Immigration Bill

Lord Avebury Excerpts

Wednesday 12th March 2014 Lords Chamber

[Baroness Hamwee]

My Lords, in moving Amendment 66G, I will speak also to Amendments 66H, 66J, 66K and 66L. This takes us on to the provisions regarding bank accounts, which is perhaps a slightly drier issue than others we have discussed but is very important.

The Bill prohibits the opening of current accounts for disqualified persons and regulates banks’ operations in this regard. The first of my amendments in this group would provide that someone who has made a claim for asylum which has not been determined, or whose claim has been refused but an appeal is pending, would also be covered by the exclusion. The clause, as drafted, seems to exclude persons on temporary admission. It is most likely that those on temporary admission for a lengthy period are seeking asylum. I do not suggest that many of those will have a lot of free cash and want a current account, but some whose claims have been pending for a long time may be allowed to work in a shortage occupation. I imagine that this is quite rare, but some may even be able to get some money out of their country of origin. Those people ought to be able to have a bank account. How can that be permitted if the clause remains as drafted?

Amendment 66H goes to the definition of a “disqualified person”, whom we are told in Clause 35(3)(b) is,

“a person within subsection (2) for whom the Secretary of State considers that a current account should not be opened”.

I suggest that the Secretary of State should be required in the Bill to act “reasonably”. I certainly acknowledge that, as a matter of law, it may well be that she should act reasonably, but the complete discretion is concerning. We are not told of any criteria on which the decision will be based. The Explanatory Notes state:

“The Secretary of State therefore has discretion as to who should be barred … because there will be some individuals who face legitimate barriers which prevent them from leaving the UK, even though they do not have leave. The Secretary of State may enable these persons to open a current account”.

It is important to have published on the record the criteria on which the Secretary of State will base her decision and what options someone who is not able to open a bank account has to challenge her refusal.

That takes me to Amendment 66J, because I cannot see how one would challenge the decision. Provided that they do not discriminate and act lawfully, banks can refuse to open a bank account as they choose. However, if the Secretary of State can order them to refuse to open an account, I wonder whether she can require them to make a provision for a refusal to be challenged. It is a very homegrown and underdeveloped amendment, but there has to be some means of challenging because the consequences are serious. Being refused a bank account goes to one’s credit status and to an application for a mortgage at a later stage, and a number of other consequences may apply to somebody who should never have been refused in the first place. I am seriously concerned about this.

Amendment 66K is on our old friend in Clause 36(1): “The Treasury may”—or “must” it?—“make regulations to enable” the FCA to monitor and enforce compliance. Might the Government think it right to bring the scheme into force but not have these arrangements made?

Finally, Amendment 66L is on “in particular” in Clause 36(2)(b), which provides that “The regulations may” make certain provision,

“including in particular those mentioned in subsection (3), with or without modification”.

I am not clear what is added or suggested by all that and hope that the Minister can help me on it. I beg to move.

[Lord Avebury (LD)]

My Lords, at the moment it is entirely at the discretion of a bank or building society to agree to open a current account in the name of a person who requires leave to enter or remain but does not have it. The status checks that the bank would carry out would be to determine whether the applicant was financially reliable rather than what his immigration status was—although if he falls within Clause 35(2)(b), he is unlikely to be acceptable to the bank.

Clause 35 provides that a bank has to refuse to open an account for a person who does not have permitted leave to remain, and who is also labelled on a database operated by an unspecified anti-fraud organisation or data-matching organisation as a person whom the Secretary of State considers should not be able to open a current account. I should be grateful if the Minister would elaborate on the details of the organisation to which the banks will have to refer and how it will be established. It means that there will be some people on temporary admission whom the Secretary of State might consider eligible to open a bank account; the Explanatory Notes say this in fact means individuals facing legitimate barriers preventing them leaving the UK.

However, neither the Bill nor the Explanatory Notes gives any detail as to how the Secretary of State will make these decisions or what rights a person will have to challenge her refusal to let him open an account. Should not an asylum seeker who has exhausted his rights of appeal against refusal but is given further temporary leave to remain be allowed to open a bank account? One thinks of the Zimbabweans who were given temporary leave over many years, many of whom opened current accounts if they satisfied the bank’s conditions. Clause 35 prohibits a bank only from opening a current account in the name of a disqualified person, not from continuing to afford facilities to such a person who already has an account. Will this be made clear in the guidance that no doubt will be given to the banks?

Amendment 66G removes from the scope of the clause asylum seekers whose claim has not been finally determined. Most of these people, as my noble friend said, will be very poor and thus unlikely to need a current account, but even those supported by the National Asylum Support Service under Section 95 of the Immigration and Asylum Act, and who receive payments fortnightly, may not wish to carry around the money they receive. A couple with two children under 16 would receive £357 a fortnight, which is quite a large sum to have in one’s pocket or handbag.

Asylum seekers whose claims have been pending for more than a year and who can find employment in shortage occupations may be allowed to work, and my noble friend Lord Roberts will suggest in later amendments that the right to work should be further extended. These people will need accounts into which their wages can be paid. For that matter, could my noble friend say how many people it is estimated will be prevented from opening accounts under this clause who would otherwise have been able to be accepted by the banks under their own rules? What is the cost to the Government of setting up and managing the database, and what is the cost to the banks of making the checks required?

On a casual inquiry at my own bank, Santander, I was told that it would open an account only for a person who was resident in the UK—rather an incongruous condition to be imposed by a foreign-owned bank. It would mean, if the bank meant it literally, that it would not open an account for an EEA citizen who owned a holiday home in Cornwall or for a foreign student—but perhaps the bank makes exceptions.

An immigration lawyer who deals with a substantial number of immigration cases told me this morning that the banks invariably refuse to open current accounts for asylum seekers and appellants. So the result that the Government are aiming for in these clauses is already being achieved by market forces. However, Clause 37 defines the term “bank” to exclude credit unions, and the London Community Credit Union confirmed to me this morning that it would be prepared to open a current account for an asylum seeker, provided of course that his papers were in order. Will my noble friend confirm that asylum seekers and those who appeal against refusal of asylum will continue to be free to open current accounts at credit unions?