Further consideration of amendments on Report resumed.
18: After Clause 17, insert the following new Clause—
“Permission to work
Notwithstanding the provisions of paragraph 21 of Schedule 2 to the Immigration Act 1971, the Secretary of State may by order made by statutory instrument make provision for asylum seekers—
(a) who are unable to return to their country of origin or who cannot be removed from the United Kingdom for any other reason; and(b) whose asylum appeal is outstanding for 12 months or more;to apply for permission to work.”
The noble Lord said: My Lords, we have always said that refusing long-term failed asylum seekers the right to work is economically illiterate and gratuitously damaging in human terms. It deprives society of the contribution that they can make with their skills and abilities and it is absolutely demoralising for the individuals concerned, whose only alternatives are to live on the charity of friends or relatives or to work illegally.
In the case of Zimbabweans, which I have mentioned previously, the Government are legally unable to deport such people for the time being, even if it were not inconceivable that anyone could be sent to a country that has so totally disintegrated so that literally millions are having to flee merely to stay alive. The Zimbabweans who manage to get to the UK are in limbo—some for a number of years because their cases date from the time when the policy was to allow all Zimbabweans to remain irrespective of the outcome of their appeals. Even now the practice is not to return Zimbabweans while the lawfulness of the policy is being tested in the case of AH, which I understand may go on in the courts for some while to come.
Meanwhile, tens of thousands of exiles here have reached the end of the line with their asylum claims and although they are likely to be the most active and intelligent among the population of Zimbabwe, they can do nothing to develop their skills in this country so that, when Mugabe is finally toppled, they can make a full contribution towards the rebuilding of their own country.
The best way that the UK can prepare to help them when that day comes is by encouraging the exiles to work now and, wherever possible, to upgrade their qualifications. That was the view of the JCHR and, indeed, it went further. It stated in its report on the treatment of asylum seekers:
“We consider that by refusing permission for most asylum seekers to work and operating a system of support which results in widespread destitution, the treatment of asylum seekers in a number of cases reaches the Article 3 ECHR threshold of inhuman and degrading treatment”.
The committee went on to recommend that asylum seekers should be allowed to apply for permission to work when their asylum appeal has been outstanding for 12 months or more and the delay is due to factors outside their control.
We propose that where there is evidence that an asylum seeker will not be able to leave the UK for 12 months or more, he or she should be granted limited leave to remain for 12 months, with a permission to work attached to it. We strongly endorse that JCHR recommendation and put it forward as a useful proposition for us to adopt in the amendment.
According to a Home Office estimate of July 2006, there were then some 450,000 legacy cases; that is, cases where claims for asylum or leave to remain had been made but not determined and where they were not being dealt with under the new asylum model. Those cases were dumped into a newly formed legacy directorate with 1,000 staff who were to prioritise them and, where the claimants were selected, write to them sending a questionnaire so that the files could be updated and sent to a caseworker. All the cases were to be disposed of by 2011, five years from the date of the Home Secretary’s original announcement. If every one of those disposals resulted in voluntary or compulsory departure immediately the decision was made, if the decisions were made evenly throughout the five years and we assumed that only half the legacy cases were able to work, barring those people from jobs will, by 2011, have lost the economy 2.5 times 225,000 person-years of work. If one values each person-year of work at the modest figure of £10,000, the total loss to the economy of preventing these people from working will amount to £5.6 billion.
I invite the Minister to agree with that calculation and accept our amendment, which would allow these people to work while their cases were being decided. I beg to move.
My Lords, that is just another example of how much we owe to the noble Lord, Lord Avebury, and others for putting the case for this clause with remarkable exactness, giving those figures with all that they suggest. Even without his advocacy, this proposal is sheer common sense. I do not think the Minister will be able to say, as he has tried to say about other amendments, that this is sweeping stuff and that it is all wrong for the country. The downside is that people are deskilled, their dignity is taken away, the cohesion initiative and policy is damaged and they become dependent. They could be developing their skills and contributing to the life of this country. As the noble Lord, Lord Avebury, implied, they could be ready to take a place in their own countries in the future when those countries change their political situations. If we leave aside the staggering figures that he offered, this is plain common sense and for these people not to be able to work is utter nonsense.
My Lords, we are so conditioned to think of asylum seekers as taking things away from our society that it is a great refreshment to hear from the noble Lord about the contribution that they are making. It is also worth remembering that many of these people, although semi-desperate themselves, are supporting other people who are not in this country but are back in their own homes. I have just been talking to an Afghan family who know of relations in precisely that situation. I hope the Home Office will do more research into this, not only the contribution to our economy but the contribution to international development.
My Lords, it does not look as if we are going to hear from the Conservative Benches on this issue, and I am disappointed about that. On Tuesday, the noble Baroness, Lady Carnegy of Lour, who is not in her place, referred to the unfairness of the Guardian leader, which said that it was a shame that Conservative Peers were not going to support the amendment on destitution tabled by my noble friend Lord Avebury, and accused the Guardian of getting it wrong. However, when we voted today, there was no support from the Conservatives, which was disappointing. I would like to have heard what aspects of Conservative policy are preventing them supporting this amendment, which is a constructive suggestion. I shall not repeat the cogent arguments that my noble friend and the right reverend Prelate the Bishop of Winchester made, but it is important that we air the reasons for the amendment and those for not supporting it, if there are any, as well as hearing from the Minister about why the Government do not want to support it. This is an important amendment because the public perception of asylum seekers is that they come here and live on benefits. During the debate on the destitution amendment, we heard that asylum seekers are not doing that, but we do not allow them to work while they await their voluntary or involuntary removal. In no way can we be said to be being constructive about this at the moment.
My Lords, this amendment gives the Secretary of State power to make provisions to give permission to work to failed asylum seekers who are not able to return to their country of origin or who we cannot return for any other reason and to asylum seekers whose asylum claim has been outstanding for more than 12 months.
Let me address this in two parts. First, the Government believe that managed migration is a valuable source of skills and labour for the British economy and that it provides a legitimate channel for those who wish to work in the United Kingdom. However, our view is that it is crucial to maintain the distinction between managed migration and the asylum process. I know that many people seek to conflate them, but that is wrong and it does not help, particularly when we have to explain our policies at large within the United Kingdom. Entering the country for economic reasons is not the same as seeking asylum. We do not allow asylum seekers to work as that could encourage asylum applications from those with no fear of persecution and slow down the processing of applications from genuine refugees. It is important to note that the prohibition against working does not apply to asylum seekers who are recognised as refugees following a successful asylum claim. Secondly, since 5 February 2005 specific provision has been made in the Immigration Rules for asylum seekers who have been waiting 12 months and more for an initial decision. These applicants can apply for permission to take up employment provided the delay is not attributable to them.
Furthermore, under new arrangements for the handling of asylum claims, the Border and Immigration Agency is focused on concluding asylum claims within six months of the date of application. Dealing with applications more quickly than in the past will ensure that individuals are not on asylum support for any significant length of time. Only a few asylum seekers will qualify to work under the 12-month provision. As we have made clear, asylum seekers generally cannot work while their claims are being considered. Equally it would be inappropriate to allow failed asylum seekers to do so when they have no legal basis on which to remain in the UK.
Giving failed asylum seekers permission to work may also create an incentive for them to remain in the United Kingdom when we expect all successful applicants to return home as soon as practicable. It is our belief that this amendment could open our asylum system to further abuse. For that reason we continue to resist it.
My Lords, it is certainly not constructive for the Conservative Front Bench to fail to make any statement on either this amendment or the previous one. I hope that they will abandon their silence on the remaining amendments because we want to know what the Conservative policy is. It is all very well for us to have the responses of the Minister, but for a discussion outside this House—and the Conservative Party represents a substantial body of opinion—your Lordships are entitled to hear what they think about these amendments, and, in the current debate, what they have to say about not allowing failed asylum seekers who cannot be sent back to their country to contribute to the economy.
I noticed that the Minister totally ignored the remarks I made about the economic benefit that might arise from the sort of amendment we have on the Marshalled List, but he did not challenge the figure.
My Lords, I am prepared to say that—and I do not want to get into the practice of jumping back into debates—I think the noble Lord's figures were entirely speculative. I am not going to deal with figures that I do not think have sufficient veracity. Obviously our officials keep these matters under careful and detailed review; and it is right that we try to speed up the process of looking at and resolving legacy cases because that helps strengthen our system of immigration control.
My Lords, my figures are not speculative; they come from the Government. I talked about the 450,000 legacy cases. That figure has been quoted many times during the course of your Lordships’ debate. I also mentioned—I hope accurately—the Government's plans for disposing of these 450,000 cases, which they have said they will do by 2011; although, at the rate they projected that these would be dealt with, it could be considerably longer than that. I have taken the Government's figures as they have been relayed to your Lordships in other debates. I said that if only half those people were allowed to work—and half of 450,000 is 225,000—and we valued the contribution they make to the economy at the very modest figure of £10,000, that represents a loss to the country of £5.6 billion. I repeat: these are facts; they are not speculation. It is unworthy of the Minister to make that suggestion about arithmetic, which anybody can pick holes in if they are there to pick.
As the Minister did not answer on the first occasion I used the figures, and the reply he has come back with now does not address the point at all, I stick to my guns. This is what the Government are losing for the benefit of the economy by failing to allow long-term asylum seekers who have failed in their application to contribute their skills and talents to the economy.
Nor did the Minister say anything about the point made by the right reverend Prelate and me—that a lot of these people have skills and abilities, which they are willing and eager to contribute to the economy. I mentioned the particular case of Zimbabweans because, at the moment, it is not possible to send them back anyway because of the court case that is yet to be determined. Everyone in this House must know Zimbabweans who are skilled teachers, doctors—professionals of one kind or another—or tradesmen who would love to be able to contribute their skills to the benefit of the economy in this country. When Mugabe is finally got rid of, they would love to have enhanced abilities to rebuild the economy and the country of their origin.
So I am grossly dissatisfied—
My Lords, before the noble Lord continues to his peroration, I wonder whether he might have had it in mind to question the Minister on the opening sentences of his response. I was astounded that the Minister effectively insinuated that the noble Lord, of all people, was confusing migrants and asylum seekers. The amendment is crystal clear; the noble Lord’s speech was crystal clear; so was mine; but the Minister set off on an allegation that those things were being confused, that such confusion would be damaging and based the rest of his case on an entirely false premise. I wondered whether the noble Lord, Lord Avebury, was going to make that point before he drew to a close.
My Lords, I really do not want to get into this as a practice, but I want to make this plain. I am not suggesting that either the noble Lord, Lord Avebury, or the right reverend Prelate the Bishop of Winchester conflates those things, but others do. I wanted to make that absolutely clear. I am not prepared to accept that I do not have a duty to ensure that that confusion does not arise. As for the general thrust of the argument of the noble Lord, Lord Avebury, there is clearly a disagreement between us, although I of course recognise that people who come to this country for whatever reason and with whatever status have skills and talents. There is no question about that; I am sure that that is a shared view.
My Lords, as the right reverend Prelate repeated, the Minister's premise, with which he began his argument, was totally false. No one in this Chamber confuses economic migrants with asylum seekers. We leave that to the tabloids, who either have the paradoxical attitude that my noble friend has just mentioned—that asylum seekers come here to sponge and to live on social security benefits when, in fact, most of them would be only too delighted if they were given the right to work. We want to give them that right and we will see what is the opinion of the House on that matter.
Clause 19 [Points-based applications: no new evidence on appeal]:
19: Clause 19, page 12, line 22, leave out “, and at the time of making,”
The noble Lord said: My Lords, we had a discussion on amendments similar to these in Grand Committee, when the Minister was in his usual unreceptive mode in response to what we thought was a perfectly reasonable case for an exception to the general rule that under the points-based system, all the evidence has to be submitted at the time of the application. We recognised, and we do so now, the difficulty that had to be faced by the Home Office when confronted with evidence submitted on the day of the hearing, or close to it, which the presenting officer had no real opportunity to consider or respond to appropriately. But we drew attention to the AIT’s power to exclude late evidence under Rule 45(4) of the 2005 Procedure Rules.
We have now gone to the opposite extreme, making it impossible for an applicant to correct a miscalculation of the points or a misunderstanding of the points criteria. As we pointed out, this could be absolutely disastrous for a person who is applying to extend his or her leave to remain, such as a university student continuing her course of studies. As we pointed out, the Minister’s suggestion that the person whose application is refused because she has not submitted the required evidence should lodge a fresh application is almost always going to be a non-starter for those seeking any kind of renewal of leave to remain, because in the meanwhile their existing leave to remain will have expired and they can no longer meet the conditions. As we noted, the Home Affairs Select Committee suggestion of a “minded to refuse” stage would have dealt with the problem, but would require a radical redraft of Clause 19. The Minister ruled that out as adding to the cost and complexity of the appeals process.
I have one further suggestion, which I hope that the noble Lord will consider, and I would have put this to him if we had had an opportunity for a longer meeting during the Recess, which we were promised. This is that we apply the proposed amendments only to appeals against refusal of an extension of leave to remain, because that is where the greatest harm to a person’s future life and career may be caused by a simple mistake. I am not asking the Minister to give me an off-the-cuff answer to this proposal, but to take it away and think about it so that if we can agree, a mutually acceptable amendment can be put down at Third Reading. I beg to move.
My Lords, where I have a feeling that I can make a contribution to the Bill, I will make it, and where I do not, I will not. I broadly support the amendment. It is clear that the appeals system does not always work correctly. Where evidence is produced late, which is what the amendment is about, it needs to be considered at the same time where possible so that the ruling is not delayed. As my noble friend supported either this amendment or something similar in Grand Committee, we hope the Minister will be able to make some movement on this.
My Lords, Clause 19 will ensure that in appeals brought against refusals of applications made under the points-based system—PBS—the appeals system considers the facts that led to the decision being appealed. That will ensure that the appeal is not an opportunity for applicants to patch up failed applications with new evidence.
The amendments would negate the purpose of Clause 19 by allowing new evidence to be submitted in all PBS appeals, subject to the sole condition that the evidence must have been submitted no later than the notice of appeal. Under the PBS, applicants will be told in clear terms exactly what evidence they need to submit to qualify for points. It is therefore perfectly fair to expect them to submit that evidence with their applications. There is no reason why they should be able to submit it later in the process with their appeals, as the amendments propose.
Our processes for handling PBS applications provide for one decision to be made. If applicants want to provide further evidence and consequently expect us to make a second decision, they must pay our administrative costs in remaking that decision. The appropriate channel to do that is by making a new application, not by relying on the appeals system. The purpose of the system is, as it says, to decide whether the appellant’s application was correctly refused. Allowing new evidence would mean that the Asylum and Immigration Tribunal would be making its own decision on a totally different basis from that of the Border and Immigration Agency.
As drafted, Clause 19 contains enough safeguards to ensure that it is fair. For example, new evidence will be allowed to challenge an allegation by the Border and Immigration Agency that a piece of evidence is not genuine or to refute a reason for refusal that is not based on the acquisition of points. We contend that Clause 19 provides a clear and transparent appeal system to complement the clear and transparent points-based system. In our view, these amendments blur that clarity and must be resisted.
The noble Lord invites me to consider at a later point his suggestion for some other way of dealing with this matter. My officials and I will read Hansard and give that some consideration.
My Lords, I will have to be satisfied with what the Minister said in his concluding sentence. I honestly think that, when he and his officials look at this in detail, he will find that we are not driving a coach and horses through the system and allowing everyone to appeal at a late stage. We are trying to deal with a situation that he must acknowledge exists, which is that people can make genuine mistakes on the applications. For example, they can miscalculate the number of points that are required or they can misconstrue the criteria and therefore get something wrong in the application form. I hope that our amendment would allow those kinds of mistake to be corrected.
I recognise that we should not open the door to appeals by all and sundry. We should confine this, as I suggested, to those people who are not able to take advantage of the Minister’s suggestion that, if they have made these mistakes and the application is incorrectly formulated, they should start again with a new application and pay the second fee. My objection to that, as the noble Lord is aware from the previous occasion on which we talked about it and from what we have said this afternoon, is that someone who is applying for an extension of leave would, by the time that they put in a fresh application, be out of their permitted leave to remain.
This is of particular interest to people such as students or work permit holders who would not only forfeit their right to put in another application, but be effectively denied all future rights to remain here as students or workers, as the case may be. This is such an extreme penalty, as I hope the noble Lord will agree, that we ought to do something to correct it. If he can discuss the matter with officials and come back to us by Third Reading with suggestions on how we can deal with this evil, I shall be very satisfied. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
Clause 20 [Fees]:
21: Clause 20, page 13, line 17, 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: My Lords, in Grand Committee we had some discussion about the level of fees charged for services provided by the BIA in consequence of Section 51 of the Immigration, Asylum and Nationality Act 2006 and Section 41 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, and the extension of those charges under Clause 20 of this Bill to,
“an application or process in connection with sponsorship of persons seeking leave to enter or remain in the United Kingdom”.
In his reply, the Minister concentrated almost entirely on the universities, which were not the main focus of our concern, although we are of course anxious that the additional costs of sponsorship, which must no doubt be recovered from the students, should not be self-defeating by causing a drop in overseas student numbers and diminishing the economic benefit to this country of the presence of these students. It would take only a small reduction in the number of such students to wipe out any extra revenue that the Government hope to receive in sponsorship fees. However, the universities are capable of looking after themselves and will no doubt raise their voices if they consider that the sponsorship fees are over the odds.
The Minister said that the Government were obliged to consult on the fees and that, before the order was introduced in March, they sent the proposals to 3,000 people and stakeholder groups, as well as publishing the document on the Home Office website. He omitted to say that the document gave no indication of the level of the fees to be charged, and that the document appeared not to have been sent to spouses, family members or those representing their interests. I am not sure that the consultation included the Joint Council for the Welfare of Immigrants or the Indian Workers’ Association, but those organisations have written to me with numerous complaints about the levels of the March fees and, particularly, the fee for indefinite leave to remain, which, as I have told your Lordships in other debates, shot up from £350 to £750. Even if they had been consulted, they could have had no inkling that such an outrageous increase was to be imposed. It seems that the fees charged to students were relatively modest because the Government realised that they were capable of making a lot of trouble through Universities UK, while those charged to relatives and spouses were extortionate, based on a cynical calculation that those people and groups were not well organised or vociferous.
We want to prevent the Government mulcting spouses, entry clearance applicants, and applicants for transit visas and certificates of entitlement, as they have already done applicants for ILR. We also suggest, as I have in correspondence with Ministers, that we cease to pretend that the level of our fees is comparable with fee scales in other countries, and that we stop being so arrogant as to imply that British citizenship is worth more than Australian citizenship, as did Mr Byrne in a recent letter to me. The UK is certainly an attractive destination for tourists, students, workers and relatives, but that does not justify making them and their sponsors pay far higher fees to enter and stay than do other countries. I beg to move.
My Lords, I understand the background to the amendment and know that it arose from concern about the scale of increases to certain fees charged from April. Sufficient safeguards already exist in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which is amended by the clause. It requires the instrument that sets fees above cost-recovery level to be agreed through the affirmative process in both Houses. Before the statutory instrument that sets the fees is made, the Secretary of State is required to consult such persons as she deems appropriate. As the noble Lord, Lord Avebury, said, the consultation has been extensive. We held some 13 or 14 stakeholder meetings to underpin it.
The Act also requires that fees set above normal cost-recovery levels should reflect the benefits to applicants after a successful application. That is not an unreasonable criterion and it is right that we incorporate it in the Bill. It is important that the Secretary of State’s discretion, with the approval of Parliament, to set the fees at the appropriate level to recover the costs of a service provided should not be fettered by a limit on the percentage increase to a fee. There are a number of instances where an increase above inflation may be appropriate; for example, to correct an anomaly in the charging structure or, perhaps more importantly, to reflect wider policy changes affecting the benefits and entitlements offered through a successful application.
Whom did we consult? Migrants who might qualify for settlement are a disparate group with no key representative bodies with which we can engage in the same way as, for example, in the education sector. We recognise that that presents difficulties in ensuring that key policy changes are communicated effectively and in good time. We are exploring how we might do this differently in future. The consultation document was freely available on the BIA website and the UKvisas website, and we welcome responses from members of the public as well as stakeholder groups.
As for how new fees compare with other countries, international comparisons of migration systems and fees are complex—I think that most noble Lords would accept that—and do not always readily read over huge differences in the benefits to successful applicants. We believe that our fees compare very favourably; the entitlements that we grant with our various services are highly valued and, I would argue, bear any international comparison. Direct comparisons of price where that is the case can be difficult, because we cannot easily compare like with like. End-to-end migration costs vary considerably in all comparative economies and are usually dependent on the particular circumstances of the applicant, such as their current location, category of stay and relationship to the settled person. Visas can be for different lengths of time, allow more than one visit, confer particular entitlements to work or bring in dependants. So we believe that it is right to charge those who directly benefit from our services, but that we can also do so and keep the UK competitive as a destination for those whom we wish to attract. For all those reasons, I cannot accept the amendment.
My Lords, I welcome what the Minister said about improving the consultation process. I hope that he will particularly consider how he can bring in these hard-to-reach groups, particularly those concerned with sponsoring visits by intended spouses and other family members. I am sure that if he consulted the JCWI, for example, it would be helpful not only in responding to the consultation but in suggesting other organisations that represent the interests of family members. However, that whole process will be useless unless in the consultation itself some indication is given of the level of the intended fees.
The answers that people gave to the general questions in the previous consultation were not based on knowledge of how much was to be charged and the questions were phrased in a very general form—such as, “Do you think it’s reasonable for the Government to recover the costs that they incur in operating this system?”. Of course, the answer to that must be yes. On the face of it, all the costs that go into providing the services would make for a legitimate charge on the user. But if people thought that that meant that the existing charges were to be more than doubled, they might have a second thought about it. I hope that that notion will be taken into consideration in the consultation on the sponsorship fees.
With regard to the comparisons with other countries, I do not know whether the Minister has seen the detailed correspondence that I have had with his colleague, Mr Byrne, but he asserted as a matter of fact that our charges compared favourably with those in Australia. When I asked him to give me a comparison, that was the one that he chose. We have been through that in enormous detail, and the end-to-end comparison of the cost of a spouse coming in here with the cost for Australia is extremely unfavourable to us. The Minister sought to defend that by saying that there are enormous benefits to coming here, therefore implying that the benefits to a spouse entering Australia were not comparable to those when someone enters this country. I have just written to him saying that I do not really think that he could have meant to imply that we were so superior to the Australians that we were entitled to charge much more for the equivalent services than they do.
I look forward very much to further discussions on these points with Ministers. When the consultation document on the sponsorship fees is issued, I should be grateful if a copy could be sent to me so that I can comment on it. I very much hope that it will include the figures. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
22: After Clause 20, insert the following new Clause—
Where the procedure for an appeal is governed by the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 (S.I. 560/2005), the Legal Services Commission shall provide funding as part of the Community Legal Service regardless of any assessment of the merits of the appeal for so long as those Rules continue to apply to it.”
The right reverend Prelate said: My Lords, this amendment seeks to ensure that asylum seekers whose claims for asylum are dealt with through the detained fast-track process at Harmondsworth and Yarl’s Wood can secure legal advice and representation throughout that process. I am particularly grateful to the Immigration Law Practitioners’ Association for raising this concern and to others who have written to me about it. Their concern comes from an awareness that standards of justice in the fast-track procedure are in danger of being inadequate. The amendment seeks to ensure proper legal representation in this process and in doing so to protect the judicial system with which we work in the asylum process.
Only some 50 per cent of appellants in the fast-track process are represented at appeal according to both Her Majesty’s Chief Inspector of Prisons and Bail for Immigration Detainees. There is agreement that it is important whenever possible for appellants to be legally represented and this is a problem in the whole asylum process. This amendment seeks to tackle it in one limited area where the dangers of injustice are particularly acute.
Many asylum seekers lose their right to legal aid through the merits test whereby the lawyer needs to assess that the appeal has a better than 50 per cent chance of success. In the fast-track system there is very little time to make that assessment effectively; typically, the decision needs to be made within a couple of days of the lawyer and client meeting. We are dealing with people’s lives and their whole future. We must make proper provision for their legal support in a complicated and, at this point, surprisingly speedy system.
Lawyers have a strong disincentive to provide this legal support. The Legal Services Commission has a performance indicator which expects lawyers to achieve a success rate on appeal of 40 per cent. Perhaps it is a good thing that we do not have such a merits test for amendments in this House. The failure to achieve that may prejudice a lawyer’s chance of bidding for such work in the future. The Asylum and Immigration Tribunal can do its work only if people are properly legally represented. The number of unrepresented people in such tribunals is increasing and many of them are unable to access the safeguards which are designed to provide due process for them. This very simple amendment would enable lawyers to provide the service appropriate for such serious cases. It would defend the fast-track system against the accusation that it is simply a “refusal factory” and would affirm our desire for a legal system which provides the manifest justice for which we all look. I hope very much that it can be added to the Bill. I beg to move.
My Lords, we support this amendment and have experience, through talking to lawyers, of the difficulties that are faced with the fast-track process which result in many applicants remaining unrepresented. When the Minister comes to reply, it would be useful if he could give us some statistics on how many of the people going through the fast track actually get legal advice at all.
The merits test is part of a process which has been continued for some years of squeezing out of the legal aid system the money which is supposed to underpin a fair and reasonable asylum application process. If you make it far more difficult for people to get legal advice, a great many people will not succeed in meritorious applications. If the Minister had the time we could go into a number of cases I know of where people have been very poorly represented until the point where they were about to be sent back. Then a good lawyer has come in and rescued the case at the last minute. That cannot happen in the fast track, because by the time the good lawyer has appeared on the scene the person is back in the Democratic Republic of Congo, Somalia, or wherever. It is vital that we provide the same rights of access to good legal services in the fast track as elsewhere in the system. I hope that if the amendment is agreed to by the Government we will be able to do that.
My Lords, in passing, it would be especially serious if the applicant were back in the DRC or Somalia, because there they would be in grievous danger. The Government were returning people to the DRC until very recently and had to be stopped in the courts from doing so. The basic point at issue is, to put it in rather un-legal terms, that the faster the track the more critical the quality of the legal assistance. I hope the Minister will reflect on that when he responds.
My Lords, I shall add a word in support of the amendment. The right reverend Prelate has put it very well. He said that the cards are stacked against asylum seekers in the fast-track process. We have seen the decline of legal aid year on year, in parallel with what the Government are doing with this policy. It is simply unrealistic to expect an asylum seeker to follow the safeguards that the Minister is bound to mention in a minute within two or three days in this process. I would be grateful if he would explain how they are meant to do that.
My Lords, I am grateful to noble Lords for raising the issue as it enables the Government to set out our position and perhaps to clarify a few issues. The Government believe that to accept this amendment, which removes the merits test for those in detention, would contradict our aim of ensuring that public funding is targeted on cases with merit and that weak cases are not supported. We need to make the best use of limited resources by ensuring that only cases with merit are funded and that genuine applicants are adequately supported through the process. The merits test is common in the criminal justice system for legal aid; it is not unique to this process.
The merits test for representation at the tribunal has existed since representation at appeal and bail hearings was brought into the scope of legal aid in January 2000. For funding to be granted, the prospects of success have to be moderate or better, which is defined as clearly over 50 per cent, as noble Lords understand. However, in asylum cases, if the prospects of success and the merits of the case are borderline or unclear, funding can still be granted if the case has wider public interest or is of overwhelming importance to the applicant. Where a case has a poor prospect of success, the fact that making or pursuing an application or representations will in itself prolong a client’s right to remain in the UK will not be treated as a sufficient benefit to continue with public funding.
It is inevitable that in any system of merits testing there will be applicants with poor cases who do not receive publicly-funded representation. The Legal Services Commission’s guidance to suppliers on the fast-track scheme states that where the client’s substantive appeal lacks merit and would not warrant the grant of funding for the appeal, the case may still merit the grant of funding for a bail application. The Government recognise that individuals detained under the fast-track process will face particular difficulties in securing representation where we are processing an asylum application under an accelerated timetable. That recognition is there. To ensure that clients in the fast-track process have early access to quality legal advice and representation, the Legal Services Commission runs duty representative schemes at Harmondsworth, Oakington and Yarl’s Wood removal centres.
Fast-track advice is provided through exclusive contract schedules. Services are awarded in this way to those organisations that can demonstrate that they are able to offer the best service to clients through skilled and experienced staff, effective supervision arrangements and a good track record of audit with the Legal Services Commission. Only suppliers who have a Legal Services Commission contract and who have gone through an additional tendering process are able to provide publicly funded advice under the scheme.
The provision of advice in these cases covers the substantive case as well as any associated bail applications. In addition, there is provision for legal advisers to accompany clients to substantive asylum interviews and for the adviser to make a decision as to whether to grant legal aid funding for those in detention under the fast-track process. Onsite legal advice is available through regular advice surgeries open to all individuals who are detained in immigration removal centres in England and Wales. The purpose of the surgeries is to ensure that those in detention and who have not yet received legal advice, or who no longer have a legal adviser and who require advice, will be able to access advice through this scheme.
The noble Lord, Lord Avebury, asked how many individuals receive advice through fast track. We are satisfied that current agreements meet needs. As I have explained, we have a process in place—there is a fast-track duty rota system at Harmondsworth, Oakington and Yarl’s Wood. Therefore, fast-track clients do have early access to good quality legal advice. That scheme appears to be working satisfactorily. No scheme is perfect, but there is a proper merits test in place. I hear what noble Lords have said about fast track, but, as I have explained, we put particular emphasis on ensuring that the fast-track process is well supported through advice. For those reasons, it would not be appropriate for us to depart from our current practice and procedure in this regard. I hope that the right reverend Prelate will withdraw his amendment.
My Lords, I thank the Minister for his response and I was glad to hear his assurance that the Government recognise the need for particularly skilled staff to be involved in a fast-track scheme such as this. I am grateful, too, to other noble Lords who have taken part in this debate and who have spoken, as the noble Earl, Lord Sandwich, did, about the odds stacked against the asylum seeker in this respect, as is the case for others within the system. I thank the noble Lord, Lord Avebury, for his comments on the poor representation that can exist, even within the fast-track system.
I am interested that the Government are satisfied that the system is working as well as the Minister believes it is. The number of people who actually win appeals through the fast-track system is tiny, which is why the title of a “refusal factory” has come to be used by some with regard to the system. I hope that, perhaps in correspondence, we could do more to check just how the system is working and ensure that the Minister’s optimistic assessment of the situation is correct. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Children]:
23: Clause 21, page 13, line 29, at end insert “and their welfare is promoted”
The noble Baroness said: My Lords, these amendments have been drafted, like my previous amendment on safeguarding children, by the Refugee Children’s Consortium. The unfortunate and very close defeat on my earlier amendment on Tuesday has ensured that the Border and Immigration Agency will not be given a legislative duty to promote the welfare of children. We have heard nothing encouraging from the Government about inserting the duty into the code of practice, on which this amendment would insist.
I hope, however, that we can prevail upon the Minister to rethink his position on this. The importance of this duty has been much discussed during previous stages of the Bill, and the Government’s objections on the grounds that it would interfere with the agency’s ability to carry out its primary function have been effectively dismissed. I assure the Minister that we do not intend to give up our efforts on this and I hope eventually to extend this protection to cover the whole of the Border and Immigration Agency. We will be looking to raise this matter at appropriate points in the future.
I look forward to hearing again what the Minister has to say on Amendment No. 24 following his hint on Tuesday. I hope that, in this matter at least, the Government have decided to accept what the House was saying and address our concerns. I set out my thinking on this issue in the debate on Amendment No. 5 and I shall not go through those arguments again. Suffice it to say that it will be illogical and irresponsible if non-governmental organisations which provide government services are not held to exactly the same standards as government agencies.
The Minister gave us a copy of the high-level code of practice and we understand that this will be included in some way. I hope very much that he will be able to give us further reassurances on that this afternoon. I beg to move.
My Lords, as these amendments raise two issues that we discussed as recently as Tuesday, I can be very brief. We considered what the Minister said about the draft code of practice, which, as he acknowledged, was clearly marked as a draft, but we remain unhappy about the code for the reasons that we gave, particularly in the context of Amendment No. 24. It makes no reference at all to private contractors, who are carrying out some of the most crucial duties of the BIA, including, for example, detention and escorting, and we simply do not accept that Parliament’s right to approve the code by affirmative resolution gives us any worthwhile opportunity to scrutinise the code before it comes into effect.
I repeat—I hope that the Minister can answer this now that he has had 48 hours to reflect on the suggestion—that both this code and the Section 9 code should be made subject to pre-legislative scrutiny. It may not be our normal practice to do that with secondary legislation but, with so many sensitive functions of government now being dealt with by order, this would be an excellent example on which to trial the process.
This may not be the time to go into detail on the code but, as an example of matters that cause us concern, I could make some comment on paragraph 16, which deals with children being looked after under private fostering arrangements. As I understand it, the fostering arrangements would not be subject to the provisions of the code. In dealing with an adult who has arranged for a child to come to the United Kingdom, it should be asked what arrangements have been made for the child to be looked after in the UK, although that matter should have been sorted out when the visa was awarded. Satisfactory assurances should be given by the sponsor of the child that the fostering arrangements are in place, that they have been approved by the local authority and that the fosterer is a properly qualified person to fulfil that role. However, there does not seem to be any certainty either that the BIA will be notified of the fostering arrangements or that the local authority will have inspected them. These defects should be dealt with in the final version. I also suggest that the code should form part of the contract between the local authority and the person who is to provide the fostering arrangements.
I take it that the draft has been sent to the relevant professional and voluntary bodies, the LGA and the local authorities for comment. I ask the Minister to arrange, as has been done on other occasions, for a summary of the responses to be published so that they can be considered, preferably as part of the pre-legislative scrutiny process that I have suggested.
My Lords, I support Amendments Nos. 23 and 24 and I hope that the Government will be able to accept them. The phrase “safe from harm” in the clause feels grudging and is often used to refer simply to safety from and defence against physical and sexual abuse. The provision needs to be much broader. We are talking about some children who will be in this country for a considerable time. We have heard again and again about their needs. It is crucial that, through the ways in which we help children in the Bill, we provide the welfare that is the right of every child. Every child matters and it is crucial that we bring that into our concerns here. That includes, for example, the benefits of schooling and ways of helping children with their education so that their welfare is promoted here and for the benefit of the country to which they will go back.
My Lords, I thank those who have participated in the discussion, because important issues have been raised. I am particularly grateful to the noble Baroness, Lady Hanham, for tabling Amendment No. 24, which I will respond to, because it has prompted further thinking on our part.
I understand that the intention behind the amendments is to broaden the scope of the Border and Immigration Agency’s duty with regard to children so that it is as wide as the safeguarding duty in Section 11 of the Children Act 2004. The amendments would also impose the same broad duty on contractors providing services on behalf of the Border and Immigration Agency.
I made it clear on Tuesday that the Section 11 duty would not work for the agency. The House took a view on that. It might be a narrow view, but it was supported. It is not appropriate in our view for the agency to have a duty to promote the welfare of children because that creates a potential conflict with other duties that we have to exercise to regulate entry to the United Kingdom and to take action against those who have no lawful claim to be here.
The potential application of a duty to promote the welfare of children is very broad. If the Border and Immigration Agency were to adopt it, we have no doubt that it would be used as the basis of a legal challenge in many cases where the facts made it clear that someone no longer had a lawful claim to be in the United Kingdom. For those reasons I resist the amendment.
The story should not end there. As I explained, we take very seriously the responsibilities towards children in the Children Act 2004; hence the continuing development of the code of practice. We have already indicated what we are committed to introducing through such a code and we are open to—and expect—further development of that through consultation with interested groups. It will be supported by a set of instructions to staff, which are being developed with input from outside organisations that have considerable experience of dealing with children’s issues. We have been very grateful to those agencies and organisations for the work that they have put in.
I do not want to repeat what I have said about the content of the proposed code. However, I must emphasise that the Border and Immigration Agency will expect staff to follow the code of practice or, if they cannot, to have very clear reasons indeed for not doing so. Those instances must be very few.
I must also make it plain that we very much intend to take on board the comments made on Tuesday, particularly by the noble Lord, Lord Avebury, about the need to ensure that very clear principles on detention are written into the code. The noble Lord made an important point that, although the supporting documentation is very clear that the code applies to detention and the detention estate, we must write those principles in and ensure that the detention estate is clearly covered.
We recognise fully that we would not achieve what we have set out to achieve if we were to have a code of practice for the border and immigration staff with no way of ensuring that it applied to those providing services on its behalf. So we sympathise with Amendment No. 24, and I know that the Minister was particularly grateful to the Opposition for raising that issue when we had a private discussion. We see the need to make it clear that when contractors are commissioned to carry out services on behalf of the Border and Immigration Agency they have the same responsibilities towards children as the agency itself. I shall give that point further consideration with a view to returning to it at Third Reading. I reassure noble Lords that the code will not be a token document. In developing it further and introducing it, we will continue to work with the key NGOs.
The noble Lord, Lord Avebury, made one or two suggestions. I always listen with care to what the noble Lord has to say. I do not always agree, but some of his ideas we are of course happy to consider. One was that the code ought to be subjected to a sort of pre-legislative scrutiny process, which is a novel idea. We intend to consult on the code in a formal way over a period of three months. We could consider pre-legislative scrutiny, but we will obviously ensure that we comply with the wishes of the House more generally on that issue. I will give that more thought before Third Reading, but do not make a firm commitment this afternoon.
The noble Lord asked whether the draft code mentioned contractors. I have dealt with most of that issue: it does mention private contractors, both in the preface and paragraph 4 of the introduction. He also raised a question about private fostering and the BIA’s responsibility. Local authority children’s services are of course responsible for monitoring private fostering arrangements. The BIA very much relies on local authority expertise and on local authorities to notify it if arrangements and relationships are not working as well as they should. We would argue, however, that relationships between the BIA and local authorities are strong, and we are extremely grateful to local authorities for their expertise in this field. Speaking from my own experience, local authorities do a good job in difficult circumstances. We are grateful to them. For that reason, we continue to listen carefully to what the Local Government Association has to say on these issues. We have been grateful to it in the past for its advice. I might almost be currying favour here, but we have come some way towards meeting the aspirations of both Opposition parties on this issue.
My Lords, I thank the Minister; “one up and one down” is how I see this afternoon’s effort. I am grateful for his indication that we will come back to Amendment No. 24 at Third Reading; I hope that we do so with an amendment that is strong enough to ensure that other agencies are required to have the same standards as the BIA. We look forward to seeing that, perhaps a little bit beforehand so that we are aware of it.
I am conscious of the welfare duty because I have been a family magistrate for quite a long time. The welfare duty encompasses a whole lot of things, such as the care of the child, where it lives, where it is educated and who it has contact with; it encompasses a much wider field than, as the right reverend Prelate said, just keeping it away from harm. The trouble is that children are around within the detention system, I understand, for various lengths of time. In some cases, the safeguarding from harm might be appropriate, but in cases where it is longer their welfare becomes an extremely important aspect of this. The way to deal with the problem would be to impose the welfare duty, so that those there for a longer time would be encompassed by it. We have had one or two goes at this issue during our debates on the Bill and it is not something that will go away. I shall not press the amendment today, but I give strong notice that a number of us are concerned about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 24 not moved.]
25: After Clause 21, 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 the 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 and” had been omitted from section 4C(2); or”.”
The noble Lord said: My Lords, the amendment was introduced in Grand Committee to deal with an anomaly which has deprived a small number of people the right to British citizenship. I have taken particular interest in this because had I been born outside the United Kingdom, I would have been one of the people deprived of British citizenship by the anomaly.
The amendment does not confer citizenship on the people affected. That is because the Bill deals with immigration but not with nationality. An amendment to extend British citizenship would therefore be out of order. The amendment therefore confers on the beneficiaries not citizenship as such but a right of abode in the UK, which is probably the most important aspect of citizenship.
As I dealt with the background at length in Grand Committee, and because of the attitude which I understand the Government intend to take, I will give only a fairly limited outline of the legal background. Up to the end of 1948, a British woman who married a foreigner lost British citizenship if, on marriage, she acquired her husband’s nationality. Indeed, it was at one time the general practice that a woman, on marriage, always took her husband’s nationality. British men marrying foreign women retain British nationality.
Under the British Nationality Act 1948, which came into force on 1 January 1949, British women marrying foreigners no longer lost their citizenship on marriage and citizenship was restored to those who had lost it on marriage at an earlier date. There was, however, one remaining significant difference between the sexes. The children of a British husband and a foreign wife had the right to British citizenship, which they acquired on birth wherever they were born, but the children of a foreign husband and a British wife, if born outside the UK, had no right to citizenship.
Under the British Nationality Act, the Home Secretary had a discretionary power to register a child in that category as a British citizen, provided the child was under 18. That discretionary power was presumably intended for cases in which the mother was widowed, divorced or separated from her husband and wanted to return to the United Kingdom with her child and bring that child up here.
On 7 February 1951, the Government decided that any such application made on behalf of a child under the age of 18 would be accepted without question. There was, however, no formal change in the law and it was not retrospective. Children reaching the age of 18 before 7 February 1961 could not be the subject of an application.
The next step was the British Nationality Act 1981, which gave to mothers the same rights as fathers had always had to pass on their citizenship to their children. However, that applied only to children born after the 1981 Act came into force.
Then the Nationality, Immigration and Asylum Act 2002 amended the 1981 Act to backdate the right to citizenship given under the 1981 Act to all children born after 7 February 1961. That, in fact, was the result of amendments originally tabled by my noble friend Lord Avebury. I am extremely pleased that he has put his name to this amendment, as has the noble Lord, Lord Higgins, whose support I also welcome.
The amendment proposed by my noble friend Lord Avebury, in its original form, and this amendment would backdate the right to claim British citizenship to include children of a British woman born on or after 1 January 1949. The Government only partially accepted my noble friend’s amendment and were willing to backdate only for children born after 7 February 1961. No logical justification was produced by the Government, either in the debate on the amendment tabled by my noble friend Lord Avebury in 2002 or on this amendment in Grand Committee, to justify a cut-off date of 7 February 1961. There is some logical basis for a cut-off date of 1 January 1949, although there is also a case for going still further back—for example, by extending rights to those born before 1 January 1949 whose mothers were British citizens at the time because they had not acquired their husband’s nationality, or both to them and to children whose mothers were foreign citizens at the time of their birth but reacquired British nationality under the 1948 Act. However, it is not necessary to go into that issue.
The distinction between the rights of the children of British men and the children of British women with foreign spouses is an obvious anomaly. It is wholly contrary to modern principles of gender equality. The class of people adversely affected by the anomaly is small and closed; it can apply only to people in this category born before 6 February 1961, who must therefore be at least 46 years old by now and are, no doubt, well established in their home country, in most cases.
This is a unique problem, which would not set a precedent for any other claims to citizenship. The Government are not willing to accept the amendment, but I believe that they now recognise the existence of the anomaly and the need to deal with it. I wait with interest to hear what the Minister has to say. I beg to move.
My Lords, I warmly congratulate my noble friend Lord Goodhart on finally achieving a solution to a problem that has, as he pointed out, been canvassed on numerous occasions going back to 2002, when we raised it not only in respect of the NIA Act of that year but in detailed discussions with the then Minister, the noble Lord, Lord Filkin, in an attempt to find a way through.
We persuaded the Government then that the child of a foreign father and British mother born overseas after 7 February 1961 should have the right to be registered as a British citizen. However, we were not able then or since—until Monday of this week—to persuade the Government that discrimination against British mothers whose children were born before the cut-off date was wrong and illogical. Their right to transmit citizenship to their children was not equal to that of fathers who married foreign women, who had always had that right. Ministers kept repeating, as if it was an argument, the view that there had to be a cut-off point, as though that justified a situation in which children in the same family born before or after the cut-off date had different citizenship rights. As the noble Baroness, Lady Anelay, said in Committee, we were all struggling to hear from the Minister about the virtue that attaches to 1961. The Minister had no answer.
My noble friend Lord Goodhart suggested that there was at least some logic to a cut-off date of 1 January 1949, because nearly every woman who married a foreign citizen before that date took the citizenship of the husband. For that reason, as well as the additional passage of time, hardly any persons would benefit from an earlier date. I consulted the chairman of the organisation CAMPAIGNS, Mr Michael Turberville, who tells me that of the 300 people on his books only one was born earlier than 1949, and he had been resident in this country for some 40 years and therefore qualified to apply for citizenship.
We are delighted that the Government have at last come around to our point of view on the matter, and we welcome the assurances they gave in the Minister's letter of 9 October that the provision would be enacted as soon as possible—not by the indirect route, which my noble friend had to choose ingeniously to get within the Long Title, but by conferring full citizenship on these individuals even though it means that they will have to wait a little longer.
My noble friend said that how the law used women in this matter was contrary to the principles of gender equality, and his amendment had the support of womenkind. It prompts me to ask an additional question: will the Government now repeal our reservation on nationality to the Convention on the Elimination of All Forms of Discrimination Against Women, which it seems was entered into solely to protect us from complaints about this discrimination? I remind the Minister of the case of Mrs Constance Salgado, whose name I have mentioned in previous debates. She was barred from making a complaint to the committee on the elimination of discrimination against women simply because of the resolution that we entered to the convention.
Mrs Salgado married a Columbian citizen and lives in Columbia. I sent the Minister, Mr Byrne, a rather nice picture of Mrs Salgado and her son, who came to dinner with me recently. We were discussing this issue because she brought with her the son who was born before 7 February 1961 so is not a British citizen, whereas her younger son, who was born after the date, is a British citizen. Her family very neatly illustrates the paradox of the anomaly of this date.
I hope that the Minister will be prepared to consider—not perhaps this afternoon, but at his leisure—whether as well as introducing the legislation that confers citizenship on these people he will move towards the repeal of the reservation entered into on the convention.
My Lords, this is the third item of business on today's Order Paper on which I intervene. It may be thought that this displays my versatility, but I fear not. On the two previous occasions I might reasonably claim some experience, if not expertise; but one knows very well in your Lordships' House that to intervene in an area you do not normally speak on, when there is such great expertise in the House, is a dangerous thing to do, particularly when the noble Lords, Lord Goodhart and Lord Avebury, have spoken not only with expertise but with a history on this issue over very many years. Indeed, the history which was outlined by the noble Lord, Lord Goodhart, shows a kind of “Yes Minister” over the ages—that the Government have gradually given way little by little until we have ended with one final step to be taken. I very much hope that the Government will take it.
I was encouraged to take part in the debate today and in Grand Committee by a very passionate letter I received from someone in the category the noble Lord referred to. He is right in saying that the number of people in this category is very small, and that there are no significant financial or precedent problems as far as that group is concerned. The noble Lord referred to a letter in Grand Committee. The letter I received states:
“I have wanted British citizenship all my life. Citizenship, even right of abode, was denied to me for many years because it was my mother and not my father who was British. In 2002, the government added a section to the new immigration law meant to address this inconsistency. The new law allowed foreign-born children of British mothers to register as U.K. citizens. When I heard of the new law, I was overjoyed. But my joy was short-lived, as I soon learned that those of us born before 1961 were to be excluded. I was devastated”.
That remains the position. The noble Lord’s amendment would overcome that problem; it is right that it should. As he rightly points out, there is discrimination in this case not only on gender but, curiously, on age.
In reply to the debate on 18 July in Grand Committee, the Minister said that there was a principle that an adult seeking British citizenship should normally be able to demonstrate on the basis of his personal connections with this country why his application should succeed. Of course, the extent to which that qualification has been extended is the same in the case of someone born of a British mother as of a British father. There is no reason why, if they have a reasonable connection—one would have thought that the fact that one’s mother was British was a not unreasonable connection—and passionately wish to become British citizens, that should not be allowed.
In Grand Committee, the Minister was kind enough to suggest that we might discuss the matter further, and I appreciate the fact that I was able to have a brief meeting with him and a discussion with one of his officials, which was extremely helpful. I do not believe that there is any longer any justification for not taking the final step in this matter. I understand that the Minister is not unsympathetic to that idea and suggests that action could be taken in a so-called simplification Bill, which he envisages taking place fairly soon. That would most certainly be welcomed, particularly because the rules of order prevent us including British citizenship; the amendment covers only right of abode. Therefore, it would be better if it could be extended on the basis of citizenship, even though that may mean some delay. If that is the Government's attitude—no doubt the Minister will let us know whether it is—that is a considerable, even final, step forward.
I make only this final point. The letter to which I referred stated:
“We are seeking citizenship because Britain is the land of our mothers, and as such, is our motherland. This relationship is immutable and if we should all die without ever having been allowed to live in Britain, it will not be because we did not remain steadfast until the end in our desire to come home and our belief that our claim to be British by descent was warranted and genuine”.
The problem is, as has rightly been pointed out, that these people are getting quite old and there will obviously be some delay before proper rectification on the basis of citizenship can be made, so I hope that in addition to giving a forthcoming answer today, the Minister will say that in principle he understands that there ought not to be discrimination on the basis of either gender or age.
My Lords, there has been unanimity among those who have spoken and I understand that the matter was considered very firmly in Committee. I just add my plea that we should see this matter resolved one way or another. Clearly, the number of those born before 1961 will become fewer; nevertheless, their views are important. I hope that the Minister will be able to give the assurances that have been sought.
My Lords, I thank the noble Lord, Lord Goodhart, for raising this issue again, as it enables me to clarify and, I hope, resolve the matter once and for all. I am conscious that noble Lords know the detailed background, but for the benefit of the House it may assist if I set out some of the background from a Government perspective and explain why we have got to where we are and how we should now move forward.
Before 1983, British women were unable to pass on their citizenship in the same way as men, but there was discretion within the British Nationality Act 1948 to confer citizenship on any minor by registration. On 7 February 1979 the then Home Secretary announced that he would exercise this discretion in favour of any child of a UK-born mother who applied for registration before his or her 18th birthday.
We recognised that some will have learnt of the 1979 policy change too late to benefit from it. We therefore changed the law in 2002 so that a person can apply to be registered as a British citizen if he or she would have been registered in accordance with the policy announced in 1979, had an application been made while he or she was still a minor.
My Lords, that is one reason why I want to clarify things. The legislation therefore provided for the registration of those born after 7 February 1961. We were not persuaded that it was right to go any further than this, given the principle that an adult seeking to be granted British citizenship should normally be able to demonstrate his personal connections with this country and the fact that those who would benefit from any further relaxation of the requirements in the 1981 Act were at least 46 years old and could be well established elsewhere.
There has been pressure to change the law to allow those born before 1961 to benefit from this provision, which we have resisted on the grounds that there would always have to be a cut-off point, about which there has been some debate subsequently, and that those born before 1961 could not have benefited from the 1979 concession.
Although we have done much to right the wrongs of previous nationality legislation, the current position does not allow the adult children of British mothers the same rights to British citizenship as those of British fathers and we want to correct this. However, to give them a right of abode in the United Kingdom without citizenship is only a partial solution and not the way to put this right, as the noble Lord, Lord Goodhart, said.
This amendment would have a much wider scope than the current registration provision, as it would confer the right of abode in the United Kingdom on any person who would have qualified but for his or her date of birth. However, it is our view that the rights associated with British citizenship, including the right of abode in the United Kingdom, should be closely linked with British citizenship. We would not wish to create a category of people who held the right of abode without having acquired British citizenship. We would like to legislate to give British citizenship to those affected and so have committed ourselves to addressing this problem, as noble Lords already have detected, in a simplification Bill. Because of its wider scope, it will allow us to provide an avenue to citizenship for those concerned, rather than just a right of abode.
I have asked officials to give me an idea of how quickly we could right this wrong and ensure that this problem is sorted out. There will be a consultation which will begin before November. We expect, therefore, a draft Bill to be produced next summer. One would then normally expect a Bill to be introduced in November 2008. It is not in my gift to say what will or will not be in the Queen’s Speech in November next year, but that is an indicative timetable, and is as far as I can go.
I express my continued gratitude to all those who have worked on this. I first alighted on the problem when it rather hit me in the face at Question Time in your Lordships’ House, and I must say that I was left scratching my head, genuinely puzzled over how the situation could have arisen. I looked at what previous Ministers had had to say, but I could see that they were probably struggling as well. In fairness, we have come up with an approach that will work. This Bill is not the right vehicle because the issue does not fall naturally within its scope, I am also grateful that the major opposition party has thought about this as well and has given its support to other Peers who have raised the issue. We have now reached a satisfactory conclusion.
Just one outstanding question that was raised by the noble Lord, Lord Avebury, is left to answer. He asked whether we would now withdraw our reservation to the Convention on Nationality. That is a fair point. We will look into this—
My Lords, I understand what the reservation relates to. We will look into these issues in the context of considering the legislation, but I cannot give an absolute commitment today. I am grateful to the noble Lord for raising the issue. That said, I hope that the noble Lord, Lord Goodhart, will feel able to withdraw his amendment.
My Lords, I am most grateful to the Government, and particularly to the noble Lord, Lord Bassam, for having reconsidered their earlier position. I recognise that my amendment is a second best, because for the reasons which have been explained, it cannot confer citizenship, and therefore this Bill is not the right vehicle for removing the anomaly. My remaining concern is that of the timetable. I hope very much that it will be possible to have the new legislation in force during the present Parliament, particularly as it is now unlikely that a general election will be called before May or June 2009 at the earliest. There is a real possibility here, but I am aware that slippages can occur in the timetable for legislation. Given that the people who will be affected by this are pretty well into middle age by now, I hope that the prospect which has been opened up by the Government will not be darkened by undue delays. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 26 not moved.]
27: After Clause 21, insert the following new Clause—
“Detained children: guidelines and information
(1) The Secretary of State must publish guidelines specifying the maximum length of time during which a child may be detained under any provision of the Immigration Acts.
(2) The guidelines under subsection (1) may specify different periods of time for—
(a) children of different ages;(b) children originating from, or due to be returned to, different countries;(c) children falling into different classes as specified in the guidelines.(3) By 31 March of each year, the Secretary of State shall publish an annual report detailing:
(a) the number of children detained during the previous year whose detention lasted up to—(i) one week; (ii) two weeks;(iii) one month;(iv) three months;(v) six months;(vi) one year;(vii) a period longer than one year.(b) the number of times each of those children was detained;(c) following their release from detention, the number of children in each year—(i) who were removed from the United Kingdom;(ii) who were granted permanent leave of residence;(iii) who were granted temporary admission;(iv) whose destination falls into any other category to be determined by the Secretary of State.(4) For the purposes of this section—
(a) “child” means any person who has not reached the age of 18 years at the commencement of the year to which the relevant annual report relates;(b) “year” means a calendar year.”
The noble Earl said: My Lords, this amendment would require Her Majesty’s Government to publish guidelines specifying the maximum length of time spent by children in detention within the immigration system and to publish regular updates on the number of children being detained, the length of their stay, their previous detention and what becomes of them when they leave detention. The purpose of the amendment is to probe the Government a little and to elicit further information from them, thereby increasing transparency. The Minister said in Committee:
“We want to ensure that children are detained only where absolutely necessary”.—[Official Report, 23/7/07; col. GC161.]
In the past, a few children have been detained for unacceptably long periods despite various apparent protections such as ministerial authorisation for detention. We were reminded of this by the noble Lord, Lord Judd, at our previous sitting when he told us that some children are still being held for a month to two months, and some for even longer than that. There are only a few but, still, they are being held. The purpose of the information is to be aware of how the Government are performing and to express our concern as soon as performance begins to slip, if it does.
In Committee the Minister said that the Border and Immigration Agency is considering ways to improve the statistical information available on the detention of children. I have recently heard from the Minister, Liam Byrne, who gave me a little more information, and I would be grateful for any news of further progress on that review.
The Minister was asked in Committee how many children had previously been detained, and to indicate whether some children will have been in and out a number of times. He replied:
“I do not have that information, and I do not think it is”
“It is not frequently the case that people come in and out of detention. It may well happen from time to time, but I do not have data on it. I will see what further information we can provide”.—[Official Report, 23/7/07; col. GC 161.]
Perhaps he would be good enough to write to me with that information if it is available.
I hope circular detention happens infrequently. I have met but a few detainees on past visits, but at least one of them had had that experience. It would be helpful to have further reassurance. I look forward to the Minister’s response. I beg to move.
My Lords, the noble Earl never ceases to be vigilant in his defence of the rights of children, and he commands enormous respect on all sides of the House for the work he does. His demand for guidelines on the length of time children can be detained and the publication of more detailed statistics on the use of detention should therefore be carefully considered. The statistics now being published quarterly are better than nothing but they give only a snapshot at the end of the quarter, and we know from debates on previous immigration legislation that when Ministers wanted the information for a particular occasion, the BIA or its predecessor had no difficulty in producing it.
There seem to be indications in the latest quarterly figures that fewer children are being detained for shorter periods. If that is so, it should be that much easier to keep track of them and produce the information the noble Earl seeks. I would sooner that he had suggested it as part of the quarterly statistics rather than annually, because then if there were changes in the frequency or length of children’s detention, they would show up earlier and would allow Members to seek explanations by question or correspondence with Ministers.
I also agree with the noble Earl that more precise guidance should be given to the BIA on when to detain and for how long, though I am not sure it can be pinned down in precisely the form the noble Earl requires. Listening to the Minister on Tuesday, one might have thought that the criteria for detention were already sufficiently narrow, were it not for the fact that we all know of cases where the criteria have been grossly and flagrantly violated, even when repeated appeals were made to Ministers to intervene. That is the difference between policy and practice that has been referred to so frequently in your Lordships’ discussions on the Bill. The case that always comes to my mind is that of Jacqueline Konan and her daughter Thelma, on whose behalf I begged the then Minister, Beverley Hughes, and the Immigration Service 13 times to release them, without effect. It was only when they finally got competent advice from a new firm of solicitors that not only was she released and she won her case, but she was also awarded substantial damages by the High Court for wrongful detention over the major part of her incarceration in Harmondsworth.
The Minister said on Tuesday that children were detained only for a few days prior to removal with a view to making arrangements for their care by a local authority as members of a family, where it was considered likely they would abscond, or as part of the fast-track asylum process. But the fact that some children have been detained for very long periods indicates that adherence to those criteria needs to be more closely scrutinised. That is where I think we should look for better safeguards, rather than trying to attach particular numbers of days to given circumstances. There is a rule that Ministers have to approve the detention of children beyond a certain point, but they exercise that responsibility without proper parliamentary oversight. That is a gap in our armoury of protection.
In his letter of 26 July, dealing with matters raised in the fifth Grand Committee sitting, the noble Lord said that from March 2004 to July 2007 Ministers had declined to approve continued detention beyond 28 days in 14 cases only. If Ministers were obliged to place anonymised copies of their decisions to approve continued detention beyond the 28 days in the Libraries of both Houses, with a note on the reasons for their decisions in each case, we would be able to evaluate the process and assure ourselves not only that the declared purposes of children’s detention were being strictly observed but that, wherever possible, alternative arrangements were being made.
My Lords, I am certain that my noble friend will not accept the amendment; it is not difficult to make that reckoning. However, I urge him to get the message, which is very clear. I congratulate the noble Earl on his deep commitment to these matters and on once again having challenged the House.
I simply make the point that either children are central to our policy considerations or they are not. If children are central, each individual child matters. They are not just statistics. At all stages in the treatment of children, when they are confronted with officialdom, a primary concern in the ethos should be, “Here is a child caught up in this situation; what are our responsibilities to this child?”. I do not believe that we begin to fulfil that ethos unless we are prepared to get on record exactly what we are doing and how it is being done.
The noble Lord, Lord Avebury, made the point again—it has been made in our deliberations on previous amendments—that there can be a big difference between policy, genuinely and sincerely made with real commitment, and its application. That means that one has to win the ethos; one has to win the commitment of people at all levels. If one is to do that, people need to know what is required of them.
My Lords, I, too, give wholehearted support to the amendment of the noble Earl, Lord Listowel. I do so for a number of reasons. The first concerns transparency. We have heard today a dispute over numbers, but there would be no dispute if we had a record of how many were actually in detention. We should also know their ages. There is a great difference between a two year-old and a 17 year-old. In our discussion of the Section 9 evaluation, 219 minor dependants were mentioned. Were these teenagers or were they children of pre-school age? We do not know. Our ability to make policy that is positive is hindered by our lack of knowledge. We would be able to act in a far more focused way if we knew the ages of these children and possibly—I do not know how we would do this—their level of development or attainment, as children in different circumstances develop at different paces. The amendment is the beginning of something valuable and I am pleased to support it.
My Lords, this amendment would establish guidelines to specify the maximum time for which a child could be held in immigration detention and would enable the guidelines to allow children to be detained for varying periods depending on age or the place to where the child was being returned. The guidelines would also specify different time limits for detention for children falling into “different classes”, although the amendment does not make clear what this could include. The amendment would also require the Secretary of State to publish an annual report detailing the time that children spend in detention and what happens to their cases.
In Grand Committee, I explained that the Government are confident that robust arrangements exist to ensure that the detention of children is kept to the minimum. We have made it plain on many occasions, most recently in discussions surrounding the draft EU returns directive, that we cannot accept a fixed upper time limit on immigration detention, whether for families with children or single adults. Our position has remained consistent.
A fixed time limit would be out of step with longstanding UK law and policy and go beyond the requirement of Article 5 of the ECHR. A fixed upper limit, or fixed upper limits, which the noble Earl, Lord Listowel, suggested should vary depending on the age of the child or on where the child is being returned to, would only encourage families to delay immigration and asylum processes, including the frustration of lawful removal attempts, in order to reach a point where they would be released from detention. That is simply not acceptable.
The amendment, as it relates to children of different age groups, would have implications also for families with children of mixed ages. Individuals and families are detained for only as long as is reasonably necessary to achieve the purpose for which detention was authorised, which in the case of families is most usually removal from the UK. What is reasonable will vary from case to case, and the actions of parents prolong their detention.
I appreciate the concern that lies behind the amendment, but we cannot have a situation whereby families with children are automatically released from detention at a particular point. We are required to ensure that any detention lasts for as short a time as is necessary. That is extremely important in the case of families with children. In practice, the vast majority of families with children are detained for a small number of days prior to removal. Therefore, in practice, we already go some way toward meeting the main aim behind that part of the amendment.
Furthermore, the amendment would impose a requirement on the Secretary of State to publish an annual report relating to matters concerning the detention of children. As I explained in Grand Committee, to require the presentation to Parliament of a report on all children detained as a result of the agency’s activities would be extremely resource-intensive and would serve no practical purpose given the short period of detention for the majority of children and the safeguards that we already have in place to ensure that detention lasts for no longer than necessary.
A system of ministerial authorisation for the detention of children beyond 28 days was introduced in December 2003 to ensure oversight. In the relatively rare event that detention is protracted, the outcome of a thorough process of assessment and consideration is reflected in advice which the immigration Minister receives. On the basis of that, he decides whether detention should continue.
The assessment and monitoring processes ensure that issues relating to the welfare of the children detained are identified and addressed. The asylum bulletin publishes the number of people detained under immigration powers on the last Saturday of each quarter. Statistics on the number of persons recorded as being removed from the UK on leaving detention each quarter also are published in the bulletin.
I understand the concern about the detention of children and I share the aspiration for transparency. We share those concerns, which is why we have introduced the measures that I described. The noble Earl moves his amendment with good heart. We have gone some way to addressing his concerns. However, the unintended consequences of the amendment and the onerous nature of the statistical grubbing-around that it involves mean that he seeks to impose on us an impractical framework. For that reason, I hope that he will withdraw his amendment.
My Lords, I thank the Minister for his careful reply to my amendment. I am grateful to the noble Lords, Lord Judd, Lord Roberts and Lord Avebury, for speaking in support of its principles. I recognise the difficulties of which the Minister spoke, but the children to whom the amendment would apply are in a vulnerable situation. I understood in Committee that a review of how statistics on them are kept was taking place. If further information on that is available, I would be grateful to hear it from the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
27A: After Clause 21, 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: My Lords, I certainly hope that the Minister will not avoid the responsibility of giving me an answer on this amendment on the grounds that it will be dealt with in the plan of action following the consultation on UASC, which is now not going to appear until the end of November, even though the report on the consultation was originally promised by the end of August.
While I can just about understand the Government’s need to work out some of the details regarding the specialist authorities, the technical problem of age determination is a self-contained issue that could be settled independently of the general framework of the procedures for dealing with UASC. Although the Minister appeared to think that I was suggesting that dental X-rays should be used subject to guidelines, let me say again, as the wording of the amendment should make crystal clear, that I oppose the use of ionising radiation for the purpose of age determination, full stop. The guidelines I was talking about in my speech on 18 July were those developed by the London boroughs of Hillingdon and Croydon, which have been approved by the courts, and contain no mention of X-rays, as I would have thought the Minister's brief would have told him.
The use of X-rays for age determination was stopped on 22 February 1982 by the then Home Secretary, Mr William Whitelaw, as he then was, following a report by my office, published in June 1981. The matter has been reviewed by Ministers once since then, in 1996, when there was correspondence between John Horam MP at the Department of Health and the late Baroness Blatch at the Home Office, when Mr Horam reaffirmed the stance taken in 1982. In 2003, the Royal College of Paediatrics and Child Health reaffirmed that it is inappropriate for X-rays to be used to assist in age determination for immigration purposes, and in response to the UASC consultation, this was again confirmed by leading professional opinion, including particularly the Children's Commissioner, Sir Al Aynsley-Green, himself a noted paediatric endocrinologist.
It is unethical to use X-rays for non-clinical purposes just as it was in 1981—nothing has changed since then—and any supposed improvements in the accuracy of the process are irrelevant. As far as I know, the accuracy is still plus or minus two years, but that is for middle-class American children on whom the original work was done, and there are no base statistics on children coming from the main countries of origin, such as Somalia or Afghanistan, let alone on the adolescent populations of those countries. There are no averages or standard deviations of the measured characteristics of the children in those countries against which measurements of particular asylum seekers could be compared. The whole idea of assessing age by looking at the physical characteristics of unmeasured populations is bad science, worthy of an article by Mr Ben Goldacre in the Guardian.
In our last debate, I referred the Minister to Dr Heaven Crawley’s analysis on asylum, age disputes and the process of age assessment, published by ILPA, and I hope that he has had the opportunity of reading that work, in which the use of X-rays is condemned but alternatives are developed. I sometimes wonder whether the consultations in which the Government engage are genuine, or designed to arrive at conclusions that they have already pre-determined. In this case, the overwhelming majority of expert professional opinion is against the use of X-rays, reasonable alternatives have been developed, and the proposal should be dropped. I beg to move.
My Lords, I understand that this amendment has been tabled because of concerns about proposals contained in our consultation paper, Planning Better Outcomes and Support for Unaccompanied Asylum-Seeking Children. I am not going to duck the question, as the noble Lord suggested, but it might be helpful if I set out some of the background for those noble Lords who were not present in Grand Committee when a similar amendment was debated.
The consultation paper put forward a number of proposals to reform the arrangements for how unaccompanied asylum-seeking children are treated through the asylum and care process. One of our proposals is to make greater use of dental X-rays for the purposes of assessing the age of young asylum seekers where there is doubt about the person's claimed age.
As some noble Lords may be aware, in recent years there has been clear evidence of a rising level of serious abuse of the asylum and support system by adults claiming to be children. We believe that this can lead to very serious child protection issues, with adults potentially being placed among vulnerable children in the care system or children being wrongly routed into an adult system which can lead to their being detained. It is therefore imperative that we and local authorities work closely together to improve the reliability of age-assessment procedures. We have been working to that end.
In recent years we have relied heavily on the skills and knowledge of social workers. While it is still our view that a social worker's assessment of age should be an integral and essential part of the age-assessment process, we believe that a dental X-ray can be a useful additional tool in the overall decision-making process, particularly where there is a continuing dispute as to the outcome of the age assessment.
As noble Lords will be aware, some local authorities already arrange a dental X-ray and subsequent report by an expert in the field to assist in their final decision.
My Lords, I challenge the noble Lord. I do not believe that local authorities arrange for dental X-rays. I believe that the advice that was given by the Department of Health was that X-rays should not be used for this purpose and that local authorities are all awaiting the outcome of the consultations, which include mention of the process. They would not jump the gun by X-raying children now.
My Lords, I am advised that some local authorities use dental X-rays in that way. I asked officials to advise me on that point. Of course I shall check again and seek further clarification, but I maintain that X-rays are used in that way. Moreover, some applicants who have been assessed as adults themselves commission dental X-rays to support their claim to be under 18, so clearly applicants see this as a valuable process.
We are aware that X-rays on their own cannot determine age precisely; no procedure can give that certainty. However, we believe that they can, when taken with a range of other evidence such as the social worker assessment, provide a better means of narrowing the range of possible ages and thus assist the decision-maker. As I said in Grand Committee, X-ray procedures involve a small degree of exposure to ionising radiation—we are all familiar with that—but I reassure noble Lords that we have been advised that the risk of any harm is absolutely minimal.
I have concerns that if this amendment were enacted it would make the operation of our current policy very difficult. As I explained in Grand Committee, this amendment would appear to mean that an immigration officer would not be able to take into account a social worker's assessment if it depended in any way on dental analysis. It might also prevent an individual seeking to rely on their own commissioned dental X-rays to support a claimed age.
We have to find ways to improve the process for age assessments and their reliability and to minimise the serious child protection issues that may arise following incorrect assessments. Many EU member states currently use medical examinations for the purposes of age assessment and it is a procedure which is specifically permitted by the EU Procedures Directive. We have given a commitment to share research that we have commissioned on the subject of ethnic variation in relation to dental development—a point which the noble Lord, Lord Avebury, made today and in Grand Committee—and we are still awaiting the results of this research and expect this to be published sometime toward the end of the year.
For those reasons I invite the noble Lord to withdraw his amendment.
My Lords, I must voice some disquiet at the use of ionising radiation in any form when it is for the purposes of a non-medical intervention. It raises concerns. Irrespective of the EU directive, is the Minister completely satisfied that that kind of intervention is ethically justified given that the information that one would get from such an X-ray would be of only limited value and that assessment of a young person can be made by other means that are sufficiently adequate in most cases?
My Lords, this is Report stage, and it would not be my usual practice to respond to an intervention made after I have sat down, but I will do so in this instance. In my peroration, I was very careful to say that we see this as being just one tool among a range of methods that are adopted. We rely very much and carefully on assessment procedures that social services, social workers in particular, adopt. We do not rely entirely on this technique and method for the very reason that noble Lords have given; that there is still a degree of imprecision. It is one element that is used in some cases where we think it is most appropriate. It is done for very good reasons indeed, which are primarily to ensure that young people, children in particular, are placed in the right setting. It is for that very good reason that we take considerable care here and why we have to rely on the expertise of social workers. I hear what my noble friend says, and he is very knowledgeable in these matters. Those considerations form part of our thinking.
My Lords, the Minister has confirmed my worst fears; that he is going to disregard all professional opinion on this matter. I am delighted that the noble Lord, Lord Winston, intervened, because he brings a high degree of professional expertise to bear on the question of the use of ionising radiation for non-clinical purposes.
If the Minister asked the same question of the BMA, the BDA, the royal colleges, particularly the Royal College of Paediatrics and Child Health, he would have had the same reaction that we have heard from the noble Lord, Lord Winston, this afternoon. I can only take it from the reply that we heard this afternoon that it is the Government’s intention to ignore all professional opinion that disagrees with their point of view. The noble Lord said that the use of dental X-rays is in fact essential to the process of age determination, which means that it will be used whatever the experts tell them. I deny that dental X-rays are necessary.
Has the Minister read the report by Dr Heaven Crawley, to which I referred him when we discussed this in Grand Committee? I take it from the expression on his face that he has not read the report, which is an extremely thorough analysis not only of the use of X-rays but of other methods of age determination that have been found to be fully effective, particularly those developed by the London boroughs of Merton and Croydon, which have been approved in our courts of law as being fully effective. The noble Lord is absolutely wrong to say that the denial of the use of dental X-rays is going to inhibit or damage in any way the process of immigration control.
I shall return to this subject again as frequently as I can, and I would press the amendment to a Division this evening were it not so late in the afternoon. It is the most disappointing reply that I have heard from the Minister in the whole course of these proceedings, and that is saying something. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
28: After Clause 22, insert the following new Clause—
In section 83(1)(b) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal: asylum claims) the words “for a period exceeding one year (or for periods exceeding one year in aggregate)” are omitted.”
The noble Lord said: My Lords, the Refugee Children’s Consortium brings together a very wide cross-section of voluntary agencies working with children in a refugee situation and throughout the United Kingdom. That consortium is deeply concerned about the protection of the rights of appeal for children in one important respect. Section 83 of the 2002 Act generally provides a person who is refused asylum with a right to appeal even though he or she has been granted leave to enter or remain for other reasons. However, Section 83(1)(b) denies that right if the leave granted amounts to no more than one year. That predominantly affects unaccompanied children seeking asylum. In 2006, unaccompanied children accounted for 84 per cent of all grants of discretionary leave, despite constituting only 13 per cent of applications.
The recent change to the discretionary leave policy lowered the age to which discretionary leave would be granted from 18 to 17½, with effect from last April. Many more unaccompanied children seeking asylum will be caught by Section 83. Currently, about 1,500 children are aged 16 or 17 on arrival. The majority of those are likely to be over 16½ by the time an initial decision is made on their asylum claim and are, therefore, likely to be denied access to the appellate system while they remain children.
In Grand Committee, my noble friend restated the Government’s position that if leave is granted for a period of less than 12 months,
“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”.—[Official Report, 18/7/07; col. GC 90.]
However, this response assumes that the appeal is delayed only until the point at which leave expires, while in reality the wait is much longer, because, before an appeal can be launched, the applicant must await a decision on their extension application. In the past, applicants have been left waiting for many months and years for that decision. Although the new asylum model aims to reduce such delays, the target for resolving cases within six months does not work for these cases. Although the Home Office may argue that the target is met by the grant of discretionary leave within six months of the initial asylum claim, Section 83 prevents these cases being resolved. The risk is that the new process achieves nothing for these cases and individuals remain waiting for many years to resolve their case.
The current delay in settling an applicant’s status discriminates against children. In Grand Committee, my noble friend refuted this contention on the grounds that Section 83 is not restricted to asylum-seeking children, but rather applies to all those granted leave of 12 months or less. What he failed to acknowledge was that those affected by the provision are nearly all children. The only other group for whom discretionary leave is habitually granted for less than 12 months is those excluded from protection under the refugee convention and the Government have admitted in the course of this Bill that these are very few in number,
“possibly tens rather than hundreds”.—[Official Report, Commons, UK Borders Bill Committee, 13/3/07; col. 310.]
It was argued in Grand Committee that the significant lapse of time between the initial application and the appeal is seriously problematical for children and can result in significantly less favourable treatment of them in the appeals process. At a significant time after the relevant events, it is much harder to gather evidence for appeal. For example, many children will find it difficult to recollect important details and it is often impossible to trace important witnesses.
The lapse of time is in contradiction to a central pillar of the new asylum model, by which the Home Office seeks to improve initial asylum decision-making. The NAM ordinarily requires the Home Office decision maker to defend his or her refusal in person or at any appeal. This provides a strong incentive for the decision maker to make a careful decision. However, if the decision-maker knows that no appeal can be brought for several months, possibly years, the incentive is lost. Some children lose contact with their lawyers before their appeal is heard, which results in many being unrepresented at the hearing.
As immigration judges are required to consider the circumstances pertaining at the time of appeal, it is always likely to be disadvantageous to children to have their appeal dealt with a year, at least, after the decision to refuse asylum. If the length of delay means that the young person’s appeal is heard after they become 18, this can put them at a further disadvantage. This is chiefly because children benefit from a more generous application of the Legal Services Commission merits test for legal aid funding than adults. If the first chance to appeal against the refusal of asylum occurs once the child has become an adult, they will be merits tested at the adult standard and may, therefore, be denied representation of their appeal.
The effect of Section 83, the consortium has persuaded me, is to delay a young person’s access to an appeal before the Asylum and Immigration Tribunal. That makes the social worker’s job of planning for the young person’s departure—they are charged with this work—virtually impossible because the young person concerned will always have a reasonable chance or hope that the decision to refuse asylum will be overturned. I beg to move.
My Lords, the noble Lord, Lord Judd, explained in some detail what happened following the publication of APU Notice 3/2007, which amends discretionary leave for unaccompanied asylum-seeking children. The child who, in the opinion of the officer, does not qualify for refugee status or humanitarian protection will normally be given discretionary leave for 12 months or to the age of 17½, whichever is the lesser. As the noble Lord explained, the effect is that the child has to submit an application for an extension of leave when he approaches the age of 17½ and, when that is refused, the substantive application for asylum is heard. That may happen months or even years after the original application, when, as the noble Lord also explained, memories of the events that gave rise to the asylum application will have faded and forensic evidence will be that much more difficult to collect.
The effect of the child failing to lodge an application within the milestone of 17½ years of age would be that he would have no right of appeal at all. Although case owners are urged to see that legal representatives advise children to make an application—they will not get paid extra for that additional work—there may well be instances where, as the noble Lord said, the lawyers lose touch with the clients through the lapse of time.
The general answer to maintaining better contact between UASC and their representatives may be found in the consultation document, Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children, which we talked about when debating the previous amendment. Under the system proposed there, some 40 to 50 specialist authorities in four regions outside London and the south-east would have responsibility for all UASC, with about 100 in each of the specialist authority areas. The authorities concerned would then be able to build up their services to cope with an even flow of UASC. As I said, contact would be better maintained and the expenditure of the local authorities in question could be planned over the medium term. Of course, the local authorities would have to be properly reimbursed for the costs that they would incur in setting up the system, and it would be useful to hear something about the discussions with the LGA on that subject. The power to apply residence conditions in Clause 16 would have to be used for this purpose, and I ask the Minister whether it is intended to direct the existing UASC into the areas of the specialist authorities or only to use the power with new arrivals once the arrangements are in place. It would be a far bigger job if the 6,000 UASC, the majority of whom are in London and the south-east, had to be moved to new homes in the specialist authority areas, if that is the intention.
When it comes to the provision of legal services, the arguments are not quite so clear. In huge areas of the north, there are no specialist legal aid services available for asylum seekers, let alone for UASC, and the withdrawal of Browells, for example, means that there is a legal aid desert in the Newcastle area. So the market model is not likely to work, because providers who would offer services under legal aid will not spend huge sums of money training experts and attracting them into the areas of the proposed specialist authorities without a firm presumption of getting a contract. On the other hand, it would be irresponsible of the BIA to award a contract to a provider with no previous experience of this work.
The Refugee Legal Centre and the IAS could no doubt fill the gap in theory, but even they would have to be advanced funded to get lawyers with the necessary expertise to migrate to Newcastle and other centres where there is no capacity at present. No doubt, one of the reasons why some two-thirds of UASC are in London and the south-east now is precisely because those are the only regions where they can get the best advice.
My Lords, an asylum claimant whose claim for refugee status is refused, but who is none the less granted more than 12 months of leave to enter or to remain in the United Kingdom, can appeal to the Asylum and Immigration Tribunal against the rejection of his claim for asylum. Where someone’s asylum claim is refused and they are granted 12 months or less leave to enter or remain, they may not immediately appeal, although of course they would have the opportunity to appeal against any subsequent decision to remove them from the United Kingdom. Strong policy reasons still exist for the 12-month restriction which this amendment seeks to remove.
We recognise that noble Lords propose this amendment so that unaccompanied asylum-seeking children may obtain finality and clarity to their immigration status as early as possible. We do not believe that this amendment achieves that aim. Instead it would cause disarray in the appeals system and bring little or no benefit to the young people it seeks to assist.
The underlying principle for why we must resist this amendment is straightforward. The purpose of requiring more than a year of leave to be granted before appeal rights may be exercised is to ensure the smooth operation of the appeals system should there be a mass influx of people who are not entitled to protection under the refugee convention and need to stay for only a short period of time. For example, in 1999 there was an influx of claimants from the Balkans, thousands of whom subsequently returned there once the situation in their countries improved. The appellate system cannot cope with such a sudden surge in the numbers of appeals in the system. Nor would it be economical for us to provide an appeal for thousands of short-stayers of this type. The legislation as it is framed protects the tribunal from such situations and we believe that it should continue to do so.
Where someone is granted a period of leave of 12 months or less because of a temporary problem in their country of origin or some other short-term factor, we expect that person to return to their home country after a period of short stability in the United Kingdom and without the need for an enforced removal. Should we need to enforce removal, there is an immediate right of appeal against that decision. Whenever someone has an asylum or human rights claim, a decision to remove always attracts a right of appeal.
Young people are not deprived of that right. Where 12 months or less of leave is granted, the opportunity to appeal is deferred until a further immigration decision is taken at the end of that period of leave. The effect of this is to delay the right to appeal by a maximum of 12 months and an average of just six months. We estimate that approximately 750 young people are affected by this each year.
For all the turbulence in the appeal system that this amendment could cause, it aims to bring forward only the appeals of a relatively small number by a relatively short time. Apart from damaging the appeals system, this amendment fails to achieve its aim of bringing an early answer to the question of young people's immigration status. I remind noble Lords that 80 per cent of asylum appeals are dismissed. Where young people's appeals are dismissed but they remain in the UK with discretionary leave, their status is not necessarily finalised. Only when that discretionary leave expires at the age of 17½ can the final decision and appeal process fully consider whether human-rights reasons exist as to why removal from the United Kingdom is inappropriate.
I hope that I have been able to offer some reassurance to noble Lords. Our policy of granting leave only until age 17½ to those unaccompanied asylum-seeking children to whom we have refused asylum, but who cannot return, is designed to create a system where young people are clear about their future status in the United Kingdom by age 18. We acknowledge that it is not perfect and, of course, will work to improve the system through policy changes.
The noble Lord, Lord Judd, asked about legal aid, and whether it was harder to acquire for adults. The merits test is designed to be based on more factors than just age. Appeals may of course have a good chance of success irrespective of age. I hope that, having heard what I have to say, he will feel able to withdraw his amendment.
My Lords, I thank my noble friend for his reply, and the noble Lord, Lord Avebury, for his important contribution.
It is unfortunate. We all talk about the importance of consultation. Here we have a consortium made up of responsible, dedicated, hard-working voluntary organisations working with the people to whom the amendment refers. They come to us with a plea about the denial of the fulfilment of children’s rights in their direct experience, ask us to do something about it and we let them down. This is very sad. It denies the spirit of consultation, which must mean a readiness to respond to what those with insight have to say.
I have made my second point repeatedly; I said that I would go on making it ad nauseam and I will. We live in a world which is volatile in security terms. The last thing we should be doing is giving people in their formative years a frustrating experience which leads to a sense of grievance, their potential alienation and worse. Are we serious about winning hearts and minds or not? If we are, it is in the details that we will win them—not by exhortation and general principles, but by being seen to be committed to the needs of those who are faced with difficulties, in keeping with the values we espouse. I feel profoundly disappointed that we cannot budge on this, but nevertheless beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 24 [Seizure of cash]:
[Amendment No. 29 not moved.]
Clause 31 [People trafficking]:
30: Clause 31, page 17, line 26, at end insert—
“(5) Where there are reasonable grounds for believing that a person is a victim of trafficking, that person shall not be removed from the UK until the process for identifying whether they are such a victim is complete.
(6) A recovery and reflection period of 3 months shall be granted to a person who has been identified as being a victim of trafficking, during which time no immigration enforcement measures shall be taken against them.
(7) Renewable residence permits of up to 6 months’ duration may be granted to victims of trafficking.”
The noble Lord said: My Lords, recent reports of extensive police activity, not just in London but across the country, have vividly illustrated how widespread the consequences of trafficking are. The numbers are growing; the physical dangers and psychological traumas for those involved are immense. As a nation, we are beginning to realise that those being trafficked are likely to be primarily victims of a ruthless trade rather than just an extension of illegal immigration or sordid prostitution.
We dealt with these issues in Grand Committee but, in view of the seriousness of what is happening and the frequently acute danger to and suffering of the victims, I seize this opportunity to beg my noble friend to take another look at what is proposed by this amendment and consider it more favourably. Why have we still not ratified the Council of Europe convention? Why can we not have a clear target date for its ratification in order to bring the necessary discipline and urgency to preparing for its implementation? Of course the Government’s case—that they do not want to ratify until we are able to implement—is an honest position that one can respect, but one must have some discipline in place to ensure that preparations are being made with a sense of urgency.
What has happened to the action plan during the summer? Why are the Government not prepared to reconsider their reservation on the UN Convention on the Rights of the Child in this context so that the paramount importance of the protection of children, in line with the firm exhortations of the Prime Minister about the need for inclusive policies towards children, can be ensured?
The director of Bail for Immigration Detainees has this month written to a number of noble Lords about the issues, stating:
“Our research has found that … the speed of the detained fast track process at Yarl’s Wood makes it nearly impossible for women to get a fair hearing and the vast majority of asylum claims are refused … women don’t have enough time to disclose traumatic experiences, or to prepare properly for their asylum appeals by gathering expert reports or medical information … approximately one third of women are not legally represented in their asylum appeal … a high number of women sent to Yarl’s Wood are subsequently found to have cases that cannot be decided quickly and fairly in detention, including those who have suffered sexual violence and gender based persecution … women can spend long periods in detention once their case has been turned down and there is no systematic process in place to identify those who are not fit to be detained”.
I submit that the wording of the amendment is explicitly relevant and clear in its formulation to this grave social challenge. The fears of vicious bodily harm and other disturbing consequences for those apprehended, or for their families, and the anxieties about the nightmare of being retrafficked, cannot be overestimated. I beg to move.
My Lords, my noble friend Lady Anelay tabled a similar amendment in Committee, so I support what the noble Lord, Lord Judd, has put forward.
One of the real obscenities in today’s world is the trafficking of women, and the fact that they are very apparently being trafficked into our country makes it no less an obscenity. It is also clear that we must have different ideas about what happens to people who are trafficked. A chief constable recently appealed for help, one of the reasons being that she had such a problem in her area from women who had been trafficked and who were to all intents and purposes imprisoned by those who had trafficked them. The problem is horrendous, so we need to consider the amendment most carefully. I hope to hear from the Minister the Government’s proposals for dealing with this unusual situation in terms of immigration. These are people who do not necessarily want to be immigrants, but who are attracted to come here under entirely false pretences. The whole practice is built on dishonesty in all respects and we must try and find another answer to it. I support the amendment.
My Lords, I, too, support the amendment. First, I pass on the apologies of my friend the right reverend Prelate the Bishop of Ripon and Leeds, who has had to set off back to Yorkshire but who would have liked to be here for this amendment.
We have seen this situation in Southampton in recent months. I understand that increasing evidence shows that it is difficult for some of those trafficked—in particular women, either into prostitution or into the kind of domestic service that lays them open to physical ill treatment and probably rape—to return to their own countries. That may be because they fear the same gangsters who brought them into this country or because they have been forced into prostitution and subjected to rape. Significant numbers of people are here, helpless because they have been trafficked into this country and their position is increasingly akin to that of asylum seekers. They are certainly not economic migrants because they have not come under their own steam. It is a really serious matter.
In the past 18 months, we in Winchester have celebrated the centenary of the death of Josephine Butler, that remarkable campaigner in these matters during the last 30 years of the 19th century. She spent quite a bit of the 1880s and 1890s resident in the Close in Winchester because her husband was a canon. We have been reminded that there is a long tradition in this country of our failure to look with the greatest care at the victims of prostitution and similar hardships. There is a good book about her called Beating the Traffic, which links her own history through the years to the present realities and to the activities of CHASTE and a number of other organisations. It is most important that this serious and still developing problem—women in particular, but also children and men, who are trafficked for use in agriculture—is taken seriously in this way.
My Lords, the noble Lord, Lord Judd, will recall that at the end of June a debate on this subject was initiated by the noble Lord, Lord Sheikh, and there was another debate on it in Grand Committee a month later. We also talked about trafficking on Tuesday, so there is no lack of attention from Parliament to the massive problem of human trafficking. As I said last Tuesday, the consensus seems to be that the national action plan on tackling human trafficking maps out the right strategy and that although there has been some criticism of the delay in signing up to the Council of Europe convention—we heard it again today from the noble Lord, Lord Judd—we signed it on the day that the UK Human Trafficking Centre was established. As the Minister said in his response to the debate initiated by the noble Lord, Lord Sheikh, we are now working on the action plan to enable us to ratify the convention at the earliest possible date.
In that debate, I suggested that the Government should report periodically to Parliament on progress on the implementation of the action plan, particularly on the ratification of the convention, but that was one of the points that the Minister did not have time to cover in his response. He promised to write to those who took part, but we still have to hear from him on that. This debate is not a substitute for my proposal because it would be far more useful if, in the normal course of parliamentary business, we had written reports in advance so that we could take advice from the agencies on what the Government said in their progress report before we came to debate it on the Floor of the House.
In the June debate, the Minister made a useful comment on the international dimensions of trafficking. He outlined various measures being taken by the FCO and DfID with a view to reducing trafficking at source, and he particularly mentioned the work of the UKHTC in complementing the activities of the Serious Organised Crime Agency. It will be better if we can fight trafficking in the countries of origin rather than waiting until the victims arrive here to land up in brothels or as domestic slaves. But since the money to be made out of human trafficking is commonly agreed to be vast, there have to be protective measures for the victims who are rescued here as well. According to unpublished Home Office research mentioned by the JCHR, there may have been 4,000 victims of trafficking for prostitution in 2003—I wonder if that research is going to be published. Being able to give even a rough number would seem to imply that the police know where the brothels are, and I wonder if the police consider that they have adequate powers to close them down and give foreign involuntary prostitutes the chance of freedom.
If there is a more vigorous approach to the problem, it could well be that the 25 safe house places offered by the Poppy Project would all be needed and the extra capacity it is now being funded to provide would soon be filled. One of the ingredients necessary to ratification of the convention is that we offer sufficient accommodation in safe houses and accompanying support to deal with the victim population. The JCHR reported that since the Poppy Project is centred in London and operates on what they described as tightly focused criteria, the scale of the problem is not reflected in the number of its clients. The expansion of the Poppy Project and the agreement with NASS, mentioned in the Government’s response to the JCHR report, may have solved the problem of accommodation, but not of the specialist support services which they agreed were necessary. Presumably there would have to be regional centres of support and accommodation for trafficked women before we could ratify the convention, and with the advice of the UKHTC, I hope the Government are now able to make a full assessment of the need.
My Lords, despite my resistance to this amendment, which will become clear, I sincerely welcome the debate as a helpful opportunity to outline the Government's approach on the issue of trafficking. I think it usefully supplements early debates we have had on the issue and the debate that was initiated by the noble Lord, Lord Sheikh.
As noble Lords have expressed clearly, human trafficking is an appalling and obscene crime which causes terrible trauma to its victims and can have a lasting impact on them. That is why, as well as using this Bill to strengthen existing trafficking offences, the Government are paying scrupulous attention to their responsibilities regarding victims of trafficking.
The Government are committed to help identify victims of this awful crime and the publishing of the UK action plan and the signing of the European convention on action against trafficking by the Home Secretary on 23 March demonstrate our continued commitment. This is further reinforced by the establishment of a dedicated project team to lead implementation of the convention and by a continuing police-led multi-agency operation—Pentameter 2. This operation focuses on rescuing victims of sex trafficking and identifying, disrupting, arresting and bringing to justice those involved in this criminal activity. It will also enable us to gather intelligence on other forms of trafficking and will provide an opportunity to pilot some elements of the convention, including a process of victim identification. These are significant steps towards our goal of making the UK a hostile place for traffickers.
In order to aid practitioners and raise awareness of trafficking, the Home Office has developed an online toolkit. Training on identifying and handling potential victims has been provided throughout the regional enforcement offices. We have also provided staff with guidance to identify victims of trafficking at the earliest stage. The UK Human Trafficking Centre has been running awareness-raising sessions for front-line staff and a Border and Immigration Agency trafficking network has been established to help co-ordinate activity in this area. Specialist training has been provided by the Border and Immigration Agency for around 600 operational members of staff nationwide to support the identification of children in need. That is a significant number of officers working in that field.
In reaching a decision to pursue repatriation of an individual, consideration is given to our obligations under the immigration laws and the Human Rights Act, including any risk that they might face on return or other reasons why they should be allowed to remain in the United Kingdom.
The Government recognise that there will be individuals who have suffered exploitation at the hands of their traffickers and that they need time to recover and reflect on their personal circumstances. That is why during Pentameter 2 we are piloting a reflection and recovery period of a minimum of 30 days for those who are identified as victims of trafficking. This is essentially piloting aspects of Articles 10 and 13 of the Council of Europe convention, which is recognised and generally reflected in subsections (5) and (6) which noble Lords have already covered in discussion.
Where appropriate to do so, permission to remain in the UK may be granted on either a limited or indefinite basis. As I am sure noble Lords appreciate, each case has to be assessed on its merits and repatriation will only be considered where it is considered safe and, more importantly, appropriate to do so.
In relation to proposed subsections (6) and (7), we have always said that we are wholly sympathetic to the objectives behind the Council of Europe convention. The convention will build on our strategy to combat human trafficking by providing minimum standards of protection and victim support.
With the UK Human Trafficking Centre we are establishing a lead in Europe in training police in best detection techniques. UNICEF has already praised our efforts in this regard. The centre will become a central point for the development of police expertise and operational cooperation.
I can say to the House that good progress has also been made on the implementation of the UK action plan against trafficking. A plan to implement the Council of Europe convention has been submitted to the inter-ministerial group on trafficking. A scoping report on the extent of child trafficking was published by the Child Exploitation and Online Protection Centre on 11 June. The FCO has disseminated information to posts on recent UK convictions for trafficking for use in local media. Entry clearance officers in source and transit countries have been trained in trafficking awareness. Other work on the action plan is, of course, continuing.
Despite that progress, it will still take some time before we move from signature of the convention to ratification. Before ratification, we as a Government are committed to implementing it fully and in accordance with its ongoing strategy on trafficking. Some of the other signatories to the convention have legal systems that allow or require ratification before implementation. Ours does not. We operate in a different way. The need for wide consultation and limited secondary and primary legislation, including in the devolved Administrations, means that ratification will take time—longer than we would ideally like—but that does not prevent implementation of parts of the convention, nor does it disturb our determination to tackle this issue and deliver on our wider trafficking strategy. We want to ratify as soon as possible, but we are determined to ensure that we get the arrangements right before doing so.
The Government largely share my noble friend’s intentions, but not the timing of the provision. It would be premature to accept the amendment. My noble friend Lord Judd asked what has happened to the action plan over the summer. Plans on both the implementation of the convention and the action plan are submitted on a regular basis to the interdepartmental ministerial group. Noble Lords will be aware that there has been some publicity surrounding progress. The next meeting of that group is due in November.
The noble Lord, Lord Avebury, suggested that the immigration Minister should report back to Parliament on the progress of the action plan and the implementation of the convention. The Government are committed to sharing progress on the action plan and the convention, as I said, by giving regular reports back from the inter-departmental ministerial group. We will give active consideration to other reporting mechanisms that we can find that will enable us to ensure that the issue is kept at the forefront of public consideration.
My Lords, I am sure that my noble friend will agree that I am not being mischievous in suggesting that what he said at the end of his remarks is almost a rerun of what he said in July. It distresses me that as this problem accumulates, with people suffering in the midst of it, we cannot gear ourselves up to more effective and urgent action. We will not get that until there is a target date for ratification, which would bring discipline to those officials involved in the inter-departmental discussions to make the plans and conclude them. I therefore urge my noble friend to persuade his colleagues to bring forward a target date as soon as possible.
I have listened to my noble friend's reply. He will know that I am not elated by it. I shall think about it very carefully but, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 [Exceptions]:
31: Clause 33, page 18, line 25, leave out “conviction” and insert “the offence”
The noble Lord said: My Lords, Save the Children has drawn my attention—and, I believe, that of other noble Lords—to an injustice, as it sees it, that needs to be addressed. In doing so, it is supported by the National Children's Bureau, the Children's Legal Centre, the National Association for Youth Justice, Barnardo's, the Children's Society, and NACRO—not an inconsiderable body of highly relevant experience.
Clauses 32 to 39 provide for the automatic deportation of non-British citizens through a deportation order made by the Secretary of State when they have committed certain offences. Clause 32(2) and (3) mean that mandatory deportation would extend to those who have committed a less serious offence. The person would have had to have been sentenced for a period of imprisonment of at least 12 months or committed an offence covered by the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. These criteria mean that the number of crimes which would be caught under the provisions is large and includes some relatively minor crimes such as fly-tipping and possession of cannabis for personal use.
Save the Children, with all its experience, is deeply concerned at the implications of all this, as are the other organisations I mentioned. Clause 33 lists a number of exceptions where the Secretary of State may not make a deportation order. However, exception 2, Clause 33(3), provides for an exemption from Clauses 31 to 38 only if the person is under the age of 18 at the age of conviction. Someone who commits an offence when they are under 18, but are not convicted until after their 18th birthday, would therefore be eligible for automatic deportation under these new proposals. Given the wide range of offences concerned, it is particularly worrying that Clause 33 provides for the automatic deportation of a person who committed an offence when he or she was a child.
All of us who are concerned recognise that the Government seek to address their obligations through exception 2. However, the clause as it stands will not fulfil its obligations. It is likely to give protection only to younger children and will not guarantee protection for those aged 16 or older, given the likelihood of their having reached their 18th birthday before they are convicted.
I cannot see how Clause 33(3) is compatible with Articles 37 and 40 of the UN Convention on the Rights of the Child, which gives specific rights to all children who commit crimes. Article 1 defines a child as,
“every human being below the age of 18 years”.
The Committee on the Rights of the Child’s recent general comment on children’s rights and juvenile justice states that,
“every person under the age of 18 years at the time of the alleged commission of an offence must be treated [in accordance with] the rules of juvenile justice”.
Therefore, a person who commits a relevant offence when a child must not be eligible for automatic deportation regardless of whether they are over 18 by the time they have been convicted for it.
Disturbingly, the clause as it stands could also mean that people who have committed the same offence at the same age will be treated differently depending on the length of time between the crime being committed and conviction. For example, person A commits an offence when she is 17 years and six months. She is convicted within two months and is not eligible for automatic deportation. Person B commits the same offence when he is also 17 years and six months. His case takes longer to come to trial. He is not convicted until eight months later. By this time he has turned 18 and is eligible for automatic deportation.
My noble friend argued in Grand Committee that certainty was important and that the date of conviction could be more certain than the date of the offence. But surely what should matter is whether the person was or was not a child when the offence was committed. Surely the certainty of the principle that no one who commits a crime under the age of 18 can be automatically deported should take precedence.
Another important issue is that Clause 33 could result in people close to their 18th birthday falsely admitting guilt to speed up the process in order to ensure that they are convicted before they turn 18 so that they will not be eligible for automatic deportation. The Government recognised in the Commons Public Bill Committee that this issue could arise. Their suggestion of combating such incentives through the inspectorate, the Crown Prosecution Service or greater transparency in the system must be welcome. However, this amendment would ensure that the situation would not arise in the first place.
Once more, I refer to the powerful words of my right honourable friend the Prime Minister about children at the Labour Party conference. This amendment will enable a policy which directly contradicts the Prime Minister’s intention to be put right and to enhance the fulfilment of his highly civilised objective. I beg to move.
My Lords, this amendment deals with persons who have been sentenced to at least 12 months or convicted of one of the crimes listed as particularly serious under the 2002 Act who are to be automatically deported. An exception is that if the offender is under the age of 18 at the time of conviction, the automaticity does not apply, although of course he can still be deported under other provisions. The noble Lord argues, as he did in Grand Committee, that the exception should be triggered by the date of the offence and not the date of the conviction, and we agree. The only argument against the amendment is that it is sometimes difficult to say precisely when the offence was committed, and that a person may be convicted on charges that deal with acts committed over a whole range of dates.
My suggestion, which I repeated in Grand Committee when it appeared that the Minister was not going to respond to it, was that if the conviction related to acts done between dates X and Y, the problem could be solved by relating the exception to date Y. On the second occasion, the Minister agreed to give that proposal some thought, but I regret to say that in his letter of 26 July dealing with matters raised during the fifth sitting in Grand Committee, he did not mention it. I hope that he has a note about it this evening and will give me an answer when he comes to reply to this debate. I have to assume, in the absence of any comment so far, that there are no valid arguments against my suggestion.
My Lords, exception 2 in Clause 33(3) means that foreign criminals aged under 18 when convicted will be exempt from automatic deportation. Amendment No. 31 would alter this exception to mean that those aged under 18 at the time of the offence would be exempt. This is not the first time the amendment has been tabled. It has been debated at length both in this House and in another place. In those debates both my honourable friend the Minister of State for Borders and Immigration and I have put forward the Government’s case for resisting the amendment. We explained that the provisions have been designed to ensure that it is as clear as possible whether they apply to foreign nationals. They achieve this as drafted because it will always be clear on which date a person has been convicted. It will, however, not always be clear when the offence took place, such as in sexual abuse cases or crimes that have taken place over an extended period, such as drug dealing.
In the debate in Grand Committee on 23 July, the noble Lord, Lord Avebury, suggested an alternative approach. This was that in cases where it is unclear when an offence has taken place, the latest possible date should be the relevant one for deciding whether the exception should apply. As he said, I agreed to look at this suggestion more closely over the Summer Recess. Having done so, I agree that in practice this suggestion would not reduce the certainty around whether a foreign criminal qualifies for automatic deportation. However, I am not convinced that it would be the right approach to take in this instance.
The primary purpose of these provisions is to protect the public from harm. To do that they must be robust enough to send out a message that criminal behaviour is simply not acceptable. Given the prevalence of youth and gang-related crime in our communities, I do not feel it would be appropriate to exclude from these provisions youths who turn 18 between the commission of an offence and their trial. The noble Lord will be aware that there is no lower age limit for deportation under the Secretary of State’s powers in the existing legal framework in the Immigration Act 1971, although this limit is 17 years for court recommendations.
However, in recognition of the potential vulnerability of children and young people, we do not as a matter of policy deport individuals under the age of 16 in their own right. Individuals between the ages of 16 and 18 will be deported only where there are adequate reception arrangements in place in the country of origin. So young people will be no worse off under the new provisions than they are now. Under the current system, a young person who turns 18 between offence and conviction will be considered for deportation if they meet the threshold. If they are still under 18 at the point where deportation is in prospect, consideration will be given to the adequacy of reception arrangements. Under the proposed cut-off point in this clause, the individual will be an adult by the time deportation is in prospect.
The intention behind the noble Lord’s amendment is clearly to ensure that someone is not punished as an adult for something he did as a child. It is the job of the criminal courts to make any appropriate allowances for age when passing sentence. Deportation is an immigration consequence of criminality and does not reflect the punitive or rehabilitative elements of a criminal sentence. I accept that the immigration consequence may nevertheless be serious, which is why we have put in place appropriate safeguards.
My noble friend Lord Judd stated that possession of cannabis is on the Section 72 list of offences—that is, if a person is imprisoned for possessing cannabis, automatic deportation will apply. That is not the case. Possession of class C drugs is not included on the Section 72 list. My noble friend also made a point about the provisions on automatic deportation being inconsistent with the UN Convention on the Rights of the Child. The provisions of the convention, which he has referred to, concern children in the criminal justice system. The automatic deportation provisions concern the maintenance of immigration control, particularly the public interest in deporting those who commit criminal offences. We are satisfied that the provisions are consistent with UNCRC.
For those reasons and those set out in our response, this amendment does not find favour with us.
My Lords, I have listened to my noble friend’s reply. I am sorry that on my penultimate intervention on this Bill we are going to part company with a profound difference. I cannot fault my noble friend on his candour. He said in the course of his remarks, unless I misunderstood him, that the primary purpose of the Bill was to protect the public. That is the kernel of the matter. I take second place to no one in my feeling of responsibility for supporting the Government in protecting the public, but we also have a supreme commitment to the well-being of children and to each individual child. If we are concerned with children we are concerned with their rehabilitation, whoever they are, wherever they come from. As I said earlier, in the highly volatile, disturbing time in which we live, the last thing we want is unnecessarily frustrated young people. We want young people who have some chance of becoming positive citizens in the international community, not only in our own. Again, it is in the detail that things can accumulate and build up into grave problems.
I have heard what my noble friend has said. It disappoints me. At this stage I shall withdraw the amendment, knowing that I will not be the only one who is disappointed and who reads the Minister’s comments with some concern. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.