Committee (5th Day)
Relevant documents: 22nd Report from the Delegated Powers Committee, 8th and 12th Report from the Joint Committee on Human Rights, and 6th Report from the Constitution Committee
Clause 39: Appeals against penalty notices
Debate on whether Clause 39 should stand part of the Bill.
My Lords, immigration is a welcome and important part of British life. Our country’s success over the years owes much to the people who have come here from across the world and made it a better place. However, immigration can add to some of the existing pressures on communities, not least in the fields of housing and employment. The Bill, however, does not include any of the measures which we have been calling for and which would address some of these pressures.
Amendment 67 aims to end the practice among some recruitment agencies of excluding local workers. Many recruitment agencies are a great asset to the communities they work in, helping employers to find employees and potential employees to find work. However, there has been an issue whereby some employment agencies have effectively been taking on only foreign workers and excluding British people from their books. Over the past two decades, there has been significant growth in agency employment—a 500% increase between the mid-1980s and 2007. Migrants are now overrepresented within agency work, particularly at the lower end, with migrants from the EU’s A8 accession countries of 2004 constituting the largest single group of agency workers.
In certain sectors, such as the meat and poultry processing industry, there are examples of British workers facing difficulty registering for work, with some agencies supplying only migrant workers, generally eastern European nationals. While it is not illegal for agencies to choose to recruit from particular countries, any refusal to register an applicant because of their nationality is unlawful under the Race Relations Act and a breach of the Gangmasters (Licensing) Act licensing standards. The Equality and Human Rights Commission conducted a survey in 2010, and found that a third of agencies confirmed that they had acted unlawfully in sometimes supplying workers by judging which nationality the processing firm would prefer, or by responding to direct requests, often basing their actions on stereotypes about the perceived dependability of particular nationalities.
The idea that in core sectors of our economy some recruitment agencies should exclude local people, and make a virtue of being able to offer cheaper, more flexible, and allegedly more compliant staff than those available locally, is surely wrong. It is not fair on UK workers who as a result do not have the opportunity to compete for jobs, and it is not going to help us rebuild our economy. The only way action can be taken is for an individual to bring a discrimination case through an employment tribunal, or for the Equality and Human Rights Commission to bring about a compliance order, since recruitment agencies are not legally prevented from acting in this way. We need to strengthen the law so that agencies are not able to operate exclusionary practices—formally or informally—and then enforce it properly, with prosecutions of agencies that flout the law.
Amendment 69 includes provision for a realistic minimum fine for employing illegal immigrants. Illegal migration can lead to exploitation of migrant labour, unacceptable working conditions and undercutting of legal employment. That is not good for either the migrant or the domestic economy. It is against the law to employ illegal immigrants. There is a maximum fine for doing so, but it appears that there is no minimum fine set by legislation. The number of businesses fined for employing illegal immigrants has halved since 2010. UK dairy farms that have recently been found guilty of using illegal labour hired through gangmasters, where workers were being housed in poor accommodation previously used by animals and paid £400 to £500 less than the minimum wage each month, received a civil penalty amounting to £300 per worker. Our amendment would enable the Secretary of State to give an employer who is in breach of the Immigration, Asylum and Nationality Act 2006 a notice requiring the employer to pay a penalty of a specified amount which does not exceed the prescribed maximum and is not below the prescribed minimum.
Amendment 70 would bring other categories of work, which the Secretary of State would specify, under the scope of the Gangmasters (Licensing) Act 2004. Research from charities, academics and trade unions suggests that hundreds of thousands of migrant workers are routinely underpaid and overworked in jobs across the UK on farms, in care homes, in hotels and the hospitality sector, on construction sites and in the provision of cleaning services. Often employed by labour providers or gangmasters, many of these workers will have little idea of UK employment rights such as the national minimum wage, let alone the leverage to be able to claim them. I have already mentioned the example of the dairy farms that were found guilty of using illegal labourers hired through gangmasters and were fined just £300—less than they saved by employing one illegal migrant for a month. Despite the fact that the agency sector in the UK has quadrupled since 1994, a high percentage of employers now use subcontractors. There is no effective government regulation of the majority of UK labour providers. In government, we established the Gangmasters Licensing Authority, which does important work to improve health and safety standards and prevent the exploitation of workers in the agricultural, horticultural and shellfish-gathering industries. We have tabled this amendment as the Government should launch an immediate consultation on the further areas and categories of work and employment that should come under the scope of the Gangmasters (Licensing) Act 2004.
Finally, we have tabled a general amendment that would require the Government to produce an assessment in the 12 months following Royal Assent on the impact of European immigration to the United Kingdom, with specific reference to non-compliance with and enforcement of four Acts of Parliament: the National Minimum Wage Act 1998; the Gangmasters (Licensing) Act 2004; the Equality Act 2010; and the Housing Act 2004.
The National Minimum Wage Act set a minimum wage for young people and full-time employees and was a welcome and necessary addition to employment legislation. However, since the general election, as I understand it only two people have been taken to court for paying below the legal limit per hour and just three have been referred to prosecutors. Research by the Low Pay Commission suggests that in certain sectors of the economy, particularly those which employ significant numbers of immigrant workers such as food processing, hospitality and cleaning, the minimum wage is often not enforced. Employers are using a variety of means to side-step the rates. These include: restaurants assuming that staff will receive a certain sum in tips and deducting that cash from their pay packets; employees being wrongly classified as volunteers and thus not entitled to a wage; companies charging staff for uniforms or benefits in kind such as accommodation or transport; and the payment of cash in hand so that hours and wages go unrecorded. The Government’s response is, frankly, simply not adequate. There is inadequate enforcement of the legislation and the Government need to do more to enforce labour market laws so that poor employers cannot get a competitive advantage over law-abiding and responsible employers by taking on immigrants at extremely low wages.
I have already referred to gangmasters. The Gangmasters (Licensing) Act 2004 introduced regulation and licensing of those who seek to recruit workers to supply to particular industries. There is anecdotal—and, indeed, some stronger—evidence from reputable sources that gangmasters are recruiting predominantly from eastern European citizens. They come to this country with the prospect of employment and find themselves subject to people who operate under the auspices of the Gangmasters Licensing Authority but also, potentially, illegally.
The Equality Act 2010 brought together a range of legislation passed under the previous Government that outlawed discrimination on a number of fronts, including recruitment on the grounds of race or nationality.
The Housing Act 2004 strengthened measures on houses in multiple occupation and the registration of landlords, among other associated matters. Again, though, there is evidence that regulations made under the Housing Act 2004, particularly those covering houses in multiple occupation, are not being adhered to by a number of individuals who deal with migrant labour from the wider European community. We have also been faced with cases of what are known as “beds in sheds”. Many immigrants coming to the United Kingdom bring enormous benefit to community life: they are neighbours, friends and upstanding members of the community. However, many are exploited by unscrupulous landlords. Some choose poor accommodation because it is all that they can afford. We need to stop those landlords who exploit migrant workers with overcrowded, overpriced accommodation. This is also bad for local communities and leads to undercutting of local workers, too. We need a proper register for private sector landlords.
It is important that we seek to address the abuses of migrants in the fields of employment and housing by those who seek to exploit such people for their own personal ends and financial benefit. The effect of that exploitation is also to create uncertainty and disharmony within communities among the existing resident population, who feel that their often already difficult position is being further undermined and made less secure as a result. I simply conclude by saying that I hope that the Government will respond positively to the measures which I have outlined.
My Lords, I have given notice of my intention to oppose the question that Clause 40 stand part of the Bill but, as I hope the Minister knows, this a way of probing the provisions in Clause 40 and of asking, simply, what the problem is with Section 18 of the Immigration, Asylum and Nationality Act 2006, which the clause would amend. In the Public Bill Committee, the Minister, Mr Harper, said:
“it can be difficult to recover the penalty”.—[Official Report, Commons, Immigration Bill Committee, 12/11/13; col. 317.]
I can see that Section 18, as amended, would make it easier for the Secretary of State, but that does mean that the recipient of a penalty is not going to be able to raise a defence. This is not a straightforward, simple debt. It seems that the very fact that it is not a fixed penalty indicates that there may be a range of circumstances in which the penalty is imposed, and some of those may involve mitigating circumstances.
I should like to ask a couple of questions about Clause 40. The Immigration Minister’s faux pas over the “wealthy metropolitan elite”, such as his predecessor who employed a cleaner from Nepal without checking that she had leave to remain, highlighted the inconsistency of people in senior positions of the Government being happy to employ non-EEA citizens themselves while desperately hanging on to the vain objective of reducing net immigration to below 100,000. That target was never within the realms of possibility and it should be scrapped, recognising that most components of immigration and all of emigration are outside the control of government. As the UK is doing relatively well compared with other European countries, we are an attractive destination for skilled workers from the rest of the EEA, and as my right honourable friend Vince Cable pointed out, we are benefiting from their contribution to our economy and in particular to the revenue from direct and indirect taxation that they bring.
However, we are right to deal with irregular migration from outside the EEA, and in particular the 500,000 of those irregular migrants who were lost by the UKBA and are still scraping a living in low-paid jobs—a few of them as cleaners and nannies. My question about Clause 40 is whether increasing the fines on employers who fail to check the credentials of their workers is going to be the answer. Can the Minister say whether the existing powers are being used to their full extent? In November 2012, when Tesco was found to have employed 20 non-EEA students for three times the number of hours allowed, the supermarket was fined £115,000, compared with the maximum of £200,000. In August 2013, the BBC found that since the original power to impose fines on employers was enacted in 2006, two-thirds of the £80 million fines imposed remained uncollected. The Home Office said that some fines might have been reduced or cancelled on appeal, or that some employers could have gone out of business or could have been asked to pay by instalments. How does making the penalty recoverable as if it were payable under an order of the county court, or the equivalent in Scotland or Northern Ireland, increase the probability that the money will be recovered? Can the Minister be sure that increasing the fines will not simply reduce the proportion of money that is recovered?
My Lords, I will briefly raise a concern that came to my attention when I was a member of Sub-Committee F of the European Union Committee some time ago. I heard from employers’ organisations in this country that they were very keen to have loose immigration policies. That was very understandable from their point of view. They would recruit migrants who were well educated and motivated and they might have felt that many of our population were not so motivated or well educated. I was concerned that there were not incentives for employers to train up, support and develop young people in this country, that those young people would just go on to benefits, and that a vicious circle would go on through the generations. I was therefore very pleased to hear the Prime Minister David Cameron say recently that his intention is to improve the education system—he feels that that is going a long way in the right direction—and to reform the welfare system so that more young people go into employment and there is not so much pressure on employers to recruit from abroad. It is tragic that so many young people waste their lives. I wanted to voice my happiness at hearing the Prime Minister express that commitment to our young people.
My Lords, I thank the noble Earl for ending this part of the debate by giving me a chance to say that he is quite right to pick up on the Prime Minister’s commitment in this area. What is interesting about the speeches made by the noble Lord, Lord Rosser, and by my noble friends is that they, too, echo the sentiment on this issue within government at this time. As I reply to the debate, noble Lords will pick up the messages and echoes of that. Of course, some of what we have been talking about lies outside the provisions in the Bill. The noble Lord, Lord Rosser, would like to include certain provisions in it, but I hope I can persuade the Committee that what noble Lords seek might be best done through a comprehensive package of measures based on the work that is now going on.
Clauses 39 and 40 amend the existing legislation governing the sequence for objecting to and appealing against a civil penalty notice for employing illegal workers and how we may recover penalties where an employer fails to pay. My noble friend Lord Avebury was particularly keen to know how that would work. I will come on to that. Currently, an employer can exercise their right to object to a civil penalty and appeal simultaneously, consecutively or alternatively. Frankly, this is wasteful and unnecessarily expensive for all. Clause 39 simply requires an employer to raise an objection before a formal appeal. The objection process provides a fast and efficient means of reviewing penalties and can negate the need for an appeal to the court altogether. I am sure that noble Lords will see that as desirable.
The objection process is a meaningful one. In 2013, the Home Office issued 1,821 civil penalty notices. Employers raised objections in 646 cases, 24% of which resulted in the penalty being reduced or cancelled, so employers were able to raise mitigating circumstances. Raising an objection is free to the employer and fast. Employers have 28 days from the date of the civil penalty notice to lodge an objection and the Home Office has a further 28 days to respond. At the end of this process, an employer may still formally appeal to a court if they are dissatisfied with the outcome of the objection process.
Clause 40 changes the way civil penalties for employing an illegal worker are enforced. It allows an outstanding penalty to be enforced as though a substantive judgment had already been issued by the relevant court in England and Wales, Scotland or Northern Ireland. This change will eliminate the need for the Secretary of State first to make an application to the court for a substantive order for payment. This will make it much easier to take action against rogue employers who refuse to pay their penalties. The change will not affect the employer’s rights to object or appeal upfront against a civil penalty, as I have already explained.
On Amendment 67, in the name of the noble Lord, Lord Rosser, the Government are committed to protecting the rights of UK workers. I note that this is the seventh consecutive quarter in which we have seen a large rise in the employment of UK nationals and a smaller growth in the employment of non-UK nationals. Under this Government, employment levels have risen by 1.3 million, of which 78% is accounted for by UK nationals. Under the previous Government, in the five years to December 2008, when the financial crisis occurred, more than 90% of the increase in employment was accounted for by foreign nationals. However, I recognise that there is a problem with a small number of unscrupulous employment agencies that source labour exclusively from overseas, particularly eastern Europe. While I am sympathetic to the intentions behind this amendment, I note that it would not achieve its aims. An agency could evade its scope simply by signing up a single UK resident as part of a recruitment process. We agree, however, that more should be done to tackle these types of unfair recruitment practices. Ministers will actively consider how best to protect British workers from this type of discrimination and we will seek to bring forward proposals shortly.
I understand that Amendment 68 is intended to provide more information about the impact of large-scale EU migration since EU enlargement in 2004. However, as noble Lords will know, the Government are already ahead of the amendment’s intentions. At the Home Secretary’s request, the Migration Advisory Committee is already looking into this, and related issues, as part of its review commissioned last September into migrant employment in low-skilled work. It will report back in May. We will not therefore have to wait 12 months after Royal Assent to get a report on this issue, which will inform government for the future.
We are also already taking action to prevent abuse of our public services and benefit systems by migrants, including EEA nationals. We have introduced a three-month delay before a European jobseeker can claim benefits, and a tougher six-month test to assess whether claimants have a genuine chance of finding work. The Government have also issued new statutory guidance to make sure that local authorities set a residency requirement before a person qualifies for social housing.
We are also taking tougher action against the abuse of the national minimum wage. From 7 March, the financial penalty increased from 50% to 100% of total underpayments owed to workers, and the maximum fine was increased from £5,000 to £20,000. The Government also plan to legislate at the earliest opportunity so that employers will be given penalties of up to £20,000 for each individual worker, rather than as the maximum for all abuses. I trust that this will have the Committee’s support.
I turn now to Amendment 69. This Government are already taking action to strengthen the existing civil penalty scheme for employers of illegal workers, following a full review and public consultation last year. We are increasing the maximum penalty per illegal worker from £10,000 to £20,000. We have also published new, tighter proposals on mitigating factors that could reduce the penalty where employers actively co-operate with enforcement officers. These will be set out shortly in a new statutory code of practice.
Perhaps I can now address the concerns expressed by my noble friend Lord Avebury on this matter. What are we doing to increase the deterrent impact of the civil penalty scheme? This Government are committed to taking tough action against rogue employers. To improve the deterrent impact of the civil penalty scheme we are doubling the penalty to £20,000 per worker, doubling the current starting point for the calculation of a first-time penalty to £15,000 per worker, and narrowing the criteria under which an employer can be issued a warning notice rather than a financial penalty. It has been too easy for rogue employers to evade paying a penalty.
The Immigration Bill will therefore also simplify and accelerate the enforcement of civil penalty debts in the civil courts. We are working with the Insolvency Service to ensure that, where appropriate, directors are considered for disqualification action where they have employed illegal workers and wound up their businesses to evade penalties. It is therefore not necessary to prescribe a minimum amount in primary legislation, as we have indeed set tariffs at a level a great deal higher than previously.
I turn now to the question of gangmasters and Amendment 70. I understand and share the concern that we should take effective action against exploitative working practices. The Gangmasters Licensing Authority is one of a range of current responses to the problem, focusing on abuses in the agricultural sector in particular. As was said by the noble Lord, Lord Rosser, this is not the only sector where contract labour suppliers operate. The Committee will be aware that the Government are currently considering the functions and form of the Gangmasters Licensing Authority, through a triennial review announced in Parliament in September 2013. We hope to publish that review shortly. It would be more helpful to return to this issue when we have the review’s findings, and to look at the Gangmasters Licensing Authority’s role alongside wider regulatory safeguards for workers.
I hope I have shown that the Government are very active in this area. I hope, too, that this has reassured the Committee that the amendments tabled by noble Lords are unnecessary, and that Clauses 39 and 40 should form part of the Bill.
My Lords, I thank the Minister for his reply and all other noble Lords who contributed to this debate. The Minister said that the type of sentiments I expressed in my contribution were not dissimilar to those of the Government. However, I still am not sure whether the Minister is anticipating, in any of the areas that I have covered, bringing anything back to this House before Report. He made a comment about formulating proposals shortly but I am not clear whether that meant in time for Report. It would be extremely helpful if he could clarify that point.
My Lords, to give matters proper consideration, it is unlikely that we will return to these matters on Report. However, legislation, including the slavery Bill, is likely to come before this House. There will be other opportunities where a change may occur that does not require primary legislation and which can be effected through secondary legislation. I have indicated that a work programme is going on in this area and I hope that noble Lords will accept that our objectives very much reflect the thinking that lies behind the amendments in the name of the noble Lord, Lord Rosser.
I thank the Minister for that response, although I am a bit disappointed that, apparently, nothing will come forward before Report. I am sure one point he would accept is that the world can be full of good intentions and measures that intend to be taken, but it is also about, first, whether those intentions are taken and in what form that counts and, secondly, if they are taken in an appropriate form, the extent to which they are enforced. That is one of the issues I raised in relation to the minimum wage and how effectively it was being enforced. Obviously, that issue no doubt will be discussed on other occasions.
I am not sure whether I should be pleased with the comments that the Minister made about the Gangmasters Licensing Authority on the basis that more areas of work might be coming under the terms of that authority or whether I should be concerned because perhaps a look is being taken at the powers and scope of that authority, and they might be diminished in the future. Perhaps he will give me an assurance that no one is looking in any way at diminishing the power and scope of the Gangmasters Licensing Authority in the light, I thought, of his reference to a triennial review.
I am happy to respond immediately to that request. As noble Lords will know, the triennial review looks at all public bodies and their effectiveness. The truth of the matter is that the Gangmasters Licensing Authority, despite comments that have been made in debate, has been remarkably effective at regulating a difficult area of exploitation. There are other areas which the noble Lord mentioned and we are looking to extend the role of the GLA or a body which can perform that function, without prejudging the issue, in such a way as to make sure that we cover more ground and not less. The powers will be adequate to ensure that the same sort of regulation that occurs in the agricultural sector occurs elsewhere where exploitation takes place.
I thank the Minister for that response. I will leave the matter in that context. Obviously, I will want to read carefully what the Minister has said in response and to look at the extent to which the specific concerns that we have raised in the amendments in this group are or are not being addressed by the work that the Minister has said that the Government are already undertaking. I know he agrees with me that, if we are to have a reasoned debate on immigration in this country, we need to address the concerns to which immigration can contribute, although not cause exclusively or solely, in housing and employment through exploitation of migrants by people who are not entirely scrupulous in their intentions and motives. Our doubts at the present time concern the extent to which this Bill, and the measures contained in it, will promote such a reasoned debate, certainly in employment and housing, hence the amendments in this group.
I thank the Minister for his reply and I will read carefully what he has said. I thank all other noble Lords who have contributed to this debate.
Clause 39 agreed.
Clause 40 agreed.
Amendments 67 to 70 not moved.
71: After Clause 40, insert the following new Clause—
“Permission to work
After section 3(9) of the Immigration Act 1971 insert—“(10) In making rules under subsection (2), the Secretary of State must have regard to the following.
(11) Rules must provide for persons seeking asylum, within the meaning of the rules, to apply to the Secretary of State for permission to take up employment and that permission must be granted if—
(a) a decision has not been taken on the applicant’s asylum application within six months of the date on which it was recorded, or(b) an individual makes further submissions which raise asylum grounds and a decision on that fresh claim or to refuse to treat such further submissions as a fresh claim has not been taken within six months of the date on which they were recorded.(12) Permission for a person seeking asylum to take up employment shall be on terms no less favourable than those upon which permission is granted to a person recognised as a refugee to take up employment.””
My Lords, I will speak to Amendment 72 first, as that will explain why Amendment 71 is also necessary. Our progress as humanity has always been a continuous struggle to overcome discrimination and inequality. One can name Wilberforce, Lincoln, Pankhurst, Gandhi, Mandela and so many others who have contributed to ensuring that nobody suffers because of discrimination. All people are of equal value. The struggle continues. People are people wherever they are, and should be treated with respect and dignity.
However, there are some failed asylum seekers who cannot be returned home. At this moment, there are about 3,000 such people living in the United Kingdom. They cannot work. They have no access to benefits and would, in many cases, be destitute were it not for support from government and voluntary agencies. This Section 4 support from the Government is entirely separate from normal asylum support for people whose claims are pending. Under Section 4, a person will receive £5 per day, or about £36 per week. Out of this, they must pay for food, clothing, toiletries and other essential living needs. We are glad that housing and utilities are provided separately.
In April 2012, 779 of these 3,000 people were children and they are discriminated against in certain ways. For instance, the use of the Azure card is restricted to a list of certain shops and these are often the most expensive. So many of the smaller and less expensive stores, such as Aldi and Lidl, which could provide far more for those with Azure cards, are not included in the list. Whatever happens to my amendment, I hope that the Minister will at least tackle that issue, so that those places where people can get better value or a greater quantity for their money—including corner shops as well—can be considered.
Amendment 72 would allow for people totally trapped in the UK to survive. They would escape the absolute poverty to which Section 4 condemns them. It would also save taxpayers millions of pounds. To deny a person the right to work is to deny ourselves the contribution that that individual can make to our society. Our coalition partners speak of hard-working families. I would urge the inclusion of those whose one aim is to be a hard-working family. Last December, there were 23,000 of them who had the ability to earn a living. Can anything be more demoralising than having skills that you are not allowed to use, a family you are not allowed to support, or a country to which you would willingly pay your taxes, if only you were allowed? What evidence does the Minister have that the period before an asylum seeker can apply for a job would in any way be a threat if it were reduced from 12 to six months? What conversations have been taking place with the 12 European Union countries that have much lower limits than the UK? Why have we not signed up to the EU reception conditions, which reduce to nine months the period for which asylum seekers can be excluded from the labour market? That is not quite six months, but it is coming down.
Amendment 71 would allow those who have been waiting six months for a decision to claim the right to work. In December last year, the number of those waiting was 6,249, excluding dependants. We have a real opportunity here. We could reduce the burden on the taxpayer because asylum seekers who are able to work will no longer need to be supported by the benefits system. After all, we are living in times of austerity. Instead of being dependent, these people could contribute to the economy through taxes and consumer spending.
There is an understandable worry here in Parliament that allowing asylum seekers to work will blur the boundaries between asylum and economic migration. However, I suggest that a strong asylum system, which makes the right decisions the first time around, need have no fear of such a blurring of boundaries. I am sure that economic migrants making a spurious claim in order to access the UK jobs market would not be able to put in a claim credible enough to have the UKBA scratching its head for six months. An asylum claim with no real basis should not take six months to be rejected.
History shows that when new arrivals come to the UK, they contribute substantially to job creation in our country. A week ago tomorrow, the Centre for Entrepreneurs published a report entitled Building our Businesses, Creating our Jobs. Here, as in the United States, 60% of the top technology businesses were started by migrants. The next figure really astounded me: in the UK, 456,073 migrant entrepreneurs, representing 155 countries, started many of our industries. Our economy owes so much to migrants who are misunderstood and even reviled in some quarters—and it has always been so. In 1938 the Daily Express ran the headline: “German Jews Pouring into Britain”. These folk, who were escaping the Holocaust, were responsible for more than 50% of the new industries that helped the south Wales valleys to defeat the great depression at that time. We shall miss out in 2014 by denying their successors the right to work.
I should like an assurance from the Minister that the Government support the idea of the equality of all people. I should also like to see the evidence, if it exists, that other nations suffer because they allow asylum seekers to work after six months or sooner. Lastly, does he accept the fact that nearly 500,000 immigrants have been responsible for new businesses in the United Kingdom? The Bill can either continue the progress that I mentioned previously—helping a person to find his feet and grasp his opportunities—or it can be a backward step by keeping those who would enrich our communities idle and hopeless. When the time comes, I urge the Minister to support this amendment.
My Lords, I thank the noble Lord, Lord Roberts, for tabling these amendments. I was pleased to add my name to them, not least because I was a member of the parliamentary inquiry into asylum support for children and young people, and I helped to launch a Freedom from Torture report called The Poverty Barrier: The Right to Rehabilitation for Survivors of Torture in the UK. Also, on a personal note, the noble Lord referred to the Express headline about German Jews pouring into this country. My father was one of those German Jews.
I shall start with the right to work. It is a human right enshrined in the Universal Declaration of Human Rights and incorporated into human rights law as part of the International Covenant on Economic, Social and Cultural Rights, which recognises,
“the right of everyone to the opportunity to gain his living by work”.
After the Second World War, TH Marshall wrote that in the economic field, the basic civil right is the right to work. The importance of this right, or rather the lack of it, for individual asylum seekers is brought out movingly in the report to which I have referred. The parliamentary inquiry talked about how asylum seekers who are not able to undertake paid work lose skills, how they are not able to provide a role model for their children, and the impact on their self-esteem, self-confidence and mental health. All this has a damaging effect on their children. According to the Freedom from Torture report:
“Many questionnaire respondents, and most participants in client focus groups, highlighted the importance to them of having permission to work while their asylum claim is decided as a means of supporting themselves and being self-reliant. Indeed, the lack of permission to work for asylum seekers was a major theme of discussion and the key change that focus group respondents called for, although they also recognised that many torture survivors are not well enough to work”.
The weekend before last, noble Lords may have read in the Guardian an interview with six refugees or asylum seekers with professional backgrounds. One of them was a senior government adviser from the Ivory Coast now living destitute in Birmingham. The article says:
“But for the moment, what makes her unhappy is the enforced idleness: the UK Border Agency stipulates, in emphatic capitals, in correspondence with her, ‘You are NOT allowed to work’”.
It goes on:
“‘Work is health,’ she says, taking off her glasses and rubbing her eyes. ‘I started working when I was 21. I am an active person. When you have nothing to do, you look on your situation and start to think. You say to yourself: “What am I doing? What will become of me?”’”.
If we were professional people who were forced to leave our home and seek asylum in another country, how would we feel if we were not allowed to contribute to the country that we wanted to make our new home?
Much of government social policy, whichever party is in power, is premised on the principle that paid work is the primary responsibility and the most important contribution that people make to society, summed up, as the noble Lord said, in the mantra of “hard-working families”. However, successive Governments deny asylum seekers the opportunity to make such a contribution for a whole year, even though the evidence shows that it helps integration. Home Office research shows that delayed entry to the labour market can cause problems even when refugee status is then granted, leading to high levels of unemployment and underemployment. It would appear, therefore, that the Government work on the assumption that asylum seekers will not be granted refugee status, so it does not matter to this society what the long-term effects of enforced idleness are. I hope I am wrong, and would be grateful if the Minister could disabuse me, but that is how it comes across.
As the noble Lord, Lord Roberts, said, the Government argue that to allow asylum seekers the right to work would blur the distinction between economic migrants and asylum seekers, and act as a pull factor. However, we are not calling for an immediate right to work: there would still be a six-month delay. In 11 other European Union countries, in both northern and southern Europe, asylum seekers are permitted access to the labour market after six months, or sometimes even less, of waiting for a decision. In all of those countries, except Sweden, fewer applications for asylum were received than in the UK, which does not suggest that it acts as a pull factor. The lack of impact on the number of applicants is confirmed by a recent study of OECD countries. If we do not allow the right to work, the danger is that asylum seekers who end up in the shadow labour market will face the kind of exploitation referred to earlier by my noble friend Lord Rosser.
I fear that Governments are often timid with regard to the rights of asylum seekers for fear of public opinion. However, surveys by the IPPR and the British Social Attitudes survey show that there is public support for allowing asylum seekers the right to work. The Joseph Rowntree charitable trust, in an inquiry into destitution among asylum seekers a few years ago, said:
“Overwhelmingly, giving asylum seekers the right to work was the favoured solution identified”,
by those who gave evidence.
On the question of destitution, the parliamentary inquiry of which I was a member found that the current asylum support system is forcing thousands of children and young people who are seeking safety in the UK into severe poverty. We were shocked to hear of instances where children were left destitute and homeless, entirely without institutional support and forced to rely on food parcels or charitable donations. This cannot be right.
The Freedom from Torture report that I mentioned shed light on this. It stated:
“Several clinicians interviewed for the research said that in their experience when survivors of torture are made effectively destitute, this can lead to deterioration in their mental health and/or to an increased risk of suicide. It can also have a long term impact on their ability to recover from their past trauma, even after they are no longer in destitute circumstances. One clinician said: ‘I think it’s profoundly exhausting to survive destitution, and if you’re in that situation for a long time—when there’s no hope, there’s no certainty, there’s no activity that’s meaningful—it’s then very hard to believe that you have a right to contribute to society, that you’ve got something you can offer’.
When asked to comment on how they have felt in their own words, people described feeling desperate about the lack of control over their lives, knowing that their difficulties are exacerbated by inadequate diet and consequent weakness, chronic pain and poor sleep”.
I will quote from one person in the study, who said:
“There is one animal that I envy so much in this country and it’s the pet dog. When I see people with pet dogs and see how they are taken care of in homes, fed and everything, I compare myself with them and cannot measure up. I lose hope in living. I envy the dog”.
All parties are committed to the eradication of child poverty, yet somehow the children of asylum seekers do not seem to be part of this commitment and no one seems to care about the poverty that they experience. Common humanity and human decency must make us question this situation, but also, as the noble Lord, Lord Roberts, explained, Still Human Still Here estimates that it would actually save money to abolish the parallel support structure of the Azure card system. This point was made by Julian Huppert MP in the Public Bill Committee, and the Minister agreed to look into it and report on his conclusions. Can the Minister report to this House the Minister’s conclusions after looking at the question of whether money could be saved by abolishing this parallel support structure?
Finally, I would like to turn again to the Joint Committee on Human Rights report and its inquiry into the treatment of asylum seekers back in 2006-07. It said:
“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. … We have seen instances in all cases where the Government’s treatment of asylum seekers and refused asylum seekers falls below the requirements of the common law of humanity and of international human rights law”.
Before I joined the Committee, it said:
“The policy of enforced destitution must cease. The system of asylum seeker support is a confusing mess. We have seen no justification for providing varying standards of support and recommend the introduction of a coherent, unified, simplified and accessible system of support for asylum seekers, from arrival until voluntary departure or compulsory removal from the UK”.
The policy has not ceased, but these amendments are an attempt to end this shameful state of affairs.
My Lords, my name, too, is attached to this amendment, and I very strongly support what my noble friend Lord Roberts and the noble Baroness, Lady Lister, have already said on this matter.
We have a very strange system in this country, under which an increasing amount of public expenditure sustains asylum seekers and people who are in detention but we do not enable ourselves or them to take any adequate steps to reduce that burden of public expenditure, nor to give the moral and responsible possibilities that detainees and asylum seekers very badly need. The noble Baroness, Lady Lister, put it very well: there is nothing more demoralising than stopping people from working and at the same time keeping them under various kinds of restraint and control.
I am a patron of the Gatwick detention centre. It is one of the most successful detention centres, for the straightforward reason that it has a very substantial group of volunteers who continually meet and talk to asylum seekers and others in order to sustain morale. They would certainly support what my noble friend Lord Roberts said about the steady demoralisation that occurs with every month that passes, when somebody is unable to contribute to their own family or their own well-being, or to find ways to work.
As the noble Baroness, Lady Lister, said, it really is not necessary. We are one of the few countries that creates such a long wait before somebody is given permission to work. In the course of that long wait, the sense of responsibility—the sense of obligation to the society where one is—begins to melt away, to the point where people become totally demoralised and have no strong sense at all of where their future lies or how they can make it better than it is at present.
There are two major motivations for asylum seekers. One is primarily individual: the woman who is escaping from something like female genital mutilation or the young man who is homosexual in a society that is passionately opposed to that. Those are individual motivations. But there are also among asylum seekers some who are seeking what one can describe only as universal values: the Aung Sang Suu Kyis and Nelson Mandelas who are seeking asylum because of what they have done in their own societies. Some of the finest people I have ever come across are asylum seekers who have fought for democracy in a tyrannical state or fought for freedom of speech in a state that does not permit it. We are constantly missing the contribution that they can make.
We all respect the very great commitment of the noble Lord, Lord Taylor, to trying to make things better for people in this situation. I hope that he will call on the Home Office to reconsider whether this strange policy of expensive detention followed by very long periods of almost complete loss of hope on the part of those who are detained or who are asylum seekers can be addressed in a more constructive way. The noble Baroness, Lady Lister, put it very well: it is really hard to believe that the combination of extreme poverty and detention is the best way we can find to deal with people who are genuinely seeking asylum.
I hope very much that the Home Office will consider softening its present policies somewhat in order to enable genuine asylum seekers to have the opportunity to work and to support their families on more than £5 a day. None of us would find it very easy to live on that kind of sum, let alone sustain and keep families and children on the tiny amounts of money that are made available by the state. Noble Lords referred to charitable contributions, and there are some charitable contributions. I can think of much better reasons for those charitable contributions to sustain the children of asylum seekers than because their parents are unable to work to sustain them themselves.
My Lords, I, too, pay tribute to the noble Lord, Lord Roberts, for bringing this amendment back and for making a powerful moral case, and to the noble Baronesses, Lady Lister and Lady Williams, for supporting him.
This is not a new amendment. This amendment has been around a long time. We have waited a long time. The right reverend Prelate will remember that Christian Aid and the churches were backing this as a major campaign, and we have seen it again and again in different incarnations throughout various immigration Bills. Governments of both parties have decided more or less to ignore it. When I was on the Independent Asylum Commission, we recommended it. Governments do not like it because of the administration involved. This Minister may see this old chestnut coming back and may be able to address it in a new way. Perhaps he will consider the argument about assimilation that was made by the noble Lord, Lord Roberts. Genuine asylum seekers who want to belong to our society should be given encouragement after a minimum period, which in this amendment is six months.
The Minister heard the noble Earl, Lord Listowel, make the point about the motivation of young asylum seekers and how quickly they adapt, while the noble Baroness, Lady Lister, reminded us of the terrible phrase “enforced idleness” in that Guardian article. Surely if we recognise the contribution of migrants and asylum seekers, we should open up opportunities early on and increase the chances of their integration in future.
I am also sympathetic to Amendment 72 with regard to bail proceedings. Asylum seekers suffer a lot while awaiting bail, and as patron of the visitors at Haslar in Portsmouth I recognise very much what the noble Baroness, Lady Williams, said about the people who work with asylum seekers knowing about this. We must listen to them, because £36 a week is not a great deal.
My Lords, in this debate there seem to be two conflicting policy desiderata in play. Judging by the very powerful speeches that have been made, lateral thinking seems to be required. The two pieces of policy analysis, pro and against, seem to be mutually exclusive, but I would hope that before the Bill is enacted some thought could be given to some sort of halfway house. That might seem to be a rather facile thing to say. However, there seems to be too much polarisation in the way in which this is being argued. Obviously, I cannot anticipate what the Minister will say in his response, but at the moment this seems to be a case of two ships passing in the night. On a point of such sensitivity, I hope that this does not continue quite in that form.
My Lords, as has been said, this issue has been with us for a long time. I still find it hard to understand why we persist in saying to people, “You will be destitute because we want to make your life uncomfortable in the hope that you’ll go away”. I cannot think of any other reason why we have this policy. Surely it is humiliating to people who have skills and could contribute to our society for us to say to them, “No, you may not do that”. If any of us were in that position, what would we do? Would we be destitute or would we work illegally? I suspect that we would work illegally, and there are of course jobs like that to be found.
I do not recommend that people work illegally but I do recommend that people should not be put in the position where they have very little choice. This is a very unhappy situation for people. There would be no cost to public funds; indeed, if people had a job, that would benefit public funds because they would pay national insurance and income tax. No Chancellor of the Exchequer needs to be frightened of this. This is a point of simple humanity. For heaven’s sake, let us change the present policy.
My Lords, I support both amendments and congratulate the noble Lord, Lord Roberts, on tabling them. I am very impressed by the generosity of the British public in supporting both detainees and asylum seekers in many different ways—for example, the detainee support groups attached to almost every detention centre.
Regarding Amendment 72, is it the case that individuals have not been able to get to bail hearings simply because they are in extreme poverty? Bail hearings are one way of reducing the number of people in detention—and a good way, I suggest. The British public have shown their generosity by their willingness to provide bail in such cases.
My Lords, as the noble Earl, Lord Sandwich, pointed out, this is not a new issue. I am fairly sure that I have answered Oral Questions on it, and I do not recall experiencing any difficulties with the whole House. I would be happy to answer another Oral Question on this issue.
Amendment 71 would radically change existing permission-to-work arrangements for asylum seekers, allowing permission to work where the asylum claim is still outstanding after only six months instead of 12 months. It would also remove the caveat that the delay must not be of the asylum seeker’s own making and would lift all restrictions on the type of employment available. This is not sensible. The policy of this Government and their predecessor on permission to work ensures a clear distinction between economic migrants and those seeking asylum. It protects the resident labour market and discourages abuse of the asylum route by economic migrants at the expense of those with genuine protection needs. Asylum seekers are also provided with support and accommodation while we determine whether they need our protection and until they have exhausted the right of appeal. Anyone granted refugee status is immediately granted the right to work.
I sometimes wonder if my noble friend Lord Roberts believes in immigration controls at all, but, judging by our previous debate, the noble Lord, Lord Rosser, certainly does. I accept that legal migrants make an important contribution to our economy, but we are talking about asylum seekers and failed asylum seekers.
The noble Baroness, Lady Lister, referred to people interviewed by the Guardian who have no right to work. The people interviewed were failed asylum seekers who had been refused and should leave the UK. She also referred to victims of torture. I find it hard to imagine a genuine case in which they would be refused asylum. I accept that there may be cases where the facts are difficult to determine.
I hope the Minister is not suggesting that the survivors of torture who were interviewed in the study were not somehow genuine. These are people who had been seen by clinicians who were convinced that they had been through a terrible time. The trouble is that their status takes time to sort out. Even if they are eventually given refugee status, sometimes the worst problems begin then because they have not been prepared for it.
My Lords, does my noble friend not recognise that there are probably hundreds of thousands of failed asylum seekers who cannot be returned to their countries of origin and who are left destitute in this country because they are unable to work? Does he not think that in those cases, such as the refugees from Iran who are not accepted back by their country of origin, it is ridiculous to allow them to fester here for years without work?
No, that is not true. I am sorry, my Lords. I was talking about the people who cannot return to their countries of origin and whom the Home Office recognises are stopped from returning to their countries of origin by reasons of the decision of their state. In the case of Iran, for example, there are thousands of asylum seekers who are prevented from returning to their country of origin because the state will not allow them to.
My Lords, I accept that there are some people in the class that my noble friend describes.
My noble friend Lady Williams talked about supporting a family on £5 a day—I cannot recall exactly what she said—but the payment levels for asylum seekers with children are much higher. A family with two children receives approximately £170 per week. Accommodation is also provided, with utilities—electricity and gas—provided free.
Amendment 72 would make the support given to failed asylum seekers and persons on bail, known as Section 4 support, the same as the support given to asylum seekers—Section 95 support. This is inappropriate, as the types of assistance are different and serve different purposes.
The support that we provide to asylum seekers enables us to meet international obligations. However, there are no obligations routinely to assist failed asylum seekers, the vast majority of whom can reasonably be expected to avoid the consequences of destitution by returning to their own countries—although I am mindful of my exchange with my noble friend Lord Avebury. Exceptions are made only where there is an unavoidable obstacle preventing the person’s immediate departure; for example, if they are too sick to travel, need time to obtain a necessary travel document or have made further submissions relating to their asylum claim. These arrangements ensure that the individuals do not suffer inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights as a result of being left homeless or without support.
We also use Section 4 to provide accommodation to persons released from immigration detention on bail. The provision of accommodation in this instance is solely to avoid the person being unnecessarily detained through lack of a suitable bail address. Section 4 cases are provided with a weekly allowance to cover their essential living needs provided they move into accommodation supplied by the Home Office. Existing legislation explicitly prevents the allowance being provided in cash.
My noble friend Lord Roberts referred to the limitation as to the retailers involved. In my personal experience, supermarkets provide better value for money than many corner shops. The value and flexibility of the allowance is rightly less than the allowances provided under Section 95. Section 4 support is a temporary fix for people who are not asylum seekers and in nearly all cases need to make arrangements to go home.
The noble Baroness, Lady Lister, referred to the situation in other European countries. She will be aware that these countries have different legal systems and that this country is a very attractive destination.
In answer to my noble friend Lady Williams, I fear that I will be unable to recommend to my right honourable friend the Secretary of State that she change the policy, for reasons that I have given. In light of these points, I hope that my noble friend Lord Roberts will agree not to press his amendments.
Before the Minister sits down, will he respond directly to the suggestion made by the noble Lord, Lord Dubs, that the purpose of the present policy is to make life in the United Kingdom so unattractive for these vulnerable people that they leave?
My Lords, no. The purpose of the current policy is to deter economic migration, because people would be able to come here, claim asylum and after a while be able to work. With this policy, we can deter economic migration through the asylum route and therefore properly determine the genuine cases.
Will the Minister answer my question about the assurance given to Julian Huppert by the Minister in the Commons that he would look into the suggestion that it could be cheaper to have one asylum support system rather than two separate systems? Perhaps I may point out on the “corner shop versus supermarket” issue that not everyone has a supermarket in easy walking distance and that asylum seekers would not have the money to get to the supermarket.
The noble Baroness may make a valid point about the supermarket and the corner shop, but we are talking about operational details here. I will write to her if there is anything that I should add on that point. She may be right that to do what she suggests might make for a more economic system, but it would have the undesirable effect of encouraging a flood of economic migrants through the asylum route, which is why this Government and the previous Government have adhered to the current policy.
My Lords, perhaps I may add markets to the mix of supermarkets, corner shops and all the rest of it. The noble Earl might find that they are the cheapest of all, but cannot be accessed. I also put into the noble Earl’s mind, perhaps for the future, the therapeutic value of being able to work.
My Lords, I remind the noble Earl, Lord Attlee, of an answer he gave me some months ago when he said that the intention was to make it very uncomfortable for asylum seekers to stay here and to work here. If he looks it up in Hansard, he will remember that comment.
Do the Government accept the equality of people in this sphere? Do they accept that a child is a child, whether they are Welsh or Scottish—well, I must not say that after last Saturday? Children and families need respect. Is not this refusal to allow the parents to work after six months denying children and others that very status in society? Another question that I asked the Minister was: how many conversations have taken place with those European countries that allow asylum seekers to work after six months or less? Have the Government asked for the comments or experience of those countries? If they manage it, why cannot we?
Is not the whole issue that if we say no for another 12 months, it adds to the cost and to the listlessness and helplessness of a person who wants to work but is not allowed to work to support his family? I also ask that that list of Azure card shops should be expanded. If he or others go to those shops, they will see the difference in prices. A person who has £5 a day or £36 a week would find it far more comfortable to support the family in low-cost shops. Also, when will we sign the European reception directive, which other countries have signed but we have not?
Having said that, we will again return to the issue at Report. I am sure that, by that time, the Minister and others on every side of the House will see the reasonableness of what we are asking for now. With that caveat, I beg leave to withdraw the amendment.
Amendment 71 withdrawn.
Amendment 72 not moved.
Clause 41: Grant of driving licences: residence requirement
72A: Clause 41, page 32, line 34, at end insert “unless that person has made a claim for asylum which has not yet been determined by the Secretary of State or has been refused and an appeal against that refusal is pending.
( ) “Claim for asylum” has the same meaning as in section 94 of the Immigration and Asylum Act 1999 (interpretation of Part VI).
( ) An appeal is pending for the purposes of this section when it is pending under section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeal).”
I will speak also to Amendments 72B to 72G. The amendments take us to the clauses on driving licences. The first amendment, similar to one which I moved in respect of bank accounts on Wednesday, would allow people seeking asylum whose claim has yet to be determined—that is, there has not been a decision or an appeal is pending—to be able to drive. The period for which asylum seekers can wait is often considerably more than six months. I mention that in this context because non-EEA nationals are required to have six months’ leave to apply for a British licence.
I am concerned about the people in question seeing skills gradually tail away, not having the opportunity to integrate, not being able to volunteer—we have just been told that that is important, and indeed it is—to use their skill as a driver in a voluntary capacity.
On Wednesday the noble Earl said—in the context of bank accounts—that it was not the policy intention to prevent people in this position from opening a bank account, and that the restriction would apply only to people who had exhausted all their appeal rights and are liable to removal. I therefore move this amendment in the hope that he can confirm that the same will apply to driving licences.
Amendments 72B and 72E, which are both about the revocation of a driving licence, essentially make the same point. Amendments 72C and 72F, one relating to Great Britain, the other to Northern Ireland, would create a right of appeal against a decision that the residence requirement had not been met. My concern is that, given the changes to the appeals provisions earlier in the Bill, the current provisions, which extend leave during the period for appeals and during the period they are pending, will not apply. The nomenclature for appeals has changed, and the provisions on which they bite will be repealed. I do not know whether this is an oversight or whether there is some tidying up here that the Government might feel they need to look at.
Finally, Amendments 72D and 72G remove the prohibition on a judge or sheriff dealing with the matter considering the merits of the refusal of leave. The Home Office’s human rights memorandum says that this measure about licences is partially intended to have a deterrent effect on those who are in the UK unlawfully. The bundle of notes we have been given—I think it is about licences—talks about the dire consequences, which seems a rather inflammatory term in these circumstances. However, perhaps I had better not go there and instead ask the Minister: if the deterrent effect is only a partial reason, what are the other intentions?
My Lords, Clauses 41 and 42 prevent a person who is not lawfully resident in the UK from applying for a driving licence, and allow the Secretary of State to revoke the licence of a person who already has one, if he is not lawfully resident—meaning that he requires leave to enter or remain and does not have it. Under existing law, since March 2010 a person must have leave to remain in the UK for at least 185 days, ruling out the vast majority of unlawful residents—as indeed it should, because the possession of an identity document would help them to stay in this country when they are not entitled to. Asylum seekers, and those appealing against refusal of asylum, should not, however, be lumped in with illegal entrants. As long as their applications are not fully determined they are here lawfully; however, they would be caught by the 185-day rule. Most asylum seekers do not have cars, obviously, but for the few who do there is no reason that they should not continue to drive.
May I also ask about failed asylum seekers, a point I raised with my noble friend Lord Attlee in the previous debate? They cannot be sent back to their country of origin for one reason or another: generally it is because the country of origin refuses to accept them. I gave the example of Iran. My noble friend Lady Williams is also muttering in my ear about the many refugees from Zimbabwe who were stopped from returning to their country of origin for many years, with the full approval of the Home Office. Is the discretionary leave granted to them longer than 185 days? Would they be classified as lawfully resident? If they are allowed to work, as some of them are, it could be a severe disadvantage if they are not able to drive. As my noble friend the Minister will be aware, there are tens of thousands of people indefinitely stranded here because their country of origin—I named Iran and Zimbabwe but Somalia is another example—either cannot or will not accept them. Although their not being able to drive may not be the largest problem that they face, the Minister would send a glimmer of light into their lives if they could apply for a licence.
My Lords, I have just a couple of questions on this group. The noble Earl may recall that at Second Reading, one thing that I said we would do in examining the Bill was, to look at first, the evidence base for bringing proposals forward and the workability of the measures proposed and, secondly, the impacts—including the unintended consequences. I would find it quite helpful if the noble Earl could say something about the reasons why this clause on driving licences has been brought forward.
On the point about the revocation of driving licences I would presume that someone who is in this country, even if they do not have a legal right to be here, is taking quite a responsible attitude if they have a driving licence. It means that they would probably have insurance. If that driving licence is then revoked, their insurance will also be revoked. Does that not cause a significant problem for other drivers on the UK’s roads if they are involved in an accident with a car whose driver, because of the revocation, has no licence at that point and whose insurance will have been revoked as well? It would be helpful to hear whether any thought has been given to that.
In terms of looking at the problems on our roads for those who are not entitled to be here, if the noble Earl were to do a straw test of members of the public, I think the issue causing them the most concern would be that of foreign cars being in this country for what is obviously longer than the six months that they are entitled to be before they are reregistered. Their drivers commit numerous offences on the roads, knowing full well that no one is going to track them down or do anything about it. The Government are taking action to bring us into line with the Irish Republic on driving offences but no action seems to be being taken regarding other countries. Can the noble Earl comment on why that matter is not being dealt with while that of driving licences is? That would be helpful in trying to understand the purpose of this clause.
My Lords, perhaps I might say a few words about Clause 41. The ability to drive in the UK is an important aspect of the quality of life for many UK residents and a privilege extended to many lawful migrants. A UK licence is used not only to drive but to secure employment and a range of services, as often it is used as proof of identity. There is no reason why the privilege of a UK driving licence should be extended to migrants who come to the UK only for short periods, have no leave or are here unlawfully. The EU directives in this area already require member states to ensure that applicants for licences are normally resident in the state of application. Those who come to the UK only for short periods of less than six months, those who have no leave and those who are illegally present in the UK should not be able to obtain a UK driving licence. This has been the Government’s policy since a Written Ministerial Statement on 25 March 2010 by the then Secretary of State for Transport, the noble Lord, Lord Adonis. This policy has been adopted by the Driver and Vehicle Licensing Agency and the Driver and Vehicle Agency in Northern Ireland.
It is equally wrong that migrants who have obtained a UK driving licence and then overstayed their leave in the UK should be able to continue using that licence. There are no current powers to remove this privilege. Clause 42 will remedy this: it will provide a new power to revoke a UK driving licence held by a licence holder who is unlawfully present in the UK. It will also create a criminal offence to fail without reasonable excuse to surrender a revoked driving licence.
I turn to the amendments tabled in respect of Clauses 41 and 42. Regarding Amendments 72A, 72B and 72E, asylum seekers should not be able to obtain the advantage of a UK driving licence until granted leave. This would encourage economic migrants to misuse the asylum system to the detriment of genuine asylum seekers. I fear that I can be no more helpful than I was for the previous amendment. Driving is indeed an ideal route to employment for migrants, but only when they have acquired the right to be here. My noble friend Lord Avebury again raised the issue of failed asylum seekers who cannot go home. It may be a difficult issue, but it is not a good reason for agreeing to open the floodgates to encourage asylum seekers.
The Government do not intend to seek blanket revocations of driving licences and asylum seekers complying with the immigration process who already hold a licence will not generally face this sanction. Refugees will be able to obtain a UK driving licence provided they meet the relevant requirements.
On Amendments 72C and 72F, the grant of a licence is currently, and will remain, an administrative process. A person refused a licence on the grounds that they do not satisfy the residency requirements may make representations to the Home Office or reapply for the licence with the relevant proof of identity. Allowing a right of appeal direct to the courts against a decision not to issue a licence will simply drive up costs for all involved.
Turning now to Amendments 72D and 72G, an appeal against a decision to revoke or grant a licence is not the appropriate place to consider the merits of an immigration claim. This should be done via an immigration route for which appropriate appeals mechanisms already exist. It is not appropriate to allow a court hearing an appeal to consider a change of circumstances following revocation. For the affected person, the easiest and cheapest remedy is to apply for a new licence having obtained the necessary immigration leave.
The noble Baroness, Lady Smith, talked about the difficulty of a motorist having no licence, resulting in the motorist having no insurance either. I agree with the circumstances described. The police will not necessarily detect this by checking the automatic number plate recognition system, under which uninsured drivers can be detected; I have seen that happen. I accept that it will be detected only if the police actually stop the motorist in question, but that is an unintended consequence and there is little that can be done about it.
I thank the Minister for that helpful explanation. Does this not then fall into the category of unintended consequences? The noble Lord says that the only time it will come to light is if the police stop the vehicle for some other reason. That is not the only time it will come to light. If that driver is involved in an accident in which they are at fault, the other driver will be unable to claim any compensation or on their insurance. The UK driver, going about their lawful business, will be disadvantaged by such a policy.
Can the noble Earl assure me that the Government have been in contact with the Motor Insurers’ Bureau, and that it would in fact cover those kinds of circumstances, where the Government withdraw a licence and therefore insurance from somebody who had been insured?
My Lords, the situation is no different from that of a young tearaway motorist who loses their licence because they are banned, and then continues to drive without insurance. It is just another category of someone who is driving illegally.
I have listened carefully to what noble Lords have to say, but I have to stand my ground and hope that my noble friend will feel able to withdraw her amendment in due course.
My Lords, can the Minister tell your Lordships how many asylum seekers who failed their appeals but are left here because of their inability to return to their country of origin there are? Can he say for what period they are granted temporary leave to remain? Is it more or less than 185 days?
My Lords, on the first of my amendments the noble Earl said that he could not be any more helpful than he had been previously on the same issue in a different context. I thought that he had been quite helpful, so I suppose that I had better go back and reread that.
The Minister might have added to the list of items for Report. I will look at what he has said. For the moment, I will say only that I very much regret the turn that the language of the debate has taken this afternoon, with floodgates, and the conflation of asylum seekers and economic migrants. However, we are not debating that, so I will not test the Committee’s patience by taking that further. I beg leave to withdraw the amendment.
Amendment 72A withdrawn.
Clause 41 agreed.
Clause 42: Revocation of driving licences on grounds of immigration status
Amendments 72B to 72G not moved.
Clause 42 agreed.
Clauses 43 to 47 agreed.
Schedule 4 agreed.
Clause 48: Extension of scheme to Scotland and Northern Ireland
Amendment 73 not moved.
Clause 48 agreed.
Clause 49 agreed.
Schedule 5 agreed.
Clauses 50 to 54 agreed.
Schedule 6 agreed.
Clauses 55 to 58 agreed.
Schedule 7: Immigration advisers and immigration service providers
73A: Schedule 7, page 94, line 38, at end insert “(including the waiver of all the fee in the case of an applicant which is a charity or non-profit making organisation)”
My Lords, this is a short amendment, which asks a short question. Schedule 7 deals with immigration advisers and immigration service providers and includes paragraphs about fees for registration. Paragraph 3(2)(b) will write into the legislation provision for the waiver of all or part of a specified fee in particular cases. The Explanatory Memorandum to the Bill indicates that the Government “plans”—that is the word used—to use the power to require the Immigration Services Commissioner,
“to waive the registration fee in relation to advisers who do not charge for their services”.
My amendment would put in a waiver in the case of an applicant which is a charity or a non-profit making organisation.
Of course, I do not disbelieve what is in the Explanatory Memorandum, but I would like to have the assurance in the legislation that the small charities and non-profit making organisations, which I suspect limp from one week to the next—I do not say that at all disparagingly—and could use a great deal more funding than they have, can know that they will not be charged for registering to give the advice which many of them so helpfully give. I beg to move.
My Lords, I hope that on this occasion I can delight my noble friend Lady Hamwee on this amendment.
Amendment 73A seeks to define the organisations which will benefit from an exemption from paying a registration fee to the Immigration Services Commissioner. I can assure the Committee that there is no intention to add a financial burden to charities, voluntary organisations or other non-profit making organisations that offer immigration advice and services.
The Government understand that if these organisations were to be charged a fee, these measures could restrict the ability of such organisations to provide services and this would have an impact on the availability of free immigration advice for those not able to pay. The intention is to continue the principle of exempting advisers who do not charge a fee for services from paying the OISC a registration fee. The discretion conferred on the commissioner in the original clause in the Bill will be consistent with the discretion that currently exists in determining exempt status.
The current application process for exemption requires the commissioner to examine the type of organisation, its status as a non-profit making organisation and its charging policy. The actions will continue to be carried out and will be part of the new registration application process.
Subject to parliamentary approval, the Government will lay an order, as provided by paragraph 3 of the schedule, to specify that those organisations which do not charge for services will not have to pay fees when they apply for registration or reapply for registration. The Government do not want the Act to include a definition of organisations not required to pay a fee because such a level of detail is not necessary for this legislation and such definitions could be open to interpretation in a manner not intended. I hope I have satisfied my noble friend and that she will feel able to withdraw the amendment.
Amendment 73A withdrawn.
Schedule 7 agreed.
Clause 59 agreed.
Clause 60: Deprivation if conduct seriously prejudicial to vital interests of the UK
74: Clause 60, page 47, line 40, at end insert “, and
(c) the court gives the Secretary of State permission under subsection (4B).(4B) This subsection applies if the Secretary of State—
(a) makes the relevant decisions in relation to an individual in a case which falls within subsection (4A);(b) makes an application to the court for permission to make an order.(4C) The application must set out how the deprivation is conducive to the public good and how the person, while having that citizenship status, has conducted himself or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, and of the islands, or any British overseas territory.
(4D) The function of the court on the application is—
(a) to determine whether the relevant decision of the Secretary of State is in accordance with the law, and(b) to determine whether to give permission to deprive a person of citizenship in a case which falls within subsection (4A).(4E) In a case where the court determines that a decision of the Secretary of State in relation to the conditions set out in subsection (4A)(b) is not in accordance with the law, the court may not give permission under this section.
(4F) In any other case, the court may give permission under this section.”
My Lords, Clause 60, on deprivation of citizenship, is very important and far-reaching. There are two groups of amendments on this issue. I shall make my main remarks on this group and make a couple of comments on the second group.
Clause 60 amends Section 40 of the British Nationality Act 1981 to enable the Secretary of State to deprive someone of their citizenship even if that would make them stateless, but only if the citizenship has been gained through naturalisation and the Home Secretary is satisfied that the deprivation is, in the words of a government new clause introduced by her in the House of Commons,
“conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom”.—[Official Report, Commons, 30/1/14; col. 1026.]
Currently, the law allows the Home Secretary to deprive a person of their citizenship status for two reasons: first, if the person acquired it using fraud, false representation or concealment of a material fact; or, secondly, if the Home Secretary is satisfied that, in doing so, it is conducive to the public good and that the person would not be left stateless as a result. Clause 60 seeks to amend the second condition to, in the words of a Minister in the other place,
“ensure that individuals who are a serious threat to this country cannot retain citizenship simply because deprivation would leave them stateless”.—[Official Report, Commons, 11/2/14; col. 259WH.]
I question the word “simply” in that context. It would be helpful if the Minister could clarify whether there are any other areas of law in which we have different categories of citizens.
I know that everyone in your Lordships’ House without exception wants to do all they can to protect citizens from a potential terrorist threat and activity at home and abroad, and, indeed, recognises that we have international obligations in this regard as terrorism is a global threat. The Home Secretary, Theresa May, is aware of the seriousness of the issue before us today. She recognises that depriving an individual of their citizenship,
“is one of the most serious sanctions a state can take against a person”—[Official Report, Commons, 30/1/14; col. 1038.]—
and we agree with that. This clause was tabled just 24 hours before Report stage in the other place, with no prior consultation, let alone explanations or agreement, and a very truncated debate. Parliament has had little opportunity to scrutinise this measure, which has massive consequences and implications both for the individual and for the state, and for other countries.
We have tabled Amendments 74 and 79, which add a permission stage. Effectively, the Secretary of State would be required to seek permission from the court before making an order. I readily admit that the drafting is not perfect; we are not wedded to any specific wording here. However, we need a response from the Minister on the principle of oversight.
Clause 60 is a response to the judgment about Hilal Al-Jedda by the Supreme Court, which clarified that the Secretary of State could not withdraw citizenship from an individual if this would leave them stateless. For the Government to do so would lead to one of two scenarios. The first is that a former citizen would remain locked in the UK, unable to leave, work or receive any support, but the Government would still have obligations to that individual. In January last year, the Department for International Development published guidance on how a stateless person could apply for leave to remain in the UK.
The second scenario is that the former citizen, whom the Government consider to be engaged in actions prejudicial to UK interests, is left stateless in another country. I would be very interested to know what discussions the Government have held on this proposal with other countries, such as the USA or Germany, which have not given themselves the power to make other citizens stateless. The fight against terrorism is international and global. What are the implications for national and international security of allowing terror suspects to be loose and undocumented in whatever country they happen to be in when their citizenship is revoked? A number of issues arise from this clause. First, what will be the process for making an order under this clause? The Minister, James Brokenshire MP, has said that the process will,
“involve extensive research and understanding of an individual’s previous behaviour, any potential human rights issues and the threats that they pose to the UK. Officials from the Home Office and other Departments are consulted before the information is reviewed and a final decision made by the Home Secretary”.— [Official Report, Commons, 11/2/14; col. 259WH.]
The information provided by the department also suggests that the welfare of any children involved would be a consideration. Can the Minister provide further information or clarification on the specific grounds the Secretary of State would consider? Will the Home Secretary be able to take political considerations into account? Will she consult her Cabinet colleagues, for example, or will this decision be made on the advice and information from the security services? Obviously, with such a serious issue, there must be absolute certainty about the decision-making criteria. Accurate, factual information and risk assessments are of paramount importance.
I wonder whether the noble Lord could help me understand a particular case from 2011, which was brought to my attention by the Bureau of Investigative Journalism. It is the case of Y1. The witness statement from the deputy director of the Office for Security and Counter-Terrorism, on behalf of the Home Secretary, stated that the security service considered that Y1,
“presented a substantial risk to UK national security”.
He added that there was clear information that depriving Y1 of British nationality was conducive to the public good. However, he also stated that although they considered that Y1 presented such a risk, they also believed that,
“his detention had reduced the immediate risk he posed and judged that there may be more options for controlling that risk if Y1 were in the UK”.
That is a direct quote from the witness statement that was presented to the court. I read that as the security services wanting Y1 to be in the UK so that they can monitor his activities. They would be unable to do so if he were outside the UK and stateless. Following Y1’s appeal to the Special Immigration Appeals Commission, the judges reported that:
“Ultimately, the Home Secretary rejected the advice of the Security Service on the ‘management’ issue. Following consultation with other senior Ministers, the decision to deprive”,
him of citizenship “was made”.
I do not raise this to question the Secretary of State’s judgment, but I seek clarity on the process. That is why I added my name to the amendment in the next group, tabled by the noble Lord, Lord Pannick. Amendment 79C would require guidance to be published on the process to be followed. It seems to me that we need far more information on how the Secretary of State will make a decision.
Secondly, I turn to the definition of the phrase “seriously prejudicial”. In the Commons, Theresa May replied to this question by saying that it would “be understood”. The Minister has provided more detailed information but where would that higher test of “seriously prejudicial” be set out and who will apply it? The Government have also said that it would apply to a very limited number of people and that the power would be used sparingly. James Brokenshire said that,
“only a small number of individuals are deprived of their citizenship … since 2006, 27 people have been deprived under these conducive powers”.—[Official Report, Commons, 11/2/14; col. 260WH.]
I have never considered that few people being affected by a power makes it less important to consider its implications. It would be helpful to have far more precise information. How many of those 27 people were in the UK when their citizenship was withdrawn and they were made stateless? How many were outside the UK at the time the decision was made? That is an example of the kind of information that it would be helpful to have to understand a little more about the Government’s motives and reasoning behind this clause.
Again I am grateful to the Bureau of Investigative Journalism, which has identified 15 of those cases where the person was overseas at the time. It has also shown that the use of these powers has gradually increased under this Government. Until about 2010, there was roughly one case a year in which someone’s citizenship was withdrawn. Since then the number of cases has increased to five in 2010, six in 2011 and eight in 2013. I do not know whether the Minister can comment on that.
When citizenship has been withdrawn from citizens who are overseas, is the country which admitted that individual in good faith on a British passport consulted or advised at any stage or even notified after the withdrawal of citizenship? When our amendment was discussed in the Commons, the Home Secretary said:
“I will be willing to consider them and, if necessary, address them further in another place”.—[Official Report, Commons, 30/1/14; col. 1040.]
“Another place” refers to your Lordships’ House. We are grateful for letters and meetings that we have already had but would like far greater engagement from the Minister today.
In response to the Constitution Committee’s report, the Government said that one problem with a permission stage—the process that we propose—was that,
“it is unclear how the court could act impartially”,
if any appeal, if not already given permission, was brought back to them. That is slightly ironic given that the Minister has been arguing the opposite in relation to the new administrative review process under Clause 11 on visa appeals. That review would be by the same body, which under that clause would be the caseworkers. He does not consider that that would create a conflict. Therefore, I am unclear why the response to the Constitution Committee is that the courts dealing with the issue would create a conflict. The Government were arguing against that in principle and are now arguing for it in principle.
The Government have confirmed that a person deprived of their citizenship has a full right of appeal and that grounds for appeal would include both the legality of the action and the merits of the Secretary of State’s decision. James Brokenshire has also confirmed that, before issuing a deprivation order, the Secretary of State must notify the person of the decision to make the order, set out the reasons for it and tell the person of their right to appeal. Will the Minister clarify how that will work when the person is outside the country? I believe that, at Second Reading, my noble friend Lady Kennedy gave a very powerful and disturbing case about a person who did not receive that notification and could not be contacted by those who had interceded and had seen the letter from the Government. What happens if the individual cannot be contacted?
In today’s Independent, there is a report about a young man who did not receive any notification because he was out of the country. It was only when he got to the airport to return to the UK that an official from the UK Government was there to ask for his passport. The Government must have known that he was out of the UK to be able to meet him as he was trying to leave the country he was in at the time. I would like to know the mechanics, how they work and how the Government intend them to work if a person has a certain amount of time in which to appeal but does not receive, or know of, the letter within that time. What would happen to the family or dependants of someone who has been deprived of citizenship? Again, in response to the Constitution Committee, the Minister said that the Government would not take deprivation action against family members on the basis of their relationship with the person being deprived of citizenship. However, the question goes wider than that. What would happen to any child left behind in the UK?
I turn now to what happens to those who have had their citizenship removed. This is important because we are dealing with people whose activities the Government say are of concern to us, or who may be a danger. The Government have clarified that this power could be used against people whether or not they are in the country, and whether or not they could acquire another nationality. I have been reading the comments from James Brokenshire, the Minister in another place, and I still remain somewhat confused. He said that the Government,
“would seek to remove that individual from the UK once they have acquired another nationality”.—[Official Report, Commons, 11/2/14; col. 261WH.]
What happens to those who cannot acquire another nationality? How can we remove somebody who has no passport, no travel documents and no country to go to? Where would they go, and what would happen if they then stayed in the UK? James Brokenshire said, in the event that they remained in the UK, that they could be granted limited leave “possibly” with conditions, as the UK would have certain international legal obligations under the UN convention. This was expanded on in the Constitution Committee:
“We would expect anyone deprived of British citizenship under this new provision to attempt to resolve their nationality issues with their country of origin/birth”.
I think the Minister has to understand that it will not always be possible to do this. However, the Minister said:
“This is an entirely reasonable expectation before they could apply for leave as a stateless person. For those living in the UK, we may grant another form of immigration leave, depending on the person’s circumstances”.
Does that not mean that we have people who are stuck here, whom we cannot deport and to whom we have obligations, but no charge has been brought against them? How does that help ensure that national security is protected? What happens if someone is in another state when that decision is taken? What would be the obligations of that state? One of the things that has concerned me is our relationship with those states who then admit somebody in good faith on a British passport, but that passport and that citizenship is then withdrawn.
Guy Goodwin-Gill, a professor at Oxford and an expert on this area, has written that:
“Any state which admitted an individual on the basis of his or her British passport would be fully entitled to ignore any purported deprivation of citizenship and, as a matter of right, to return that person to the United Kingdom”.
How would that scenario impact on the UK’s relationship with that state? What discussions would there have been with other countries on this issue? Has there been any consideration of the possible impact on UK passport holders?
In recent years, there has been a renewed worldwide push to encourage nationality laws that reduce statelessness. Will the Minister say how many other countries have powers to make citizens stateless? Which do and which do not? There are many unanswered questions on this clause—on the purpose, the practicality and the impact. I have raised some of those questions today. I hope that the Minister can provide some more information and evidence on the workability and implications of this clause because there are very serious consequences and considerations to be taken into account.
My Lords, my noble friend mentioned that I raised this issue at Second Reading with great concern about the consequences. As a result, I have received communications from a number of different, eminent international lawyers. One of them, Guy Goodwin-Gill, is a senior research fellow of All Souls, Oxford, Professor of International Refugee Law at the University of Oxford and a barrister. He and others take a very different view of this from that of the Government. The proposal to allow the Secretary of State for the Home Department to deprive a naturalised individual of his or her citizenship not only risks damaging the United Kingdom’s international relations, but also risks leading to breaches of international obligations and engaging the UK’s international responsibility. Moreover, deprivation of citizenship is not a viable alternative to the responsible prosecution of alleged criminal conduct. Citizenship is not a privilege, but a protected legal status. It is why, for example, the United States, Germany and other countries would not, under any circumstances, contemplate removal of citizenship. The answer to behaviour that we do not like and consider to be criminal is to prosecute it.
Deprivation, with all its consequences in the modern world, is equivalent to a penal sanction of the most serious kind, but imposed without a criminal trial, without a conviction, without close and open examination of the evidence, and without an effective opportunity of defence, contrary to the requirements of due process. From the perspective of international law, in particular, the re-introduction of previously repealed statutory provisions on deprivation resulting in statelessness is arguably inconsistent with Article 8(3) of the 1961 Convention on the Reduction of Statelessness. The deprivation of citizenship resulting in statelessness will engage the United Kingdom’s international responsibility where it violates the rights of other states. Just as my noble friend has asked, I also ask: what do other states make of our intention to do this? It is inconsistent with the United Kingdom’s other international obligations. As a matter of international law, the United Kingdom has no right to deport a person whom it has made stateless to any state which has not expressly agreed to admit the individual; nor does it have the right to refuse to readmit a former British citizen who has been deprived of his or her citizenship while present in another country. Deprivation of citizenship may engage a variety of European convention rights, and a person deprived of their British citizenship does not cease to be within the jurisdiction of the United Kingdom for the purposes of those rights.
Deprivation of citizenship is potentially inconsistent with obligations accepted by the United Kingdom under many different treaties dealing with terrorist acts, in particular, the obligations of investigation and prosecution in the fulfilment of which every other state party has a legal interest. Deprivation of citizenship will likely expose the conduct of the United Kingdom to close and critical scrutiny whenever a former British citizen seeks international protection from the United Nations High Commissioner for Refugees, or as a stateless person or convention refugee.
I wonder whether the Government have given proper consideration to the implications of this step. The proposal to allow the Home Secretary to deprive citizens of their status, even if it renders them stateless, is ill considered. Recent experience suggests that considerable wastage of public money is likely to result from attempts to defend the indefensible, for deprivation itself touches on just too many legal issues. Considered as an internal act, it is by no means clear what deprivation can achieve that the criminal law cannot. The criminal law is the proper process.
In addition, considerable harm will be caused to the United Kingdom’s international relations. The United Kingdom has no right and no power to require any other state to accept its outcasts and, as a matter of international law, it will be obliged to readmit them if no other state is prepared to allow them to remain. Likewise, and in so far as the UK seeks to export those who are alleged to have committed terrorist acts, it is likely to be in breach of many of those obligations which it has not only voluntarily undertaken, but which it has actively promoted around the world up to now, for dealing with international criminal conduct. We cannot speak with forked tongues on this.
Although the current state of international law may permit the deprivation of citizenship resulting in statelessness, at least in its internal form, certain limitations on this competence none the less follow when the act of deprivation takes on an external or extraterritorial dimension which, as we can see from the number of cases, is how we tend to apply it. We apply it to people who are abroad. In light of the above considerations, this implies among other things that no order of deprivation and no cancellation of passports or documents attesting to citizenship should be permitted with regard to any person not physically present in the United Kingdom, but that is precisely how the Government intend to use it. No person deprived of their British citizenship should be removed or threatened with removal unless another state has formally agreed to admit that person and the person concerned is willing to go to that state. These are the problems that faced President Obama with regard to some of the persons being held in Guantanamo Bay.
No order of deprivation should be made unless full account has been taken of family considerations, including the best interests of any children and their status in the United Kingdom. Due process requires an effective remedy and meaningful review of any order of deprivation. In particular, this requires that an appeal or review has suspensive effect, particularly in view of the concerns which courts have expressed regarding out-of-country appeals.
My client, the one I referred to at Second Reading, was in another country, and it was his parents who were told to inform him that he had lost his citizenship and had 28 days within which to appeal, even though he was in a place where there was no embassy and no method by which he could easily do it. He crossed a border in order to make the appeal and was immediately lifted by the Djibouti secret police, which, without any due process whatever, kept him in containment, interrogated him and told him that the British authorities had washed their hands of him. Then, deprived of any human rights safeguards or protections, he was handed over to United States agents in Djibouti, who, in turn, interrogated him. Hooded, he was transported without due process, extradition or any other safeguards to the United States of America.
Statelessness matters because it so often renders someone without access to their rights and to the kind of support that people deserve when facing these kinds of processes. If the power to deprive of citizenship is to be retained, it should be limited to those cases in which the individual in question already possesses another effective nationality. They have to have that nationality before the removal of their British nationality. The better solution is that deprivation of citizenship is an entirely inappropriate response to alleged criminality or threats to security given its significant law implications. That is the view signed off by this very eminent professor at Oxford.
I do not know who is advising the Government, but all I would say is that when one rehearses this set of arguments among international lawyers, at home or abroad, people are appalled. We have a system of law of which I am normally proud, but I have to say that this will be a source of shame to all of us if we proceed as the Government intend.
My Lords, I have added my name to several of the amendments in this group and have also indicated my opposition to Clause 60 standing part of the Bill. I share the concerns eloquently expressed by the noble Baronesses, Lady Smith of Basildon and Lady Kennedy of The Shaws. It is a matter for considerable regret that the United Kingdom, which has played so significant a role in the battle to reduce statelessness, should now, if the Government have their way, condone the creation of statelessness, even for people who have damaged the public good. Such people should be put on trial, punished if there is evidence of criminal offences and deported if there is a safe country to which they can be sent. However, to deprive them of nationality and thereby render them international outcasts is simply indefensible.
I share the views of the noble Baroness, Lady Kennedy, about the international law implications of what is proposed, but wish to focus on the practical consequences of what the Government are suggesting. Does the Minister accept—this is the crucial question— that if British citizenship is removed from a person in this country on public-good grounds, with the result that they are rendered stateless, it will make it much more difficult to remove that person to another state? Other states are less likely to accept entry by a person who is stateless than one who enjoys British citizenship. Does the Minister therefore accept that, far from contributing to national security, the exercise of Clause 60 against persons in this country will positively damage national security by making it more difficult to remove people who are a danger to the public good?
For this reason, it seems highly likely that Clause 60 will in practice only ever be used against people who are living abroad. Does the Minister agree that, if we strip a person of British citizenship while they are abroad, thereby rendering them stateless, there is a real danger that the country that admitted them temporarily will take urgent steps to remove them back to this country, since it will not wish to be responsible for a stateless person? It is surely highly likely that the United Kingdom will be told by the country where such a person is living that it admitted that person temporarily only because the individual had a British passport. The foreign country will surely say that, now that the passport has been taken away, the United Kingdom can have that person back. There will then be a dispute with the foreign state—and some such states are our allies—about our duty to re-admit someone who was admitted to it only because they presented a British passport that has now been revoked.
The noble Baroness, Lady Smith, has already referred to the opinion of Professor Goodwin-Gill that the United Kingdom would have an obligation in international law then to re-admit such a person. Even if there is a dispute about international law, this Government are plainly going to face considerable pressure from foreign states to re-admit such people to this country. I would be grateful for the Minister’s views on this: does he agree that Clause 60, far from assisting us to deal effectively with people who threaten the public good, will handicap this country, whether the person is here or abroad when the revocation of citizenship takes place?
Although I have added my name to a number of the amendments in this group, which I see as probing amendments, the problem with all of them, whether to secure judicial control or introduce a test of proportionality, is that they will still allow for the removal of citizenship, even though statelessness will result. My current view is that Clause 60 is so fundamentally flawed, so in breach of international law and so damaging in its practical consequences for the security of this country that it should be removed from the Bill. I am happy—and I am sure that noble Lords who have spoken and will speak in this debate are too—to meet the Minister in the short period of time before we return to this subject, as inevitably we will on Report this month, to see whether there is a possibility of making real progress on this very troubling matter.
My Lords, Amendment 76A in my name is, like Amendments 75 to 78 to which I have added my name, designed to mitigate the worst effects of Clause 60. However, like the noble Lord, Lord Pannick, and my noble friend Lady Kennedy, my preference is for Clause 60 not to stand part of the Bill, and we have heard very powerful reasons for why it should not do so.
Amendments 75, 76, 77 and 78 were recommended by the Joint Committee on Human Rights; first, to ensure that Clause 60 is compatible with international law obligations. This has been questioned by the JCHR, drawing on the opinion of Professor Goodwin-Gill, which has already been referred to, that the deprivation of citizenship should be,
“a necessary and proportionate response to the conduct in question”.
The JCHR noted that, in their letter to the committee, the Government said that they did not want,
“to rule out the possibility that deprivation of citizenship leaving a person stateless is necessary in the interests of the economic well-being of the country”.
The JCHR said:
“It is hard to imagine the circumstances in which such a serious measure could ever be necessary and proportionate for such a purpose”.
Will the Minister help us out and give an example of the kind of situation envisaged that would not anyway be covered by terrorism? Economic well-being does not seem to be a reason for taking away someone’s citizenship and making them stateless.
The JCHR said that the best interests of the child should be taken into account and, once again, issued a plea for this to be written into the legislation to ensure that they are,
“treated as a primary consideration”.
The committee also said that the legislation should not be retrospective, which is,
“an exceptional step which requires weighty justification”.
We were not persuaded that such justification exists. I note from a Written Answer on 10 February:
“There will be no time limit, but the conduct being considered must have taken place after the individual became a British citizen”.—[Official Report, 10/2/14; col. WA 101.]
Amendment 76A complements the JCHR’s amendments and has two purposes. First, it would ensure that the power in Clause 60 could not be used against someone when they are outside the country. This would help ensure compliance with obligations under international law and, as has already been noted, the JCHR, drawing on the opinion of Professor Goodwin-Gill, has questioned whether the clause is compliant. The committee said:
“We would be very concerned if the Government’s main or sole purpose in taking this power is to exercise it in relation to naturalised British citizens while they are abroad, as it appears that this carries a very great risk of breaching the UK’s international obligations to the State who admitted the British citizen to its territory”.
That point has already been made but it bears repetition. Will the Minister comment on this important legal point?
The JCHR also expressed surprise at,
“the Government’s refusal to inform Parliament of the number of cases in which the power to deprive of citizenship has been exercised while abroad”,
and made it clear that Parliament,
“is entitled to this information in order to assist it to reach a view as to how the new power is likely to be exercised in practice”.
I pay tribute to the tireless briefing that ILPA has provided to the committee throughout the passage of the Bill, although I fear we have not done it full justice. A freedom of information request submitted by ILPA elicited the information that, of five individuals stripped of British nationality in 2010, all were outside the UK. This has to raise alarm bells. Will the Minister give Parliament—and the committee—this information now?
At Second Reading, the Minister assured noble Lords:
“There is a safeguard of a full right of appeal”.—[Official Report, 10/2/14; col. 417.]
But how is someone who is forbidden to return to the country supposed to exercise that right of appeal? It will not be very easy. In practice that is probably a pretty empty assurance. What will be achieved apart from sullying the UK’s international reputation, as we have already been warned? Liberty suggests that the clause is based on a security fallacy, arguing that stripping someone of nationality abroad will in no way contribute to security at home. Those who threaten our security do not respect national borders; my noble friend Lady Smith has made a similar point.
The second part of the amendment would ensure that Clause 60 could be used only against individuals who could acquire another nationality within a period of six months. In other words, it aims to prevent statelessness, the seriousness of which we must not underestimate. At Second Reading, the Minister said:
“The evil of statelessness is well understood and that is why… so much work was done to reduce it”.—[Official Report, 10/2/14; col. 527.]
As has been said, the UK took the lead in that work but is now siding with oppressive and rogue states that perpetuate the evil of statelessness.
In the words of the Open Society Justice Initiative, which has particular expertise in this area, statelessness is a condition of insecurity and indignity. The UNHCR says:
“To be stateless is to be without nationality or citizenship. There is no legal bond of nationality between the state and the individual. Stateless people face numerous difficulties in their daily lives: they can lack access to health care, education, property rights and the ability to move freely”.
Essentially, in Hannah Arendt’s memorable words, they lack the right to have rights. Liberty describes it as a,
“brutal punishment with unique practical and legal consequences”,
and that stripping a person of his or her nationhood and forcing him or her into,
“the obvious cracks in protection created by a state based system of law and international relations is a barbaric and unprincipled response to concerns about our security”.
When the clause was first introduced in the Commons, Parliament was assured by the Home Secretary that the whole point was that the process would apply only in cases where the individual could access citizenship of another country, and it would be open to them to apply for such citizenship. To the JCHR’s surprise—I have lost count of how many times we had to express our surprise in our report—it has since emerged that the scope is, of course, much wider. As the Minister made clear at Second Reading in this place, an individual can be deprived of their citizenship regardless of whether that leaves them stateless.
The amendment would simply make the clause consistent with the assurance given by the Home Secretary to the House of Commons; ILPA warns that that in itself is not sufficient protection, because according to UNHCR guidelines nationality cannot be a predictive exercise, but at least would take us some of the way. Again, the legality of the clause has been questioned by the Open Society Justice Initiative and Professor Goodwin-Gill, who explains the point as follows:
“It could be argued … that once having ‘legislated away’ the right to make a citizen stateless, as in 2002 and again in 2006, the United Kingdom no longer falls within the category of States which, in the sense of Article 8(3) of the 1961 Convention, ‘retain the right’ to deprive a person of his or her nationality, even if it results in statelessness”.
As a non-lawyer, it seems to me that this revolves around the interpretation of the word “retain”. Will the Minister confirm whether the Home Office’s lawyers have seen this opinion and what their view of it is? If he cannot tell us that now, will he write to noble Lords afterwards? This point seems to be rather important. Whatever the lawyers’ response, does he accept that this clause is going to be challenged in the courts very quickly?
In passing legislation, we have to consider the consequences. I have spoken about the consequences for someone out of the country. What about a person who is in the country when deprived of citizenship and who is unable to apply for citizenship of another country? My noble friend Lady Smith has already asked some questions about this. The Government have conceded that it may not be possible to deport them, so they will live a kind of shadow existence in our midst, no doubt bitter and resentful. As Liberty asks, on what basis do the Government believe that this will improve the country’s security?
In those cases where it is possible to deport the person, I can do no better than quote the late Lord Kingsland, the Conservative shadow Lord Chancellor, who in 2002 said:
“If we identify someone as a person proposing to commit a serious terrorist offence, for example, surely the obligation is on us to deal with that person. If we simply deport him, we shall be handing on—in my submission, irresponsibly—this terrorist problem to another state which may not have the same capability of dealing with it as we do. It cannot be a proper response to the terrorist threat to refuse to deal with it ourselves. … That would be irresponsible of us”.—[Official Report, 9/10/02; cols. 277-78.]
Can the Minister explain why Conservative thinking has changed since those wise words were spoken? Why do the Government so lack confidence in the criminal justice system and its own criminal justice legislation to deal with this kind of threat? My noble friend Lady Kennedy has already talked about this.
I remind the Minister what his noble friend Lord Bourne of Aberystwyth said at Second Reading:
“if the deprivation of nationality leaves them stateless, then I have serious concerns both about fairness and efficacy. It seems neither fair nor effective”.
He went on:
“Britain has a proud history of fairness and I believe my country to be better than this proposal”.—[Official Report, 10/2/14; col. 490.]
Again, those are wise words. I do not think that the safeguards to which the Minister referred in his response to the noble Lord, Lord Bourne, did anything to address his concerns on this fundamental point of the consequences of deliberately making a person stateless.
Amendment 76A will go some way to addressing questions raised about lawfulness and the implications of Clause 60 for the UK’s international reputation. The Open Society Justice Initiative has warned that,
“The UK Parliament’s approval of Clause 60 would send a message to the world that the UK condones the creation of statelessness”,
thereby giving a green light to other states—states of which I am sure the Government do not approve. The fact sheet issued by the Home Office states:
“This is more a matter of principle than an issue of numbers”.
I agree. For that reason, I believe that Clause 60 should not stand part of the Bill. If it does, it is imperative that the clause is amended along the lines of the various amendments that we are debating this evening.
My Lords, I will refer to Amendments 75 to 78 from the noble Lord, Lord Lester. They touch upon important points, including one made in the context of Clause 14 by the noble Baroness, Lady Lister, and myself.
The Government have an obligation to take into account the best interests of any child affected by their decisions. I accept that Amendment 77 must be understood in the light of the reply of the noble and learned Lord, Lord Wallace, to amendments tabled to Clause 14. He stated:
“We believe that the children’s best interests must be a primary consideration. … However, it is simply not the case that a child’s best interests will outweigh every other possible countervailing factor, including illegal immigration and serious criminality”.—[Official Report, 5/3/14; col. 1384.]
Amendment 77 seeks to put on the face of the Bill that the child’s best interests should be considered, no matter what the crimes of the parents might be. This remains true.
I support also Amendment 75, which seeks to limit the dangerously broad and vague power that the Home Secretary asks for. The lack of clarity was outlined to me in a Written Answer from the Minister, Lord Taylor, on 10 February, in which he stated:
“The Government does not wish to be overly prescriptive about the meaning of ‘seriously prejudicial to the vital interests of the United Kingdom’, as the circumstances of each case will be different. However we intend it to cover those involved in terrorism or espionage or those who take up arms against British or allied forces”.—[Official Report, 10/2/14; col. WA 103.]
He cited terrorism, espionage and taking up arms against British or allied forces as possible specific examples. I hope that all here will wholeheartedly agree that the Home Secretary should be obliged to consider whether the deprivation of citizenship is both a necessary and a proportionate response.
Ultimately, this debate will focus on the finer details of this clause, but we must also take a moment to consider whether the deprivation of citizenship is an appropriate response to alleged criminality or threats to security, given its considerable implications for international law. For this reason, I have put my name to the call made by the noble Lord, Lord Pannick, to oppose the clause in its entirety.
Although I have previously stated that I am not one who understands the law to any measurable extent, I remain a concerned citizen. I am deeply troubled that this provision could allow for the citizenship of millions to be removed, with slim chances of appealing.
Let us not forget the judgment of Chief Justice Warren ruling in the United States Supreme Court case of Trop v Dulles in 1958. He said that,
“use of denationalization as a punishment”,
“the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture”.
I hope that the Minister will take these comments to heart in replying to the Committee.
My Lords, if Clause 60 operates in accordance with the Government’s intentions, it is bound to increase statelessness in the world. The noble Baroness, Lady Lister, has already reminded the Committee of the words spoken by Hannah Arendt many years ago, that statelessness deprives people of the “right to have rights”. It brings about a bleak, hopeless status, or rather a complete lack of status, that the British Government should have no role in encouraging, first, because of the positively terminal impact that the imposition of statelessness is bound to have on the ability of the rightless to function in a way that is even remotely human in the modern world and, secondly, because it is clear that such an imposition as a policy measure can have no sensible part in a co-ordinated international effort to combat security threats. In fact, it appears to be the antithesis of such an effort, even in circumstances where it is precisely co-ordinated international effort that we need.
In fact, the unilateral imposition of statelessness is very likely to be directly unhelpful to those efforts because it carries with it the very real risk of breaching the United Kingdom’s international obligations to a country which has admitted a person on the strength of their lawful possession of a United Kingdom passport. Of course, such a country would absolutely have the right to return an individual directly to the United Kingdom, and what then? As the JCHR has observed, the United Kingdom would appear to have no absolute right under international law to require other states to accept its outcasts. In my view, therefore, this proposal is not only ugly in the sense identified so many years ago by Hannah Arendt; it not only associates the United Kingdom with a policy beloved of the world’s worst regimes during the 20th century; but it threatens illegal and procedural quagmire hardly compatible with the comity of nations, still less with solidarity between free countries in the face of terrorism.
My Lords, I, too, have a fundamental problem with this clause. It has been suggested that it was added late to the Bill and designed to overcome the Government’s defeat in Al-Jedda, which was decided by the Supreme Court just last October, but in fact Clause 60 goes substantially further than merely reversing that decision.
The argument in Al-Jedda was as to the scope of Section 40(2) of the 1981 Act as that had been substituted in 2006. Section 40(4), as substituted, reads:
“The Secretary of State may not make an order under subsection (2)”—
allowing him to deprive someone of citizenship if satisfied that the deprivation is conducive to the public good—
“if he is satisfied that the order would make a person stateless”.
Having been granted British nationality, Mr Al-Jedda had lost his Iraqi citizenship, but it was said by the Secretary of State that he was entitled to regain that Iraqi citizenship on application as soon as he lost his UK citizenship. The court assumed that that was so, but it decided that the clear wording of Section 40(4) still prevented the Government from making him stateless, even in the short period until he chose to apply to regain Iraqi citizenship. What the Government needed—and could by legislation have achieved, pointed out Lord Wilson, giving the judgment of the Supreme Court in the case—was to have added to Section 40(4) the words, “in circumstances in which he has no right immediately to acquire the nationality of another state”. Had those words been added, he would have been stateless merely for as long as it took him to apply to regain some other citizenship.
I am rather more sceptical than some others among today’s speakers as to the strength of the advice of Professor Goodwin-Gill that the clause would actually involve the United Kingdom in a breach of international law. The very recent report of the Select Committee on the Constitution on the Bill, published only on 7 March, suggests that there would probably be no such breach. But I am in the fullest measure in agreement with others who have spoken that the proposal would in fact involve the United Kingdom taking a serious retrograde step, deeply damaging to our international reputation. It is a shocking example to other states, which ordinarily are readier than we are to make such a radical departure from the consensus as to proper international human rights conduct. Lord Wilson, in giving the Al-Jedda judgment, referred in paragraph 12 to “The evil of statelessness” and spoke of the “terrible practical consequences” that flow from it. Some of those practical consequences have been outlined by other contributors to today’s debate, and some are suggested by the Select Committee on the Constitution in its brief report.
Even assuming, contrary to the suggestions of many, that such a clause could ever operate to enhance the security of this nation, there is, I respectfully suggest, altogether more to lose than to gain by it. If the Government want to follow Lord Wilson’s suggestion of simply repairing what may be thought to have been an omission from the earlier legislation, let them do so. Essentially, that would be the result of accepting Amendment 76A. Let them, if they wish, go that far, but certainly let them not go to the full width of the proposed new clause.
My Lords, this afternoon’s speeches have reassured me that I was not misreading the clause when I ended up, time after time, in confusion—not just as to the principle, but as to the point. I would sum up my confusion with three questions to myself. If someone is stateless, it seems he may be allowed to remain in the country, so how is the threat diminished? Indeed, is not any threat increased because of the reaction of the individual and his community against the state’s action? Secondly, what happens to his dependants—are they not likely to become more of a burden on the state? Thirdly, is this one of those occasions when neither Parliament, concerned with the principle, nor the individual, at the sharp end of the practice, is able to challenge the decision—one of those occasions of “If you knew what I know”? We are not thought police, and I was reassured when I read in the clause a reference to a person having “conducted” him or herself in a prejudicial manner—but of course we cannot know about conduct any more than thought.
Like the noble Baroness, I read the report in the Independent today and I thought it a clear example of the impact on someone left stranded. I think he was served with the decision when he was transferring between planes: he was part way—as he would have said—home, and had to return to, I think I am right in saying, Waziristan. However, he was stranded: separated from his community and perhaps family—I do not recall—in the UK, but regarded almost as an outlaw, and, as he put it, in danger from those in Pakistan and Waziristan who regarded him with considerable suspicion. It is a very disturbing story.
My Lords, this has been a very thorough debate on a clause which, as the noble Lord said, we owe it to discuss thoroughly.
I start by adding some further perspective to the debate on the deprivation of citizenship. The measures in the Bill to deprive someone of citizenship can be used only against someone who has chosen, as an adult—not as a child—to naturalise as a British citizen. When choosing to seek British nationality they will have taken an oath, or sworn allegiance, to Her Majesty, and pledged their loyalty to this country. Despite this—
It will not apply to people under 18. Such people are not able to apply for naturalisation; they can gain British citizenship through registration—in effect, through their parents’ presence in this country. Rather, this amendment to the existing law applies to people who have sought naturalisation. As I say, they pledge their loyalty to this country. Despite this, a small number of these individuals have chosen by their conduct to betray the values and laws of their adopted country. Therefore, in my view, it is only right that the Home Secretary can, in seeking to protect the security of the UK, deprive them of that adopted citizenship, and expect them to reacquire, or to acquire, their former citizenship of another country.
I remind the Committee that the Government already have the powers to deprive citizenship. Such powers have been operated by successive Governments. Listening to the debate at certain times, I got the feeling that the argument was that no Government should have the power to deprive citizenship. However, the clear argument in these amendments is not on that case but on whether the exceptional case of statelessness should be an exclusion from the Government’s powers in this pre-existing legislation.
These powers have their origins in legislation dating back to the First World War, when provision was made for the revocation of citizenship if a naturalised person was suspected of treasonable activities. Section 40 of the British Nationality Act 1981, which has been cited, allows the Home Secretary to deprive British citizenship in two scenarios. The noble Baroness, Lady Smith of Basildon, mentioned them. The first is where the person acquired it using fraud, false representations or concealment of a material fact, which essentially means that they used deception to obtain citizenship for which they were not eligible. In these cases a person may be left stateless. Are noble Lords arguing that they should not be deprived of citizenship in such cases?
The second scenario is where the Home Secretary,
“is satisfied that deprivation is conducive to the public good”,
and that the person would not be left stateless as a result. It is the second of these powers that Clause 60 seeks to amend by returning our position on deprivation action to that which existed as recently as 2003. These powers are provided for and permitted under international law by virtue of the UK’s declaration to the 1961 UN Convention on the Reduction of Statelessness and the domestic legislation that existed at that time. These powers are provided for and permitted under international law.
The Minister may be about to come to this point, in which case I apologise. However, I referred to the legal opinion of the Open Society Justice Initiative and Professor Goodwin-Gill. That raised a question over this whole matter and whether, the time having passed, we have in fact retained that power.
I would say that the Government’s position is that we have. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, seemed to concur with that opinion. However, I was grateful for the noble Baroness raising that issue and I will take note of what she has said.
We should be clear that we are discussing in this context very serious cases where an individual’s behaviour has been seriously prejudicial to the UK’s vital interests. That is the definition. We expect the person concerned to reacquire the citizenship of another state and in most cases they can. It is not satisfactory that when dealing with such individuals the Home Secretary’s decision is at the whim of the nationality laws of other countries. These cases will be few in number and subject to the most careful scrutiny by the Home Secretary.
I turn to Amendments 74 and 79. It is not in dispute that any individual deprived of their citizenship, either under existing powers or as a result of this clause, would have the full right of appeal regardless of whether they were in the UK or overseas. Grounds for appeal can include both the legality of the action and the merits of the Secretary of State’s decision. Therefore the courts already have an important function in reviewing the Secretary of State’s decision on appeal. I cannot agree that it is appropriate or necessary that the court should have to give permission before the Secretary of State can issue a deprivation decision. Any such procedure would be impractical and out of step with any other immigration and deprivation decisions.
Given that these cases relate to the vital interests of this country, there may well be some urgency to them. We should not underestimate the additional delay and complexity that could be caused by introducing an additional stage of court involvement, particularly in cases which involved closed material.
Amendment 75 is on proportionality. Any decision to deprive an individual of their citizenship is a serious matter. Decisions made under the new power in Clause 60 would be in light of a wide range of evidence, and only after careful consideration of all the facts. Recommendations are ultimately reviewed and decisions made by the Home Secretary. As part of any deprivation decision, consideration is given to the personal circumstances of the individual, as well as the threat to the UK that they pose. The Home Office would adopt the approach from the UNHCR report Preventing and Reducing Statelessness, which asks states to consider,
“proportionality … taking into account the full circumstances of the case”.
All decisions by the Home Secretary will naturally take into account wider circumstances and the proportionality of any decision.
There has been a lot of debate about whether Clause 60 is consistent with the UK’s obligation under international law. I have tried to set this out.
I am sorry to interrupt the Minister, but he seems to be moving on from the question of proportionality. I asked if he could give an example of where it could be envisaged that the economic well-being of the country being threatened might be the reason for depriving someone of their citizenship and making them stateless. The Joint Committee on Human Rights was surprised about this being a possible reason. Can the Minister elucidate with an example of where that might be the case?
The noble Baroness will have to allow me to write to her on that issue. The Government have responded to the report of the Joint Committee on Human Rights, so she may find that the answer is in there. If not, I will seek to provide her with that answer.
As I said, Clause 60 is consistent with the UK’s obligations under international law. As I have set out here, and as accepted by the JCHR in its recent report, this clause is in accordance with international law by virtue of the UK’s declaration upon ratifying the 1961 convention and the domestic legislation that existed at the time. There is therefore no question of the clause undermining our international obligations. We are adapting and responding to the threat that the UK faces, but acting within our international obligations. Amendment 76 would be an unnecessary addition to the Bill.
The noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Pannick, asked if we were contravening international law by making people stateless. I have given the answer to that. As a party both to the UN Convention on the Reduction of Statelessness of 1961 and the UN Convention Relating to the Status of Stateless Persons of 1954, the UK is obliged to comply with the provisions of those conventions, which we would continue to do. If a person was recognised as a stateless person and inside the UK, they would have—as my noble friend Lady Hamwee rightly pointed out—protection against removal and a right to work and study. Depending on circumstances they may be granted access to public funds and be able to apply for a stateless person’s travel document. Those, therefore, are the facts: we would not seek to ride roughshod over those conventions that we have signed up to.
I did not intend to intervene until the noble Lord had spoken, but there is a lack of clarity in what he has just said. It does not seem to be the same as what the Minister, James Brokenshire, said in the House of Commons. He said that special consideration may be given, and that if leave to remain or some other kind of leave to be in the country was given, conditions would be attached to it. He mentioned new conditions. Is that the noble Lord’s understanding, or is this something different?
I must say that nothing I have said implies that there may not be conditions. They are frequently imposed on people who may pose a threat to this country, and this case is no different. However, I have said that the right to protection against removal would be part of our obligation under the existing conventions, and we would not seek to do otherwise than honour those conventions.
On the challenge made by the noble Baroness, Lady Smith, about the question of deprivation action taking place only in the UK, that is the salience of Amendment 76A. The purpose of the new power is not to target naturalised people who are abroad, but to allow the Secretary of State to take timely action against individuals, whatever their location at the time the decision is made.
However, it is a fact that in some cases key information comes to light when a person is outside the UK. Indeed, often travel abroad to terrorist training camps or to countries with internal fighting is the tipping point—the crucial piece of the jigsaw—that instigates the need to act, given the potential danger that those individuals would present on their return to the UK. The Home Secretary therefore needs to be able to determine the most appropriate response and timings to deprive a person of citizenship, regardless of whether they are inside or outside the UK.
It is up to the Home Secretary to determine when she exercises powers in the country’s best interests. As far as I can see that is a sort of non-question, because she exercises the powers at her discretion and will do so in the best interests of the country.
Nationality can be reacquired, says Amendment 76A. On that amendment, it is a reasonable requirement for those deprived of citizenship to acquire an alternative nationality quickly. However, often those individuals have little incentive to do so, and any arbitrary time limit imposed on the power would only provide an incentive to delay.
The purpose of this power is to ensure that the Home Secretary can protect the security of the UK, whether or not the individual can or has the inclination to avail themselves of another nationality. In considering deprivation cases, assessments will be made of all circumstances, including the right to another nationality, but statelessness of itself should not be an arbitrary bar to action.
Let us be clear: deprivation action is taken only against those individuals who meet the thresholds I have outlined. We do not, and cannot, take deprivation action against family members—husbands, wives or children. I hope that that reassures the noble Lord, Lord Roberts of Llandudno. It cannot be done on the basis of any relationship to the person being deprived. The Home Secretary has a statutory duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to,
“safeguard and promote the welfare of children”,
in respect of immigration, nationality and asylum decisions. That is a duty which we take seriously and there is no necessity to restate it explicitly in the context of Clause 60, as Amendment 77 seeks to do.
The noble Baroness, Lady Smith, asked specifically about the case of Y1. The judgment in that case from the Special Immigration Appeals Commission in November 2013 dismissed Y1’s appeal against deprivation. The Home Secretary is entitled to reach her decision on how to manage cases using available evidence as appropriate.
The noble Baroness asked about numbers and mentioned that 27 people had been deprived under conducive powers since 2006. These powers have been exercised by not just this Government but the previous Government. There have been appeals—15 individuals have appealed against the decision taken by this Government to deprive them of their citizenship. The majority of those appeals are ongoing but, aside from Al-Jedda, to which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred, to date there has not been a successful challenge to a deprivation decision.
Some noble Lords are concerned that the proposed new power enables the Secretary of State to take account of behaviour carried out before the clause comes into effect. Surely it would be perverse if that were not the case. Such a position would not allow the Home Secretary to consider the full background to individual cases. We believe that those who naturalise to become British citizens should adhere to the values and laws that they swear an oath to maintain. As such, we believe that there is justification for making this power apply with an element of retrospection.
Noble Lords have challenged whether deprivation makes such people less of a threat. Deprivation is just one of a number of tools that can be used to disrupt the national security threat posed by certain individuals, either on its own or in conjunction with other immigration powers. By removing an individual’s entitlement to a British passport and to enter or remain in the UK, deprivation can help reduce the direct threat an individual poses to the UK—for example, by precluding him or her from involvement in the development of terrorist networks, the provision of terrorist support or training and the preparation of terrorist attacks on the UK.
It is important to remember that a person who could come within the scope of this new power would already be liable to being deprived of citizenship under existing powers. The only thing that prevents that now is that such a decision would leave them stateless—that is the difference that Clause 60 seeks to address—which is a fact that may become apparent only some way into the deprivation process. Therefore, we do not consider that an individual could have had a legitimate expectation that there would be no consequences of their behaviour. Again, I remind noble Lords that we are talking here about individuals who have committed acts that go to the heart of our national security.
In conclusion, this is a limited power that will apply to the most serious cases involving national security and those taking up arms against British or allied forces. The Secretary of State will continue to exercise her power with due consideration and within the existing safeguards for such cases. I have taken note of the points that have been made in this debate, and having time to go through the particular provisions of Clause 60 has been very worthwhile. I have noted the suggestion of the noble Lord, Lord Pannick, that between now and Report we have a meeting to discuss the implications of Clause 60. Indeed, I have noted the positive suggestions made by a number of noble Lords. In the mean time, I hope that the noble Lord will withdraw his amendments.
Before the Minister sits down, perhaps I could ask a question. He gave a very comprehensive reply—a very helpful one, if I may say so—but, unless I missed it, I do not think that he responded to the concern that, far from promoting the security of this country, Clause 60 will damage security. This is because the clause will make it more difficult to remove dangerous people, and make it more likely that dangerous people who are temporarily abroad will be sent back to this country because they no longer have a British passport. I wonder whether the Minister wants to say anything about those concerns.
That was of course a consideration in the discussions that led to the tabling of this clause. I think that I did address this point, in the sense that an individual who poses a threat to this country can have restrictions placed on them other than the deprivation of citizenship. I am sure the noble Lord will understand this point. I wish to make the point that this is a balanced judgment. The Home Secretary, who after all has to exercise powers within the law on this matter, believes that the law is deficient in this respect. She seeks to change it, and is doing so through this Bill. Knowing her, I do not think that she would make that decision if she felt that it would in any way weaken the security of this country.
I am sorry to ask the Minister yet another question. However, I asked a very specific question which was raised by the Joint Committee on Human Rights, and I do not believe that the Government have responded to our second legislative scrutiny report. If they have, the response has certainly not yet arrived on my desk. The question was: how many of those who have been deprived of citizenship in recent years have been abroad, and why will the Government not provide that information to Parliament? As the JCHR said, surely Parliament has the right to have that information in considering Clause 60.
The noble Baroness is right. I was getting muddled between the two responses. The second report has not yet been responded to; it will be. I hope that it can address some of the issues raised by the noble Baroness.
The noble Baroness, Lady Smith, referred to the question of whether there was some difference between what James Brokenshire said and what I said in my speech. Perhaps I can explain that by saying that where a person cannot be removed to another country, we would consider whether a discretionary granting of leave was appropriate. An option would be for the person to be placed on limited leave, with conditions such as regular reporting restrictions or the need to notify the Home Office before taking up work or study in a particular field. I hope that explains that there is no difference, and I think it backs up my supplementary answer to the noble Baroness when we debated the issue.
I am grateful to the noble Lord for coming back to me on that point, but there are numerous other questions that he has failed to answer. He has not answered any questions about whether there are any other areas of law in this country that allow for two categories of citizenship. He has not told us whether there have been discussions or consultations with other countries to which British passport holders may travel—
In most countries, if someone is a citizen then they are a citizen. If someone is a natural born citizen of this country, their citizenship cannot be removed and they cannot be made stateless. Yet in this Bill the Government propose that if someone is a naturalised citizen of this country—as are Members of your Lordships’ House—they could have their citizenship taken away, even if they would be made stateless. I thought that that was clear, and that it was the point of what the Government sought to achieve.
I think that the noble Lord is missing the point. My understanding was that if someone was a naturalised British citizen, he or she had all the rights and responsibilities of any other citizen. That is changed by this legislation. I was asking whether any other area of law is responsible. The noble Lord can come back to me on that. The position would be changed by this legislation because a naturalised citizen can be stripped of their citizenship and be left stateless. If I am correct in my understanding, a British-born citizen could not be left stateless. Only naturalised citizens could be made stateless by this legislation. Perhaps the noble Lord wants to respond to that.
I am afraid that there is a disconnect in our train of thoughts on this. I will write to the noble Baroness to explain exactly how this operates. The only change made by Clause 60 is that statelessness is no longer a reason why naturalised citizens should not be deprived of their citizenship. It is not a question of two categories of citizenship based on whether a person is naturalised or not.
I think that it does and I will look to the lawyers on this issue. I also look forward to receiving the letter. Only naturalised citizens of this country could be made stateless. Natural-born citizens could not be made stateless by this legislation. However, I have other questions. I asked about consultation and discussions with other countries on the impact of people travelling overseas on a British passport and having their citizenship withdrawn. The noble Lord has not come back to me on that point. He has no more information on the 27 people. He has not come back on the issue of someone not being able to get citizenship in another country. We have the short-term answer but not the long-term answer. A number of questions remain unanswered.
The noble Lord is always very gracious and helpful in writing to noble Lords when he has not been able to answer questions. However, this clause has had very little scrutiny in Parliament. To have tabled it at the last minute, literally about 24 hours before Report in the other place, was disgraceful. It would have been helpful if all those answers had been addressed today to allow a full and proper debate. I am grateful to the noble Lord for writing to us but that is not a good principle when issues have not been debated in the other place. After the noble Lord has written, the only discussion that we will have will be at Report stage. I find that unsatisfactory.
If the noble Baroness had advised me in advance of the things she was uncertain of, I would have done my best to provide her with those answers. I have limited resources available to me at the Dispatch Box and a limited amount of time. I have suggested to the noble Lord, Lord Pannick, that it would be very useful if we could discuss this matter before Report stage. In the mean time, if noble Lords have any questions other than those that they have raised today, which I will address in writing, please advise me. It is important to get this legislation right. I believe in being able to scrutinise legislation in this House, in Committee and at all stages of a Bill.
I apologise for not answering all the questions but I have done my best. The noble Lord, Lord Pannick, advised me that he considered that my reply had been helpful. I seek to be helpful to the House.
The noble Lord always seeks to be helpful. My point is a broader one of scrutiny and the lack of time available for discussion, but I would welcome any meeting. I also say that my resources are somewhat more limited than his. I sometimes felt that in his response we were having a slightly different debate. He was responding to a debate about deprivation of citizenship. Most noble Lords who spoke in today’s debate were talking about statelessness and its implications for the security of the UK. There was little argument that there might be a need at times for people to have their citizenship taken from them or revoked. That was understood. It is the changes being made by this legislation that would create a position of statelessness that cause the most concern.
The reason I say that great scrutiny is required is to establish evidence as to whether the measure is necessary. I thought that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, was extremely helpful in his take on the measure before us. I also ask whether this measure achieves the objectives that the Government are seeking. The noble Lord and his party do not have a monopoly on wanting the citizens of this country to be safe and secure. I am sure that is the objective of every Member of your Lordships’ House. However, we do have to consider the wider impact and unintended consequences of any legislation that is brought before your Lordships’ House. There is much concern about the measure. Noble Lords have asked many questions and the opinions of respected and eminent lawyers have been quoted. That is because of concern that it does not achieve the objectives that the Government are seeking. Most importantly, it does not make the citizens of this country, or more widely, safer or more secure if people are deprived of citizenship in a way that makes them stateless.
I take on board entirely the comments made by the noble Lord. He was talking about individuals who have committed acts that are a danger to this country and that may involve terrorism. Why, if there is evidence of that, could it not be presented as evidence against those people? Instead, the Government want to make them stateless. There are consequences around statelessness that give rise to concern for public, national and international safety. I look forward to receiving further information from the Minister. The jury is still out on this. I have not been convinced that the measure proposed by the Government does what it seeks to do or is an appropriate way forward. I beg leave to withdraw the amendment.
Amendment 74 withdrawn.
Amendments 75 to 79 not moved.
Clause 60 agreed.
79A: After Clause 60, insert the following new Clause—
“Reviews of deprivation of citizenship resulting in statelessness
(1) The Secretary of State must appoint a person to review the operation of section 40(4A) of the British Nationality Act 1981 (deprivation of citizenship), (“the independent reviewer”).
(2) The independent reviewer must carry out a review of the operation of the section in respect of each calendar year, starting with the first complete calendar year beginning after the passing of this Act.
(3) Each review must be completed as soon as reasonably practicable after the end of the calendar year to which the review relates.
(4) The independent reviewer must send to the Secretary of State a report on the outcome of each review carried out under subsection (2) as soon as reasonably practicable after completion of the review.
(5) On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.
(6) The Secretary of State may pay to the independent reviewer—
(a) expenses incurred in carrying out the functions of the reviewer under this section, and(b) such allowances as the Secretary of State determines.”
My Lords, the Minister has just told the House his view on the importance of the scrutiny of legislation. I have never doubted that for a moment. However, I think he probably agrees that one needs to scrutinise the implementation of legislation as well. My Amendment 79A would do that. I think that the noble Lord, Lord Pannick, and I must have tabled our amendments within seconds of one another. When his was printed, I was glad to see that mine was very close to his, and I am glad that he has added his name to mine.
I do not claim credit for any originality of drafting. I have lifted it almost word for word from other legislation that provides for the involvement of the independent reviewer of terrorism legislation. As we are told in the information pack, although the Government do not want to be overly prescriptive about the phrase,
“seriously prejudicial to the vital interests of the United Kingdom”,
they envisage it covering those involved in terrorism or espionage or in taking up arms against British or allied forces. We will all have been impressed by the diligence, the terrier-like qualities and balance shown by the various reviewers who have held the post. I suspect that the current reviewer might undertake the work, whether he was asked to do so by legislation or not. Clearly, this issue is closely related to other legislation and to other steps which the Government might take in response to—or perhaps even before they need to respond to—a terrorism threat. If we are to have Clause 60, we need a clause such as this in order to provide for a review on a periodic basis, the provision of the review to the Secretary of State, and her laying it before Parliament. I beg to move.
My Lords, I have added my name to Amendment 79A on the role of the independent reviewer and I agree with everything that has been said by the noble Baroness, Lady Hamwee. I have tabled two further amendments in this group. Amendment 79C has the support of the noble Baronesses, Lady Lister of Burtersett and Lady Smith of Basildon, and the noble Lord, Lord Roberts of Llandudno. It would require the Secretary of State to set up a code giving guidance as to the practices to be followed in any case of deprivation of citizenship. Amendment 79D, which has the support of the noble Baroness, Lady Lister, and the noble Lord, Lord Roberts, would introduce a sunset clause, and I am hopeful that the noble Baroness, Lady Smith, may add her vocal support to the amendment.
There are real concerns about Clause 60, as we debated in the previous group of amendments. If we are to have Clause 60 at all, I think that we need all or some of these protective provisions—an annual review, a code of guidance and a sunset clause—to set out some criteria for the application of the clause and to ensure that Parliament can take an informed and periodic look at this matter in the light of the practical experience of the operation of the clause.
My Lords, I am pleased to support these amendments. I think that I have already said more than enough about Clause 60, but I could not help but notice that no one spoke in support of it other than the Minister, and so I see these amendments as a kind of absolute bottom line. If we are going to be saddled with Clause 60, I hope that the Government will see fit to accept these procedural process amendments as a kind of minimal response to the grave concerns that have been expressed across the Committee.
My Lords, my comments are equally brief. I have added my name to one of the amendments, and I think that the idea of an independent reviewer and a sunset clause are reasonable and worth further consideration by the Government. Like our amendment, they would provide greater oversight, which I would have thought all parties would welcome. Perhaps I may add one point. It may be possible that an existing independent reviewer could fulfil the role, and I think that we would all be willing to discuss how that could best be achieved.
My Lords, after the passion of the previous group of amendments, I find this a little easier to respond to. The noble Baroness, Lady Smith, has made the point that there is a pre-existing independent monitor, and indeed my noble friend Lady Hamwee referred to the role occupied by John Vine. His role was set up under the UK Borders Act 2007, and he is able to monitor and report on the efficacy and effectiveness of functions relating to immigration, asylum and nationality. That includes the effectiveness of decision-making on deprivation of British citizenship, so it exists already.
This is not an annual review process, and I think that that is probably one of the things we disagree on. With all his independent inspections, the chief inspector is permitted to examine only individual cases for the purpose or in the context of considering a general issue. But it illustrates that in addition to the judicial scrutiny of individual cases—I have explained that the power of appeal still exists—Parliament has already agreed an independent inspection regime which covers nationality and hence the deprivation of nationality.
Throughout the passage of the Bill, the Government have stressed the serious nature of the cases that will be considered under this new power. Clause 60 itself carefully limits the uses of the power to circumstances where an individual’s behaviour meets a new, higher threshold of being,
“seriously prejudicial to the vital interests of the United Kingdom”.
This will ensure that the courts subject the strength of the Government’s rationale for deprivation to close and anxious scrutiny in each and every case. In this case, I do not believe a new independent reviewer is necessary.
There has been a lot of discussion regarding the requirement to publish guidance and how individual cases will be considered, evidenced and decided. As I have said, deprivation is nothing new—it has gone on under this Government and previous Governments. Established practice exists, and guidance is published for fraud and deception cases, for example. Every case is different and will have its own case-specific facts. The core requirement on officials is to assess evidence and circumstances, consult colleagues across government and carefully weigh the evidence before making a recommendation to the Home Secretary. This is central to all cases. The Home Secretary herself reviews and personally signs off all deprivation decisions. Beyond this, there is little additional detail that would necessarily be appropriate, given that matters in cases that will fall under Clause 60 will be to do with national security. More importantly, in every case, the individual will be told the reasons for the decision and there will be a statutory right of appeal to the courts in each case.
I will address the bid for a sunset clause in this matter. The Government have a responsibility to protect the public and to respond to threats, and this clause is aimed at dangerous individuals who abuse their British citizenship and threaten the security of the UK. As I have emphasised, the power will be used only against those who pose such a threat. However, it is impossible to predict as and when these threats will emerge and I do not believe it would be appropriate therefore to time-limit the clause.
As I have said, I hope we have an opportunity to meet between now and Report, and this will no doubt be one of those matters which could be discussed at that stage. In the light of these points, I hope that the noble Baroness will agree to withdraw the amendment and that other noble Lords will not press theirs.
My Lords, I did not have in mind the Independent Chief Inspector of Borders and Immigration but the independent reviewer of terrorism legislation—I plagiarised the provisions in current legislation on terrorism for this clause—who I think would be the appropriate reviewer to undertake the work. I am not suggesting a new reviewer. This would fit very well with, and ought to be reviewed by, the same person who considers the application of terrorism legislation. However, I do think that there should be a review and statutory provision for it. I am a little puzzled as to why the Government might resist what, in the circumstances of Clause 60, is an extremely mild proposition, but perhaps that is something that we can discuss following this stage of the Bill. I beg leave to withdraw the amendment.
Amendment 79A withdrawn.
Amendment 79B had been withdrawn from the Marshalled List.
Amendments 79C and 79D not moved.
Clause 61 agreed.
Schedule 8: Embarkation checks
79E: Schedule 8, page 100, line 11, leave out from “(1)” to end of line 12 and insert—
“(a) after “immigration officer” insert “or designated person”;(b) after “lawfully” insert “and the basis of his entry including if applicable particulars of his visa”;(c) after sub-paragraph (1)(b) insert—“(ba) whether his immigration status has changed during his stay in the United Kingdom,””
My Lords, Schedule 8 provides for designated persons as well as immigration officers to undertake functions in connection with embarkation checks. The purpose of this amendment is not to question the designated persons but to seek, in a world where net immigration numbers and what individuals have been doing in this country before they leave it are so current, reassurance for the Committee. A section in the Immigration Act 1971 allows immigration officers who are dealing with embarkation to determine the identity of the individual, whether he entered the UK lawfully, whether he has complied with conditions of leave to enter or remain and whether his return to the UK is prohibited or restricted.
From time to time we have alluded to issues such as people coming here as students, then staying to undertake work. This may make the question about someone coming here as a student and then leaving when they leave not necessarily the right one to ask; the issues are a little more complicated than that. I am by no means proprietorial about the drafting and freely admit that it is probably rather clumsy; but assuming that the visa particulars are readily available to the immigration officer or designated person, I suggest that on exit from the UK there is a tie-up with these particulars and on whether the immigration status has changed during the stay here.
The broader question is whether the Government have given thought to whether the current powers are enough to marry up all the information with that which has been gained when the individual has come to the UK and whether they cover the issues that are a pretty hot topic on the question of net migration. I beg to move.
My Lords, this amendment has the effect of empowering the official examining a person embarking in the UK to establish what the basis of the embarking person’s entry to the UK was and the particulars of his visa if applicable. It also allows the official to establish whether the person’s immigration status changed during his stay in the UK.
The reasons for embarkation checks are to prevent offenders from fleeing abroad to escape justice and to identify those who were given limited leave to remain but failed to depart by the expiry of their leave. These reasons are wholly justifiable and we do not in any way question or dispute the necessity of embarkation checks; in fact we have called for embarkation checks as a means to verify that people leave the country when they are supposed to. We are already checking 90% of air passengers and 75% of all those leaving the country, and I am sure that my noble friend the Minister will be able to confirm that we are on course to reach 100% by some time next year. If he can be more precise about the date, I am sure your Lordships would like to have that information.
My noble friend has explained why we think it would be useful to record the particular additional information called for in this amendment. Bearing in mind the need to minimise the disruption to the movement of departing passengers, I believe that my noble friend is right in assuming that the particulars are readily available and that the information could be picked up from a routine passport scan, which would not require any other interaction between the passenger and the official.
The Home Office factsheet on embarkation checks says that the designated officials who will carry out the checks will be those working for carriers and port operators who are,
“already involved in outbound passenger processes”.
Will my noble friend the Minister confirm that, in general, all that will be involved is the scan of the passport and that only when this flags up a signal—for example, that the holder is wanted for a criminal offence or that he has overstayed his permitted leave to remain—would any further action by the official be required? I would be grateful if my noble friend could confirm my understanding of the position.
My Lords, I have just a couple of queries relating to Schedule 8 on “Embarkation checks”. This obviously requires co-operation and action from the airlines.
I was a bit concerned to receive an e-mail and a briefing note from the British Air Transport Association expressing its concerns about the schedule—not about the principle or what it seeks to do but the way it could be achieved. It says that it has worked very closely with the Government to ensure that e-Borders is in place—it has invested in that—but it is concerned that it will not be able to use passenger data for e-Borders as a new system is being brought in. It is seeking assurances from the Minister about the action that is being taken to work with the UK airlines, which of course have responsibility. It is concerned about longer boarding times and, most importantly, the risk at borders, because it feels that introducing the checks at border gates will require unqualified customer service staff to take on the role of an immigration officer without having the training to do so. It also feels that in some airports there are physical constraints because there is not sufficient or adequate infrastructure to support the efficient and timely carrying out of the checks. It also mentions issues around cost.
My understanding is that the British Air Transport Association has put a proposal to the Home Office on how to address this and how it can meet the requirements of the legislation without incurring additional costs, delays, constraints or compromises in security, which is another concern. I would be grateful if the noble Lord could address those points, and tell us what discussions are ongoing at the moment and when the Home Office expects to reach agreement on this. My fear is that if the association says that it physically cannot undertake measures in the Bill, a very serious situation then emerges.
My Lords, this is an opportunity to discuss this development, which forms part of the strategy and is widely supported.
I am very pleased to have the support of my noble friend Lord Avebury on this issue. He asked whether he was correct in his assumptions. I can tell him that he is: for the vast majority of individuals, the embarkation checks will be quite simple and straightforward and the existing officials employed by ports and airlines will be trained to do this task using very limited examination. The checks will allow those who currently have a role in outbound passenger processes to be designated and trained to perform the basic checks to establish a person’s identity, to collect the data necessary to identify threats or persons of interest and to confirm departure, so it is only those who are of interest who would be dealt with. It is not intended that designated persons should exercise any other powers of an immigration officer, such as powers of search or detention.
The exit checks will allow us more easily to identify those who have overstayed their visas and will help us improve measurements of migration so that we have a sounder basis for policy-making. The Government are confident that Clause 61 and Schedule 8 as drafted will provide the full range of powers necessary to conduct embarkation checks at the border and to collect all the information necessary to deliver in full an exit check capability.
The noble Baroness referred to a briefing that she had had. I have not seen that briefing but we are working closely with airlines to ensure that those checks can be conducted with minimum if any delay. We want to control departures in the same way as we control people coming into this country. We have introduced a new system for general aviation, the collaborative business portal, which allows operators to enter their data online. We do not plan to use the embarkation check powers in the Bill for general aviation and general maritime operators. We are working with them on a co-operative basis to enable them to come up with solutions that deliver our objectives, and those discussions are going very well.
I was asked by my noble friend whether we would achieve 100% coverage of exit checks. As I say, our target date is April 2015 and we are still sticking to that. We will have the arrangements in place to enable checks on those who leave the UK on scheduled commercial air, sea and rail services.
The noble Baroness, Lady Smith, asked whether this would lead to long delays at ports. We see the checks as being important, but our aim is to integrate them within the grain of existing processes in order to minimise the impact on passengers at ports. We are introducing the powers in the Bill so that we do not need to use immigration officers to do this work but, rather, can use existing staff, properly trained to deal with this particular process.
I think that that is the point I was making. One of the issues raised by air transport operators was that it would not be qualified immigration staff undertaking checks but rather customer service staff.
Also, I think the Minister said that there would be two dates. He said that all the exit checks would be in place by April 2015 but then said that the system would not be rolled out in every place. I am trying to understand whether this really makes our borders more secure, or whether the fact that unqualified customer service staff instead of immigration staff are undertaking checks will cause a problem.
Not at all. These are not customer service staff but designated persons who will have the authority to do the task of exit checks. They will be designated and trained to perform the basic checks required that will deliver the policy.
I do not think that I said that this would be rolled out. I said that we intended to have the checks in place by April 2015. That is the plan, and it is going according to plan. I hope that the Committee will accept that.
My Lords, will my noble friend comment as to whether this power will allow checks which might be appropriate in certain circumstances or whether the plan is to check the passport of every person leaving the UK? If I go to Düsseldorf, is British Airways in future going to be checking my immigration status? I think it would be helpful to have clarity as to the intention.
I am sorry, but I seek clarification on this. Does that mean that those airlines already compliant with providing passenger data through e-Borders will still have to have these additional checks undertaken at the point of leaving the country?
We are working with the airlines to find ways in which the existing advance passenger information can be incorporated into these checks. The advance passenger information provides only so much information. It is very useful and gives names, but it does not necessarily give the details of the individual’s passport or any visa requirements on that passport. That is a matter for examination, and the designated staff will be in a position to check that material at the time the person leaves the country.
My Lords, I am sure it would be helpful to understand this in a bit more detail because now you put the detail of your passport online when you order your ticket. The passport is not checked, except very summarily, when you get on to the flight. It really is an understanding of how this is going to happen. It may be that you are going to put more advance information online when you buy your ticket. I am very supportive in principle of the measures, but I think the logistics are very important.
The logistics are a matter for detailed planning with the airlines. What the Bill does—what this schedule provides for—is give those people who are responsible for dealing with this work the powers which at present they do not have. Advance passenger information already supports electronic texts on a large number of outward-bound journeys. API will be part of the exit checks solution along with other options, including checks conducted and data collected at the port of departure. These matters are being discussed so that this can be done efficiently, but API is a contributory element of this provision. As to the detail of how it is going to operate in every form of transport—every airport, railway station and port—I cannot possibly say at this stage. The powers of this Bill give those who will be challenged to perform this task the right to conduct those checks. Otherwise the checks would have to be done by immigration officers and we do not consider that this is an appropriate role for the Border Force.
Amendment 79E withdrawn.
Schedule 8 agreed.
House adjourned at 6.59 pm.