rose to move, That the draft order laid before the House on 5 March be approved.
The noble Lord said: My Lords, Section 26A(3) of the Immigration Act 1971 introduced criminal offences relating to falsifying or amending registration cards issued in connection with asylum claims. Today, in an effort to ensure consistency, we are seeking to introduce the Immigration (Registration Card) Order.
The order is intended to ensure that the criminal offences contained in Section 26A(3) apply to the misuse of cards issued to failed asylum seekers supported under Section 4 of the Immigration and Asylum Act 1999, as well as to asylum seekers supported under Section 95 of the Act. The offences currently apply to cards issued by the Secretary of State to a person in connection with a claim for asylum, but not to cards issued by the Secretary of State to a person in connection with a claim for support under Section 4. This support is intended to be limited and temporary, for people who are expected to leave the United Kingdom but are unable to do so through no fault of their own because of a temporary barrier.
The UK Border Agency issues all asylum applicants and their dependants with an application registration card—an ARC—in connection with their asylum claim. The application registration card contains an applicant’s personal details, including the name that they have given to the UK Border Agency and a photograph. The ARC serves a number of purposes. In particular, it is produced on reporting and when collecting asylum support at a post office. It is a valuable weapon against the fraudulent collection of support, ensuring that only those eligible receive it. In limited circumstances, failed asylum seekers and their dependants may be eligible for support, under Section 4(2) and 4(3) respectively, provided that they are destitute and meet the eligibility criteria.
Under Section 4(1), the Secretary of State can also support persons who have been temporarily admitted, released from detention or released on immigration bail. Currently, those applying for support under Section 4 may not have an ARC. The card may have been mislaid, or it may have been retained by an immigration official because the details on the card are no longer accurate or because misuse has been suspected. Furthermore, individuals applying for support under Section 4 may not have an ARC because the original asylum claim predated the issue of application registration cards. It is clear that, by not having a uniform photo ID check for identity confirmation on collection of support, the potential for abuse of the Section 4 support regime is increased. The use of an ARC will also support identity checks at reporting events for individuals at the end of the process.
We intend to revoke the existing Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005 covering Section 4 support and to lay new regulations by the end of 2008. It will be a condition of the continued provision of accommodation for the failed asylum seeker that they attend an appointment in connection with the issuing of an application registration card and comply with a requirement to produce the application registration card.
The UK Border Agency will arrange for ARCs to be issued to all those applying for, or currently in receipt of, support under Section 4 if they do not already have one. The power to issue a registration card is administrative and does not depend on this order. The order purely extends the definition of “registration card” so that the offences apply to cards issued by the Secretary of State to persons in connection with a claim for Section 4 support. It is important to ensure that the existing criminal offences extend to all ARCs. To do otherwise would create an unnecessary anomaly and possible opportunities for criminal activity. Extending the definition of “registration card” will enable criminal offences relating to abuse or misuse of registration cards to apply to any cards issued to a person in connection with a claim for asylum, and to cards issued to a person in connection with a claim for support under Section 4.
The offences include: making a false registration card; altering a registration card with intent to deceive; possessing a false or altered registration card without reasonable excuse; using or attempting to use a false registration card or an altered registration card with intent to deceive; making an article designed to be used in making false registration cards or in altering registration cards; and possessing such an article without reasonable excuse. The offences can be tried either in the Crown Court or magistrates’ court. They carry a maximum penalty of 10 years or a fine on indictment, or six months or a £5,000 fine summarily, save for the possession offences, which carry a maximum penalty of two years on indictment. In 2006, the last year for which we have published data, there were 34 prosecutions for these offences, resulting in 21 convictions. This demonstrates the importance of these provisions in maintaining the integrity of the immigration system.
That is what the order seeks to achieve. I beg to move.
Moved, That the draft order laid before the House on 5 March be approved. 13th Report from the Joint Committee on Statutory Instruments.—(Lord Bassam of Brighton.)
My Lords, I thank the Minister for introducing this order. I have no objections to it—it seems to be a technical adjustment. However, I have a few questions for the Minister.
I understand from the debate in the other place that there are about 300,000 asylum registration cards in issue, of which only about 11,000 apply to Section 4—and 700 of those will have to be replaced. What has brought about the replacement of those 700 cards? The Minister says that there have been a limited number of prosecutions. Is it just because there have been a small number of prosecutions among the 300,000, or because those on Section 4 have been found to be fraudulently using the cards? As I read it, Section 4 is for failed asylum seekers; there is a limited number of them. Can the Minister tell me why they are still in this country? He says that there are temporary barriers to their removal. What are they? Do they include difficulties in returning them to their country of origin because of persecution, or are the barriers more prosaic? Following that, what is the average time that somebody on Section 4 remains there? Are they ultimately deported, or is there some other outcome?
I am seeking to understand a little more about Section 4. This is the first time since the 1971 Act that Section 26A has been amended at all; it has not been necessary to amend it for 38 years. Can the Minister tell us what has now brought this about, particularly when these orders will shortly be superseded by the UK Borders Act 2007 and secondary legislation arising from it? We have no particular objection to the order, but it would help our understanding to have a response to those questions.
My Lords, I am feeling quite nostalgic for the many hours that the noble Lord, Lord Bassam, and I have spent arguing with each other across the Floor of this House and the Moses Room on primary legislation. Although this order is not in quite the same league as most of the matters we have discussed, there are nevertheless one or two points on which, like the noble Baroness, Lady Hanham, I would be grateful for some clarification.
Section 26A of the 1971 Act deals with the registration card issued in connection with a claim for asylum, but subsection (7) also provides that the definition of the card, and hence the purposes for which it can be used, can be amended by order. The Explanatory Memorandum says that this is the first time that that power has been used. The first question—it may be fairly obvious, but I would be grateful for confirmation—is whether the same card is to be used for both purposes now defined in the amended subsection 1(b). As I read it, there could be two separate registration cards: one to be used in connection with the claim for asylum, and the other in connection with a claim for Section 4 support. Presumably an individual will be given only one card, whether she is an asylum claimant, a claimant for Section 4 support, or both. Can the Minister confirm that?
As the Explanatory Memorandum says, destitute asylum seekers, their dependants and most unsuccessful asylum seekers with dependent children under 18 are eligible for support under Section 95 of the 1999 Act. They are all issued with an ARC under the existing Section 26A. Those who apply for accommodation under Section 4 of that Act—mainly people who have exhausted their claim to asylum but cannot be returned to their country of origin for the time being—may not have an ARC, as the Minister explained, because their asylum application predated the 1999 Act, because the card was withdrawn because support was no longer required, because there was a potential for misuse, or because the holder had lost the card. It is estimated that 9,500 persons, not counting dependants, were getting Section 4 support in September 2007 and, of those, perhaps 500 currently have no ARC.
The BIA could issue ARCs to these 500 persons administratively, but the order is needed to activate the criminal offences in Section 26A(3) relating to fraudulent production and use of an ARC in connection with a claim for Section 4 support. The Minister will no doubt say whether there is any reason to think that individuals have in fact been forging ARCs to get Section 4 support, or whether he can imagine situations where somebody who is not entitled to Section 4 support would go to the lengths of forging an ARC to access the very minimal assistance it provides. As an aside, where an ARC has been withdrawn because of potential misuse, are those individuals nevertheless now to be issued with a new ARC, irrespective of whether potential misuse is suspected?
The people who qualify are in desperate need, and Refugee Action published an assessment in January this year of the problems they encountered. It found that between September and December 2007 its “One Stop Service” offices in the south-west, south central, north-west and east Midlands had 3,612 visits from asylum seekers who were looking for Section 4 support, and of those, 1,350 were assessed as being destitute.
The number of people eligible for Section 4 support increased dramatically in the early months of 2005 from 500 to 5,000, and now, according to the Explanatory Memorandum, it has almost doubled again. May we have an analysis from the Minister of the reasons for this increase, and how far it is accounted for by failed asylum seekers who cannot be sent back to their countries of origin? The noble Baroness, Lady Hanham, mentioned the number of failed applicants. Could the Minister give us a breakdown of the numbers by country and in each case a summary of the reasons why those persons cannot be returned? According to the Public Accounts Committee in another place, there could be as many as 283,500 failed applicants in the UK, though most of them presumably would be returnable if the BIA could identify them and they had not put down roots which made it unreasonable for them to be returned.
The National Audit Office estimated that it would cost £3.2 billion to remove these people, who mostly fled violent situations such as those in Zimbabwe, the DRC or Somalia, even though an immigration judge found that they did not meet the strict criteria of the 1951 convention. In practice it may be extremely difficult to remove people to countries where the Government are uncooperative or there is an internal conflict. Only five people were compulsorily sent back to Somalia in 2005, for instance, and presumably—perhaps the Minister will confirm this—nobody is being sent back to Zimbabwe when the country is on the verge of an overwhelming humanitarian catastrophe.
While we have to give minimal support under Section 4 to a few thousand people in situations of this kind, there should be a systematic review periodically of the likelihood of ever being able to return them, and where the odds are against it, to give those people indefinite leave to remain so that the taxpayer can be relieved of the burden of supporting them and they can start contributing to the economy. Otherwise the taxpayer is saddled indefinitely with the steadily increasing numbers of beneficiaries. It would be good if the Minister could tell us what the latest figure is, perhaps at March 2008, to see what the rate of increase is since the figure of 9,500 given in the Explanatory Memorandum.
Whatever the figure is, there seems to be a deliberate policy of slowing down both the consideration of applications and the award of Section 4 support once it has been decided that a person is eligible We do not agree with the policy of forcing failed asylum seekers into destitution, but if the Government persist with that policy, they should at least ensure that the victims get the support to which they are legally entitled. The Refugee Action study to which I referred a moment ago showed that despite increased BIA staff, the average time taken to decide priority A applications—that is, from people who were street homeless, pregnant or suffering from physical or mental health problems—increased from 8.5 days in September 2006 to 9.6 days in July 2007. The average time for priority A cases to be accommodated increased over the same interval from 12 days to more than 20 days. In a judicial review application which was dismissed last December because the applicant had been accommodated before the hearing, the judge nevertheless said:
“It is incumbent on the Secretary of State to put in place a system which deals specifically with the problem”
of delay. The judge continued:
“The Secretary of State, through her officials, must act properly and promptly. It is the duty of Government to ensure that happens”.
What has the Secretary of State done to comply with that judgment, and will the Minister now request a weekly return from the BIA, to be placed in the Library, so that your Lordships can see what progress is being made?
My Lords, I am grateful to the noble Baroness, Lady Hanham, and to the noble Lord, Lord Avebury, for their contributions. As always, they are very assiduous in these matters and take great care in framing their points and questions. The noble Baroness expressed support for the order, for which I am grateful. The noble Lord, Lord Avebury, as ever, asked useful and valuable questions.
The order intends to ensure that the criminal offences contained in Section 26A(3) of the Immigration Act 1971, as amended, apply to failed asylum seekers supported under Section 4 of the Immigration and Asylum Act 1999. As I said, these offences relate mainly to the falsifying or altering of registration cards and currently apply to asylum seekers supported under Section 95 of that Act.
I appreciate the views expressed particularly by the noble Lord, Lord Avebury, who is, as ever, very critical. The questions he asks are important. I turn first to the points that both noble Lords raised. The noble Baroness, Lady Hanham, asked what has brought about the order. We are trying to improve the level of compliance and achieve a technical alignment. In a sense we are trying to improve and simplify how the scheme works. The noble Baroness also asked what the barriers were to the removal of asylum seekers who may be assisted by this process and asked for statistics on the length of time they might be on support. I do not have statistics on the length of time they may be on support but I will ask the department to see what data we can find. I fully accept that it is important that we understand the quantum of the issue.
Barriers to removal can fall into a number of categories. Although failed asylum seekers are taking reasonable steps to leave the UK, it may well be that they are unable to get travel documentation that fully complies with their departure. It may well be that they have a physical impediment and are unable to travel because of ill health or for some other medical reason. It may well be that no viable route of return is available. That does not happen often but it can happen. It does not seem to apply at present but there have been instances when it was the case. It may well be that an application and a judicial review are being considered, perhaps in Scotland or within our own jurisdiction, and that application has been given approval to proceed. Or it may well be that we have to take steps to ensure entirely that there is an avoidance of a person’s convention rights within the terms of the Human Rights Act.
My Lords, I do not have that information. I was going to say that when I turned to the noble Lord’s questions. I am sorry that that is the case, but I will again endeavour to write. I understand the reason for the question. I think that we all share concerns about the situation in Zimbabwe. We have to be optimistic but clearly we have to be realistic as well.
The noble Lord asked whether we would issue one card to an individual. That is the case. We would not issue more than one because that would undermine the principle of ensuring that there was the minimal prospect of abuse. The noble Lord asked whether there was any reason to suspect that a person has been fraudulent who is in receipt of Section 4 support. Not necessarily, but the aim is to ensure that we have a sufficient criminal penalty in place to deter fraudulent abuse. That is a very important principle.
In general, the noble Lord was concerned about the impact of the order on those supported under Section 4. Offences in Section 26A(3) will apply to those supported under Section 4, bringing them into line with those supported under Section 95. I think that we have made that clear. The new Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations, which will replace the existing Section 4 regulations, will have a greater impact on individuals supported under Section 4. The new regulations will enable the Secretary of State to impose a condition for the continued provision of accommodation that the Section 4 recipient is subject to. For that reason he will have to produce a registration card.
I am familiar with the statistics that the noble Baroness quoted and in rough order they are accurate. She asked how many individuals receive Section 4 support. At the end of March 2008, statistics indicated that there were some 9,365 individuals excluding dependants supported under Section 4. Management information suggests that there are somewhere in excess of 10,000 principal cases supported and some 11,811 including dependants. As the noble Baroness acknowledged, we estimate that around 700 individuals may not have an IRC. We plan to issue one to those who do not by the end of this year.
My Lords, if they are going to be issued by the end of this year, when are the other regulations coming in from the UK Borders Act that we have been talking about? It seems silly to run around issuing these cards when we are about to do something entirely different. I did ask this question, but why is this legislation particularly relevant at the moment when we are about to change the situation, and presumably before the end of the year?
My Lords, it is in the interim to ensure that there is not an unnecessary level of abuse. That is an important issue.
The noble Lord, Lord Avebury, asked for an analysis of the increase in failed asylum seekers and for a breakdown by country and reasons why they cannot be returned. I have given some of the reasons but will ensure we do some more research if we can. I will write to the noble Lord and will of course share that information with the noble Baroness, Lady Hanham.
I have an answer here on the Zimbabwean question. The Home Office has been successful in a recent case but my understanding is that that is being appealed against. The permission-to-appeal hearing will be heard in July. Removals of failed asylum seekers are generally deferred pending application. We maintain the position that the Asylum and Immigration Tribunal was right in the first instance that it was safe, at that point, to return to Zimbabwe. That is the current situation. Of course these things have to be kept under review. No doubt that review will focus clearly on the issues which are currently a matter of public debate.
I hope I have answered most of the points. Those I have failed to answer I will of course come back to by providing more information.
On Question, Motion agreed to.