Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Baroness Lister of Burtersett Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, in Committee I expressed dismay that in their negotiating proposals the Government seek to replace refugee children’s rights under Dublin III with a discretionary provision that provides vulnerable children with neither the certainty nor the security that they need. The Minister did not respond on that point and I would be grateful if she could do so today.

I also raised the question of when the Government plan to restart the resettlement programme, paused because of Brexit. Although she justifiably made much of Britain’s record on resettlement, she did not answer the question, which was also raised in the Private Notice Question by the right reverend Prelate the Bishop of Southwark. Last Monday in the Commons, the Parliamentary Under-Secretary of State explained that,

“as soon as we are safely and properly able to resume activity, we will do so.”—[Official Report, Commons, 28/9/20; col. 10.]

Can the Minister tell us what criteria will be used to decide when it is safe and proper to do so? I am not sure that she answered precisely the right reverend Prelate when he asked a similar question on the PNQ.

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Moved by

[Baroness Lister of Burtersett]

16: After Clause 4, insert the following new Clause—
“Report on awareness and exercise of rights to British citizenship
(1) Within six months of the passing of this Act, the Secretary of State must lay before Parliament a report on the rights to British citizenship of relevant persons.(2) The report under subsection (1) must provide—(a) an assessment of the level of awareness among relevant persons of their rights to British citizenship (“the level of awareness”) including the reasons for any lack of awareness among such persons;(b) an assessment of the level of exercise by relevant persons of their rights to British citizenship (“the level of exercise”) including the reasons for any failure to exercise these rights by such persons;(c) an assessment of the impact upon either the level of awareness or the level of exercise of each of the following—(i) any fee imposed by the Secretary of State in relation to the exercise of rights to British citizenship;(ii) the requirement of good character under section 41A of the British Nationality Act 1981 for registration as a British citizen;(iii) any guidance or policy of the Secretary of State in relation to the exercise of rights to British citizenship;(iv) the practice of the Secretary of State in relation to data held by or accessible to the Secretary of State that may confirm a person’s rights to British citizenship;(v) the availability of legal aid in relation to rights to British citizenship;(vi) the capacity or willingness of parents to assist relevant persons to exercise their rights to British citizenship;(vii) the practice of local authorities in relation to rights to British citizenship; and(viii) the practice of the family courts in relation to rights to British citizenship.(3) The assessments required by subsection (2) must include—(a) consideration of the circumstances of relevant persons who share a relevant protected characteristic for the purposes of section 149 of the Equality Act 2010; and(b) comparison of the circumstances of relevant persons with other persons having the same rights to British citizenship.(4) In making the assessments required under subsection (2), the Secretary of State must consult such persons as the Secretary of State considers appropriate, which shall include children and young persons with rights to British citizenship and organisations with expertise and experience in assisting and representing those children and young persons in connection with those rights.(5) The report under subsection (1) shall include specific consideration of each of the following groups of relevant persons—(a) children and young persons who are or have been a looked after child;(b) children and young persons who are or have been in the criminal justice system;(c) children and young people who are or have been the subject of a mental health assessment or mental health order;(d) children who are not living in a household with two parents;(e) children and young persons in poverty; and(f) children and young persons who are victims of domestic abuse.(6) For the purposes of this section—“children and young persons” includes any person under the age of 25 years;“domestic abuse” has the same meaning as in the Domestic Abuse Act 2020; “in poverty” means living in a household whose income is less than 60 per cent of the median United Kingdom household income;“in the criminal justice system” means having received a conviction or caution for the purposes of the Rehabilitation of Offenders Act 1974 (whether or not that conviction or caution has been or can be spent);“mental health assessment” means an assessment of the person’s mental health that was required by a court order or under legislation;“mental health order” means an order of a court requiring a person’s admission to a hospital or other institution for the purpose of treatment or care on account of that person’s mental health;“relevant persons” means persons who—(a) immediately before the repeal of section 7 of the Immigration Act 1988 (exemption from requirement for leave to enter or remain for persons exercising EU rights etc.) under paragraph 1 of Schedule 1 to this Act, were entitled by virtue of that section to enter or remain in the United Kingdom without leave; and(b) have at any time up to the passing of this Act had rights to British citizenship;“rights to British citizenship” means rights of acquisition of British citizenship by birth, adoption or registration under the British Nationality Act 1981.”Member’s explanatory statement
The amendment would require the Secretary of State to provide a report on factors affecting the awareness of and exercise of rights to British citizenship under the British Nationality Act 1981 by those affected by the repeal of section 7 of the Immigration Act 1988 (exemption from requirement for leave to enter or remain for persons exercising EU rights etc.).

[Baroness Lister of Burtersett (Lab)]

My Lords, I had not originally intended to return to the question of children’s right to citizenship on Report, as I had simply wanted to register our continuing concern in the context of this Bill, which will mean that many more children stand to be affected in future, adding a new urgency to the issue. However, the strength of feeling expressed from all Benches in Committee, combined with the disappointing response of the Minister, made me think again. I am grateful to all noble Lords who have added their name to the amendment, as well as to others who spoke in support in Committee. Once again, I thank the Project for the Registration of Children as British Citizens, of which I am a patron, and Amnesty International UK, for their help with the amendment and the work they do.

Colleagues pursuing this issue have now taken the name of “Terriers United”—united in our determination to achieve justice for a group of children in vulnerable circumstances: a group of children born in this country or who have spent most of their lives here and who have the right to British citizenship under the British Nationality Act 1981, but who have to register that right because of their parents’ immigration status. In Committee, the right reverend Prelate the Bishop of Durham, who, as we have heard, cannot be here today, stated that

“the Home Office has no business erecting barriers, financial or otherwise, that prevent people registering as British citizens, particularly children, when those people have been granted that right by this Parliament”.—[Official Report, 9/9/20; col. 857.]

This amendment would require a report from the Home Secretary on these barriers. I shall not go into all the details, as noble Lords can read them; nor do I expect the Minister to do so—she might be relieved to hear—but it covers all the issues addressed in Committee: the role of local authorities, particularly with regard to looked-after children; awareness and information, with reference to which I ask whether the Minister is able to report back to us yet on her welcome commitment in Committee to raise with the Home Secretary our calls to raise awareness of citizenship; and, of course, the level of the fee, which was our main focus.

The amendment also covers other barriers such as the “good character” test, a discretionary test which can be used to prevent children aged 10 and over registering their right to citizenship even where they have had minimal contact with the criminal justice system, such as receiving a caution. The Select Committee on Citizenship and Civic Engagement, of which I was a member, raised concerns about this, and in particular the age from which it is applied.

The amendment calls for specific consideration of a number of groups of children and young people who face particularly vulnerable circumstances. Again without going into detail, I note that proposed new subsection (3)(a), which covers those with protected characteristics under the Equality Act, would include Roma children, who, according to the European Children’s Rights Unit, are more likely than other EU children in this country to be entitled to British citizenship and to be economically disadvantaged.

I am aware that the Chief Inspector of Borders and Immigration published a report on fees last year, but this ranged much more widely and did not cover other barriers to citizenship registration. That said, the inspector raised a number of concerns about children’s citizenship fees, reflecting the volume of evidence received from stakeholders. He recommended a new, wider public consultation on charges generally. Although this recommendation was not accepted, the Home Office did accept that

“consultation in specific areas could be useful to inform future policy development.”

I suggest that this is just such an area, and that the serious implications of the end of free movement for the children of EEA/Swiss nationals with a right to register as citizens, detailed in Committee, make it a matter for urgent policy development.

The amendment provides a vehicle for such a consultation. It requires that such consultation includes children and young people affected, and the organisations that assist and represent them—in line with recommendation 8 of the Windrush Lessons Learned Review report, which states:

“The Home Office should take steps to understand the groups and communities that its policies affect through improved engagement”


with communities and civil society, and that officials should be expected

“to seek out a diverse range of voices”.

I welcome the Home Secretary’s commitment to such an approach in last week’s Statement and comprehensive improvement plan.

In Committee, I and other noble terrier Lords from all Benches made a principled case relating primarily to the level of the fee and the position of looked-after children. It was premised on the importance of citizenship to belonging, security, identity, inclusion and integration. In support, we quoted from a recent High Court judgment that deemed the level of the fee unlawful because it had been set without regard to the best interests of the child. The judgment underlined why citizenship is important and how the inability of many children to exercise their right to register as citizens because of the fee causes many children born in the UK to

“feel alienated, excluded, isolated, second best, insecure and not fully assimilated into the culture and social fabric of the UK”.

It is a matter of regret that the Home Office is appealing that judgment, to be heard next week. The right reverend Prelate the Bishop of Durham has described the fee as “prohibitive and regressive”, “indefensible” and “iniquitous”—in short, “simply unacceptable”.

In her response, the Minister brought no arguments of principle to the table. There were instead three planks to her case—rotten planks, I suggest. The first plank was purely technical, concerning drafting points stemming from the requirement that the amendment was confined to EEA/Swiss nationals in order to be in scope, thereby, she argued, creating a two-tier system. Of course, as other noble Lords have pointed out with reference to other amendments, the solution to that lay in the Government’s own hands. In any case, today’s amendment sidesteps that problem by simply requiring a report; moreover, it would require that the report considered this group of children in relation to the circumstances of other children in the same situation so as to avoid any suggestion of a two-tier system.

The central plank was financial: that the fee of £1,012, which is £640 more than the Home Office estimate of the administrative cost, is necessary to provide the resources required to operate the Borders, Immigration and Citizenship System. I have two responses to that: first, a right conferred by Parliament to ensure that children and young people connected to the UK should have the security of citizenship should not be undermined in the interests of the wider finances of the overall BICS; and, secondly, in conflating the cost of registering citizenship with that of the costs of the borders and immigration system, and at an aggregate level, the Minister evaded the key question of the mark-up for citizenship registration at the level of the individual. She glossed over how that money is being used to cross-subsidise borders and immigration operations that have nothing to do with citizenship registration. In doing so, the Home Office is once more committing the fundamental category error of treating the right to British citizenship as being part of the immigration system. It is this category error that lies at the heart of why so many British young people continue to grow up effectively excluded from the citizenship that is theirs by right under the British Nationality Act.

The third plank rests on another category error—that leave to remain represents the equivalence of citizenship. So while it was welcome that the Minister did not try to argue that citizenship is not important, it was in fact implicit in her response to the attempt to exempt looked-after children from the registration fee. Access to limited and indefinite leave to remain is no substitute for the security of citizenship. What this means for children is brought home by a young woman brought up in the UK since the age of two who was quoted by Ian Birrell in a recent article for the i newspaper:

“It puts you in a very bad place with anxiety and depression. Even though I’m a legal resident, it feels like they can take it away any time.”


I finished my speech in Committee by quoting a former Home Secretary, Sajid Javid, who described the fee as “huge”. According to a Times report dated 13 August 2019, Priti Patel raised concerns about the level of the fee just two weeks before becoming Home Secretary. She had told Citizens UK that she would contact Home Office Ministers over the issue and that she understood the

“concerns surrounding this sensitive matter”.

Towards the end of Committee, the Minister kindly agreed to relay to the Home Secretary the request from the noble Lord, Lord Alton, for a meeting with Peers who had supported the amendment on this question. I understand that the Home Secretary’s diary did not permit such a meeting now but we can be patient, so I repeat that request now for whenever the Home Secretary’s diary does permit, particularly in light of her known concern.

I hope too that the Minister will be able to accept our amendment, or a version of it, at Third Reading as providing a way forward on this sensitive and vexed issue, as it will not go away. Otherwise, Terriers United gives notice that we will be snapping at the Home Office’s heels until we achieve justice for this vulnerable group of children. I beg to move.

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[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

I have received no requests to speak after the Minister, so I call the noble Baroness, Lady Lister of Burtersett.

[Baroness Lister of Burtersett (Lab)]

I thank all noble Lords who spoke in support of the amendment, from right across the House, and who very much strengthened the case. Some important points were made and I pick out just two. One is that, over and over, people emphasised the modesty and reasonableness of the amendment and pointed out how carrying out a review like this would be very much in the spirit of both the lessons learned review and the recent Public Accounts Committee report, helping to provide the evidence that it said was lacking. Here—just thinking about the Trump terrier—we are not talking about fake evidence; we are talking about real evidence, based on people’s experiences. There is a sort of incomprehension that the Government cannot accept this modest, reasonable amendment.

That said, I welcome the Minister’s tone and her acknowledgment that there is absolutely no point in trotting out the arguments that have been trotted out up to now, because we simply will not accept them in this House. I feel that we have made progress on that score. I welcome her willingness to talk about it further and I welcome the fact that she has committed to take it back to the Home Secretary. The point about the review that we have asked for is that it requires a report to come back to Parliament. We do not have a clear channel that will ensure that we have an opportunity to come back to this, to say, “Okay, the Minister has agreed to look at this further and to discuss it with the Home Secretary”—I would be very happy to give way if the Minister could say in what way we can then hold her to account in this House on that.

[Baroness Williams of Trafford (Con)]

Noble Lords never fall short in holding me to account. I would quite like to do a sort of task-and-finish activity, but one of the ways I can take this forward is to think about how we can then bring that back to the House, if that is sufficient for the noble Baroness.

[Baroness Lister of Burtersett (Lab)]

Thank you. That is very welcome. While obviously I am disappointed that the amendment has not been accepted, I feel that we have made progress this evening. That is partly because of the strength of support from noble Lords across this House. I am very grateful to them, I am grateful to the Minister and I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

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I must admit that the first I heard of a specialist Home Office team to trace and locate absconders, which I thought was a police responsibility, was in the Minister’s letter of 28 September. Ever since I was chief inspector, I have been recommending a root-and-branch review of the whole immigration system; I still do. I intend to test the opinion of the House. Until then, I beg that this amendment be accepted.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 23, to which I have added my name, and the others in the group. Since Committee, the Public Accounts Committee’s report has come out —we have heard about it—and it was highly critical of the lack of evidence informing immigration enforcement policy. That has to raise a big question mark over the Minister’s claim, in her letter to Peers, that:

“Detention plays a key role in maintaining effective immigration controls and securing the UK’s borders”.


We have to ask: what is the evidence supporting that claim?

PAC also expressed disappointment that the Home Office is still not sufficiently curious about the impact of its actions, and that little evidence exists that the department actively seeks to identify or evaluate that impact. This is highly pertinent to the impact of segregation and the indefinite detention of detainees, while not knowing how long that detention will last. We have already heard about the lack of hope that means. In both cases, as I documented in Committee and as the noble Baroness, Lady Bull, has done tonight, the impact on mental health is a particular concern. This lack of curiosity around impact might account for the parallel universe that I identified in Committee, in which the Minister’s picture of detention and its effects is light years away from that documented by organisations on the ground.

Another example is the Minister’s claim in Committee —to which the noble Lord, Lord Ramsbotham, has already referred—that

“Removal from association is only ever used as a last resort when other options have been tried … but failed, and only as an effective response to the safety and security risk presented by an individual in detention”.—[Official Report, 14/9/20; col. 1020.]


However, as Medical Justice—which I thank for its support—points out, over 900 incidents of segregation in 2019 alone does not seem indicative of a “last resort”. Medical Justice maintains that it is simply not true that segregation is used only in response to security and safety risks. It has experience of it being used as punishment or to manage detainees with mental health problems, of whom far too many are still being detained. In doing so, segregation is aggravating these mental health problems, which could also have been aggravated by the lack of a time limit, and it is diverting attention and energy from addressing underlying systemic problems that contribute to the behaviour that prompts segregation.

I will ask a couple of data-related questions. I thank the Minister for the management information she gave me on the use of association between January and March 2020. However, I also asked why the Home Office does not routinely publish these data once they can be treated as official. I would be grateful if she could look into this, perhaps, in the interests of transparency. I also thank her for the information on female detainees in her letter to Peers, but those data go up to only 30 June—they are the latest published quarterly statistics—which is three months ago. Is management information available on the current situation; namely, on how many women are currently detained in Dungavel House, Colnbrook, IRCs or prison?

In conclusion, I will argue that nothing in the Minister’s response in Committee or her subsequent letter makes me rethink my support for the amendment, and I hope that others will join me in voting for it in the name of fairness, humanity and the compassion that is supposed to be the future hallmark of Home Office culture.

[Baroness Meacher (CB)]

My Lords, I add my strong support to this group of amendments. The noble Baroness, Lady Hamwee, argued cogently—as she always does—in support of these changes to the Bill.

In her helpful letter, the Minister suggests that

“Detention is used sparingly and for the shortest period necessary.”


Detention Action tells a very different story. One of the most important elements of these amendments is that they would end indefinite detention. As someone who worked in mental health services for many years, I am acutely conscious of the appalling consequences of detaining people without any indication of the length of time involved. Many detained indefinitely and for long periods—and, indeed, re-detained—have already suffered severe mental health problems due to their appalling experiences. Even with professional treatment, these problems may take many years to resolve. In my view, it is unforgivable for us, as a nation, to disregard this suffering.

As Detention Action has told us, in a recent case, the High Court found three separate periods of unlawful detention in respect of a vulnerable autistic person, in breach of Article 8 of the ECHR. This is a shocking example of what can happen under the current law. The importance of these amendments is that they would prevent that from happening in the future.

I want to put on record that our Minister was wrongly briefed when she suggested that detention of more than 28 days was limited to those who have committed serious offences. In reality, people with no offending history are regularly detained for periods exceeding 28 days—and even re-detained. These amendments would put an end to these unacceptable practices. The right to apply for bail is no solution for these vulnerable people; they do not all have access to professional legal representation, and many do not speak English. Of course, the most vulnerable—those with mental health problems—are the least able to advocate for themselves.

Another crucial element of the amendments is the commitment to ensuring that re-detention cannot happen unless there is a material change in the detained person’s circumstances. The case of Oliver—quoted in Committee —underlines the cruelty of re-detention. Oliver, as noble Lords will remember, suffered with PTSD, having been imprisoned and tortured in his home country and trafficked twice, yet he was re-detained a year after his release from initial detention. How can we do this to such a vulnerable person?

Of course, not all immigrants have a history as bad as Oliver’s but many detainees have experience of torture or ill treatment and have significant and chronic health problems. Noble Lords know that attempted suicides are commonplace in detention centres and actual suicides have been on the increase in recent years. Some 68% of detained immigrants are not removed from the UK. Surely their detention has been pointless and therefore unjustified. As Detention Action argues, the current system is ineffective, inefficient, harmful and costly. We spend £100 million a year on detention. As we emerge from Covid we can ill afford to be throwing money away. This amendment is a gift to the Chancellor. I was pleased to read that the Home Office is considering alternatives to detention. If the Government also want to avoid detention except when it is absolutely necessary, I hope that the Minister will be able to table amendments at Third Reading to achieve the objectives that I believe we all want to achieve.