Report stage in the Lords
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Lord AveburyLiberal Democrat- Quote
- moved Amendment No. 18:
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The Lord Bishop of WinchesterBishops- Quote
- My Lords, that is just another example of how much we owe to the noble Lord, Lord Avebury, and others for putting the case for this clause with remarkable exactness, giving those figures with all that they suggest. Even without his advocacy, this proposal is sheer common sense. I do not think the Minister will be able to say, as he has tried to say about other amendments, that this is sweeping stuff and that it is all wrong for the country. The downside is that people are deskilled, their dignity is taken away, the cohesion initiative and policy is damaged and they become dependent. They could be developing their skills and contributing to the life of this country. As the noble Lord, Lord Avebury, implied, they could be ready to take a place in their own countries in the future when those countries change their political situations. If we leave aside the staggering figures that he offered, this is plain common sense and for these people not to be able to work is utter nonsense.
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The Earl of SandwichCrossbench- Quote
- My Lords, we are so conditioned to think of asylum seekers as taking things away from our society that it is a great refreshment to hear from the noble Lord about the contribution that they are making. It is also worth remembering that many of these people, although semi-desperate themselves, are supporting other people who are not in this country but are back in their own homes. I have just been talking to an Afghan family who know of relations in precisely that situation. I hope the Home Office will do more research into this, not only the contribution to our economy but the contribution to international development.
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Baroness Miller of Chilthorne DomerLiberal Democrat- Quote
- My Lords, it does not look as if we are going to hear from the Conservative Benches on this issue, and I am disappointed about that. On Tuesday, the noble Baroness, Lady Carnegy of Lour, who is not in her place, referred to the unfairness of the Guardian leader, which said that it was a shame that Conservative Peers were not going to support the amendment on destitution tabled by my noble friend Lord Avebury, and accused the Guardian of getting it wrong. However, when we voted today, there was no support from the Conservatives, which was disappointing. I would like to have heard what aspects of Conservative policy are preventing them supporting this amendment, which is a constructive suggestion. I shall not repeat the cogent arguments that my noble friend and the right reverend Prelate the Bishop of Winchester made, but it is important that we air the reasons for the amendment and those for not supporting it, if there are any, as well as hearing from the Minister about why the Government do not want to support it. This is an important amendment because the public perception of asylum seekers is that they come here and live on benefits. During the debate on the destitution amendment, we heard that asylum seekers are not doing that, but we do not allow them to work while they await their voluntary or involuntary removal. In no way can we be said to be being constructive about this at the moment.
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Lord Bassam of BrightonLabour- Quote
- My Lords, this amendment gives the Secretary of State power to make provisions to give permission to work to failed asylum seekers who are not able to return to their country of origin or who we cannot return for any other reason and to asylum seekers whose asylum claim has been outstanding for more than 12 months. Let me address this in two parts. First, the Government believe that managed migration is a valuable source of skills and labour for the British economy and that it provides a legitimate channel for those who wish to work in the United Kingdom. However, our view is that it is crucial to maintain the distinction between managed migration and the asylum process. I know that many people seek to conflate them, but that is wrong and it does not help, particularly when we have to explain our policies at large within the United Kingdom. Entering the country for economic reasons is not the same as seeking asylum. We do not allow asylum seekers to work as that could encourage asylum applications from those with no fear of persecution and slow down the processing of applications from genuine refugees. It is important to note that the prohibition against working does not apply to asylum seekers who are recognised as refugees following a successful asylum claim. Secondly, since 5 February 2005 specific provision has been made in the Immigration Rules for asylum seekers who have been waiting 12 months and more for an initial decision. These applicants can apply for permission to take up employment provided the delay is not attributable to them. Furthermore, under new arrangements for the handling of asylum claims, the Border and Immigration Agency is focused on concluding asylum claims within six months of the date of application. Dealing with applications more quickly than in the past will ensure that individuals are not on asylum support for any significant length of time. Only a few asylum seekers will qualify to work under the 12-month provision. As we have made clear, asylum seekers generally cannot work while their claims are being considered. Equally it would be inappropriate to allow failed asylum seekers to do so when they have no legal basis on which to remain in the UK. Giving failed asylum seekers permission to work may also create an incentive for them to remain in the United Kingdom when we expect all successful applicants to return home as soon as practicable. It is our belief that this amendment could open our asylum system to further abuse. For that reason we continue to resist it.
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- Lord AveburyLiberal Democrat
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- My Lords, it is certainly not constructive for the Conservative Front Bench to fail to make any statement on either this amendment or the previous one. I hope that they will abandon their silence on the remaining amendments because we want to know what the Conservative policy is. It is all very well for us to have the responses of the Minister, but for a discussion outside this House—and the Conservative Party represents a substantial body of opinion—your Lordships are entitled to hear what they think about these amendments, and, in the current debate, what they have to say about not allowing failed asylum seekers who cannot be sent back to their country to contribute to the economy. I noticed that the Minister totally ignored the remarks I made about the economic benefit that might arise from the sort of amendment we have on the Marshalled List, but he did not challenge the figure.
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- Lord Bassam of BrightonLabour
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- My Lords, I am prepared to say that—and I do not want to get into the practice of jumping back into debates—I think the noble Lord's figures were entirely speculative. I am not going to deal with figures that I do not think have sufficient veracity. Obviously our officials keep these matters under careful and detailed review; and it is right that we try to speed up the process of looking at and resolving legacy cases because that helps strengthen our system of immigration control.
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- Lord AveburyLiberal Democrat
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- My Lords, my figures are not speculative; they come from the Government. I talked about the 450,000 legacy cases. That figure has been quoted many times during the course of your Lordships’ debate. I also mentioned—I hope accurately—the Government's plans for disposing of these 450,000 cases, which they have said they will do by 2011; although, at the rate they projected that these would be dealt with, it could be considerably longer than that. I have taken the Government's figures as they have been relayed to your Lordships in other debates. I said that if only half those people were allowed to work—and half of 450,000 is 225,000—and we valued the contribution they make to the economy at the very modest figure of £10,000, that represents a loss to the country of £5.6 billion. I repeat: these are facts; they are not speculation. It is unworthy of the Minister to make that suggestion about arithmetic, which anybody can pick holes in if they are there to pick. As the Minister did not answer on the first occasion I used the figures, and the reply he has come back with now does not address the point at all, I stick to my guns. This is what the Government are losing for the benefit of the economy by failing to allow long-term asylum seekers who have failed in their application to contribute their skills and talents to the economy. Nor did the Minister say anything about the point made by the right reverend Prelate and me—that a lot of these people have skills and abilities, which they are willing and eager to contribute to the economy. I mentioned the particular case of Zimbabweans because, at the moment, it is not possible to send them back anyway because of the court case that is yet to be determined. Everyone in this House must know Zimbabweans who are skilled teachers, doctors—professionals of one kind or another—or tradesmen who would love to be able to contribute their skills to the benefit of the economy in this country. When Mugabe is finally got rid of, they would love to have enhanced abilities to rebuild the economy and the country of their origin. So I am grossly dissatisfied—
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- The Lord Bishop of WinchesterBishops
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- My Lords, before the noble Lord continues to his peroration, I wonder whether he might have had it in mind to question the Minister on the opening sentences of his response. I was astounded that the Minister effectively insinuated that the noble Lord, of all people, was confusing migrants and asylum seekers. The amendment is crystal clear; the noble Lord’s speech was crystal clear; so was mine; but the Minister set off on an allegation that those things were being confused, that such confusion would be damaging and based the rest of his case on an entirely false premise. I wondered whether the noble Lord, Lord Avebury, was going to make that point before he drew to a close.
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- Lord Bassam of BrightonLabour
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- My Lords, I really do not want to get into this as a practice, but I want to make this plain. I am not suggesting that either the noble Lord, Lord Avebury, or the right reverend Prelate the Bishop of Winchester conflates those things, but others do. I wanted to make that absolutely clear. I am not prepared to accept that I do not have a duty to ensure that that confusion does not arise. As for the general thrust of the argument of the noble Lord, Lord Avebury, there is clearly a disagreement between us, although I of course recognise that people who come to this country for whatever reason and with whatever status have skills and talents. There is no question about that; I am sure that that is a shared view.
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- Lord AveburyLiberal Democrat
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- My Lords, as the right reverend Prelate repeated, the Minister's premise, with which he began his argument, was totally false. No one in this Chamber confuses economic migrants with asylum seekers. We leave that to the tabloids, who either have the paradoxical attitude that my noble friend has just mentioned—that asylum seekers come here to sponge and to live on social security benefits when, in fact, most of them would be only too delighted if they were given the right to work. We want to give them that right and we will see what is the opinion of the House on that matter.
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- Lord AveburyLiberal Democrat
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- moved Amendment No. 19:
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Baroness HanhamConservative- Quote
- My Lords, where I have a feeling that I can make a contribution to the Bill, I will make it, and where I do not, I will not. I broadly support the amendment. It is clear that the appeals system does not always work correctly. Where evidence is produced late, which is what the amendment is about, it needs to be considered at the same time where possible so that the ruling is not delayed. As my noble friend supported either this amendment or something similar in Grand Committee, we hope the Minister will be able to make some movement on this.
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- 15:59
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- Lord Bassam of BrightonLabour
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- My Lords, Clause 19 will ensure that in appeals brought against refusals of applications made under the points-based system—PBS—the appeals system considers the facts that led to the decision being appealed. That will ensure that the appeal is not an opportunity for applicants to patch up failed applications with new evidence. The amendments would negate the purpose of Clause 19 by allowing new evidence to be submitted in all PBS appeals, subject to the sole condition that the evidence must have been submitted no later than the notice of appeal. Under the PBS, applicants will be told in clear terms exactly what evidence they need to submit to qualify for points. It is therefore perfectly fair to expect them to submit that evidence with their applications. There is no reason why they should be able to submit it later in the process with their appeals, as the amendments propose. Our processes for handling PBS applications provide for one decision to be made. If applicants want to provide further evidence and consequently expect us to make a second decision, they must pay our administrative costs in remaking that decision. The appropriate channel to do that is by making a new application, not by relying on the appeals system. The purpose of the system is, as it says, to decide whether the appellant’s application was correctly refused. Allowing new evidence would mean that the Asylum and Immigration Tribunal would be making its own decision on a totally different basis from that of the Border and Immigration Agency. As drafted, Clause 19 contains enough safeguards to ensure that it is fair. For example, new evidence will be allowed to challenge an allegation by the Border and Immigration Agency that a piece of evidence is not genuine or to refute a reason for refusal that is not based on the acquisition of points. We contend that Clause 19 provides a clear and transparent appeal system to complement the clear and transparent points-based system. In our view, these amendments blur that clarity and must be resisted. The noble Lord invites me to consider at a later point his suggestion for some other way of dealing with this matter. My officials and I will read Hansard and give that some consideration.
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- 15:59
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- Lord AveburyLiberal Democrat
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- My Lords, I will have to be satisfied with what the Minister said in his concluding sentence. I honestly think that, when he and his officials look at this in detail, he will find that we are not driving a coach and horses through the system and allowing everyone to appeal at a late stage. We are trying to deal with a situation that he must acknowledge exists, which is that people can make genuine mistakes on the applications. For example, they can miscalculate the number of points that are required or they can misconstrue the criteria and therefore get something wrong in the application form. I hope that our amendment would allow those kinds of mistake to be corrected. I recognise that we should not open the door to appeals by all and sundry. We should confine this, as I suggested, to those people who are not able to take advantage of the Minister’s suggestion that, if they have made these mistakes and the application is incorrectly formulated, they should start again with a new application and pay the second fee. My objection to that, as the noble Lord is aware from the previous occasion on which we talked about it and from what we have said this afternoon, is that someone who is applying for an extension of leave would, by the time that they put in a fresh application, be out of their permitted leave to remain. This is of particular interest to people such as students or work permit holders who would not only forfeit their right to put in another application, but be effectively denied all future rights to remain here as students or workers, as the case may be. This is such an extreme penalty, as I hope the noble Lord will agree, that we ought to do something to correct it. If he can discuss the matter with officials and come back to us by Third Reading with suggestions on how we can deal with this evil, I shall be very satisfied. In the mean time, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 20 not moved.] Clause 20 [Fees]:
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- 15:59
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- Lord AveburyLiberal Democrat
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- moved Amendment No. 21:
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- 15:59
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- Lord Bassam of BrightonLabour
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- My Lords, I understand the background to the amendment and know that it arose from concern about the scale of increases to certain fees charged from April. Sufficient safeguards already exist in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which is amended by the clause. It requires the instrument that sets fees above cost-recovery level to be agreed through the affirmative process in both Houses. Before the statutory instrument that sets the fees is made, the Secretary of State is required to consult such persons as she deems appropriate. As the noble Lord, Lord Avebury, said, the consultation has been extensive. We held some 13 or 14 stakeholder meetings to underpin it. The Act also requires that fees set above normal cost-recovery levels should reflect the benefits to applicants after a successful application. That is not an unreasonable criterion and it is right that we incorporate it in the Bill. It is important that the Secretary of State’s discretion, with the approval of Parliament, to set the fees at the appropriate level to recover the costs of a service provided should not be fettered by a limit on the percentage increase to a fee. There are a number of instances where an increase above inflation may be appropriate; for example, to correct an anomaly in the charging structure or, perhaps more importantly, to reflect wider policy changes affecting the benefits and entitlements offered through a successful application. Whom did we consult? Migrants who might qualify for settlement are a disparate group with no key representative bodies with which we can engage in the same way as, for example, in the education sector. We recognise that that presents difficulties in ensuring that key policy changes are communicated effectively and in good time. We are exploring how we might do this differently in future. The consultation document was freely available on the BIA website and the UKvisas website, and we welcome responses from members of the public as well as stakeholder groups.
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- 15:59
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- Lord AveburyLiberal Democrat
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- My Lords, I welcome what the Minister said about improving the consultation process. I hope that he will particularly consider how he can bring in these hard-to-reach groups, particularly those concerned with sponsoring visits by intended spouses and other family members. I am sure that if he consulted the JCWI, for example, it would be helpful not only in responding to the consultation but in suggesting other organisations that represent the interests of family members. However, that whole process will be useless unless in the consultation itself some indication is given of the level of the intended fees. The answers that people gave to the general questions in the previous consultation were not based on knowledge of how much was to be charged and the questions were phrased in a very general form—such as, “Do you think it’s reasonable for the Government to recover the costs that they incur in operating this system?”. Of course, the answer to that must be yes. On the face of it, all the costs that go into providing the services would make for a legitimate charge on the user. But if people thought that that meant that the existing charges were to be more than doubled, they might have a second thought about it. I hope that that notion will be taken into consideration in the consultation on the sponsorship fees. With regard to the comparisons with other countries, I do not know whether the Minister has seen the detailed correspondence that I have had with his colleague, Mr Byrne, but he asserted as a matter of fact that our charges compared favourably with those in Australia. When I asked him to give me a comparison, that was the one that he chose. We have been through that in enormous detail, and the end-to-end comparison of the cost of a spouse coming in here with the cost for Australia is extremely unfavourable to us. The Minister sought to defend that by saying that there are enormous benefits to coming here, therefore implying that the benefits to a spouse entering Australia were not comparable to those when someone enters this country. I have just written to him saying that I do not really think that he could have meant to imply that we were so superior to the Australians that we were entitled to charge much more for the equivalent services than they do. I look forward very much to further discussions on these points with Ministers. When the consultation document on the sponsorship fees is issued, I should be grateful if a copy could be sent to me so that I can comment on it. I very much hope that it will include the figures. In the mean time, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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The Lord Bishop of Ripon and LeedsBishops- Quote
- moved Amendment No. 22:
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- 16:15
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- Lord AveburyLiberal Democrat
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- My Lords, we support this amendment and have experience, through talking to lawyers, of the difficulties that are faced with the fast-track process which result in many applicants remaining unrepresented. When the Minister comes to reply, it would be useful if he could give us some statistics on how many of the people going through the fast track actually get legal advice at all. The merits test is part of a process which has been continued for some years of squeezing out of the legal aid system the money which is supposed to underpin a fair and reasonable asylum application process. If you make it far more difficult for people to get legal advice, a great many people will not succeed in meritorious applications. If the Minister had the time we could go into a number of cases I know of where people have been very poorly represented until the point where they were about to be sent back. Then a good lawyer has come in and rescued the case at the last minute. That cannot happen in the fast track, because by the time the good lawyer has appeared on the scene the person is back in the Democratic Republic of Congo, Somalia, or wherever. It is vital that we provide the same rights of access to good legal services in the fast track as elsewhere in the system. I hope that if the amendment is agreed to by the Government we will be able to do that.
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- The Lord Bishop of WinchesterBishops
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- My Lords, in passing, it would be especially serious if the applicant were back in the DRC or Somalia, because there they would be in grievous danger. The Government were returning people to the DRC until very recently and had to be stopped in the courts from doing so. The basic point at issue is, to put it in rather un-legal terms, that the faster the track the more critical the quality of the legal assistance. I hope the Minister will reflect on that when he responds.
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- The Earl of SandwichCrossbench
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- My Lords, I shall add a word in support of the amendment. The right reverend Prelate has put it very well. He said that the cards are stacked against asylum seekers in the fast-track process. We have seen the decline of legal aid year on year, in parallel with what the Government are doing with this policy. It is simply unrealistic to expect an asylum seeker to follow the safeguards that the Minister is bound to mention in a minute within two or three days in this process. I would be grateful if he would explain how they are meant to do that.
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- Lord Bassam of BrightonLabour
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- My Lords, I am grateful to noble Lords for raising the issue as it enables the Government to set out our position and perhaps to clarify a few issues. The Government believe that to accept this amendment, which removes the merits test for those in detention, would contradict our aim of ensuring that public funding is targeted on cases with merit and that weak cases are not supported. We need to make the best use of limited resources by ensuring that only cases with merit are funded and that genuine applicants are adequately supported through the process. The merits test is common in the criminal justice system for legal aid; it is not unique to this process. The merits test for representation at the tribunal has existed since representation at appeal and bail hearings was brought into the scope of legal aid in January 2000. For funding to be granted, the prospects of success have to be moderate or better, which is defined as clearly over 50 per cent, as noble Lords understand. However, in asylum cases, if the prospects of success and the merits of the case are borderline or unclear, funding can still be granted if the case has wider public interest or is of overwhelming importance to the applicant. Where a case has a poor prospect of success, the fact that making or pursuing an application or representations will in itself prolong a client’s right to remain in the UK will not be treated as a sufficient benefit to continue with public funding. It is inevitable that in any system of merits testing there will be applicants with poor cases who do not receive publicly-funded representation. The Legal Services Commission’s guidance to suppliers on the fast-track scheme states that where the client’s substantive appeal lacks merit and would not warrant the grant of funding for the appeal, the case may still merit the grant of funding for a bail application. The Government recognise that individuals detained under the fast-track process will face particular difficulties in securing representation where we are processing an asylum application under an accelerated timetable. That recognition is there. To ensure that clients in the fast-track process have early access to quality legal advice and representation, the Legal Services Commission runs duty representative schemes at Harmondsworth, Oakington and Yarl’s Wood removal centres. Fast-track advice is provided through exclusive contract schedules. Services are awarded in this way to those organisations that can demonstrate that they are able to offer the best service to clients through skilled and experienced staff, effective supervision arrangements and a good track record of audit with the Legal Services Commission. Only suppliers who have a Legal Services Commission contract and who have gone through an additional tendering process are able to provide publicly funded advice under the scheme.
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- The Lord Bishop of Ripon and LeedsBishops
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- My Lords, I thank the Minister for his response and I was glad to hear his assurance that the Government recognise the need for particularly skilled staff to be involved in a fast-track scheme such as this. I am grateful, too, to other noble Lords who have taken part in this debate and who have spoken, as the noble Earl, Lord Sandwich, did, about the odds stacked against the asylum seeker in this respect, as is the case for others within the system. I thank the noble Lord, Lord Avebury, for his comments on the poor representation that can exist, even within the fast-track system. I am interested that the Government are satisfied that the system is working as well as the Minister believes it is. The number of people who actually win appeals through the fast-track system is tiny, which is why the title of a “refusal factory” has come to be used by some with regard to the system. I hope that, perhaps in correspondence, we could do more to check just how the system is working and ensure that the Minister’s optimistic assessment of the situation is correct. In the mean time, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 21 [Children]:
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- Baroness HanhamConservative
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- moved Amendment No. 23:
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- Lord AveburyLiberal Democrat
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- My Lords, as these amendments raise two issues that we discussed as recently as Tuesday, I can be very brief. We considered what the Minister said about the draft code of practice, which, as he acknowledged, was clearly marked as a draft, but we remain unhappy about the code for the reasons that we gave, particularly in the context of Amendment No. 24. It makes no reference at all to private contractors, who are carrying out some of the most crucial duties of the BIA, including, for example, detention and escorting, and we simply do not accept that Parliament’s right to approve the code by affirmative resolution gives us any worthwhile opportunity to scrutinise the code before it comes into effect. I repeat—I hope that the Minister can answer this now that he has had 48 hours to reflect on the suggestion—that both this code and the Section 9 code should be made subject to pre-legislative scrutiny. It may not be our normal practice to do that with secondary legislation but, with so many sensitive functions of government now being dealt with by order, this would be an excellent example on which to trial the process. This may not be the time to go into detail on the code but, as an example of matters that cause us concern, I could make some comment on paragraph 16, which deals with children being looked after under private fostering arrangements. As I understand it, the fostering arrangements would not be subject to the provisions of the code. In dealing with an adult who has arranged for a child to come to the United Kingdom, it should be asked what arrangements have been made for the child to be looked after in the UK, although that matter should have been sorted out when the visa was awarded. Satisfactory assurances should be given by the sponsor of the child that the fostering arrangements are in place, that they have been approved by the local authority and that the fosterer is a properly qualified person to fulfil that role. However, there does not seem to be any certainty either that the BIA will be notified of the fostering arrangements or that the local authority will have inspected them. These defects should be dealt with in the final version. I also suggest that the code should form part of the contract between the local authority and the person who is to provide the fostering arrangements. I take it that the draft has been sent to the relevant professional and voluntary bodies, the LGA and the local authorities for comment. I ask the Minister to arrange, as has been done on other occasions, for a summary of the responses to be published so that they can be considered, preferably as part of the pre-legislative scrutiny process that I have suggested.
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- The Lord Bishop of Ripon and LeedsBishops
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- My Lords, I support Amendments Nos. 23 and 24 and I hope that the Government will be able to accept them. The phrase “safe from harm” in the clause feels grudging and is often used to refer simply to safety from and defence against physical and sexual abuse. The provision needs to be much broader. We are talking about some children who will be in this country for a considerable time. We have heard again and again about their needs. It is crucial that, through the ways in which we help children in the Bill, we provide the welfare that is the right of every child. Every child matters and it is crucial that we bring that into our concerns here. That includes, for example, the benefits of schooling and ways of helping children with their education so that their welfare is promoted here and for the benefit of the country to which they will go back.
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- Lord Bassam of BrightonLabour
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- My Lords, I thank those who have participated in the discussion, because important issues have been raised. I am particularly grateful to the noble Baroness, Lady Hanham, for tabling Amendment No. 24, which I will respond to, because it has prompted further thinking on our part. I understand that the intention behind the amendments is to broaden the scope of the Border and Immigration Agency’s duty with regard to children so that it is as wide as the safeguarding duty in Section 11 of the Children Act 2004. The amendments would also impose the same broad duty on contractors providing services on behalf of the Border and Immigration Agency. I made it clear on Tuesday that the Section 11 duty would not work for the agency. The House took a view on that. It might be a narrow view, but it was supported. It is not appropriate in our view for the agency to have a duty to promote the welfare of children because that creates a potential conflict with other duties that we have to exercise to regulate entry to the United Kingdom and to take action against those who have no lawful claim to be here. The potential application of a duty to promote the welfare of children is very broad. If the Border and Immigration Agency were to adopt it, we have no doubt that it would be used as the basis of a legal challenge in many cases where the facts made it clear that someone no longer had a lawful claim to be in the United Kingdom. For those reasons I resist the amendment. The story should not end there. As I explained, we take very seriously the responsibilities towards children in the Children Act 2004; hence the continuing development of the code of practice. We have already indicated what we are committed to introducing through such a code and we are open to—and expect—further development of that through consultation with interested groups. It will be supported by a set of instructions to staff, which are being developed with input from outside organisations that have considerable experience of dealing with children’s issues. We have been very grateful to those agencies and organisations for the work that they have put in. I do not want to repeat what I have said about the content of the proposed code. However, I must emphasise that the Border and Immigration Agency will expect staff to follow the code of practice or, if they cannot, to have very clear reasons indeed for not doing so. Those instances must be very few. I must also make it plain that we very much intend to take on board the comments made on Tuesday, particularly by the noble Lord, Lord Avebury, about the need to ensure that very clear principles on detention are written into the code. The noble Lord made an important point that, although the supporting documentation is very clear that the code applies to detention and the detention estate, we must write those principles in and ensure that the detention estate is clearly covered. We recognise fully that we would not achieve what we have set out to achieve if we were to have a code of practice for the border and immigration staff with no way of ensuring that it applied to those providing services on its behalf. So we sympathise with Amendment No. 24, and I know that the Minister was particularly grateful to the Opposition for raising that issue when we had a private discussion. We see the need to make it clear that when contractors are commissioned to carry out services on behalf of the Border and Immigration Agency they have the same responsibilities towards children as the agency itself. I shall give that point further consideration with a view to returning to it at Third Reading. I reassure noble Lords that the code will not be a token document. In developing it further and introducing it, we will continue to work with the key NGOs.
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- Baroness HanhamConservative
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- My Lords, I thank the Minister; “one up and one down” is how I see this afternoon’s effort. I am grateful for his indication that we will come back to Amendment No. 24 at Third Reading; I hope that we do so with an amendment that is strong enough to ensure that other agencies are required to have the same standards as the BIA. We look forward to seeing that, perhaps a little bit beforehand so that we are aware of it. I am conscious of the welfare duty because I have been a family magistrate for quite a long time. The welfare duty encompasses a whole lot of things, such as the care of the child, where it lives, where it is educated and who it has contact with; it encompasses a much wider field than, as the right reverend Prelate said, just keeping it away from harm. The trouble is that children are around within the detention system, I understand, for various lengths of time. In some cases, the safeguarding from harm might be appropriate, but in cases where it is longer their welfare becomes an extremely important aspect of this. The way to deal with the problem would be to impose the welfare duty, so that those there for a longer time would be encompassed by it. We have had one or two goes at this issue during our debates on the Bill and it is not something that will go away. I shall not press the amendment today, but I give strong notice that a number of us are concerned about it. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 24 not moved.]
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Lord GoodhartLiberal Democrat- Quote
- moved Amendment No. 25:
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- Lord AveburyLiberal Democrat
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- My Lords, I warmly congratulate my noble friend Lord Goodhart on finally achieving a solution to a problem that has, as he pointed out, been canvassed on numerous occasions going back to 2002, when we raised it not only in respect of the NIA Act of that year but in detailed discussions with the then Minister, the noble Lord, Lord Filkin, in an attempt to find a way through. We persuaded the Government then that the child of a foreign father and British mother born overseas after 7 February 1961 should have the right to be registered as a British citizen. However, we were not able then or since—until Monday of this week—to persuade the Government that discrimination against British mothers whose children were born before the cut-off date was wrong and illogical. Their right to transmit citizenship to their children was not equal to that of fathers who married foreign women, who had always had that right. Ministers kept repeating, as if it was an argument, the view that there had to be a cut-off point, as though that justified a situation in which children in the same family born before or after the cut-off date had different citizenship rights. As the noble Baroness, Lady Anelay, said in Committee, we were all struggling to hear from the Minister about the virtue that attaches to 1961. The Minister had no answer.
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Lord HigginsConservative- Quote
- My Lords, this is the third item of business on today's Order Paper on which I intervene. It may be thought that this displays my versatility, but I fear not. On the two previous occasions I might reasonably claim some experience, if not expertise; but one knows very well in your Lordships' House that to intervene in an area you do not normally speak on, when there is such great expertise in the House, is a dangerous thing to do, particularly when the noble Lords, Lord Goodhart and Lord Avebury, have spoken not only with expertise but with a history on this issue over very many years. Indeed, the history which was outlined by the noble Lord, Lord Goodhart, shows a kind of “Yes Minister” over the ages—that the Government have gradually given way little by little until we have ended with one final step to be taken. I very much hope that the Government will take it. I was encouraged to take part in the debate today and in Grand Committee by a very passionate letter I received from someone in the category the noble Lord referred to. He is right in saying that the number of people in this category is very small, and that there are no significant financial or precedent problems as far as that group is concerned. The noble Lord referred to a letter in Grand Committee. The letter I received states: “I have wanted British citizenship all my life. Citizenship, even right of abode, was denied to me for many years because it was my mother and not my father who was British. In 2002, the government added a section to the new immigration law meant to address this inconsistency. The new law allowed foreign-born children of British mothers to register as U.K. citizens. When I heard of the new law, I was overjoyed. But my joy was short-lived, as I soon learned that those of us born before 1961 were to be excluded. I was devastated”. That remains the position. The noble Lord’s amendment would overcome that problem; it is right that it should. As he rightly points out, there is discrimination in this case not only on gender but, curiously, on age. In reply to the debate on 18 July in Grand Committee, the Minister said that there was a principle that an adult seeking British citizenship should normally be able to demonstrate on the basis of his personal connections with this country why his application should succeed. Of course, the extent to which that qualification has been extended is the same in the case of someone born of a British mother as of a British father. There is no reason why, if they have a reasonable connection—one would have thought that the fact that one’s mother was British was a not unreasonable connection—and passionately wish to become British citizens, that should not be allowed. In Grand Committee, the Minister was kind enough to suggest that we might discuss the matter further, and I appreciate the fact that I was able to have a brief meeting with him and a discussion with one of his officials, which was extremely helpful. I do not believe that there is any longer any justification for not taking the final step in this matter. I understand that the Minister is not unsympathetic to that idea and suggests that action could be taken in a so-called simplification Bill, which he envisages taking place fairly soon. That would most certainly be welcomed, particularly because the rules of order prevent us including British citizenship; the amendment covers only right of abode. Therefore, it would be better if it could be extended on the basis of citizenship, even though that may mean some delay. If that is the Government's attitude—no doubt the Minister will let us know whether it is—that is a considerable, even final, step forward. I make only this final point. The letter to which I referred stated: “We are seeking citizenship because Britain is the land of our mothers, and as such, is our motherland. This relationship is immutable and if we should all die without ever having been allowed to live in Britain, it will not be because we did not remain steadfast until the end in our desire to come home and our belief that our claim to be British by descent was warranted and genuine”. The problem is, as has rightly been pointed out, that these people are getting quite old and there will obviously be some delay before proper rectification on the basis of citizenship can be made, so I hope that in addition to giving a forthcoming answer today, the Minister will say that in principle he understands that there ought not to be discrimination on the basis of either gender or age.
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- Baroness HanhamConservative
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- My Lords, there has been unanimity among those who have spoken and I understand that the matter was considered very firmly in Committee. I just add my plea that we should see this matter resolved one way or another. Clearly, the number of those born before 1961 will become fewer; nevertheless, their views are important. I hope that the Minister will be able to give the assurances that have been sought.
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- Lord Bassam of BrightonLabour
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- My Lords, I thank the noble Lord, Lord Goodhart, for raising this issue again, as it enables me to clarify and, I hope, resolve the matter once and for all. I am conscious that noble Lords know the detailed background, but for the benefit of the House it may assist if I set out some of the background from a Government perspective and explain why we have got to where we are and how we should now move forward. Before 1983, British women were unable to pass on their citizenship in the same way as men, but there was discretion within the British Nationality Act 1948 to confer citizenship on any minor by registration. On 7 February 1979 the then Home Secretary announced that he would exercise this discretion in favour of any child of a UK-born mother who applied for registration before his or her 18th birthday. We recognised that some will have learnt of the 1979 policy change too late to benefit from it. We therefore changed the law in 2002 so that a person can apply to be registered as a British citizen if he or she would have been registered in accordance with the policy announced in 1979, had an application been made while he or she was still a minor.
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- Lord GoodhartLiberal Democrat
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- My Lords, I was going to say that the year was 1961, but I think that that was backdating from 1979.
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- Lord Bassam of BrightonLabour
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- My Lords, that is one reason why I want to clarify things. The legislation therefore provided for the registration of those born after 7 February 1961. We were not persuaded that it was right to go any further than this, given the principle that an adult seeking to be granted British citizenship should normally be able to demonstrate his personal connections with this country and the fact that those who would benefit from any further relaxation of the requirements in the 1981 Act were at least 46 years old and could be well established elsewhere. There has been pressure to change the law to allow those born before 1961 to benefit from this provision, which we have resisted on the grounds that there would always have to be a cut-off point, about which there has been some debate subsequently, and that those born before 1961 could not have benefited from the 1979 concession. Although we have done much to right the wrongs of previous nationality legislation, the current position does not allow the adult children of British mothers the same rights to British citizenship as those of British fathers and we want to correct this. However, to give them a right of abode in the United Kingdom without citizenship is only a partial solution and not the way to put this right, as the noble Lord, Lord Goodhart, said. This amendment would have a much wider scope than the current registration provision, as it would confer the right of abode in the United Kingdom on any person who would have qualified but for his or her date of birth. However, it is our view that the rights associated with British citizenship, including the right of abode in the United Kingdom, should be closely linked with British citizenship. We would not wish to create a category of people who held the right of abode without having acquired British citizenship. We would like to legislate to give British citizenship to those affected and so have committed ourselves to addressing this problem, as noble Lords already have detected, in a simplification Bill. Because of its wider scope, it will allow us to provide an avenue to citizenship for those concerned, rather than just a right of abode. I have asked officials to give me an idea of how quickly we could right this wrong and ensure that this problem is sorted out. There will be a consultation which will begin before November. We expect, therefore, a draft Bill to be produced next summer. One would then normally expect a Bill to be introduced in November 2008. It is not in my gift to say what will or will not be in the Queen’s Speech in November next year, but that is an indicative timetable, and is as far as I can go. I express my continued gratitude to all those who have worked on this. I first alighted on the problem when it rather hit me in the face at Question Time in your Lordships’ House, and I must say that I was left scratching my head, genuinely puzzled over how the situation could have arisen. I looked at what previous Ministers had had to say, but I could see that they were probably struggling as well. In fairness, we have come up with an approach that will work. This Bill is not the right vehicle because the issue does not fall naturally within its scope, I am also grateful that the major opposition party has thought about this as well and has given its support to other Peers who have raised the issue. We have now reached a satisfactory conclusion. Just one outstanding question that was raised by the noble Lord, Lord Avebury, is left to answer. He asked whether we would now withdraw our reservation to the Convention on Nationality. That is a fair point. We will look into this—
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- Lord AveburyLiberal Democrat
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- My Lords, I referred to the convention on the elimination of discrimination against women.
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- Lord Bassam of BrightonLabour
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- My Lords, I understand what the reservation relates to. We will look into these issues in the context of considering the legislation, but I cannot give an absolute commitment today. I am grateful to the noble Lord for raising the issue. That said, I hope that the noble Lord, Lord Goodhart, will feel able to withdraw his amendment.
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- Lord GoodhartLiberal Democrat
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- My Lords, I am most grateful to the Government, and particularly to the noble Lord, Lord Bassam, for having reconsidered their earlier position. I recognise that my amendment is a second best, because for the reasons which have been explained, it cannot confer citizenship, and therefore this Bill is not the right vehicle for removing the anomaly. My remaining concern is that of the timetable. I hope very much that it will be possible to have the new legislation in force during the present Parliament, particularly as it is now unlikely that a general election will be called before May or June 2009 at the earliest. There is a real possibility here, but I am aware that slippages can occur in the timetable for legislation. Given that the people who will be affected by this are pretty well into middle age by now, I hope that the prospect which has been opened up by the Government will not be darkened by undue delays. Having said that, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 26 not moved.]
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The Earl of ListowelCrossbench- Quote
- moved Amendment No. 27:
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- Lord AveburyLiberal Democrat
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- My Lords, the noble Earl never ceases to be vigilant in his defence of the rights of children, and he commands enormous respect on all sides of the House for the work he does. His demand for guidelines on the length of time children can be detained and the publication of more detailed statistics on the use of detention should therefore be carefully considered. The statistics now being published quarterly are better than nothing but they give only a snapshot at the end of the quarter, and we know from debates on previous immigration legislation that when Ministers wanted the information for a particular occasion, the BIA or its predecessor had no difficulty in producing it. There seem to be indications in the latest quarterly figures that fewer children are being detained for shorter periods. If that is so, it should be that much easier to keep track of them and produce the information the noble Earl seeks. I would sooner that he had suggested it as part of the quarterly statistics rather than annually, because then if there were changes in the frequency or length of children’s detention, they would show up earlier and would allow Members to seek explanations by question or correspondence with Ministers. I also agree with the noble Earl that more precise guidance should be given to the BIA on when to detain and for how long, though I am not sure it can be pinned down in precisely the form the noble Earl requires. Listening to the Minister on Tuesday, one might have thought that the criteria for detention were already sufficiently narrow, were it not for the fact that we all know of cases where the criteria have been grossly and flagrantly violated, even when repeated appeals were made to Ministers to intervene. That is the difference between policy and practice that has been referred to so frequently in your Lordships’ discussions on the Bill. The case that always comes to my mind is that of Jacqueline Konan and her daughter Thelma, on whose behalf I begged the then Minister, Beverley Hughes, and the Immigration Service 13 times to release them, without effect. It was only when they finally got competent advice from a new firm of solicitors that not only was she released and she won her case, but she was also awarded substantial damages by the High Court for wrongful detention over the major part of her incarceration in Harmondsworth. The Minister said on Tuesday that children were detained only for a few days prior to removal with a view to making arrangements for their care by a local authority as members of a family, where it was considered likely they would abscond, or as part of the fast-track asylum process. But the fact that some children have been detained for very long periods indicates that adherence to those criteria needs to be more closely scrutinised. That is where I think we should look for better safeguards, rather than trying to attach particular numbers of days to given circumstances. There is a rule that Ministers have to approve the detention of children beyond a certain point, but they exercise that responsibility without proper parliamentary oversight. That is a gap in our armoury of protection. In his letter of 26 July, dealing with matters raised in the fifth Grand Committee sitting, the noble Lord said that from March 2004 to July 2007 Ministers had declined to approve continued detention beyond 28 days in 14 cases only. If Ministers were obliged to place anonymised copies of their decisions to approve continued detention beyond the 28 days in the Libraries of both Houses, with a note on the reasons for their decisions in each case, we would be able to evaluate the process and assure ourselves not only that the declared purposes of children’s detention were being strictly observed but that, wherever possible, alternative arrangements were being made.
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Lord JuddLabour- Quote
- My Lords, I am certain that my noble friend will not accept the amendment; it is not difficult to make that reckoning. However, I urge him to get the message, which is very clear. I congratulate the noble Earl on his deep commitment to these matters and on once again having challenged the House. I simply make the point that either children are central to our policy considerations or they are not. If children are central, each individual child matters. They are not just statistics. At all stages in the treatment of children, when they are confronted with officialdom, a primary concern in the ethos should be, “Here is a child caught up in this situation; what are our responsibilities to this child?”. I do not believe that we begin to fulfil that ethos unless we are prepared to get on record exactly what we are doing and how it is being done. The noble Lord, Lord Avebury, made the point again—it has been made in our deliberations on previous amendments—that there can be a big difference between policy, genuinely and sincerely made with real commitment, and its application. That means that one has to win the ethos; one has to win the commitment of people at all levels. If one is to do that, people need to know what is required of them.
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Lord Roberts of LlandudnoLiberal Democrat- Quote
- My Lords, I, too, give wholehearted support to the amendment of the noble Earl, Lord Listowel. I do so for a number of reasons. The first concerns transparency. We have heard today a dispute over numbers, but there would be no dispute if we had a record of how many were actually in detention. We should also know their ages. There is a great difference between a two year-old and a 17 year-old. In our discussion of the Section 9 evaluation, 219 minor dependants were mentioned. Were these teenagers or were they children of pre-school age? We do not know. Our ability to make policy that is positive is hindered by our lack of knowledge. We would be able to act in a far more focused way if we knew the ages of these children and possibly—I do not know how we would do this—their level of development or attainment, as children in different circumstances develop at different paces. The amendment is the beginning of something valuable and I am pleased to support it.
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- Lord Bassam of BrightonLabour
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- My Lords, this amendment would establish guidelines to specify the maximum time for which a child could be held in immigration detention and would enable the guidelines to allow children to be detained for varying periods depending on age or the place to where the child was being returned. The guidelines would also specify different time limits for detention for children falling into “different classes”, although the amendment does not make clear what this could include. The amendment would also require the Secretary of State to publish an annual report detailing the time that children spend in detention and what happens to their cases. In Grand Committee, I explained that the Government are confident that robust arrangements exist to ensure that the detention of children is kept to the minimum. We have made it plain on many occasions, most recently in discussions surrounding the draft EU returns directive, that we cannot accept a fixed upper time limit on immigration detention, whether for families with children or single adults. Our position has remained consistent.
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- The Earl of ListowelCrossbench
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- My Lords, I thank the Minister for his careful reply to my amendment. I am grateful to the noble Lords, Lord Judd, Lord Roberts and Lord Avebury, for speaking in support of its principles. I recognise the difficulties of which the Minister spoke, but the children to whom the amendment would apply are in a vulnerable situation. I understood in Committee that a review of how statistics on them are kept was taking place. If further information on that is available, I would be grateful to hear it from the Minister. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord AveburyLiberal Democrat
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- moved Amendment No. 27A:
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- Lord Bassam of BrightonLabour
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- My Lords, I understand that this amendment has been tabled because of concerns about proposals contained in our consultation paper, Planning Better Outcomes and Support for Unaccompanied Asylum-Seeking Children. I am not going to duck the question, as the noble Lord suggested, but it might be helpful if I set out some of the background for those noble Lords who were not present in Grand Committee when a similar amendment was debated. The consultation paper put forward a number of proposals to reform the arrangements for how unaccompanied asylum-seeking children are treated through the asylum and care process. One of our proposals is to make greater use of dental X-rays for the purposes of assessing the age of young asylum seekers where there is doubt about the person's claimed age. As some noble Lords may be aware, in recent years there has been clear evidence of a rising level of serious abuse of the asylum and support system by adults claiming to be children. We believe that this can lead to very serious child protection issues, with adults potentially being placed among vulnerable children in the care system or children being wrongly routed into an adult system which can lead to their being detained. It is therefore imperative that we and local authorities work closely together to improve the reliability of age-assessment procedures. We have been working to that end. In recent years we have relied heavily on the skills and knowledge of social workers. While it is still our view that a social worker's assessment of age should be an integral and essential part of the age-assessment process, we believe that a dental X-ray can be a useful additional tool in the overall decision-making process, particularly where there is a continuing dispute as to the outcome of the age assessment. As noble Lords will be aware, some local authorities already arrange a dental X-ray and subsequent report by an expert in the field to assist in their final decision.
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- Lord AveburyLiberal Democrat
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- My Lords, I challenge the noble Lord. I do not believe that local authorities arrange for dental X-rays. I believe that the advice that was given by the Department of Health was that X-rays should not be used for this purpose and that local authorities are all awaiting the outcome of the consultations, which include mention of the process. They would not jump the gun by X-raying children now.
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- Lord Bassam of BrightonLabour
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- My Lords, I am advised that some local authorities use dental X-rays in that way. I asked officials to advise me on that point. Of course I shall check again and seek further clarification, but I maintain that X-rays are used in that way. Moreover, some applicants who have been assessed as adults themselves commission dental X-rays to support their claim to be under 18, so clearly applicants see this as a valuable process. We are aware that X-rays on their own cannot determine age precisely; no procedure can give that certainty. However, we believe that they can, when taken with a range of other evidence such as the social worker assessment, provide a better means of narrowing the range of possible ages and thus assist the decision-maker. As I said in Grand Committee, X-ray procedures involve a small degree of exposure to ionising radiation—we are all familiar with that—but I reassure noble Lords that we have been advised that the risk of any harm is absolutely minimal. I have concerns that if this amendment were enacted it would make the operation of our current policy very difficult. As I explained in Grand Committee, this amendment would appear to mean that an immigration officer would not be able to take into account a social worker's assessment if it depended in any way on dental analysis. It might also prevent an individual seeking to rely on their own commissioned dental X-rays to support a claimed age. We have to find ways to improve the process for age assessments and their reliability and to minimise the serious child protection issues that may arise following incorrect assessments. Many EU member states currently use medical examinations for the purposes of age assessment and it is a procedure which is specifically permitted by the EU Procedures Directive. We have given a commitment to share research that we have commissioned on the subject of ethnic variation in relation to dental development—a point which the noble Lord, Lord Avebury, made today and in Grand Committee—and we are still awaiting the results of this research and expect this to be published sometime toward the end of the year. For those reasons I invite the noble Lord to withdraw his amendment.
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Lord WinstonLabour- Quote
- My Lords, I must voice some disquiet at the use of ionising radiation in any form when it is for the purposes of a non-medical intervention. It raises concerns. Irrespective of the EU directive, is the Minister completely satisfied that that kind of intervention is ethically justified given that the information that one would get from such an X-ray would be of only limited value and that assessment of a young person can be made by other means that are sufficiently adequate in most cases?
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- Lord Bassam of BrightonLabour
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- My Lords, this is Report stage, and it would not be my usual practice to respond to an intervention made after I have sat down, but I will do so in this instance. In my peroration, I was very careful to say that we see this as being just one tool among a range of methods that are adopted. We rely very much and carefully on assessment procedures that social services, social workers in particular, adopt. We do not rely entirely on this technique and method for the very reason that noble Lords have given; that there is still a degree of imprecision. It is one element that is used in some cases where we think it is most appropriate. It is done for very good reasons indeed, which are primarily to ensure that young people, children in particular, are placed in the right setting. It is for that very good reason that we take considerable care here and why we have to rely on the expertise of social workers. I hear what my noble friend says, and he is very knowledgeable in these matters. Those considerations form part of our thinking.
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- Lord AveburyLiberal Democrat
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- My Lords, the Minister has confirmed my worst fears; that he is going to disregard all professional opinion on this matter. I am delighted that the noble Lord, Lord Winston, intervened, because he brings a high degree of professional expertise to bear on the question of the use of ionising radiation for non-clinical purposes. If the Minister asked the same question of the BMA, the BDA, the royal colleges, particularly the Royal College of Paediatrics and Child Health, he would have had the same reaction that we have heard from the noble Lord, Lord Winston, this afternoon. I can only take it from the reply that we heard this afternoon that it is the Government’s intention to ignore all professional opinion that disagrees with their point of view. The noble Lord said that the use of dental X-rays is in fact essential to the process of age determination, which means that it will be used whatever the experts tell them. I deny that dental X-rays are necessary. Has the Minister read the report by Dr Heaven Crawley, to which I referred him when we discussed this in Grand Committee? I take it from the expression on his face that he has not read the report, which is an extremely thorough analysis not only of the use of X-rays but of other methods of age determination that have been found to be fully effective, particularly those developed by the London boroughs of Merton and Croydon, which have been approved in our courts of law as being fully effective. The noble Lord is absolutely wrong to say that the denial of the use of dental X-rays is going to inhibit or damage in any way the process of immigration control. I shall return to this subject again as frequently as I can, and I would press the amendment to a Division this evening were it not so late in the afternoon. It is the most disappointing reply that I have heard from the Minister in the whole course of these proceedings, and that is saying something. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord JuddLabour
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- moved Amendment No. 28:
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- Lord AveburyLiberal Democrat
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- My Lords, the noble Lord, Lord Judd, explained in some detail what happened following the publication of APU Notice 3/2007, which amends discretionary leave for unaccompanied asylum-seeking children. The child who, in the opinion of the officer, does not qualify for refugee status or humanitarian protection will normally be given discretionary leave for 12 months or to the age of 17½, whichever is the lesser. As the noble Lord explained, the effect is that the child has to submit an application for an extension of leave when he approaches the age of 17½ and, when that is refused, the substantive application for asylum is heard. That may happen months or even years after the original application, when, as the noble Lord also explained, memories of the events that gave rise to the asylum application will have faded and forensic evidence will be that much more difficult to collect. The effect of the child failing to lodge an application within the milestone of 17½ years of age would be that he would have no right of appeal at all. Although case owners are urged to see that legal representatives advise children to make an application—they will not get paid extra for that additional work—there may well be instances where, as the noble Lord said, the lawyers lose touch with the clients through the lapse of time. The general answer to maintaining better contact between UASC and their representatives may be found in the consultation document, Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children, which we talked about when debating the previous amendment. Under the system proposed there, some 40 to 50 specialist authorities in four regions outside London and the south-east would have responsibility for all UASC, with about 100 in each of the specialist authority areas. The authorities concerned would then be able to build up their services to cope with an even flow of UASC. As I said, contact would be better maintained and the expenditure of the local authorities in question could be planned over the medium term. Of course, the local authorities would have to be properly reimbursed for the costs that they would incur in setting up the system, and it would be useful to hear something about the discussions with the LGA on that subject. The power to apply residence conditions in Clause 16 would have to be used for this purpose, and I ask the Minister whether it is intended to direct the existing UASC into the areas of the specialist authorities or only to use the power with new arrivals once the arrangements are in place. It would be a far bigger job if the 6,000 UASC, the majority of whom are in London and the south-east, had to be moved to new homes in the specialist authority areas, if that is the intention. When it comes to the provision of legal services, the arguments are not quite so clear. In huge areas of the north, there are no specialist legal aid services available for asylum seekers, let alone for UASC, and the withdrawal of Browells, for example, means that there is a legal aid desert in the Newcastle area. So the market model is not likely to work, because providers who would offer services under legal aid will not spend huge sums of money training experts and attracting them into the areas of the proposed specialist authorities without a firm presumption of getting a contract. On the other hand, it would be irresponsible of the BIA to award a contract to a provider with no previous experience of this work. The Refugee Legal Centre and the IAS could no doubt fill the gap in theory, but even they would have to be advanced funded to get lawyers with the necessary expertise to migrate to Newcastle and other centres where there is no capacity at present. No doubt, one of the reasons why some two-thirds of UASC are in London and the south-east now is precisely because those are the only regions where they can get the best advice.
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- Lord Bassam of BrightonLabour
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- My Lords, an asylum claimant whose claim for refugee status is refused, but who is none the less granted more than 12 months of leave to enter or to remain in the United Kingdom, can appeal to the Asylum and Immigration Tribunal against the rejection of his claim for asylum. Where someone’s asylum claim is refused and they are granted 12 months or less leave to enter or remain, they may not immediately appeal, although of course they would have the opportunity to appeal against any subsequent decision to remove them from the United Kingdom. Strong policy reasons still exist for the 12-month restriction which this amendment seeks to remove. We recognise that noble Lords propose this amendment so that unaccompanied asylum-seeking children may obtain finality and clarity to their immigration status as early as possible. We do not believe that this amendment achieves that aim. Instead it would cause disarray in the appeals system and bring little or no benefit to the young people it seeks to assist. The underlying principle for why we must resist this amendment is straightforward. The purpose of requiring more than a year of leave to be granted before appeal rights may be exercised is to ensure the smooth operation of the appeals system should there be a mass influx of people who are not entitled to protection under the refugee convention and need to stay for only a short period of time. For example, in 1999 there was an influx of claimants from the Balkans, thousands of whom subsequently returned there once the situation in their countries improved. The appellate system cannot cope with such a sudden surge in the numbers of appeals in the system. Nor would it be economical for us to provide an appeal for thousands of short-stayers of this type. The legislation as it is framed protects the tribunal from such situations and we believe that it should continue to do so. Where someone is granted a period of leave of 12 months or less because of a temporary problem in their country of origin or some other short-term factor, we expect that person to return to their home country after a period of short stability in the United Kingdom and without the need for an enforced removal. Should we need to enforce removal, there is an immediate right of appeal against that decision. Whenever someone has an asylum or human rights claim, a decision to remove always attracts a right of appeal. Young people are not deprived of that right. Where 12 months or less of leave is granted, the opportunity to appeal is deferred until a further immigration decision is taken at the end of that period of leave. The effect of this is to delay the right to appeal by a maximum of 12 months and an average of just six months. We estimate that approximately 750 young people are affected by this each year. For all the turbulence in the appeal system that this amendment could cause, it aims to bring forward only the appeals of a relatively small number by a relatively short time. Apart from damaging the appeals system, this amendment fails to achieve its aim of bringing an early answer to the question of young people's immigration status. I remind noble Lords that 80 per cent of asylum appeals are dismissed. Where young people's appeals are dismissed but they remain in the UK with discretionary leave, their status is not necessarily finalised. Only when that discretionary leave expires at the age of 17½ can the final decision and appeal process fully consider whether human-rights reasons exist as to why removal from the United Kingdom is inappropriate. I hope that I have been able to offer some reassurance to noble Lords. Our policy of granting leave only until age 17½ to those unaccompanied asylum-seeking children to whom we have refused asylum, but who cannot return, is designed to create a system where young people are clear about their future status in the United Kingdom by age 18. We acknowledge that it is not perfect and, of course, will work to improve the system through policy changes. The noble Lord, Lord Judd, asked about legal aid, and whether it was harder to acquire for adults. The merits test is designed to be based on more factors than just age. Appeals may of course have a good chance of success irrespective of age. I hope that, having heard what I have to say, he will feel able to withdraw his amendment.
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- Lord JuddLabour
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- My Lords, I thank my noble friend for his reply, and the noble Lord, Lord Avebury, for his important contribution. It is unfortunate. We all talk about the importance of consultation. Here we have a consortium made up of responsible, dedicated, hard-working voluntary organisations working with the people to whom the amendment refers. They come to us with a plea about the denial of the fulfilment of children’s rights in their direct experience, ask us to do something about it and we let them down. This is very sad. It denies the spirit of consultation, which must mean a readiness to respond to what those with insight have to say. I have made my second point repeatedly; I said that I would go on making it ad nauseam and I will. We live in a world which is volatile in security terms. The last thing we should be doing is giving people in their formative years a frustrating experience which leads to a sense of grievance, their potential alienation and worse. Are we serious about winning hearts and minds or not? If we are, it is in the details that we will win them—not by exhortation and general principles, but by being seen to be committed to the needs of those who are faced with difficulties, in keeping with the values we espouse. I feel profoundly disappointed that we cannot budge on this, but nevertheless beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 24 [Seizure of cash]: [Amendment No. 29 not moved.] Clause 31 [People trafficking]:
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- Lord JuddLabour
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- moved Amendment No. 30:
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- Baroness HanhamConservative
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- My Lords, my noble friend Lady Anelay tabled a similar amendment in Committee, so I support what the noble Lord, Lord Judd, has put forward. One of the real obscenities in today’s world is the trafficking of women, and the fact that they are very apparently being trafficked into our country makes it no less an obscenity. It is also clear that we must have different ideas about what happens to people who are trafficked. A chief constable recently appealed for help, one of the reasons being that she had such a problem in her area from women who had been trafficked and who were to all intents and purposes imprisoned by those who had trafficked them. The problem is horrendous, so we need to consider the amendment most carefully. I hope to hear from the Minister the Government’s proposals for dealing with this unusual situation in terms of immigration. These are people who do not necessarily want to be immigrants, but who are attracted to come here under entirely false pretences. The whole practice is built on dishonesty in all respects and we must try and find another answer to it. I support the amendment.
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- The Lord Bishop of WinchesterBishops
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- My Lords, I, too, support the amendment. First, I pass on the apologies of my friend the right reverend Prelate the Bishop of Ripon and Leeds, who has had to set off back to Yorkshire but who would have liked to be here for this amendment. We have seen this situation in Southampton in recent months. I understand that increasing evidence shows that it is difficult for some of those trafficked—in particular women, either into prostitution or into the kind of domestic service that lays them open to physical ill treatment and probably rape—to return to their own countries. That may be because they fear the same gangsters who brought them into this country or because they have been forced into prostitution and subjected to rape. Significant numbers of people are here, helpless because they have been trafficked into this country and their position is increasingly akin to that of asylum seekers. They are certainly not economic migrants because they have not come under their own steam. It is a really serious matter. In the past 18 months, we in Winchester have celebrated the centenary of the death of Josephine Butler, that remarkable campaigner in these matters during the last 30 years of the 19th century. She spent quite a bit of the 1880s and 1890s resident in the Close in Winchester because her husband was a canon. We have been reminded that there is a long tradition in this country of our failure to look with the greatest care at the victims of prostitution and similar hardships. There is a good book about her called Beating the Traffic, which links her own history through the years to the present realities and to the activities of CHASTE and a number of other organisations. It is most important that this serious and still developing problem—women in particular, but also children and men, who are trafficked for use in agriculture—is taken seriously in this way.
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- Lord AveburyLiberal Democrat
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- My Lords, the noble Lord, Lord Judd, will recall that at the end of June a debate on this subject was initiated by the noble Lord, Lord Sheikh, and there was another debate on it in Grand Committee a month later. We also talked about trafficking on Tuesday, so there is no lack of attention from Parliament to the massive problem of human trafficking. As I said last Tuesday, the consensus seems to be that the national action plan on tackling human trafficking maps out the right strategy and that although there has been some criticism of the delay in signing up to the Council of Europe convention—we heard it again today from the noble Lord, Lord Judd—we signed it on the day that the UK Human Trafficking Centre was established. As the Minister said in his response to the debate initiated by the noble Lord, Lord Sheikh, we are now working on the action plan to enable us to ratify the convention at the earliest possible date. In that debate, I suggested that the Government should report periodically to Parliament on progress on the implementation of the action plan, particularly on the ratification of the convention, but that was one of the points that the Minister did not have time to cover in his response. He promised to write to those who took part, but we still have to hear from him on that. This debate is not a substitute for my proposal because it would be far more useful if, in the normal course of parliamentary business, we had written reports in advance so that we could take advice from the agencies on what the Government said in their progress report before we came to debate it on the Floor of the House. In the June debate, the Minister made a useful comment on the international dimensions of trafficking. He outlined various measures being taken by the FCO and DfID with a view to reducing trafficking at source, and he particularly mentioned the work of the UKHTC in complementing the activities of the Serious Organised Crime Agency. It will be better if we can fight trafficking in the countries of origin rather than waiting until the victims arrive here to land up in brothels or as domestic slaves. But since the money to be made out of human trafficking is commonly agreed to be vast, there have to be protective measures for the victims who are rescued here as well. According to unpublished Home Office research mentioned by the JCHR, there may have been 4,000 victims of trafficking for prostitution in 2003—I wonder if that research is going to be published. Being able to give even a rough number would seem to imply that the police know where the brothels are, and I wonder if the police consider that they have adequate powers to close them down and give foreign involuntary prostitutes the chance of freedom. If there is a more vigorous approach to the problem, it could well be that the 25 safe house places offered by the Poppy Project would all be needed and the extra capacity it is now being funded to provide would soon be filled. One of the ingredients necessary to ratification of the convention is that we offer sufficient accommodation in safe houses and accompanying support to deal with the victim population. The JCHR reported that since the Poppy Project is centred in London and operates on what they described as tightly focused criteria, the scale of the problem is not reflected in the number of its clients. The expansion of the Poppy Project and the agreement with NASS, mentioned in the Government’s response to the JCHR report, may have solved the problem of accommodation, but not of the specialist support services which they agreed were necessary. Presumably there would have to be regional centres of support and accommodation for trafficked women before we could ratify the convention, and with the advice of the UKHTC, I hope the Government are now able to make a full assessment of the need.
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- Lord Bassam of BrightonLabour
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- My Lords, despite my resistance to this amendment, which will become clear, I sincerely welcome the debate as a helpful opportunity to outline the Government's approach on the issue of trafficking. I think it usefully supplements early debates we have had on the issue and the debate that was initiated by the noble Lord, Lord Sheikh. As noble Lords have expressed clearly, human trafficking is an appalling and obscene crime which causes terrible trauma to its victims and can have a lasting impact on them. That is why, as well as using this Bill to strengthen existing trafficking offences, the Government are paying scrupulous attention to their responsibilities regarding victims of trafficking. The Government are committed to help identify victims of this awful crime and the publishing of the UK action plan and the signing of the European convention on action against trafficking by the Home Secretary on 23 March demonstrate our continued commitment. This is further reinforced by the establishment of a dedicated project team to lead implementation of the convention and by a continuing police-led multi-agency operation—Pentameter 2. This operation focuses on rescuing victims of sex trafficking and identifying, disrupting, arresting and bringing to justice those involved in this criminal activity. It will also enable us to gather intelligence on other forms of trafficking and will provide an opportunity to pilot some elements of the convention, including a process of victim identification. These are significant steps towards our goal of making the UK a hostile place for traffickers. In order to aid practitioners and raise awareness of trafficking, the Home Office has developed an online toolkit. Training on identifying and handling potential victims has been provided throughout the regional enforcement offices. We have also provided staff with guidance to identify victims of trafficking at the earliest stage. The UK Human Trafficking Centre has been running awareness-raising sessions for front-line staff and a Border and Immigration Agency trafficking network has been established to help co-ordinate activity in this area. Specialist training has been provided by the Border and Immigration Agency for around 600 operational members of staff nationwide to support the identification of children in need. That is a significant number of officers working in that field. In reaching a decision to pursue repatriation of an individual, consideration is given to our obligations under the immigration laws and the Human Rights Act, including any risk that they might face on return or other reasons why they should be allowed to remain in the United Kingdom. The Government recognise that there will be individuals who have suffered exploitation at the hands of their traffickers and that they need time to recover and reflect on their personal circumstances. That is why during Pentameter 2 we are piloting a reflection and recovery period of a minimum of 30 days for those who are identified as victims of trafficking. This is essentially piloting aspects of Articles 10 and 13 of the Council of Europe convention, which is recognised and generally reflected in subsections (5) and (6) which noble Lords have already covered in discussion. Where appropriate to do so, permission to remain in the UK may be granted on either a limited or indefinite basis. As I am sure noble Lords appreciate, each case has to be assessed on its merits and repatriation will only be considered where it is considered safe and, more importantly, appropriate to do so. In relation to proposed subsections (6) and (7), we have always said that we are wholly sympathetic to the objectives behind the Council of Europe convention. The convention will build on our strategy to combat human trafficking by providing minimum standards of protection and victim support. With the UK Human Trafficking Centre we are establishing a lead in Europe in training police in best detection techniques. UNICEF has already praised our efforts in this regard. The centre will become a central point for the development of police expertise and operational cooperation. I can say to the House that good progress has also been made on the implementation of the UK action plan against trafficking. A plan to implement the Council of Europe convention has been submitted to the inter-ministerial group on trafficking. A scoping report on the extent of child trafficking was published by the Child Exploitation and Online Protection Centre on 11 June. The FCO has disseminated information to posts on recent UK convictions for trafficking for use in local media. Entry clearance officers in source and transit countries have been trained in trafficking awareness. Other work on the action plan is, of course, continuing. Despite that progress, it will still take some time before we move from signature of the convention to ratification. Before ratification, we as a Government are committed to implementing it fully and in accordance with its ongoing strategy on trafficking. Some of the other signatories to the convention have legal systems that allow or require ratification before implementation. Ours does not. We operate in a different way. The need for wide consultation and limited secondary and primary legislation, including in the devolved Administrations, means that ratification will take time—longer than we would ideally like—but that does not prevent implementation of parts of the convention, nor does it disturb our determination to tackle this issue and deliver on our wider trafficking strategy. We want to ratify as soon as possible, but we are determined to ensure that we get the arrangements right before doing so. The Government largely share my noble friend’s intentions, but not the timing of the provision. It would be premature to accept the amendment. My noble friend Lord Judd asked what has happened to the action plan over the summer. Plans on both the implementation of the convention and the action plan are submitted on a regular basis to the interdepartmental ministerial group. Noble Lords will be aware that there has been some publicity surrounding progress. The next meeting of that group is due in November. The noble Lord, Lord Avebury, suggested that the immigration Minister should report back to Parliament on the progress of the action plan and the implementation of the convention. The Government are committed to sharing progress on the action plan and the convention, as I said, by giving regular reports back from the inter-departmental ministerial group. We will give active consideration to other reporting mechanisms that we can find that will enable us to ensure that the issue is kept at the forefront of public consideration.
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- Lord JuddLabour
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- My Lords, I am sure that my noble friend will agree that I am not being mischievous in suggesting that what he said at the end of his remarks is almost a rerun of what he said in July. It distresses me that as this problem accumulates, with people suffering in the midst of it, we cannot gear ourselves up to more effective and urgent action. We will not get that until there is a target date for ratification, which would bring discipline to those officials involved in the inter-departmental discussions to make the plans and conclude them. I therefore urge my noble friend to persuade his colleagues to bring forward a target date as soon as possible. I have listened to my noble friend's reply. He will know that I am not elated by it. I shall think about it very carefully but, at this stage, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 33 [Exceptions]:
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- Lord JuddLabour
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- moved Amendment No. 31:
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- Lord AveburyLiberal Democrat
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- My Lords, this amendment deals with persons who have been sentenced to at least 12 months or convicted of one of the crimes listed as particularly serious under the 2002 Act who are to be automatically deported. An exception is that if the offender is under the age of 18 at the time of conviction, the automaticity does not apply, although of course he can still be deported under other provisions. The noble Lord argues, as he did in Grand Committee, that the exception should be triggered by the date of the offence and not the date of the conviction, and we agree. The only argument against the amendment is that it is sometimes difficult to say precisely when the offence was committed, and that a person may be convicted on charges that deal with acts committed over a whole range of dates. My suggestion, which I repeated in Grand Committee when it appeared that the Minister was not going to respond to it, was that if the conviction related to acts done between dates X and Y, the problem could be solved by relating the exception to date Y. On the second occasion, the Minister agreed to give that proposal some thought, but I regret to say that in his letter of 26 July dealing with matters raised during the fifth sitting in Grand Committee, he did not mention it. I hope that he has a note about it this evening and will give me an answer when he comes to reply to this debate. I have to assume, in the absence of any comment so far, that there are no valid arguments against my suggestion.
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- Lord Bassam of BrightonLabour
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- My Lords, exception 2 in Clause 33(3) means that foreign criminals aged under 18 when convicted will be exempt from automatic deportation. Amendment No. 31 would alter this exception to mean that those aged under 18 at the time of the offence would be exempt. This is not the first time the amendment has been tabled. It has been debated at length both in this House and in another place. In those debates both my honourable friend the Minister of State for Borders and Immigration and I have put forward the Government’s case for resisting the amendment. We explained that the provisions have been designed to ensure that it is as clear as possible whether they apply to foreign nationals. They achieve this as drafted because it will always be clear on which date a person has been convicted. It will, however, not always be clear when the offence took place, such as in sexual abuse cases or crimes that have taken place over an extended period, such as drug dealing. In the debate in Grand Committee on 23 July, the noble Lord, Lord Avebury, suggested an alternative approach. This was that in cases where it is unclear when an offence has taken place, the latest possible date should be the relevant one for deciding whether the exception should apply. As he said, I agreed to look at this suggestion more closely over the Summer Recess. Having done so, I agree that in practice this suggestion would not reduce the certainty around whether a foreign criminal qualifies for automatic deportation. However, I am not convinced that it would be the right approach to take in this instance. The primary purpose of these provisions is to protect the public from harm. To do that they must be robust enough to send out a message that criminal behaviour is simply not acceptable. Given the prevalence of youth and gang-related crime in our communities, I do not feel it would be appropriate to exclude from these provisions youths who turn 18 between the commission of an offence and their trial. The noble Lord will be aware that there is no lower age limit for deportation under the Secretary of State’s powers in the existing legal framework in the Immigration Act 1971, although this limit is 17 years for court recommendations. However, in recognition of the potential vulnerability of children and young people, we do not as a matter of policy deport individuals under the age of 16 in their own right. Individuals between the ages of 16 and 18 will be deported only where there are adequate reception arrangements in place in the country of origin. So young people will be no worse off under the new provisions than they are now. Under the current system, a young person who turns 18 between offence and conviction will be considered for deportation if they meet the threshold. If they are still under 18 at the point where deportation is in prospect, consideration will be given to the adequacy of reception arrangements. Under the proposed cut-off point in this clause, the individual will be an adult by the time deportation is in prospect. The intention behind the noble Lord’s amendment is clearly to ensure that someone is not punished as an adult for something he did as a child. It is the job of the criminal courts to make any appropriate allowances for age when passing sentence. Deportation is an immigration consequence of criminality and does not reflect the punitive or rehabilitative elements of a criminal sentence. I accept that the immigration consequence may nevertheless be serious, which is why we have put in place appropriate safeguards. My noble friend Lord Judd stated that possession of cannabis is on the Section 72 list of offences—that is, if a person is imprisoned for possessing cannabis, automatic deportation will apply. That is not the case. Possession of class C drugs is not included on the Section 72 list. My noble friend also made a point about the provisions on automatic deportation being inconsistent with the UN Convention on the Rights of the Child. The provisions of the convention, which he has referred to, concern children in the criminal justice system. The automatic deportation provisions concern the maintenance of immigration control, particularly the public interest in deporting those who commit criminal offences. We are satisfied that the provisions are consistent with UNCRC. For those reasons and those set out in our response, this amendment does not find favour with us.
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- Lord JuddLabour
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- My Lords, I have listened to my noble friend’s reply. I am sorry that on my penultimate intervention on this Bill we are going to part company with a profound difference. I cannot fault my noble friend on his candour. He said in the course of his remarks, unless I misunderstood him, that the primary purpose of the Bill was to protect the public. That is the kernel of the matter. I take second place to no one in my feeling of responsibility for supporting the Government in protecting the public, but we also have a supreme commitment to the well-being of children and to each individual child. If we are concerned with children we are concerned with their rehabilitation, whoever they are, wherever they come from. As I said earlier, in the highly volatile, disturbing time in which we live, the last thing we want is unnecessarily frustrated young people. We want young people who have some chance of becoming positive citizens in the international community, not only in our own. Again, it is in the detail that things can accumulate and build up into grave problems. I have heard what my noble friend has said. It disappoints me. At this stage I shall withdraw the amendment, knowing that I will not be the only one who is disappointed and who reads the Minister’s comments with some concern. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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Baroness Royall of BlaisdonLabour- Quote
- My Lords, I beg to move that further consideration on Report be now adjourned. Move accordingly, and, on Question, Motion agreed to. House adjourned at 6.43 pm.
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