question, ILFA notes that the Government point to the decision in Kiarie, R v the Secretary of State for the Home Department as support for its view that an out-of-country appeal is adequate. However, ILFA responds that a decision that the Secretary of State is entitled to proceed on the basis that an out-of-country appeal will meet the procedural requirements of Article 8 in the generality of criminal deportation cases, where she is balancing the individual’s right against the public interest of deporting someone with a criminal conviction whose presence, it is asserted, is not conducive to the public good, does not necessarily mean that it will meet those requirements in the wider generality of cases covered by Clause 34.
Concerned organisations, including Amnesty, also point out that the consequences of being removed from the UK may be profound and long-lasting, even if removal is for a short time only. Despite the equality statement’s assurance that no adverse impact on grounds of gender are anticipated, as I said at Second Reading:
“Rights of Women is worried about the implications for women migrants who have left abusive partners but who do not qualify to remain under the normal domestic violence rules because of their status, which is a common occurrence. Rights of Women fears that:
‘A mother seeking to remain in the UK as the parent of a child who is wrongfully refused by the Home Office faces the prospect of leaving her child in the UK with an abusive father or taking her child with her forcing them to leave behind a network of friends and family, abandoning their schools and communities and being forced to live in a country where in many instances they have no ties, no understanding of the language or culture’.
It points out that this upheaval could last for months or longer”.—[Official Report, 22/12/15; col. 2491.]
Potential family separation is a concern raised by a number of organisations. Will the Minister confirm that the family test was applied to this provision and, if not, why not? If the answer is yes, would he be willing to publish the conclusions reached, as, to its credit, the Home Office did, in the equality statement Reforming Support for Failed Asylum Seekers? In particular, what impact do the Government believe the policy will have on all family members’ ability to play a role in family life—one of the questions in the family test? The fact that the DWP guidance suggests that this question is aimed mainly at work/family life balance issues should not allow the Home Office to ignore this clause’s potentially much more profound impact on the ability to play a role in family life where families are separated as a consequence of it.
This brings me to Amendment 227. In its recent note on this clause, the Home Office acknowledges its duty under Section 55 of the Border Citizenship and Immigration Act 2009 to,
“have regard to the need to safeguard and promote the welfare of any child in the UK who will or may be affected by any immigration decision”.
It continues,
“where the decision maker is aware that there is a child who is affected by her decision, the decision maker will have regard to the best interests of that child as a primary consideration in deciding the human rights claim and also in deciding whether to certify the claim so that the appeal is heard after the person has left the UK”.
This is clearly meant to be reassuring but it does not reassure members of the Refugee Children’s Consortium, whose experience is that children’s best interests are not systematically and comprehensively assessed within immigration decision-making. Its briefing reminds us that the,
“UNHCR’s audit of the Home Office’s procedures highlights that, at present, there is no formal and systematic collection or recording of information that will be necessary … to a quality best interests consideration. This includes a lack of any mechanisms to obtain the views of the child”.
As the JCHR concluded in its final report of the last Parliament on the UK’s compliance with the UN Convention on the Rights of the Child:
“The Home Office seems still to prioritise the need to control immigration over the best interests of the child. This is unsatisfactory. The Government must ensure that the best interests of the child are paramount in immigration matters”.
In contrast, the Home Office note emphasises:
“While the best interests of the child are a primary consideration, they are not the only or an overriding consideration”.
Of course they are not the only consideration but established case law makes it clear that decision-makers must first understand what course of action would be in the best interests of the child before going on to take account of other considerations, including immigration control.
Lord Keen of Elie
I quite understand the noble Lord’s point. That is why the Secretary of State retains discretion over certification—this is not an absolute. In circumstances where there is a risk of serious irreversible harm because of conditions in a particular country or part of a country, there will not be certification. In circumstances where that would amount to a breach of an individual’s human rights, there will not be certification. There is that safety net. It may not be as large as some noble Lords would wish but it is there for these very cases. It is not dissimilar from the instance cited by the right reverend Prelate of a child being exposed to the very real risk of sexual violence or mutilation. Again, this is why the provisions of Clause 34 are not absolute and compel the Home Secretary to take a reasoned decision that has regard to a primary issue being the interests of the child.
A further point was raised by the noble Lord about whether and when the Secretary of State for the Home Department could be sure that she had all the information. Of course, there can be no absolutes. However, in a situation involving children, individuals—parents and carers—readily come forward to explain that there are children. Where the existence of children is identified, that matter is explored, as it is bound to be, pursuant to Section 55 of the Act I cited earlier.
My experience of being involved in the Kiarie and Byndloss cases before the Court of Appeal involved my examining the decision letters issued by the Home Office. These are not glib, one-paragraph notices, but very detailed and considered letters that were sent out, giving not only a decision but a reasoned foundation for that decision. I cannot—and would never dare to—assert that they are invariably right in every respect, or that they are exhaustive in every way. On the face of it, however, it is the practice, subject to the guidance given, to send out truly reasoned decision letters in these circumstances, with particular reference to the interests of the child or children who may be affected.
I turn to the observations of the noble Baroness, Lady Lister, who also mentioned the Kiarie and Byndloss cases. She suggested that ILPA took a slightly different view of that decision from the one I have expressed. I would cleave, however, to the ratio of the unanimous decision of the Bench of the Court of Appeal: it is quite clear what it was saying with regard to this matter. It is not tied to the fact of criminality; it is tied to the facility for an out-of-country appeal and the ability for that appeal to be discharged in such a way that we can be satisfied that it is fair to the appellant. In other words, it may not be the most advantageous form of appeal but it does meet the essential requirements of effectiveness and fairness. That is not affected in one way or another by the pre-existing criminality, or alleged criminality, of the relevant appellant. To that extent, I am afraid I have to differ from her on that matter.
The noble Baroness mentioned the matter of a family test. However, a family test does not immediately arise in this context. I understand that the family test is designed to ensure that the Government’s policies overall encourage and support family life in the United Kingdom. We are dealing here with someone who is not entitled to be in the United Kingdom, and the policies that concern removing persons from the United Kingdom will therefore not always engage the family test.
Baroness Lister of Burtersett
My understanding of the family test is that it is to apply not to the generality but to any policy proposal in law that might impact on families. One of the big concerns raised by many organisations giving evidence and briefing us is that this will have very serious implications for families because of family separation. Therefore, it seems appropriate to apply the family test to this proposal.
Lord Keen of Elie
It is not immediately apparent to me that it is applicable to this proposal, but in this context one has to bear in mind that a primary consideration is the interests of the child or the children. To that extent, what might be regarded as an aspect of the family test is being applied. That is always a primary consideration. There are circumstances where it may be appropriate for the children to accompany a person out of the United Kingdom, and there may be no difficulty about that. There may be circumstances in which it is appropriate for the children to remain with a parent or carer within the United Kingdom. If there are circumstances where they will have no parent or carer within the United Kingdom and it would not be appropriate for them to leave the United Kingdom, again, there is the safety net of the certification, dealt with in Clause 34, as there is under the existing legislation. To that extent, it appears to me that the matter is dealt with.
The noble Baroness went on to mention again the interests of the child and to ask how many children would be affected by this. It is not possible at this stage to say. On the basis of unofficial and informal figures, I understand that no child has been certified for an out-of-country appeal under existing legislation. Of course, the present amended legislation has been in force for only a short time, since 2015, so it is difficult to discern figures from that.
The right reverend Prelate the Bishop of Norwich referred to particular cases. I hope that I have addressed his concerns. If there was such a serious risk to a child as he alluded to, it appears to me that, with respect, the safety net in Clause 34 would apply.
The noble Baroness, Lady Hamwee, referred to difficulties in producing evidence in the context of an out-of-country appeal. I do not accept that it would be materially more difficult to produce evidence in these circumstances. We are talking about an appeal to a specialist tribunal that is well equipped to decide the form of evidence it requires in a particular case. As I mentioned, when dealing with a case that is going to arise largely on the basis of Article 8 of the convention, if there is to be a convention appeal, one is concerned with family links with the United Kingdom, which are going to be spoken to by persons within the United Kingdom. In so far as there is any factual issue to be addressed by an appellant, it can be done in writing, by video link or even by telephone. That may appear less satisfactory than taking oral evidence but, as the noble Baroness may be aware, it is far from exceptional for appellants not to give evidence in such appeals before a tribunal. It is certainly far from exceptional for appellants not to give oral evidence in such proceedings.
Baroness Lister of Burtersett
My Lords, I oppose the Questions that Clause 37 and Schedule 8 stand part of the Bill and support Amendment 230. I note in passing my support for Amendment 230ZB—I was going to say that the history of vouchers and the Azure card is not a happy one, but that is exactly the phrase used by the noble Baroness, Lady Hamwee. I am a bit worried after the confusion about who said what on the previous group that we are somehow seen as interchangeable; I hope not—from both sides, I am sure.
At Second Reading, I warned of the exploitation that could result from Clause 37 and Schedule 8. To show destitution will not now be sufficient on its own to qualify for assistance. It is clear from past research conducted by organisations such as the Children’s Society and the Centre for Migration Policy Research for Oxfam that destitution can all too easily lead to exploitation—notably of women and children—of various kinds. In particular, it can lead to economic exploitation, which the Bill is supposed to reduce, as destitute asylum seekers are pushed into the shadow economy, sometimes earning as little as £1 an hour in deplorable conditions, and sexual exploitation. This can involve both commercial sex work and transactional sex in return for shelter and basic subsistence.
Children’s Society practitioners report that they see many such ambiguous and all-too-often abusive transactional relationships. As one practitioner observed:
“These women are absolutely at the mercy of other people because they are powerless and have nowhere else to go”.
Previous Children’s Society research revealed how destitute children and young people, too, are vulnerable to abuse and sexual exploitation.
Prospective destitution is in effect being used to incentivise voluntary return—the language of incentives is the Government’s, not mine. The thinking that it betrays was challenged by a Centre for Social Justice working group on asylum a few years ago, and by evidence from many organisations working with asylum seekers—at Second Reading, I cited that from Women for Refugee Women. Not one of 45 women it spoke to in a 2012 study felt able to contemplate return, despite facing destitution. That still held true when they spoke to 30 of those women a year later. It concluded that parents who fear for their own and their children’s safety will not be swayed to return to their home countries by the threat of being made destitute or actual destitution.
Back in 2007, the Joint Committee on Human Rights made it clear, with reference to piloting of the Section 9 scheme, that,
“using both the threats and the actuality of destitution and family separation is incompatible with the principles of common humanity and with international human rights law and … it has no place in a humane society”.
Serious human rights concerns about the proposals in the Bill have been raised by the Equality and Human Rights Commission, with reference to the ECHR and the UNCRC, and the Northern Ireland Human Rights Commission, which has deemed them retrogressive concerning rights contained in the International Covenant on Economic, Social and Cultural Rights.
The only real concession in response to the consultation, other than to local authorities, has been to extend the grace period for families to 90 days, as we have heard. This extension is very welcome. However, there seems to be a sting in the tail, as it now appears that an application for Section 95A assistance will normally be possible only during the grace period while already claiming Section 95 support, and that 90 days will represent an absolute cut-off point. This has caused considerable concern among organisations working with asylum seekers.
Two particular questions arise. I apologise if I am repeating questions posed by my noble friend Lord Rosser, but I am not absolutely sure that they are the same questions because I did not quite take it all in. I do not think that there is any harm, because it is important that these questions are addressed. I should be grateful if the Minister would do so when he replies. First, will he provide an assurance that the regulations that permit applications outside the grace period will include changes of circumstance such as when asylum seekers who were previously supported by friends or family become destitute or encounter a barrier to return after the grace period is over? If the 90 days prove to be too short for families to complete the family returns process—we heard already that the Home Office’s own evaluation of the process shows that three out of five families take longer than three months—what discretion will there be for support to be extended for families still going through the process?
Welcome as the Home Office’s recent note was in providing more information, it is deeply unsatisfactory that it does not contain the level of detail about the regulations that we need to scrutinise these provisions properly. Nor does it indicate the level of support that new Section 95A will provide. Will it be the same as that provided by Section 95? Given the savage cuts to support for children that we debated last year and to which the noble Baroness, Lady Hamwee, already referred, surely there can hardly be less than that level of support. What is the Government’s response to the Delegated Powers Committee’s recommendation that the regulation should be subject to affirmative not negative procedures?
On Amendment 230, it is simply not credible to maintain, as Ministers do, that an appeal is not necessary because whether or not there is a genuine obstacle to leaving is a straightforward matter of fact. As Still Human Still Here legitimately asks, if such decisions are really so straightforward, how come the Home Office so often gets them wrong? As it points out, the reality is that these types of support decisions are complex, with caseworkers having to assess both whether someone is destitute and faces a genuine obstacle to leaving the UK. During 2014-15, it represented 168 asylum seekers deemed not to be destitute and in 70% of cases the Home Office decision was overturned. A similar proportion of cases was overturned or remitted in the 89 cases it represented where the appeal was on grounds of fitness to travel or reasonable steps being taken to return.
Such statistics demonstrate that facts are not just facts but have to be interpreted and evaluated, and a judgment made. All too often, it would appear that the Home Office is making an erroneous judgment. Yet in future there will be no tribunals, either to ensure justice or to provide some kind of check on Home Office decision-making, which is likely to become even worse as a result. The Home Office contends that appeals win only because of the late submission of evidence, but that is not supported by the analysis conducted by ASAP. Has the Minister seen that analysis and would he care to comment on its findings?
Important human rights and rule of law issues are at stake here. It is not good enough to say that judicial review remains as it would be very difficult to use JR in such cases. The tribunal system provides a more practical, efficient and fair means of enabling vulnerable people in pretty desperate straits to challenge decisions they believe to be wrong. The stakes are so much higher now than even under the present system. It would be a grave injustice if we were to allow the decision to remove basic appeal rights to stand.
The Earl of Sandwich
My Lords, it is a pleasure to follow the noble Baroness, who spoke with such sincerity. I support these amendments in the name of the noble Lord, Lord Rosser, and others. I am grateful to the noble Lord for mentioning absconding again. I hope we will get an early answer on that.
Amendment 230 would include a right of appeal against the decision not to provide support. There is a small army of campaigners on this matter out there, some of them in the House of Commons where this was a major issue in the last debate on the Bill. One of the campaigners was called Iain Duncan Smith. The Minister may already know that in a 2008 report, Mr Duncan Smith said that the then Labour Government were using forced destitution as a means of encouraging people to leave voluntarily. He said that it was a “failed policy”; only one in five left voluntarily. The same Home Office is again aiming to squeeze Section 95 and Section 95(9A) on support and to narrow down the eligibility of families of so-called refused asylum seekers, although I have never liked that term. That may even prevent, as the noble Baroness, Lady Hamwee, said, local authorities supporting children and families under Section 17 of the Children Act 1989. We were debating this in October, as the noble Baroness said, under the Motion to annul, and arguing whether £5 was enough for a person to live on. If you take into consideration food and clothing—shoes, for example—it is not. There are some sad examples of mothers and children facing destitution, and worse. These are taken from serious case reviews, which I shall not relate now, but they convinced me that the Government have to think again.
Baroness Lister of Burtersett
Before the noble Lord moves on, when he says that they will be supported in the same way, does he mean that it will be with the same level of cash?
Lord Bates
The short answer to that is yes.
Amendment 233 would require the Secretary of State to provide failed asylum seekers with a caseworker, a named contact and legal advice. It would also require the appointment of an independent person to report on the financial assistance available to failed asylum seekers who leave voluntarily, and on contact with welfare organisations in the country of return.
I agree as to the importance of these issues but not as to the need for this amendment. We provide generous financial assistance to incentivise returns and assist with reintegration in the country of origin. This can be up to £2,000 per person for families and up to £1,500 in support for a single person, in addition to removal expenses and their travel and transport costs such as flights. We also provide help with travel arrangements and resettlement needs. Some 143 families comprising 435 people and 469 single failed asylum seekers left under the assisted voluntary return scheme from 1 April to 31 December 2015, which suggests that the arrangements are working.
I will address some of the specific questions raised. The noble Baroness, Lady Lister, asked about the no right of appeal. I made the point that the wider facts will have been contested in the earlier appeals and examined by the Home Office caseworker, and that therefore a genuine obstacle would be easy to understand —in other words, that there is medical evidence that the person is not fit to travel or that they do not have the necessary travel documents to do so.
Lord Bates
It is certainly not a tick-box exercise. Of course, a statement that someone is medically unfit and unable to travel is a fact that can be proved by a medical practitioner and which can be evidenced. The fact that the documents are not in place for travel can be evidenced by the absence of those documents; therefore we contest that the key facts can be established as to whether there is a genuine obstacle to the person leaving, without necessarily reopening the whole case for review.
The noble Lord, Lord Roberts, was generous enough again to recognise in connection with the Azure card, on which he has faithfully spoken over many years in this place, that we have made some improvements. I will refer back the comment on the specific chain he mentioned, the easyFoodstore—or is it the easyJet store?—which has food for low prices, because that ought to be considered. The list is not an exhaustive one: it can be changed and added to, provided that the companies themselves are willing to join the system. I will certain explore that further.
The noble Baroness, Lady Lister, asked whether the 90-day grace period would be extended if there is a change of circumstances. The person must genuinely ensure that there is an obstacle to return. An example might be if they did not receive timely notice of the asylum refusal or a failed appeal. The 90-day grace period for families will enable us to work effectively with families and local authorities to encourage and enable returns. Assisted voluntary return for families is a scheme for families comprising a maximum of two adult parents and at least one child under the age of 18. Families who leave the UK under this scheme can qualify for up to £2,000 per family member. A key difference between that scheme and the previous one— the test that was done under Schedule 3 to the 2002 Act—is that that was a dry, correspondence-based exercise, whereas with family returns we are talking about a family returns engagement officer, who works with them to ensure that provision is in place for them and their family both while they are in the UK and in the country to which they will return to.
On the regulations and whether they will be affirmative, we are very conscious as to what the committee has said, and of course we always tend to show great deference to that committee. However, I will have to come back on Report to confirm how we will deal with this. It simply requires a process we need to go through as regards consulting other people with interests across government to get approval or not for that type of thing. I feel as though I am letting my poker face go again—I have never played poker, and now I am probably figuring out why. Noble Lords have guessed it. In any case, we take the committee seriously and will come back with an amendment to—
Baroness Lister of Burtersett
I will not start to play poker with the Minister. Will there be more details about the contents of the regulations before Report?
Lord Bates
More details will come out. We are working very closely with the local authorities and the Department for Education on what the guidance should be on this. We have to get that joined-up system there to ensure protection, particularly for the families, and work out how it will work. That process is ongoing. As set out in my letter of 21 January and in the substantial document, the review is current. I realise that we had a significant debate on the level of asylum support on 27 October. On page 2, paragraph 6 states:
“As Lord Bates confirmed in the House of Lords on 27 October 2015, we continue to keep the support rate under review”.
We have engaged with a number of stakeholders, including Still Human Still Here, Refugee Action, the Children’s Society and Student Action for Refugees and we will study the results carefully. The review should report in March or April and will provide detailed reasons for the conclusion when it comes through.
The noble Lord, Lord Rosser, asked what the reduction in the number of migrants will be. An impact statement is attached, where the noble Lord will see that we anticipate that an estimated 20% of the failed cohort will return. That is the assumption we have used in the impact assessment. It is not an easy estimate to make, however, for the reasons the noble Lord gave. It cannot be judged on just this one measure but needs to be judged by the wider measures in the Bill, which will make it more difficult for people to rent accommodation, drive or gain employment if they have no right to be here. It is part of the package but that is the assumption.
I come to discontinuation of support. If there is a genuine obstacle, support will continue. If a pregnant woman is not due to give birth within six weeks of the expiry point of the 90-day grace period, she will generally be fit to fly and therefore not eligible for new Section 95A support. If that were not the case, there would be medical grounds to cite a genuine obstacle to being able to travel.
“Asylum support move on period
Persons in receipt of asylum support will cease to receive such support 40 days after receiving a Biometric Residence Permit following the granting of—(a) refugee status;(b) humanitarian protection status;(c) discretionary leave status;(d) indefinite leave to remain; or(e) limited leave to remain for 30 months.”
Baroness Lister of Burtersett
My Lords, I rise to move Amendment 228 and I am grateful to those noble Lords who have added their name to it. This concerns what is commonly called the “moving on” or “grace” period, during which an asylum seeker granted status continues to receive asylum support but after which it is expected that they will have sorted out mainstream financial support, employment and accommodation. The current period is only 28 days. The amendment would increase this to 40 days.
As I said when we discussed the previous group, I applaud the Home Office for listening to the concerns expressed about the grace period proposed in the consultation on asylum support for failed asylum seekers, but I was disappointed that the same document stated:
“There are no plans to change the grace period arrangements for those granted asylum or other status here”.
I hope that we might be able to persuade the Minister to look again at this also, particularly given that the grace period for failed asylum seekers will now be 90 days.
I was prompted to table the amendment as a result of reading the recent Work and Pensions Committee report Benefit Delivery. The report referred to the research evidence suggesting that,
“28 days is insufficient time for refugees to make the transition from Home Office support in many cases”.
This includes the DWP’s own research which,
“showed it takes on average 32 days from receipt of claim to first payment for a claimant with a National Insurance number and 35 days for a claimant without”.
The Committee asked why only 28 days is allowed, when it is clear from the research that,
“it is in many cases insufficient”.
It recommended that,
“the DWP conduct an immediate investigation into the ‘move-on’ period and work with the Home Office to amend the length of time if necessary”.
I realise that this amendment goes further, but I do not believe further investigation is necessary, given the evidence that already exists, including from the British Red Cross, as cited by the Work and Pensions Committee—and I am grateful to the BRC for its help with the amendment—and also an earlier report by Freedom from Torture.
It was in fact that report, on the poverty barrier faced by survivors of torture, that first alerted me to this issue. I tried in vain to find out who had responsibility for this matter in DWP and, to my shame, when I did not find out I let it go. But the publication of the Work and Pensions Committee report, following the recent research report from the British Red Cross, convinced me that we must use the opportunity provided by this Bill to address what is a very real and unnecessary injustice.
The Red Cross research identified 23 factors at play affecting the speed with which refugees are able to move on to mainstream support. For some people, five to 10 of these factors could be holding up progress. The research documents the complexities of the transition period, involving multiple stakeholders and the issuing and management of multiple documents. During a one-month data collection process, the study found that 14 out of 101 people helped by the BRC refugee support service in Birmingham were in the moving-on period, and two out of 55 people in Plymouth. All 14 participants in Birmingham were destitute, with neither financial support nor adequate accommodation. All 11 for whom it had sufficient information had been without support for more than 15 days, five for 15 to 35 days, and three for more than 75 days. In Plymouth, both had been without support for between 15 and 35 days.
BRC has provided me with a case study that was not part of the research. Hagos is a 19 year-old from Eritrea living in Stoke on Trent. He was granted status on 16 October and claimed jobseeker’s allowance on 29 October. In case anyone is wondering why there was a delay in claiming, let me remind noble Lords that claiming benefits can sometimes be difficult for people at the best of times. In his oral evidence to the Work and Pensions Committee, Fabio Apollonio of the BRC explained:
“It is clear to us that at a particular stage when a person is just coming out of a trauma, perhaps, they are thinking of what to do next and they are bombarded with a lot of things to do and very often they do not even start the process until very late. It is very difficult to engage with a benefit agency at that stage unless you are prepared and you have been receiving advice from someone who can explain to you clearly what you should do without delay”.
Anyway, back to Hagos. His asylum support was terminated on 19 November. His first JSA payment was not made until 7 January—held up in part because of incorrect advice given by Jobcentre Plus staff—so this young man, still in his teens, experienced destitution for a period of 50 days.
Another example provided in the West Yorkshire Destitute Asylum Network’s submission to the Work and Pensions Committee was of a woman with severe mental health problems, with two children, who was told that her claim for benefits could not be processed until two days before her asylum support was due to end. It then took over a month for the first payment to be made. The family were left in temporary accommodation without any subsistence support for a number of weeks and had to rely on food parcels and hardship payments from a member organisation of the network. As the network points out, many new refugees lack the safety net of savings or social networks able to support them through this difficult period.
The researchers concluded that:
“Our findings show that moving from asylum support to mainstream benefits and employment is a real ordeal for new refugees—and usually takes much longer than the … ‘grace period’ given by the government”.
I do not believe this is hyperbole, and even though it is a small study, it is consistent with the other available evidence.
In particular, the psychological impact of the ordeal that new refugees face is documented by the Freedom from Torture report that I mentioned. It observes that:
“The relief of gaining security of legal status can dissipate fairly quickly as the reality becomes apparent, while at the same time the survivor may be particularly vulnerable psychologically, as the full impact of torture and the loss of their former life may begin to be fully felt at this time of transition”.
Clinicians interviewed for the research said that it was at this time of transition and great psychological vulnerability that clients were most likely to experience destitution. They commentated on the devastating impact that this could have as, in their experience, when survivors of torture are effectively made destitute, it can lead to a deterioration in their mental health and/or to an increased risk of suicide. It can also have a long-term impact on their ability to recover from their past trauma, even after they are no longer in destitute circumstances. As one clinician put it:
“There’s nothing worse for our clients than thinking all your problems have ended because you get ‘status’ and then becoming homeless”.
If we stop and think how we would feel in that situation, it is all too understandable.
I do not believe that this is what anyone in the Government wants. It is a policy of neglect and bureaucratic inertia rather than of deliberate intent, but it is no less cruel for that. A number of practical reforms that could help are detailed both in the BRC report and in evidence to the Work and Pensions Committee—for instance, to start the clock of the grace period ticking only once a refugee has received key documents such as an NI number. But this problem has been going on for years. Indeed, the Home Affairs Committee recommended in 2013 that,
“asylum support should not be discontinued until the Department for Work and Pensions has confirmed that the recipient is receiving mainstream benefits”.
I am afraid that I do not have confidence in the statutory agencies to ensure that measures are implemented effectively without legislative change. Of course, the sooner a refugee can move from asylum support to mainstream support, the better, but in order to ensure that they do not drop into a horrible limbo in between, the time has come to extend the period to 40 days as a basic safeguard against destitution.
I am sure that the Minister is not comfortable with this situation. Therefore, would it be possible to arrange a meeting involving representatives of the Home Office and the DWP together with interested Peers and representatives of key organisations supporting refugees through the moving-on period to look at what might be possible before Report? I beg to move.
Lord Alton of Liverpool
My Lords, the noble Baroness, Lady Lister, put the case eloquently and persuasively. She and I attended a briefing with the British Red Cross and she then tabled the amendment. I added my name as a signatory because it puts, as she said, a real and unnecessary injustice right. It is a basic safeguard against enforced destitution.
The Minister needs no convincing about the merits of the British Red Cross. He has not only raised significant sums for the organisation in a voluntary capacity but I know that he has huge admiration for the work that it does. Representatives told us in the briefing that we had with them that they had helped to reunite 300 refugee families last year in the UK. They also illustrated from their own experience that destitution in the asylum system is a worsening and deepening problem. They supported 9,000 refugees and asylum seekers who were destitute in 2015, compared with 7,700 in 2014, which is an increase of some 15%. That included people granted refugee status but not given enough time to transition to mainstream benefits in the way that the noble Baroness just described.
Nearly 44% of destitute refugees and asylum seekers supported by the Red Cross last year were from Eritrea, Iran, Sudan and Syria, all of which are among the world’s top refugee-producing countries. Although I agree with what the Minister said earlier about people seeking better lives from countries such as Albania—a point referred to by the noble Lord, Lord Paddick, in his intervention—we must never lose sight of some of the hell-holes from which people are coming.
When the noble Lord, Lord Hylton, and I were at Yarl’s Wood today, two men had just arrived off the back of lorries from Iran. Another had arrived from Mosul in Iraq. The situations they had come from were such that any noble Lord in the Chamber tonight would have attempted to escape from too. We have to be clear that these are not economic migrants or people who are just coming for a better life. Some of them have come from the most perilous and appalling situations.
If the Bill is left unaltered, it could plunge thousands more people in those kinds of situations into poverty, including families who are unable to leave the UK through no fault of their own, for example due to a lack of identification documents to provide their nationality or because they have no viable or secure place to return to.
Lord Bates
My Lords, I thank the noble Baroness, Lady Lister, for moving her amendment, and the noble Baroness, Lady Hamwee. In the interests of time, perhaps I may first draw the attention of the Committee to my letter of 21 January and in particular to the accompanying document, Reforming Support for Migrants Without Immigration Status: The New System Contained in Schedules 8 and 9 to the Immigration Bill, and specifically to pages 10 to 12 which deal with the handover situation of people on support from the Home Office and moving them on to a local authority, and how that system can be improved.
The noble Lord, Lord Alton, who I respect enormously for his humanitarian instincts, as I do the noble Lord, Lord Judd, referred to the British Red Cross report. It was published on 13 January, I think, which is fairly recent in terms of government decision-making. We are engaging with the charity and we will have more to say on the report in due course.
At the heart of what the noble Baroness wants is whether we will agree to a meeting to look specifically at this issue. The next group of amendments is a significant one about children leaving care. I was going to suggest that we should have a meeting on that issue, which the noble Earl, Lord Listowel, will probably find very helpful. I am happy to incorporate this specific point into that wider meeting, given that we already have five meetings coming up before Report. If that is helpful to her, I shall restrict my remarks to drawing attention to the document I have just mentioned and agreeing to combine this issue with those to be addressed in the meeting as a result of the next group of amendments.
Baroness Lister of Burtersett
I thank all noble Lords who have spoken so helpfully and the noble Lord for that positive response. I am happy for this to be taken as part of another meeting, although I hope that we will be able to include representatives of the British Red Cross and the Refugee Council since they both work with people who are in the moving-on period. I think that I referred to an earlier British Red Cross report rather than the one which has just been produced. I know that there are two reports which are relevant to our discussions so it is possible that I have muddled them up, but I was referring to a different report from that cited by the noble Lord, Lord Alton. Anyway, that does not matter because the important thing is that we should sit down and talk about this. As I have said, I do not think that there is really any difference between us, but this has been going on for too long. I do not know what the answer is. It may be a longer time limit or it might be something else. If we can sit around a table, that would be very helpful.
Lord Bates
I should make one specific point that I need to put on to the record. It is not just a case of extending the time period, it is also about making sure that people apply for these benefits promptly. One of the figures cited in the 2014 British Red Cross report showed that of its sample of 16 individuals, only three had applied for welfare benefits within the first three weeks of being granted status. Part of the issue is getting people to apply earlier.
Baroness Lister of Burtersett
My noble friend has taken the words right out of my mouth. As I said in moving the amendment, it is easy to say that people should apply earlier. However, they are in what is still a strange country to them and are accessing a strange system. Even for people who are brought up here it can be difficult to claim benefits. If these people do not have the support of an agency like the British Red Cross or the Refugee Council, is it surprising that there is a delay? I know that it is not what the noble Lord is doing, but it does sound a bit like blaming the victim to say, “If only they would apply earlier”. I know that it is not what he meant.
Lord Bates
I cannot let that stand. I certainly would not be guilty of doing that. I am simply saying that when there are delays in the system we need to look at all the parties to explore why. The one fact I presented was that only three out of 16 applied within the first three weeks. That could contribute to the need to examine why, and what extra help they need. I certainly was not blaming the victims. It is not about simply adding days on in the end and finding that even that is not enough, as we were talking previously about the grace period going up from 28 to 90 days. We need to look at the whole system so that people get the care they need when they need it and the system works effectively. That is what we are about.
Baroness Lister of Burtersett
I am grateful for that. As I said I did not really believe that that was what the noble Lord meant. It might have sounded like it, so I am glad he has made it clear.
The Work and Pensions Committee said that 28 days is really very little time. It may be that the answer is not another fixed time limit, but I absolutely accept that we need to look at all the different aspects—the DWP, the Home Office and how people engage with them. On the basis that the Minister has very kindly offered to extend the meeting he was offering anyway, I beg leave to withdraw the amendment.
Baroness Lister of Burtersett
My Lords, I support Amendments 234B, 234M, 234N and 235A in the name of the noble Earl, Lord Listowel, to which I was pleased to add my name, not least as he has been such a consistent champion of the rights of care leavers. I am also supportive of other non-government amendments in this group, particularly Amendments 230D and 239B.
On Monday, the noble Lord, Lord Ramsbotham, spoke about the deeply unsatisfactory way that this Bill has proceeded, with amendment after amendment having been tabled by the Government since its initial introduction in the Commons. It is particularly inappropriate that amendments concerning an issue as important as the treatment of care leavers should have been introduced in this way, leaving a host of unanswered questions as to how the new provisions affecting such a particularly vulnerable group—as the noble Earl emphasised—will work in practice.
This vulnerability cannot be magicked away by constant referral to this group of young people as adult migrants, as if, miraculously, the vulnerabilities that were recognised at the age of 17 years and 11 months have evaporated overnight on their 18th birthday. As the Refugee Children’s Consortium and the Alliance for Children in Care and Care Leavers point out, it is long established in law and policy that those who have been in care need continued support on turning 18 in light of their vulnerabilities. Indeed, leaving care and children’s legislation is predicated on an understanding of the need to provide additional support beyond just accommodation and subsistence needs after the age of 18.
Likewise, the Office of the Children’s Commissioner points out:
“For the purposes of the Commissioner’s primary function, a person who is not a child is to be treated as a child if he or she is aged 18 or over and under 25, and a local authority in England has provided services to him or her under”,
the relevant sections of the Children Act at any time after she or he turned 16. As the commissioner explains,
“the intention of the Children’s Act was to establish that leaving care responsibilities apply by virtue of the authorities’ position as good ‘corporate parents’ irrespective of the care leaver’s particular circumstances and in recognition that turning 18 does not result in overnight independence from those who have cared for you previously”.
By removing these young people from the protection provided by the Children Act, Schedule 9 also takes care leavers with unresolved immigration status out of the remit of the Children’s Commissioner, thereby overturning a provision introduced for good reason by Parliament as recently as 2014.
Once again, immigration control trumps the well-being and protection needs of children and young people—a more general tendency observed by the JCHR, of which I was then a member, in its report on the human rights of unaccompanied children and young people in the UK. As the Refugee Children’s Consortium and the alliance argue, it is creating a two-tier discriminatory system of support for care leavers based on immigration status. One consequence is that a young person on turning 18 could be torn from their foster parents with whom they may have developed a strong and loving relationship. Think what effect this might have on a young person who had suffered earlier trauma as a result of separation from her or his parents. This really is disgraceful and it makes me both sad and angry to think what we might be doing to this particularly vulnerable group.
Many young people in this position do not even understand that they have no leave to remain after the age of 18. Amendment 230D is particularly relevant here. The JCHR inquiry concluded:
“Discretionary leave to remain is used too readily at the expense of properly considering other options”,
and recommended that decisions should be,
“made about their future on robust evidence as early as possible”.
That this should happen will be all the more important once Schedule 9 takes effect. The JCHR report made clear that:
“The duty towards an unaccompanied migrant child does not end at 18”,
and argued that it is right that local authorities’ duties,
“continue to apply to vulnerable children who may continue to require support as they face fundamental decisions about their future”.
It notes that the Government, in their written evidence to the inquiry:
“stressed that unaccompanied migrant children were supported ‘in the same way as any other child in need’, throughout and beyond the care system”,
but no more, my Lords.
We were highly critical in that report of how effectively existing duties towards migrant young people were fulfilled. But that is not a reason for absolving local authorities of these duties. We recommended that:
“Unaccompanied migrant children must be properly supported in the transition to adulthood”,
and that,
“bespoke and comprehensive care plans”,
that,
“take full account of the wishes of the child … remain applicable up to the age of 21, or 25 if the young person remains in education, to enable children to realise their maximum potential”.
The Government responded:
“We agree with the Committee that children should be properly supported in the transition to adulthood”.
It would seem that they believe, in the face of all the evidence, that that transition ceases on a child’s 18th birthday.
Schedule 9 raises all kinds of practical questions that must be clarified before it becomes law. We have heard some from the noble Earl and from the noble Baroness, Lady Hamwee. She referred to questions raised by the Office of the Children’s Commissioner. Has the Minister met the Children’s Commissioner to discuss these matters? If not, will he undertake to do so before Report, or to include her in the meeting that he has very kindly already offered, because she is charged with protecting the rights of this group? As it is, Schedule 9 will remove rights established to protect some of the most vulnerable young people in the country, as we have heard. I have said this before and I will say it once again: this cannot be right.
Lord Hylton (CB)
My Lords, I have a question which comes up in parallel to this huge group of amendments. It is as follows: if a young person or adult has been in this country for more than seven years without committing any serious offence and is therefore in a position where they would be eligible for British citizenship, if they applied for it, is it the intention of the Home Office to deport them? I will just explain that this question arises from the visit that my noble friend and I made to Yarl’s Wood today. I quite understand if the Minister does not feel able to give me an answer now but if he does not, will he please write to me and place a copy in the Library?