My Lords, I beg to move that the Bill be now further considered on Report.

Moved accordingly, and, on Question, Motion agreed to.

Clause 16 [Conditional leave to enter or remain]:

[Amendment No. 12 not moved.]

moved Amendment No. 13:

My Lords, I hope my noble friend will be able to give a convincingly reassuring response to the amendment. It relates not only to detention centres but to the whole of our penal policy. Anyone who has had anything to do with prisons knows that they are full of vulnerable people. In fact, by any enlightened interpretation of the word “vulnerable”, I would be prepared to argue that the majority of people in prison are vulnerable in one way or another.

However, we should be focusing our attention on two things: those who should not be in any kind of detention because of their psychiatric or mental condition, or, indeed, those who are the victims of torture. I do not think that it is possible to overestimate the significance, the trauma and the appalling scars for people who have been subjected to torture. They need all possible humanitarian support and assistance, whatever the situation that confronts them.

The other point is to make sure that where people who are in these categories need to be detained, there is appropriate detention which meets their needs. The tragedy is that in some places—perhaps in too many cases—conditions are made worse by the experience of detention and therefore problems accumulate for the future. I hope that my noble friend will take very seriously the issues raised in this amendment and be able to assure us that the Government are thinking hard and constructively about what should be done in this area of policy.

My Lords, I am very grateful to the noble Lord, Lord Hylton, and also to the noble Lord, Lord Judd, for this amendment—which, as each of them pointed out, is yet another of these amendments which from different vectors comes into the heart of the issues with which we are dealing. The reality is that, as the noble Lord, Lord Judd, just noted, most people in this position are in one respect or another vulnerable. Last year, or possibly the year before last, this House attended to what was then the Safeguarding Vulnerable Groups Bill. Elsewhere in society a great deal of attention is now being given to vulnerable people in one situation or another, whether in their own homes, in elderly people’s homes or in hospitals. I wonder whether everybody concerned with detention centres has been CRB-checked and all those kinds of things, as every vicar and every minister of religion who visits old people’s homes is as a matter of course.

We have to realise that a very large proportion of those seeking asylum, if genuine, as many of them are, will have had serious and damaging experiences of detention, even if those fall short of torture—those are difficult distinctions to make. As we noted the day before last when we debated these matters, and as both the noble Lords, Lord Hylton and Lord Judd, said, the likelihood is that, at any rate, most women in that position will have suffered at least severely inappropriate treatment, if not rape, at one point or another, because in many of the areas from which asylum seekers come, ill-treatment of women—rape and still worse things—is basic to the way that a range of militia, ill-disciplined, police forces and the military behave. There are many forms of ill-treatment short of torture.

As the noble Lord, Lord Hylton, noted, there are far too many people in the system whose probably genuine record of torture and ill-treatment has simply not been passed on—not noted or, if noted, not properly recorded and passed on. There are also people who are vulnerable because they have not received the right legal treatment or medical assistance and whose mental health has been affected by the whole process that they have gone through leading to the point of their detention. We will come later to those who have been severely affected through the experience of destitution.

Finally, I was recently given the figure—it will be interesting to know how the Minister responds to it—that more than 50 per cent of those presently in detention centres are there because they are foreign national prisoners awaiting repatriation. I was told that their presence radically affects the tone and feel of detention centres at present, making them more dangerous, less secure places for adults, let alone children, as we heard two days ago, who are already vulnerable. On all those counts, the amendment is critical and I very much look forward to hearing the Minister's reply.

My Lords, I shall speak to Amendment No. 26, which is grouped with, but more limited than, the proposal advanced by the noble Lord, Lord Hylton, and which is supported by the noble Lord, Lord Judd, and the right reverend Prelate. I must congratulate the noble Lord on the persistence with which he has raised the subject most effectively over a great many years. He has extended his concern today to pregnant women and those with serious physical and mental health conditions, for whom I agree that detention is inappropriate, except possibly when they are part of a family. In his reply to a similar amendment moved in Committee, the Minister acknowledged that a history of torture would normally make it inappropriate to detain the victim, other than in exceptional circumstances. The Operational Enforcement Manual requires officials to consider a history of torture and physical or mental ill health as factors against detention without going as far as prohibiting it altogether, but specifically requiring a separate decision to detain, not merely a consideration of the matter as part of the examination of the application, as has sometimes happened in the past.

The difficulty is that, as the Minister hinted in our previous discussion, some people make false allegations of torture in the expectation that it may reinforce their claim for asylum. As we noted before, it appears from the reports of the chief inspector on Yarl’s Wood, Dungavel, Campsfield House and Harmondsworth that they all completed the Form 35 letters which report the allegations of torture to the case holder, but then there was a lack of feedback from the case holder to the management of the IRC on the further action that should be taken. The Minister agreed that that issue needed to be looked at and addressed. Our Amendment No. 26 suggests a way in which that can be done.

I am grateful to the Minister for his letter of 9 October in which he says that, following the review of procedures on Rule 35 of the Detention Centre Rules, a central log of Rule 35 letters should be kept at every immigration and removal centre, and that BIA staff have been reminded to acknowledge the letters and to take them,

“into account in deciding whether detention should be maintained”.

I am asking that they go further and report on the specific action they take, which might include not only a decision to continue detention or order release but a decision to call for further medical reports on the asylum seeker concerned.

I also thank the Minister for the very interesting figures which he sent me on the number of allegations of torture reported in Rule 35 letters between January and September 2007. There were 968 in total, of which 335 came from Oakington and 288 from Yarl’s Wood—the two establishments from which the largest number of allegations of torture arose. The table does not tell us the number of cases in which it was ordered that the person should be released because the allegations were credible or whether in any cases there were further investigations by independent medical officers to verify or confute the claims that were made.

I expect that the Minister will say in reply to my amendment that this matter belongs in the Operational Enforcement Manual rather than on the statute book, but is that a real answer when the chief inspector’s recommendations have been so persistently ignored? As your Lordships are aware, the chief inspector has drawn attention to the failure in all immigration and removal centres to respond radically to the Rule 35 letters. It must be extremely exasperating for her to get no action from the BIA on a matter as sensitive as this. It is certainly disturbing to us as well.

As for other categories of vulnerable people, the list in the noble Lord’s amendment is not exclusive. Mothers with small children are not well looked after in Yarl’s Wood, where the staff have no special training and they do not keep stocks of the requirements of these mothers. The right answer seems to be to consider in every case whether there is a valid reason for detention and always to weigh that against the personal circumstances of the applicant.

My Lords, although my noble friend Lady Anelay said in Committee that she had some sympathy with these amendments, I think she also drew attention to the difficulties they could raise. It is clear that no one expects anything but the best possible care of people in detention and that they should receive medical advice and help should they need it, but there has been a hint from those who are perhaps more cynically inclined that such measures could be used against the proper concerns that people have. While we have sympathy with this amendment, it would be helpful to hear the Minister’s response on how he feels the matter can be dealt with. We have concerns about the amendments and the way in which they are drafted.

My Lords, before the noble Baroness sits down, does she accept that Amendments Nos. 13 and 26 are new ones tabled since Committee?

My Lords, I think I shall have to accept that.

My Lords, I support my noble friend on this amendment, but first I should like to put a question to the Minister: are the Government over-reliant on evidence from the voluntary organisations? I shall quote from a statement that he will remember was made by Michael Fisher, the former manager of the asylum screening unit in Croydon, dated 10 March 2006:

“Any person who has an appointment with the Medical Foundation or a medical report from that organisation which confirms that they are probably a victim of torture will not be detained, save in very exceptional circumstances”.

I wonder if the noble Lord could update the House on the extent to which we are dependent on single evidence organisations, and to what extent do the Government make their own investigations?

My Lords, there can be few people in this country who are not 100 per cent sympathetic with what the noble Lord, Lord Hylton, has said in moving this amendment. The problem, of course, is how to get there. As we go through the Bill, it seems that what the noble Lord, Lord Judd, has called the gap between policy and practice is the basic problem that arises over and over again—and here I am talking about detention centres. When the Minister replies, I hope that he will be able to tell us how the Government are trying to narrow that gap because this should not be allowed to continue without trying to resolve it.

I cannot see how Amendment No. 13 would work because the Secretary of State first has a duty to prevent detention and then to seek prompt release. The second subsection should apply if he has failed to secure prompt release. We should be discussing not the wording of the amendment but what the noble Lord is trying to achieve, and that is something that I most certainly support.

My Lords, I am grateful to all the contributors to this debate. These discussions are always enlivened when the contributors include the right reverend Prelate the Bishop of Winchester, my noble friend Lord Judd, the noble Lord, Lord Hylton, and the noble Earl, Lord Sandwich, because they bring a wealth of concern, knowledge and experience to the issue. I was impressed by a point made by my noble friend Lord Judd and repeated by the noble Baroness, Lady Carnegy of Lour, that the nub of the issue is the gap between policy and practice. In other words, that to which we aspire and what on occasion takes place in one of the institutions, which can fall far short of our policy objective. Our role as a Government, of course, is to focus our attention on and narrow that gap. I am grateful to all those whose care and concern keep us up to the high aspiration that we have set out in terms of policy, and translating that policy into effective, humane and sensitive practice, because this is a very difficult area.

Having said that, I do not see a need to depart from the position we adopted in Grand Committee. This amendment seeks to create a blanket exemption from immigration detention for vulnerable adults who must include torture victims, pregnant women and those with serious physical or mental health conditions. The noble Baroness, Lady Hanham, also said that this is a difficult area, one in which we aspire to provide the best of care, but we have to have firm and clear rules in position and ensure that there can be no abuses of the system. That, in essence, is our position as a Government. I shall go through some of the issues raised in the debate because I believe that they demand to be dealt with seriously.

The noble Lord, Lord Hylton, made it clear that he had tabled a similar amendment in Committee covering just torture victims. At that stage I set out at length why we could not accept such a blanket exemption from detention. That position has not changed, and we cannot accept this new amendment, which it could fairly be argued goes even further. As I said during the debate in Committee, our stated policy and published guidance makes it clear that a history of torture is one of the factors that must be taken into account in deciding whether to detain a person and would normally render the person concerned unsuitable for detention other than in exceptional circumstances. Independent evidence of torture will weigh heavily against detaining an individual.

In Committee I set out examples of the sort of circumstances in which a person who may be a victim of torture, or at least claims to be, might be detained. It is worth repeating them. Detention may be appropriate for reasons of public protection in the case of convicted criminals. The person concerned might be a persistent absconder. Detention might be appropriate in the case of a person who is to be returned to a third country for consideration of their asylum claim. Most commonly, it is likely to be appropriate in the case of persons who have no lawful basis to remain in the United Kingdom and whose removal is to be enforced. Amendment No. 13 would remove completely our ability to detain in these or other appropriate cases. That is not something that sensible immigration control can accept.

Stated policy and published guidance makes it clear that pregnant women should not normally be detained. The exception to that general rule is where there is a clear prospect of early removal and medical advice does not suggest confinement before then. In addition, pregnant women of 24 weeks and above are excluded from detention as part of the fast-track asylum process. In the case of women detained during the latter stages of their pregnancy we are always guided by medical advice on the issue of fitness to fly, which would be a key factor in deciding whether removal could proceed and thus whether detention should be maintained. Pregnant women who are detained have access to the normal range of healthcare services, including visiting midwives and health visitors. This is a perfectly sensible and reasonable approach to the detention of pregnant women. It would be nonsense if women were barred totally from being detained at any point during the entire period of a pregnancy, as the amendment would require.

In the case of people with serious physical or mental health conditions, we already make it clear that a history of physical or mental ill health will be a factor arguing against detention. Individuals with a particularly serious physical or mental health condition are excluded from the detained fast track and would not normally be considered suitable for detention in any other circumstances. Detained individuals who suffer from physical or mental health conditions have access to good-quality primary healthcare services within removal centres, including in-patient facilities in some centres, and access to secondary healthcare including mental health services.

More generally, all cases are considered on their individual merits, and factors arguing either for or against detention must be taken into account in deciding whether to authorise that detention. That covers those who claim to have been the victims of torture, pregnant women and people with physical or mental health difficulties. This is a sensible position to adopt, allowing for a flexible and appropriate response to individual cases. The amendment would remove that degree of necessary flexibility and create a potentially significant gap in our ability to ensure and enforce compliance with immigration laws. It would also be likely to provide a fruitful ground for costly legal challenges designed further to frustrate or delay removal from the United Kingdom. Furthermore, the amendment would be a serious obstacle to the quite proper use of detention in appropriate cases and would therefore weaken our ability to maintain an effective immigration control system.

I turn to Amendment No. 26, moved by the noble Lord, Lord Avebury. I appreciate the concerns that he and others have expressed over issues of this kind, but the amendment is not necessary. As I have made clear, it is already the case that a history of torture is one of the factors that must be taken into account in deciding whether to authorise or maintain an individual’s detention. The system under Rule 35 of the Detention Centre Rules of reporting claims or concerns about a person having been a victim of torture is intended in effect as a safety measure to ensure that such issues, where they are not previously known, can be taken into account in deciding whether to maintain detention. In the vast majority of cases, the individuals concerned will either be at the end of the process facing removal and claims to have been tortured will already have been considered, or they will be in the fast-track asylum process and can be expected to make their claim to have been tortured as part of that process.

Existing guidance to agency staff requires them to acknowledge receipt of an allegation of torture report from a removal centre doctor. It is important that the doctor should know that the report has been received by the relevant agency staff and I agree that this should be done promptly. It may be that the response to the doctor should go beyond a simple acknowledgement. The agency will look at the current guidance to see what more could be said, subject to any issue of confidentiality. For example, the response could indicate to the doctor whether the information about the claim of torture is already known to the BIA and has been considered or whether it is being considered as part of the individual’s asylum application. The guidance should also make clear the need for a prompt response to the doctor’s report. I have explained why we cannot accept Amendment No. 13 and I hope that the commitment to review the relevant guidance to staff will meet, at least in part, the concerns that lie behind Amendment No. 26.

Some specific questions were asked during this debate and I shall try to respond to them. The noble Lord, Lord Avebury, drew attention to some statistics that I released during an earlier discussion. I think that he wanted some idea of how many of those who are detained are subsequently released for a referral to the Medical Foundation. From 1 April 2006 to 31 March of this year, we detained through DFT and NSA processes 4,295 individuals, of whom 156, or 3.63 per cent, were released for a Medical Foundation referral. That gives some data in response to the noble Lord’s question. I am not sure whether it adds much, but I thought that I should put it into the public domain, because it underlines the point that the referral process is made use of.

The right reverend Prelate the Bishop of Winchester made a couple of valid and valuable points about CRB checks and the impact of foreign national prisoners on this part of our detention estate. I understand why he raised those points and, like everyone else, I share his concerns. All removal centre staff have to be CRB checked to an enhanced level—the very highest level of checking. That is absolutely appropriate, as we would not want any potential for abuse in the centres. The checks are very thorough and go a long way towards eliminating potential problems. High numbers of ex-foreign national prisoners have of course had an impact on the immigration detention estate in terms of additional challenges for the security and control of establishments. However, the individuals concerned are risk-assessed to ensure that they are allocated to appropriate centres, and centre staff are alert to the additional risks and the impact on other detainees. I recently visited Tinsley House at Gatwick, where I asked the very question that the right reverend Prelate raised. In that establishment, there were not, as I understood it, any problems presenting, although staff rightly have to be sensitive to the issues that may arise.

The noble Lord, Lord Avebury, asked whether staff have any particular training to deal with mothers with young children. Staff at centres that may hold mothers with young children are trained to deal with the issues that may arise. The healthcare staff, including visiting midwives and health visitors, are particularly alert to the relevant issues.

My Lords, in the case of Janipher Maseko, staff were not properly trained. They did not have breast pumps, for example, which enable lactating mothers to express milk from their breasts. That was a serious omission, considering that it causes considerable pain, as the Minister may be aware.

My Lords, I am aware of that; personal experience is a great teacher. I understand the noble Lord’s point.

The noble Baroness, Lady Carnegy, reminded us of the gap between policy and practice. Staff are intensively trained. Border and Immigration Agency workers who handle cases in this field receive instructions on dealing sensitively with asylum applicants who claim to have been tortured or raped. It is an element of the interview skills module of caseworkers who deal with cases under the new asylum model procedures. The case-owner foundation training programme is 55 days long and encompasses training on all aspects of considering an asylum claim, including five days of interviewing skills training and three days of advocacy training. During the workbook element of the course, where case owners receive the greater part of the legal knowledge that they require, medical and torture issues are considered, and case owners are made aware of asylum policy and other process instructions. Case owners receive instructions relating to torture and medical issues. The Medical Foundation features in several workbooks as an important element of that training process, which is reinforced during the five-day interview training.

The noble Earl, Lord Sandwich, asked whether the Government are over-reliant on evidence from NGOs and the extent to which they carry out their own investigations. All detainees are health-screened on arrival at medical centres. Removal centre doctors are required to report to the BIA on any case where concern is felt that the person concerned may have been tortured. We are not over-reliant on NGOs; there is an appropriate level of involvement. We seek to ensure that any allegations of mistreatment, torture and abuse are independently verified wherever possible.

I recognise that this is a difficult and sensitive area. I acknowledge, too, that we aspire to do more, but we have made much progress in that general direction. It is right that we be held to account and that we focus attention on these issues in important debates such as this. However, a lot of progress is being made. I am most grateful to noble Lords for the care and concern with which they have approached the issue.

My Lords, I thank all noble Lords who have spoken on the amendments. I was encouraged by the general tone of the remarks. I express my particular gratitude to the right reverend Prelate the Bishop of Winchester, first, for adding his name to my amendment and, secondly, for mentioning the urgent question of the foreign prisoners currently in detention centres. The introduction of a category of people who have never been held in those centres before has caused very considerable problems for detention and removal centres. I very much hope that we shall not continue for very long to hold foreign prisoners whose normal prison sentences have finished. I know that a great deal of work is going on to remove them promptly at the end of their sentences. I have heard that the number of staff working in this area has been increased by a factor of 20. That shows what can be done sometimes when there is sufficient governmental will.

I was encouraged, too, by the Minister saying that the intention is to narrow the gap between policy and practice. I should like that gap to be completely closed—and I make a couple of suggestions on how that might be done. First, much more use might be made of reporting conditions and even tagging of people who might otherwise be detained. Secondly, verification of allegations of torture and rape is fundamental to this issue. I was grateful to my noble friend Lord Sandwich for emphasising that. It is the case holder who really needs to act, and noble Lords will appreciate that the case holder is not normally at the detention centre—he is somewhere else, such as Croydon or Glasgow. Therefore there is a remoteness between the centres and the case holders. I hope that the Government are aware of that.

The situation has been most unsatisfactory for many years, which is why we need the gap between policy and practice completely closed. In this relatively thinly populated House and without the support of either of the main opposition parties, I do not intend to press this amendment to a Division, but I reserve the right to return to it at Third Reading and shall take advice on whether a new amendment could be devised that might get underneath the radar. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Support for failed asylum-seekers]:

moved Amendment No. 14:

My Lords, if this amendment is agreed to, I cannot call Amendment No. 17.

My Lords, the humanity, logic and relevance of the case made by the right reverend Prelate the Bishop of Ripon and Leeds is powerful. It spells out the cause of decency and civilised values in this context. It is good in every sense to find myself positioned behind him.

I shall speak to Amendment No. 15. I studied very carefully our deliberations in Grand Committee, and the response given by my noble friend did not resolve the matters that were raised by the amendments on this issue. In Grand Committee, it was noted that the Joint Committee on Human Rights had welcomed Clause 17 as recognising the right of asylum seekers to receive subsistence support pending the final determination on their claim. However, it was also noted that the Joint Committee had been persuaded by the evidence submitted to it that the Government had been practising a deliberate policy of destitution in relation to asylum seeking and that the Joint Committee had found that policy clearly unacceptable. In keeping with the recommendation of the Joint Committee, this amendment seeks to ensure that, in line with Article 3 of the European Convention on Human Rights, asylum seekers will always be treated in future with common humanity, as indeed the common law requires.

My noble friend has yet to tell the House how that objective will be fulfilled without the amendments. I fervently hope that he will be able to do so today when he replies to the more comprehensive proposal that has been put with so much commitment both in Committee and today by the right reverend Prelate.

My Lords, from these Benches, I shall speak to Amendment No. 17, which is in the same group as Amendment No. 14. I remind the House that on 26 March we celebrated 200 years since the end of the slave trade and the work of people such as William Wilberforce and Thomas Clarkson. We applauded our own humanity in restoring dignity to those people who had in slavery suffered in such a terrible way. We said, “What good people we were 200 years ago”.

A few weeks ago, I was in Parliament Square when the statue of Nelson Mandela was unveiled. He was there, and how we celebrated with him what had happened in South Africa because of his leadership and sacrifice. With the end of apartheid, dignity had been restored. We celebrated and applauded then, yet today we are asked to continue a measure that undermines not only the dignity but often the very survival of those who arrive in the United Kingdom. I am talking about Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act, which is affected by this Bill. As has been said, that Act withdraws all benefits from failed asylum applicants and their families. It was mentioned the other day that this legislation is in total breach of the United Nations Convention on the Rights of the Child. Article 24 guarantees every child health provision, but that is to be withdrawn. Article 26 gives every child a right to social security, but that is breached. Article 28 on education is breached, and there are other breaches as well. If we are to support all the obligations and opportunities of the United Nations Convention on the Rights of the Child, we must vote for these amendments.

There were three trial areas, involving 116 families and 219 children. Every local authority involved said that the trial was impossible because it was in contravention of the children Acts that support and defend children. We had a glimmer of light—I thought that it would be more than a glimmer—when the three pilot areas were withdrawn. That was an admission that they failed. Where Section 9 had been tried, it failed. We read in the evaluation report that families went into hiding rather than be deported to their countries of origin. I mentioned the other day the countries to which they would be deported. Pakistan might be okay. Then there were Somalia, Zimbabwe, the Democratic Republic of Congo, Angola and Iran. The largest number of applicants came from those countries. This proposal tries to force people back into those troubled areas. That is totally immoral. Little wonder that families go into hiding.

The provision tries to force people to leave by the cruellest of methods. The physical consequences such as food, shelter, health and benefits being withdrawn have already been mentioned. There is also the psychological damage. Imagine that you are a child in this darkest of situations. The Government say, “We recognise that, and we might get a new caseworker project going”. There is the Hotham project in Australia, and such projects must be encouraged. At the moment, the Bill is the legislation of the bully and is totally unworthy of a place in our legislation. Is there any other Act whose consequences are destitution?

Over the years, we have tried to withdraw from that. We have listened to various political statements and policies, and we have tried to lift children and families to new levels of hope and prosperity. But Section 9 does completely the opposite. Some say that this is a political argument. It is more than that; it is one of the great moral arguments of our time. Are we going to support legislation whose end is destitution?

Slavery was wrong and it was abolished. Apartheid was wrong and it was abolished. This section also is wrong and the Government must today, or possibly at Third Reading, come back with a proposal that removes this prospect of destitution from our statute book. The Government might say “Yes, it is there, but it will never be used—it is just a final deterrent”. We might as well say, “Let’s keep slavery, in case it is needed some day; let’s keep apartheid in case it is needed some day”. As those were wrong, so this is wrong. Section 9 is a scar, an ugly blemish, on the legislation of the United Kingdom. I suggest that today we put it finally to rest.

I know that my Benches will support this amendment and, unless the Minister gives us an assurance, we intend to test the feeling of the House and put the amendment to the vote at the end of this debate. It is not the time for anyone to sit on their hands. You cannot be a spectator. You must say either that we are for this sort of destitution clause or that we are against it. I say to those who up until now thought that they could just look on, can you really look on when you see children and others forced into this terrible state of destitution? I passionately urge noble Lords to support these amendments and to remove this blot from the statute book of the United Kingdom.

I shall speak to Amendment No. 17, to which my name is added, following the passionate speech of the noble Lord, Lord Roberts. It is deeply lamentable that in this country we can make families destitute by removing all support for them. Yes, there are means—complex means—by which social services can intervene, which put an additional burden on them, but this process of gradually withdrawing support for families puts those people under immense distress. Yet, it is ineffective or hardly effective at all. While 2 per cent of families were being returned by other methods, under this pilot it was raised to 4 per cent. The difference is marginal.

Other options can be used—detention is the most extreme—but the voluntary assisted return programme has been effective. I welcome the Government’s withdrawal of the pilots until now and their statement that they will use this measure very rarely. But look at what happened. Four children were taken into care as a consequence of these pilots; 32 families went underground into who-knows-what housing conditions with no access to healthcare or education. What sort of employment conditions were they subject to? It is hard to reconcile the Government’s desire to raise the status of social workers and demonstrate our respect for them, while not attending to the very strongly expressed concerns of the Association of Directors of Social Services and the whole of the social work profession about this measure.

The honourable Diane Abbott MP said in an earlier debate on this subject that the Government,

“wholly underestimates the desperation of the people with whom we are dealing”—[Official Report, Commons, 17/12/03; col. 1645.]

Earl Russell echoed that. There seems to be a lack of understanding. On Monday this week, representatives of families subject to this measure visited your Lordships’ House and spoke to some Members of Parliament. I welcome the fact that we heard that they had sensitive treatment from the case workers who were dealing with them. At least one of them reported that.

However, in 10 per cent of those families, the mothers were pregnant. I heard from a young woman with four siblings that her mother was pregnant with twins. They were born at four-and-a-half months—one died and one survived. Why are we putting families through such a mill to achieve so little? One family member reported that her mother was asked, “What will you do if your children are separated from you?”. The mother said, of course, “I would rather die than let that happen”.

My Lords, passion comes in many styles; whether it is the style of the noble Earl or that of the noble Lord, Lord Roberts, it is appropriately directed here, because destitution as an instrument of policy is not acceptable. My hope is that the amendment of my colleague, the right reverend Prelate the Bishop of Ripon and Leeds, will be carried—if not, then Amendments Nos. 15 or 17 should be carried. One of them has to be carried or there has be a cast-iron assurance from the Minister that a better amendment meeting this absolute need will be brought forward at Third Reading.

The Still Human Still Here coalition offers a figure of 280,000 people who are caught in this destitution trap. If that is even remotely true it is a horrifying figure. Whether the information comes from the Rowntree work in Leeds, the Refugee Action leaflet or experience on the ground—some of us have met such people—the facts are the same. A couple of years ago I spoke with a very experienced priest of ours in Southampton who has worked in a number of the most deprived areas of this country in a lifetime’s ministry. He had recently been taken to a house in Southampton where destitute asylum seekers were, as it were, “hot bedding” in conditions which he said he had never seen in a lifetime’s ordained ministry in this country. Water was coming through the roof and there were appalling conditions. It is worth saying that a number of such people are in this position because of previous failures in the system—loss of documents, poor or inappropriate legal advice, flawed decision-making, and failures in the education and training of adjudicators.

It then needs to be said—as has been said by the noble Earl and by my colleague—that this instrument is simply ineffective. Most people who are subject to it do not, as a matter of fact, react to being removed or leaving the country by getting themselves on track. The large majority cannot: they do not have the papers; they have other difficulties; or they will not because, for very good reason, they are afraid to do so. The result, as my colleague the right reverend Prelate said, is that they are pushed into a twilight world, into poverty or into ill-health with little or no access to medical care except at points of crisis. They are also pushed into crime; they become vulnerable to trafficking; and, as the noble Lord, Lord Judd, pointed out on Tuesday, as he has done on a number of occasions, they are a further driver to the kinds of resentment that are utterly contrary to the Government’s cohesion agenda. Those questions have to be taken into account before any attempt is made to justify destitution as an instrument of policy.

My Lords, the Government have already acknowledged that this is bad legislation. They acknowledged that when they accepted the amendment during the 2006 Act to repeal Section 9 following widespread opposition inside and outside Parliament. We have been here many times and it is disgraceful that we are still discussing this matter, even after the pilot showed that Section 9 was not working in the Government’s favour. As with reporting restrictions and other measures, in the words of the Refugee Council, this is an “inhumane and ineffective” policy and it is in breach of the UN convention. It will only have the opposite effect to that intended, which is to cause fear and drive more children and young people underground or into destitution, as many noble Lords have said. There have been countless reports by the churches and voluntary organisations bearing that out.

The Minister referred to this section in Grand Committee as,

“a tool in the armoury”—[Official Report, 18/7/07; col. GC 65.]—

which implies that the Government are doing battle with asylum seekers in order to meet their targets. That is somewhat in contrast to the professed policy under the new code, which we discussed on Tuesday, to provide proper protection and keep children and others safe from harm.

My Lords, I shall not continue this discussion. Of course, we are all extremely worried—in fact, we are more than worried; we are horrified—at the effect that the policy has had, which I do not think was expected or anticipated. I want to ask the Minister one question relating to Clause 17(6), which states:

“This section shall be treated as always having had effect”.

We do not legislate retrospectively. This clause is welcome; it is doing something that everyone has said is good, but why is it drafted in this way? I do not remember seeing such a subsection in legislation. The clause should be treated as “always having had effect”—that is, turning it into retrospective legislation. Can the Minister tell us why it is drafted in this way? It is rather worrying.

My Lords, the noble Earl, Lord Sandwich, reminded us that in the proceedings on the 2006 Act we persuaded the Government to accept an amendment which allowed them to repeal by order Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act. That was because, as the noble Earl has also said, there was almost universal opposition to this provision from churches, local authorities, professional bodies and voluntary organisations, which now includes the Refugee Children’s Consortium, the Association of Directors of Social Services, the British Association of Social Workers, the Joseph Rowntree Charitable Trust, the Joint Committee on Human Rights and many others.

At that time, the Government said that a final decision on repeal would be taken when they had the results of the pilots, to which reference has been made. The clear inference was that, if the pilots failed—as they have, to universal acknowledgement—the power to repeal would then be used. But when the Minister, the noble Lord, Lord Bassam, responded to this amendment in Grand Committee, he said that it was an important part of the process—a “tool in the armoury”, as the noble Earl, Lord Sandwich, reminded us. He went on to say, correctly, that that analogy might not be attractive to all those involved in the debate but that there might be many cases—he could not say how many; I shall come to that in a second—to which we must apply Section 9.

The Minister also complained in Grand Committee about the length of time that we took in raising these amendments. He said that he had heard most of the arguments before and declared that his mind had not shifted on the issue. I do not know what it would take to shift his mind when he is obviously out of step with the vast majority of informed opinion and with the normal principles of humanity and morality.

To pursue my noble friend’s line of argument, the Minister probably would not like to see torture used against families who stubbornly refuse to co-operate in their removal. However, to our way of thinking, making people destitute and separating them from their children is a form of torture, and a particularly nasty one at that. If, as the Minister said, in the end we are talking about only one, two, three or four cases a year where, for reasons that he could not or would not explain, it is impossible to remove the families, as happens with the vast majority of those who refuse to co-operate, we simply cannot understand the Government’s attitude.

Nor, as has been said, has the continued presence of Section 9 on the statute book achieved the objective of encouraging people to take up voluntary-assisted returns when their claims fail. We do not know whether any families have been removed under Section 9 since the end of December 2005, when the pilots came to an end, but inquiries that I have made seem to indicate that such removals have been in total abeyance. Therefore, the presence of the measure on the statute book for the past two years has not done anything towards improving the take-up rate of voluntary repatriation.

In any case, we share the views of the RCC that engaging, rather than punishing, families, as with the Hotham Mission asylum seeker project in Australia, is more likely to ensure that protection needs are met and that returns are safe and sustainable. In this model, which has been mentioned by my noble friend, when rights of appeal are exhausted, the role of the caseworker is to provide practical and emotional support for the family in considering their options and in planning their possible return. Such a model achieves a high level of voluntary repatriation, which demonstrates that preparing, supporting and empowering asylum seekers at the end of the process pays dividends.

It may interest the Minister to know that the Nepali failed asylum seeker, whom I mentioned in Committee on 18 July, departed voluntarily with his wife and child on 22 August, having been supported by his cousin for many months and with no help whatever from the IOM or the Government in meeting the cost of his fares, as I reported to Mr Byrne. The only contact that that family had with the immigration authorities was when Mr G had to report to them every single week. That put an additional financial burden on the family because he had to pay his own fares when travelling to Croydon and back home again; nor was any support or help offered by those in coming to their decision.

We continue to oppose Section 9, as we have done ever since it was first introduced, and we make no apology for demanding its repeal yet again. We deplore the use of family destitution as a means of enforcing immigration control, placing children’s welfare, health and development at risk. We condemn the threat to separate children from their parents and families, and we deplore the uncertainty and confusion caused by the continuance of this obnoxious legislation. I appeal to your Lordships to sweep it into the dustbin, where it belongs.

My Lords, I fully recognise that a great deal of passion and a little anger have been expressed during the debate. I also recognise that Members of your Lordships’ House deal with this issue with great seriousness and that they have consulted and have been briefed widely by many aid and support organisations which help those who seek refuge in our country. If the system, in extension, were as has been described today and during the course of our deliberations on this part of the Bill, then I too would probably stand with those who make a case for the repeal of this part of our legislation. However, I do not believe that to be the case.

In my work in this area I have seen our officials and those who deal with these difficult issues approach their work with seriousness and sensitivity. That does not mean, as I said before, that absolutely everything is perfect in this policy area and that there are not hard issues and hard cases, because there certainly are, as the evidence suggests. But we have to maintain fair and effective procedures and we have to maintain a system that is robust. Yes, sometimes it produces difficult cases and hard choices.

I shall take some time and care to go through the issues because I believe that they deserve that treatment. I hope that noble Lords, while they may not agree with the Government’s position on this, will at least understand that we give this very serious thought and careful consideration.

Amendments Nos. 14, 15 and 17 seek to extend asylum support to those who have been found to have no need for international protection and who should be taking steps to leave the United Kingdom. A very clear choice is set out in the amendments. Clause 17 as it stands seeks to ensure that an asylum seeker and his dependants will continue to be eligible for asylum support as an asylum seeker, or as the dependant of an asylum seeker, until the end of the immigration appeals process. Clause 17 provides that. Amendments Nos. 14 and 15 would maintain that support, potentially indefinitely, for those who have made an asylum claim, who have had that claim and any appeal rejected and who choose not to leave the United Kingdom.

As I said, I entirely accept that the reasoning behind these amendments is well intentioned. They seek to address a perceived gap in support for those whose asylum claims and appeals have been unsuccessful and who no longer qualify for asylum support. However—this is a very important point—we should not forget that there are already options available for failed asylum seekers who find themselves in this position. There is no reason for people refused asylum to be destitute. They can choose to return home, as it has been found that it is safe for them to return. Those making a voluntary return are eligible to receive the world-leading re-integration assistance that is provided by the International Organisation for Migration on behalf of the Home Office.

My Lords, I accept that in the case of the Nepali failed asylum seeker to which I referred in Grand Committee, he applied to the IOM which was not able to assist him, for reasons that I am sure the Minister would not want me to go into in detail. I have explained all this to Mr Byrne and I have suggested that the IOM rules for helping people who want to return voluntarily should be re-examined because they are not helping everyone.

My Lords, it is recognised that the way in which the International Organisation for Migration works is a very good model indeed. Of course, it may well be that some individuals do not receive the assistance and support that the noble Lord and I would clearly wish. I am grateful to him for drawing that case to our attention. No doubt the correspondence that he is conducting will lead to some further reflection on this. I am grateful to him for undertaking that correspondence. I also make it clear that support is available, under Section 4 of the 1999 Act, for those who are taking all reasonable steps to return home, while that return is being arranged. It is also available where there is some temporary barrier to return.

I do not believe that it is right that United Kingdom taxpayers should be asked to fund, potentially indefinitely, those who have been unwilling to make a voluntary return home. We think it is important to make it clear that failed asylum seekers cannot expect to receive support on the same basis as those still in the asylum process. Section 4 support is intended as a limited and temporary form of support. We acknowledge that there are some needs which cannot be met within the existing Section 4 regime and have now commenced a consultation on draft regulations to meet specified services and facilities which will enable us to give additional support to the most vulnerable receiving Section 4 support, including pregnant women and mothers with children.

The proposed amendment to repeal Section 4(11)(a) would not have the effect of abolishing vouchers, but would instead restrict our ability to provide for specified non-accommodation-related needs for supported individuals, including those who are vulnerable. We could not agree to such an amendment as to do so would undermine the integrity of the system by sending out mixed messages to those expected to leave the UK.

Asylum support is provided as a temporary measure, pending the outcome of the asylum application. To provide support after a negative decision and once the applicant has unsuccessfully exercised his appeal rights could mean that the person would be supported indefinitely at taxpayers' expense. I hope noble Lords are able to see that this is not an option that we can justify nor indeed is it one which I would wish to defend, as it amounts to exploitation of the asylum process in this country.

Subsection (1) of Amendment No. 15 seeks to repeal Section 55 of the Nationality, Asylum and Immigration Act 2002. This provision was originally introduced as part of a wider package of measures aimed at tackling abuse of the asylum system and removing incentives to the making of non-genuine claims for asylum. There are a number of safeguards in Section 55 to protect the vulnerable. Children and their families are excluded from its provisions and it does not prevent the provision of support if it would be a breach of human rights not to provide it. Support is not refused under Section 55 to any person who does not have alternative support available, including overnight shelter, adequate food and basic amenities.

The essential point of Section 55 is that we are not prepared to use taxpayers' money to support those who make speculative asylum claims or who have some alternative support. Section 55 has been effective in tackling this kind of abuse and, to our minds, sends a clear message to those who are simply economic migrants that they will not be supported at public expense. Agency-published quarterly statistics show that less than 1 per cent of cases refused under Section 55 are granted support following reconsideration.

I turn now to Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which all three proposed amendments seek to repeal. Section 9 provides for the withdrawal of support from the principal applicant and his family, whose claim for asylum has been refused and fully determined and whom the Secretary of State certifies that, in her opinion, have failed without reasonable excuse to take reasonable steps to leave the UK voluntarily. There are, however, exceptions and support will remain available, if necessary, in order to avoid a breach of a person's rights under the European Convention on Human Rights. Section 9 is not designed to make families destitute or to split them up but to influence behaviour to ensure co-operation and to incentivise voluntary return to the country of origin before removal is enforced.

In June this year, my honourable friend the Minister of State, Liam Byrne, published the evaluation report on the Section 9 pilot, to which many noble Lords have referred in this debate, which made it clear that the agency does not think that Section 9 is suitable for application on an indiscriminate basis. However, it remains important that we retain a provision to withdraw support from families who wilfully refuse to co-operate with the returns process. We cannot agree to the repeal of Section 9.

During Grand Committee stage, the agency agreed to produce draft guidance for asylum case owners on how it proposes to apply the Section 9 provision in any new asylum cases. Draft guidance is now available, on which the agency will consult, ensuring careful and inclusive discussion. I can make this point clear today: there will be no further implementation of the Section 9 provision until after consultation and publication of the finalised guidance. The agency is working to ensure that the guidance supports the case-specific approach for dealing with asylum applications under the end-to-end system. Specialist case owners are now responsible for managing the claimants and their cases through the whole system, until either removal or integration as a refugee. There is a strong focus on ensuring that earlier steps are taken so that those whose claims are not successful leave the United Kingdom in a timely fashion. Those who have been refused asylum have no legal basis to remain here. It cannot be right to give them false hope that they will be able to stay here after their asylum claim has been fully determined. It is particularly important that families should not give false expectations to children, and to make clear that those refused asylum cannot expect to receive support indefinitely.

Repeal of Section 9 would also give a right of appeal to the asylum support tribunal where asylum support is refused or withdrawn because of the operation of Schedule 3 to the Nationality, Immigration and Asylum Act 2002. Schedule 3 is an important measure to discourage benefit shopping and prevent support to those within specified classes except to the extent necessary to avoid a breach of their rights under the European Convention on Human Rights or Community treaties. This exception already provides an important safeguard to the operation of Schedule 3.

To conclude, the proposed amendments seek to extend asylum support to those who have been found to have no need for international protection and who should be taking steps to leave the United Kingdom. We must, as a Government, maintain the integrity of our asylum system. We have a long and proud tradition of granting asylum and protection to those fleeing persecution and torture, but that tradition must not be abused and exploited. To support indefinitely those who have been found not to need our protection would be to undermine our purpose in protecting the United Kingdom’s borders and our efforts to ensure that those with no right to be in the United Kingdom make arrangements to leave.

A number of other questions were raised in the debate which perhaps I have not dealt with in my main address; I shall deal with some of them as quickly as I can. The right reverend Prelate the Bishop of Ripon and Leeds, in his carefully thought-out comments, observed that he thought that the current system was ineffective because, in its denial of benefit and support, it forced failed asylum seekers underground, making removal harder. We endeavour in every instance to maintain contact through a process of contact management. Support is available under Section 4 to all for whom there is a barrier to leaving the United Kingdom. We make a careful assessment of what those barriers might be and, during that process, support is maintained.

In his passionate address to your Lordships’ House, the noble Lord, Lord Roberts, made a number of assertions suggesting that we were in breach of Articles 3 and 8 of the ECHR. In particular, my mind alighted on his assertion that we were depriving even failed asylum seekers of healthcare and treatment. I am not aware that that is the case. Failed asylum seekers continue to receive immediately necessary health treatment, and children continue to receive healthcare—as they rightly should—through the process of being supported and beyond. Of course, we carefully take account of their educational needs as well. Even in how Section 9 is applied the provision ensures that we undertake a careful risk assessment and consultation with all the relevant agencies when any withdrawal of support is considered. In those circumstances, it cannot be argued persuasively in a court that we are in breach of Articles 3 and 8 as the noble Lord asserted, although I understand the passion of his argument and why he makes it as he does.

The noble Earl, Lord Listowel, asked me to confirm that Section 9 will be used only in a handful of cases. That is obviously the case and my answer is simply yes.

The noble Lord, Lord Avebury, asked in general debate why, in the face of so much opposition, the Government continue with Section 9. As I have said on a number of occasions, there must be a mechanism to stop support for families who have no right to be here and where there is a wilful frustration of the process. I say to noble Lords that, hard though it may seem to consider that that might be the case, even the noble Lord, Lord Avebury, would confirm that there are cases where people wilfully obstruct quite proper processes—processes with many safeguards in place to protect those caught up within the system.

My Lords, most of those cases use the power of removal, which is applied to other families. Why do they not remove them?

My Lords, of course we do.

The noble Baroness, Lady Carnegy of Lour, drew attention to subsection (6) and asked about the particular purpose of the provision. We always thought that the provision covered asylum seekers for the duration of the in-country appeal, but the Court of Appeal in one case found otherwise. We are of course appealing to the Judicial Committee of the House of Lords on that point. We therefore seek to clarify the issue by confirming the position in Clause 17(6) to cover all cases past and future. The provision is retrospective, but for the benefit of asylum seekers, in that it makes it clear that they have always been entitled to the support described in the clause.

My Lords, would it not be possible to draft that clause in a different way so as not to make legislation retrospective? I do not like the fact that we are doing that. We are always fighting attempts to make retrospective legislation because it is not fair on people, but let us not go into that. I did not really understand the noble Lord’s answer; I do not know if he did. I think he got the information from those who are well-informed. I shall read with interest what he said.

My Lords, the noble Baroness has actually alighted on an important point, and I am grateful to her for drawing it out because it needs to be understood. As I had just described, the clause is drafted as it is to benefit asylum seekers and it is very much in the face of the appeal case that the Judicial Committee is shortly to hear—or is perhaps currently hearing. I am happy to interrogate the noble Baroness’s point, which she is entitled to raise, further, but we are in this case acting entirely properly and in the public interest.

The right reverend Prelate the Bishop of Winchester raised a further point about people being afraid to leave the United Kingdom, even after appeal. Decisions appealed are heard by an independent tribunal. We have a process properly put in place to ensure that the quality of decision making is compliant with the UNHCR. Support is available while people document themselves, as I have made clear throughout this discussion, and we take other reasonable steps to help them to take reasonable steps to leave the United Kingdom. That assistance and support is made available under Section 4. I have heard the criticisms of Section 4, but it is there, it works and we provide that assistance.

I have heard the arguments this afternoon. I am not convinced by the arguments in opposition to Clause 17 and how it operates. I understand the passion of the views expressed about Section 9, but it is applied only in an entirely proportionate and balanced way. We have reflected long and hard on the pilots and, as I have described to your Lordships’ House, we are perfecting guidance as to any potential use of that section in future. Having made all of those points, no doubt noble Lords will wish to express their opinion.

My Lords, I thank the Minister for his characteristic care in responding to the debate and all noble Lords who have taken part.

I am grateful to the Minister for his expressions of sympathy with those who are in most need in this area of our society and of the way in which we try to provide for them. He referred to a perceived gap between need and provision, but there is a real gap between them. I was disappointed that he was unable to suggest any way of coping with the terror, fear and appalling conditions in which a number of people live in this country. They were referred to by the noble Lords, Lord Judd and Lord Roberts, and the right reverend Prelate the Bishop of Winchester. As the noble Lord, Lord Roberts, said, we need to realise how difficult it is for people to return home when their asylum claims have been dismissed. For many, that is not a practical proposition and so they are driven into a twilight world.

This is a matter of common humanity—a phrase used by the noble Lord, Lord Judd—and of the dignity of people and the care of children. I hope that at this point we will make some statement about our desire for work to be done on the Bill to provide basic support for such human beings who are in our society and in our midst.

I have heard the arguments about Section 9 and about how it is key to that concern. As Amendment No. 17 is much shorter than Amendment No. 14—and it seems that it will get to the heart of the matter in a test of the opinion of the House—with reluctance, I beg leave to withdraw Amendment No. 14.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 and 16 not moved.]

moved Amendment No. 17:

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again after the Statement and the Question for Short Debate.

Moved accordingly, and, on Question, Motion agreed to.