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Immigration Bill

Volume 769: debated on Tuesday 15 March 2016

Report (2nd Day) (Continued)

Amendment 113

Moved by

113: After Clause 58, insert the following new Clause—

“Exemption from deportationExemption from deportation for unaccompanied minors upon reaching the age of 18

After section 7(3) of the Immigration Act 1971 (exemption from deportation for certain existing residents) insert—“(3A) A person shall not be liable to deportation under section 3 upon reaching the age of 18 if the person entered the United Kingdom under the age of 18 as an unaccompanied minor.””

We are facing a problem that I think we realise exists: what happens to youngsters—unaccompanied asylum seekers or refugees—who came here some years previously? They have settled down here, they have become part of our communities; they speak our language, they go to our schools; they have imbibed the culture of the United Kingdom; and they have been very well cared for—and we are so grateful to the authorities and the foster homes which take this responsibility upon themselves. But then, when they reach 18 years of age, they lose that protection. This is an immense problem.

I remember meeting about half a dozen lads from Afghanistan who were in this category. They had reached 18 and were telling me what they had done when they were on the verge of turning 18. One had built a noose above his bed in case Border Force came and wanted to deport him—he knew what he wanted to do then. A couple of the others had pushed their wardrobes against the doors of their bedrooms to try to stop or hinder anyone from coming and deporting them. These are people who have been here, people who do not know their original country, and yet we are going to force them from here.

Last year about 250 18 year-olds were deported. Half of them were taken forcibly—they were physically taken and deported. Gosh, what sort of reputation do we have if we do these sorts of things? My grandchildren are not quite 18. These people are us, they are human beings, and yet we are doing this to them. What makes it even more incredible to me is that of those who appeal, half of them win their appeals against the prospect of unfair deportation. I ask the Minister to look at this and give us an assurance in the Bill that nobody aged 18 will be treated in this way. I beg to move.

My Lords, Amendment 114 in this group is in my name. I am grateful for the support of other noble Lords. The amendment seeks to ensure that a best interests assessment is obtained for any child separated from its parents as a result of an immigration appeal. It is not so very long ago, I remember, that in the light of failures in child protection a policy initiative was given the title Every Child Matters. Every child does matter, without exception.

Under Clause 59, the Secretary of State will have the power to remove the ability of a person to remain in the UK when appealing against an immigration decision. This simply extends provisions already contained in the Immigration Act 2014 which apply only to foreign national offenders. However, no analysis on the impact of children being separated from their parents as a result of the Immigration Act 2014 has been undertaken. That is the first thing to stress, yet the new Bill extends these provisions to all appeals relating to immigration claims, including those involving accompanied and unaccompanied children.

Recent research by the Children’s Commissioner has shown the serious long-term impact on a child of separation from a parent: it can undermine their developmental, behavioural and emotional well-being. There is a significant delay, currently of up to a year, in immigration appeals being listed so this separation from family or home in the event of certification would have significant consequences for any child. A year may seem to pass quickly when you reach the seniority of many of us in your Lordships’ House but for a child aged six or seven, a year’s development is very significant. In Committee, the Minister expressed the hope that in future,

“appeal processes in simple cases will not exceed six months and even in complex cases will not exceed 12 months ”.—[Official Report, 3/2/16; col. 1813.]

But there is no guarantee that this will be the case and even 12 months can be too long for a child removed from parents or school, or for unaccompanied young people who find themselves, as they are likely to do, without a support network in their country of origin—where they may have no family left at all.

Government Amendment 145 draws attention to the duty of the Home Secretary under Section 55 of the Borders, Citizenship and Immigration Act 2009,

“to safeguard and promote the welfare of children”,

with respect to immigration, asylum and enforcement functions. However, the experience of organisations such as the Refugee Children’s Consortium is that children’s best interests are not systematically and comprehensively assessed within immigration decision-making. No one has ever relied on this duty of the Home Secretary in any case and there is no clear means of implementing it. It seems no more than a pious aspiration. I am in favour of pious aspirations and the more pious, the better, but they need some means of implementation and checking. There needs to be independent oversight of the duty on the Home Office to ensure that the best interests of any child are adequately considered before any decision is made to certify any claim for out-of-country appeals. That is what Amendment 114 offers so straightforwardly.

We need to see all this within the context of cuts to legal aid. The Government have removed all legal aid for immigration cases, undermining the ability of children and families to put forward the necessary evidence and legal arguments to have their cases fairly determined. What is the result? The Home Office will be making decisions on poorly-prepared cases with inadequate evidence because children and families will not have had the benefit of legal advice. It means that the ability to appeal against decisions by the Home Office has never been more important.

We saw a stark example of the current weaknesses of Home Office decision-making just last April. The Court of Appeal upheld the decision by the Upper Tribunal requiring the Home Office to return a five year-old child to the UK with his mother after failing to consider properly his best interests before they were removed to Nigeria. The woman, who was undocumented, had claimed to be in the UK since 1991. She applied for asylum in 2010, saying that she feared destitution and discrimination as a single mother in Nigeria with no immediate family. Her asylum claim had been repeatedly rejected. At one point, she was admitted to a psychiatric unit with depression. Her son was put into foster care as she battled against attempts to send them both back to Nigeria. The foster carers who looked after the boy remained close to him. When the mother and child were removed from the UK, those foster carers paid for their accommodation and healthcare in Nigeria from their own savings because they were so concerned about what happened to them both. The judge ruled:

“In not taking into account the implications of”,

the mother’s “mental health” for the child,

“and the risk of that degenerating in the Nigerian context and the likely consequences of removal, the Secretary of State failed to have regard to”,

the child’s,

“best interests as a primary consideration”.

Such disregard for the best interests of a child could easily become even more commonplace as a result of the passage of this legislation. What was the impact of the already-existing duty of the Home Secretary to have concern for the best interests of the child in this case? Given that duty, what is the significance of government Amendment 145? What will be the means of giving it effect? Surely we can look at how to give this government amendment more substance between now and Third Reading, if for any reason Amendment 114 is not acceptable. How do we give each child a place and a voice within this process, as well as making sure that the details of any decision will be clearly set out? Surely, every child does still matter.

My Lords, I support my noble friend Lord Roberts of Llandudno, who reminds us of the moral obligations that we have to a child or someone who is not quite a child any longer in the eyes of the law, when in effect the state has been that child’s parent up to the age of 18.

I am glad that the right reverend Prelate went ahead of me, as he said much of what needs to be said. I find the “deport first, appeal later” policy—as it has come to be called—difficult to tackle because I dislike the whole thing so much and am very frustrated that we have to approach it crab-wise because of it being a manifesto commitment. However, this does not at all detract from the importance of recognising how children’s interests can properly be dealt with in the way that this amendment seeks to do.

The right reverend Prelate said that he was concerned about the Government’s Amendment 145. However, I oppose Amendment 145, as by saying that Section 55 applies, all it does is put in doubt the application of Section 55 in other circumstances unless it is said that Section 55 applies. That is nonsense. The noble and learned Lord will appreciate that that cannot be what is meant and I hope he will appreciate that there is a danger, however good the Government’s intentions, in trying to confirm the application of Section 55 to us in this way, although I do not wish to be bought off by that.

I think the right reverend Prelate said that the child’s “voice” needs be heard. That struck me very much in the helpful briefing from the Refugee Children’s Consortium, in which it says:

“Crucially, there is … no mechanism by which children’s own views are systematically”—

the word systematically is probably important—

“considered by the Home Office”.

I appreciate that the Minister is bound not to be able to accept this from the Dispatch Box, but the consortium has told us that,

“best interests assessments are rarely conducted in any meaningful way, if at all. The Home Office routinely takes as their start and end point that the children’s best interests are met by being with both parents. They rarely, if ever, consider the child’s current circumstances, their likely future circumstances, the child’s own views”—

as I said—

“the parents’ likely circumstances on return and how they will impact on the child before making a decision”.

It also tells us:

“There is also no evidence that the Home Office proactively seek to find out whether any of the children within a family liable for removal might have a right to British citizenship”.

For all those reasons, and the four pages of briefing which Ministers can see me dangling, I very much support Amendment 114.

I have some amendments in this group in my name and that of my noble friend Lord Paddick. Amendments 113A and 114A deal with the position if, having been deported, an appeal is successful. The individual will have been made to leave the UK only temporarily, as it will turn out, against his or her wishes. I understand that there is guidance in connection with deportation that consideration must be given to the Home Office paying for the journey back. I would say in parenthesis that regard must be had to the quality of the Home Office decision. I do not know whether the noble and learned Lord can tell the House how the quality is assessed: is it a matter of comments made by the tribunal? It also occurs to me that if an appellant is not legally represented, will he know whether to raise the issue of payment for return to this country? In any event, my amendments are not about deportation, they are about administrative removal. If the administrative removal is wrong, the Administration should bear the costs of return to the UK.

Amendment 113B would prevent the certification of cases of persons with the characteristics specified in the amendment, so that such a person could not be required to leave the UK while the appeal was pending. The Minister will recognise how that aligns with cases of people who are vulnerable—if not “particularly” vulnerable, to use the word in Amendment 86. They are children, care leavers, persons with mental illness or learning disabilities, people who have been trafficked or enslaved, people who have claims based on domestic violence or are overseas domestic workers. For reasons which we spent some time on when debating the previous group of amendments, Ministers will understand our concern to pay particular attention to the need not to expose people who have such characteristics to the possibility of further damage.

My Lords, I have added my name to Amendment 114 for two reasons. Proposed new subsections (4) to (6) seem to reflect all the experience of the practitioners on the ground with whom I have been in contact, but I was particularly keen on proposed new subsection (7), because the need for a written plan for the child resonates with the education, health and care plans which the Department of Health and the Department for Education require to be prepared for every child with speech, language and communication needs or special educational needs. So such a plan is already part of the structure for children in the United Kingdom.

I was particularly struck by a visit to a secure children’s home called Orchard Lodge, sadly now closed down, which was then run by Southwark council and provided particular help for traumatised children with mental health problems, many of whom were the very people covered by these amendments. They were immigration and asylum seekers who had suffered extraordinary trauma during the conditions that brought them to this country, and they needed help—but that help needed to be structured, co-ordinated and planned. Therefore, I particularly support the amendment tabled by the right reverend Prelate the Bishop of Norwich and hope very much that, in accepting it, which I hope that the Minister feels able to do, he will reflect on the model for the plans that he calls for.

My Lords, I speak very briefly in support of these amendments, which are very much animated by the spirit of Every Child Matters, as the right reverend Prelate says. It reminded me of some of the reports that the Joint Committee on Human Rights published when I was still a member, both on unaccompanied young children and on children’s rights. A theme that kept recurring was how often in government policy immigration concerns trump children’s best interests and rights. All these amendments are attempting to shift that balance back so that children’s best interests and children’s rights take centre stage; it does not say that nothing else matters, but they are given the due that they and children deserve.

As has been said, the Government have an amendment in this group regarding the welfare of children, which would state that the Secretary of State and any other person, as set out in Section 55 of the Borders, Citizenship and Immigration Act 2009, is subject to a duty regarding the welfare of children. The Government have put this amendment down following the debate on the welfare of children under the “deport first, appeal later” clauses in this Bill in Committee. The Government have repeatedly referred to the extension of the “deport first, appeal later” issue as a manifesto commitment. The amendment tabled by the right revered prelate the Bishop of Norwich states that, before a decision is taken to certify a human rights claim, the Secretary of State must obtain an individual best interests assessment in relation to any child whose human rights may be breached by the decision to certify with the assessment being carried out by a suitably qualified and independent professional.

The Government’s argument against Amendment 114 appears to be going to be—they have not yet put forward their case—that it is not necessary because the Secretary of State already has a statutory duty to take into account the welfare of a child under Section 55 of the Borders, Citizenship and Immigration Act 2009, a reference to which will now appear in the Bill. The issue that has been raised by the noble Baroness, Lady Hamwee, is to ask what exactly the duty is under Section 55 of that Act regarding the welfare of children. Is it a proactive duty, or is it a reactive duty? We have heard in the brief debate already this evening of cases in which the best interests of the child do not seem to have been taken into account by the Home Office through whatever the procedures are that it applies. I would be very grateful when the Government respond for it to be spelled out what the duty is under Section 55 of the 2009 Act. What does it actually require the Secretary of State to do, and what does it not require the Secretary of State to do? I ask that looking at what the Government said on this issue in Committee. Referring to the amendment that was down at the time, the Minister said:

“The amendment has been tabled to ensure that the best interests of any affected child are considered before a claim is certified so that an appeal must be exercised from overseas. One can quite understand what lies behind the desire for such an amendment but, however well intentioned, I suggest that it is unnecessary. It is unnecessary”—

that is the Government’s word—

“in law because Section 55 of the Borders, Citizenship and Immigration Act 2009, which the noble Baroness, Lady Hamwee, referred to, already imposes a clear statutory duty to consider the best interests of any child affected by a decision to certify”.

The Government then went on to say:

“It is unnecessary in practice because whenever a person concerned makes the Secretary of State aware that a child may be affected by her decision, the best interests of that child are a primary consideration in deciding whether to certify”.—[Official Report, 3/2/16; col. 1808.]

The keys words are,

“makes the Secretary of State aware”.

It does not say that the Secretary of State has a duty to find out. That is why I am asking the Government, when they respond, to say exactly what that duty under the 2009 Act—which they say makes Amendment 114 unnecessary—requires the Secretary of State to do. On the basis of what the Government said in Committee, it does not appear that they think that the Secretary of State has any responsibility for actually finding out the facts herself. The wording they used was:

“It is unnecessary … because whenever a person concerned makes the Secretary of State aware”.

Later on in that same debate, the noble and learned Lord, Lord Keen of Elie, said:

“Today the Secretary of State takes careful and proportionate views regarding the interests of children. Whether it is necessary to engage external agencies with regard to the interests of the child in a particular case will depend on the facts of that case. For example, if the Secretary of State is made aware that a social services engagement exists with a child, she will make further inquiries of the social services”.—[Official Report, 3/2/16; col. 1808.]

Once again, it is a question of the Secretary of State being made aware of the circumstances. That is why I come back to this point. I would like it spelled out what the Government think that duty is under Section 55 of the 2009 Act. It appears that the Government do not think that the Secretary of State, in making a decision, has any duty under Section 55 to find out what the situation is. Do not those advising the Secretary of State find out whether the best interests of a child are likely to be affected by a decision of the Secretary of State? From what the Minister said in Committee—and, frankly, from what has been said in the debate this evening—it appears that nobody proactively seeks to find out what the likely impact of a decision that the Secretary of State is going to take might be on a child.

If Amendment 114 is not necessary, can the Minister say whether there are any aspects called for under the terms of Amendment 114 which the Secretary of State would not undertake as part of her duty regarding the welfare of a child under Section 55 of the Borders, Citizenship and Immigration Act 2009, and, if so, what those aspects are? I would be extremely grateful if the Government would give some very clear answers to my questions.

My Lords, I am obliged to the right reverend Prelate and to the other noble Lords who have spoken in this debate. I begin by observing that the noble Lord, Lord Rosser, has very helpfully advanced matters by answering his own question. He identified what he termed “the key words”, and precisely so. The key words are,

“if the Secretary of State is made aware”,

or where someone,

“makes the Secretary of State aware”;

and, of course, it is largely for a parent or carer to do just that in the circumstances that pertain. Therefore that is where we stand, just as we did in Committee.

On Amendment 113, from the noble Lord, Lord Roberts of Llandudno, there is undoubtedly a generous spirit behind it in allowing any person who arrived in the United Kingdom as an unaccompanied child to be exempt from deportation once they reach the age of 18. However, it is necessary to bear in mind certain points. First, when you examine the figures with regard to the arrival of unaccompanied children who fail to qualify for refugee status, you find that the vast majority are aged 16 or over—16 or 17 years of age. Consequently, they have not spent the vast proportion of their life in the United Kingdom; indeed, they will have spent very little time in the United Kingdom by the time they reach the age of 18.

The difficulty is that the consequence of the amendment would be damaging for the legitimate immigration control which is required in these circumstances and for the deterrence of crime and the protection of the public. The amendment would prevent the deportation of any foreign national offender—regardless of the severity of the crime they had committed or the risk they posed to the British public—as well as those who would otherwise be liable to deportation simply because they had arrived in the United Kingdom as a minor and claimed asylum.

We are conscious of our history of offering protection to those in need and, clearly, no Government will seek to return an individual to a country where they face persecution or serious harm. However, we will deny asylum to those who are not refugees or who have committed serious crimes and are a danger to the public, and will seek to return them as soon as it is safe to do so. Some unaccompanied asylum-seeking children are genuine refugees and we are clearly committed to protecting them for as long as they need such protection, but a very large number are not. This amendment would take no account of the outcome of an asylum claim nor the criminality committed by an individual. It could also create a pull factor, encouraging more children to risk their lives on hazardous journeys and play into the hands of people smugglers and traffickers. For that reason, we do not consider that such an amendment would be appropriate.

I turn to the amendments which relate to Clause 59: the power to certify that an appeal against the refusal of a human rights claim must be brought from outside the United Kingdom, which is, as was noted, a manifesto commitment. In Committee in this House we undertook to reflect on putting in the Bill that a decision to certify under Clause 59 will be subject to a consideration of the best interests of the affected child. We have done so. Amendment 145 makes it explicit in the Bill that Section 55 of the Borders, Citizenship and Immigration Act 2009 applies to all the provisions of the Bill, including a decision to certify that an appeal against refusal of a human rights claim must be brought from outside the United Kingdom. In doing so, it preserves a fundamental principle of the way this power is to be applied—namely, the individual consideration of each case on its own facts. By contrast to the foregoing, Amendments 113A, 113B, 114 and 114A seek to impose requirements on the manner in which this power is to be applied. Such an approach would be inimical to the principle that to achieve the right outcome for certification under this power each case must be considered individually, while having regard to legal obligations and the relevant guidance.

Amendments 113A and 113B, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, would prevent the certification of claims made by persons with the characteristics specified. The result would be that they could not be required to leave the United Kingdom while their appeal was pending. While this amendment may be well intentioned, it does not deliver additional protection and has the detrimental effect of limiting the scope of Clause 59. The protection that the amendment seeks to deliver is inherent in Clause 59. The scope of the power in the clause is already circumscribed, as it cannot be used where to do so would cause serious irreversible harm or otherwise breach human rights.

These amendments would replace a case-by-case consideration sensitive to the nuances of individual circumstances with a blanket set of criteria. The result would be that the Secretary of State would be unable to certify claims in some cases, even where there would be no serious irreversible harm or breach of human rights as a result.

The Secretary of State gives careful and proportionate consideration to cases where children are involved, and we have brought forward an amendment to make that duty clear on the face of the Bill. Nevertheless, there are circumstances in which it may be appropriate to use this power where a human rights claim made by a child has been refused—for example, where a child is living in the United Kingdom with members of his wider family but his parents remain in his country of origin.

In respect of trafficking victims, I hope it is reassuring for noble Lords to note that this power will not apply to those who have made an asylum claim, as Clause 59 does not apply to asylum claims. Where, unusually, a trafficking victim makes a human rights claim, that claim can be certified only where no serious irreversible harm or other breach of human rights will result—namely, where a person will not face harm on return to their country of origin. It is right that in those cases it should be open to the Secretary of State to consider certification.

We can provide further reassurance in respect of those whose claim to be trafficked has yet to be determined. No negative decision will be made on any human rights claim until the trafficking claim has been determined. Therefore, any such decision, including any decision to certify, will be informed by the outcome of the trafficking consideration.

Amendment 114 seeks to prescribe the mechanism by which the best interests of a child must be considered by requiring a wide-ranging assessment of a long list of factors—I will not rehearse them all here—in relation to any child whose human rights may be breached by a decision to certify. Many of these factors may indeed be relevant in a particular case and will form part of a best-interests assessment by the Secretary of State. However, the current framework is for this to occur only where relevant to the individual circumstances of the case and not for every listed factor in every case to be considered in a blanket manner.

The amendment would require intrusive and potentially irrelevant investigations, even in cases where the carer or parent, best placed to inform the Secretary of State about the impact on their child, had not provided any information to suggest such an impact. We are concerned that this could have a negative impact on the children it seeks to protect. Indeed, the investigation could put a child in the position of feeling that they were to blame if the claim were certified, notwithstanding their evidence.

The amendment is simply disproportionate. It requires an independent investigation in every case, even though published guidance is clear that, where independent advice is necessary, appropriate and relevant, and it is not provided by the person affected, the Secretary of State can seek it. The amendment would also be unworkable in practice. It would require an assessment of factors which go far beyond the effect of the decision to certify the case and stray into the realms of a full care assessment.

The role of the Secretary of State in these decisions is very different from that of the courts in considering a child’s welfare in, for example, family proceedings under the Children Act, from which it appears to me that the list of proposed factors has been drawn.

The amendment may have unintended adverse consequences. It may allow unco-operative parents to frustrate a consideration of whether to certify by failing to provide information to the assessor. It is therefore, as I observed earlier, wholly disproportionate.

I turn, finally, to Amendment 114A, which would require successful appellants to be returned at public expense within 28 days of a successful appeal. This amendment proceeds on the basis that the Secretary of State’s original decision was always wrong when an appeal is allowed. That is a misconception. Appeals can be allowed for many reasons, including a change of circumstances or new evidence submitted at a late stage by the appellant. The Home Office makes an assessment on the basis of the proceedings in the appeal—for example, whether late or new evidence was provided by the appellant that the Home Office had not previously had an opportunity to consider, and on the basis of the appeal determination itself. Therefore, the analysis is fact-sensitive.

This amendment, however, would require the public purse to pay for the return of all individuals subject to certification who are successful on appeal, including foreign national offenders and those who have already received financial assistance to leave the United Kingdom through the facilitated returns scheme. Our guidance strikes a better balance, ensuring that factors such as an individual’s ability to pay for return or the reasons why the appeal was allowed are taken into account, and that the cost of return comes from the public purse only where necessary. We consider that this is a fair approach.

Imposing a requirement to return an individual within 28 days of a successful appeal takes no account of the practicalities outside the control of the Secretary of State that may make this impossible, such as the availability of travel documents or flights and the legal reality that the Secretary of State is entitled to seek leave to appeal against a determination that has gone against her, and is not required to permit entry to the United Kingdom while such an appeal is ongoing. In the light of these points, I hope that the noble Lord will agree to withdraw the amendment.

Before the Minister sits down, I have a question. I think I know the answer in the light of what he has said, but I would be grateful for confirmation. It is not quite the case that, as was said in Committee, the amendment moved then was unnecessary. What is clear from the Minister’s response is that the Government’s interpretation of the duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 is that there is no duty on the Secretary of State, him or herself, to seek to find out whether the best interests of a child will be affected by their decision. Is that the Government’s interpretation of that duty under Section 55 of the 2009 Act?

I wonder if I may be permitted to correct the noble Lord, Lord Rosser: it is the court’s interpretation of the obligation, as is found in the case of SS (Nigeria) in 2014. It is on the basis of that judicial interpretation of the obligation that the Secretary of State proceeds. I am obliged to the noble Lord for the question.

Before the Minister sits down, he referred to guidance with regard to payment for the return of an appellant following a successful appeal. The guidance that I referred to relates to deportation—inevitably, because that is the current position. Is the Minister saying that equivalent guidance is to be provided in the case of appellants in this situation?

I am not in a position to immediately answer that question but, if I may, I will write to the noble Baroness on that point.

I am grateful to the Minister for responding. His facts and figures are a wee bit at variance with those that I have, and I think that we need to explore this further. Therefore, tonight, I will withdraw this amendment, but I suggest that we come back to this subject very soon because so many refugee and voluntary organisations are very concerned about this deportation dating. I beg leave to withdraw the amendment.

Amendment 113 withdrawn.

Amendments 113A to 114A not moved.

Amendment 115 had been retabled as Amendment 116A.

Amendment 116

Moved by

116: After Clause 62, insert the following new Clause—

“Asylum support move-on period

Persons in receipt of asylum support shall cease to receive such support 40 days after receiving a biometric residence permit following the granting of—(a) refugee status;(b) humanitarian protection status;(c) discretionary leave status;(d) indefinite leave to remain; or(e) limited leave to remain for 30 months.”

My Lords, I thank the right reverend Prelate and the noble Lords who added their names to this amendment for their support. The noble Lord, Lord Alton, is not in his place because it is his birthday, and so I think he is allowed the evening off to celebrate with his family, much as we will miss him. I also want to express my support for Amendments 117 and 118.

The amendment concerns what is commonly known as the moving-on or grace period, during which an asylum seeker granted status continues to receive asylum support but after which it is expected that they will have sorted out mainstream financial support, employment and accommodation. The amendment would increase this period to 40 days.

I am grateful to the Minister and officials for the recent meeting that we had to discuss this matter and for the discussions that I believe officials have had both within government and with the British Red Cross, to which I am grateful for help with this amendment. As I explained in Committee, this is a problem that has for far too long created unnecessary hardship and heartache for those granted status. It is not the product of deliberate government policy, but a very unfortunate consequence of an inability of two government departments to sort it out. In Committee, I cited evidence presented recently to the Work and Pensions Select Committee, which called for an immediate joint investigation of the issue with the Home Office and recommended that the time allowed in the grace period be amended if necessary. I also cited a recent report from the British Red Cross and an earlier report from Freedom from Torture.

All the evidence shows, first, that asylum seekers are particularly vulnerable to destitution just at the point when they are granted refugee status or leave to remain, because it so often takes longer to move on than the allotted 28 days, after which asylum support is stopped, regardless of whether mainstream social security has started to be paid. Internal management statistics show that in 2015 the British Red Cross supported 9,138 primary service users and 4,130 dependants who were destitute. It questioned around 2,500 of them as to why they were destitute, and the largest group, a quarter, cited problems with moving on. This is a measure of the level of unnecessary destitution caused as a result of extremely vulnerable people being caught in a limbo between asylum support and mainstream support.

Secondly, it is clear from the evidence that it is not just the material impact but the psychological impact of destitution that should concern us, especially in the case of those who have suffered torture. They believe that they have reached the promised land of refugee status but instead are left without any support at a particularly vulnerable time—not grace but a form of purgatory. Just imagine how we would feel when the moment prayed for came about, but our life was actually made more difficult than it was already. Moreover, the Home Office itself has in the past emphasised the importance of the moving-on period for the longer-term integration of refugees yet, in trying to rush rather than move refugees on, the grace period serves to impede that integration.

In his response in Committee, the Minister referred to his letter of 21 January. However, that dealt with people without status, not those who had been granted it. He made the point, understandably—although I picked him up on it at the time—that it is not just a case of extending the time period but about making sure that people apply for those benefits promptly. He cited the BRC report which showed that only three—in fact, four—of the sample of 16 had applied within the first three weeks of being granted status. I accept that that is a legitimate point, and it is in no one’s interest, least of all that of the refugees, for a claim for benefits not to be made promptly. After all, asylum support is significantly lower than mainstream social security. However, we must not underestimate the difficulties for people new to the system if they do not have the support of an organisation or friends who understand it. As my noble friend Lord Judd, who is not in his place, pointed out in Committee, sometimes mental health problems or a state of confusion can make it an unrealistic proposition. The BRC study found that the majority of service users questioned in Birmingham did not even know that they had only 28 days to complete a benefits claim after getting status. Most people struggle to understand the paperwork that they are sent.

The BRC identified 23 factors at play affecting the speed with which a refugee is able to make the transition to mainstream support. In some cases, five to 10 of those factors could hold up progress. It is a process involving multiple stakeholders and documents—daunting at the best of times.

Even when a refugee makes an expeditious claim, there is no guarantee that they will receive a payment within 28 days. Indeed, it can often take considerably longer than that from the date of the claim, as the BRC study found and the DWP’s own research indicates. So while I agree that claiming in good time is part of the solution, it is not the whole of it. On the basis of the experience of refugee organisations, I suggest that a two-part solution is needed. First, there must be an improvement in procedures, including adequate advice and support to those granted status to ensure that they make a speedy claim. I would be grateful for an indication of what might have emerged from the discussions that officials have been having about how to improve those procedures. But that on its own is not sufficient, as can be seen, for example, from the experience of the deployment of a dedicated caseworker by the Holistic Integration Service in Scotland.

Secondly, this needs to be complemented by a legal right to continue receiving asylum support beyond the current 28 days. This amendment suggests 40 days, based on the experience of refugee organisations. Again understandably, in Committee the Minister expressed the fear that simply adding days might not be enough, and of course any time limit is to some extent arbitrary. But combined with improved procedures so that, to cite the Minister, people get the care they need when they need it and the system works effectively, the view on the ground is that this is a more realistic and appropriate time period. I chose a time limit because I assumed that it would be easier to administer than a case-by-case approach triggered by the receipt of mainstream social security, but I would not be averse to the latter if the Government preferred that, and it would of course be open to the Minister to bring forward an alternative amendment on those lines at Third Reading. One way or another, I believe that we have the opportunity finally to resolve this issue. It is an injustice born of oversight, not intent, but it is none the less cruel for that.

Just as I finished drafting what to say in the debate, I read ILPA’s briefing. It cites the case of EG, a little boy who starved to death during the moving-on period and whose mother died two days later. The serious case review identified the following national issue:

“Westminster Local Safeguarding Children Board should write to the National Asylum Support Service and the Department for Work and Pensions to express its concern about the adverse consequences on vulnerable children and the resulting additional pressure on local professional agencies which are triggered in the transitional period between the withdrawal of support by the National Asylum Support Agency and entitlement to benefits”.

That was dated April 2012; four years later, I am not sure that much has changed. Shockingly, according to Still Human Still Here, if anything, things have got worse. I apologise if that appears emotive, but I feel so strongly about this. It is not a party-political issue. None of the political parties would support a policy that deliberately created destitution during this period, yet none of them has done anything about it when in government. I appeal to the Minister to use the opportunity provided by this Bill to put right such an unnecessary wrong and ensure that the period after granting of refugee status can be a time of joy rather than one of destitution and psychological turmoil. I beg to move.

My Lords, I added my name to Amendment 116 largely as a result of past involvement with UN gateway resettlement programmes in Norwich for Congolese refugees. I discovered then how long it takes asylum seekers, once granted refugee status, to set themselves up so that they can live as citizens. The transition into work or even to mainstream benefits does not come at all quickly. Applying for national insurance numbers and biometric residence permits is slow going. Completing benefit application forms, and even getting hold of the right ones, is difficult because refugees are not always given the correct advice.

As the noble Baroness has just said, the possibility of getting what was most wanted—refugee status—and then finding that it is followed up by the removal of financial support and no accommodation is not so much an irony as a tragedy. We need a bigger window before asylum support is terminated. Starting the clock only when a biometric residence permit is obtained would inform the situation. I do not need to labour the point because it has already been very well put, but it is a terrible experience for refugees in a country to which they are immensely grateful to then experience the trauma of destitution when they have experienced so much trauma already. I warmly support this very straightforward amendment.

My Lords, I was unaware of this situation until earlier stages in the Bill. Like the right reverend Prelate, I do not need to stress the concern; the noble Baroness has done so very effectively. She is absolutely right that this should not be left in the too-difficult-bureaucratically tray. It is an appalling situation and one that I cannot believe any politician would wish on—I was going to say the recipients, but they are not the recipients. That is the whole problem.

My noble friend’s name has been left off, but I tabled Amendment 118 in this group, which is about the issue of vouchers and cash payment, relating to both Sections 95 and 95A. The amendment, I hope, responds to the Minister’s comments in Committee to a similar amendment. At the time he said:

“The legislation needs to be flexible enough”.—[Official Report, 3/2/16; col. 1831.]

He referred to the fact that support is sometimes provided in the form of accommodation or services.

My amendment would provide that, as it were, the default is cash support for reasons of dignity. I do not think that I need to spell all this out again. We have covered it previously, and to me it is entirely obvious that it is undignified to be given support other than in a form that you can choose to spend—to an extent, as obviously there are many essentials to cover, but you can make your own choices. That is fundamental to human dignity, but it is also a matter of practicality.

My noble friend Lord Roberts of Llandudno referred earlier to the shop that had been established, I think on the Park Royal industrial estate, where everything was on sale for 25p—then it was going to go up to 50p, and then £1. The response was that we should see whether the shop will take the card. That does not respond appropriately to the point.

My amendment would specifically provide an answer to the Minister’s points in Committee that support can be in the form of accommodation or services or, in exceptional circumstances, vouchers, which can be exchanged for goods and services, or a card entitling the holder to goods or services, but primarily in cash.

I wonder whether I can ask the Minister a question on one of his amendments in this group. Amendment 127 refers to,

“a person under the age of 18 who is unaccompanied and who … has leave to enter or remain … and is a person of a kind specified in regulations”.

I realise that that wording is also included in Clause 64(9) but I also realise that I have no idea what,

“a person of a kind specified in regulations”,

might be. I hope that when the Minister addresses that amendment he can explain what a person of a particular kind might be. What sort of kinds are we talking about?

Following what my noble friend Lady Hamwee said, I will add the word “choice”. If you have a card or a voucher you have to go to certain outlets—usually the middle-range outlets, not the cheaper shops or the bargain shops. When you get only £36 a week, you have to spend your money very carefully indeed. I enjoy cheese biscuits. I forget the name of the make now; they are cheddar biscuits. Perhaps other Members do as well. I can go to a shop in Llandudno and the marked price is £1.39. I buy them sometimes. If I go to a pound shop they are two for £1. There is a massive difference between what you can buy from a shop that has possibly only limited goods on sale and from one of the ordinary shops—I will not mention them; no publicity this evening.

We are denying people the choice and ability to look after themselves and their families in the best possible way. We spoke earlier of the best interests of the child. I suggest that the best interests of the child here is that the parent can use the money and the value that they have in the best possible way, and is not limited to a certain number of shops. It should be open if you have cash in your hand. You should not be embarrassed at the till because your card is overspent; you will know exactly what you have. I have said this many times to the Minister: we always seem to have a great friendly understanding, but I never got my way on store cards. I am sure that there is the possibility in the Bill to look after the best interest of the child and those who have this benefit. I urge the Minister to accept my noble friend Lady Hamwee’s amendment. It is in only exceptional circumstances that a card or voucher is used; usually it is a cash benefit that they can spend in whatever way they want.

Briefly, I am genuinely not clear what the problem is for the Government in accepting Amendment 116, which presumably would not involve large sums of money. As I understand it, it affects not people who have had their claims turned down and who have to leave the country, but people who receive a resident’s permit to remain in the country for differing reasons and differing periods of time. If it is the case that there is a gap between asylum support payments and mainstream payments, because matters are not all being dealt with within what is presumably the intended 28-day period, then, frankly, why not agree to the amendment? I hope that the Government will be able to give a helpful response to what, on the face of it, appears to be a pretty straightforward issue.

My Lords, I am grateful to the noble Baroness, Lady Lister, for moving her amendment and for maintaining pressure in this important area. She and the Red Cross have managed to identify a bureaucratic problem that we accept needs to be addressed.

In responding, I will place on record a few points. The first is my letter of 10 February, which is in the combined pack and set out my initial responses. I was also very grateful for the opportunity to meet—with the noble Baroness—officials. We talked through the reasons for the delays and the evidence. I know that that was something the officials found extremely helpful. It contributed to the response that I give now.

I thank the noble Baronesses, Lady Lister and Lady Hamwee, and the right reverend Prelate the Bishop of Norwich for bringing forward Amendment 116 concerning the transition off Home Office support of asylum seekers granted refugee status or other leave to remain. I agree with them on the importance of these arrangements, which we discussed at our meeting on 25 February. I also thank the British Red Cross for its excellent work in this area and for its advice ahead of this debate.

We allow a grace period of 28 days before Home Office asylum support ends in these cases. This is to provide time for the person to make other arrangements and move on from Home Office support. Many refugees have much to contribute to our economy as well as to our society, and work and integration go hand in hand. But some need support while they find work. I do not dispute that there is evidence—from the Department for Work and Pensions research in 2013 and the British Red Cross report of 2014; those two dates are relevant to the point I will come on to later—that some newly recognised refugees do not secure DWP benefits within 28 days. But the reasons for this are complex and the evidence does not show that the problem would be easily fixed simply by increasing the grace period to 40 days.

Our investigations into this show that there are two main reasons for delays. First, there is a lack of awareness among refugees of the need to apply for welfare benefits as soon as they are granted refugee status. Of the 16 people sampled in the Red Cross report, only three applied within the first three weeks of being granted status. That is a problem. Of course, they should apply for their biometric residence permit as soon as they get an indication, and that should take just a matter of days.

Help is on hand. I repeat that people are not left on their own with this. They are given advice and leaflets about the information and help that are available to them. Refugees can also seek help from the free telephone advice line run by Migrant Help—an excellent service that the Home Office funds. Migrant Help provides advice and support in building a new life in the UK, including help with housing and other issues. Refugees can also apply for integration loans. These can be used, for example, to pay a rent deposit or for essential domestic items or for work equipment. My point is that when we are identifying the problems, we must first make sure that people who are granted refugee status immediately understand what help is available to them and what they should do next. A new information leaflet for refugees was introduced in July 2015. In oral evidence in 2015 to the House of Commons Work and Pensions Committee session on benefits, the British Red Cross said the new leaflet provided “good guidance”. It supplements the advice and assistance available from Migrant Help, which I referred to.

Secondly, the DWP research identified occasions on which a lack of awareness among staff of the correct processes contributed to the problem. Updated guidance and instructions have been issued to DWP front-line staff to address this. We welcome the Work and Pensions Committee’s report on benefit delivery published on 21 December 2015, which recommends further work in this area. DWP will respond shortly to the report but intends to carry out an evaluation later this year of the impact of the improvements I have described.

The key point I make to the noble Baroness in assuring her that we take the concerns very seriously is that it is important that we have up-to-date evidence. I mentioned the reports from 2013 and 2014. We are now in 2016. Since those two dates, there has been a significant number of new initiatives and changes. We want to understand what the up-to-date periods of delay are.

The noble Baroness and others have otherwise made a strong and persuasive case for this amendment to which I have listened very carefully. The length of the grace period is set out in the regulations for Section 95 support. I can confirm that, if the further DWP evaluation which will be undertaken later this year—I have referred to that—shows that it is necessary to increase the length of the grace period consistently to enable newly recognised refugees to begin to receive the welfare benefits for which they are eligible before their Home Office support ends, we undertake to return to Parliament with a proposal to amend the regulations to reflect that. Immigration regulations can be amended at any point in time. We are not bound by primary legislation having to go through to do that. We will come back with amended regulations to reflect the evidence which we receive.

I thank the noble Lords, Lord Roberts of Llandudno and Lord Rosser, and the noble Baroness, Lady Hamwee, for their Amendment 117. We had another vigorous debate on Azure cards. I am sure that the Chief Whip—my noble friend Lord Taylor of Holbeach, who is with me on the Front Bench—will recall fielding questions from the noble Lord, Lord Roberts, who is assiduous and tenacious in speaking up for some of the most vulnerable people. We respect that. He raised issues in Committee which related to the types of outlets which can take the cards. We agreed to look into that and to respond. I have listened very carefully again today to the views of noble Lords. I also wrote to Peers on 10 February covering this matter in some detail, as I referred to.

It is important to be clear about the circumstances in which decisions on applications for Section 95A support will be made. The failed asylum seekers applying for this support will generally be doing so because they have received notice that they are no longer eligible for the asylum support that they will until that point have been receiving under Section 95 of the 1999 Act. The reason they will have received that notice is that the courts will have just agreed that they do not need our protection and have no lawful basis to remain here. There will therefore be no question that it is right that they should leave the UK as soon as they are able to do so. The only issue will then be whether there exists a genuine obstacle that now prevents their departure; and where there is, support under Section 95A will be made available for as long as the obstacle exists.

What is meant by a “genuine obstacle” will be set out in regulations which, under the government amendments in this group, will be subject to the affirmative procedure—that point was covered in one of our reports on the regulations—so they will be debated and approved by both Houses of Parliament before they come into effect. Your Lordships will therefore have an opportunity to examine in detail the basis on which support under Section 95A will be provided and how it will operate.

A “genuine obstacle” to departure will include, for example, where medical evidence shows that the person is unfit to travel, or where they have applied for, but not yet been issued with, a travel document. This will involve a straightforward assessment of matters of fact. We do not consider, therefore, that a right of appeal is necessary and the evidence supports this conclusion. I again thank the Asylum Support Appeals Project for its excellent work and its briefing for this debate. This again highlights how uncommon it is for an allowed appeal to concern whether there is a genuine obstacle to departure, still less at the point the person’s asylum appeal rights are exhausted. This is unsurprising. Of the 105 destitute failed asylum seekers granted support under Section 4 of the 1999 Act in 2015 because of medical reasons or pregnancy or because they were taking all reasonable steps to leave the UK, only six applied for this support within 21 days of exhausting their asylum appeal rights. I also remind the House that we are retaining—not removing—a right of appeal for the present circumstances in which support appeals by failed asylum seekers commonly arise.

Around 87% of asylum support appeals in the year to August 2015 were against the denial of Section 4 support, most commonly where a failed asylum seeker had lodged further submissions or intended to do so. Schedule 10 will repeal Section 4 and provide Section 95 support for those with outstanding further submissions on protection grounds, or who are granted permission to apply for judicial review in relation to their asylum claim. There will remain a right of appeal against a decision that a person does not qualify for Section 95 support. On such an important issue we should be guided by evidence rather than opinion, and the case for a right of appeal for Section 95A support is simply not supported by the evidence available to us.

I thank the noble Baroness, Lady Hamwee, for Amendment 118. As I said in Committee on 3 February, the support provided to failed asylum seekers under the new Section 95A of the 1999 Act will generally be the same as that under Section 95 for asylum seekers. Section 95 support normally includes a cash allowance. The relevant regulations provide that, as a general rule, a weekly cash allowance shall be provided to cover the person’s essential living needs. However, those regulations allow flexibility to provide support in other ways in individual cases if that is appropriate. As an example, in an emergency a supported person may need to be moved quickly from their current accommodation, and they might then be accommodated temporarily in full-board accommodation. It is not necessary in those circumstances to provide a cash allowance. We intend to make regulations relating to Section 95A support to make similar provision.

Government Amendments 119, 124 and 125 implement recommendations or take account of comments made by the Delegated Powers and Regulatory Reform Committee, for which we are grateful. I thank the committee again for the excellence of its advice on this Bill. The amendments will mean, in particular, that key details of the new system of Home Office and local authority support will require debate and approval by both Houses of Parliament before coming into effect.

Government Amendment 123 is a technical amendment, agreed with the Northern Ireland Executive, to update references in Schedule 3 to the Nationality, Immigration and Asylum Act 2002 to the Children (Northern Ireland) Order 1995, as amended.

Government Amendments 126 to 139 to Clauses 64, 67 and 68 extend the scope of the provisions for the transfer of unaccompanied migrant children from the care of one local authority to that of another, to cover those who arrive in the UK with refugee status as well as those applying for that status while they are here. The Government announced, on 28 January, their intention to work with the UNHCR to lead a new initiative to identify and resettle unaccompanied refugee children from conflict regions where it is in the best interests of the child. The amendments allow such children to be included in any transfer scheme introduced under this legislation, should voluntary arrangements not prove sufficient. The amendments also make clear that, should it prove necessary, one statutory transfer scheme is envisaged, with a number of local authorities included in it, rather than a series of schemes each run on a bilateral basis.

The noble Baroness asked about a “person of kind”, as specified in regulation, and the ability to extend the transfer provisions to refugee children resettled in the UK, as well as other unaccompanied migrant children, including unaccompanied asylum-seeking children. This is covered in other sections and my letter of 10 February. I hope that in the light of my answers and, in particular, that reassurance to the noble Baroness and the right reverend Prelate, the noble Baroness will feel able to withdraw her amendment at this stage, in the knowledge that she will be given an opportunity later this year to scrutinise the decision on the basis of the new evidence which will be accumulated to help us make that decision the right one.

My Lords, I am grateful to all noble Lords and the right reverend Prelate for their powerful support. I am also grateful to the Minister, because we have reached a fair compromise this evening and I appreciate that.

I think I got some clarification in those last statements but I just want to be clear that I got it right. The Minister will bring a Statement to both Houses, I guess, or certainly to this House, that will let us know the outcome even if the decision is not to change the regulations. So we will have a chance to debate the decision that is made, and it will be this year, I think he said. I would be grateful if that could be clarified. The Minister rightly paid tribute to the work of the British Red Cross in this area and there are other groups, such as the Refugee Council, which do a lot of work in this area. It would be very helpful if there could be a commitment that they could have some involvement in the discussions that lead up to the decision.

To use the precise words we have agreed—obviously, we have agreed this between different government departments so I need to stick rigidly to what was said—I can confirm that if the further DWP evaluation I have referred to shows that it is necessary to increase the length of the grace period to consistently enable newly recognised refugees to begin to receive welfare benefits for which they are eligible before their Home Office support ends, we will return to Parliament with a proposal to amend the regulations to that effect. I am sure we can have an ongoing dialogue. I know that there is a very good relationship with the Red Cross in these areas. Officials meet it regularly and I am sure they will be able to share the information that comes in as it is received.

Yes, I did actually say that it would probably be later this year. That would give us the necessary time to gather the new information on the basis of the new changes that have been introduced to our procedures to try to address the concerns that the noble Baroness has identified.

I thank the Minister. I am sorry to pursue this but this feels like my last opportunity for the moment. On the understanding that if the decision is not to change it, we will be told that in some way, because otherwise we do not have any way of interrogating it—

Just to clarify this point—because we are lip-reading from different ends of the Chamber here—I will write to the noble Baroness, setting out exactly how we will communicate this. But of course we will want to communicate how we are doing, not least to the DWP Select Committee, which has undertaken a report and the DWP is going to be responding to that shortly. I will set that out in a letter and I am sure it will be very clear.

I very much appreciate that. The noble Lord very kindly paid tribute to my tenacity on this issue. I am not going to give up. As he will expect, whatever the decision is, we will try to come back to it in some way. But I appreciate the fact that it sounds like finally someone has listened and heard. Certainly, from what Still Human Still Here put in its briefing to us, its assessment is that things have actually got worse, not better. But let us see what the evaluation shows. As I say, it would be helpful if there could be some involvement of the refugee organisations in that evaluation because they have on-the-ground knowledge.

On the basis that we will return to this in some form or other later in the year, I appreciate the response of the Minister and the work that officials have put into this. It is perhaps au revoir until we come back to this later in the year. I beg leave to withdraw the amendment.

Amendment 116 withdrawn.

Further consideration on Report adjourned.