Wednesday, 18 July 2007.
The Committee met at fifteen minutes to four.
[The Deputy Chairman of Committees (Viscount Simon) in the Chair.]
UK Borders Bill
If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
34: After Clause 17, insert the following new Clause—
“Withdrawal of support: repeal
Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (failed asylum seekers: withdrawal of support) is repealed.”
The noble Lord said: This amendment, like the two amendments we considered at the end of the third day’s proceedings, concerns the despicable policy of trying to force asylum seekers to return to their countries of origin by making them destitute. It approaches the question simply and straightforwardly by repealing the infamous Clause 9 in accordance with existing statutory powers.
The director of the BIA case resolution directorate acknowledged in a witness statement to the High Court at the end of May that there were still 400,000 to 450,000 incomplete asylum cases on the books—the same number that the Home Secretary gave in July 2006. She said that these were cases where an asylum claim had been made but the case record had not been concluded, due to errors in recording information or because there were outstanding actions that still needed to be taken. Some of the 400,000 files relate to persons who have left the country voluntarily or who were citizens of countries that subsequently became members of the European Union. However, a significant number in the backlog—the National Audit Office’s estimate was 283,000 between 1994 and 2004, an estimate which the Home Secretary has appeared to accept—were applicants who had exhausted all their appeal rights yet remained in the UK. The case resolution directorate has the job of examining every one of the 400,000 files, deleting the duplicates, updating the remainder and giving top priority to removing those who prove to have criminal records. Your Lordships may be surprised to know that at the beginning of May this work still had to be undertaken, 10 months after it was acknowledged by the Home Secretary.
In the context of this amendment, it is the people who have not committed any offence who are of prime concern. These people are to be contacted and asked to provide current reasons for seeking to remain in the UK, and in the light of that information consideration will be given to granting leave, if appropriate, or to effecting removal. The implication is that although no general amnesty is contemplated, some people will be eligible for discretionary leave, which applies when a person’s ECHR rights would be breached or, in the case of a child, where inadequate arrangements exist for the child’s care and protection in the country of origin. There were also some 30,000 cases of applications made before 31 December 1995 where special conditions were applied in accordance with the 1998 White Paper Faster, Firmer and Fairer.
We need a progress report from the Government on how the case resolution directorate is tackling this enormous backlog of files and, in particular, whether they have a better idea of how many they think will be left on the books when the sifting of the files and the removal of the criminals has been completed. It is this total, which includes the families, to which the infamous Section 9 could be applied and which the Government want to keep as a sword of Damocles hanging over their heads. We objected to it at the time. At Report stage of the Immigration, Asylum and Nationality Bill, in February 2006, we persuaded your Lordships that the Secretary of State should have power to repeal it by order. To summarise very briefly, we said that Section 9 breached the UN Convention on the Rights of the Child; that the pilots had already caused enormous distress and terrible destitution; that a number of families had vanished under threat of being separated from their children; and that it was an inhumane way to coerce vulnerable families.
There are countries to which families are not normally returned and this at the very least should be acknowledged by the law. If Section 9 is retained as a power of last resort, it ought not to be capable of being used against those families. The list would have to include: Zimbabwe, to which no one is being returned pending a decision of the courts; Somalia but not Somaliland; Iraq, with the exception of the Kurdish region; Afghanistan, the DRC and Darfur. It would be manifestly unreasonable to dump families in war zones and I hope that the Government will agree at least with that.
The Government have spent a lot of money in the courts upholding their right to return Zimbabweans to a country which they acknowledge is a ruthless and brutal dictatorship which—according to the UN—in Operation Murambatsvina made 700,000 people homeless and affected another 2.4 million people countrywide. It seems to me that, with the endgame rapidly approaching for Mugabe's rule, we should grant all irregular Zimbabwean migrants now living here one year's leave to remain with permission to work. That would send a signal to Africa that we consider Zimbabwe to be a uniquely dreadful place for anyone to live whether they are directly persecuted by the ZANU-PF dictatorship or deprived of all means of living a normal life by the catastrophic mismanagement of the country. One-third of the population has fled into neighbouring countries. Last week, the noble Baroness, Lady Royall of Blaisdon, said that a further 2 million people were expected to flee in the not-too-distant future. It is unthinkable that, as long as Mugabe lasts, anyone, let alone families, should be forced back to the hopelessness and starvation that he has created. On the contrary, they should be allowed to work here, contributing to the economy and developing the skills that Zimbabwe will need when it is liberated.
When the noble Baroness, Lady Ashton of Upholland, accepted our amendment allowing the repeal of Section 9, she said that the pilots were being evaluated together with the exploration of other options that could encourage failed asylum seekers to leave the UK. Assisted voluntary returns are already having some effect and the better management of asylum applications is expected to deliver faster outcomes, resulting in improved chances of a speedy removal. After a delay of nearly 18 months, during which the Home Office sat on the results, the BIA’s report on the pilots was finally published in June 2007, with an update to that month. It confirmed that,
“a significant number of the families may have absconded … because of concerns about the section 9 process”—
at least 32 according to the Refugee Council and Refugee Action in their joint report, Inhumane and Ineffective.
Local authorities said that they had difficulties reconciling conflicting principles of child welfare in Section 9. That point was reinforced in a letter I received from the chairman of the LGA Asylum and Refugee Task Group, dated 2 July, in which he said the following:
“We have consistently highlighted this apparent contradiction between the implementation of immigration legislation and the accepted principles of childcare legislation. This is particularly evident in Section 9 of the Asylum and Immigration (Treatment Of Claimants etc) Act 2004. The Task Group recognises the need to remove failed asylum seekers and their families but is keen to ensure that the removal process is an effective and human one but … there were a number of issues that the implementation of Section 9 created that proved extremely difficult for local authorities in pilot areas to overcome”.
The report on the pilots finds that Section 9,
“did not significantly influence behaviour in favour of cooperating with removal”,
but it fails to point out that only one family—I stress only one—out of 116 in the cohort to which Section 9 was applied, was actually removed by the end of the study, with nine families leaving voluntarily under the scheme run by the IOM. In the control group, of the same number of families, nine were removed and two left voluntarily. After two years’ work which, according to the chairman of the LGA task group,
“placed significant demands upon local authority resources”,
one more family out of the control group left the country than in the cohort. Yet instead of admitting that the exercise was a dismal failure, both inhuman and ineffective, the BIA wants to keep Section 9 on the books for use against targeted families who are not co-operating in their removal. How it imagines that it is going to coerce individual families to co-operate when it has been able compulsorily to remove only one family out of 116 over a period of two years passes my comprehension.
The JCHR has added its voice to the long list of voluntary agencies that have called for Section 9 to be repealed. In the reply to their report published last Thursday, the Government said that they were still conducting the Section 9 review. Can the Minister explain how that has happened? The Government said that it would be premature to repeal Section 9 before the completion of the review, implying—as they have all along—that if the review showed that coercion was a total failure they would strike it out. Never in the dozens of debates and questions in both Houses has it been suggested that, even if the pilots were a disaster, social and financial coercion might be kept for use against particularly recalcitrant families. I can hardly think of a more hateful and controversial idea, and one which reinforces my view that noble Lords should not have agreed to take this Bill in Grand Committee. If we cannot get rid of Section 9 altogether now with the consent of the Minister, we will certainly have to put it to the House on Report.
On support for asylum seekers generally, we are particularly concerned about the burdens which have been arbitrarily laid on particular local authorities. In their carefully argued response to the consultation paper on UASC, the LGA, its Scottish and Welsh counterparts and the directors of social services, through the UASC reform steering group, warn that the present crude grants regime needs to be reformed to take account of the changes in care needs at the age of 16, for instance. Clearly local authorities are not going to volunteer to become specialist authorities as envisaged in the consultation document unless they are assured of full cost recovery and that asylum support will be funded separately from the general grant settlement. There is also a particular issue with the funding arrangements to cover the provision of services to UASC post-18, where the spend for 2006-07 is estimated to have been £50 million while the government grant was only £12.3 million. It would be sensible for the Government to err on the side of generosity, making the grant offer to ensure that candidate specialist authorities can enter into detailed discussions with the Government without fearing that council tax payers in their area will be required to subsidise the scheme or cut existing services to pay for it. If they pay slightly more than the cost, this may well assist the local authorities when selling the idea to their residents. I beg to move.
I support my noble friend Lord Avebury’s amendment. I suggest that it is time that the Government weighed this up in the most serious way possible. Under the previous Prime Minister we saw policies seemingly driven by tabloid pressure—if the Murdoch press said this or Fox News said that, then the Government seemed to go that way. With a new Prime Minister we may get a more open approach on these matters.
Let us dispel some of these media myths. People who come here—asylum seekers or not—often suffer extreme poverty. The Penrose report of 2002 said that 85 per cent of asylum seekers regularly experience hunger, 95 per cent are unable to buy clothes or shoes and 80 per cent are unable to maintain their health. It estimated that 2,100 refugee children are out of school in London alone. These people are already in a desperate situation. Some will say, “People come here only to take advantage of our benefits system”. I spoke to a former commissioner who was well versed in European Union politics. He told me that, in his time, 363,000 people came from eastern Europe to the UK and only 16 claimed benefits. That destroys for ever the myth that people come here just to take unfair advantage of our system. If that impression is put forward by the media, some people will always go with it.
The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 applies to people already in a desperate situation. The Minister at the time, Beverley Hughes, in evidence to the House of Commons Home Affairs Select Committee, said:
“The proposals are not intended to make all families destitute”.
I do not know whether there was a reason to say, “all families destitute”. Perhaps it was just a slip of the tongue. She continued:
“They are intended both as a deterrent but also an incentive ... I want to … persuade as many families as possible … to go back in a dignified way, with support, on a voluntary basis”.
Possibly, that was the intention.
The category of “failed asylum seeker with family” came into being and immediately those people lost entitlement to financial or material support. This was in contravention of the Children Act 1989, the Human Rights Act 1998, the UN Convention on the Rights of the Child 1991, the European Convention on Human Rights 1991 and the 1954 United Nations convention on the rights of refugees. The Joint Committee on Human Rights also was deeply concerned. There was total contravention of all these Acts and conventions to which we have signed up.
I thought that there was a wee bit of light on 25 June 2007 when the noble and learned Baroness, Lady Scotland of Asthal, speaking on Section 9, said:
“In the form piloted, Section 9 did not significantly influence behaviour in favour of co-operating with removal, although there was some increase in the number of applications made for travel documents. This suggests that the Section 9 provision should not be seen as a universal tool to encourage departure in every case; therefore, we do not propose that it should be used on an indiscriminate basis by Border and Immigration Agency case-owners in the future”.—[Official Report, 25/6/07; col. WS 50.]
That is an admission of failure. There is a desire to keep Section 9 on the statute book just in case there is a family somewhere who can be sent from these shores in any other way. As my noble friend Lord Avebury mentioned, there was only one case in which the provision was effective. There are three trial areas—West Yorkshire, Manchester and parts of east London—but there has been only one such case. Surely with such a record of failure, this provision is not only irrelevant but clutters up our legislation. It should be wiped out of the Asylum and Immigration (Treatment of Claimants, etc.) Act once and for all.
Let us put ourselves in the shoes of these asylum seekers—and that includes little children. I have a grandson who is two years old today. These children are just like our children. They need to be loved, cared for and supported. They need to be given hope and potential. Yet we are depriving them of that. It is a blot in the copybook of our nation. We are supposed to have a record of compassion and care. That is an aberration and it destroys our image. We are ready to cause terror and harm to totally innocent people. At the time of the invasion of Iraq, some of us wore t-shirts saying, “Not in my name”. To think that my name, and our name, is associated with causing harm to little children—it is our name, your name and my name! It is in the name of the Parliament of the United Kingdom. I have mentioned before that we gave wholehearted support to Make Poverty History. This is one thing that we can do today to make one aspect of poverty history in our country. I urge the Government, by the time this amendment is debated at a later stage, to say that they can see that this position is a blot which should be removed.
I offer my very strongest support to the amendment proposed by the noble Lords, Lord Avebury and Lord Roberts of Llandudno. There is very little that I can add, given the eloquent and passionate presentation of the amendment, but I feel so strongly about it that I have to speak. I was present when the noble Lord, Lord Avebury, and many others, sought to persuade the Government on a previous Bill of the ill-advisedness of this measure. I thought that they had been successful, and I am deeply disappointed to see the measure being brought back again. The noble Lord, Lord Avebury, pointed out the failure of the pilot of Section 9 of the Act and how that demonstrated how harmful the provision can be.
The Border and Immigration Agency’s intention to do more to ensure that families are made fully aware early, and throughout the process, that they will be unable to integrate and that steps will be taken to deport them if their asylum application is rejected, and the BIA’s strengthening of financial incentives—referred to by the noble Lord, Lord Avebury—in voluntary return packages, are welcome and well-advised measures. Families that fail in their application already experience the sanction of reduced benefit and denial of access to work. Pushing further than that only increases the risks of families vanishing, as they have done, or children possibly being taken into care. I am glad that Her Majesty’s Government have sought to increase the support for immigration officers, and I look forward to further information in due course from the Minister on how far that has progressed and on plans for future development. I welcome that.
The power to make a family destitute is a remarkable one to vest in any individual’s hands. I wish that the people making those decisions were superhuman; but I fear that they may be as fallible as any one of us. I recall that 20 per cent of initial decisions on cases are rejected on appeal. Those people make mistakes. I urge the Minister—
I hesitate to interrupt the noble Earl’s flow, but Section 9 does not apply during the early part of the process. It does not apply until we are well past the decision being made. I really do not want it to be felt that somehow we are treating families—children in particular—at all adversely, for most of the time; in fact for nearly all of the time, because the law does not allow us to do so. I urge noble colleagues to apply some precision to the debate.
That is the same judgment that fails in 20 per cent of cases. At the initial stage, a decision is made on whether to accept an asylum application. When those go forward to appeal, in 20 per cent of cases the people judging the appeal decide that the judgment of the case manager was wrong and that the person should not be removed. I understand that that is to be the position. I welcome the fact that the Government are seeking to support them better and are improving their recruitment in this area, but they are human beings, just as you and I are, and are deciding whether families should be made destitute. I therefore urge the Minister and the children’s champion at the Border and Immigration Agency to think again and to withhold this power for immigration officers. I strongly support the amendment.
Will the Minister say whether I am correct that Section 9 was applied only in three areas to a small sample of 116 families, or do case managers across the country even now have discretion to apply it to individual families? I await his reply with interest. Moreover, the size of the asylum backlog is nothing less than a national scandal. The fact that some people’s cases have been undecided for perhaps 10 or even more years must surely deny them their right to proper consideration under the UN convention on refugees.
It is good news that some of the families caught in the backlog may be eligible for some form of discretionary leave to remain. I think that the noble Lord, Lord Avebury, said that 30,000 cases go back to before December 1995. What is key for these people is the right to work here. I hope that that will be made possible for the greatest possible number of people, particularly for the non-returnable families who will have to stay here in some shape or form for an unknown period or indefinitely. Will the Minister confirm that benefits cannot by themselves be a magnet to attract people from other countries to the United Kingdom? It must by now be very widely known that the full rate of benefit is not paid; they are at a discount to British citizens.
In conclusion, I initiated a debate on destitution in your Lordships’ House on 14 December last year. I am sorry to say that the replies given then and subsequently have not been very satisfactory. Nor has it been possible to arrange a meeting between the leading voluntary organisations in this field and the relevant Ministers. I support the amendment.
I spoke in favour of the amendment in a sense when I spoke to the last group of amendments on a previous occasion. The noble Lord, Lord Avebury, knows that I support it, and the Joint Committee on Human Rights made it one of its very strong arguments. I have two points to make. The noble Lord, Lord Roberts, made a connection with international development. I would so like the Home Office and the Department for International Development to have some common cause in future. The noble Lord’s point is such a good one. This really is about joined-up government. I refer particularly to the UN High Commissioner for Refugees’ resettlement quota, which the Minister may remember I mentioned before. We are very behind other countries, and this is another very good example of development going hand in hand with asylum.
I have only one other point—to pick up a point that the Minister made toward the end of the last group of amendments. He made quite a lot of the advantages of Section 4 hard-case support. My figures, based on the statistics from the last quarter of 2006, show that 6,555 cases received Section 4 support, which is only 2 per cent of refused asylum seekers in the UK. So it is no great panacea to refer to that section. As we all know, most of the so-called refused asylum seekers—I really object to that term coming from a Government—will be supported by friends and members of their own community as well as mainstream charities.
I support my noble friend Lord Avebury’s brilliant analysis of the situation on Section 9. This is not the first time that he has spoken to the issue; we have taken up these issues in previous legislation. I start with the report of the Joint Committee on Human Rights, which, as early as March 2007, said:
“We believe that using both threats and the actuality of destitution and family separation is incompatible with the principles of common humanity and with international human rights law and has no place in a humane society. We recommend that section 9 be repealed at the earliest opportunity”.
That is precisely what my noble friend is saying. When the matter comes up on Report, he can bet that we will divide the House on the issue.
I was taken aback by the Minister’s challenge to the case made out by the noble Earl, Lord Listowel, who I think was right in his analysis and conclusion. If there is one noble Lord to whom I listen carefully on children’s issues, it is the noble Earl. I was delighted by the way in which he presented his case. The issue boils down to a simple fact. We go round the world producing reports on Africa and the third world and saying that we want to eliminate poverty and the factors leading to destitution, but here we are using destitution as a punishment. That is unacceptable and cannot be a value held by a civilised country, and that is what the amendment is saying.
The evaluation of the pilot scheme, so ably explained by my noble friend Lord Avebury, confirms our suspicion about what is going on. The scheme is ineffective and the Government have ruled out its full-scale implementation. But they do not stop there. We waited some time for the scheme. Now that it has been demonstrated that it does not work, they say that it will be left to the case worker to decide whether an individual is trying to avoid deportation and benefits should be withdrawn. One thing is clear: it is one thing to support destitution, although that should not be one of our values; but it is unacceptable to use it as a punishment. Deciding the matter on a case-by-case basis will result in many children falling within this network.
Asylum seekers include not only men and women but the many children who accompany them. By trying to punish the parents we will be punishing the children. Has the Minister consulted the Children’s Commissioner on the implications of the Government’s proposals? Is the Children’s Commissioner happy that we should punish children through the way the Government intend to use this legislation? It is very clear that the Government’s proposals are incompatible with the Children Act 1989. There is no getting away from that. The Children Act is very clear about the duty to promote the welfare of children. I very much hope that the Government will indicate whether consultation took place with the commissioner.
Further, the people who are to implement this policy objected to it. Social workers have objected to it, as have directors of social services, who ultimately have to bear the brunt of it. There is a very clear inherent conflict between Section 9 and children’s legislation.
I am grateful to the Refugee Children’s Consortium, which produced an excellent brief on this matter. If the Minister does not have it, I shall be delighted to send him a copy. I refer to one or two issues in that briefing. It makes an excellent suggestion as regards an alternative approach that the Government could take. It supports the development of an alternative approach to the return of families who have exhausted all appeal rights. It contends that putting in resources at the outset to engage families would result in more dignified and sustainable returns and that, through this, the Home Office’s aim of reducing long-term costs to the taxpayers would be met. That is a sensible suggestion. It further states that the new asylum model’s case ownership framework provides an opportunity to engage families and keep them informed throughout the process, leading to more effective and dignified returns models—models such as the work of the Hotham Mission asylum seekers project in Melbourne Australia. The briefing also refers to other interesting projects.
The Joseph Rowntree Trust recently held an inquiry which reached the clear conclusion that the pilot has caused widespread fear among the children of families who have been removed. This is likely to encourage families to distance themselves further from the Home Office and refugee agencies, and therefore to cause destitution among the children—the point that the noble Earl, Lord Listowel, has made again and again.
The RCC comprises people who are working hard with these children. It concludes that Section 9 has resulted in families being made destitute—as we know—that it places children’s welfare, health and development at risk; that it has the potential to separate children from their parents and family; and that it has resulted in uncertainty and confusion and will eventually inevitably lead to costly and time-consuming litigation paid for out of public funds.
I sum up with the conclusion of the report of the Joint Committee on Human Rights. It stated:
“We believe that using both threats and the actuality of destitution and family separation is incompatible with the principles of common humanity and with international human rights law and has no place in a humane society. We recommend that section 9 be repealed at the earliest opportunity”.
We shall do everything in our power to make sure that that happens.
I had not envisaged that we would spend quite so long on this amendment as we have. We went through much of this debate in Committee last week. The arguments that were made then and those made today have varied very little. That is not to say that the sincerity, passion and genuineness of the arguments put by noble Lords on the Liberal Democrat and Cross Benches are not as well meant as they always are because they are always coming from the right place. We simply take a different approach on some of these matters—although not as regards our humanity—and to how hard cases that occur from time to time in the asylum process should be dealt with.
Many arguments have been poured on us this afternoon as to why we should repeal Section 9, and I have heard most of them before. However, my mind has not shifted on this issue. I entirely understand the comments about the pilot and its success or otherwise. I confirm that it was conducted only in Leeds, London and Manchester, and that the numbers to which the noble Lord, Lord Hylton, referred are accurate. Obviously we have learnt a great deal from it.
Noble Lords seek to extend their arguments about the pilot trialling of Section 9 across the whole range of decisions on judgments on asylum seekers and the process at large. I shall not deal with those arguments because they are broader and do not have too much bearing on the amendment, and it would not serve the Committee well if I simply repeated them. However, I assure the Committee that we will not use Section 9 lightly or indiscriminately. We do not think that it would be suitable for blanket use, but it is important that we retain an ability to withdraw support from families who are wilfully not co-operating in the process of return. We should remember this simple fact: the point at which we might apply Section 9 is the very point at which the persons who are affected by it have exhausted pretty much every avenue open to them to advance their case to stay in the United Kingdom. We are talking about hard cases at the end of the process. We may criticise that process, but it is rigorous and has been very well worked out.
As I said, we are talking only about the hard cases where there is wilful non-co-operation. A judgment must be made by those who manage those cases. I also assure noble Lords that further guidance will be provided to case owners before Section 9 is used in any new case. It is also worth reminding your Lordships that Section 44 of the Immigration, Asylum and Nationality Act, as argued before in 2006, provides for the repeal of parts of Section 9 by order. If a future Government wish to exercise that option, they will be able to do so without recourse to further primary legislation. It is an important part of the process—a tool in the armoury, if you wish, although that analogy might not be the most attractive to all those involved in the debate. However, there may well be cases—I cannot say how many, although I do not think that it will be used in a blanket fashion—in which we must apply that section.
Noble Lords made other points that were more relevant to the amendment, and I will try to respond to some of them. The noble Lords, Lord Avebury and Lord Roberts, talked about returning people to Zimbabwe. We are closely monitoring the position in Zimbabwe, and a key case is going through a tribunal. I assure noble Lords that there are currently absolutely no forced removals. Asylum support generally is available from the beginning to the end of the process for those who would otherwise be destitute.
The noble Lord asked a question, which I respect him for asking, and which requires a precise response. We would have to consider each case on its merits, and there would have to be detailed consideration. It would depend on whether the family wanted to return voluntarily or was seeking to stay here for a long period. It would require case-by-case consideration and depend very much on the personal circumstances of the family. If the noble Lord’s point is that we would seek to use Section 9, it is extremely unlikely that we would use that section because we would be going against the other part of our policy, which is that currently there are no enforced removals to Zimbabwe.
Perhaps the noble Lord would permit me to say this: it is extremely unwise to exchange and trade cases across the Committee Floor when dealing with the principles of a provision. When we are considering broad principles, I am not going to be put in a position of making the judgment of Daniel on each individual case that someone brings up in Committee. That is not the right way to proceed. If the noble Lord has such a case, and wishes to draw it to my attention, I shall certainly be happy to process it by way of correspondence, but that does not necessarily take us further in looking at this Bill.
The point I was trying to elucidate earlier was a more general one. Zimbabwe is an illustration of it, but there are other countries to which we do not return people at the moment. We do not return anyone to Baghdad, although we send them back to Erbil in northern Iraq; and we do not return anyone to Somalia, but we return them to Somaliland. In all those cases, where there is a de facto policy of not returning people to their country of origin, will the noble Lord give a guarantee that Section 9 will not be applied to families from that group? Will the instructions that have been given to immigration officers cover that matter?
I am always reluctant to give absolute guarantees because there can always be other cases. I return to my earlier point that I do not think that would be right, and I think the Committee would be badly advised by me if I were to make that kind of commitment. It depends on the nature of the case; it depends on the individual circumstances; and it depends on whether there is a desire in the household to leave voluntarily. All of those matters may have an application. So I shall not make that absolute commitment, and I do not think that it would be right or proper to do so.
Perhaps I may help the Minister on this matter. A little while ago, he said that further guidance would be provided to social workers. In that case, is there to be a code of practice for social workers and, if so, would it be possible to have sight of that guidance or code of practice before Report stage, so that we are in a better position to decide what further course of action might be necessary?
Perhaps I can help the noble Lord. He has been very helpful in getting us back to more sensible territory. A code of guidance will be made available to case workers dealing with the matter. Yes, of course, the issues raised in the debate by noble Lords from the Liberal Democrat Benches and others are exactly those kinds of issues—we are dealing with hard cases at the extreme end—that will need to be considered by case workers. Yes, the code of practice is where we need to try to tease out some of those issues so that the right decisions are made.
Probably it will be as a matter of course that this will be in the guidance, but it would be interesting to know what consultations the case manager will be obliged to have before he can make the decision. Will he have to have a discussion with social services? Will he have to have a discussion with medical services? Will he have to have a word with his supervisor before he takes the decision? I imagine that will, as a matter of course, be in the guidance, but I look forward to hearing that.
Of course all those considerations have to apply. There will obviously be discussions with senior case workers or supervisors. There will have to be some discussions with those involved in the welfare of children, because that is proper and right. I have made the point before that many years ago I was involved in social work. I would have expected that sort of good practice to apply, and we want to ensure that good practice applies in all these cases.
I am most grateful to all those who have taken part in this debate which, the Minister will agree, has been entirely one-sided, because there have been seven speeches against the Government’s position and only the Minister’s for it. We have tried to help him. My noble friend Lord Dholakia made the excellent suggestion that we should know what is in the code of guidance, because at least it would limit the damage caused by the Government’s decision to apply Section 9 on a discretionary basis to individual cases. It is repugnant to me that a social worker should be put in the position of having to do that. Whatever the circumstances are, he is going to have virtually a power of life and death over a particular family, which may have been recalcitrant or may have been obstinate in resisting attempts by the Government to persuade it to go back voluntarily. They have always got the power of compulsory removal; nothing was said about that. Why should we exercise the power of making someone destitute when there are plenty of provisions in the statute book, throughout the immigration Acts, for removing people compulsorily?
The Minister did not respond to the noble Earl, Lord Sandwich, who said that only 6,500 so-called failed asylum seekers received emergency support, and that was 2 per cent of the total. Already, 98 per cent of people are being cut off at the end of the process, and anyone who has met these people will know how difficult it is for them. I was talking on Sunday to a failed asylum seeker who is a citizen of Nepal. He is going to depart voluntarily, and the Home Office knows that perfectly well. He has been in negotiation with the International Organisation for Migration with a view to helping him depart for Hong Kong, where he has a job offer. It is a matter of sorting out, first, the renewal of his Nepalese passport, which has expired since he has been here and, secondly, getting the visa on the passport, which has been promised him by the Hong Kong authorities. In the meanwhile, even though he has a wife and child, he is depending on a cousin’s support, and he is totally without means of his own. There is no support for him.
Are we going to say that every failed asylum seeker, as he is, is to be put in the position of depending on cousins or, even worse, of sleeping on the streets, such as in the case of Janipher Maseko, which I quoted earlier? The noble Lord may raise his eyebrows and look aggrieved, but the fact is that there are thousands of these people already.
I beg to differ. I accept that there are occasional hard cases. In the case that the noble Lord is drawing out for the attention of the Committee, it may well be that the individual could have applied for Section 4 support. I do not know, because I do not know precisely his circumstances. Section 9, on which we have had a tremendously long discussion, is really only there for very hard cases; for very few cases indeed.
Noble Lords are trying to create a picture of us applying this provision to thousands of people across the board. The provision itself would in future only be applied to cases already managed under the new asylum process. It is not there to be applied to the 450,000 cases that have been referenced at an earlier stage of this debate. Noble Lords should try to understand exactly how we intend to use these powers under the circumstances. Otherwise, one could develop a nightmare vision of how our system works that is quite a long way removed from the reality.
It does not matter whether it is one person or 10,000 who is made destitute. For the purposes of that family, it is a disaster. The Minister should not attempt to excuse the retention of this provision by saying that it will only apply to a small number of people.
Okay, let us be forensic and deliberate, and challenge the Minister to say—which he has not, in response to my earlier comment—why, if only a few tens of families will be covered by this provision, the Government cannot deal with them under the numerous provisions for deportation under the immigration Acts. That is a simple question.
It may well be the case that they are dealt with by other provisions. But I make the point that there will be hard cases—very few over time—where we will need to apply this provision. Nevertheless, the provision has value in those hard, exceptional cases when there has been wilful refusal to leave when the process of applying for asylum has reached its end point and people have decided to flaunt that decision.
Before the noble Lord, Lord Avebury, stands up, I want to clarify this. Can the Minister help me to understand this better? Is he saying that, in certain circumstances, it would be preferable to make a family destitute rather than take those people into a removal centre and hold them there until they are taken out of the country? Perhaps I have not understood the argument properly. Is that what the Minister is saying?
I am reluctant to accept the noble Earl’s words, because I would not necessarily recognise the description of a case that the noble Earl has come up with. It would very much depend on the circumstances of the case, but I make the point that there may well have to be cases—very few in number, perhaps one, two, three or four a year; I have no idea—where there has been a wilful refusal to co-operate and we have to make use of this particular provision, but I say to the Committee that it would be in very few cases indeed.
The Minister has reinforced my opinion that we should get rid of this clause. If we are only talking about three or four cases a year, I find it impossible to believe that there is no provision in the Immigration Act by which that person should be compulsorily removed. I again challenge the Minister to produce one example of a case where it is impossible to use the normal procedures for removal of a family to their country of origin where this provision would be necessitated. Otherwise, as my noble friend Lord Dholakia said earlier, we know that we are not going to get anywhere in Committee this afternoon, but we are determined to strike this provision out of the statue book on Report. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Clause 19 [Points-based applications: no new evidence on appeal]:
34ZA: Clause 19, page 11, line 18, leave out “, and at the time of making,”
The noble Lord said: Clause 19 deals with exceptions to the rule that new evidence may not be submitted to the AIT relating to in-country appeals under the points-based system. The general rule under Section 85 of the NIA Act 2002 has been that at the hearing of an appeal, the AIT can only consider the circumstances as they were at the time of the decision to refuse, although there is nothing to stop the person from making a fresh application later on.
The Home Office told ILPA that this has caused difficulty where evidence has been submitted close to, or even in some cases on, the day of the appeal, making it difficult or impossible for officials to consider in time what evidence has been supplied and to respond to it properly. This argument would be reasonable were it not for the fact that the AIT has the power in Rule 45(4) of the 2005 procedure rules to give directions on when evidence must be submitted and to exclude evidence where directions have not been followed, admitting that evidence may unduly prejudice a party, including the Home Office. It also has the power to adjourn the hearing or put it at the end of the day’s proceedings to give representatives time to consider the evidence. ILPA contends, and we agree, that these powers are more than adequate for the AIT to manage the appeals process.
We have particular concerns about the effect of the exclusion in the clause on appeals under the points-based system, against which it is aimed. That system has yet to be fully rolled out, but there is inevitably a risk at the beginning that an applicant or his representative may miscalculate points or misunderstand certain criteria, with the effect that an appeal fails simply because of an error of fact which there would be no means of correcting. This could be particularly disastrous for people applying to extend their leave to remain in the UK, who are the appellants dealt with under the clause. It could be too late for someone to submit a corrected application after the appeal has been dismissed because his permitted leave to remain might then have expired, with the result that he would have to return to his country of origin and make a new application to enter. In the mean time, it could have a severe effect on, say, his studies at a university, or it could mean the loss of his employment or the disruption of his business relationships.
We recognise that the Home Affairs Select Committee in another place recommended a restriction on new evidence similar to that provided in Clause 19. However, the Select Committee added that there should be a further stage at which the case worker issues a minded-to-refuse notice for an extension of leave, giving an applicant an opportunity to counter the draft refusal by submitting further evidence that would be considered by officials rather than by the AIT. However, Clause 19 would preclude the consideration of evidence submitted in response to a minded-to-refuse notice. We therefore suggest that the AIT should be obliged to consider only evidence submitted up to the date on which the appeal is lodged, giving the BIA plenty of time to consider it before the hearing. If there is to be a minded-to-refuse stage, applicants would have the chance to address points made and to correct errors arising from a misunderstanding or miscalculation. It would also accommodate the Home Office’s concern that new evidence should be considered by the BIA before it goes to the AIT.
So although we are satisfied that the procedures rules afford the AIT adequate powers to deal with the problem that exists, we have accepted, following consultations with ILPA, that a solution can be found within the framework of Clause 19, and we hope that, without necessarily committing himself to the precise wording of our amendment, the Minister will agree that reasonable opportunities must be given to applicants to submit further evidence related to the circumstances at the time of their application in good time to be considered by the BIA at a stage before the hearing. I beg to move.
I beg the Chairman’s pardon; I thought that the noble Earl, Lord Listowel, had risen to speak. He may yet do so. Indeed, we may all have the opportunity to do so fairly shortly. The noble Lord, Lord Avebury, has been very helpful in tabling the amendments. We were certainly aware in our briefing meetings with all the organisations before the Bill was laid that Clause 19 was a matter of some concern. I hope that the amendment gives the Government the opportunity to clarify how they expect the process to work. I do not believe that the Government are trying to be difficult in preventing proper information coming forward, which would mean that there would be a satisfactory adjudication made in each case.
I hope that the Minister will explain more clearly than we have seen in the Explanatory Notes why the Government have felt that it is appropriate and necessary to change the rules. We do not want to end up with a new system, which, by lack of clarity, means that there could be a longer procedure during appeals and more difficulties put in the way of appeals by those who feel that they are being badly treated. What exactly will be the time constraints within which evidence can be submitted? Why have the Government decided that they should no longer consider substantive evidence if it is available only after the original immigration application has been made?
The Minister asked for more pertinent arguments, and we have heard a very pertinent argument from the noble Lord, Lord Avebury. The Law Society points out that this will bring an enormous increase in applications. There will be more judicial reviews and more letter writing to and from Members of Parliament. Do the Government really want more paperwork?
When I was looking at the amendments, I felt more warmth and sympathy to this one than I did to the previous one. Members of the Committee have raised some important issues. Issues relating to processes surrounding appeals tribunals and so on are very important because we need to get the processes right. So I am grateful to noble Lords for tabling this amendment and for giving me the opportunity to explain a little of the Government’s thinking. As I understand the amendments, they would negate the purpose of Clause 19 by allowing new evidence on any matter to be submitted in any appeal under the points-based system—PBS—subject to the sole condition that the evidence must have been submitted no later than the notice of appeal.
There is no reason why points-based system applicants should be able to do that. Under the PBS, they 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 and not later, as these amendments propose, which is part of the difficulty—the lateness at which evidence is allowed to be brought forward.
If accepted, the amendments would move the points-based appeal system away from what we regard as its purpose, which is to allow the Asylum and Immigration Tribunal to decide whether the appellant’s application was correctly refused. Allowing new evidence would mean that the tribunal would be making its own decision on a different basis to the decision of the Border and Immigration Agency. In effect, the appeal process would be looking at a different case. It would not be reflecting on whether an error in judgment had been made when the case was first considered, which is the nature of the problem.
Clause 19 contains enough safeguards to ensure that it is fair. For example, new evidence will be allowed in order 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. On those issues, new evidence will be allowed. However, subject to those exceptions, the principle that new evidence will not be allowed in points-based system appeals is, in the Government’s view, correct. The amendments are not compatible with that, so, for those reasons, we cannot accept them.
The noble Lord, Lord Avebury, referred to the Home Affairs Select Committee’s recommendation that we might consider introducing a minded-to-refuse stage into the application process. As we said in response to the Home Affairs Select Committee, we agree that there may well be some benefits to a minded-to-refuse procedure. However, we need to weigh them against the financial implications of adding another stage to the decision-making process. Our preference is to make changes that simplify the decision-making process. That is not just in the interests of the state but also those of the applicant, because over the many years that I have been dealing with this subject, a constant complaint has been the labyrinthine and complex nature of the process. I think we all agree on that. Over that time, we have been trying to make the process more transparent and simpler for those caught up in it. We are not currently convinced that the introduction of a minded-to-refuse process will aid simplification, which is another reason for not going along that route.
The noble Lord, Lord Avebury, also posed a question about whether the Asylum and Immigration Tribunal has the power to exclude evidence through the procedure rules. That is correct, but the aim of the points-based system is to ensure that the criteria are so clear that there will be no need to put evidence in at the appeal stage.
The noble Earl, Lord Sandwich, made the point that frequently there is not proper representation. We are trying to design a process where there is clarity, where the criteria are plain and simple and where what should be put in front of the appeal body at the appeal stage is obvious to all. Relying on the AIT’s powers to exclude late evidence does not go far enough in ensuring that applicants are clear that they need to submit all relevant evidence at the time that they make their application.
[The Sitting was suspended for a Division in the House from 4.56 to 5.06 pm.]
I had almost finished my peroration, such as it is, before the Division. I was trying to respond to various points, including that made by the noble Earl, Lord Sandwich, on the Law Society briefing on the Bill. I think that the point related to Clause 19 and the notion that it might lead to an increase in applications for judicial review, requests for assistance from MPs, and so on. I suppose that it could lead to more judicial reviews. However, in cases where an applicant is refused for not having submitted the required evidence but then obtains it later, they should make a fresh application. The merits of their case could then be properly considered by the case workers rather than by means of the appeals process. It would be wrong to turn the appeals process into a second-form case consideration at tribunal level. We do not think that that would be a good or intelligent use of the appeals process. That is essentially why we think it right to rely on case analysis rather than tribunal analysis. Obviously we want to get to the point where the case workers make the correct decision in as many cases as possible.
We see no reason why this proposition should lead to more judicial reviews or other representations. Under the points-based system there will be fewer areas for dispute because the applicant will be guided to ensure that the right information is supplied. If the applicant provides the specified evidence, they will get the points. There will therefore be less scope for challenging the BIA decisions. It will be a much more guided process and clearer. What the applicant has to provide and the evidence required will be clearly identified for those who are in the process. As an outcome, there should be fewer calls on MPs’ time for assistance and fewer judicial reviews.
Before the noble Lord, Lord Avebury, responds, perhaps I may say that I am grateful to the Minister for the way in which he has delineated the importance of having the appeals process as one that is distinct from the initial decision-making process and that it should not simply look at the whole thing all over again as if it were a new case. To tease him a bit, I note that the Government are considering changing the way in which the Court of Appeal considers cases. If they bring forward some of the proposed changes, the Court of Appeal will hear cases ab initio and there may be some parallel arguments to be made by the noble Lord, Lord Avebury, regarding the Bill—but long after I have finished this brief. That is not quite my legacy to the Minister.
I would be grateful if the Minister could give an assurance on the record regarding one matter which has been raised with me by noble Lords on my Benches who act as vice-chancellors to universities. They hope that there is a circumstance that would come within the permitted part of Clause 19 that says that if a document is not valid it may be presented later. The circumstance that I have in mind is where someone under the points-based system seeks to come here and presents evidence of having achieved a certain level of educational attainment—which carries with it particular points. The document has been sought in all honesty, and that person has attended and completed a course satisfactorily, but when the institution issues the document it makes a simple error, whereby perhaps the wrong date is given for the attendance of that person at that course. If that is discovered during the proceedings and the person is accused of having an invalid document, can the Minister assure me that the person who has to seek a new document setting out the correct information would not have to go back and start the whole process over again but would be able to bring the information later?
I am grateful to the noble Baroness for her comments. I understand the tease; different policy, different area, not for me. It is an interesting point. Proposed new Section 85A(4)(c) allows evidence to be submitted at the appeal to rebut a decision by the BIA that a document is not genuine or is invalid. I think I made this point earlier. We would envisage evidence being produced by the applicant to correct that kind of clerical, typographical or administrative error. I think that it would fall within that exception. The interpretation is sufficiently broad to enable that to be the case.
The point raised by the noble Baroness was by way of example and was maybe not unique. Documents that are submitted with the application may turn out to be invalid for one reason or another, and she has given a particular instance of an incorrect date being given that could well have been corrected once attention had been drawn to it. Supposing that there are other instances of a similar kind—not leaving universities—and pursuing the line of thought introduced into our debate by the noble Baroness, I suggest that in many cases it would be critical to the student to have his application considered on the proper date, which it would not be if he had to submit a fresh application. If he misses that opportunity and by submitting a fresh application is out of time for the university term, he may lose the right to attend a particular course. That was the reason why—without suggesting, as the Minister put it, that we introduce a new stage into the process—there could at least be consideration of evidence that was submitted up until the time of the appeal. That would give the BIA an adequate opportunity to look at the evidence before the appeal was heard, and it would not be faced, as it says sometimes happens now, with evidence coming in at the very last minute or on the day of the appeal.
I have made the case and the noble Lord is aware of the arguments. I leave him to consider it in the hope that perhaps between now and Report we can find a solution that is acceptable not only to your Lordships but to the many applicants under the points-based system who may otherwise lose their rights under that system. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34ZB not moved.]
If Amendment No. 34A is agreed to I cannot call Amendment No. 35 due to pre-emption.
34A: Clause 19, page 11, leave out lines 28 to 30
The noble Lord said: Amendments Nos. 34A and 36A implement the Delegated Powers and Regulatory Reform Committee’s recommendation that the power to specify,
“the circumstances in which evidence is to be treated … as submitted in support of, and at the time of making”
the application be vested in the Lord Chancellor rather than the Home Secretary.
On reflection, we agree with the committee’s recommendation. Our amendments will therefore allow the Asylum and Immigration Tribunal’s procedure rules, laid down by the Lord Chancellor, to make the necessary specification, rather than have them appear in the Immigration Rules which are made by the Home Secretary. I beg to move.
My Amendment No. 35 appears in this group. As the Lord Chairman remarked, it is pre-empted by Amendment No. 34A—and I am delighted that it is. I could have a little vanity trip and read out a page and a half of speaking notes but today is not the time to do so. I tabled the amendment only to elicit the response from the Government that they have given in Amendments Nos. 34A and 36A, which satisfactorily meet the recommendations of the Delegated Powers and Regulatory Reform Committee. I am grateful to the Government for doing so and support the government amendments.
We were grateful to the noble and learned Baroness, Lady Scotland, for the letter of 22 June explaining that Amendments Nos. 34A and 36A were tabled following the recommendations of the Delegated Powers and Regulatory Reform Committee, as the noble Baroness has just said. The committee is to be congratulated on its vigilance, though regardless of whether it is the Home Secretary or the Lord Chancellor who makes the rules on,
“the circumstances in which evidence is to be treated … as submitted in support of, and at the time of making”
the application, under the points-based system the negative procedure will apply. As I understand it, the amendment makes no substantive difference to the way in which the clause operates—perhaps the Minister can confirm that—and does not address the major flaw in Clause 2, that applicants are to be given no opportunity to correct straightforward errors in their original evidence.
The noble Lord is probably right on his second point—I shall think about it a bit more; he may be right on both points. The issue here is to put right something that we spotted earlier. We are grateful to the Delegated Powers and Regulatory Reform Committee and the noble Baroness, Lady Anelay, for drawing out the issue. We think that the other issues are a separate consideration.
On Question, amendment agreed to.
[Amendment No. 35 not moved.]
36: Clause 19, page 11, line 30, at end insert—
“(6) The Secretary of State shall lay before Parliament, not more than 12 months after the commencement of the provisions under this section, a report on their operation.”.”
The noble Lord said: As we have been discussing, Clause 19 further restricts the right to appeal. In appeals against refusal of leave to enter or of variations of leave to enter or remain, the AIT will be prevented from considering evidence adduced by the appellant which was not submitted at the time of making the original application where that application was made under the new points-based Immigration Rules. Representations have been made to the Minister that this clause will affect applicants who have not had the benefit of sound immigration advice when they submitted their original application, because they would not be able to adduce evidence crucial to the case at the appeals stage simply because the evidence was not submitted at the time of the application.
Our application would give Parliament a role in examining how this new restriction operates. It would, as the amendment makes clear, require the Secretary of State to lay before Parliament within 12 months of the commencement of the clause a report on the way in which the new restriction has operated. I appreciate that the Minister will claim that a report on these matters will be part and parcel of the report made by the Border and Immigration Inspectorate, but it is important at this stage in our debates that the Minister explains just how he expects the restrictions in Clause 19 to operate fairly when they appear to disadvantage those who do not have access to legal advice. I beg to move.
There was an interesting discussion on a very similar amendment in the Public Bill Committee on 15 March. The Minister, Joan Ryan, said then that there would be reports to Parliament on the operation not only of Clause 19 but of every other clause, and that the independent inspectorate would look at the points-based system, including its appeal system, and the operation of Clause 19, as the noble Lord, Lord Henley, has just acknowledged. The Secretary of State would then lay its annual report before Parliament. Then, in accordance with Cabinet Office guidelines, there would also be a post-implementation review of the Bill, including Clause 19 itself. So although my honourable friend the Member for Rochdale supported the Conservative amendment in the Public Bill Committee, having discussed it with him and having listened to the Minister’s explanation on that occasion, I believe that the noble Lord, Lord Henley, would have concluded that Parliament would have adequate opportunity to review the workings of Clause 19 and, indeed, the rest of the Bill.
The arguments have not moved on greatly since that consideration. I listened very carefully to what the noble Lord, Lord Henley, had to say. He is right to anticipate my response that the role of the chief inspector for the Border and Immigration Agency, which Clauses 47 to 55 introduce, will of course include the operation of Clause 19 as part of the inspector’s duty quite properly to consider the treatment of appellants. This would introduce a disproportionate and unnecessary, even overburdening, reporting requirement, and would make the whole process rather more bureaucratic than it needs to be. We are often upbraided for introducing disproportionate and unreasonable reporting requirements on those who are involved in monitoring or law enforcement. I am sensitive to those issues. We should apply those duties with care. It is also worth saying that, in accordance with Cabinet Office guidelines, our regulatory impact assessment in any event commits us to conducting a post-implementation review of the whole Bill, including Clause 19. A copy of that report will be placed in the Library of each House.
The further report demanded by the amendment would be unnecessary, and it would not justify the resources required to prepare it. It would also introduce unnecessary duplication. I hope that the noble Lord will consider those points and withdraw his amendment.
I am grateful to the Minister for his response. He told us that the arguments have not moved on, but went on to assure us that a regulatory impact assessment will be made by his department and copies of it will be placed in the Library. When is that likely to take place? Will it be a one-off assessment or will further regulatory impact assessments be made in later years? I would not want to overburden the Home Office, which has a great deal to do, particularly when it is not passing further legislation, but it might be that such large parts of the department have been hived off to the Ministry of Justice that it has a little more spare time on its hands. Before I withdraw the amendment, I will be grateful if the Minister will let me know a little more about the timing.
It is a bit difficult to do that because it would depend on the details of the implementation timetable, which we are giving further consideration to in our leisure hours. The noble Lord teases me about the Home Office, but it is a not-infrequent tease. It will not have escaped his notice that in the next parliamentary timetable there appear to be fewer Home Office Bills than we have been used to. I cannot say that that is going to be the case for ever, but it will free a bit more time so we can give issues of this sort more consideration.
I am grateful to the Minister for the assurance that there will be fewer Bills from the Home Office, but there will, no doubt, be yet more from those bits of the Home Office that have been moved to the Ministry of Justice. We look forward to seeing the Minister assisting that department as well as the Home Office in due course. I appreciate that he cannot give a precise time when the regulatory impact assessment will be made, but I, or my successors, look forward to seeing it in due course. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
36A: Clause 19, page 11, line 30, at end insert—
“(3) In section 106(2) of that Act after paragraph (u) insert—
“(ua) may make provision, for the purposes of section 85A(4)(a), about the circumstances in which evidence is to be treated, or not treated, as submitted in support of, and at the time of making, an application;”.
On Question, amendment agreed to.
Clause 19, as amended, agreed to.
Clause 20 [Fees]:
36B: Clause 20, page 12, line 12, at end insert—
“(2B) In making regulations specifying the amount of a fee for a claim, application, service, process or other matter, the Secretary of State must—
(a) be satisfied that the increase is no greater than is required to maintain the value of the amount in real terms; and(b) in doing so, must have regard to the All Items Retail Prices Index Excluding Mortgage Interest Repayments published by the Office of National Statistics.”.”
The noble Lord said: It is certainly a relief to hear that there are fewer Home Office Bills coming down the track, although I believe that there is at least one in the legislative list that has just been published by Mr Gordon Brown, so we cannot escape altogether from the perpetual succession of Home Office Bills that has plagued us for the past 10 years.
I want to draw attention to Section 51 of the Immigration, Asylum and Nationality Act 2006, which allows the Secretary of State to charge a fee in connection with any application or claim in connection with immigration or nationality. In the Immigration and Nationality (Fees) Order 2007 which was discussed in your Lordships’ House on 8 March, the Government set out the range of services for which fees would be charged under Section 51, replacing those which had previously been set under various pieces of legislation. That order prepared the ground to set fees for most of the services provided in connection with nationality and immigration at levels that reflect the benefits that the Secretary of State thinks are likely to accrue to the person making the application or for whom the process is undertaken in accordance with Section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
In Clause 20 the Government are proposing to extend the power to set fees at any level that the Secretary of State thinks fit to applications or processes in connection with the sponsorship of persons seeking leave to enter or remain in the United Kingdom. That means that excess fees on top of the fees that the applicants are already paying are to be charged to universities sponsoring students, employers sponsoring workers and individuals bringing in children, elderly dependent relatives or spouses.
When the Immigration and Nationality (Fees) Order was debated on 8 March, we said that we had no objection to charging fees as such. On the other hand, when the enabling clauses were debated in the proceedings on the Immigration, Asylum and Nationality Bill in early 2006, we had no idea that in some cases the fees were to be almost doubled. We said that it was unfair to load on to current applicants for the services of the BIA the heavy costs of transforming the immigration system over the next four years. I wrote to the noble and learned Baroness, Lady Scotland, drawing her attention to the charges that were to be paid by a British citizen for his foreign wife’s visa, her permanent residency and her citizenship. Under that order, the total was increased from £1,102 to £2,059. I pointed out that legitimate entrants are already contributing to the economy under the tax system. It was clear that although the Government had been through the motions of consultation on the charges, they had not listened to what some of the respondents had said.
With that unfortunate experience of the way in which the Government used the power in Section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 to levy extortionate fees on certain applicants, we urge the Committee not to give carte blanche to charge sponsors whatever the traffic will bear. Universities are already losing students to foreign competition because of the fees that they have to pay to come here. Now the sponsoring universities are going to be charged and they will have to recover that cost in the fees that they impose on the students. The person who wants to bring a spouse here will be confronted with an extra bill on top of the £2,059 already imposed. The employer will have to find an unknown amount on top of what he is paying now.
As we saw with the order mentioned earlier, once the order reaches Parliament we have no option but to accept whatever increases the Government decide to impose. All we could do on that occasion was to call attention to the discrepancies between the responses to the consultation and what was in the order. In the case of the fees to be charged under Clause 20, there is not even a consultation. We beg for that as a small mercy. Realising that there is no chance whatever that the Minister will accept the amendment, we beg that the Government will engage in a consultation. Not in hope or expectation, I beg to move.
I support my noble friend’s amendment. What is the basis for the increase from £350 to £750? It is an increase of more than 100 per cent. Why is it so much above the rate of inflation? Are the Government taking into consideration the fact that those who are applying are from poor areas and from countries that have very low incomes? We understand that 30 per cent of applicants are African and 25 per cent are Asian. For those people, £750 is often far beyond what they can be expected to pay. Is this not going to restrict applications from poorer people?
When we recently debated the Bill in the House, I quoted the words on the Statute of Liberty:
“Give me your tired, your poor,
Your huddled masses yearning to breathe free”.
I said that these are people whom we would have welcomed, and the United States would have welcomed, a century ago, but now we are closing the door. The poor, the tired, the huddled masses cannot afford fees of this sort. What is the justification for this large jump in the amount payable?
I know from experience that a fee of £750 is £200 more than the monthly basic state pension in the United Kingdom. How much do the Government hope to realise from this large increase? Are Home Office accounts subject to strict audit? I am sure they are. Is the Audit Commission involved in any way? Is there an independent inspectorate that says, “Yes, this jump from £350 to £750 is justified”?
I am very suspicious of the financing of the Home Office at present. People probably think that I am very boring on this subject. There are to be 69 passport personal interview offices, of which three—I am glad that the figure is now three: Newport, Belfast and Glasgow—are active. Last week I received a Written Answer from the noble Lord, Lord West, in reply to a Question on the cost of the 69 passport personal interview centres. I was absolutely astonished. The cost is £69 million—£1 million per office. However, as only three offices are currently active, the cost per office is much higher. Are the Government satisfied that their bookkeeping is of the highest order? Today we are talking of an increase from £350 to £750. That was not simply decided by the Minister; it was worked out. We must realise that the very poorest could never meet that amount.
I follow the comments of the noble Lord, Lord Roberts of Llandudno. Do the figures quoted by the noble Lord, Lord West of Spithead, include both the capital costs of the new offices and the current cost of running them for a year? I do not know. I would dissent ever so slightly from what the noble Lord, Lord Roberts, said, because I do not consider that this country is one of primary immigration, as the United States was in the last century and perhaps still is to some extent now. However, I have always stood up for the principle of family reunion. By that I mean that when a person is entitled to reside in this country, he should be allowed and encouraged to have with him his wife and children—his close family. I am also strongly in favour of the principle of monogamy. That would perhaps prevent people who are entitled to be here having a plurality of wives.
We have had an interesting short debate, covering monogamy, passport personal interview centres, replies by the recently ennobled Lord, the noble Lord, Lord West, and a plea for family reunion. It is amazing what can be squeezed into a Lords Committee debate. I congratulate noble Lords on their ingenuity.
The amendment has been tabled in response to the scale of the fee increases that were introduced in April. It is worth registering that there are no fundamental objections to the principle that those who use the immigration system should pay most towards the costs, including fees that are set above normal cost-recovery levels. We believe that the safeguards in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004—that is the Act that Clause 20 seeks to amend—are sufficient. Those safeguards require the Secretary of State to consult with such persons—those whom she deems appropriate—before making an instrument prescribing fees above cost-recovery levels and that the instrument is subject to the affirmative processes in both Houses.
The Act also states that fees set above cost should reflect the benefits that the Secretary of State thinks are likely to accrue to a successful applicant. I think we should focus some of our attention on that. We believe that in order to set fees at fair and sustainable levels in the future we need to maintain flexibility. The measure in the amendment proposing an acceptable increase to the fees would not, of course, allow us to amend the fees to reflect wider policy changes that affect the entitlements and benefits of a successful application. It would also limit our ability to correct anomalies in the charging structure, should those arise over time. For those primary reasons we are not able to accept the amendment.
Members of the Committee asked for further and better particulars. The noble Lord, Lord Roberts, asked why we thought that the increase from £335 to £750—in this example, for postal applications—was right. We did it to bring us more into line with similar fees charged in other countries, as we are considerably less costly than most, and to reflect the administrative costs of determining settlement and to ensure compliance with our immigration laws. I make the comment that settlement brings with it rights to access the labour market and the benefit system for applicants and their dependants. We think that the fees charged to users of the system, who benefit from the services that we offer and from living in our country, reflect a good offer. It is right that the charge is a fair reflection of those benefits.
The noble Lord, Lord Avebury, asserted that we were not listening to consultation. The majority of respondents agreed that the fees should reflect the value of the entitlements to a migrant from a successful application and should support the Government’s position. It is certainly not the case that we did not undertake consultation—that much is clear. There is a statutory duty to do that, as I have already said. The consultation ran from 30 October to 22 December last year. The consultation document was sent to over 3,000 people and stakeholder groups and was published on the Home Office website. We received some 340 written responses: 51 per cent were educational establishments, 35 per cent employers and 14 per cent arts and entertainment organisations. Additional consultation was undertaken through sector-based events—that is, meetings—with different organisations and bodies, through the education, employer and arts and entertainment organisations and task forces. Over 400 people attended one event: 87 per cent agreed that we should set fees flexibly to take into account wider policy objectives and 79 per cent agreed that fees should reflect a range of factors, not only those of value to migrants.
I believe that I have answered most of the points. If there are any other issues that Members of the Committee feel I have not touched on, I shall happily endeavour to respond to them.
We have been diverted into a discussion about previous fees that were set under the order that has already been passed and how those were determined. I wrote to the noble and learned Baroness, Lady Scotland, pointing out that the consultation to which the Minster has referred included no persons or groups that were representative of spouses and that when spouses discovered the level of the fees, as given by my noble friend, for indefinite leave to remain, they were horrified. I cannot imagine how the Secretary of State determined that the level of benefits accruing to someone who brought a spouse into this country had suddenly increased from £350 to £750, irrespective of the means of the applicant.
The Minister has said that they compared this fee with comparable levels in other countries. I challenge him on that, and I challenged the noble and learned Baroness, Lady Scotland. I sent her a list of countries which I had checked. In every case, the fee was less than the £750 that we were charging. I could not find a single country where the fee for indefinite leave to remain was more than £750. I am afraid that the Minister has been wrongly briefed, and he should go back to the department and find out what fee levels are charged for indefinite leave to remain in a number of other countries.
The point of raising this was that, by giving the Secretary of State carte blanche, we have absolutely no idea what he is going to charge under Clause 20. The fees are not to be paid by the applicants, but by the sponsors. Here, for example, we have a spouse who is bringing his wife into the United Kingdom. He is already going to pay £2,059 when, suddenly, another fee is going to be charged on top of that; but nobody has any idea what it is. I urge the Minister to at least try to find some organisations representing the interests of spouses so that they are not missed out of the consultation that he undertakes on this occasion. However, I am pleased to hear that he will consult other interests. The universities may well have something to say about this; it may be the straw that breaks the camel’s back. I pointed out that the universities are already anxious because the fees paid by incoming students are already making them less competitive than some of the institutions in, say, the United States. If the universities are now to be asked to pay a sponsor’s fee on top of the rest of the expenses associated with students coming to the United Kingdom, they will have to load that on to the fees and become even less economic than they are already.
I appeal the Minister to ensure that, when he undertakes the consultation on the level of fees to be charged under Clause 20, he brings in both universities and organisations representing families—not just spouses, of course. As the noble Lord, Lord Hylton, said, this applies also to people bringing in elderly dependent relatives.
The noble Lord challenges us over universities. I am prepared to accept that there might be something of a mixed picture in terms of overseas applicants to UK universities, but I think that the case is broadly that we are competitive and we have been extremely successful over the past few years in attracting overseas students to the UK. We certainly operate competitively against our main competitors in the field, which are US and Australian universities.
I remind the Committee that when the announcement was made—it is worth putting on the record—Universities UK said:
“We welcome today's announcement of special initial visa fees for international students. It is an acknowledgment of the considerable benefits that international students bring to the UK and the investment they make to come here. We’re pleased that the Minister has listened to a number of our concerns in this area”.
The National Union of Students also commented on the announcement:
“We are grateful that the voice of international students has been heard, as many see fees as an additional barrier to come and study in the UK … We believe it is right students should pay less as they are not coming to the UK to work but to study. International students are already faced with the cost of exponential international students’ course fees. We are welcoming the on-going discussion with the Government surrounding the points-based system. NUS is glad the Government has recognised the value of international students”.
They may not absolutely like everything we have done and said on this, but they recognise, first, that we consult, secondly, that we look at the broader international case and, thirdly, that we listen to representations when they are made to us. I cannot entirely accept what the noble Lord, Lord Avebury, has said on that issue. It is important that we focus on what is actually said and what actually happens as a product of policy and how we approach these issues.
It seems that large numbers of overseas students who apply to go to university are accepted and then never turn up. Does the Minister have any information on that? I saw it suggested—admittedly in the press—that those people are finding a way of coming into this country and then not going to university. Will the university have paid for them? One university talked about several hundred such people. Does the Minister know anything about that, or has he not been briefed on it?
I am not briefed on all aspects of visa applicants or the fees that are charged, although I believe that we are broadly competitive. There may be any number of reasons why someone who applies to come to the UK to study may not take up the course for which they originally applied. I do not think that the cost of a visa will be the most determining factor. I would have thought that all the other costs, such as the cost of living and the cost of travel, would play a more important part because they are larger costs to the individual. However, we have been, and continue to be, extremely successful in education in comparison with our international competitors in that field. Not only do some of our universities work with foreign students here, but they are locating abroad and are extending their range of services in that direction, which I am sure we all welcome.
The noble Baroness, Lady Carnegy, may be thinking of the situation that used to be prevalent, whereby people applied to bogus institutions in this country as a means of entering the country illegally, and then disappeared underground. However, because the Government have limited the number of approved institutions for overseas students to come to, and because they are very rigorously checked and must sponsor a particular applicant, people are far less likely nowadays not to take up the places that they have been granted.
I know all that. I am talking about specific universities to which students have applied and to which they have been accepted and who come to this country to attend the university but do not turn up. One very well known university in Scotland quoted the figures.
I need to answer that point. The noble Baroness will recall that, in earlier legislation, we also obliged universities or institutions of higher education to report students who did not attend their courses. A student must attend a minimum number of hours a week—I think it is 20—to qualify as a student in higher education. If for any reason, even sickness, the person does not turn up for a particular percentage of the lectures or practicals, the university must report them to the immigration authorities. So although what the noble Baroness describes might have happened in the old days, she will find that the steps that have been taken to reduce abuses of the system have been reasonably successful. One institution in Scotland may have had a particularly unfortunate experience, but I hope that it has collaborated with the BIA in ensuring that those people who have abused the system by coming in, ostensibly as students, and then disappearing into the woodwork, have been reported and removed from the country.
The noble Lord, Lord Avebury, talked about students having to do 20 hours a week. I am not sure that I ever managed 20 hours a week, but that is another matter. More seriously, on the point made by my noble friend Lady Carnegy, the reports also referred to universities in England. One such university was Newcastle. A large number of students had applied to it and did not show up, and it looked very much like an immigration scam. If the Minister is not briefed on this, his department should be aware of it and should be aware of the allegations that have been made. He and the department should respond on whether this is happening. Certainly, it is a very serious allegation about what was happening in this field.
Far be it from me to come to the defence of Minister—that is not my job. This question is a long way wide of the amendment, which concerns the fees that a sponsor pays to bring someone into the United Kingdom. While it is perfectly legitimate for the Minister to be asked questions about irregularities in universities, that should be done offline and not as part of the proceedings of this Committee.
I do not want to go on with this, but I asked the Minister whether universities have to pay the fees for those people who never turn up. That was my point in linking the question to the amendment. Perhaps the Minister will find out more about this, because I suspect it is not a small issue. It is being dismissed by the noble Lord, Lord Avebury, but he should probably wind up his amendment now.
The noble Baroness has asked for more information. It might assist the Committee if I ask the officials to provide more background to circulate to Members of the Committee who are interested in this issue. I can see that security in universities is of concern, not least because of recent events. Perhaps it is just worth putting on the record that there is a contact point for universities to seek proper advice, to provide information to the BIA and to report students who have not turned up for courses and who are failing to attend. The noble Lord is reminding me that he has made that point, which is fair enough. That process is in train. We take this issue extremely seriously because, clearly, it is in our interests in terms of security.
I was in the process of winding up, and I hope that we can bring this matter to a conclusion. Before we leave universities altogether, like the noble Baroness, Lady Carnegy, I have read the papers and looked at the consultation, and I am perfectly well aware of what the universities said. I point out to the Committee that all the responses to the consultation were given before people knew the level of the fees. While universities may have been satisfied that the students coming to them would not be deterred by those fees, that certainly is not applicable to everyone else covered by the previous order.
I do not wish to continue in that vein, because we are not discussing that order. We are talking about it only because at the end of the day, when the fees were announced, we found that they were grossly higher than anyone had expected. That applied in particular to dependants, who were mentioned by the noble Lord, Lord Hylton. We fear that when this clause has gone through and the consultations have taken place, people still will not know the level of the fees and that, ultimately, the Secretary of State will come forward with wholly extortionate demands, which are beyond the means of applicants.
What my noble friend said about an audit needs to be taken on board. We have no idea whatever whether the £750 charged to spouses and other persons applying for indefinite leave to remain is a true reflection of the cost of the application plus the appeals system, which is being loaded on to it. At the time, I said that it was completely unreasonable to make legitimate applicants who wish to come here as a dependant—whether a spouse, elderly dependent relative, or whatever—cover the costs of the people who are not legitimate and who are dealt with through the appeals system. It is my fear that, having given the Government a blank cheque through Clause 20, we will find that, in particular, for the poorest of the Africans—mentioned by my noble friend Lord Roberts—or in the case of an elderly grandmother coming from the Indian subcontinent, for example, the sponsor, a working-class individual on a minimum wage in this country, will suddenly be faced with a bill that makes it impossible for him to look after the elderly dependent relative.
I warn the Committee that if we let this power for the Secretary of State to charge whatever he likes go through, we will get protests from communities that are disadvantaged by it. I have said my piece, and I hope that the Government will listen. I do not have any hope that they will. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 agreed to.
37: After Clause 20, insert the following new Clause—
(1) The Secretary of State shall issue a code of practice designed to ensure that in exercising functions in the United Kingdom the Border and Immigration Agency takes appropriate steps to ensure that while children are in the United Kingdom they are safe from harm.
(2) The Agency shall have regard to the code in the exercise of its functions.
(3) The code shall come into force in accordance with provision made by order of the Secretary of State; and an order—
(a) shall be made by statutory instrument, and(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.(4) The Secretary of State shall from time to time review and, if necessary, revise the code; and subsection (3) applies to a revision as to the original code.
(5) In this section—
(a) “the Border and Immigration Agency” means—(i) immigration officers, and(ii) other officials of the Secretary of State, and the Secretary of State, in respect of functions relating to immigration, asylum or nationality, and(b) “child” means an individual who is less than 18 years old.”
On Question, amendment agreed to.
[Amendments Nos. 38 to 40 not moved.]
41: After Clause 20, insert the following new Clause—
In section 83(1)(b) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal: asylum claims) omit the words “for a period exceeding one year (or for periods exceeding one year in aggregate)”.”
The noble Lord said: I express my appreciation at the outset to the Refugee Children’s Consortium for its insight and advice which has led me to table this amendment. I do so to press the Government on the current situation that denies many unaccompanied children a right to an appeal while they are still children.
Article 2 of the UN Convention on the Rights of the Child requires states party to it to “respect and ensure” the rights enshrined in the convention,
“to each child, without discrimination of any kind”,
and to ensure that a child is protected against all forms of discrimination on the basis of status, including national origin. I obviously hope that the Government intend that refugee children should not be subjected to a lower standard of justice than other children in the UK. I cannot believe that the Government intend otherwise.
Section 83 prevents those granted leave for less than one year from making an appeal against the refusal of their asylum claim. Unfortunately—again, I cannot believe this was the Government’s intention—in practice, this applies disproportionately to unaccompanied children who frequently receive less than a year’s discretionary leave. Following the recent Home Office policy change, which lowered the age to which discretionary leave will be granted from 18 to 17 and a half, many more unaccompanied asylum-seeking children are going to be caught by the Section 83 provisions in the future.
Currently, 46 per cent of unaccompanied children arriving in the UK are 16 or 17 years old. This amounts to some 1,500 children. As the majority are likely to be over 16 and a half by the time they receive an initial decision on their claim, they will therefore be denied access to the appellate system. Young people are of course able to make an appeal at a later stage if their application to extend their leave is refused. However, this will possibly be some years after the initial application. Such a delay can prejudice the outcome of the appeal in a number of ways. Experience suggests the following examples of how it can do so.
First, when the events relevant to the appeal occurred a significant time ago it can be much harder to gather evidence either because the child finds it difficult to recollect important details or because it may be impossible to trace important witnesses. We should remember that we are dealing with children who may have been through traumatic experiences.
Another significant problem is that children and young people often lose contact with their lawyers before their appeal is heard, which results in many being unrepresented at the hearing. The Refugee Children’s Consortium reports cases of children and young people in these circumstances being forced to represent themselves at appeal hearings.
Finally, if the length of delay means that the young person’s appeal is heard after they become 18, this may well put them at an even greater disadvantage because children benefit from a more generous application of the merits test legal aid funding. If they are merits tested as adults, they may be denied representation at their appeal.
I further believe that the proposed amendment makes sense in the light of the Government’s plans for reforming the support system for unaccompanied children. Their proposals place significant emphasis on the need to prepare young people to return to their home countries on reaching the age of 18. However, while Section 83 remains in force, it is very difficult for social workers to do this because the young people with whom they are working have not been able to bring finality to their claim; that is, a decision which includes an appeal. Without this they are likely to retain the hope that they may have the decision to refuse asylum overturned at a later stage. I hope that the Minister can respond to these anxieties. They are very genuine anxieties among those with real experience of working in the front line. I beg to move.
On 30 March the Home Office issued APU Notice 3/2007, entitled “Amendment to Discretionary Leave Policy relating to Asylum Seeking Children”. This policy deals with children who do not qualify for asylum or humanitarian protection and who up to then were granted discretionary leave for three years, or until their 18th birthday, whichever was the shorter. The APU notice provided that from 1 April, discretionary leave was to be granted to the age of 17 and a half, if that was less than three years. This means that, because under Section 83 of the NIA Act 2002, only an asylum seeker who has been granted leave to enter for more than a year has a right of appeal, a child making an application at the age of 16 and a half or over will have been given a year or less and will have no right of appeal.
The notice says that this provides more clarity to the young person about their future, meaning that they can look forward to removal at the age of 18. Somewhere around half of UASC will be 16 and a half by the time they get the initial decision on their asylum claim, and, as the noble Lord, Lord Judd, explained, their only recourse will be to submit an application for an extension of leave to remain as they approach the 17-and-a-half watershed, and then if that is refused, as inevitably it will be, to appeal against that decision. Since by the time the appeal is heard, generally at least a year and a half will have elapsed since the child’s original application, it will be much harder to assemble the evidence required, as the noble Lord said, and to prove that the circumstances at the time of the appeal, which the immigration judge has to consider, are the same as those which applied when the asylum claim was made.
As the noble Lord also said, there is the additional disadvantage that since the child will almost certainly have turned 18 by the time the appeal is heard, the adult merits test will be applied to the application for legal aid funding, and since this is less favourable than the test for children, the young person is in greater danger of being denied representation altogether at the appeal. So much for the clarity about the child’s future.
I realise that the amendment is technically about appeals. Nevertheless, it provides an opportunity to raise issues about the policy of unaccompanied asylum-seeking children. We may be talking about 6,000 such children already in this country. The Local Government Association believes that the cost of maintaining them here is of the order of £50 million a year and it points out that the government grant which goes to local authorities undertaking the care amounts to only £12.3 million. Therefore, there is a huge burden on local authorities up and down the country which, in my view, should be borne as a national expense.
I also inquire about what is supposed to happen at the end of the period in which the child can stay here. Is the age 16, is it 17 and a half, as was suggested, or is it 18? At the moment no one seems to know the answer to that question. To what extent have the Government considered whether such children will be safe if they are returned to their countries of origin on reaching the predetermined age? In the case of Vietnam, I think there are very serious doubts about that and the same may be true of Cambodia.
Suppose a child ceases to be unaccompanied because, in the interim, other members of his family have arrived here. Is the intention still to return that child? Whatever the answers to these questions may be, it appears to me that by the time they reach the age limit, we will have invested large sums in each child. Therefore, why not let them stay in this country, if they wish to do so, as we have an ageing population here, which urgently needs more young workers to support it? In general, I am strongly in favour of the amendment.
I am grateful to the noble Lord, Lord Judd, who makes a good case. I listened to his argument with great care. I shall try to explain the Government’s reason for sticking to their policy on asylum appeals and for resisting this amendment, despite some of its attractions.
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 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 of leave to enter or remain, they may not immediately appeal. We believe that strong policy reasons still exist for the 12-month restriction which this amendment is proposing to remove. It is important to point out that where a period of leave of less than 12 months is granted there will still be a right of appeal once leave expires and a decision is made to enforce removal. Where someone is granted a period of leave of 12 months or less, 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.
The main reason for introducing an upgrade appeal for those people who are refused asylum but are granted a period of leave of less than 12 months was to ensure that such people were not prevented from appealing the finding on their asylum application for a lengthy period of time should they choose not to leave the United Kingdom. Our view remains that, if a period of leave of 12 months or less is granted, it is reasonable to expect the applicant to wait until the expiry of that leave before he or she is entitled to bring a statutory appeal.
I am sure that Members of the Committee will agree that great strides and progress have been taken in speeding up the immigration appellate system in recent years, but appeals still take time to conclude. The length of time that it takes from lodging an appeal to receiving a tribunal determination takes less than 12 weeks in 95 per cent of cases, which, given where we started from, is a real sign of improvement.
Once an appeal has been determined, the tribunal will be asked to consider an application for reconsideration in 49 per cent of cases. Most applications are refused, but this application process takes further time to conclude the appeal. Thus, if someone refused asylum but granted a short period of leave was able to appeal straightaway, the appeal could still be running when that leave expired. Assuming the appeal was dismissed, enforcement action would commence which would attract a further right of appeal. The Government’s one-stop policy on immigration appeals says that there should be one appeal which considers all arguments that someone may have for remaining in the United Kingdom. If accepted, Amendment No. 41 would increase the numbers of persons who could qualify for two appeals, which runs contrary to the one-stop principle that the Government believe is perfectly sensible and has attracted widespread support.
In making his argument, the noble Lord, Lord Judd, suggested that we discriminate against people on the basis that they are asylum-seeking children. There is no discrimination on the basis that someone is an asylum-seeking child. The availability of an upgrade appeal depends on the period of leave granted. We feel that if a period of 12 months or less of leave is granted, it is not unreasonable to expect the person granted leave to wait until the expiry of this period before he or she can bring a statutory appeal. If anyone wants to challenge an asylum refusal before this point, judicial review remains available. It is for reasons of practicality, good process, simplicity and a tidier appeals process, and—I would argue—in the interests of the appellant, that this policy is the right one. Having heard that, I hope that the noble Lord will reflect on it and withdraw his amendment.
As I have said before in our deliberations, I have no alternative but to withdraw the amendment in these proceedings. We could debate this at great length. I thank the noble Lords, Lord Avebury and Lord Hylton, for their interventions. To the noble Lord, Lord Hylton, I simply would say that his interesting, adjacent point about the cost to local authorities is even more of a burden for some local authorities. They are often the very local authorities which have the largest amount of social issues and problems with which to deal already. This becomes the sort of straw that could almost break the camel’s back.
My noble friend has referred to how long appeals take on average and the rest. I refer to a very important point made on an earlier amendment. When you are talking about the human situation, in real stress and, on occasion, in times of considerable mental anguish, to believe that the argument about averages will be convincing is pie-in-the-sky. It is a theoretical argument that does not relate to ordinary people in the immediate situation.
The organisations with which I have been dealing are particularly concerned by the cases with which they have had to deal. They see real challenges and problems in what the Government have now laid down. I said that I wanted to press the Government on this. I would feel more encouraged if my noble friend were to recognise that there is an issue here. Justice has to be seen to be done, and justice demands equality before the law. In both those contexts, there are difficulties around what is happening. I would feel more encouraged if my noble friend were to say, “Okay, I can see there is an issue and that it is an issue that organisations doing a lot of exacting work in the front line really care about. I will ensure that there can be meetings with my department to go into the implications of what has been raised in greater depth and how they might be resolved”. Can my noble friend give me an assurance on that point before I withdraw the amendment?
I am more than happy to give the noble Lord that assurance, if he feels that there are outstanding issues with regard to the appeals process. He has raised again the issue of discrimination, which he quite properly raised earlier. I am more than happy to say that between Committee and Report, which will take place in early October, we will be happy to meet noble Lords on a range of subjects, not just this one, but we can focus on it as one of those subjects.
42: After Clause 20, insert the following new Clause—
“Children of Female British citizens
After section 2(1)(b) of the Immigration Act 1971 (c. 77) (statement of right of abode in United Kingdom) insert—
“(ba) he would be entitled to be registered under section 4C of the British Nationality Act 1981 if the words “after 7th February 1961 and” had been omitted from section 4C(2)”.”
The noble Lord said: The purpose of this amendment is to correct what is now almost universally seen as an anomaly in our nationality and immigration law. The amendment confers not citizenship, for reasons that I shall explain later, but rights of entry to the United Kingdom on people who were born abroad between 1 January 1949 and 7 February 1961—just over 12 years—and who are children of a foreign father and a British mother. The amendment adds new matter to the Bill and has no effect on anything now in it.
I raise this issue because in February I received a letter from Mr Kenneth Luke of Houston, Texas. He is the son of an American father and a British mother and was born in the USA. He was 56 at the date of his letter, so he was born in 1950 or early 1951. He wants British citizenship. He knows that had the nationality of his parents been reversed—had his father been British and his mother American—he would have been entitled to British citizenship, even if he had been born in the USA. He knows that if he had been born after 7 February 1961, he would have been entitled to British citizenship, even with his actual parentage and place of birth. I shall read a short extract from his letter:
“Those of us with British mothers who are still seeking UK citizenship do so because we have deep cultural and family ties to the country—ties that the passage of time has done nothing to diminish. We are not seeking citizenship for a better economic life or because we want to live in ‘cool Britannia’. We are seeking citizenship because Britain is the land of our mothers, and as such, it 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 in our belief that our claim to be British by descent was warranted and genuine”.
I was particularly interested in this letter because Mr Luke’s position bears some similarity to my own. I, too, have an American father and a British mother, although, because I was born in the United Kingdom, I am a British citizen by birth. My mother was not a British citizen at the time of my birth because she was stateless. This matter is relevant to the amendment and its history needs some explanation. At the time of my parents’ marriage in 1924, United Kingdom law assumed that a woman marrying a foreigner would automatically get her husband’s nationality, and therefore she lost her British nationality. However, under American law, a foreign wife did not acquire American citizenship on marriage until she had been resident in the USA for a year, which my mother never did because my father’s career was in this country. By 1933, this statelessness had affected enough British women to lead to a change in the law. Under the Nationality and Status of Aliens Act 1933, women retained British citizenship if they did not acquire their husband’s nationality on marriage, but not if they did. My mother at that point became British again. It was not until the British Nationality Act 1948 that British women who had lost their nationality on marriage were given it back, and even then they were not given the same right as British men living abroad with a foreign wife to pass on citizenship to a child.
I am not seeking by this amendment to give any rights to anyone born before 1 January 1949—the date when the British Nationality Act 1948 came into force. That would raise a difficult question whether rights could be given to children of mothers who were not British nationals at the date of their child’s birth but nationals of some other country, and the practical difficulty of identifying the status of the applicant’s mother at the time of the applicant’s birth. Therefore, 1 January 1949 has real logic as a cut-off date for granting the right to British citizenship; 7 February 1961 has none.
Under the British Nationality Act 1948, the Home Secretary had discretion to register a child of a British mother as a British citizen while the child was under 18. That presumably was originally intended for cases where the mother was widowed or divorced and wanted to return to live in the United Kingdom with her child. On 7 February 1961, the Government decided to register any child under 18 of a British mother on application. There was no formal change in the law; it was simply described as a concession. The next step, under the British Nationality Act 1981, was that women became entitled to pass on citizenship to future children on the same basis as men, but that was limited only to children after the 1981 Act came into force.
In April 2003, new Section 4C was added to the 1981 Act by the Nationality, Immigration and Asylum Act 2002. That backdated the citizenship rights to all children born to British mothers after 7 February 1961 even if they had not applied for registration before becoming 18. New Section 4C resulted from amendments tabled by my noble friend Lord Avebury in Committee and on Report. He has also added his name to this amendment. Those amendments in their original form would have backdated the 1981 Act to 1 January 1949, which is what I seek now.
On Report on 9 October 2002, the noble Lord, Lord Filkin, who was the Minister acting for the Government, said that the Government would look into the matter and come back with proposals at Third Reading. That is reported at column 269 of Hansard for 9 October 2002. They did so, but to an unnecessarily and unjustifiably limited extent. The Government were prepared to grant citizenship only to those born after 7 February 1961. The Government announced that they would give citizenship to all applicants born after that date who applied for it. The noble Lord, Lord Filkin, said that,
“there must be a cut-off point … One can only go so far towards righting the wrongs of history before the number of ‘what ifs’ to be taken into account becomes unmanageable … there is a certain logic behind our selection of 7th February 1961 as the cut-off point”.—[Official Report, 31/10/02; cols. 295-96.]
What is this logic? It is hard to see.
Why not make the commencement of the British Nationality Act 1948 the cut-off point? I accept that 1 January 1949 is, for reasons I have already explained, a justifiable cut-off date. Why exclude people born in that relatively short period between 1 January 1949 and 7 February 1961? So far as I can see, it is wholly impossible to justify that distinction. Refusing to back-date citizenship to children born before February 1961 was simply continuing unjustifiable gender inequality. It does not matter whether the children affected are male, as Mr Luke is, or female. It preserves discrimination against mothers because they are women and not men. It is also at least arguable that it is ageist because there is a wholly irrational discrimination between those born on or before 7 February 1961 and those born afterwards.
I can see no detriment to the United Kingdom from allowing people in this class right of entry to the United Kingdom. The class of people affected by this amendment is now closed. It can apply only to those born abroad between 1 January 1949 and 7 February 1961 whose mother was a British citizen and whose father was not. There may be no more than a few hundred, certainly no more than the low thousands, of people in this class. All must be at least 46 years old and, no doubt, the great majority of them will be well established in their present home countries. They would welcome the right—when visiting the United Kingdom as tourists, on business, for family reasons or, as some may wish, to live here—to entry on the same basis as UK citizens.
The costs are negligible. I cannot see that the correction of this anomaly would give any precedent for other groups; it is a unique situation. There is no reason to suppose that the children of United Kingdom-citizen fathers exercising their undoubted right to UK citizenship impose any serious burden whatsoever on the state. Why should the children of UK-citizen mothers be different?
The simplest way of dealing with this problem would be a further amendment of the British Nationality Act 1981 to give rights of citizenship to children of UK-citizen mothers. My amendment does not do that because this Bill is about immigration and not nationality. A further amendment of the British Nationality Act 1981 would therefore be outside the Long Title. This amendment does the next best thing: it amends the Immigration Act 1971 to allow children of British-citizen mothers the same rights of access to the United Kingdom as if they were British citizens by descent. Accepting this amendment would remedy what is now seen as an anomaly which preserves an old-fashioned rule of gender inequality. It does so in favour of a small, closed class of people. It would not throw any perceptible burden on the state, and there is no justification for the Government objecting to it. I beg to move.
I warmly congratulate my noble friend Lord Goodhart on his ingenuity in bringing what is effectively a nationality problem within the ambit of the Long Title of this Bill which is concerned with immigration. In the British Nationality Act 1948, a child born overseas to a British mother and a foreign father was not entitled to become a British citizen, whereas if the father was British and the mother foreign, the child could be British. This was one of the wrongs of history, which the noble Lord, Lord Filkin, said five years ago one could go only so far towards righting.
When the matter was raised last week by the noble Lord, Lord Higgins, who I am glad to see in his place, the Minister—the noble Lord, Lord Bassam—merely repeated that formula, which is a meaningless argument that can be used against any reform. In a number of debates, as well as in two meetings with Ministers in the summer of 2002, we never had any objective justification for the refusal to eliminate this wrong. In the British Nationality Act 1981, provision was made for the child of a British mother and a foreign father born abroad after 7 February 1961 to be registered as British by his parents while a minor. That had already been the subject of an administrative concession, as my noble friend Lord Goodhart explained. It became apparent that some children who might have benefited from that concession who, when they became adults, wanted to be British had forfeited their entitlement because their parents were unaware of the change or, for one reason or another, failed to act in time.
During the debates on the 2002 Act, we persuaded the Government to enact what is now Section 4C of the 1981 Act, allowing those children to register of their own volition when they became adults. The effect of this change was that in families where children were born before and after the cut-off date, the younger children were entitled to British citizenship and the older ones were not. Michael Turberville, the leader of the NGO, Children and Maternal Parents Against Immigration and Government Nationality Situation—CAMPAIGNS—tells me that he has fewer than 300 pre-1961 children on his database, which conforms with the estimate that my noble friend gave of a few hundred people who might be covered by his amendment. My correspondent, Michael Turberville, thinks that there may be a few more who would like British citizenship but are not aware of his efforts over the years. We are not talking about a large number of people.
Mr Turberville points that when the concession was made for post-1961 children, not a great number of them took advantage of it. He also tells me that only one of the pre-1961 children on his database would not benefit from the amendment of my noble friend. As it happens, that person has probably acquired a right to register through length of residence in the United Kingdom. On learning of this amendment, Mr Turberville wrote to me:
“CAMPAIGNS would gladly welcome any movement on the cut-off date that would incorporate any decrease in the current disenfranchisement of British women in their ability to pass on their nationality to their children both in other countries and to non-British fathers. This is the 21st century and discrimination in nationality and identity on the basis of gender should cease. Children of British fathers have not had to endure years and decades of being denied their birthright; it is time to put equality into the national identity of what it means to be British. Equality before the law and Parliament should be paramount in all aspects of British life. This is one of the last bastions of discrimination against British women that we would like to see buried in the archives of history”.
He adds that any movement on the 1961 date to accommodate the remaining handful of people would be greatly appreciated by his membership. They would bring skills and knowledge and other resources to what many consider to be their rightful home.
When we discussed this problem on the Immigration, Asylum and Nationality Bill in February 2006, the noble Baroness, Lady Ashton, responding on behalf of the Home Office, rightly observed that this problem was,
“sexism and nothing else as far as I am concerned”.—[Official Report, 7/2/06; col. 630.],
and paraphrased the mantra that was repeated by the noble Lord, Lord Filkin, and by the noble Lord, Lord Bassam, the other day that we cannot undo everything that went before. Parliament can and does amend older legislation that is incompatible with our international obligations—in this case, the Convention on the Elimination of All Forms of Discrimination Against Women. The Government were proud to announce the ratification of the optional protocol to CEDAW in December 2004, which ostensibly gave women who wanted to complain against general discrimination by the Government the right to approach the UN Committee on CEDAW. However, when Mrs Constance Salgado tried to complain about the law, she was told that her complaint was inadmissible because of the Government’s reservations on nationality and immigration. Mrs Salgado has read the exchange that we had on the Question asked by the noble Lord, Lord Higgins, and she comments:
“It appears that the Government is still entrenched in the old philosophy, that when those affected by the discrimination die … the whole problem will be solved”.
The noble Lord, Lord Bassam, was unable to give any rational explanation for refusing to eliminate this sexism from our national law, and his estimate that 3,000 people a year might be affected is wrong by about two orders of magnitude. The suggestion that the victims of this discrimination can become naturalised by length of residence in the United Kingdom is also wrong, because at present they have no right to enter the UK. Since he thinks that they already have the right of abode, he ought to have no problem accepting the amendment.
We now have a woman Home Secretary, and she may take a different view from her predecessors. I appeal to the Minister to discard his brief and promise the Committee that he will draw her attention to what has been said today, as well as to what was said in 2002 and 2006, and will at least ask her to meet us before Report so that together we can eliminate this discrimination from the statute book.
I have added my name to the amendment, which seems to me entirely admirable. The arguments put forward by the noble Lords, Lord Goodhart and Lord Avebury, seem to me to be overwhelming. It is a particular pleasure to follow the noble Lord, Lord Avebury. Back in the early 1960s, I had the great good fortune not to be selected as the Conservative candidate in the Orpington by-election, which was won by the noble Lord, Lord Avebury—then Eric Lubbock—in what was certainly the worst Conservative by-election defeat in living memory. Had I been selected, I imagine that I would probably not be standing here now because the political career of the unfortunate individual who was selected came to a rapid halt.
We find ourselves in an extraordinary situation. The Government have persisted in maintaining their position with a totally incomprehensible series of arguments. At Question Time the other day, the Minister quoted the statement by the noble Lord, Lord Filkin, that we can only go so far towards righting the wrongs of history. The noble Baroness, Lady Ashton of Upholland, on the then Immigration, Asylum and Nationality Bill, paraphrased his remarks by saying,
“we cannot undo everything that went before”.—[Official Report, 7/2/06; col. 630.]
We cannot undo everything that has gone before, but we do not have to go on doing it. That is what we are doing, and there is no reason why what has happened in the past, sad though that may be, should not be put right for the future. It seems to me that what has happened is very strange. The Government have made one minor concession after another; it is the opposite of a death by a thousand cuts. It is gradually getting better, but we still have not come to the end. We really are at the end game.
The noble Baroness, Lady Ashton of Upholland, speaking in the debate reported at col. 630 of Hansard on 7 February 2006, seemed to get involved in the most extraordinary and convoluted argument about whether it was right to give these people nationality or right of abode depending on whether they were children or adults, and that is the crux of the matter.
It occurred to me on a previous amendment that there is a confusion here. That amendment states that,
“‘child’ means an individual who is less than 18 years old”.
But as far as the relationship with the parent is concerned, they remain the children of that parent regardless of their age. It is a totally different concept. The concept that is relevant in relation to this amendment is that they are the children of a particular person. In the extract to which I referred, the noble Baroness got in an even bigger muddle as she somehow got mixed up with the question of siblings and so on. It is the relationship with the parent that is relevant, not the relationship with a sibling. However, as has been pointed out, the way the deadline is set, some siblings are one side of it while others are the other.
But quite apart from all these arguments, it seems to me that the time has come to put the matter right. As the noble Lord, Lord Goodhart, pointed out, this measure is concerned with abode rather than citizenship, which was what I dealt with the other day. None the less, it is a move in the right direction. I am sure that if the measure concerned with abode is accepted, one will rapidly get a concession on citizenship.
I have a terrible feeling that what is really happening is that somewhere deep down in the Home Office an official is determined not to change his mind. It is time for the Minister to get hold of that official, or collection of officials, and bang their heads together, but not at this very moment. The officials sitting behind him may well not be causing the problem. However, we really ought to sort this matter out.
My final point cuts away from all these technical matters. Over the years the granting of citizenship has changed totally and there have been many controversies. The other day the noble Lord, Lord Avebury, asked whether there was a hidden agenda. We were assured by the Minister that there was not. I suspected that that was the case at first but we take the Minister’s word for it. The reality is that a huge number of people are being granted British citizenship. It was reported in the press the other day that a convicted terrorist had been granted British citizenship. This large number comprises asylum seekers and immigrants of all kinds.
The numbers game is only partially important, but surely when we are giving citizenship to a very large number of people who have absolutely no prior connection whatever with this country, it is wrong to deny it to the category of people mentioned in the letter that the noble Lord quoted. I have received a similar letter. These people are desperately anxious to be British because their mother was British. I believe that the time has come to accept this measure. There are no big financial implications and there is no question of setting precedents. Certainly, we have not heard a single good reason why we should not accept this amendment.
That is interesting in itself. I found this a fascinating discussion. I have listened to the debate with more interest than I thought I would and I have listened very carefully to what the noble Lord, Lord Goodhart, said. I do not know a great deal about the noble Lord’s personal background, but I had thought he might have a personal angle on this and I believe it helped him to illustrate the case with a degree of insight that otherwise would not have been there.
I shall summarise our case. Clearly, this matter will not be resolved today. 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. As noble Lords have said, 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 there is now provision in the British Nationality Act 1981 for a person to be registered as a British citizen, on application and payment of the prescribed fee, if he or she would have been registered in accordance with the policy announced in 1979 had the necessary application been made while he or she was still a minor. In other words, the person concerned must have been a minor on 7 February 1979.
We were not persuaded that it would be right to go any further than that. This was in light of the principle that an adult seeking to be granted British citizenship should normally be able to demonstrate on the basis of his personal connections with this country why his application should succeed. It is also the case that those who would benefit from any further relaxation of the requirements in the 1981 Act are at least 46 years old. Therefore, they are, one assumes, well-established elsewhere. Their situation may be the legacy of legislation that most of us now consider otiose, repugnant and unacceptable, but it is a legacy that cannot simply be ignored.
I think the noble Lord is trying to help me to get to the point. There will always be a difficulty with a boundary or a cut-off point, wherever it is placed. That is an issue. The noble Lord, Lord Goodhart, made the point that we can minimise the element of discrimination by changing the position of the cut-off point or boundary line.
The amendment seeks to avoid the restriction on eligibility for registration as a British citizen by conferring the right of abode in the United Kingdom, whether or not they wish to have it, on any person who would qualify but for his or her date of birth. Many such people, if they are Commonwealth citizens, will already have the right of abode here as they will be covered by Section 2(1)(b) of the Immigration Act 1971. It is our view that the rights associated with British citizenship, including the right of abode, should in future be limited to those with close and continuing connections with the United Kingdom. To create an additional category of people who held a right of abode without having acquired British citizenship would be inconsistent with this principle.
I am not sure it is possible to answer in those terms. I return to the point that there is a difficulty wherever the cut-off is. To take the proposition of the noble Lord, Lord Goodhart, that we should go back to 1 January 1949—that was the nub of what he said—one could make a hard case that it is tough on the person who was born on 31 December 1948 or earlier. In terms of numbers, the further back one goes the fewer people who are discriminated against.
Can the Minister explain why, if the Government are concerned to limit the right of entry to this country to those with close links with the United Kingdom, they limit the right of entry of children born abroad of foreign fathers and British mothers, but do not seek to limit the equivalent rights of children born abroad of British fathers and foreign mothers?
The noble Lord is asking me to describe the basis of the original discrimination. We accept that that discrimination was there, which is why we made the changes. No doubt that is why the Conservative Party dealt with it in the way that it did back in 1983. It was accepted that that discrimination was there and that it needed to be corrected. In the end, it comes back to the point that the noble Lord, Lord Goodhart, made originally, which is that the further back the cut-off point goes, the less likelihood there is that somebody will be caught and discriminated against.
The noble Lord made the point that in all probability few people continue to be caught by this. The noble Lord, Lord Avebury, corrected what he thought I was saying at Question Time the other week, when I said that I thought there might be about 3,000. I am not sure that I put it in those terms, but I accept that the number is likely to be low. That is our case. I am sure that noble Lords will find plenty to disagree with. I am grateful to the noble Lord, Lord Goodhart, for raising this issue. No doubt he will withdraw his amendment today and consider coming back with it at a later date.
We are all struggling to hear from the Minister the virtue that attaches to 1961. If he were able to give the Committee a justification for that date, he might assist not only the Committee but, I suspect, the House at a later stage. I have this foreboding that this matter is not going to go away.
I would be inclined to adopt a rather simpler approach than my noble friend. The Minister has not explained why we now need any cut-off point. Why do we not simply give right of abode or citizenship to those who have a foreign father and a British mother? The noble Lord gets all tied up in dates and when we did this and when we did that, but he has not explained—I am sorry if it is not in his brief—why we need a cut-off point.
Reflecting on that question is important. I think we probably had in mind a wide range of circumstances that needed to be catered for had the provision been more extensive when my noble friend Lord Filkin dealt with it back in 2002. The historic discrimination in the nationality legislation affected not only women who were British by birth in the United Kingdom but those whose citizenship derived from a connection with some other part of the former British Empire. In some families, several generations may have been excluded from our citizenship through a combination of the statutory discrimination itself—that is what it was—and certain life choices that were made as a consequence of it. I return to the point that any geographical or temporal limitation in the new registration provision would have produced hard cases, whether the issue is 7 February 1961 or 31 December 1948/1 January 1949. The Government at the time felt that they were justified in drawing a line around those who, had they applied in time, would have registered as citizens under the terms of the policy announced in 1979. That was one of the anomalies that was corrected at that point. I accept that there is an element of discrimination wherever there is a cut-off point, but there was some logic originally to having a cut-off point, as I have explained, and that was the logic that was adduced then.
I feel bound to say that that really is not good enough. We asked whether there was some hidden agenda, which perhaps we felt was something to do with some previous colonial situation, but as the Minister says there is no hidden agenda, I understand that that is not the situation at the moment. Nothing that he has just said in any way justifies having to have a cut-off point. We have not heard a single reason why we have to have a cut-off point now, as opposed to the past and to various situations that have changed in the past, or why we cannot simply remove it.
Perhaps I should start by talking about the cut-off point. I tried to explain earlier in my speech why I did not go back to before 1 January 1949. The reason is that, until that date, the great majority of British women who married foreigners would have acquired their husband’s nationality and lost their British nationality on marriage. Before 1949, the right to British citizenship might have been available only in a very small and rather random collection of cases, so I do not intend to change that outlook.
I accept that there should be a cut-off point because of the nature of the rights that existed before and after 1949, not simply on the ground that there must be a cut-off point somewhere. I accept it because of the different legal situation that British women marrying foreigners were in before and after 1949.
I would be very happy if I thought that the circumstances made it plainly desirable to dispense with one. I simply think that giving British citizenship to the child of a couple, neither of whom had British citizenship on the date of the child’s birth, would present serious problems and would not be acceptable. If we were to go back to before 1949, we would have to limit the right to citizenship to the relatively small numbers of people who have a foreign father, a mother who was a British citizen on the date of the child’s birth, and who were born abroad. That would give rise to anomalies. However, this is far from being the most important issue in this matter.
The Minister put up no serious arguments whatsoever for rejecting the amendment. Neither he nor, no doubt, those who have briefed him on this matter have been able to come up with anything which gives the slightest justification for the present position. The Minister said that the legacy cannot be ignored. Of course the legacy cannot be ignored, but where the legacy is itself an unfair and unjustifiable one, as here, then surely what we mean when we say, “the legacy cannot be ignored”, is that we must correct the injustice done by the original legislation.
The argument remains an extremely strong one. In those circumstances, and in view of the support that it has received in the Moses Room, it is my intention to bring the amendment back on Report so that it can be argued on the Floor of your Lordships’ House.
The Chairman was a little swift for me, as was the noble Lord, Lord Goodhart, who was being succinct in his withdrawal of the amendment. Having listened and trying to be an impartial observer in this but finding myself more and more confused by some of the arguments—and having not only carefully read the Official Report of the previous debates, but having sat through all the debates since 2002—I wonder whether the Minister might consider a meeting with noble Lords on an all-party basis to see whether there is any way we might take this forward. I appreciate that we have some time before Report, which cannot be until October. Might the noble Lord, Lord Goodhart, be prepared to offer that as a way forward to the Minister?
I certainly agree. As I understand it, we are due to start Report in the first week after the Recess. Of course, that gives us time. I should have said that I hope that the Home Office will be prepared to consider further whether this reform cannot be accepted. I would of course be more than happy to take part in any discussion to consider the issues and try to persuade the Government, behind the scenes, that they really ought to do this.
First, rule number one is never look a gift horse in the mouth. Secondly, I have heard all sides of the Committee on this. Thirdly, I have drawn the conclusion that we ought at least to have an all-party discussion on it to see if there is some way to ensure that there is greater rationality behind the position we are in. That would probably be most helpful.
43: After Clause 20, insert the following new Clause—
“Immigration control: age assessment by ionising radiation
No person claiming to be a child shall be subjected to ionising radiation for the purpose of age assessment in connection with immigration control.”
The noble Lord said: The amendment concerns the use of X-rays for the purpose of age determination in immigration control, a practice which was terminated by the Home Secretary, Mr William Whitelaw as he then was, on 22 February 1982. That followed the publication of a report by my office on the subject in June 1981, copies of which are available to the Committee on the Table over there—unlike some of the documents that been referred to by the Minister. It is good practice when one is referring to documents in Grand Committee to make them available so that, if Members want to look at them, they can do so during the discussion.
That report found that the use of X-rays—
The noble Lord may say that, but in the consultation document on the process of age determination, there was no reference to the 1981 report. Therefore, I must be given leave to suspect that there are people in the Minister’s department who were not aware of its existence. That report was endorsed at the time by an ad hoc medico-legal committee which consisted of representatives of the BMA, the TUC, law centres, regional health authorities, the JCWI and individual lawyers and doctors.
In the Government’s consultation document, Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children, there is a discussion of the problem of age determination, so that eligibility for children's services and for enhanced access to legal aid, which we were discussing a few minutes ago, can be decided. It is also necessary, as we discussed on Amendment No. 41, to determine whether a child is over or under the age of 16 and a half at the date of his original application. The Government say that in 2005, 2,425 asylum seekers claimed to be under 18, but were initially deemed by immigration officers to be adults. Some of them were later reclassified as children following more thorough assessment by social workers, but the document claimed that the number of age-disputed cases was illustrative of a serious level of abuse of the system. While not disputing that some pretend to be younger than they are, the fact that social workers frequently have to correct the initial assessment by immigration officers may be said to indicate that a systematic misjudging by those officers is built into the system.
I very much welcome the proposals by ILPA in their report, When is a Child not a Child?, launched in Committee Room 17 on Tuesday, for reducing the number of age disputed cases, and for referring all those cases where agreement is not reached between the asylum seeker and the immigration officer to a regional age assessment centre, independent of the local authorities. The head of the BIA, Ms Lin Homer, who must be given her due for poking her head into the lion’s den by attending the launch, said that the BIA was interested in the idea, which might be related to the Government’s proposal for specialist authorities to whom UASC will be directed in the future, subject to the agreement of the authorities concerned, as we were discussing earlier. The Government envisage that there would be 50 to 60 such authorities, each caring for about 100 UASC, all outside London and the south-east, and all having previous experience of dealing with a reasonable number of UASC. That probably limits the choice to authorities in five regions, so there would be about one regional age-assessment centre to 20 specialist authorities.
Although it sounded as though the BIA was firmly committed to the use of dental X-rays as an aid to age determination, Ms Homer said at that meeting that no decision had been taken, and that the BIA was still consulting on it. However, I believe—the Minister may confirm this—that they have already invested in some equipment and have been surreptitiously trialling the concept at some entry ports. I received no answer to the question of whether they had proactively asked the BMA, the BDA and the Royal Colleges on the matter, but Sir Al Aynsley-Green, the Children’s Commissioner, who was scathing about the idea in his foreword to the ILPA report, said that none of the professors of paediatric endocrinology to whom he had spoken were in favour of the use of X-rays, and he could not imagine any scenario in which dental X-rays might supplement other methods of age determination.
We recognise that procedures for age assessment are necessary to ensure that, as far as possible, children are treated as children, and adults who claim to be children are not. This is a problem facing every jurisdiction, and there is no best practice.
Extraordinarily, in the UK there is no statutory procedure or guidance, but the London boroughs of Hillingdon and Croydon, which have dealt with the largest number of UASC have jointly developed their own pro forma. This has been approved by the courts and is now being used by most SSDs, but the ILPA research showed that none had been given training on how to use it.
The way forward would be for the Government now to take powers to enact statutory guidelines by order, building on the experience since the Merton judgment in 2004, with the flexibility of being able to vary them from time to time as further experience may suggest. In this way, the process of age determination can be improved and standardised without returning to the unethical and inaccurate subjection of children to ionising radiation, which was abandoned by a Conservative Government more than 25 years ago. I beg to move.
The noble Lord, Lord Avebury, is referring to when the then right honourable and later my noble friend Lord Whitelaw abandoned a particular method of assessing age. I appreciate that in that time there have been significant changes in technology, and I anticipate that the Minister will repeat what we have been told at Question Time and on the Floor of the House on occasions; namely, that the methods are safer and more accurate in their assessments.
I have some difficulty with the amendment proposed by the noble Lord, Lord Avebury, because the way in which it is drafted did not give us the opportunity to consider what he was going to propose in his speech as alternative methods. He simply abolishes something. He did not point us in the direction of what might come in as an alternative. I am very interested in his proposals and wish to consider what he has said between now and Report.
We have to look very carefully at what the noble Lord has said. We must have procedures for age assessment. They have to be robust, safe, human-rights compliant and proportionate. Above all, they must ensure that those who seek to come here by pretending that they are not the age they say are screened out. It is not fair on children who wish to come here, if the system is abused. I wonder whether the noble Lord, Lord Avebury, or the Minister, can assist me in saying what the practice and procedure is elsewhere in the EU, and whether there is any proven practice that appears to be more successful than ours.
Certainly, I am aware that there is a great advantage for those who claim to be younger than they are if they come here and successfully gain the right to remain. One has to be aware of the reality. We must not seek to introduce systems that will unfairly benefit those who should not be here. We must ensure that children whom we would wish to enable to have the right to be here are not put in a position of being treated in a way that is injurious to their health, and we must not find that the system does not work. It would be interesting to hear from the Minister about advances in technology because in the past those arguments have been very persuasive.
X-raying anyone is an easy way to assess people, but you can jump to conclusions by taking the easy way. There is evidence that X-rays of teeth are unreliable for showing age because the environment, nutrition, ethnicity and race affect the result. It would be unfair, as well as unreliable and uncertain, to accept this criteria. Some years ago, just after the Ethiopian famine, I met with some of the survivors and I held some of the young babies in my arms. They were so different from children in the United Kingdom. They were nearly weightless; they were just skin and bone. Their development was going to be so different from the development of children in Wales and in other places because they did not have—
I am grateful to the noble Lord for giving way. Has he also looked at evidence that is adduced in family courts, where paediatricians have to make assessments on the basis of screening techniques and X-rays of children who have been subject to malnutrition and abuse in this country? They have determined that one can use X-rays accurately to determine a child’s age, set against the knowledge of the experience the child has gone through.
As a magistrate who has had to sit through many training sessions for paediatricians and who has gained by the experience, I think that I should speak up for them and say that they have to take account of a person’s nutritional background. There is malnutrition and abuse in this country, and paediatricians in this country have extensive experience of how to interpret X-rays against a person’s background and medical condition.
I accept the evidence that the noble Baroness presents to the Committee. In Ethiopia—not today—and in other places such as Darfur, children do not have the nutrition and support that they have in the United Kingdom. So we come to how we determine a child’s age. Do we do it from documentation? A child from that sort of area may have no documentation. A birth certificate could be a counterfeit. We do not know, so we have to look at another way.
In 2005, 2,965 child applicants for admission to the UK had their age accepted, but in 45 per cent of cases—2,424 applicants—there was a dispute about age. We suggest that an immediate assessment is not reliable or fair. When a child comes here, he is traumatised and vulnerable. His background is so difficult, and the new culture that he will experience in the UK is so vastly different from what he has had in the past that we must give him time to settle in. A continuous assessment should be made while the child is settling in the UK. If we put consideration of age on hold, we could have regional age assessment centres where skilled social workers and medical professionals could see how the child develops and could more reliably assess age.
We suggest that an immediate decision is not needed. We need to realise how sensitive this issue is and that that child needs support and love, which he may not have had in the past. As time goes on, the age of the child can be assessed. That might be more reliable, although I do not know whether it would be 100 per cent reliable because we look at people of different ages in our own House and say, “Is he really 103?”. Age differs, so we must take our time and not decide immediately. We should let the child settle down, and then skilled people will be able to make a fairer assessment.
This is carrying on a debate that we had in another forum, although the debate in Question Time in the House a few weeks ago was more telescopic. The lines of argument that are being advanced in the debate this evening are very similar. That is not to say that they are not highly relevant, because they obviously are. As the noble Baroness said, the amendment seeks to strike out the capacity to use dental X-rays as a tool in age assessment, whereas the noble Lord argued in part that we should have some form of statutory guidance that would cover the use of dental X-rays.
No, I did not. I suggested sufficiently developed statutory guidance along the lines of the Hillingdon pro forma. So instead of having two local authorities offering their procedures, as they do at the moment—these procedures, as I said, were adopted by the courts in the Merton case—the Government should develop those procedures and institute them throughout the country so that there is a uniform approach to age determination but one that does not include dental X-rays.
I will move on. I certainly understand that there are concerns about proposals in our recent consultation paper, Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children. One of our proposals—it is just a proposal—is to make greater use of dental X-rays to assess the age of young asylum seekers where that is in doubt. I do not think that there is a great deal of argument—
I used the term “proposal”, which does not contradict what the noble Lord said that Lin Homer had said. I think it would be helpful if I set out the background. I do not think that there is much of an issue here about the importance of age determination, because there is evidence of very serious abuse of the asylum and support system by adults claiming to be children. I believe that all Members of the Committee would accept that that can lead to very serious child protection issues, as it can result in adults being placed in accommodation designed for children, with all the potential that that opens up for abuse. There are also cases of children having been incorrectly assessed as adults, and thus having been placed in adult accommodation, thereby placing them at possible risk. Both the Government and local authorities need to work together to improve age assessment procedures, which is precisely why we have been considering this proposal.
We remain of the view that a social worker’s assessment of age, drawing on that person’s professional experience in dealing with children, should remain the primary means of assessing age. However, we believe that a dental X-ray can be a useful additional tool in the overall decision-making process. As the noble Lord, Lord Avebury, has said, some local authorities already arrange a dental X-ray and subsequent report by an expert in the field to assist in their final decision. It is entirely up to the individual to decide whether he or she wishes to undergo such an X-ray. Nothing that we propose will change these arrangements. We do, however, wish to standardise the arrangements, so in a sense we agree in part with what the noble Lord says. We can then ensure that the procedures for obtaining informed consent are applied consistently.
X-rays cannot determine age absolutely precisely; indeed, no procedure can give that certainty. We do believe, however, that they can provide a better means of narrowing the range of possible ages than other techniques, and can thus assist the decision maker. It is true that any X-ray procedure involves some exposure to ionising radiation, but we have been advised that the risk of harm is extremely small. Most children, regardless of their immigration status, are likely to undergo dental X-rays as part of routine healthcare checks.
It is our policy, in the absence of any credible documentary evidence or other persuasive evidence to demonstrate the age claimed, to accept a social worker’s assessment of age. This is widely supported by most stakeholders, including the main children’s charities and, importantly, by refugee organisations. This amendment, if accepted, would make the operation of that policy very difficult. It 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. Equally, it would appear to prevent an individual from obtaining an expert opinion on his age through a dental X-ray. Therefore, it could work both ways.
The establishment of a code of practice to keep children safe from harm, which we debated on the first Committee sitting, will provide additional safeguards to those which will be included in the arrangements for dental X-ray. We are committed to finding ways to improve the current process for age assessments and to minimise the serious child protection issues that arise following incorrect assessments. Many EU member states, for example Denmark, France and the Netherlands—I believe that I mentioned those countries at Question Time—use dental examinations for the purposes of age assessment. However, there is variation between EU member states. We have commissioned a review of existing research in response to some claims that there might be ethnic variations in dental development. It is right that we should consider these findings and responses to the consultation before taking any further action.
I have dealt in part with the point raised about the accuracy or otherwise of dental X-rays. I explained that we have commissioned a further review. As for why the Government have changed their position on the use of X-rays since the 1981 report, the answer is twofold. First, the number of people claiming to be children has risen dramatically since 1981 because the level of claims for asylum has gone up dramatically. Although the general asylum intake figures have reduced in the past five or six years, the number claiming to be children has remained constant, at least in the past three years. Therefore, it is now, more than ever, vital to ensure that we have the right age assessment—
I think that the noble Lord gave figures for the years up to 2005. As he knows, the immigration statistics for 2006 are not yet published and are not due until August. It would be very useful if the noble Lord could give us the number of children whose age was disputed in 2006 and, if possible, in the months up to June 2007, because I believe that the numbers are reducing and that the 3,000 a year mentioned by the Minister in previous debates is no longer applicable.
I certainly undertake to find as current data as we possibly can. The noble Lord may be right; I do not know. It is likely that he is. But my point is that, given the criticality of age in the assessment process generally for consideration of asylum cases, it is right that we should have proper procedures in place. The heightened concern about child protection issues underpins that.
Further, it is right that we should explore the medical and technological advances made in the past 20 years, which have been mentioned, with a view that X-rays may be able to contribute to an overall holistic and more scientific approach to age assessment. That would be in everyone’s interest. As I say, we have committed to review ethnic variation in the development of teeth. We have commissioned a leading ordontologist to research ethnic variation issues relating to tooth development. Of course, we will be willing to share the findings from that report with the Committee.
A question was also asked about who we had consulted about the use of dental X-rays. As I have explained, we published a paper earlier in the year. The consultation period ended on 31 May and we are carefully considering the responses received. There have been more than 100, from a number of local authorities, NGOs, and children’s and refugee organisations. The consultation paper included the proposals to use dental X-rays for the purposes of age assessment. Separately, officials have met with the Royal College of Paediatrics and Child Health, the Healthcare Commission and the Department of Health. We have spent some time on this and are approaching the subject with considerable care. It is a serious issue, as we all appreciate. The age assessment issue is important for a number of reasons, not least child protection and making a proper assessment of entitlement to reside in the UK.
First, there is no argument between us about the necessity for having as reliable a procedure for determining age as is technically and scientifically possible, while always bearing in mind that this is not an exact science. However you refine the procedures, there is always going to be a residue of children whose age is indeterminate, where one would suggest that the immigration authorities should give the benefit of the doubt. The consequences of a child being wrongly classified as an adult can be immensely serious, both in terms of their treatment in the immigration system and the amount of legal help they get and so on.
We are not aiming at perfection. The Minister will concede that nobody claims a great deal of accuracy for the assessment of age by dental X-rays, even within the populations of western Europe and North America. The techniques used—the Tanner-Whitehouse atlases and the Greulich-Pile atlas, developed in the United States and imported into this country—refer to well fed, middle-class American children. As my noble friend was trying to point out, when you are looking at populations of Ethiopian children, you have no idea whether the mean and standard deviation of a particular development in a child’s skeletal or dental structure are the same as those in the host population. In spite of what the noble Baroness, Lady Anelay, was saying to contradict my noble friend about paediatricians coming into the family courts and making age assessments of malnourished children in the United Kingdom, those would certainly not be applicable to populations, let us say, of Somali or Afghan children. You have no knowledge whatsoever of the mean and standard deviation of the dental and skeletal developments in those populations.
I know that the noble Lord has a great technical grasp of these matters, but I was arguing that paediatricians in this country are able to give informed interpretation of the information before them. As the Minister has said, the use of dental ionisation X-rays is just one part of the way in which an age assessment is made. It may be a useful part. It is right that we have had the debate today, from the noble Lord, Lord Avebury, to put in context how valuable or not that X-ray system may be. That is the important thing.
What the noble Baroness said about the use of dental X-rays in family courts was news to me. I hope that that will be referred to the Royal College, which, when I last asked, was opposed to the use of X-rays, and so were the British Medical Association and the British Dental Association. The Minister said that 230 organisations responded to the consultation.
I would like to know whether any special notice was taken of ethical considerations. Not long ago, when I asked the BMA, the BDA and the Royal College of Paediatrics and Child Health, they said that the use of ionising radiation for non-clinical purposes was not ethical. Irrespective of the accuracy of the process, that fundamental question needs to be determined before one ever considers whether it should be used as an adjunct to other methods.
I hesitate to intervene, but I must, even though I know we are to finish dead on a quarter to eight. When I spoke, I very carefully referred to paediatricians in the family court. I was not referring to dental X-rays; I was talking about the science of interpretation of medical evidence and trying to argue—although not to the satisfaction of the noble Lord, Lord Avebury, as I knew I could not—that there is a variety of methods of providing medical interpretation of evidence. It is useful to have this debate because it is important to understand what methods are available to assess children’s ages. I feel sure that the noble Lord, Lord Avebury, will wish to return to this on another occasion.
That will be in time for Report stage. Meanwhile, I refer to the comments made by the Children’s Commissioner in the foreword to the ILPA report, When is a child not a child?. He said:
“Of serious concern to me is the Home Office’s proposal that the assessment of skeletal maturity by x-rays of the teeth or skeleton be used routinely to determine ‘age’. I base my condemnation of this proposal on the fact that for 30 years I have been a full-time paediatric endocrinologist, that is, a specialist in the role of hormones in the mechanisms of growth and sexual maturation in children and young people. There is substantial normal variation in the speed with which young people attain sexual and skeletal maturity.
“The proposed x-rays demand specialist interpretation, and it is naïve to argue that they can determine the child’s chronological ‘age’”—
and so on. That remark is made by an expert, and he reinforced it in the discussion which we had in the Committee Room upstairs last week. I imagine that that view would be reflected if the noble Lord cared to consult the Royal Colleges, the BMA, the BDA and so on. I hope he will do that.
Then why cannot the noble Lord produce those opinions? Let us hear them. It is getting a bit late; we have only a couple of minutes; we are under pressure from the clock. Before I finish, I want to challenge the noble Lord’s assertion that there had been enormous advances in medical and technological assessment of age by the use of X-rays. That simply is not true. I challenge him to produce a single, authoritative scientific survey, which is accepted by the professions, to substantiate what he says. I realise that with 30 seconds left, I am not able to complete this argument. Inevitably, we shall return to the matter on Report. Reluctantly, in the meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Clause 21 [Assaulting an immigration officer: offence]:
[Amendments Nos. 45 to 48 not moved.]