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Immigration Bill

Volume 771: debated on Tuesday 12 April 2016

Third Reading

Amendment 1

Moved by

1: After Clause 43, insert the following new Clause—


(1) The Immigration Act 2014 is amended as follows.(2) After section 21(3) insert—“(3A) P may apply to the Secretary of State for written confirmation that the Secretary of State—(a) Has granted, or(b) Will grant,Permission to P in accordance with subsection (3).”

My Lords, I beg to move Amendment 1. It is unusual, of course, to have a substantive amendment at Third Reading, and I suspect that it is more unusual for that amendment to amend an Act that is already on the statute book. However, noble Lords will be aware that the amendment would not be before us if it had not got past the eagle eyes of the Public Bill Office. The amendment would iron out what seems to be a contradiction about the position as between a letter from the Minister, the noble Lord, Lord Bates, in response to a request under the Freedom of Information Act, which came from the Home Office.

Your Lordships will recall that this Bill extends provisions regarding any tenant’s right to rent, but those who are caught up in this situation are, not entirely, but very often, immigrants. On Report, the noble Baroness, Lady Lister, raised what she called the “Lord Avebury point”. I am very happy to take any opportunity to refer to my late friend Lord Avebury, whose record on these issues I strive to match but will never attain. The point, as she summarised it, is that asylum speakers whose presence is not illegal but who do not have documentary proof are unable to show landlords that they have a right to rent. The noble Lord, Lord Bates, said that he would write to the noble Baroness, and he did so, copying me. He wrote:

“It remains the case that migrants who do not understand whether they may qualify for permission to rent may contact the Home Office to establish whether this is the case”.

That was welcome, but earlier in the same month the Home Office, replying to a request under the Freedom of Information Act, said three times:

“there is no application route for permission to rent”.

It also said:

“It is not a question of a migrant making an application for permission to rent, but rather a status the Secretary of State may consider affording on a case by case basis”.

To explain the problem a little further, Home Office guidance envisages that permission to rent will be granted in cases such as: asylum seekers; refused asylum seekers; families co-operating with the Home Office’s family return processes; individuals on criminal or immigration bail; those within the Home Office voluntary departure process; victims of trafficking or slavery; and individuals with an outstanding out-of-time immigration application, in-country appeal or judicial review. It is also necessary to grant permission to rent where to fail to do so would violate an individual’s human rights.

However, the only way to seek confirmation that a discretionary right to rent has been granted is for the landlord, not the tenant, to request confirmation from the Home Office. During the passage of this Bill, we have debated the processes in place for that and the operation of the checking service. We have also debated the problems about the right-to-rent scheme, which include potential discrimination and landlords who, quite understandably, want to get on with renting their property and will let to those whose status is the most easily ascertained. A landlord may not tell a would-be tenant why he is refusing a tenancy, and the individual might not be aware that he has been denied permission to rent. There is no mechanism to allow an individual to clarify the position, correct any mistakes or give additional evidence. There is no obligation for landlords or agents to request a check from the Home Office. I am sure that almost all noble Lords know, if not personally, then through acquaintance with people who are seeking to rent property in a very difficult market, that the situation for every would-be tenant is emotional and a matter of considerable stress and anxiety and that many people have to go on looking without a good outcome.

The 2014 Act, which is the subject of the amendment, provides at Section 21(3) that a person,

“is to be treated as having a right to rent … if the Secretary of State has granted”,


“permission for the purposes of this Chapter to occupy premises under a residential tenancy agreement”.

My amendment would allow an application for confirmation that the Secretary of State has granted or will grant permission in accordance with the subsection that I have just read out. This is not an academic matter, as I have said; I believe that the noble Baroness, Lady Lister, will share with your Lordships the case of a family with two young children, living in this country legally, who, through circumstances that I suspect are not at all unusual, found that they could not prove their right to rent and therefore found themselves homeless, with their possessions in store and the family in limbo.

My amendment does not seem to be inconsistent with the response to the FOI request because, although I would like to, I am not seeking an application for permission to rent, nor would it be an application that would imply the whole process of going through seeking permission. It would simply be an application to find out whether the individual himself had, or was due to have, permission. I hope that we can clear this up because a lot of people will be affected by it. I beg to move.

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for tabling the amendment on behalf of us both. I was alerted to this issue by briefings at an earlier stage of the Bill from the JCWI and ILPA. As the noble Baroness said, the late and much missed Lord Avebury tried to resolve this issue during the passage of what became the 2014 Act, but to no avail. It falls to us to try to resolve it now.

I will not repeat the case in support of the amendment that has already been made so clearly by the noble Baroness. Instead, I draw your Lordships’ attention to a singular aspect of the permission-to-rent scheme that the amendment is designed to remedy. The UK has a strong tradition of upholding the rule of law. All of us can be sure in our interactions with the state that officials who make decisions that affect us are accountable to the law. Whether it is the person next door applying for planning permission, the imposition of a fine for speeding, the grant of a licence to serve alcoholic beverages or a local decision to cut council services, in every case the people affected are either directly notified of the decision or are able to access information about it that is available in the public domain. By informing people of the decisions that affect them, we ensure that government operates reasonably transparently. We ensure that power is exercised in a reasonably accountable way, and that any arbitrary or unlawful use of power is communicated directly to those that it affects. The system helps to ensure that Ministers and other public servants wield their considerable power within the law.

Here, though, we have a scheme under which the Home Secretary can decide whether or not a person—and, potentially, their entire family—is made homeless. I emphasise to noble Lords that this is no exaggeration. To take the example that the noble Baroness referred to, we have been made aware of the case of a man with a wife and two young children who have every right to be in this country and possess the right to rent but, because he does not have the paperwork to evidence that, he is unable to find housing for his family. They have come to the end of a tenancy and have now been forced, as a family of four, to live with relatives while the Home Office processes his paperwork.

The right-to-rent scheme has a huge impact on individuals who are caught up in it. But, despite the importance that the Home Secretary’s decision makes to an individual’s life in future, there is no right to be informed of that decision and of the grounds on which the decision was made.

The Government will tell my landlord whether or not I have permission to rent and therefore whether or not I might have a home to go to come tomorrow, but they will not tell me. This cannot be tenable in a country that operates under the transparent rule of law. People have a right to know whether they will be entitled to rent accommodation. Moreover, as the Commissioner for Human Rights of the Council of Europe stated in his recent memorandum on the human rights of asylum seekers and immigrants in the UK, the right to adequate housing applies to everyone. Ensuring that right is essential to the inherent dignity of every person, irrespective of their legal or immigration status.

A simple administrative reform can resolve this issue, which, as I have said, has important human rights implications. I urge the Minister either to accept the recommendation or to make a clear commitment to sort this out once and for all.

I, too, have received a briefing on the issue that has been raised, and I certainly do not wish to reiterate the points that have been so ably put. There seems to be a strong argument for at least clarifying the situation—I think that that is what is being asked for—and ensuring that we do not end up with people being made homeless as a result. I very much hope that in his response the Minister will be able to provide that clarification—and an acceptable clarification as well.

My Lords, Amendment 1, tabled by the noble Baroness, Lady Hamwee, would, as she explained, provide that a person disqualified by virtue of their immigration status may apply to the Secretary of State for written confirmation that permission to rent has been or will be granted to them. The amendment would amend the Immigration Act 2014, which introduced the right-to-rent scheme. It would work in conjunction with the existing provision, which states that a person who is otherwise disqualified from renting premises as a result of their immigration status is to be treated as having a right to rent where the Secretary of State has granted them permission to occupy premises under a residential tenancy agreement.

I hope that I can persuade the noble Baroness that the amendment is unnecessary and potentially even a step backwards. The Secretary of State is already able to grant permission to rent to people who are otherwise disqualified from renting. This may include migrants without leave who have sought asylum, families with minor children who are in the family returns process or those who face a genuine obstacle to leaving the UK. A migrant may obtain confirmation that they will be afforded such permission by contacting the Home Office, and all a landlord need do then is to contact the Home Office landlords’ checking service with the migrant’s Home Office reference number to confirm that they may rent to that migrant. Following that process will give the landlord a statutory excuse from any civil penalty under the right-to-rent scheme.

Very importantly, this system allows for a swift process, without the need to require a migrant to make a formal application or for them to await written confirmation through the post that they may rent. Our experience since the right-to-rent scheme was introduced on 1 December 2014 is that this process works well. For those reasons, I invite the noble Baroness to withdraw her amendment.

Incidentally, there is no inconsistency between the FoI response and the letter from my noble friend Lord Bates. As I explained, a migrant may already contact the Home Office in order to establish whether they will be granted permission to rent. Existing arrangements are straightforward and work well. I should also mention that the Home Office is in the process of revising its published guidance in response to concerns raised during previous debates. I have no doubt that it will factor in the points made in this debate as well. Once that is done, the guidance will set out even more clearly how a migrant may contact the Home Office. But I suggest that requiring that they make a formal application and then have to await written confirmation may lead to unnecessary delays and in fact would serve no useful purpose.

My Lords, I wish that I were persuaded. The letter from the noble Lord, Lord Bates, said that migrants,

“may contact the Home Office to establish whether this is the case”.

The clear implication there is that the migrant himself may establish the position, not ask the Home Office to make sure that, if and when a landlord inquires, the landlord is given that information.

Of course, I am aware of the landlord’s statutory excuse. I do not want to be too harsh, but I wonder whether the person in the Home Office who has been drafting this has had any recent experience of trying to rent a property. Not that long ago, on the question of the rollout of the 2014 Act, two or three Members of this House explained very clearly that as landlords they, and indeed most landlords, would want to get on with letting and not have gaps in that letting. The information that I and other noble Lords have received is not that the situation is working well—that is not the position. I am glad to hear that there has been some revision of procedures, but it seems to me that by denying that there is a problem, there is denial around looking at how to solve that problem.

It seems to me that this is not considered a big deal. Perhaps I can simply urge the Minister to urge the Home Office to take this as a very serious concern. If there is a different way of assisting tenants—and my goodness, this House is spending a lot of time talking about the housing crisis at the moment—and making the whole process that much easier, avoiding the concerns about discrimination that we have debated in this context at some length, then I urge him to do that. I am clearly not going to make any progress on this now, but I will not let it go: I will keep asking questions about it.

My Lords, I am happy to give the necessary undertaking to the noble Baroness. Indeed, I am sure she will have gathered from what I said that the whole purpose of the scheme we now have is to have a straightforward and rapid process for people to follow, rather than a more labyrinthine paper-based process. Clearly, the information she has received contradicts, at least in part, the information that I have had about how well the scheme works. I will of course ensure that Home Office officials look at any evidence she has which may cast into doubt the efficient working of the scheme.

My Lords, I think the first piece of evidence will be the case to which the noble Baroness and I have referred. I am grateful for that undertaking and beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 45: Powers to carry out searches relating to driving licences

Amendment 2

Moved by

2: Clause 45, page 37, line 39, leave out “of the Environment” and insert “for Infrastructure”

My Lords, I beg to move Amendment 2 and will speak to Amendments 3 to 5 inclusive. These amendments are technical in nature and are necessary to reflect a planned reorganisation of departmental functions in Northern Ireland. Clause 45 as drafted makes reference to the Department of the Environment, as this is the department responsible for issuing driving licences in Northern Ireland. However, this department is to be dissolved and its functions related to driving licences will be transferred to a new department: the Department for Infrastructure. These government amendments simply take account of this planned change.

Amendment 2 agreed.

Amendments 3 to 5

Moved by

3: Clause 45, page 38, line 21, leave out “of the Environment” and insert “for Infrastructure”

4: Clause 45, page 38, line 30, leave out “of the Environment” and insert “for Infrastructure”

5: Clause 45, page 38, line 40, at end insert—

“( ) In the period (if any) between the coming into force of subsection (2) and the coming into force of the Departments Act (Northern Ireland) 2016, references to the Department for Infrastructure for Northern Ireland in paragraph 25CC(3)(b), (8) and (9)(b) of Schedule 2 to the Immigration Act 1971 (as inserted by subsection (2)) are to be read as references to the Department of the Environment for Northern Ireland.”

Amendments 3 to 5 agreed.

Clause 62: Guidance on detention of vulnerable persons

Amendment 6

Moved by

6: Clause 62, page 58, line 37, at end insert—

“( ) No person whom the Secretary of State knows, or could reasonably be expected to know, is pregnant shall be detained.”

My Lords, Amendment 6 would put into law the recommendation of the Shaw review into the welfare in detention of vulnerable persons, commissioned by the Home Office, that the current presumptive exclusion from detention for pregnant women should be replaced with an absolute exclusion. On Report, the noble and learned Lord, Lord Keen of Elie, twice stated that the Government would reflect on the matter by Third Reading. However, he also made it clear that the Government did not consider it appropriate for there to be an absolute rule and gave the example of an irregular migrant—I deliberately do not repeat the term “illegal”, in line with the recent recommendation of the Council of Europe’s Commissioner for Human Rights—who arrives at an airport and can be returned almost immediately. Six days later, the noble and learned Lord sent a detailed letter to me and the noble Baroness, Lady Hamwee, in which, among other things, he addressed the specific questions that I had raised about the new guidance on the detention of pregnant women. I am grateful to him for that, in particular for his agreement to share a draft of the new operational guidance with detention-related organisations such as Women for Refugee Women, to which I pay tribute for its tireless work on behalf of women in detention.

However, on the underlying question of whether pregnant women should be detained at all, the noble and learned Lord in effect repeated what he said on Report, and I did not see any evidence of the promised further reflection. I had assumed that there would be a further statement giving the Government’s formal response to Shaw’s recommendation, but when none had appeared by yesterday, I realised that it was not to be and therefore thought it important that your Lordships should have the opportunity to consider this question, which inevitably got rather lost in the debates about the wider question of time limits. I apologise that, as a result, the amendment was tabled at the very last minute.

Stephen Shaw was clearly aware of the issue of pregnant women who might not otherwise be returned quickly to their country when appropriate to do so. Nevertheless, he concluded:

“I believe that the Home Office should acknowledge the fact that, in the vast majority of cases, the detention of pregnant women does not result in their removal. In practice, pregnant women are very rarely removed from the country, except voluntarily”.

He therefore recommended unequivocally that the presumptive exclusion from detention should be replaced with an absolute exclusion. In doing so, he cited evidence from the Royal College of Midwives, among others, which he said demonstrated the,

“incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.

In a witness statement to the High Court, the director for midwifery at the RCM spelled out the medical reasons why detention is completely inappropriate, particularly for a group of pregnant women with significant or complex health and psychosocial problems in need of higher levels of care than the general population. I here call on the Minister to arrange for a discussion of the issues raised by the detention of pregnant women with the RCM, Medical Justice—which has produced a damning research report on the issue, endorsed by the Royal College of Obstetricians and Gynaecologists—Women for Refugee Women and organisations working with those who have suffered torture.

Stephen Shaw stands by his recommendation; I heard him speak recently and eloquently in support of it. He spoke of detention’s “undoubted damage to mothers and unborn babies” at a meeting in Parliament hosted by Caroline Spelman MP, who together with me, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Ramsbotham—who I do not believe is in his place—were members of the parliamentary inquiry into detention which recommended that pregnant women should never be detained for immigration purposes. That inquiry’s recommendations were endorsed by a Motion in the Commons last September. In his address, Mr Shaw drew attention to the Prime Minister’s prisons speech earlier this year, in which he expressed particular concern about the position of mothers and babies in prison.

The argument that the absolute exclusion recommended by Shaw would tie the Government’s hands inappropriately might appear reasonable. The problem is that, in effect, it means no real change from the status quo so roundly criticised by Shaw and others, including HM Inspectorate of Prisons, which told Shaw that there is little to suggest that pregnant women are being detained only in exceptional circumstances, as is supposed to be.

Current Home Office policy already states that the only exception to the general rule that pregnant women should not be detained is when removal is imminent and medical advice does not suggest that the woman concerned will go into labour before her removal date. In spite of this clear policy presumption against detention, in 2014, 99 pregnant women were detained and, in 2015, 69. Of the 99 pregnant women detained in Yarl’s Wood during 2014, 30—that is nearly one-third—were held for between one and three months; four for three to six months; and only nine were deported from the UK. I understand that there is a pregnant woman who has been there for just over two months at present.

I ask the noble and learned Lord to explain what additional safeguards the new approach brings. How can he reassure noble Lords that the new policy will mean that pregnant women are detained in only the most exceptional circumstances when the current policy is already supposed to ensure that? I know that the Home Office believes that the new gatekeeping team to be introduced as part of the adults-at-risk approach will introduce a degree of objectivity into detention decision-making and so protect against inappropriate use of detention. However, given that this team will still sit within the Home Office—albeit in a different management chain from those making the decisions—the oversight it provides will clearly fall short of the independent element for detention decision-making that the Shaw review recommended the Home Office should consider.

Returning to the example of the pregnant woman who arrived at the airport with no right of entry, it is the only example we have been given of where an absolute exclusion would cause a problem. So it should be, because it is the only exception that exists at present. I have not seen any evidence as to how often this occurs at present. The fact that nine out of 10 pregnant women held in detention in 2014 were subsequently released back into the community rather than deported suggests that it is rare. ILPA makes the point that if a pregnant woman claims asylum she cannot be returned until her claim is determined in any case.

As Women for Refugee Women argue, refusing to accept Shaw’s clear recommendation of an absolute exclusion from detention on the basis of what would appear to be a small number of cases each year where swift removal might be possible, and when there is clear evidence that allowing decision-makers discretion results in significant numbers of pregnant women being detained in circumstances that are far from exceptional—just one pregnant women being detained when she should not be is one too many—is not sensible, effective or humane policy-making. I hope that even at this late stage the noble and learned Lord will accept Stephen Shaw’s recommendation, which has support across the political spectrum and from a wide range of civil society groups, none of which have been convinced by the Government’s argument against doing so. I beg to move.

My Lords, I should like to support the amendment moved so well by the noble Baroness, Lady Lister. I raised this issue in Committee, and then my noble friend Lord Hylton and I took the trouble to go to Yarl’s Wood where we asked questions about the number of pregnant women who had been detained there in the past or might currently be detained. I share the view of the noble Lord, Lord Bates, who did such wonderful work on this Bill in its earlier stages. He commented on a Channel 4 investigation into Yarl’s Wood, which was shown in March 2015, where staff members called the women being held there “animals” and “beasties”. Having watched the programme, the noble Lord said to the House:

“I watched that documentary on Channel 4, and quite frankly I was sickened”.—[Official Report, 28/1/15; col. 103.]

Having been to Yarl’s Wood, I was able to say to the House that many of the staff we met had learned the lessons of that experience, and certainly my noble friend and I were impressed by many of the standards that we saw, but nevertheless we could not be convinced that it could ever be right, as the noble Baroness has just said, to have even one pregnant woman detained in those circumstances.

The Royal College of Midwives has said that:

“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.

In the review referred to by the noble Baroness, the former Prisons and Probation Ombudsman for England, Stephen Shaw, says this:

“that detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children … I take … to be a statement of the obvious”.

Alongside that, of course, there are long-standing concerns about the conditions in Yarl’s Wood. The Chief Inspector of Prisons has called it a “place of national concern”. Although I have tried, I hope fairly, to say that conditions have undoubtedly improved, nevertheless it is not a place where pregnant women should be.

The briefing material referred to by the noble Baroness from the organisation Women for Refugee Women poses the question that the Government frequently ask in these circumstances:

“If the government said they were going to stop detaining pregnant women, wouldn’t women lie and say they were pregnant—or get pregnant deliberately—just to avoid detention? And wouldn’t women abscond if they weren’t detained?”.

I agree with the response:

“Establishing if a woman is pregnant or not is very straightforward: she simply needs to take a pregnancy test! The idea that women would get pregnant as a way of avoiding detention is unfounded and based on sexist stereotypes about women and the way they behave”.

To illustrate the strength of that argument, which I agree with, it is perhaps worth mentioning to noble Lords the story of one woman, Priya:

“Priya was trafficked to the UK and forced into prostitution. She has been detained in Yarl’s Wood twice; the second time she was locked up, she was 20 weeks pregnant, and was held in Yarl’s Wood for seven weeks before being released back into the community”.

Picking up her story, she says this:

“I was released after three months in detention, and fell pregnant by my partner, but then I was detained again. Although I had a written report from an expert, the Home Office did not believe that I was trafficked, so my claim was refused and I found myself back in detention. This time around I was in Yarl’s Wood for about seven weeks, and I was 20 weeks pregnant when I arrived.

I only had one hospital appointment while I was there, for my 20 week scan, and even then I was escorted by officers who took me 40 minutes late for my appointment. I felt frustrated that I wasn’t able to speak to the midwife after my scan because there was no time. The officers just took me straight back to Yarl’s Wood instead”.

I will not read the entire testimony to the House, but let me pull out two more sentences:

“The first time I was detained in Yarl’s Wood, I was on medication for sleeping and depression, and I took an overdose because I felt so hopeless … I couldn’t eat the food in the canteen; that made me sick too. A lot of the time I could only really manage milk. It was too far for my partner to visit and, as an asylum seeker as well, he couldn’t afford the travel, but we spoke on the phone every day. I’ve been released now but I still feel depressed”.

Levels of depression in Yarl’s Wood and incidents of self-harm have been very high indeed. The prisons inspectorate report in 2015 found that more than half of women who were detained there felt depressed or suicidal when they first arrived, and that there had been 72 incidents of self-harm in the previous six months —a huge rise from the previous inspection. Surely these are circumstances in which we should never put someone who is pregnant.

I also make the point, which is made in the briefing material, that it costs around £40,000 a year to keep someone in those circumstances. As the noble Baroness has already told us, of the 99 pregnant women detained in Yarl’s Wood during 2014, just under a third were held for between one and three months and four were held for between three and six months. Detention of people who will be released back into the community anyway to continue with their claims serves no purpose at all and is just an extremely expensive and wasteful business.

I shall end, if I may, in supporting this amendment, by returning to the effects not just on the women who are held but on their unborn children. Some years ago, I chaired an inquiry here with the late Lord Rawlinson of Ewell looking into the effects during pregnancy of experiences that the unborn child can have. Among those who gave evidence was the late, eminent psychiatrist Dr Kenneth McCall, a well-known author on these subjects. He made the point that a mother who is happy during pregnancy will project those feelings to the unborn child living within her body but that the reverse is also true. I vividly recall Professor McCall giving us an example of a pregnant mother caught in a fire in her home. Although she was saved by escaping in a pretty traumatic way from the blazing building, the child who was subsequently born, but not knowing anything about that experience, had throughout his life, until the psychiatrist helped to bring out the history and deal with it, an aversion to fire in every way. It was the experience in the womb.

On a more positive note, the great violinist Yehudi Menuhin said that he learned his love of music in the womb from his parents. Dr Henry Truby, an emeritus professor of paediatrics and linguistics, says that from 24 weeks the child moves in rhythm to the mother’s speech. Babies’ preferences for stories and music are first heard in the womb. I shall not go on at length, but we all know that these things are true. Therefore, do we want to subject women who are pregnant to these kinds of experiences knowing what the traumatic consequences could be, not just for the women but for their children as well?

My Lords, I rise briefly to support this amendment. Before doing so, I highlight the fact that, following last year’s Maternal Mental Health Alliance report which highlighted the serious concerns about perinatal mental health, the Government made a very strong response. I think it was the noble Earl, Lord Howe, who did such good work in terms of ensuring that more mother and baby units across the country have access to the right mental health professionals to support mothers through that difficult time.

In the past, we had whole families for several months at Yarl’s Wood. Thanks to the important work of the coalition Government—the Conservative and Lib Dem Government—we removed those families. If they were detained, it was for very short periods of time. The Government recognise the principle that this is something that we need to be careful of, and it was good to hear on Report the careful and conscientious reply of the noble Lord, Lord Bates. However, it is disappointing that there is this loophole and an area that still needs to be covered. It seems to me to be so important. Looking at the Maternal Mental Health Alliance report, speaking to mothers who have experienced postnatal depression and depression during their pregnancy and having visited Yarl’s Wood three times myself over the years and spoken to mothers there, I know that, whatever the rights and wrongs of their situation, they are often very distressed and worried about being returned, whether they have rights to remain here or not. To have mothers who are pregnant in that situation is very undesirable.

As the noble Baroness said, there is no evidence that one returns mothers in these circumstances by detaining them. What we have found over time is that it is much more effective to build a relationship and provide services so that they can be returned in a good way. I hope that the Minister will respond to the concerns raised by this amendment.

My Lords, I, too, strongly support this amendment. I will speak briefly because much of what I wanted to say has already been said, and said very eloquently.

This is enormously important. As many noble Lords know, we run a drop-in for asylum-seeker families at my synagogue. In talking to some of the women, many of them pregnant, who visit with their small children, one thing that comes out time and time again is how they worry that the situation in which they are living—they are not detained—is so insecure that some of that insecurity may be transmitted to their unborn children. Of course, we know a great deal now about the transmission of anxiety and trauma to unborn children. If we extrapolate from that and from those women talking about it to women detained for what seem to be not very good reasons, it is really important that we have an absolute exclusion on pregnant women being detained. I hope that people will look at the evidence given by the Royal College of Midwives. That made it absolutely clear that unborn children may well be traumatised by the experience. I do not believe that we in this House would wish to take responsibility for that.

My Lords, from these Benches I support this amendment very warmly. In the previous stage of the Bill, as the noble Baroness, Lady Lister, said, we had an amendment dealing with vulnerable people but it was debated alongside and really overshadowed by the amendment on a time limit to detention. The amendment provided that detention should take place only in exceptional circumstances determined by the First-tier Tribunal.

After the amendment was tabled, I was quite embarrassed by the opposition to or considerable doubts about it expressed by a number of organisations for which I have the greatest respect. They told me that we had got it wrong and that we should not provide for any exceptional circumstances in the case of pregnant women. I explained to them that the amendment was expressed as it was because we were trying to approach the Government with an offer of compromise. We hoped that the Government would meet us halfway by agreeing to not a complete exception but the one we expressed in that amendment. The list of vulnerable people was taken from Stephen Shaw’s report, in which—no ifs, no buts—pregnancy means vulnerability. As the noble Baroness said, and I will see if I can get it out without tripping over the word, he spoke of the,

“incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.

His Recommendation 10 was that they should be excluded.

The Government have added what is now Clause 62 to the Bill and there will be guidance; I acknowledge that that will come to Parliament. However, it will be through the negative procedure, and this is another of those examples where we can talk to our hearts’ content but will not be able to alter what is proposed. I was worried when I saw that new clause in the last stage and I worry now about the expression “particularly vulnerable”. I say again: there should be no ifs, no buts.

The Government proposed the adults-at-risk approach that has been referred to. I thank the Minister for his letter, in which he describes the Government’s concern about allowing all pregnant women access to the UK regardless of their immigration status, and therefore access to maternity services. The noble Earl will recall the debates that led up to the health charge being imposed—I suppose it is two years ago now—and that was one of the concerns which was expressed. We now have the health charge.

The letter from the Minister, the noble and learned Lord, Lord Keen, explained:

“The higher the level of risk (and pregnant women will be regarded as being at the highest level of risk), the less likely it is that an individual will be detained”.

He added that the Government’s view,

“is that the best approach is a considered, case by case one which is represented by the adults at risk policy”.

I find it difficult to reconcile the two parts of that—that this is the “highest level of risk” but that there will be a “considered, case by case” approach. I do not think that the Minister can be surprised at the anxiety expressed by the very considerable number of well-respected organisations which are anxious about the policy given their experience of the current policy.

The noble Baroness referred to the all-party group inquiry, of which she and I were members. I turned it up this morning to find the comments that we made then about pregnant women. They included the evidence of Hindpal Singh Bhui, a team inspector at HM Prisons Inspectorate, who said that,

“pregnant women are only meant to be detained in the most exceptional circumstances. And again, we look for evidence of this”.

Of course, I am talking about the historical position. The inspector continued:

“And on the last couple of occasions that we’ve looked, we haven’t found those exceptional circumstances in the paperwork to justify their detention in the first place”.

Our report went on to say:

“We were also told of pregnant women being forced to travel long distances, sometimes over several days, when initially being detained, and failures in receiving test results and obstetric records. In one case, we were told that an immigration interview was prioritised over a 20-week … scan”.

The report continued:

“We are disappointed that the Home Office does not appear to be complying with its own policy of only detaining pregnant women in exceptional circumstances. We recommend that pregnant women are never detained for immigration purposes”.

I see no reason to depart from that but every reason to support it and the amendment.

I apologise in advance for the fact that my contribution will contain a fair element of repetition of what has already been said but it will be relatively brief.

In his review for the Home Office into the welfare of vulnerable persons in detention, Stephen Shaw recommended that it amend its guidance so that the presumptive exclusion from detention for pregnant women was replaced with an absolute exclusion. Stephen Shaw said in his report that Her Majesty’s Inspectorate of Prisons had told him that in its view there was little to suggest that pregnant women were being detained only in exceptional circumstances. He also said that the Association of Visitors to Immigration Detainees had pointed out that an inspection of Yarl’s Wood had found pregnant women being detained without evidence of the exceptional circumstances required to justify this, with one of the women being hospitalised twice because of pregnancy-related complications. In the light of the evidence presented to him, which he set out in his report, Mr Shaw said that he had not sought further evidence that detention had an adverse effect on the health of pregnant women and their unborn children, since he took this to be a statement of the obvious.

Stephen Shaw also said in his report that he believed that the Home Office should acknowledge the fact that in the vast majority of cases the detention of pregnant women does not result in their removal, and that in practice pregnant women are very rarely removed from this country except voluntarily. Concluding, he said that he was strongly of the view that presumptive exclusion from detention should be replaced with an absolute exclusion.

I hope that the Government will reflect on their apparent decision not to accept Stephen Shaw’s strong recommendation in respect of the detention of pregnant women. It is my party’s policy that pregnant women should not be detained in these circumstances, a view also expressed by Mr Shaw in his independent report to the Home Office. If my noble friend Lady Lister of Burtersett decides, at the end of the debate—and, most importantly, after the Government’s response—to test the opinion of the House, we shall support the amendment.

My Lords, I understand fully that the intention of the amendment tabled by the noble Baroness, Lady Lister, is to reflect the recommendation from Stephen Shaw that pregnant women be absolutely excluded from detention. On this point, I reiterate what I made clear on Report and set out in my letter to the noble Baroness and to the noble Baroness, Lady Hamwee. While the Government agree that it is not right to detain pregnant women unless there are exceptional circumstances, it does not consider that an absolute exclusion would be workable.

As has been explained in this House and in another place, it is important that the Government are able to detain, for a short period, those with no right to be in the United Kingdom who refuse to leave voluntarily. For example, if an immediate removal is planned, a short period of detention may be appropriate to facilitate a safe departure where there are absconding risks or other public protection risks to be considered. Furthermore, exempting from detention an individual who has arrived at the border with no right to enter the United Kingdom and who can be put on a return flight quickly would allow pregnant women access to the United Kingdom regardless of their immigration status.

The noble Baroness, Lady Lister, mentioned that 99 pregnant women were detained in Yarl’s Wood in 2014 and that this number had reduced to 69 in 2015. I am advised that there is, at present, one pregnant woman in Yarl’s Wood. She is a foreign national offender who recently completed an 18-month prison sentence and was detained there on 9 February. A deportation order was signed and removal directions were in place for 3 April. These were later brought forward to 26 March but then deferred because of an asylum claim being made. I am advised that there has now been an application for judicial review as well. Taking that case as an example, if removal ceases to be imminent there is every prospect of release subject to conditions. This is what frequently happens in these circumstances and goes some way to explain why only a small proportion of those actually in detention are subsequently removed from detention and deported. Many are released under condition and their asylum or immigration status is determined subsequently and the matter disposed of in that way.

I stress that we are dealing with cases in which there are exceptional circumstances. The noble Baroness, Lady Neuberger, observed that uncertainty over immigration status could itself be a source of stress and anxiety for a pregnant woman. That may very well be the case: who could dispute it? But she went on to say that they can be detained for not very good reason. We cannot accept that. Our policy and guidelines are very clear: pregnant women are to be detained only in exceptional circumstances. There is a requirement for that detention in particular and exceptional circumstances.

The noble Baroness, Lady Lister, will be aware that, on Report, I stated that the Government intended to reflect on the detention of pregnant women and would have a considered position by Third Reading. I apologise to the House for the delay in completing that consideration. This is a complex issue and the Government continue to give it serious thought in the context of the work that is under way in developing policy on adults at risk in detention and the further implementation of Stephen Shaw’s report and its recommendations. That is taking time to finalise because the Government do not want to rush what is and is recognised to be a highly important issue. But I assure the noble Baroness and the House that the Government will be making a formal announcement on this matter very shortly. Indeed, the Government expect to make such an announcement in a matter of days.

The announcement will not involve an absolute prohibition on the detention of pregnant women. It will, however, set out a very clear and limited time for detention, only in exceptional circumstances, as it may be applied to pregnant women.

I wonder if the Minister can explain to us why, if it is possible for the Government to make a statement in a few days, it is not possible to make that statement today.

If I was in a position to make the statement today, I am sure the noble Lord appreciates that I would do so. He may be familiar with the wheels of government and with the requirement for these matters to be approved at various levels before a final statement is made. If I was in a position to make that statement, I reassure the noble Lord that I would not hesitate to make it.

There is certainly a sense of urgency in this matter and that is why I expressed my apology to the House and the noble Baroness, Lady Lister. I had indicated that by Third Reading I would be in a position to confirm the Government’s position on this. However, it is a matter that requires detailed consideration. It is a matter that has ramifications. It is a matter that has to be considered in conjunction with Home Office guidelines. It is a matter that must be consulted on and finally approved before issue, and it is for that reason that, regrettably, there has been a period of delay in respect of this point.

I underline that it will not involve an absolute prohibition. It will, however, involve a very limited power of detention to be exercised only in exceptional circumstances and for a very limited period. That is what is anticipated at present. As I sought to point out on Report, it is simply not practicable to have an absolute bar in respect of pregnant women. There are circumstances in which, for example, a pregnant woman arriving at an airport or a port, clearly with no right at all to enter the United Kingdom, may present either a security risk or a risk of absconding, and without any power of detention it would be quite impossible to arrange her return at that time of arrival. Therefore, in these circumstances, I urge the noble Baroness to withdraw her amendment.

My Lords, I am very grateful to all noble Lords who have spoken. Many have spoken so eloquently, drawing attention in particular to the implications of this for unborn children, and have made the case very strongly.

I realise that the Minister is in a difficult position in that he is not able to make the statement to which he referred. I asked him for reassurance that the new policy will mean that pregnant women are detained genuinely in the most exceptional circumstances because the current policy is that they should be detained only in the most exceptional circumstances. While the hint of a time limit is encouraging, I have heard nothing to reassure us that the new policy will be different from the old policy.

I quite understand that it is not the Minister’s fault—if that is the correct word—that he is not able to make the statement today. But Stephen Shaw delivered his report to the Home Office on 24 September. The Government have had over six months to consider this crucial issue, which they know many people—organisations, individuals who gave evidence to Shaw and individuals who gave evidence to the inquiry—feel very strongly about. They must have known that people would want a clear answer on this by now and I am afraid that clear answer has come there none. I am quite sure that the noble and learned Lord understands why it is not good enough to say, when this is the last chance we have to discuss it in this House, that we should wait for a few days because the Government have not managed to get their act together to enable him to make the statement today.

Given that every noble Lord who has spoken did so very strongly in support of this amendment, I feel that I have no choice other than to test the opinion of this House.

Clause 63: Immigration bail

Amendment 7

Moved by

7: Clause 63, page 59, line 27, leave out “The amendment made by subsection (3) is” and insert “Subsections (3) and (4) are”

My Lords, Amendments 7, 10 and 11 are all relatively minor and somewhat technical in nature. Clause 63 ensures that a person may be on immigration bail when they are liable to detention, even if they can no longer be detained, and subsections (3) and (4) apply this to people who have been released on bail under the current provisions of Schedule 2 to the Immigration Act 1971. Amendment 7 to Clause 63(5) removes the reference to an amendment being made by subsection (3). This is because, in an earlier draft of the clause, subsection (3) contained an amendment to Schedule 2 to the 1971 Act, but subsections (3) and (4) no longer use that construction.

Amendments 10 and 11 to Schedule 10 ensure that any cross-references in other legislation to immigration bail granted, or a condition imposed, under Schedule 10 will include the rare circumstance when bail is granted by the court, just as if it were granted by the tribunal. I beg to move.

My Lords, I am grateful for the Minister’s explanation but, on Amendment 7, it seems to me that we have never really had an explanation of why it is necessary for these provisions to be made retrospective. The Constitution Committee raised the matter in its report to the House on the Bill, and referred to the Government’s acknowledgement of retrospectivity in the Explanatory Notes, which said:

“This clause is retrospective in its effect because it is intended to clarify the law following a recent Court of Appeal judgment”.

Having read on in the Constitution Committee’s report, I wonder whether “clarify” is the right term. I do not think one can talk about correcting a Court of Appeal judgment, but that is the flavour of what the Constitution Committee had to say. The Government’s response to the committee was that the clause has been remodelled, which does not seem quite to take the point. Could the noble and learned Lord assist the House by explaining why this does not broaden the scope of the Bill and why it is appropriate?

My first reaction on reading Amendments 10 and 11 was to wonder whether the draftsman could not have made a real effort to make them really opaque and difficult to follow. After that rather flippant comment, the serious point is that, as I understand the issue, the Secretary of State is now to have powers over courts as well as the tribunals. The noble and learned Lord is shaking his head, so I look forward to his refuting that. We are bothered, as we have been concerned before, about not respecting the independence of the judiciary. What if a tribunal judge thinks that it is contrary to a person’s human rights to impose the electronic monitoring condition, and the Secretary of State says that it is not contrary to do so? The judge is very conflicted there. What if he or she wants to impose a condition, and considers that it would be practicable to do so, but the Secretary of State says that it is not practicable, so the judge cannot impose the condition? If that meant that the judge did not grant bail to that person, this would be a considerable—and, I think, unwarrantable—interference with the person’s right to liberty. Would the noble and learned Lord expand a little on his explanations?

My Lords, I support the questions raised by the noble Baroness, Lady Hamwee, in relation to the first amendment and retrospection, which was addressed by the Constitution Committee, and to the other two amendments and the extent to which they do or do not mean that the Secretary of State could dictate to a criminal court, including a court of criminal appeal. I am afraid I did not see the Minister shake his head when the noble Baroness, Lady Hamwee, made that comment, but I hope that, if that is the position as far as the Government are concerned, it does not mean that the Secretary of State will in any way be able to dictate to a criminal court and that the Minister will set out very clearly in his response why it is incorrect to draw that inference or assumption from these amendments.

I shall begin with the observations made with regard to alleged retrospective effect in the provisions in Clause 63. Reference was made to a decision of the Court of Appeal in the case of B v the Secretary of State for the Home Department. Before that decision, which is subject to an appeal that I will come back to in a moment, it was widely—indeed, universally—understood that individuals could be released on immigration bail in circumstances where their detention was no longer lawful under the Hardial Singh principles; that is, there was no reasonable prospect of their deportation and they therefore had to be released. That understanding was shared by the relevant tribunals: the First-tier Tribunal and the Special Immigration Appeals Commission. Indeed, it was the decision of the president of the Special Immigration Appeals Commission which was overturned in the recent decision of the Court of Appeal, that determined that if detention was no longer lawful under the Hardial Singh principles, it would follow that bail could not be granted and, in particular, that bail could not be granted subject to conditions. As one might imagine, that had wide-ranging implications for the purposes of security, particularly in the case of B, who appeared to be an established Algerian terrorist who was at risk of carrying out terrorist activities to assist others in Algeria and elsewhere. The decision of the Court of Appeal has been suspended pending an appeal to the Supreme Court, which is set down to take place in December. However the Government’s position is that the position prior to the decision of the Court of Appeal was correct and it should be reinforced by statutory provision. It is for that reason that Clause 63 is in its present form. I understand that the appeal to the Supreme Court will proceed in any event, but it is essential, particularly in a matter that impacts on our security, that there should be no doubt or difficulty and no gap in our legislation so far as that is concerned.

Turning to Amendments 10 and 11, the test of practicability is for the Secretary of State, not the court, but there is no question of the Secretary of State usurping the functions of the court. It may be recollected that for that reason an amendment was made to Schedule 10 at an earlier stage to make clear that the Secretary of State could not usurp or overturn any decision-making power of the court or tribunal in these circumstances. That remains our position with respect to Schedule 10, as amended.

Amendment 7 agreed.

Clause 71: Transfer of responsibility for relevant children

Amendment 8

Moved by

8: Clause 71, page 62, line 44, leave out subsection (10) and insert—

“(10) For the purposes of subsection (9) a person is unaccompanied who is separated from both parents and is not being cared for by an adult who in law or by custom is responsible for doing so.”

My Lords, Clause 71 provides for the transfer of responsibility for relevant children. A relevant child is defined in subsection (9) as an unaccompanied child, while subsection (10) says:

“The Secretary of State may by regulations make provision about the meaning of ‘unaccompanied’”.

At the previous stage of the Bill, the noble Baroness, Lady Lister, raised the concern that an accompanying adult might not be—I use this phrase non-technically—an appropriate adult. There were concerns about trafficking. The amendment would put into the Bill the definition that is in current Home Office guidance on processing asylum applications by children.

While the amendment is to Clause 71, the same issue might of course arise in respect of Clause 70, the clause that your Lordships agreed on Division regarding the figure of 3,000 unaccompanied children. We will have to see what happens to that provision. In any event, taking a rather narrow technical point about Third Reading, that clause was not the subject of the reassurance from the noble Lord, Lord Bates, that he would put in writing how the term “unaccompanied” would be defined and would operate, and that he would do so by Third Reading. Given the change of Minister last week, I contacted the noble Earl’s office to ask if there would be a letter, and at the point when I tabled the amendment there was not. It arrived around 6 pm yesterday and I read it some time later, and I thank him for it. The letter says that there is,

“no intention to alter the definition”,

for the purposes of this clause. In situations where an asylum-seeking child,

“is accompanied by an adult who is not a parent or relative”,

Home Office officials will,

“verify the identity of the adult and establish the relationship with the child”.

I am not sure whether the relative referred to there is one who by custom has responsibility for the child, otherwise there would be a change from current guidance, although I gather that Home Office guidance is currently being rewritten. What I am really not clear about is why the Bill needs to allow for any flexibility or change in the definition, so it is important to get the position on record.

I was concerned about the reason for leaving the matter open in the way that the Bill does. When I was looking into this at the weekend, I found that the definition used by the Committee on the Rights of the Child is slightly broader because it refers to “other relatives” as well as parents. It occurred to me that it is known that “other relatives” are sometimes traffickers, which is why the wording is not used in the Home Office definition. There may be issues around siblings or other family members. However, it is important that we get the position on the record. It would be preferable to get it into legislation, but at any rate we should understand what the parameters are of the regulations that the Secretary of State might make. I beg to move.

Once again, my Lords, I am very grateful to the noble Baroness, Lady Hamwee, for tabling this amendment. With her usual lawyer’s quickness, she picked up the point that I raised on Report. As I said then, it is a point that was raised with me by an organisation local to me in the East Midlands, Baca. It was worried because it could not understand why that wording was there. It is perhaps not surprising if groups are worried and perhaps slightly cynical when they come across measures that they do not understand, given that there is so much in legislation that they do not like. So I am delighted that, at the last minute, the letter from the noble and learned Lord, Lord Keen of Elie—not the noble Earl—made it very clear that the definition, as in the amendment, is,

“separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so”.

It is helpful to have that in Hansard because of course your average punter cannot read the letters sent between Ministers and Members of your Lordships’ House. I am sure that the noble and learned Lord will repeat that for the record. Also, like the noble Baroness, I would appreciate an explanation of why this clause is necessary, given that this is, as the letter says, the,

“established definition in the Immigration Rules”,

and it is accepted by the UN. I am glad that through this organisation raising this matter with me, we have some clarity on what is meant by it.

I am obliged to the noble Baronesses, Lady Hamwee and Lady Lister. As they have observed, there is already an established definition of “unaccompanied” in the present context. It is not in guidance alone; it is in the Immigration Rules, and that is important. The definition states that an unaccompanied asylum-seeking child is someone who—perhaps I may, as suggested, read this into the record—is under 18 years of age when the claim is submitted, is claiming asylum in their own right, is separated from both parents and is not being cared for by an adult who in law or by custom has responsibility to do so.

Following the commitment given by my noble friend Lord Bates on Report to explain how the definition would operate, I wrote to the noble Baronesses—albeit, as they observed, at the last minute—to confirm that there is no intention of altering the definition of “unaccompanied” as set out in the Immigration Rules for the purposes of the transfer provisions in the Immigration Bill. Furthermore, defining particular categories in primary legislation is not always desirable or even necessary. As your Lordships will appreciate, there are times, particularly in the context of the current migration crisis, when the Government need to respond quickly to changing circumstances.

I should make it clear that at present we have no intention of amending the definition of “unaccompanied”. We would do so only in response to a significant change in circumstances, but it is important that in such circumstances we are able to react swiftly and efficiently. Clearly, regulations subject to parliamentary scrutiny are a more appropriate way to achieve that result than placing something on the face of this Bill.

I reassure the noble Baronesses, Lady Hamwee and Lady Lister, that safeguarding and promoting the welfare of vulnerable children is at the forefront of the Home Office’s work with the Local Government Association and the Department for Education to develop a transfer scheme for unaccompanied asylum-seeking children. I understand the concerns about the definition of “unaccompanied”—it may have unintended consequences and inadvertently place children in the hands of traffickers—but immigration officials working with these vulnerable children are trained to be alert to any signs that a child is at risk of harm or abuse or may have been trafficked. Where an asylum-seeking child is accompanied by an adult who is not a parent or a relative, Home Office officials work with local authority children’s services to verify the identity of the adult and establish the true relationship with the child. If that relationship cannot be verified or there are ongoing welfare or safeguarding concerns, the child will be treated as unaccompanied.

In the light of those points and our recent correspondence confirming that we have no intention of amending the already established definition of “unaccompanied” for the purposes of the transfer provisions, I invite the noble Baroness to withdraw the amendment.

My Lords, that is reassuring. It is difficult to imagine how urgent the circumstances might be that would require a swift change of the definition. However, I am very glad to have the assurances about the position on the record in Hansard, which, as the noble Baroness said, is most easily accessible by those outside this place. I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Clause 96: Commencement

Amendment 9

Moved by

9: Clause 96, page 75, line 38, leave out subsection (4) and insert—

“(4) Section 87 shall not come into effect—(a) before 31 March 2018; and(b) until transitional provision has been made for institutions in the public sector.”

My Lords, last week, the Centre for Policy Studies, a respected Conservative think tank, published a paper entitled Dangerous Trends in Modern Legislation. It warns that,

“the length of new Bills and the number of clauses they include is becoming so great that Parliament is unable to properly scrutinise them … There are often lengthy and significant parts of a Bill that receive no detailed scrutiny at all at any point in its Parliamentary passage”.

Clause 87 of the Immigration Bill provides a prime example of this problem. In the Commons it had five minutes in Committee and none at Report. We reached it late in Committee in the Lords, where the Minister was unable to answer the questions raised, telling us that,

“there will be an opportunity for an informed debate on the details”,

when the regulations—that had not yet been drafted—would be laid before the House. He specifically stated that,

“no decision has yet been made”,—[Official Report, 9/2/16; col. GC 174.]

as to the impact on healthcare of the imposition of the charge.

Those of us who took part in that debate received no further communication from the Government between Committee and Report, unlike the usual custom, and no invitation to discuss the issues raised. We reached this clause on Report at 12.30 am on 21 March, at the end of a very long day. The Minister did make a significant concession in his reply on exempting university-level appointments from the new levy, but he declined to tell us when the Government’s response to the report from the Migration Advisory Committee, on which these proposals rested, would be published or to answer other questions raised. The noble Lord, Lord Bates, did at least say that, “Given the hour”, he was,

“happy to put further thoughts in writing … if that would be helpful”.—[Official Report, 21/3/16; col. 2210.]

He then disappeared for a rather long walk. The noble Earl has indeed sent us a letter but it does not answer any of the points on the public sector or public sector training which we had raised. The noble Lord, Lord Trefgarne, then moved, I assume on behalf of the Government, to oppose withdrawal of the amendment to shut off further discussion at Third Reading. The chairman of the MAC was allowed to brief parliamentarians on this charge on 22 March, the day after Report ended. The Government then slipped out their response to the MAC report two days later on the Thursday before the Easter weekend—a quiet news day.

This is not the way to make legislation, as the Centre for Policy Studies paper noted. The Government have not explained the implications of this significant new charge, and in particular its likely impact on the public sector; nor have they provided any coherent rationale for imposing it on the public sector. The Minister did, however, in responding to the debate, say that,

“I will give further consideration to when they”—

the charges—

“are introduced”.—[Official Report, 21/3/16; col. 2212.]

He specifically mentioned that they were looking at the issue of phasing in the charges on the public sector. This amendment returns to exactly that issue, asking what further consideration the Government have given this and whether they will now accept that the current provision to rush this charge into operation only two months after the Bill is passed—as Clause 96 states—is mistaken, incompatible with allowing an informed debate on the regulations that will have to be pushed through, and damaging to the finances of schools and hospitals throughout the country.

The noble Lord, Lord Bates, reiterated that the aim of this charge is,

“to bring about some behavioural change in the way that people think about recruitment”,—[Official Report, 21/3/16; col. 2210.]

encouraging employers to look for recruits from within the UK rather than from outside, and to invest in training those recruits in the skills needed. That is fine for the private sector. However, the Government are the employer in the public sector: they set the quotas for teacher and nurse training, and they encourage—or discourage—doctors to stay and work in the NHS rather than going abroad. So here we have the Government encouraging themselves to expand training to fill skills shortages in schools and hospitals by fining those schools and hospitals—out of government funds—for recruiting from outside the UK and the EEA. That is absurd.

There have been a succession of announcements of government policy that the likely impact of this charge will undermine. There are plans to expand and extend maths and technology teaching in schools, but no mention of the existing shortage of maths teachers in this country and of the active efforts that schools are making to recruit from Australia, Singapore and elsewhere. Hospitals have announced that they need to recruit some 15,000 nurses a year from abroad to fully staff their wards, from the Philippines, South Africa and so on. We have just read that the NHS is planning to recruit 4,000 doctors directly from India. These are large numbers of predicted immigrants, recruited to fill avoidable skills shortages within the UK—significant numbers pulled into the UK by our failures in skills training: 30,000 or so a year. The Government should therefore act to provide the training to reduce the necessity to pull such numbers in.

We have asked repeatedly what plans the Government have to increase incentives for maths teachers and to launch crash courses to train them, but there appear to be no such plans. We have also asked about rapid expansion in nurse training and efforts to improve retention of nurses in post. Again, there are no plans to do so yet. So within the next 12 months the Government will start to fine schools and hospitals £1,000 a year per skilled person recruited from outside Europe—fining them from the funds that the Government have just given them.

The noble Lord, Lord Bates, suggested on Report that,

“schools … can seek maths teachers from the whole European Economic Area market”,

to avoid the charge for recruiting them from outside that market—to do that, it was implied, rather than to have to train more of our own or to pay British teachers well enough to stay in post. The Daily Mail will love that as a proposal from a Government who are supposed to be trying to reduce the pull factor in immigration from within as well as outside Europe, but I leave that to the Government to answer.

We were assured on Report that:

“The Department for Business, Innovation and Skills has confirmed that it will continue to consult with stakeholders”,—[Official Report, 21/3/15; col. 2211-12.]

which in this case presumably means to negotiate with the Department of Health and the Department for Education on how to limit the damage to school and hospital budgets. But BIS, the Times told us last Saturday, is planning a major cost-cutting exercise, shrinking the staff of the Commission for Employment and Skills and the Skills Funding Agency by 40% to 50%. So it is likely to lack the capacity to manage the expansion of training schemes which the Government have promised us, either for the public or the private sector.

In short, the Government have failed to make any case for their proposed rapid implementation of this ill-thought-out scheme. Their failure to answer legitimate questions raised in Committee and on Report, in spite of promises so to do, has fallen well below the normal standards of this House. I hope that the noble Earl, Lord Howe, gallantly stepping into the breach, will concede that this has not been well done and will accept the rationale for delay which justifies our amendment. I beg to move.

I attended a meeting of maths teachers earlier this year in Parliament and was sad to learn of the serious shortage of maths teachers in this country, of so many of our children being taught by people with very low qualifications in maths, and of physical education teachers trained up to teach maths desperately trying to fill the gap. The recent concerns expressed by the Chancellor of the Exchequer that our children should have a good understanding of maths brought home to me the real concerns raised by those maths teachers about the inadequacy of supply of maths teachers. So it concerns me to hear the noble Lord say that schools will be penalised for the shortage of maths teachers. I am afraid it does not seem to be the schools’ fault but somebody else’s. This is not a Department for Education debate, but my experience in this matter coincides with what the noble Lord has expressed. Certainly, one should not penalise schools for a shortage they are not responsible for.

My Lords, the principle of the immigration skills charge is not in dispute. It is absolutely vital that the skills of our own workforce should be improved if we are to achieve the major reduction in immigration which the public so anxiously wish to see. The main issue is one of timing as to when it should come into effect.

The Migration Advisory Committee, to whose work I pay a warm tribute, gave three reasons for its strong support for this scheme. First, to raise the cost of immigrant labour so as to reduce the numbers; secondly, to contribute to the extra cost involved for public services; and, thirdly, to compensate for what it described as the,

“rather modest efforts to upskill UK workers”,

by those firms employing Indian IT workers. All those matters need tackling as soon as possible.

I certainly accept that there may be some loose ends in respect of some of the public services, but we need to get on with this. The Government have announced that they will bring the measure into force in April 2017. That seems a reasonable way to get this moving in a vital area.

The Government have said that the £1,000 per year immigration skills charge will be paid by employers who sponsor tier 2 migrants, with a reduced rate of £364 per annum applying to small businesses and charities as set out in the Immigration Rules. There will be an exemption in respect of migrants undertaking occupations skilled to PhD level, primarily science and research roles. An exemption will also be applied for graduates who switch from tier 4 to tier 2 for the purpose of taking up a position in the UK. As far as other areas, organisations and categories are concerned, the Department for Business, Innovation and Skills is apparently continuing to consult, including with devolved Administrations and other government departments.

In their letter of 7 April, on Ministry of Defence headed paper, the Government said that they intend to introduce the charge from April 2017 rather than from a somewhat earlier date provided for in the Bill. As they have also said that they are looking at phasing in the charge, can the Minister say what the intention to introduce the charge from April 2017 means as far as timescales are concerned?

The Government have confirmed that secondary legislation will be needed before the charge can be introduced. They expect to lay regulations in the autumn and to publish a draft before they are laid, with interested parties being given an opportunity to comment. There are difficulties with potentially significant issues being dealt with by secondary legislation because such proposed legislation cannot be amended, only accepted or rejected in its entirety.

There appears to have been little analysis provided on the impact of the immigration skills charge. Can the Minister say how much money will be raised by the charge; what percentage of existing training budgets that will represent; and for how many will this additional money provide the training envisaged? What analysis have the Government undertaken to show that the introduction of the charge will achieve the stated objective, as set out in the letter of 7 April, of encouraging employers to think differently about their recruitment so that, where possible, they recruit and train up resident workers and reduce the need to recruit skilled labour from outside the European Economic Area? Has an impact assessment been undertaken and, if so, what did it indicate? By how many is it expected that the charge will reduce the need to recruit skilled labour from outside the European Economic Area?

The Government also ought at least to give a commitment that they will listen to and take into account the views of interested parties when the draft regulations are published prior to being laid; and that interested parties will be given sufficient time to respond, bearing in mind that the draft could be published in the middle of the holiday season.

In looking at where, to whom and from when the charge will apply, what are the criteria against which the Government are determining and making their proposals? Against what criteria, for example, will proposals on the extent to which the charge should or should not apply in the National Health Service be formulated? While the decision not to apply the immigration skills charge to those switching from a tier 4 student visa to a tier 2 visa is a positive move for the health service, it will not as I understand it exempt overseas doctors recruited by the NHS on tier 2 visas to fill medical vacancies in hard-to-recruit medical specialties and areas.

The Government have said that they will review the operation and impact of the immigration skills charge after a suitable period of operation. Within what kind of timescale does that actually mean? They have also said in their letter of 7 April that income raised through the immigration skills charge will be used to fund training in order to reduce the UK’s reliance on imported skills, and that further details will be set out in due course in advance of the draft regulations. Is that in advance of the draft of the regulations being published prior to being laid? Is the money raised from the charge going to be ring-fenced, and if so, in what way? Will it be ring-fenced in relation to the type of training on which it has to be spent, or in relation to the sector, organisation or organisations in which it has to be spent? Will money raised from the health service, if it is not exempt, have to be spent within the health service on training? If it is not going to be ring-fenced, what guarantees are there that the money raised will be used to fund training rather than for some totally unrelated purpose, and that the money will be additional money spent on training and not used to finance existing training commitments?

As far as the amendment is concerned, we do not share the view that the skills charge should not be introduced at all in the private or public sector until the end of March 2018, provided that it will be used to fund additional training, and neither do we consider that there necessarily has to be transitional provision for all institutions in the public sector, although we have along with others raised our concerns about the impact and necessity of the charge, for example, in the health service and the education sector.

I hope that the Minister will be able to respond to at least some of the questions and issues that I and other noble Lords have raised, since I share the concerns that have been expressed by the noble Lord, Lord Wallace of Saltaire, about the way this matter has been handled and the late stage at which it has been brought forward into the proceedings on the Bill, and what appears, frankly, to be a lack of information about the charge, with the Government saying that we will have to wait until later on to find out what their intentions actually are.

My Lords, I have listened carefully to the position put forward by the noble Lord, Lord Wallace, and other noble Lords. The Government were pleased to be able to provide further details about the immigration skills charge in the statement made at the Report stage by my noble friend Lord Bates. In addition, a Written Ministerial Statement covering reforms to the tier 2 visa route was laid in the other place on 24 March, but unfortunately it could not be laid in your Lordships’ House because we were not sitting on that day.

As promised at the Report stage, the Government have considered when Clause 87 will come into effect. The first point to make, which was referred to by the noble Lord, Lord Rosser, is that while the clause commences two months after Royal Assent, it is clear in the Bill that secondary legislation will be needed before the charge can be introduced, and that will be subject to the affirmative procedure. Secondly, as my noble friend Lord Bates said on Report, we will publish a draft of the regulations before they are laid, enabling noble Lords and other interested parties to comment; I would just emphasise that opportunity.

As regards the date of introduction, the Government have announced details about the rate and the scope of the charge, including the exemptions that will apply, a year before it is to be introduced. The Written Ministerial Statement confirmed that the charge will be introduced from April 2017 and not before. We consider that that gives employers, including those in the public sector, sufficient time to plan how best to manage the introduction of the charge without delaying until after April 2018, as suggested in this amendment—and I am grateful to the noble Lord, Lord Green, for his comments on that point. I would argue strongly that there is no need for transitional provision to be made for institutions in the public sector, which is the other purpose of the amendment. I would just say that, on Report, my noble friend Lord Bates did not commit to consider a phased approach to implementation for the public sector. We made a commitment to consider when the clause comes into effect and, as I have indicated, we stated that we will not introduce the charge before April 2017.

As the independent Migration Advisory Committee stated, public sector organisations are employers, like any other, and should be incentivised to consider the UK labour market first before recruiting from outside Europe. On that particular point, it is worth noting that the MAC took evidence from a full range of stakeholders, including the public sector, before making its recommendations. From my time as a health Minister I recognise the important role that tier 2 plays in recruiting doctors to fill vacancies in hard-to-recruit medical specialties and areas, as the British Medical Association has flagged. I also understand its concern that the charge might take funds away from training in the health service.

Let me be clear about this. Staffing in the NHS is a government priority. That is why there are already more than 29,600 extra clinical staff, including more than 10,600 additional doctors and more than 11,500 additional nurses on our wards since May 2010. That is why Health Education England has increased nurse training places by 14% over the last two years and is forecasting that more than 40,000 additional nurses will be available by 2020. There are already 50,000 nurses currently in training.

The noble Lord, Lord Wallace, asked me what plans there were to incentivise individuals into nursing and to encourage retention. It would perhaps be helpful if I mentioned that the Come Back to Nursing campaign, launched by Health Education England in September 2014, reports that 2,188 nurses have registered on a return-to-practice programme, 927 have completed the programme and, of those, 700 have successfully completed their retraining and are now back on the front line providing care and support for patients. We have invested £40 million in leadership training to create a new generation of senior nurses and we are running a campaign to get experienced nurses who have left the profession back to work.

The noble Earl, Lord Listowel, referred to the pressure on schools, and I understand the points that he made. I hope that he will take some reassurance from the fact that many schools will benefit from the reduced rate of £364 by virtue of being either small businesses or charities. The noble Lord, Lord Rosser, asked about ring-fencing the fund and whether the charge will just go, as it were, into general revenue. Let me be clear about that. The Prime Minister was emphatic that this measure will help train up the resident workforce to address skills shortages. I cannot, of course, tell him how much the skills charge will raise. The amount of funding generated will very much depend on employer demand. The Migration Advisory Committee estimated that the charge could raise as much as £250 million a year. The MAC’s estimates did not take account of the reductions and exemptions the Government have announced or the expected impact on behaviour. The Government are still finalising the policy detail, as will be obvious. We have not, therefore, produced a firm estimate. However, we estimate that once the exemptions and reductions are taken into account, the sums raised will be significantly lower than the MAC’s estimate.

With respect to the remarks of the noble Earl, Lord Listowel, and those of the Minister, the Science and Technology Committee had a special session here at the House of Lords in March, and we heard that the funding available for training teachers who are not advanced in mathematics or science to become better trained is actually decreasing. I wonder whether the Minister’s remarks are implying that there will be more money for this training, which is absolutely essential if we are to raise the skills and educational levels in science and technology.

My Lords, a great deal is being done to encourage students into science and technology, as I am sure the noble Lord is aware. What I cannot tell him is whether and to what extent the money raised by the skills charge will be directed into particular vocational areas. That is still being worked through. As regards teaching, it has been recognised that public sector pay restraint and specific recruitment challenges in certain occupations present problems for the National Health Service and the education sector in particular. On the new salary threshold, we announced that we will exempt nurses, paramedics and medical radiographers; and in the education sector we will exempt secondary-school teachers in mathematics, physics, chemistry, computer science—

My Lords, I heard what the noble Lord said. Perhaps he will allow me to continue. We will exempt secondary-school teachers in mathematics, physics, chemistry, computer science and Mandarin from that new salary threshold. The point has been recognised by the MAC and we took its advice on that.

The exemption we have announced for students switching from tier 4 to tier 2 to take up a graduate-level position in the UK will benefit doctors following completion of their foundation training. I am pleased that the BMA has welcomed this exemption. However, if we are to meet our objective of reducing reliance on overseas workers, we simply must reverse the trend of increasing numbers of workers coming through tier 2, including in the public sector. In 2015, sponsored visa applications for skilled workers in the human health and social work activities sector alone, which includes a number of public sector occupations, increased by 13% to more than 3,500 places. For those reasons, we consider that delaying or phasing in the introduction of the charge, or indeed an exemption, for the NHS or wider public sector would overlook the key aim of the charge: to influence employer behaviour. The Migration Advisory Committee was clear that it did not believe the health sector should be exempt from the charge.

I note that the BMA said it is highly unlikely that the NHS would benefit from the proceeds of the charge because apprenticeships are not relevant to or will not benefit the NHS. With great respect to the BMA, there is currently no basis for saying that. Decisions on where the charge income will be spent are not yet finalised, as I said. The priority will be to spend the charge on training the resident workforce to address skills gaps in the UK. Apprenticeships are only one government-supported programme designed to address the long-running trend of underinvestment in skills by UK employers that might be supported. I can assure noble Lords that the Department for Business, Innovation and Skills is already engaging with stakeholders, including the Department of Health and the Department for Education, to ensure that their skills and workforce planning needs are fully considered. It cannot possibly do otherwise given the key importance of those sectors. I can also assure the House that the Home Office will continue to consult with stakeholders on how best to address skills gaps in advance of the introduction of the charge to inform decisions on how the income is spent.

I hope that noble Lords—in particular the noble Lord, Lord Wallace—will be reassured from what I have said today and from the totality of the announcements we have made about the skills charge, that the Government are committed to implement it in a balanced way, ensuring that the UK remains open for business and can continue to attract the best and brightest to our workforce. I hope, too, that noble Lords are reassured by our confirmation that we will not seek to impose the charge before April 2017, and only after we lay regulations.

In the light of those points, I very much hope that the noble Lord will agree to withdraw Amendment 9.

My Lords, I am a little reassured but I have to say that I am still left in much confusion as to how the Government intend to get from here to where we all wish to be. The ability of the noble Lord, Lord Rosser, to raise a very large number of fair questions about what is intended by all this simply demonstrates how unclear many of us in this House and outside are about how the Government will ensure that the extra skills are provided from within this country. I entirely agree with the noble Lord, Lord Green, that there is a long-term problem of companies in Britain finding it cheaper and easier to recruit direct from abroad rather than spending money on training their own employees. That applies not just to the Indian IT sector but also to long-distance truck drivers and all sorts of occupations in the private sector.

However, in the public sector the Government are responsible for training. As regards when we introduce this charge, I simply point out that it takes two or three years to train a nurse and longer to train a doctor, let alone a good maths teacher. Therefore, a year is not enough. We will find in the interim period that schools and hospitals will pay sums out of their flat budgets, out of which they are already paying for additional pension increases—so budgets are being squeezed—before any new training schemes have provided the additional skilled recruits from within the United Kingdom. That is part of the argument we are making about phasing in for the public sector.

I very much hope that we will have Labour support on this occasion. As I understand it, the Labour Party supports the public sector. I have heard reports that the Labour Party in the Commons has instructed the Labour Party in the Lords not to support this measure because it is a Liberal Democrat amendment and it is a bit queer about supporting Liberal Democrat amendments. I very much hope that the noble Lord, Lord Rosser, will be able to bring his party along. However, I appreciate that sometimes in the Lords the Labour Party Front Benchers have to defend positions they are not entirely happy about, as, indeed, do the Conservative Party Front Benchers.

I reassure the noble Lord, who is clearly very concerned about my present state and what I have had to say on this amendment, that I fully support an agreement—obviously, to his surprise—regarding what I said from this Dispatch Box. Interestingly enough, the noble Lord has not responded to the objections that I raised on his amendment.

My Lords, I hope that the noble Lord has not yet got out his walking maps, but we shall see. I conclude by pointing out that the phasing argument is about the time it takes to train the people from within the United Kingdom who we need to supply skills in our schools and hospitals. We have not yet been informed about the new schemes which the Department of Health and the Department for Education will undertake to provide. However, we know that from April 2017 schools and hospitals will pay an additional £1,000 per person per year for everyone recruited from outside the European Economic Area, although I think I may have heard the noble Earl say that independent schools will have to pay only £330 because they are charities, which raises some interesting questions to which we may also wish to return.

It does not apply just to independent schools, some of which are charities and some of which are not. However, the lower figure is £364 for charities.

We are reassured by that, but I may wish to take it up further with the Minister. Meanwhile, we are not satisfied. This imposes additional charges on the public sector which is already hard pressed. We have not yet heard sufficient about the additional training which the Government, as employers, need to provide from departments other than the Home Office. We are depressed by the news that the Department for Business, Innovation and Skills is cutting the staff it has to promote skills and employment within the United Kingdom. We therefore wish to test the opinion of the House.

Schedule 10: Immigration bail

Amendments 10 and 11

Moved by

10: Schedule 10, page 171, line 25, at end insert—

“( ) A reference in any provision of, or made under, an enactment other than this paragraph to immigration bail granted, or a condition imposed, under Schedule 10 to the Immigration Act 2016 includes bail granted by the court under sub-paragraph (1) or (1A) or (as the case may be) a condition imposed by the court on the grant of such bail.””

11: Schedule 10, page 175, line 9, at end insert—

“( ) A reference in any provision of, or made under, an enactment other than this section to immigration bail granted, or a condition imposed, under Schedule 10 to the Immigration Act 2016 includes bail granted by the court under subsection (3) or (as the case may be) a condition imposed by the court on the grant of such bail.””

Amendments 10 and 11 agreed.


Moved by

My Lords, we are led to believe that Third Reading is for the removal of doubt and uncertainties. I believe that there is still a lot of uncertainty over the Dublin III regulation and over discretionary entry outside the Immigration Rules. These uncertainties affect both those who could use the provisions to reunite their families and those who have to administer the provisions or to present compassionate cases to the Secretary of State. The result is that few people get admitted. Under Dublin III, even the Government do not know how many people reach this country—or if they know, they will not say. Under discretionary entry, on the other hand, an average of 35 persons were admitted in each of the last five years. Only last week, the Children’s Commissioner for England wrote to the French Government about unaccompanied children now at Calais who may be—

My Lords, I am sorry to interrupt the noble Lord, for whom I have a great deal of regard. It is not proper to open a new substantive argument at this stage of the Bill and I think that he is out of order by seeking to do so.

My Lords, I have taken the advice of the Public Bill Office and I was told quite clearly that I could make a short intervention at this stage. That is what I am doing.

I am sorry, my Lords, but the noble Lord has at least three sheets of paper from which he is reading the comments that he intends to make. I do not consider that a short intervention and I call him to order.

My Lords, I have two very brief questions to put to the Minister. First, will the Government immediately consult the British Red Cross, Save the Children Fund and faith groups, which are in daily contact with split families and unaccompanied children? Secondly, will the Government ensure that all the relevant officials are fully briefed about family reunion and how it can be achieved?

My Lords, with the leave of the House I will briefly answer the noble Lord’s questions. First, as he is aware, we regularly consult external partners and experts including the Red Cross and Save the Children. We will continue to do that. Secondly, we are revising our guidance on family reunion, which provides specific guidance for those already in the UK on how to apply for family reunion and instructions for caseworkers on how to consider such applications. We intend to publish this in April and we will communicate it to all relevant officials. Details of how to apply are already available on GOV.UK and refugees granted international protection are advised about their entitlement to family reunion when they receive their asylum decision.

I take this opportunity—I believe I am doing it at the right place—to express our thanks to all those who have participated in the debates on the Bill, which I believe is now a better Bill than the one that was sent to us from the House of Commons. We are grateful for the amount of information provided by Ministers and the Bill team, for the numerous meetings that have taken place and for the willingness of Ministers to listen to concerns about the Bill and, in some instances, the willingness of the Government themselves to bring forward amendments or place statements on the record to address those concerns. I particularly express appreciation of the work undertaken during the passage of the Bill by the noble Lord, Lord Bates, whose approach, as with that of his Front-Bench colleagues, has I think been appreciated on all sides of the House.

My Lords, from these Benches I add our thanks, particularly to the noble Lord, Lord Bates, who has started on a rather long walk, as my noble friend Lord Wallace of Saltaire said. It is one of a series of admirable walks but the noble Lord’s colleagues have been walking well alongside him, and after him, during the course of the Bill. It feels a little odd to agree that the Bill do now pass, because we are by no means clear what it will provide by the time that it has endured—a word that the noble Lord the Chief Whip might use—ping-pong. We are by no means finished with these issues or with the Bill itself.

My Lords, from the Cross Benches, perhaps I can briefly add a remark to those of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser, particularly in paying tribute to the noble Lord, Lord Bates, whose leave of absence was agreed by the House only yesterday. I was privileged to get to know the noble Lord, Lord Bates, when we served in another place and we remained friends after he left the House of Commons. I was delighted when he was appointed as a Member of your Lordships’ House; I was even more delighted when the Government had the good sense to appoint him as a Minister of the Crown. He has discharged his responsibilities in the House over the passage of time, particularly on the Modern Slavery Act and now on the Immigration Bill, with great distinction. We have huge admiration for the work that he is undertaking, which is to raise the peace pledge and the work of the Red Cross and Save the Children. It touches on many of the issues which we have debated in your Lordships’ House during the passage of the Bill so, before the Bill passes, I am sure that we all add our voices to those which have already been raised in thanking the noble Lord, Lord Bates, for all that he did.

My Lords, I am sure that my noble friend Lord Bates, were he present today, would be touched and gratified by the comments that have been made about him. I am grateful to all noble Lords who have spoken but, more particularly, I am grateful to the Members on both Opposition Benches and the Cross Benches for their constructive role throughout the passage of this Bill which, as the noble Baroness, Lady Hamwee, has said, has not quite left our Chamber yet. We will be returning to it. Nevertheless, the whole tone of the debate has been extremely positive even when it has been questioning and, from the point of view of the Government’s Benches, I express my gratitude for that.

Bill passed and returned to the Commons with amendments.