Report (3rd Day)
Relevant documents: 7th and 9th Reports from the Joint Committee on Human Rights, 11th Report from the Constitution Committee, 18th and 19th Reports from the Delegated Powers Committee
64: After Clause 56, insert the following new Clause—
“Age assessments for age-disputed persons: initial assessments of undetermined age
(1) An age-disputed person must be treated as an adult where their physical appearance and demeanour strongly suggest that they are over the age of 18.(2) Where the age-disputed person’s physical appearance and demeanour do not meet that threshold, and doubt remains as to their claim to be a child, the person must be treated as being of undetermined age until a further age assessment is carried out.(3) Those of undetermined age must not be placed alongside minors in schools or accommodation.”Member’s explanatory statement
This amendment would place in primary legislation a rule for tighter initial age assessments for asylum seekers and would ensure that, where doubts about the person’s age are raised by initial assessors, applicants will not be placed alongside children in schools or accommodation.
My Lords, I have retabled my amendment in the light of the Minister’s reply in Committee. Judging by Hansard, there was a very good discussion, albeit at three in the morning. We need to be clear about what we are trying to achieve here. Surely it is, first, that adults should not easily claim to be children and get away with it, and, secondly, that where doubts about age remain, the claimants concerned should be kept separate from those who are clearly children.
One aspect which was not covered in Committee was the very considerable increase in claims from those who were falsely claiming to be children. The noble Lord, Lord Paddick, said that, in 2019, those found to be adults amounted to less than half the cases. I have in my pocket the Home Office table showing the outcome of these claims since 2006. The year which the noble Lord chose, 2019, was the lowest percentage in the last 10 years. We now have the percentage for adults in the last two years, and they were 43% and 66%, respectively. I will not provide more statistics, except to say that what is really important is the number of cases to which these percentages refer. In 2019, there were only 304 age-disputed cases; in 2021, there were 1,500—I repeat: 1,500. The whole scale is much greater and justifies the tightening of the criteria for which I am calling.
As to the test applied, the Minister said that our current threshold is that a person claiming asylum is declared to be an adult when
“their physical appearance and demeanour very strongly suggest that they are significantly over 18”.—[Official Report, 8/2/22; col. 1568.]
That is a pretty tight restriction. My amendment would adjust that to when
“their physical appearance and demeanour strongly suggest that they are over the age of 18.”
The change is to “strongly suggest”. I believe that this falls well within the Supreme Court judgment to which the Minister referred in his speech: BF (Eritrea). That judgment found that claimants could be treated as adults if two Home Office officials considered that the person looked significantly over 18. My amendment tightens the criteria, but that is what we need to do in the face of the significant exploitation of the present scheme.
My last point concerns the important and related issue of safeguarding those who are found to be children. Surely it is common prudence that doubtful applicants should, until their cases are resolved, be kept separate from those known to be genuine children. I look forward to an assurance from the Minister that arrangements are now envisaged which will achieve this result. I beg to move.
My Lords, I declare my interests as chair of University College London Hospitals NHS Foundation Trust and of Whittington Health NHS Trust, and as chair of the Schwab & Westheimer Trust, charitable trusts set up to provide education for young asylum seekers.
I am speaking to Amendment 64A. When we last debated age assessments for young asylum seekers, in Committee, it was in the small hours of the morning, and the issues to which we should have given real attention did not get enough scrutiny. The issue had had precious little scrutiny in another place, because these provisions were brought in so late by the Government in the passage of the Bill. I am very grateful to the Government for the amount of information which they have provided recently, but there is still more to tease out. I hope, therefore, that noble Lords will understand why I and my colleagues—the noble Baronesses, Lady Lister and Lady Hamwee, and the right reverend Prelate the Bishop of Durham—are putting forward this detailed amendment at Report. I am grateful to the Refugee and Migrant Children’s Consortium, the Royal College of Paediatrics and Child Health, the British Dental Association, the British Red Cross, the UNHCR, the ADSS, the British Association of Social Workers and many others for their briefings and help.
There is widespread concern about age assessments among all the various voluntary and statutory agencies concerned with young asylum seekers, and among many medical, dental and scientific bodies. Because of the small family charity which I chair, I spend time with asylum-seeking young people who are desperate to get their lives back on track by getting an education. Most of those I meet are older than the children and young people presently under discussion and whose age might be disputed, but by no means all. From what they tell us, I know how traumatised they can be, and have been, not only by their experiences in their home countries and on their incredibly difficult journeys but by the processes they have been forced to go through once they have arrived in the UK, and the way in which they are often not believed—almost as if there is an assumption that they will not be telling the truth.
The fact that they might be asked for consent before they undergo an age- assessment process is neither here nor there. Refusing consent would undoubtedly be a black mark against them in a system which they already perceive as doubting their word. Many of them will not have paper evidence of their date of birth, precisely because of what they have been through. The idea that the Home Office will control these procedures, and insist on them, fills many of us with distinct unease as it almost certainly means that already traumatised young people who have been through terrible experiences to reach the UK will be forced to endure yet more traumatising experiences, possibly including intimate examinations which are hard, if not impossible, to justify.
The way that Part 4 is framed means that there will be a considerable increase in the numbers of children who undergo traumatic age assessments. It will also undermine the role of local authority social workers as child protection experts, many of whom will already know these children and young people, and give the Government power to force children to undergo these so-called scientific processes that may be inaccurate or harmful, or both.
These amendments attempt to set out what an expert and fair age-assessment process would look like. The principles are clear: age assessments must be undertaken only if there is significant reason to doubt the age of the age-disputed person, unlike what is proposed in Amendment 64. The bar must be set high. It must not be used to intimidate and traumatise already-traumatised young people, and my colleagues will say more about that. Furthermore, the person conducting such age assessments under Clauses 49 or 50 must be a local authority social worker, following the guidance set out by the Association of Directors of Adult Social Services, and not someone appointed by the Home Office, who might seem frightening to the young person. All age assessments must follow that ADASS guidance, or its equivalent in the devolved jurisdictions.
When an age assessment is conducted, the process must allow for an impartial multiagency approach drawing on a range of expertise, including from health professionals, psychologists, teachers, foster parents, youth workers, advocates, guardians and social workers. These are the people who might reasonably be expected to have some knowledge of the young person and whom that young person will trust, or at least find less intimidating then a stranger appointed by the Home Office—to add to which, these people come from the right groups and professions. Independent professionalism in this area is essential, because only that independence and sense of reasonable trust will remove what young people feel is hostility and doubt towards them, an atmosphere hardly conducive to making them feel welcome in this country.
Most important of all, when making regulations under Clause 51, the Secretary of State must not specify the scientific methods unless she receives written approval from the relevant medical, dental and scientific professional bodies that the method is both ethical and accurate, beyond reasonable doubt, for assessing a person’s age. Clause 51 allows the Government to introduce regulations specifying the scientific methods to be used to assess age, including
“examining or measuring parts of a person’s body”
“the analysis of saliva, cell or other samples”
and the DNA within them. These so-called scientific methods to assess age have been the subject of debate for many years; professional medical bodies have been unequivocal in their rejection of the use of dental X-rays, bone age and genital examination, describing them as “extremely imprecise”. The British Dental Association has voiced its opposition to the use of dental X-rays, as they are inaccurate and unethical. Research has shown epigenetics to have the same inaccuracies.
The Royal College of Paediatrics and Child Health does not support its members taking part in such age assessments precisely because the methods are imprecise and can, at best, provide only an estimated range for age. To add to which, as the royal college states, present methods used for bone age X-ray assessments use X-rays taken from average Caucasian children, while many of these young asylum seekers will not be Caucasian in background and may differ considerably in size and development. We need to ensure that any methods used stand up scientifically and have some serious basis of support among the relevant professional bodies. The Council of Europe has highlighted that
“physical and medical age assessment methods are not backed up by empirically sound medical science and that they cannot be assumed to result in a reliable determination of chronological age … several methods have been evidenced to have a harmful impact on … physical and mental health”.
Almost everyone agrees that using radiation for non-clinical purposes is unethical. Indeed, the Care Quality Commission, which regulates everything that goes on in our NHS in this country, argues for justifying each exposure to ensure that the benefit outweighs the risks. I could go on—but we absolutely need to ensure that this is done properly, and we must see this safeguard in the Bill, so that it is clear in primary legislation that any new methods must be formally approved by the relevant professional medical body before being introduced.
We really should not be introducing methods that may add to the pressures on children and young people’s already often fragile mental and physical health. We already know that the age-assessment process could cause a lot of anxiety to vulnerable children and young people, and have a negative impact. It could prevent them from accessing school or college while the age is disputed, and it could isolate them from peers, preventing them from integrating and accessing educational opportunities.
The consequences of getting this wrong are severe. Recent media reports have highlighted hundreds of children being placed in hotels and forced to share rooms and even beds with adult men they do not know—and this is children we are talking about. Between July and September last year, the Refugee Council assisted more than 150 young people into local authority care who previously had been sent to adult accommodation following a decision by an immigration officer. This is a disgrace. We can do better than this, and we must do so, and this amendment attempts to do just that.
My Lords, I speak in support of Amendment 64A, to which I have added my name. The noble Baroness, Lady Neuberger, has made the case powerfully for the amendment, which aims to introduce protections designed to alleviate the main concerns raised by myriad organisations, as she said, as detailed in Committee.
I shall build on what the noble Baroness said by picking up some arguments that were not adequately addressed by the Minister in Committee. First, he repeatedly tried to justify the use of dental X-rays in age assessment on the ground that they are already
“used as a diagnostic tool in ordinary dentistry”.—[Official Report, 8/2/22; col. 1566.]
He completely ignored my response that age assessment is not about diagnosing something that is wrong with a child—that is, there is no clinical justification for its use in this context. That he did not appear to get the distinction was described as a “cause of great concern” by the British Dental Association, which, as has been said, is totally opposed to the use of dental X-rays for the purpose of determining age.
Secondly, there is the related argument, put forward by the BDA and others, including the British Medical Association, that to use such methods in a non-clinical context is unethical. When I pressed the Minister on this point, he said that he would be going on to deal with the point I raised—but he did not. Nowhere in his response did he address the fundamental question of the unethical nature of such methods in this context. I know it was nearly three in the morning, but nevertheless I would have expected this most important point to have been considered. I am afraid that the subsequent defence of such methods in the factsheet published a couple of weeks ago did not do much to reassure me—nor did its suggestion that
“the UK is one of very few European countries that does not currently employ scientific methods of age assessment—such as X rays”.
A survey by the BDA of European sister organisations found that two-fifths—a significant minority including Germany and the Netherlands—did not use any X-rays for age checks, and my understanding is that some of the others are looking to move away from this method.
Given this, and given the arguments from the noble Baroness, Lady Neuberger, about consent, can the Minister give us an assurance that refusal to undergo such scientific methods should not affect the credibility of a child seeking asylum? If not, according to the British Association of Social Workers, it will amount to what they describe as “grotesque coercion”. Can he assure us that only methods specified in regulations should be used in age assessments? I urge him once again to close the loophole offered by Clause 51(9), which allows methods deemed either unethical or inaccurate by scientific advice nevertheless to be used for age-assessment practices.
I was also disappointed by the Minister’s response to my request that the Age Estimation Science Advisory Committee should include all the relevant dental, medical and scientific national bodies. He simply said that the committee would include a broad range of experts, but he did not include in his list the bodies that oversee the ethical use of the kind of scientific methods that the Government say that they want to use.
One of the arguments used to justify this part of the Bill is the harm that will be done if adults are able to pass themselves off as children. However, according to the Refugee and Migrant Children’s Consortium, in light of the supervision provided in children’s placements, this creates a much lower risk than when children are incorrectly treated as adults. The latter might be placed in detention or alone in accommodation with adults, with no safeguarding measures and the risk of abuse. Indeed, BASW warns in opposition to Amendment 64 that by treating age-disputed persons as adults there is a large risk that we have endangered children.
I read a heart-breaking example of what can happen in such circumstances just recently in the Guardian. It was a piece about four young asylum seekers from Eritrea who killed themselves after fleeing to the UK. The inquest of one of them, Alex, concluded that he had been wrongly assessed as an adult and that, consequently, instead of being sent to live with a foster family, he was moved to accommodation for adults, where he was violently assaulted and began drinking heavily. Although the mistake was rectified, the inquest noted that it contributed to the “destructive spiral” that lead to his death.
Any reform of age assessment must make such a tragedy less, rather than more, likely. Ideally, I would like to delete this whole part of the Bill but that is not possible. Therefore, this amendment represents a crucial piece of damage limitation. I hope that the Minister will accept it or, failing that, it will receive the support of the House.
My Lords, as the mover of the lead amendment in the middle of the night on 9 February, I will speak only briefly to support Amendment 64 in the name of the noble Lord, Lord Green. I do not support Amendment 64A, however well intentioned, because I worry about its perverse effects and the huge costs involved.
The background to my concern is that I have been utterly appalled by the number of asylum seekers pretending to be children—1,100 migrants in the 12 months to September 2021, as reported in the Daily Mail. I do not apologise for the fact that it first drew my attention to this dreadful situation. The numbers are growing as the numbers crossing the channel in boats grow, allowing for seasonal variations, although the Home Office is trying to reduce the focus on this by scrapping regular figures. This is the subject of my later amendment.
The incentives to cheating on age are substantial in terms of treatment, housing and support. I am worried about the wider implications: mature boys put alongside vulnerable girls in school can wreck their progress and even lead to abuse. Mixed ages in social care are a recipe for disaster and it can be worse than that: remember the Parsons Green bomber pretending to be 16 when he was much older?
The Government are right, therefore, to introduce new processes for conducting age assessments and to set up a system in support in the Bill. There seems to be agreement on this but, as has been said, much is left for regulation.
I was very glad that my noble and learned friend Lord Stewart of Dirleton acknowledged on 9 February —in the middle of the night—that we had raised a valid safeguarding issue. I thank him for that. I was pleased to hear that the Government are planning to monitor and evaluate the impacts of the policy and to develop the evidence base further. Unfortunately, that does not solve the problem the House of Commons amendments sought to address. We will have missed the boat for clarifying the law and introducing the certainty that authorities need to run a fair and safe system.
I am clear that we must have an effective and rigorous system of age assessment, not one that gives the benefit of the doubt to those saying, without documentation, that they are minors and encouraging the traffickers. The noble Lord, Lord Green, has exposed the problems with the system proposed and I feel that we need a better response.
I recognise the concerns that adults should not be able to be treated as children—that is a serious matter. None the less, I support not Amendment 64 but Amendment 64A for the following reason, in addition to what the noble Baronesses, Lady Neuberger and Lady Lister, said.
Thanks to Safe Passage I had the opportunity to visit one of its children’s homes, where there were a number of young asylum seekers from Afghanistan. I talked to a group of half a dozen of them. All of them, aged 16, had moustaches, and several had incipient beards. To anyone who did not know that those from other countries are more advanced physically than those from this country, who are much less likely to have moustaches or beards at 16, they would automatically look like adults and would be treated as such. Safe Passage was absolutely certain that they were only 16 and it had a lot of evidence to support that. I am extremely concerned that the amendment of the noble Lord, Lord Green, together with the existing clause in the Bill, will in fact treat young people like those Afghan 16 year-olds as though they are adults.
My Lords, I support Amendment 64A, in the name of the noble Baroness, Lady Neuberger, to which I have added my name. I declare my interests in relation to both RAMP and Reset as set out in the register. I am very grateful to the noble Baronesses, Lady Neuberger and Lady Lister, and the noble and learned Baroness, Lady Butler-Sloss, for outlining all the arguments for why this amendment is the right route to take. On Amendment 64, I hear the words about safeguarding but it is a dangerous route to take.
The needs of children have been starkly left unaddressed in so many areas of the Bill. The policies proposed to determine the age of the child are particularly concerning. The child and their best interests, rather than deterrence, must be the starting point in designing these policies. I support the amendment because it is imperative that such assessments are up to standard and based on scientific evidence. We should be seeing help for local authorities to improve their practice through multiagency working so that social workers conduct these assessments and that they are better supported with appropriate funding and training. Making the process stricter will lead to more children being treated as adults. This is extremely concerning given that they will then be placed alone in adult accommodation, with no support or safeguarding.
We have been assured that they will have the recourse of appeal at the tribunal. However, as we are hearing in other debates, the focus of the Home Office must be to get decisions right correctly at the first instance in a timely manner. We should not be introducing policies which will add to backlogs and lead to lengthy appeals. Our tribunal system does not need this, and neither do the children. I simply support this amendment, which sets out what an expert and fair age assessment should look like from the expertise of a coalition of more than 60 organisations, all of them professional, in this field.
My Lords, I veer between Amendments 64 and—unhelpfully—64A on age verification but what is important is that we have a trustworthy system. That is crucial; otherwise, we are in danger of fuelling cynicism and doubt about the whole system of refugee status.
We heard during Questions about the overwhelming generosity of UK citizens welcoming people from Ukraine. The broad public enthusiasm has been well noted, but I am afraid that the Home Office’s seeming ability to act speedily and with urgency is rather doubted. People are frustrated when they hear about things such as visa offices in Warsaw shutting up shop at 5 pm and closing over the weekend as though this is a kind of normal situation. There is a broad concern that, potentially, behind the scenes we do not trust the processes or the bureaucracy, and I think that includes age checks just as much as it includes allowing people to come to the UK, such as in the Ukraine situation.
One of the things that worries me is the sources of cynicism about the whole refugee process. The public feel that there is no control, and that if people declare themselves to be refugees when they arrive by boat, or declare that they are children, this will be accepted at face value and in good faith. The public do not want to feel that they are being taken for a mug. Age assessment is valid. Of course, doing so cruelly or insensitively is not welcome and would be terrible. If it is not the case that dentistry is the right scientific method, fine, but the principle surely is that we check the age of those who say that they are children. That is an important principle. Use whatever scientific method you want and be as kind as you want, but do not just say to the British public that anybody who challenges this is being cruel to children, because that is unfair. The unintended consequence of creating an impression that the process is not fair is a backlash whereby people start saying that they do not trust any of it. We know that the age issue is of some concern.
This is not a blame game, by the way. I realise that if I was a 21-year-old Syrian lad trying to get into the UK, I would say that I was 16. I do not blame anyone for that, and I understand it. Why wouldn’t you? I say good luck to them, in some ways, for trying. It is just that we as legislators are meant to be coming up with a system that the British public feel they can trust and that controls the borders. The inference that anyone who wants to tighten up the system does not care about children or does not care about people suffering in war zones is unfair and a misrepresentation.
My Lords, I rise to speak in favour of Amendment 64A, tabled by the noble Baroness, Lady Neuberger, in relation to the testing of children who may or may not be of the correct age. I think that everybody is united in believing that illegitimate people holding themselves up as children is wrong. However, how that gets assessed needs careful consideration. Can the Government think again as to whether the correct people for doing this investigation and the methods that they use, so movingly put, should be deployed by the Home Office, when local authorities have the equipment and the expertise to do this in a sensitive way which protects both parties? It is not okay for a minor to undergo treatment that adds to trauma, any more than it is right for an adult child to abuse a minor.
We ought to find a system that is fair and age-appropriate, and which gives people the benefit of the doubt until it is proved. Without the proper expertise, more harm can be done than problems solved.
My Lords, I rise to support Amendment 64A. Any way that we can make our systems fairer is something we must aim for. The Home Secretary said yesterday in the other place that we have a “unique scheme” for accepting refugees. Yes, it is a unique scheme. It is uniquely complicated. It is mean spirited. It is slow compared with those of every other country in Europe. It is not something to brag about. Quite honestly, sometimes I hear things said in the other place and in this Chamber, and I am ashamed to be British.
My Lords, my name, on behalf on these Benches, has been added to Amendment 64A. The House will be glad to have heard some very compassionate and rigorous speeches.
The noble Baroness, Lady Fox, talked about trust. Of course, that is hugely important. It may be the circles that I move in, but what young asylum seekers say—what many asylum seekers say—is not taken at face value; quite the contrary.
The noble and learned Baroness, Lady Butler-Sloss, talked of the young Afghanis whom she met. Amendment 64 refers to “demeanour”—I know that is not the term of the noble Lord, Lord Green, but it made me reflect on the fact that, as regards demeanour and appearance, we must be very careful how we regard people of a different culture from our own.
On Amendment 64A, so much of age assessment, as the Government present it, is about science. In Committee, the noble and learned Lord, Lord Stewart, acknowledged that there is no silver bullet, but the Bill itself and the Government’s argument rely very heavily on scientific assessment, although the scientific methods specified in the Bill are only physical examination and measurement and analysis of saliva, cell, DNA and other samples. So, it is particularly worrying that the relevant professional bodies are so loudly and clearly opposed to these provisions on the basis of ethics and because of concerns about the accuracy of tests and measurements.
A lot of factors are—or should be—in play in assessing age, using a range of professional skills. The Home Office fact sheet also acknowledges that there is no single method, scientific or not, that can determine age with precision, but then makes a particular point of referring to the Home Office chief scientific adviser. I ask the Minister: what disciplines will be covered, and will it involve professionals in the psychiatry and psychology parts of the scientific/medical world with qualifications, expertise and experience in assessing and treating young people who have gone through the experiences that young asylum seekers have frequently gone through? They must also have experience in dealing with asylum seekers and others who have undergone traumatic experience, dealing with them in a trauma-informed way and avoiding retraumatising them. I refer noble Lords to my Amendment 84C, which will be the very last to be discussed in this debate, probably some time tomorrow morning.
Clause 51(7) provides that the decision-maker must
“take into account, as damaging the age-disputed person’s credibility … the decision not to consent to the use of the specified scientific method.”
Clause 52(1)(f) provides for regulations about
“the consequences of a lack of co-operation with the assessment by the age-disputed person, which may include damage to the person’s credibility.”
I leave it to noble Lords to assess for themselves where that is leading or where the Government would direct us. How all that works, with the standard proof being the balance of probabilities, I am really not expert enough to be sure, but, taken together, it all worries me. I commend the rounded approach of Amendment 64A.
My Lords, given that misrepresentation of age is a matter of concern, it is very important that the determination of age should be conducted in a way that is robust, certain in application, equitable and reliable. In my view, Amendment 64A, in the name of my noble friend Lady Neuberger, absolutely fulfils those criteria; indeed, it is a template for such criteria. I strongly support the amendment and adopt everything she said.
Age assessment techniques must be proportionate and fair. If any intrusive measures are to be taken—including dental X-rays, for example—that must be based on proven evidence of scientific reliability, not vague opinions that it might add something. It must be done in a service setting that is suitable for dealing with children, who are the vast majority of the customers under consideration in the cohort we are discussing. I commend proposed new subsection (5) to your Lordships, because it sets out the principles behind my noble friend’s amendment concisely and correctly, in a way that I am sure is the envy of some parliamentary draftsmen who have tried to draft something along similar lines before.
As to Amendment 64, I have a feeling that my noble friend Lord Green of Deddington is probably quite enthusiastic about that Latin proverb that appeared on my school’s gymnasium wall: mens sana in corpore sano. I must say that it had little effect on me for about 50 years after I had seen it on the gymnasium wall, but later I began to appreciate its importance.
I take up the theme that my noble and learned friend Lady Butler-Sloss took up, concerning Afghan young men or boys with beards and moustaches. My noble friend Lord Green of Deddington’s amendment would clearly affect unfairly the physically fit, the tall and the physically strong. For example, it would disadvantage a 16 year-old who had trained in the Dynamo Kyiv football academy or one of those many young Ukrainian men who become stars around the world in basketball, who have trained and become very fit at an early age. I understand what my noble friend is trying to do, but what he has produced is ill conceived and rather discriminatory. It should not trouble your Lordships’ House very much.
I will add 60 seconds’ worth on Amendment 64. I am a trustee of the Refugee Council, which provides legal advice in a number of age assessment cases. The overwhelming majority of the cases we take on are won: the initial assessment has been wrong and the child is a child. The effect of this amendment, if carried, would be to put these children in harm’s way.
My Lords, I am pleased to support Amendment 64A in the names of the noble Baronesses, Lady Neuberger and Lady Hamwee, my noble friend Lady Lister and the right reverend Prelate the Bishop of Durham. I will not repeat all the concerns, but clearly there are safeguarding issues that a number of noble Lords have raised. I give one quote from the British Association of Social Workers, which warns that
“any age assessment proposals must recognise that although there is a risk when adults are wrongly assessed and treated as a child, there is a much greater risk when a child has been wrongly assessed and treated as an adult. It is predominately children who are wrongly sent and dispersed as adults, sometimes to unsafe accommodation and detention”.
As a last comment on Amendment 64A, it does not seem to me that there is any dispute about the need for age assessment, but the noble Baroness, Lady Neuberger, has set out that, if we are to have age assessment, which is clearly needed at times, let us do it on the basis of science and not of subjective judgments, whoever is making them.
I quickly mention the amendment I put down, Amendment 84D, which has not been mentioned yet. It would provide that the age assessment provisions apply to England only, and is clearly a probing amendment. The Minister will know that, while we would rather these provisions did not apply anywhere, this amendment is to reflect the concerns raised by the Welsh and Scottish Governments that clauses in Part 4 require legislative consent.
Welsh Ministers and three separate cross-party Senedd committees have advised that the age assessment provisions are within the legislative competence of the Senedd. When put to a vote, the Senedd voted to withhold consent from the UK Government’s intention to legislate on these matters. Its concerns were that the Bill creates a method of assessing age that is in “direct opposition” to existing practice in Wales; that the Bill
“does not recognise the devolved context of Wales”
and provides the Secretary of State with powers to impose conditions on Welsh local authorities; and, finally, that all unaccompanied asylum-seeking children are recognised as looked-after children in Wales. This will leave local authorities trying to navigate two “statutory but conflicting” approaches.
This is an important probing amendment about what engagement the Government have had with the devolved Administrations and the grounds on which they are disputing that legislative consent is necessary. What are the Government saying to the Welsh and Scottish Governments about this?
My Lords, I thank all contributors to this important debate. I acknowledge at the outset the feeling around the House as to the importance of these matters, so powerfully put forward by the noble Lord, Lord Coaker, just a moment ago.
The first amendment that your Lordships have had to consider is Amendment 64, so I will start with that. It is important to note that immigration officials already conduct initial age assessment on individuals whose age is doubted. This amendment seeks to lower the current threshold so that a more straightforward assessment of whether someone is under or over 18 is made, based on appearance. I will return to the matter raised by the noble Lord, Lord Carlile, as to the different rates at which people age, depending on their ethnicity and the social factors to which they have been exposed. We must acknowledge the difficulty in assessing age through a visual assessment of physical appearance and demeanour. Clear safeguarding issues arise if a child is treated inadvertently as an adult, but equally if an adult is wrongly accepted as a child.
Our current threshold, specifically deeming an individual to be adult where their physical appearance and demeanour very strongly suggest that they are significantly over 18, strikes the right balance. It has been tested in the Supreme Court in the case of BF (Eritrea), to which the noble Lord, Lord Green of Deddington, made reference, and has been found comprehensively to be lawful. Given that judgment, and the fact that immigration officials already execute this function under guidance, the value of legislating to bring this into primary legislation is unclear. That said, I acknowledge the value of the work that the noble Lord, Lord Green of Deddington, has carried out, to which my noble friend Lady Neville-Rolfe referred, into the ingathering of data in such a way as to provide a basis on which our deliberations can proceed. However, in the light of what I said, I invite the noble Lord to withdraw his amendment.
I turn now to Amendment 64A. Again, I thank the noble Baronesses, Lady Neuberger, Lady Lister of Burtersett and Lady Hamwee, for their amendment. I make it clear to the House that there is no appetite to start conducting comprehensive age assessments of all, most or even many people who come before the system, because in most cases it will be possible to resolve doubts as to someone’s claimed age without any such investigation. Indeed, the courts have made it clear that they are against any judicialisation of the procedure, and have overturned judicial reviews based on the idea that age assessments were carried out wrongly in circumstances where two social workers conducting the Merton assessment—which these measures seek only to augment, not replace—considered persons patently above the age of 18 who claimed to have been younger. The courts have supported the social workers in those assessments. To provide that there should be wider use of scientific age assessments would serve no purpose and take away significant resource from the main task of seeking to establish the age of those individuals whose age is in doubt.
Subsections (2), (3) and (4) of Amendment 64A are unnecessary additions. Our intention is that the statutory national age assessment board will consist predominantly of qualified social workers, who will be expected to follow existing case law in carrying out these holistic age assessments. The matter of scientific age assessment has quite properly concerned your Lordships. Clause 51 already contains safeguards for those who are asked to undergo a scientific method of age assessment, and in answer to the specific point raised by the noble Baroness, Lady Lister of Burtersett, I say that where a good reason emerges for declining to participate in age assessment there will be no adverse impact on credibility.
I reiterate the point made at the earlier stage. It is not considered that any of these scientific methods should replace the tried and tested method of assessment by social workers, known as the Merton assessment. The intention is merely to broaden the availability of evidence that might assist to provide more data, on which these professionals can carry out these exceptionally important tasks.
Decisions on this issue also have broad implications for the exercise of immigration functions and the provision of children’s services to unaccompanied asylum-seeking children. Decision-making as to where and how such scientific methods should be used must, we say, remain within government, taking into account independent scientific advice. I reiterate that this measure does not provide that these scientific methods of age assessment will take place. It provides that the Government will be able to consult an expert board on what is suitable. The intention is not to undermine the role of social workers in carrying out these assessments, merely to provide additional data with which they might work.
We agree that the independent professionalism that such persons bring to bear is of the utmost importance. However, we question whether the amendment has value when it provides that scientific age assessments may take place only where their ethical approach and accuracy has been established beyond reasonable doubt: first, because that is to import the highest test of assessment of evidence from the criminal courts into an inappropriate category; and secondly, because we fully appreciate that these assessments are not of themselves accurate, as I sought to make clear at the earlier stage. They are intended not to replace but merely to augment, where thought desirable, the data available to social workers carrying out these assessments.
My attention and that of the House was drawn by the noble Baronesses, Lady Neuberger and Lady Lister of Burtersett, to the opposition of the professional bodies in relation to the carrying out or use of these techniques. Again, the document of the British Dental Association seemed to me, from the text, to have been prepared on the understanding that what was intended was a replacement of Merton-type assessments by a scientific method that—we accept—will not accurately determine, within a suitable margin, a person’s age in every case. That is why it is important to emphasise that we are not proposing some means by which data will be put into a system and an answer that we will assert to be correct will be provided. We accept that this is a holistic matter, for the interpretation of a broader range of data, much of which must necessarily be subjective, depending as it does on the assessment of social workers proceeding without documentary evidence against which to assess claims. Following the previous stage, we talked about the implications of using scientific techniques, which could include ionising radiation, if the committee were to recommend to the Government that this may be of value.
The Home Office has a statutory commitment in relation to safeguarding the welfare of children. These assessments are being introduced to help to better protect children from being treated as adults and to ensure that vulnerable children can swiftly access the support that they need. The United Kingdom is one of the few European countries that does not currently employ scientific methods of age assessment. Again, the noble Baroness, Lady Lister of Burtersett, drew to your Lordships’ attention the fact that two in five European countries do not use X-rays. I have been given some figures that I shall happily commit to writing to her with, but the team in the Box advised me to say that they do not recognise these figures—which means that we collectively, as HM Government, do not recognise these figures. According to the European Asylum Support Office, 19 countries in Europe use dental X-rays and 23 use carpal—wrist—X-rays, because it appears that there is something to be observed in the fusion of certain bones.
I hear what the noble Baronesses, Lady Neuberger, Lady Lister of Burtersett and Lady Hamwee, said at this stage and at previous stages about countries moving away from this form of testing; I am obliged to the noble Lord, Lord Paddick, for nodding his head. We propose not to introduce this but to devolve the matter to a committee that can then advise the Government on the usefulness of its introduction. If there is a move away from these practices, as noble Lords and noble Baronesses have asserted, we can expect to be advised on that by the committee that is being established.
To the noble Baroness, Lady Hamwee, who asked about the constituent professions of the body that was being set up, I regret to say that I do not have the full spectrum to hand. I think that I mentioned this fairly exhaustively in the last stage so it will be in Hansard but, if it is not, I am grateful that she will accept my writing on the topic, as I see from her nod.
Finally, I am also given to understand that the use of dental X-rays, techniques and observation is current in the Federal Republic of Germany—
My Lords, I refer to my interests in this matter in the register. In the event of the Government’s having advice that they proceed with this, whom do they envisage will carry out these dental X-rays? If they are doing so without the consent of the person concerned, will that be a breach of the ethical guidelines? If they are being carried out by non-qualified people, is that not also an offence for those carrying out those X-rays?
If I may, I will revert to the noble Lord’s point in the course of my submission; the specific questions that he raised will need some detail, which I do not have to hand but hope to be supplied with before I sit down.
I was talking about the use of ionising radiation in these matters. As I have said previously, the use of ionising radiation in the United Kingdom is highly regulated, and we will ensure that methods used comply with all regulatory requirements and standards. The Age Estimation Science Advisory Committee will have been asked to advise on the ethical considerations for the use of medical imaging techniques. As I have said, the Home Office is exploring a number of potential methods that do not involve ionising radiation, but these may require further research and development to support their technical and commercial viability in assessing the ages of age-disputed persons.
It is important to recognise that techniques develop. In the forensic context, for example, it has been the practice when considering child pornography to employ professional persons—paediatricians and others—to make an assessment of the appearance of the unfortunate people recorded in these images, and to assess from appearance alone what age they were, for forensic purposes, in order that the appropriate criminal charges might be brought.
Also in the forensic context, we recognise that scientific techniques move on. When I was called to the Bar and started to look at criminal work, there was no DNA analysis. Blood testing was available, as was blood group analysis, to assist in drawing certain conclusions. It was not nearly as accurate as DNA testing, but it was available and could in some circumstances exclude a person from suspicion or bring a person into suspicion. Thus, although it did not purport to be able to answer questions with the degree of precision and accuracy that DNA analysis has, it was none the less a valuable technique. It may perhaps be useful for your Lordships to look at what the Government propose ultimately in that context, not as something that will provide a comprehensive answer to exclude all others but, rather, as an additional source of information, which might—I repeat, might—assist, or might be considered to have no value.
Amendment 64A calls for the establishment of a committee independent of the Home Office to consider these matters. It is, however, standard practice for the Home Office to convene its own scientific advisory committees as a forum for policy-making. The Home Office has announced the direct appointment of an interim committee of nine independent members, including the chair, to review the scientific methods of age assessment. The interim chair and committee members were appointed by the Home Office’s chief scientific adviser for a period of not more than 12 months. I return to this point—it may be that I will not need to write to the noble Baroness, Lady Hamwee, but the current interim committee includes experts involved in medical statistics, children’s social work, anthropology, psychiatry, paediatrics and radiology. The intention is that, from this broad range of disciplines, a holistic view of the issues involved in age assessment can be arrived at.
A submission was made, I think by the noble Baroness, Lady Neuberger, about the different appearances of persons coming for assessment. We acknowledge the contributing factors of ethnicity, diet and life experience that may have an effect on things like bone development, and therefore on the results of a scientific age assessment. We will be in a position to take into account all these factors, and I stress once again that the intention is not to present these scientific age assessments as a means of determining the question once and for all but rather, potentially, as available evidence, depending on the views of a committee.
It was my noble friend Lady Shackleton, I think, who questioned the fitness of the Home Office to assess such claims. The figures that I have been given are that the Home Office grants refugee status on humanitarian or humanitarian protection grounds in 90% of cases of unaccompanied asylum-seeking children.
The Government are embarking on this process so that more data is available to assist in what is, necessarily, a difficult area, and one where—as I pointed out to the House on a previous occasion—the Merton assessments undertaken by skilled and experienced social workers may throw up radically different conclusions from examinations of the very same persons. Anything that can be done to assist in that process, by providing additional data, ought to be welcome.
I turn briefly but gratefully to—
My Lords, I am sorry: by “briefly” I did not intend to suggest that I was about to sit down, however welcome that may be to the House. I am, however, grateful to noble Lords for assisting me on the matter of the time allowed.
I am reminded that the right reverend Prelate, the Bishop of Durham, raised points about the manner in which assessments are carried out, and I again emphasise that the persons carrying them out are trained social workers, and it is not anticipated that that will change.
Amendment 84D, tabled by the noble Lord, Lord Coaker, deals with the manner in which these matters will be considered across the United Kingdom. The noble Lord wanted to know why it was being done on a national basis as opposed to within the devolved Administrations. We cannot do that, because these matters are reserved to the United Kingdom Government and apply across the UK. These age assessment measures will apply exclusively to those subject to immigration control, and immigration is a reserved matter. The overriding objective of the age assessment measures in the Bill is to ensure that there are appropriate arrangements in place to determine the ages of people coming to this country without evidence—usually in documentary form—of their claimed age. That is why it is the Government’s view that these measures relate entirely to immigration and are therefore reserved to the UK Parliament.
The comprehensive reforms we are making to the age assessment system are designed to help and support the local authorities that will carry out these tasks. For example, the new age assessment board will carry out an age assessment where a local authority makes a referral. It is not quite all-imposing upon the local authorities, but rather, makes available something to assist should they consider it desirable.
Where the new national age assessment board carries out an age assessment on referral by a local authority, it will defend that assessment in the court if challenged. This will reduce local authority costs and legal exposure, while improving the quality and consistency of decision-making. Referral would be entirely voluntary. If we were to follow the terms of the amendment—I appreciate that the noble Lord’s amendment is a probing one to test the position—this would exclude local authorities in Wales, Northern Ireland and Scotland. By that means, we would be penalising those local authorities by removing the benefits of these reforms and taking away important support which local authorities in England would be able to utilise. From a practical point of view, this risks creating a confusing and complex system with significant differences in how age assessment disputes are handled, depending upon where in the United Kingdom these matters are being raised. We consider it unreasonable and undesirable to oblige local authorities and young people, irrespective of whether they are a child or a young adult, to navigate such complexity.
However, the Government recognise the very important role which local authorities will continue to play in age assessment, and we are committed to continuing to work with them to achieve our collective aims. We also welcome continued engagement with the devolved Administrations and look forward to how these measures will be implemented. But we bear in mind that this is a national system for a matter reserved to the national Government, and we consider it undesirable that even slight wrinkles should emerge between treatments across the United Kingdom.
I propose to conclude—
I propose to conclude by merely echoing the words of the noble Baroness, Lady Fox, opposite. She says that it is above all important that there should be confidence in the means by which these decisions are taken, and it is to augment that confidence that we propose these measures. On that basis, I respectfully invite the noble Lord to withdraw the amendment.
My Lords, there may well be a Division on the second of the amendments in the group. In which case, can we take it that the House will not resume until we have had the opportunity to come back to your Lordships’ House, even if it is a bit after 5.15 pm?
My Lords, there was no attempt on my part to forestall any Division, and I apologise if ignorance of procedure perhaps led to the suggestion otherwise. [Interruption.] I am grateful to my noble friend for indicating that that was not his position.
Consideration on Report adjourned until not before 5.15 pm.
My Lords, we had a long debate and the House will be glad to know that I shall be extremely brief. I am grateful to the noble Baroness, Lady Neville-Rolfe, for her very powerful contribution to my case. To sum up: we need the support of professionals in this matter, as the noble Baroness, Lady Neuberger, said, but also the support of the public, a point raised rightly by the noble Baroness, Lady Fox. Very briefly, we face having asylum seekers arriving by the tens of thousands, as I mentioned. They are clearly briefed to destroy their documents—only 2% of them have them—and the number of those who claimed to be children but were found to be adults was 1,500 last year. That was five times any previous year, so there is a case there.
The Government are right to get on the case and I hope they will have a useful negotiation with those who think otherwise. This is clearly a difficult policy area, but I leave it to the Government to take matters further. Meanwhile, I beg to withdraw my amendment.
Amendment 64 withdrawn.
64A: After Clause 56, insert the following new Clause—
“Age assessments: restrictions
(1) Age assessments under section 49 or 50 must only be undertaken if there is significant reason to doubt the age of the age-disputed person.(2) A person conducting age assessments under section 49 or 50 must be a local authority social worker.(3) Age assessments must be undertaken in accordance with the Association of Directors of Children’s Services Age Assessment Guidance or equivalent guidance in Scotland, Wales and Northern Ireland.(4) When an age assessment is conducted, a process must be used that allows for an impartial multi-agency approach, drawing on a range of expertise, including from—(a) health professionals,(b) psychologists,(c) teachers,(d) foster parents,(e) youth workers,(f) advocates,(g) guardians, and(h) social workers.(5) When making regulations under section 51, the Secretary of State must not specify scientific methods unless the Secretary of State receives written approval from the relevant medical, dental and scientific professional bodies that the method is both ethical and accurate beyond reasonable doubt for assessing a person’s age.(6) Any organisation developed to oversee age assessments must be independent of the Home Office.(7) The standard of proof for an age assessment is reasonable degree of likelihood.”
Clause 57: Provision of information relating to being a victim of slavery or human trafficking
65: Clause 57, leave out Clause 57
I start by declaring my interests in the register and my work in the Rights Lab at the University of Nottingham and as an unpaid trustee of the Human Trafficking Foundation. It is a privilege to follow what was a historic event. I think we all watched President Zelensky in one place or another and will wish him well in combating the illegal invasion of Ukraine.
If noble Lords will allow me, I will also take one minute to congratulate the noble Baroness, Lady Williams, on her elevation to the Privy Council. This is the first chance I have had to do so with the noble Baroness present. I think there is universal acclaim for that. Everybody across the House is pleased to see somebody who is decent and honest and has integrity—even if we sometimes clash on views and opinions—receive that honour.
Now back to normal. In speaking to Amendments 65 and 66 and agreeing with all the various amendments in this really important group on modern slavery, I will repeat a couple of general points and then move to something that has come to light since the debate in Committee. I know it is a great disappointment to everyone that this modern slavery part of the Bill is in an immigration Bill. That sets a really unhelpful context and inevitably conflates immigration and slavery in a way that even probably the Government, and certainly the Front Bench here, would not want to. That is to be regretted.
It is very helpful that the Government have produced a set of statistics that are relevant to the whole debate on this group. Sometimes the Government say they do not agree with figures that are used, but these are the Government’s own figures, produced by the Home Office on 3 March—a few days ago. The document is titled Modern Slavery: National Referral Mechanism and Duty to Notify Statistics UK, End of Year Summary, 2021 and is really helpful to our debate.
I do not want to make a Second Reading or Committee speech, but these statistics have been introduced between our last debate and this Report stage, and they are of particular relevance. I do not understand one of the things the Government have done when there is a flagship Conservative government achievement—something of which we are all proud. I am a Labour politician, and I think the Modern Slavery Act that the Government passed was marvellous, so I do not understand why they are proceeding with Part 5, which undermines many of the principles on which the Act was established.
These statistics are so relevant to my Amendments 65 and 66, and indeed Amendment 69, which would leave out Clause 62, which other noble Lords have signed. They drive a coach and horses through the Government’s reason for doing this. The Government are persuaded to pursue the measures in these clauses because they say that people being referred to the national referral mechanism are using it as a way of circumventing immigration law and as a backdoor way of getting into the UK and overcoming different regulations.
I point out for the Government—the Minister will no doubt want to point this out—that referrals to the national referral mechanism have increased by 20% in the last year. There has been a 20% rise in referrals—let us get that out there. If I were the Government—and you never know—I would, instead of saying that it is a problem, say that it is a sign of the Government’s success in identifying more victims of modern slavery, bringing them forward to the system and offering them support. I would defend it and say, “Isn’t it great that we are uncovering more examples of this?” Of course, if people are circumventing the system, you would expect the system to pick it up and deal with them in the appropriate way. But the Government have chosen, through Clauses 57, 58, 62 and other clauses that other noble Lords will speak to, to drive a coach and horses through that. Anyway, let us bear in mind that that is one of the statistics.
One of the big arguments against Clauses 57, 58 and 62 is that they fail to recognise the fear and intimidation that victims of modern slavery—even the ones that the state finds—feel. How do I know that? I will use the Government’s own figures to prove the point. In the same figures from which I quoted what the Government will quote about the increase in referrals, let us also look at the fact that duty to notify—that is, the process by which adults do not consent to be referred to the mechanism but the first responders have a duty to tell the national referral mechanism that they have people and suspect slavery—has gone up by 47%. In other words, there is already a huge increase in the numbers before the implementation of Part 5 of the Bill. Before the implementation of Clauses 57, 58 and 62, we are already seeing a huge rise in the number of people who are too frightened and will not consent to being referred to the national referral mechanism.
That is the figure the Government should be worried and concerned about, and I am sure they are. I am not saying that people do not care about it—of course they do—but I absolutely fail to understand why anybody who cares about that, as the Government do, would then proceed to introduce a law that will make it worse. The problem is not the increase in referrals of people who consent, or the circumvention of the system, but the failure of the system to generate confidence in people who may be the victims of slavery to come forward and seek the support and help they need. How do I know that? Because the Government’s own figures, published last Friday, tell us that. It is not made up.
I will tell your Lordships what is going on in the Home Office. A debate will be going on between the immigration part of it and the modern slavery part. There will be a debate between Ministers, and they will be saying, “Noble Lords are going to raise this—or they may not notice it”. Well, it is right on the Home Office website; it is the first thing there. If noble Lords have not seen them, it is worth looking at those statistics and seeing for themselves what they say. They drive a coach and horses through the Government’s point of view. That is why there are all these amendments leaving out various clauses.
Amendments 65 and 66, in my name and those of the noble Baronesses, Lady Hamwee and Lady Meacher, and the right reverend Prelate the Bishop of Bristol, would remove Clauses 57 and 58. It is unclear to me what problems the Government are trying to fix with these changes. What is gained by these clauses? The cost of them is stark, as I have tried to lay out.
Clause 58 provides that decision-makers “must take account” of a missed deadline, which damages a victim’s “credibility” unless there are “good reasons” not to. We had a huge debate about what “good reasons” means. Why is the NRM suddenly not to be trusted to make decisions and to give weight to what matters? Who are the NRM decision-makers? Do we not trust them to make these decisions and realise when there is a difficulty? I would have thought we do. Through all our discussions, there has been no guarantee at all from the Government on what would count as a good reason. In the provisions there is no recognition of the trauma, the exploitation and the fear of authorities. In those figures I quoted, your Lordships can see the fear, the exploitation and the concern of victims—they will not come forward, because they are frightened of the consequences.
Clause 62 is a key part of the Bill and the part the Independent Anti-Slavery Commissioner told us would make it harder to prosecute human traffickers. There is hardly a sentence in the Bill about the prosecution of human traffickers—something we all wish to see. The Government turn around and say that it does not matter, because these are only serious offences. The Government cite terrorism ad nauseam and list it—I know the Government do not like lists, but they have lists when it suits them. Then they point to Schedule 4 to the Modern Slavery Act in the belief that we will not read Schedule 4 to the Modern Slavery Act, because that also refers to offences that can be designated as public order offences. If you read Schedule 4 to the Modern Slavery Act, which of course is not listed because it does not suit the Government’s argument, you find out that included within that are minor crimes such as robbery or damage to property. Those are included with the sort of thing that can be taken into account as an affront to public order.
The Government’s answer, of course, is that no sensible person would do that, or that it will be judged on a case-by-case basis. I say that we are passing primary legislation, and in primary legislation doing the right thing should not be left to chance. Primary legislation should be clear and concise.
I know that we do not like to quote previous Prime Ministers, but Theresa May herself pointed out that she was concerned about the impact of these clauses on public order. She said in the House of Commons that she was worried that it would put off victims from coming forward.
I strongly support Amendment 68A, which I know the noble and learned Baroness, Lady Butler-Sloss, will say more about; the noble Lord, Lord Randall, has unfortunately had to go home, so I will leave that to her. It would replace Clause 62 with a new version that focuses on situations where a person may pose a genuine threat and not on victims who may have a minor criminal history. I look forward to hearing the noble and learned Baroness when she moves that amendment, which I strongly support.
I also strongly support Amendment 70, in the name of the noble Lord, Lord McColl, which has significant cross-party support. It proposes what the Government should be doing, instead of some of the appalling clauses in the Bill. It seeks to guarantee support for confirmed victims of trafficking. I look forward to the noble Lord’s introduction; I fully support what he is doing.
Turning to Amendment 70ZA, in my name and those of the noble Baroness, Lady Hamwee, and the right reverend Prelate the Bishop of Durham, I do not understand why something in the Bill would treat children in exactly the same way as adults. It is just beyond belief that the Government consider doing that. Indeed, in Committee, the Minister, the noble Lord, Lord Wolfson, said
“it would be wrong in principle to create a carve-out for any one group of individuals, and to create a two-tiered system based … on age”.—[Official Report, 10/2/22; col. 1845.]
I do not often fundamentally disagree—well, I do—but on this issue, I cannot say how much I disagree with that comment. I just cannot understand it. The noble Lord is a distinguished lawyer and barrister. The law treats people differently on the basis of age; why? It does so for reasons that are well established, yet in this Bill, with respect to slavery we are treating people of any age in exactly the same way. It is nonsensical; it generates disbelief. I cannot understand why anybody would do it. Should the House divide, I hope that noble Lords will support it.
Despite the number of exploited child victims who are traumatised, the Government have brought forward provisions that have no specific recognition of children. That is not normal policy-making. The amendment would provide that the best interests of the child must always be the primary consideration, that a slavery or trafficking notice may not be served on child victims, and a number of other things. I will not go through the amendment, but noble Lords will see that for what it is.
I say once again that I cannot believe, in a legislature in 2022, when we are talking about modern slavery, that a child victim who turned up to a first responder would be subject to exactly the same provisions as an adult. I do not think that that is right. Maybe others will have great legal and logical opinions, but I think that you do not treat children in the same way as adults. It does not mean that you excuse illegality, but you do not treat them in the same way. Of all the amendments, that is the one that I feel most strongly about.
I very much support the amendments in the name of the noble Lord, Lord Alton. They cover many of the same issues that I have touched on in my amendment on children, ensuring that the burden of proof for a victim to enter the NRM is not heightened by the Bill.
To conclude on this group, I repeat, because it is so important, that I cannot believe a Conservative Government would drive a coach and horses through the principles on which one of the flagship policies of their tenure in office—however long that lasts—was based, which is globally recognised and seen as a torchbearer, and all in the name of an uncontrolled increase in the numbers being referred to the NRM of people who are using it as an excuse to circumvent the Immigration Rules. The Government should sort that out, rather than undermining their Modern Slavery Act.
My Lords, I refer to my interests in the register as a trustee of the Arise Foundation, a charity that works for victims of modern slavery and against human trafficking. It is a great pleasure to follow the noble Lord, Lord Coaker, and to endorse everything he said about this group of amendments. As he said, in my name are Amendments 67 and 68, and I have signed Amendment 70, in the name of the noble Lord, Lord McColl. I should say at the outset that my noble friend Lady Prashar is unwell, and we all wish her a speedy recovery to her usual place. I thank the right reverend Prelate the Bishop of St Albans for also being a signatory to these amendments.
Before I turn specifically to the amendments, I endorse what the noble Lord, Lord Coaker, said in congratulating the noble Baroness, Lady Williams, on her elevation to the Privy Council; the whole House would agree with him. Also, what an extraordinary backdrop to today’s debate and to this Bill it was for us all to have been privileged to sit in the Gallery and listen to President Zelensky. The UNHCR suggests that as many as 3 million people will be displaced and become refugees, joining the 82 million people who are displaced or are refugees worldwide at this time. What a backdrop to our consideration of how we can deal with people in a civilised and humane way, but also our consideration of the fundamental and root causes of this massive displacement of people, which we so regularly fail to address.
The points made so well by the noble Lord, Lord Coaker, about the national referral mechanism and the way we treat children are especially close to my heart. Without wishing to repeat either the points I made in Committee or anything said by the noble Lord, I will try to summarise the arguments relatively briefly.
The NRM is a vital mechanism for the recovery and safety of survivors of modern slavery. Since its introduction, with the work of successive Governments, including the introduction of the vitally important Modern Slavery Act by a past Conservative Government, as we have heard—described by the noble Lord as “flagship” policy—the UK has become a global leader in countering the evils of trafficking and modern slavery. It will be a lasting legacy to the right honourable Theresa May, who pioneered this when she was Home Secretary, with support from all quarters: it was bipartisan and bicameral legislation.
Many of us sitting on these Benches participated in those proceedings and helped to improve that legislation, which was not driven through in a pell-mell rush but given proper consideration with pre-legislative scrutiny at every stage. People were engaged and involved in these sensitive and complex issues. That contrasts somewhat with the speed with which we are driving forward quite a lot of legislation at the moment. It reminds me of the old saying: legislate at speed and repent at leisure. I feel that we may well end up doing that.
The NRM, like so many things, is not perfect, but I, along with many across the House, I am sure, would draw parallels between the NRM and the succour it offers to vulnerable people and the campaigns in another age, of people such as William Wilberforce. Both are drawn from a strength of will and compassion that makes our country unique, and we should not squander that. Although I do not believe that any of us here today would wish to diminish the achievements of all those who sat here in both Houses and strived to support some of the most vulnerable, we have to look at the practical application of what it is that we are being invited to do. Clause 59 will do that—it will diminish what we have set our hands to. With this clause, we would close the door for many to the safety of the NRM. The clause will, in effect, raise the bar that these people must meet to obtain a positive reasonable grounds decision and the safety and support of the national referral mechanism, leaving them with a stark choice between returning to their chains or etching out some half-existence.
The House may ask why this is being debated at all. The Government believe that the NRM is being taken advantage of and that the threshold needs to be strengthened to prevent this. I am sure we will hear that argument from the Front Bench again, and the claim that the rise in the number of individuals—the noble Lord, Lord Coaker, referred to this earlier—some of whom are in detention or on remand, entering the NRM is a sure sign of an issue, and that the only explanation must be that criminals are somehow exploiting the national referral mechanism to prevent their deportation.
I asked the Minister when I last spoke here on this matter, in Committee, to share the Government’s evidence with this House. I must say I have seen very little to support their argument. To argue, as they do, that the reason for an increase in referrals to the NRM must be a discrepancy reflects a leap of logic that is terrifying given the impact it would have on so many already traumatised individuals. While by the Government’s own statistics there has been a rise of about 11% in the prevalence of NRM referrals for people detained for immigration offences, like the noble Lord, I deplore the fact that we have lumped together in the same Bill immigration issues and these much more sensitive questions around human trafficking and modern slavery. There does not seem to be a clear correlation with criminality to me.
Indeed, the Government themselves, in their 2019 annual report, highlighted key communication campaigns to raise awareness of slavery and support referrals, as well as their progress
“to simplify and speed up referrals of potential victims of modern slavery for government support”.
Could these points raised in the annual report be reasons for the 11% rise, rather than a mark of rising abuse of the system? The evidence for this seems to increase when you consider that the vast majority of those who get a positive reasonable grounds decision go on to receive a positive conclusive grounds decision.
In their new plan for immigration, the Government made it clear that they believe that the threshold for a reasonable grounds decision is too low, but we are yet to see the evidence of this. Only this morning, the Salvation Army, which has been a principal adviser to the Government on these questions—as referred to by the noble Lord, Lord Coaker—said to me that, according to the most recent set of NRM statistics published by the Home Office, in the last quarter of 2021 89% of reasonable grounds decisions and 94% of conclusive grounds decisions were positive. This begs the question, once again, of why the Government feel the need to change the threshold. Their own data makes it overwhelmingly clear that concerns around individuals abusing the system are absolutely unfounded.
Many of those on the ground supporting vulnerable people every day, such as the Salvation Army, believe it is already harder today to get a positive decision than it was even a year ago. Moreover, many were already concerned that the NRM underrepresented the true number of victims, even without the threshold being raised. Increasing the threshold further would place too high an evidence burden on victims prior to them receiving specialist advice and support. This will block victims from accessing trafficking support. This will include child victims, as we have heard, and those who were children at the time of being exploited. This should not be undertaken unless we can prove beyond doubt that there has been a rise in criminality linked to false referrals to the NRM. Without that certainty, we risk only harming some of the most vulnerable in our society and reneging on our responsibility to support all who suffer.
Sadly, it seems clear to me that the Government’s case is informed by neither the evidence nor the experience of people who the NRM is designed to save. The UK has committed itself to fighting the exploitative practices of slavery where it has influence. Essential to this commitment is the notion that all who suffer under the hands of traffickers and slavers are entitled to safety and support. That is why I have laid Amendments 67 and 68 before your Lordships’ House.
To avoid a Division this evening, I simply ask for a commitment from the Government to engage and consult with the anti-trafficking sector in the coming months on the statutory guidance linked to this Bill. If the Government are prepared to do that, that would go at least some way to meeting some of the arguments I have advanced.
My name is also on the amendment to be moved later by the noble Lord, Lord McColl. It’s proposal is the right thing to do and it makes policy sense; I spelled out my reasons in Committee. Let me just remind the House what the anti-slavery commissioner has said:
“There is a powerful moral argument for granting leave for those whom the state has concluded are victims of trafficking or slavery but there is also a practical one. Without such leave survivors, who are not claiming asylum or who have not been granted EU settled status, are not entitled to accommodation and have limited access to benefits—they will either be unable to leave safe houses or left destitute on the streets.”
We can put victims on the road to recovery with Amendment 70, and I shall be supporting the noble Lord if he decides to divide the House on that matter.
In saying those words, I commend to the House Amendments 67 and 68.
My Lords, I declare my interests, which include being a vice-chairman of the Human Trafficking Foundation.
I would like first to thank the Minister, the noble Lord, Lord Wolfson, for including me in the letter to the noble Lord, Lord Randall. Very unfortunately, the noble Lord, Lord Randall, has just tested positive for Covid, as a result of which I shall move Amendment 68A at the appropriate point on his behalf, as my name is down.
I would like to start by asking two questions of the Government. First, why do the Government, as they have for years and years, always see victims of modern slavery through the lens of immigration? It is extremely sad. In the years I have been in this House, I have fought against this, as many other noble Lords have, with absolutely no success. It remains not only in the Home Office but absolutely wedded to issues of immigration. No more stark an example of that could be seen than Part 5 of this Bill.
Secondly, why not listen to the whole modern slavery sector, opposed to the whole of Part 5, including, as we have already heard, the Salvation Army, the anti-slavery commissioner, the United Nations rapporteur and, perhaps most interestingly, Caroline Haughey QC, who has been advising the Government for many years on issues of modern slavery? The Government seem unable or unwilling to listen to a sector that knows what it is talking about. It really is extremely sad. The sector has been telling the Government this from the moment that the Bill came on the stocks.
I am also very concerned about the impact of Clauses 58 and 62, particularly in relation to the statutory guidance issued on modern slavery last month—in Committee, I read passages, which of course I will not do on Report. Throughout that statutory guidance, it is clear that those who will be dealing with potential victims of modern slavery will have to bear in mind the trauma of what they have gone through. Very careful advice is given, and particularly helpful parts are at pages 102 and 106, under Annex D, that set out the difficulties that victims of trauma have in giving appropriate and truthful answers at the very beginning. Then, for goodness’ sake, one looks at Clauses 58 and 62 and sees that, if information is not given quickly, you are seen as someone who is not reliable and likely not to be a genuine victim. It is utterly contrary to the Home Office’s own statutory guidance.
I find this absolutely astonishing, because, as all of us who have any interest in or knowledge of this area will know, it is very difficult for victims of trauma, in whatever situation, including modern slavery and human trafficking, to come clean about what really happened to them at an early stage. My goodness, Members of your Lordships’ House have now heard about this over a number of years on various Acts of Parliament. This part of Part 5 will do irreparable damage to those sort of people, who are the majority.
I turn now to children. I vividly remember talking to a Minister in this Chamber—it was probably the noble Baroness, Lady Williams—when I suggested that it was wrong for children to go through the NRM. The Minister agreed that children should not go through the NRM. Part III of the Children Act 1989 places an obligation on local authorities to take children into voluntary care when they come to their area and need help. Most children generally go through this process. The local authorities look after these children and the Modern Slavery Act has provided what we now informally call “guardians”. That is the right process.
Amendment 70ZA should not be necessary. The noble Lord, Lord Coaker, quite rightly tabled it because the Government refuse to exclude children from Clauses 58 and 62, but they should not be in Part 5 at all because children, from whichever country, should be dealt with through the care service. I find it very sad that the Minister did not say in Committee, or indeed in the letter to the noble Lord, Lord Randall, which I have been able to read, that these children will not go through the NRM. He assumes that they will and they will have to be dealt with like adults. Other noble Lords have spoken about that, so I will not repeat it.
Amendment 68A is intended to do what Clause 62 requires but without being as vicious. It would ameliorate the clause and it certainly deserves to be supported, but I also support the other amendments in the group.
My Lords, I have written a short speech but I will not deliver it in view of the time pressure. I have put my name to Amendments 65 and 66. I feel very strongly that Clauses 57 and 58 show a complete lack of any understanding about the impact of trauma. Three members of my family went through a terrible trauma 10 years ago. It is only now, 10 years later, in the safe context of trauma therapy, that each of them has been able to talk at length about what they went through. The idea that traumatised people—children or adults—are expected to talk to a complete stranger early on in the process about what they have been through is terrifying. They will not be able to do it. I ask the Minister to please listen in particular to the noble and learned Baroness, Lady Butler-Sloss, who really understands these things—I understand it on a personal level—the noble Lord, Lord Coaker, and others, and remove the whole of Part 5. I support all the amendments in the group. Noble Lords will be glad to know that I will certainly not talk to them, but I leave that request pleading, if you like, with the Minister.
My Lords, I support the amendments in the name of the noble Lord, Lord Coaker, to remove Clauses 57, 58 and 62 from the Bill, to which I have added my name. I too congratulate the noble Baroness, Lady Williams, on her appointment and give thanks for all the work she does, even when we do not always entirely agree across these Benches.
As we have heard, Clauses 57 and 58 would make it appreciably more difficult for people to be recognised as victims of modern slavery and receive support. In Committee, the Minister responded to my concerns about these clauses by saying that, far from deterring victims, this will
“encourage genuine victims to come forward”.—[Official Report, 10/2/22; col. 1843.]
I query how that can be the case. More referrals are being made—I am grateful for the statistics from the noble Lord, Lord Coaker—but we know that is only a very small fraction of the likely number of victims to come forward and be identified. The Global Slavery Index 2018 estimated that there could be as many as 136,000 victims in the UK at the moment.
I therefore cannot fathom how raising the burden of evidence, making it harder to get a reasonable grounds decision, can possibly do anything other than further put people off, further delay the already lengthy backlog in making conclusive grounds decisions and end up excluding some genuine victims from support. Could the Minister say, after hearing some evidence earlier on, what evidence and planning suggest that these measures will make genuine victims more likely to come forward? Could he share that evidence with us? It seems markedly at odds with the evidence presented by the front-line agencies.
In his response in Committee, the Minister argued that these clauses were necessary to prevent misuse of the migration system. We have heard some suggestions of that already. Could Ministers share that evidence, as it again seems markedly at odds with the evidence presented to us by agencies? I find it a troubling approach, cutting across support for genuine victims. We already have a system that requires an assessment of potential victims. It is capable of identifying fraudulent or inappropriate claims, and I believe that it does so. Given this, it is not clear to me that the Government have produced an adequate rationale for this reform.
Finally and briefly on Clause 62, I have heard the Minister’s reassurances, but I remain unclear about and uncomfortable with what could or would be classified as acting in “bad faith”, and where the line is to be drawn on serious or minor criminality. I remain concerned that Clause 62 is a gift to those who force victims into illegal activity to entrap them. I have heard the Minister promise that future modern slavery legislation is a priority. As the Bishop with lead responsibility for combating modern slavery, I truly welcome this and look forward to engaging on that legislation when it arrives.
I am not entirely clear what this legislation will address. I echo a question from the noble Lord, Lord Alton, in Committee: if future positive legislation is in the pipeline, why are we being asked to push through Part 5, as others are saying, as an add-on to the Bill, which otherwise focuses overwhelmingly on the asylum system? For all those reasons, I remain of the view that these clauses would best be removed from the Bill and that the Government would do better to return with a new Bill that focuses squarely on modern slavery.
My Lords, the Ukraine crisis adds urgency to improve this legislation. Refugees fleeing Ukraine will create conditions ripe for exploitation by traffickers. In the coming months we should expect an increase in the number of victims of modern slavery in the United Kingdom. I will speak to Amendment 70, but I note the important issues raised by other amendments in the group to ensure that victims are not excluded from the support they need in the first place.
Amendment 70 would provide genuine victims with sufficient certainty to underpin their recovery, prevent their retrafficking and ensure that they have the security from which to engage with the police and prosecutors to bring the perpetrators to justice. These objectives alone would be reason enough to support Amendment 70, which has cross-party support—I thank the noble Lords, Lord Alton, Lord Paddick and Lord Coaker.
I make it clear that Amendment 70 would provide support and leave to remain only to individuals identified as genuine victims by the Government, through their own processes. These are not bad apples seeking to abuse modern slavery protection; they are confirmed victims—I cannot stress that enough. There are victims for whom the Government have recognised the need for ongoing support for at least 12 months. If, as the Minister said, the Government do not intend to wriggle out of this commitment, why have they not tabled their own amendment?
In Committee, the Minister responded with this extraordinary statement:
“We appreciate the push to put this into legislation at the earliest opportunity, but we do not agree that this Bill, with its focus on immigration is the most appropriate place to do so.”—[Official Report, 10/2/22; col. 1890.]
It was the Government who put modern slavery into an immigration Bill in the first place, and it is they who have already proposed adding a new section to the Modern Slavery Act, through Clause 63, providing statutory support during the national referral mechanism. Amendment 70 would complement Clause 63 and enhance the support provided to victims after the NRM by adding a second, new, section to the 2015 Act.
Statutory support for at least 12 months has been consistently recommended by organisations as essential for victims. Of course, support and leave to remain go hand in hand: victims who are not British nationals need leave to access that support. Victims also need leave to give them the security to engage with the police. The prosecution rate is unacceptable: prosecution figures are complicated, I agree, but, since 2015, only 88 offenders have been convicted for modern slavery as the principal offence. That tells enough of the story. Why is the prosecution rate so low? It is not the fault of the prosecutors; it is because the victims do not have the security to come forward. Many victims’ loved ones are threatened with death at the hands of the traffickers. The Government say that they want the Bill to increase prosecutions, and Amendment 70 will help them to do just that. I quote again the Zulu exhortation: “Vukuzenzele”—just get on and do it.
I intend to test the will of the House, and I ask your Lordships to vote for Amendment 70 to get on with it, to provide confirmed victims with the support and leave to remain needed to give both current and future victims hope for the future.
My Lords, I will make a brief contribution to this debate—when I say “brief”, I mean it. I commend those who have already spoken for their powerful speeches, and I trust that they will be enough to convince the Government that they should in fact adopt these amendments.
I started my speech in Committee by saying:
“For victims of modern slavery, escaping from their exploitation is only the beginning of their journey towards recovery.”—[Official Report, 10/2/22; col. 1885.]
The noble Lord, Lord McColl, has known this for a long time and has consistently brought this message to your Lordships’ House. I of course will support Amendment 70 today, and I trust that it will be pushed to a vote.
The Northern Ireland Assembly has also been debating longer-term support for victims, and, just yesterday, it agreed that it should be available for up to 12 months, or longer, if needed. But that recognition makes the inclusion of leave to remain for victims who get that support acutely relevant to victims in Northern Ireland. If they do not have the ability to remain in the UK, the option of support is just illusionary. We are snatching away hope for recovery and a different type of future, free from exploitation.
We need the Government to be an enabler of recovery for victims across the UK and to provide, through temporary leave to remain, an environment where victims can co-operate with prosecutors. We need to be clear that the UK is a very hostile place for traffickers. Amendment 70 builds on the success of the modern slavery legislation across the United Kingdom jurisdictions and puts the needs of genuine victims on the statute book. The UK has prided itself on being at the forefront of providing for victims of modern slavery; let us continue that tradition by voting in favour of Amendment 70, which I commend to your Lordships’ House.
My Lords, this is another occasion when, from and on behalf of these Benches, I can say that we agree and can edit my remarks down—although not completely. Between us, my noble friend Lord Paddick and I have put our names to all of the amendments, save that of the noble Lord, Lord Alton—nothing was meant by that except that it slipped past us—and we support them all.
The noble and learned Baroness referred to the combination of seeing victims of trafficking through the lens of immigration, as if this is all a single issue, ignoring the trauma and exploitation they have suffered as victims. I add that, of course, not all victims are immigrants. In fact, the minority are, so far as we know —there is a lot that we do not know yet. The Independent Anti-Slavery Commissioner has commented that the Bill creates
“a distinction between victims who are deserving of support and those who are not”,
like deserving and undeserving refugees.
I will go back to trauma, which was referred to by the noble and learned Baroness. There seems to be an assumption that, if a story varies, even in a small detail, from one day to the next, the whole must be a lie. The noble Lord, Lord Alton, mentioned legislating in haste; I say that it is not us who repent at leisure but the victims who suffer hard at leisure.
I am no great fan of using domestic legislation to construe and apply an international treaty—I support Amendment 68A, but I simply pre-empt the point being made against me, referring back to previous amendments. It is a very neat way of not disqualifying victims from protection, other than in very limited circumstances. It is very difficult to see how the Government could oppose the amendment on the best interests of the child, if we are truly concerned about child victims. The noble and learned Lord, Lord Stewart, said in Committee that the Government do not consider that Clause 62 would prevent victims coming forward because of the “discretionary approach”. He said:
“All of us ... want victims of modern slavery to continue to come forward for identification and support, irrespective of their personal circumstances or the circumstances in which they came to be exploited.”—[Official Report, 10/2/22; col. 1877.]
I have today seen the letter from the noble Lord, Lord Wolfson, to the noble Lord, Lord Randall, which says that he can be reassured that victims will be supported, regardless of their personal circumstances. However, the letter also says that
“the specific circumstances and vulnerabilities of each individual case will be carefully considered, including whether the crime”
committed by the victim
“was committed as part of their exploitation and whether the individual is supporting a prosecution”
of those exploiting him or her, “amongst other factors.” I stress “supporting a prosecution”. It continues:
“This will balance the need to safeguard exploited individuals against public protection concerns and also takes into account the critical need to prosecute modern slavery offenders.”
It is not a matter of balance. Is it any wonder that victims do not have the confidence that they will be regarded as victims if one of the criteria for support is that they will co-operate with a prosecution? It is not a new point. We support all the amendments in this group. I would like to have longer to say so but we do, and we are not reassured.
My Lords, I will speak to Amendments 67 and 68 in the name of the noble Lord, Lord Alton. I spoke to these amendments in Committee because I was concerned that Clause 59 was effectively raising the reasonable grounds threshold for identifying a victim of modern slavery. With respect to the Government, I confess that I remain unconvinced by their desire to alter reasonable grounds thresholds, and was not adequately assuaged in my fears that this could erect an unnecessary barrier to victims accessing the national referral mechanism.
The noble Lord, Lord Alton, made the argument in Committee that reasonable grounds decisions on the standard of “suspect but cannot prove” would allow the Modern Slavery Act to be more in line with ECAT. I am not a legal expert so this may well be the case. However, I made the point that since we currently use “maybe” as it exists within the Modern Slavery Act, as opposed to “is” or “are” as proposed by the Government —indeed, rather than “has been” as appears in ECAT—in supposedly bringing ourselves in line with ECAT we would effectively raise the threshold for access to the NRM.
There are then two possibilities here. Either by opting not to have a “suspect but cannot prove” reasonable grounds, we are moving away from ECAT, or we are essentially raising our reasonable grounds threshold away from a standard of “suspect but cannot prove” to be in line with ECAT. If it is the former, the amendments presented by the noble Lord, Lord Alton, would better achieve the Government’s stated aim. If it is the latter, it begs the question as to what the benefits are of aligning ourselves to ECAT if we are in effect raising the threshold and making it more difficult for victims to access the NRM.
I recognise that we have obligations under ECAT but, as the noble Lord, Lord Deben, previously pointed out, we do not break our international obligations by going further than them, and by seeking alignment via Clause 59 we would effectively withdraw to an obligation that is weaker than our existing legislation. It is slightly bizarre that Her Majesty’s Government seem happy to diverge from Europe when it comes to regulation and standards, as was recently announced with regard to the prospective Brexit freedoms Bill, but when it comes to reducing a threshold for the victims of modern slavery it appears that they are rushing for alignment.
As far as I am aware, there is no evidence that the NRM is being abused. In 2020, the single competent authority made 10,608 reasonable grounds referrals, of which 92% were later confirmed as victims, and 81% of reconsidered claims were later positive. There is an obvious fear that, through this higher standard, a number of victims may not even enter the system at all and, furthermore, that exploiters and slavers will be able to lean on this increased threshold to further manipulate and control their victims and deter them from seeking help. Surely this cannot be the Government’s intention.
I will listen with great interest and care to the Minister’s response. I hope that rather than just talk about the need for legal clarity in relation to both the statutory guidance and ECAT, which I recognise is important, he will address the pressing problem about whether this increased reasonable grounds threshold would have a negative effect on people using the NRM or indeed on referrals being made. I believe that this is the central concern that many of us have in this whole group of amendments, which I support.
My Lords, forgive us for having two Bishops in a row. We do not normally do this—it is the way the groupings have fallen out. I support Amendment 70ZA tabled by the noble Lord, Lord Coaker, to which I have added my name with the noble Baroness, Lady Hamwee, and I declare my interests in relation to both RAMP and Reset. My interest comes from my ongoing engagement in the House with issues concerning children and their well-being and safety, and ensuring that their best interests are central to legislation.
I am deeply concerned that the protection of children identified as victims of modern slavery or human trafficking is not of primary concern in the Bill. I note again that not all children who are in modern slavery or human trafficking are brought into this country from outside. Some are born and raised here but find themselves held in slavery. This is a safeguarding matter, not an immigration matter, and the legislation should recognise that children require special protection. They are covered by the Children Act 1989, as the noble and learned Baroness, Lady Butler-Sloss, pointed out earlier. Why on earth is there no specific provision for the greater protection of children despite all our international and domestic obligations? As with many other parts of the Bill, it is simply not satisfactory for a Minister to rely on unscrutinised guidance at a later date, applied on a case-by-case basis. Safeguards must be built into legislation so there is no doubt that children receive the protection they deserve and that this is not left to chance. Can the Minister say when the guidance will be produced so that it can be properly scrutinised, and how can he reassure us that children are properly protected?
My Lords, I will make a few comments to amplify the remarks of my noble friend Lady Meacher. I have just been reading a most remarkable book by a doctor, who as an eight or nine year-old child escaped from Afghanistan to try to realise his vision of becoming a doctor and thus being able to support his family back in Afghanistan. In trying to secure a voyage here, the bureaucracy of our immigration system, which I am afraid is outrageously being demonstrated in Calais, meant that this child fell into the hands of traffickers. He arrived here with a forged passport, so was sent to Feltham young offender institution. My point is that unless we improve our ability to admit refugees—particularly at a time like this, as we have heard today—we will play into the hands of these people. Like that child, so many of these refugees are just desperate for a better life; he wanted to support his family.
That child had experienced post-traumatic stress disorder of the most awful sort, having seen friends and relatives bombed and shelled and having walked among mutilated bodies. He had nightmares and flashbacks, but he did not know that he had post-traumatic stress disorder and could not understand why he was finding it so difficult to explain to the authorities that he had come from this troubled background. It was only years later, as the noble Baroness, Lady Meacher, mentioned, that he realised that it must be because of post-traumatic stress disorder.
This extraordinary person started the most wonderful foundation, Arian Teleheal, saluted by the Government, which does telemed work with children and victims all over the world. He is a wonderful example of everything which is great in this country and everything that we need to make better. He knew that if he could get here and get training as a doctor, he could change the circumstances of those he had left behind in Afghanistan —and my goodness, he did. However, we must make it easier for people such as him to come here and benefit from our education, and then do wonderful work, such as what he wanted to do, as a doctor.
My Lords, the debate has shown that the House is unanimous on two points. The first is that my noble friend Lady Williams of Trafford should be congratulated, and the second is that the House did not much like the Government’s Bill. I associate myself wholly with the former, and I will seek to set out the Government’s position on the latter. Let me go through the amendments in turn.
Amendments 65 and 66 seek to remove Clauses 57 and 58 from the Bill entirely. The effect would be to remove modern slavery from the one-stop process and would mean that modern slavery claims would be dealt with separately from the one-stop process that addresses human rights and protection claims. That does not make much sense, for either the victims or the national referral mechanism, for at least two reasons. First, treating the two types of claims as distinct means that a victim might have to describe the same traumatic events repeatedly, which nobody wants to see. Secondly, decisions would be made about their future and their right to protection and support in isolation from, and perhaps in ignorance of, the full facts, which might mean that people who would otherwise get protection are denied it.
Those amendments, and Amendment 70ZA, do not make sense from the point of view of making the NRM an efficient, transparent and fair process. They display a lack of understanding about how the NRM works, where, in line with the low threshold for referral—I will come back to the thresholds later—we simply require relevant information at an early stage, even of a limited nature, to enable key issues to be identified from the outset. That allows early access to support and gives decision-makers a clearer picture of the individual’s experience, which in turn means a more comprehensive decision, to be taken in the round, including, crucially, the victim’s age when the relevant exploitation took place.
Perhaps more than any other group, children will benefit from early identification and protection, and from having decisions made in respect of their status and their support with as full an awareness of relevant facts and context as possible. In response to the concerns of the noble Lord, Lord Coaker, echoed by the right reverend Prelate the Bishop of Durham, we see no benefit to child victims in them raising modern slavery issues after any asylum or protection decisions have been made. That would only delay their ability to access the support and protection that they need.
I have read widely the briefings which I and other noble Lords have received, and seen that critics have argued, as has been said, that the clause will stop victims from coming forward. We do not see how a clause that encourages early disclosure of information and early identification, where any negative credibility implications are non-determinative and apply only when there are no good reasons for delay, would discourage victims from coming forward. As to evidence, I say again that the measure will allow for early identification, and we do not want victims to have to describe the same events repeatedly.
Underlying all of that seems to be a misapprehension that Clauses 57 and 58 are aimed at stopping or discouraging claims. That is not the case. This is about the timing of the disclosure, not the fact of the disclosure.
In response to the question put by the noble Lord, Lord Coaker, and the noble and learned Baroness, Lady Butler-Sloss, about why modern slavery is addressed in an immigration Bill, there will inevitably be a relationship between individuals who enter both the immigration system and the national referral mechanism. We want to ensure that the systems work efficiently together to identify victims of modern slavery at the earliest opportunity and provide them with support. This approach helps to ensure that the protections which our systems provide are not misused by those seeking to frustrate their removal from the UK.
These clauses do not create trauma deadlines and they do not stop genuine victims from accessing the protections of the NRM. In response to concerns that the clauses will prevent individuals being identified, the new one-stop process is designed to encourage victims to come forward, creating new opportunities for victims to present information and be identified. Individuals subject to immigration control will be proactively asked about modern slavery and trafficking experiences in a structured way, supported by access to legal aid. Enhanced legal aid provision will mean that individuals receiving a notice are supported in understanding its meaning and the importance of raising information at the earliest possible opportunity.
Some of the criticisms assume that “damage to credibility” in Clause 58 is determinative. If I heard her correctly, the noble and learned Baroness, Lady Butler-Sloss, said that it would mean that someone who gives information late would not be believed or that information provided after the notice date would not be accepted. Again, respectfully, that is not the case. Clauses 57 and 58 do not affect the state’s duty to identify victims and they do not prevent victims being referred into the NRM for identification. No matter when information is raised, all referrals will continue to be considered on a case-by-case basis, to ensure that those who need protection and support get it. More specifically, if an individual has a good reason for bringing a late claim, then the information will not be treated as late and the damage to credibility will not apply.
I have covered before how the good reasons test will encompass many of the standard counters to a negative credibility assessment; for example, results of coercion, trauma and mistrust of authority. In response to the noble Lord, Lord Coaker, that will include reasons connected to the age of the individual. How significant any damage to credibility is will be looked at in the wider factual and evidential context of the individual case.
Turning to Amendments 69 and 68A, as noble Lords have outlined, the Council of Europe Convention on Action against Trafficking in Human Beings—ECAT—envisages that recovery periods should be withheld on the grounds of public order and improper claims. The ongoing problem that the clause seeks to resolve is that ECAT does not define public order, and this has severely hindered our ability to disqualify dangerous individuals in practice. I was going to give the House a case study. I will not, as I do not want to delay the House, but there are cases where we simply are unable properly to use the public order exception because it has not been defined. The amendments, no doubt unintentionally, would mean that we would continue to be unable to remove dangerous individuals where it is lawful to do so and in line with our international obligations.
The best way to deliver what is set out in ECAT, and some operational clarity, is to introduce a definition of “public order” that includes serious criminality and risks to national security; that is what Clause 62 does. But let me be clear: the public order disqualification applies to individuals who have been convicted of the most serious offences, including, for example, terrorism-related offences. The noble Lord, Lord Coaker, spoke about Schedule 4 to the Modern Slavery Act. This covers crimes such as manslaughter, murder, violent acts, sexual offences and, as the noble Lord pointed out, burglary and robbery. We disagree with the characterisation of those offences as minor, as did Parliament back in 2015 when it passed the Modern Slavery Act with Schedule 4. We suggest that it is vital that the Government can withhold the protections of the NRM from such individuals. Even when an individual does fall within one of those categories, we have been clear that our approach to Clause 62 is discretionary; it is not a blanket exclusion. The specific circumstances of the individual case would none the less need to be, and would be, considered.
Amendment 68A also seeks to exclude children from the clause. I repeat the point that this would create a two-tier system, which could encourage those looking to misuse NRM protections to provide falsified information regarding their age. Of course, we recognise the specific vulnerabilities—
I do not think I am saying anything inconsistent. I am saying that, for the reasons I have set out—I was just starting on the point and hope I will be able to develop it—we do not want to create a two-tier system. Of course, we recognise the vulnerabilities of children. The modern slavery statutory guidance, which I think the noble and learned Baroness referred to, provides for the specific vulnerabilities of children. This clause does not change that. It is also right that our domestic legislation should align with our international obligations, and that includes ECAT. Children get protection from the NRM because they are recognised as victims of modern slavery; that is why they get protection.
On Amendments 67 and 68, I want to reassure noble Lords that we are currently working with stakeholders and operational partners to develop the guidance in a way that is clear for decision-makers and victims. The reasonable grounds threshold is, and will remain, low, as intended by ECAT, to identify potential victims. The House will forgive me, but we need to be clear about this: ECAT sets out that signatories have certain duties when there are reasonable grounds to believe that a person has been a victim or “is a victim” of modern slavery or human trafficking. The right reverend Prelate the Bishop of St Albans raised concerns that Clause 59 was raising the threshold. Respectfully, it is not. Clause 59 aligns the Modern Slavery Act 2015 with ECAT, but it is already the language used in the modern slavery statutory guidance for England and Wales, under Section 49 of that Act.
Indeed—I have it on my iPad—paragraph 14.50 of the guidance sets out the test of
“whether the statement …‘I suspect but cannot prove’ the person is a victim of modern slavery … is true ... or whether a reasonable person having regard to the information in the mind of the decision maker would think there are Reasonable Grounds to believe the individual is a victim of modern slavery”.
So, in the guidance, the two tests are each used; we are not raising the test at all but aligning it. Nothing will change in practice; we are aligning our domestic legislation to our international obligations. The guidance also uses the phrase “suspect but cannot prove” as part of the test. Both phrases that I have read out are used in the guidance as being indicative of when the threshold is met. We are not raising the threshold and have no intention of doing so, but it is right that we keep setting that out in guidance and not in primary legislation.
Turning to Amendment 70, I thank my noble friend Lord McColl of Dulwich for his continued engagement. We are of course committed to providing support to victims of modern slavery but we believe that this should be provided on a needs basis. We are committed to maintaining our international obligations under ECAT, and this Bill confirms that, where necessary, support and protections are provided from a positive reasonable grounds decision up to the conclusive grounds decision. Indeed, there is a five-year contract, currently valued at over £300 million, which demonstrates that commitment. Importantly, however, support for victims, including safehouse accommodation, financial support and access to a support worker are already available based on need. There is no time limit for that support.
Each individual victim will have different needs. The amendment, however, removes any needs-based assessment and treats all 12,727 victims who entered the NRM in 2021 as being one of a kind, assuming that they will all need the same level of support. We committed in the other place to providing, where necessary, appropriate and tailored support for a minimum of 12 months to all those who receive a “positive conclusive grounds decision”, and I have just repeated that here.
Finally, Amendment 70 would also reduce clarity, because it refers to assisting the individual in their personal situation. There is no definition of “personal situation” within ECAT, and Clause 64 addresses this issue by setting out circumstances where leave will be granted to confirmed victims. However, Amendment 70 requires no link to the relevant exploitation, which means that a victim could be granted leave to pursue an entirely unrelated compensation claim or assist with an unrelated investigation, and that is not what ECAT was all about.
Before I sit down, I should respond to the noble Lord, Lord Alton of Liverpool, and the right reverend Prelate the Bishop of Durham, as well as the noble and learned Baroness, Lady Butler-Sloss, who all mentioned guidance in one form or another. I can confirm that officials would be very pleased to engage on the development of the guidance, to which I have referred on a number of occasions. It will be published over the coming months, but we welcome that engagement. I also assure them and the rest of the House that we will bring forward modern slavery legislation as soon as parliamentary time allows.
I apologise for the length of my response, but there were a number of amendments in this group. For the reasons I have set out, I invite noble Lords not to press their amendments.
My Lords, I shall just respond to the Minister briefly. I thank him for his reply and all noble Lords who have contributed to the debate.
The one fundamental point that I wish to make to the Minister is that, in all his responses, he failed to talk about the statistic referring to the dramatic increase of 47% in the number of victims, in the duty to notify process, who refused to consent to their names being put forward to the national referral mechanism. That is 3,190 reports of adult potential victims via that process who did not consent to their names being put forward. The Minister did not refer to that—and at its heart that is because people already, before the implementation of the Bill, are frightened to come forward and interact with the Government. That is the reality of the situation. For all the Minister’s protestations and reassurances, and all the statements that it will be done on a case-by-case basis, it does not alter the fact that already people are frightened of coming forward and being identified.
All the amendments before us seek to do is to address some of that problem. For example, Amendment 66, on which I will wish to test the opinion of the House, addresses the legislation where it says that if the people who do interact are late in providing information, they will be penalised and it must be taken into account and their claim refused. We are told that it does not matter because, on a case-by-case basis, they can be reassured—yet we are going to pass primary legislation to say that that provision must be included.
On public order, we are told that there will be no need to worry, because we are talking about serious offences—and Ministers say that I have suggested that robbery and burglary are serious offences. Of course, they are serious offences. However, the Minister knows and understands that that does not reflect the situation of many people who are the victims of modern slavery and have been coerced and forced into criminality. He says, “Don’t worry about that—we’ll sort it out.” But in the primary legislation that we are going to pass, that is something that will have to be taken into account. That is why there is a worry about the legislation being drawn too widely.
On children, the Minister says, “Don’t worry—we shouldn’t have a twin-track approach.” I do not know whether you would call it a twin-track approach, but I think—I am sure along with those who have signed the amendments on children—you can call it twin track if you want. I think children should be treated differently from adults; it is a fundamental principle of all our public policy, which is why we have infant, junior schools and secondary schools, juvenile courts and adult courts, juvenile accommodation centres and adult prisons—because we wish to treat them differently. We do not call that a twin track; we call it a humane society reflecting the differences between children and adults, and that is what we should do here.
It is disappointing that the Minister has not reflected on that. I should have thought that, at the very least, there were one or two points on which the Minister might have said that we perhaps need to reflect, to see whether the legislation could be improved. He might have thought, after the various comments made right across the Chamber, that one or two noble Lords might actually have a point, and that even if the legislation was not changed, there might be one or two ways in which it could be improved.
I shall move certain of the amendments in my name, including Amendment 66, and I am sure other noble Lords will wish to move theirs, too.
Amendment 65 withdrawn.
Clause 58: Late compliance with slavery or trafficking information notice: damage to credibility
66: Clause 58, leave out Clause 58
Clause 59: Identification of potential victims of slavery or human trafficking
67: Clause 59, page 63, line 1, at end insert—
“(1ZA) Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (c) is to be made on the standard of “suspect but cannot prove”.”Member’s explanatory statement
This amendment would ensure that amendments made to the Modern Slavery Act 2015 do not raise the threshold for a Reasonable Grounds decision when accessing the National Referral Mechanism in line with Modern Slavery: Statutory Guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland.
Amendment 67 not moved.
Amendment 68 not moved.
Clause 62: Identified potential victims etc: disqualification from protection
68A: Clause 62, leave out Clause 62 and insert the following new Clause—
“Identified potential victims etc: disqualification from protection
(1) This section applies to the construction and application of Article 13 of the Trafficking Convention.(2) A competent authority may determine that it is not bound to observe the minimum recovery period under section 60 of this Act in respect of a person in relation to whom a positive reasonable grounds decision has been made if the authority is satisfied that it is prevented from doing so—(a) as a result of an immediate, genuine, present and serious threat to public order, or(b) because the person is claiming to be a victim of modern slavery improperly.(3) Any determination made under subsection (2) must only be made—(a) in exceptional circumstances,(b) where necessary and proportionate to the threat posed, and(c) following an assessment of all the circumstances of the case.(4) A determination made under subsection (2) must not be made where it would breach—(a) a person’s rights under the European Convention on Human Rights,(b) the United Kingdom’s obligations under the Trafficking Convention, or(c) the United Kingdom’s obligations under the Refugee Convention.(5) For the purposes of a determination under subsection (2)(b) victim status is being claimed improperly if the person knowingly and dishonestly makes a false statement without good reason, and intends by making the false statement to make a gain for themselves.(6) A good reason for making a false statement includes, but is not limited to, circumstance where—(a) the false statement is attributable to the person being or having been a victim of modern slavery, or(b) any means of trafficking were used to compel the person into making a false statement.(7) This section does not apply where the person is under 18 years at the time of the referral.(8) Nothing in this section affects the application of section 60(2).”Member’s explanatory statement
This new Clause is an alternative to clause 62. It ensures that the power currently provided for in Clause 62 is exercised in line with the UK’s obligations under Article 13 of the Trafficking Convention. This amendment also protects child victims of modern slavery from disqualification from protection.
Amendment 69 not moved.
Clause 64: Leave to remain for victims of slavery or human trafficking
70: Clause 64, leave out Clause 64 and insert—
“Conclusive grounds: support and leave to remain for victims of slavery or human trafficking
After section 50A of the Modern Slavery Act 2015 insert—“50B Confirmed victims etc: assistance, support and leave to remain(1) This section applies if a positive conclusive grounds decision is made in respect of a person.(2) This subsection applies if the person has received support under section 50A and in that case—(a) the Secretary of State must continue to secure tailored assistance and support for that person at the end of the recovery period if they are in need of that assistance and support in accordance with subsection (2)(b);(b) a person who receives a positive conclusive grounds decision must be considered in need of assistance and support under subsection (2)(a) for at least 12 months beginning on the day the recovery period ends;(c) a reference in this subsection to assistance and support has the same meaning as in section 50A(6).(3) If the person is not a British citizen—(a) the Secretary of State must give the person leave to remain in the United Kingdom if subsection (2) or (4) or (5) applies;(b) leave to remain provided under this subsection must be provided from the day on which the positive conclusive grounds decision is communicated to a person for either—(i) the amount of time support and assistance will be provided under either subsection (2) or one of the measures listed in subsection (4), or (ii) at least 12 months if the person meets one or more of the criteria in subsection (5).(4) This subsection applies if the person receives support and assistance under one of the following—(a) section 18(9) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015,(b) section 9(3)(c) of the Human Trafficking and Exploitation (Scotland) Act 2015, or(c) regulation 3(4)(c) of the Human Trafficking and Exploitation (Scotland) Act 2015 (Support for Victims) Regulations 2018 (S.S.I 2018/90).(5) This subsection applies if the person meets one or more of the following criteria—(a) leave is necessary due to the person’s circumstances, including but not restricted to—(i) the needs of that person for safety and protection from harm including protection from re-trafficking,(ii) the needs of that person for medical and psychological treatment;(b) the person is co-operating with a public authority in connection with an investigation or criminal proceedings;(c) the person is seeking compensation.(6) Where the person is receiving assistance from a support worker the recommendations of the support worker must be considered in assessing that person’s circumstances under subsection (5)(a).(7) The Secretary of State must provide for persons granted leave to remain in accordance with this section to have recourse to public funds for the duration of the period of leave.(8) The Secretary of State must allow a grant of leave to remain under subsection (3) to be extended subject to the requirements of subsection (10).(9) In determining whether to extend a grant of leave to remain under subsection (8), and the period of time for which such extended leave should be provided, the person’s individual circumstances must be considered, and whether that person—(a) is receiving on-going support and assistance under the measures set out in either subsection (2) or subsection (4), or(b) meets one or more of the criteria in subsection (5).(10) If the Secretary of State is satisfied that the person is a threat to public order—(a) the Secretary of State is not required to give the person leave under this section, and(b) if such leave has already been given to the person, it may be revoked.(11) The best interests of the child must be a primary consideration when making decisions under this section in respect of a child.(12) In this section—“positive conclusive grounds decision” means a decision made by a competent authority that a person is a victim of slavery or human trafficking;“threat to public order” has the same meaning as in subsections (3) to (7) of section 62 of the Nationality and Borders Act 2022 (identified potential victims etc: disqualification from protection).(13) This section is to be treated for the purposes of section 3 of the Immigration Act 1971 as if it were provision made by that Act.””Member’s explanatory statement
This replacement clause would provide new statutory support for victims in England and Wales after a conclusive grounds decision for at least 12 months. It would also provide temporary leave to remain for all victims receiving support after a positive conclusive grounds decision and for victims meeting the requirements of Article 14 of the Trafficking Convention. It specifies decisions for children should be made on the basis of their best interests.
70ZA: After Clause 64, insert the following new Clause—
“Slavery and human trafficking: victims aged under 18 years
(1) Where a competent authority is making a decision in relation to a person who is aged under 18 years, the best interests of the child must be a primary consideration.(2) The Secretary of State may not serve a slavery or trafficking information notice on a person in respect of an incident or incidents which occurred when the person was aged under 18 years.(3) Section 61 of this Act does not apply in cases where either the first reasonable grounds decision or a further reasonable grounds decision made in relation to a person relates to an incident or incidents which occurred when the person was aged under 18 years.(4) Section 62 of this Act does not apply in cases where a positive reasonable grounds decision has been made in respect of a person which relates to an incident or incidents which occurred when the person was aged under 18 years.(5) The Secretary of State must grant a person leave to remain in the United Kingdom where a positive conclusive grounds decision is made in respect of a person who—(a) is under 18 years, or(b) was under 18 years at the time of the incident or incidents to which the positive reasonable grounds decision relates.(6) Section 64 of this Act does not apply to a person who is eligible for leave to remain under subsection (5). (7) Guidance issued under section 49(1)(c) of the Modern Slavery Act 2015 on determining whether there are reasonable grounds to believe that a person is a victim of slavery or human trafficking must provide that, where the determination relates to an incident or incidents which occurred when the person was aged under 18 years, the determination must be made on the standard of “suspect but not prove”.”
70A: After Clause 67, insert the following new Clause—
“Migrant domestic workers
(1) The Secretary of State must amend the rules under section 3(2) of the Immigration Act 1971 to make provision for the matters mentioned in subsection (2).(2) All holders of domestic worker or diplomatic domestic worker visas, including those working for staff of diplomatic missions, must be entitled to—(a) change their employer (but not work sector) without restriction, but they must register such a change with the Home Office;(b) renew their domestic worker or diplomatic domestic worker visa for a period of not less than 12 months, provided they are in employment at the date of application and able to support themselves without recourse to public funds, and to make successive applications;(c) apply for leave to enter and remain for their spouse or partner and any child under the age of 18 for a period equivalent to the unexpired period of their visa and of any subsequent visa;(d) be granted indefinite leave to remain after five continuous years of residence in the United Kingdom if at the date of application their employer proposes to continue their employment.”
My Lords, Amendment 70A is in my name and I am grateful to the noble Baronesses, Lady Lister and Lady Hamwee, for their support, and to Kalayaan for its briefings and assistance. We debated this amendment in Committee but are bringing it back because the Government’s response seemed a little unclear on the situation as it occurs on the ground, and we might push them a little further to take overdue action. I will be interested to hear if there is any progress tonight.
The situation faced by overseas domestic workers is a historic wrong which has been allowed to continue for a decade, despite consistent evidence from the sector on what is happening. We need to reiterate from the start that this amendment looks only to restore the previous status quo, from before 2012. We know from the data collected by Kalayaan that, since then, reported levels of abuse of domestic workers have increased significantly. We also know that the Government recognised this as a legitimate problem, which is why new measures were introduced in 2016, as referenced by the Minister in Committee. These included allowing domestic workers to change employer but not to extend their visa, except in the cases of those officially recognised as a victim of people trafficking or modern slavery. The fact that these measures were felt necessary in 2016 is evidence that the Government concede that the abuse and exploitation is real and needs confronting.
Sadly, the evidence of the last six years from Kalayaan shows that while the problem is real, the 2016 solution has not really succeeded in helping at all. Indeed, its evidence shows that abuse and exploitation have continued in exactly the same way as before. For many of the workers in question, the inability to extend their visas when they change employer in practice leaves them trapped. If workers have only a relatively short time remaining on their visa—weeks or a few months—their visa status makes them unattractive potential employees and so, in practice, makes leaving their abusive employer the only option on paper.
The Government, including the Minister in Committee, have also urged that exploited workers are best dealt with through referral to the NRM. However, the problem here is that while many of the workers in question may have a case under employment law, they often do not meet the criteria of victims of modern slavery. They are, however, by virtue of their status at risk of falling into slavery or other forms of exploitation and abuse, precisely because it is difficult for them to change job or receive support—and because many are simply unaware of their rights or in possession of their passport or visa.
This amendment is really about prevention rather than cure. By restoring the previous ability of domestic workers to change employer and extend their visa we would empower them to report abuse, confident in their ability to attract alternative employment. Instead of waiting for them to become victims of slavery, we would be providing them with their own productive agency to escape their situation and report their exploiters. In the context of the Bill, this is a very modest amendment which would make little difference to the overall migration picture in the UK, but a vast difference to the lives of those impacted. We now have 10 years of data and evidence built up on this issue and I hope that we might be able to right this historic wrong. I beg to move.
My Lords, my Amendment 75 is in this group and I wish briefly to speak to it. Things have moved on a little with investor visas since Committee. The Government have at last moved to announce that they intend to suspend, or possibly abolish, the investor visa scheme. They have announced that they will replace it with a new scheme, about which we are not yet very well informed. I hope that, in replying, the Minister will be able to tell us a little more about it.
It is astonishing that the review of the scheme which was promised four years ago has not yet been published. It is difficult not to accept that there must have been some considerable embarrassment within the Government to account for the absence of its publication. I have now been told informally that it is well under way and in the last stages of preparation, and it will indeed be published not just in due course but, possibly, shortly. I would like to have a definite date for its publication if the Minister wishes to persuade us not to divide on this issue.
There are very good reasons for embarrassment here. One of the two chairmen of the Conservative Party at present has made his entire career out of servicing Russian oligarchs, Chinese people and others who have come in on the investor visa scheme. That ought to embarrass the Conservative Party deeply. The Intelligence and Security Committee’s Russia report referred to evidence of foreign interference in British politics. The Government’s response was to say that they knew of no evidence of successful interference in British politics, and they have therefore declined to publish what evidence there is. That also seems improper, and I hope the Minister will be able to say something about reconsidering whether the time has now come for the Government to accept the recommendation of the Intelligence and Security Committee to publish that evidence. There is a stain of potential corruption and foreign interference around investor visas, Russian oligarchs and others that affects this Government and the Conservative Party.
What do we need now? First, we need a clear, definite and immediate date for publishing this report, and preferably some explanation as to why it has not been published in the last four years. The sort of excuses we were getting—“It is under way but not yet ready”—kept being repeated. Associated with that, we need a commitment now to publish information on what has happened since 2015 and in the four years since we were promised this report. For example, I understand that 200 investor visas have been extended to Russians entering the country since 2015. That is of some interest in the current circumstances. Therefore, a review ought to extend beyond the end date of 2015, which was announced in the original review.
Incidentally, it is not just Russians. The number of Chinese who have come in on investor visas has, throughout the life of the scheme, been larger than the number of Russians. The Conservative press made quite a lot of noise about Chinese investor visas and Chinese influence on British politics because it was a Labour MP who had received a lot of money from the Chinese woman who was being fingered. That seems good partisan politics but not very good in terms of transparency or the probity of British politics as such.
Thirdly, I would like a public commitment to a consultation on the successor scheme, so that it is not simply jumped on us by the Government—as this Government like to do—but is one on which the Government consult widely with interested parties as to what the successor scheme, which I understand is intended to attract rich people who are prepared to invest in more productive enterprise in Britain, should look like, what form it will take and what those of us who for different reasons would want to be critical in the way we examine it might think.
My Lords, I support Amendment 70A. It is a happy coincidence that we return to this issue on International Women’s Day, because it is very much a women’s issue. It was good to meet with some of the women affected who were outside, opposite the Lords, for much of this afternoon. I thank them for coming to meet us.
I was disappointed by the Minister’s response in Committee. She did not really address the fundamental issue I raised of how, by treating this as a trafficking issue rather than as an employment and immigration rights issue, the approach is failing many overseas domestic workers who are being exploited but not trafficked. Given that there is clear evidence that the 2016 changes are not working, as we have already heard, it is simply not good enough to say that reversion to the status quo ante is not the answer, particularly when so many organisations in the sector believe it is the answer. That was very much endorsed by the women I met outside this afternoon.
The Minister said she would not look again at it but would
“perhaps explore it further and see why what is happening is happening.”—[Official Report, 10/2/22; col. 1922.]
I do not think the same Minister is replying, but I wonder whether she has any information to pass on to the Minister who is replying about what she has managed to find out since Committee.
I understand that Kalayaan and some other NGOs in the sector have, at short notice, been invited to a virtual round table tomorrow to discuss how the ODW route can “be shaped going forward”—I hate the term “going forward”. That is welcome news, but, if the discussions are to be fruitful, Kalayaan is clear that the possibility of reverting to the pre-2016 route must be on the table. To rule out this option, or some form of it, in advance is not helpful, to say the least. Can the Minister give us an assurance that officials will approach the discussions with an open mind so that they and the sector can explore whether the answer does indeed lie in reverting to the pre-2016 policy or some form of it?
My Lords, my noble friend Lord Hylton very much regrets that he could not stay for this amendment because he had to leave early. He and I have been involved with the problems of domestic workers over decades, it seems—certainly since the 1990s. I should declare that I was once a council member of Anti-Slavery International, and I well remember meeting domestic workers through Kalayaan and being shocked at their predicament, which continues today in some cases.
This amendment has been very skilfully drafted by the right reverend Prelate. It includes domestic workers in diplomatic missions, where a few cases have come up, and, secondly, it allows workers to change their employer, within the same type of work—but they must register this change. They may renew their visas for 12 months at a time but without having recourse to public funds. Thirdly, they may bring in spouses and children while that visa still applies. After five years of continuous residence, they may apply for indefinite leave to remain, and, if their employer wants to continue that employment, that is all right. Thus the amendment is full of limitations, which should satisfy the Home Office. There is also subsection (2)(c), which favours family reunion and prevents the loneliness that often comes from separation.
In the public perception, the Home Office is moving backwards at the moment, and all I can say is that, as the noble Baroness, Lady Lister, said, this amendment is simple, and there seems to be no reason why Her Majesty’s Government should not support it.
I will speak in support of my noble friend Lord Sandwich. This amendment would take us back to the pre-2012 situation. There is no doubt—there is overwhelming evidence—that not being able to change employer means that these luckless people get stuck with an abusive employer in some cases. This is easily remedied. I agree with the noble Earl that the amendment is skilfully drafted. It proposes a modest change that would undoubtedly do good, and I very much hope that the Minister will be able to accept it.
I detected a slight trace of politics coming into our debate on Amendment 75. I was a Sir Humphrey once, and I commend to the Minister “unripe time”, which is very good, and “due consideration”—“shortly” is very dangerous. Seriously, I see no difficulty with an investor visa, provided that it is for a real investment that is actually invested in plants, machinery or jobs in this country. What worries me is that it is sufficient simply to hold some gilts for a short period and then sell them again—I do not think that that is good enough.
My Lords, golden visas and gilts—exactly. I am pleased to have my name to the right reverend Prelate’s amendment, which I moved in Committee as she was unable to speak to it—she had to leave part way through. The amendment from my noble friend Lord Wallace is very topical—sadly topical; having continued for far too long and being topical throughout the period, is the position of migrant domestic workers.
By definition, I failed to persuade the Minister in Committee. She cited James Ewins’s report about the length of stay and the likelihood of exploitation. The report made two key recommendations. One was about information meetings, which I understand have fallen into disuse, the other was the partial but significant relaxation of the visa tie, on which he said
“the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK”.
I hope the right reverend Prelate has more success than I did on the previous occasion and if she does not, then I hope the group meeting with Home Office officials does.
My Lords, this is an odd group because it contains two important issues almost at opposite ends of the spectrum. On the one hand we have low-paid, migrant domestic workers with very little in the way of rights and at risk of exploitation because of their precarious visa status and at risk of destitution and deportation if they cease to work for their specific employer. On the other hand, we have this visa category designed for the super-rich. It is part of a global order where being rich entitles you to buy politicians, avoid taxes and be exempted from the normal visa rules that bind the rest of humanity. It is almost poetic for these contrasting issues to be joined together in the same debate.
I had a dream last night that we had a snap general election which would have meant that this Bill, along with the police Bill and others, would have fallen. I woke up very happy. However, the consequence of both these issues is the same. It is exploitation. The migrant domestic worker visa almost guarantees exploitation of the workers by the super-rich and the tier 1 investment visas almost guarantee exploitation by the super-rich. Suddenly, the Government care about oligarchs abusing the very rules that the Government put in place to help oligarchs gain access to our country. It should not have taken an illegal war for the Government to pay attention to these very obvious consequences.
There is an inevitable immorality to becoming super-rich, whether the wealth was acquired through underpaying workers, misappropriating assets during the dissolution of Soviet Russia or the theft of resources from developing countries. It is very hard to become super-rich with a clean conscience. It was obviously wrong to establish a golden visa system for the super-rich. It corrupted the immigration system and gave special rights to the global elite. The Government should never have done this and should end it completely.
I will vote for both these amendments. Could the Minister make my dream come true and accept all these amendments so that at least we have a Bill that we can possibly swallow?
My Lords, I join other noble Lords in supporting the right reverend Prelate the Bishop of Bristol in moving Amendment 70A. Like the noble Baroness, Lady Lister, I had the opportunity of meeting some of the people from Kalayaan in Palace Yard earlier today. It reminded me of the meeting I had with the group in 2015 when we were discussing the modern slavery legislation and the immigration Bill. With my noble friend Lord Hylton, whom my noble friend Lord Sandwich referred to earlier, we moved amendments at this time. I went back and took the trouble to have a look at what was said during the course of that debate. Indeed, everything that the right reverend Prelate said in her prescient and eloquent remarks was contained both in the amendment before the House tonight and in the amendments that were moved in the legislation that we divided the House on back in 2015 and 2016.
My noble friend Lord Kerr got it absolutely right, as often he does, when he said that this is about bringing the position back to the pre-2012 status. The noble Baroness, Lady Lister, referred to the request of Kalayaan that that should be one of issues on the table during the discussions that will be held, I presume with the noble Lord, Lord Sharpe, when they meet tomorrow at the Home Office. Like the noble Baroness, I would be grateful if we could have a bit more elucidation about what is going to be on the agenda for that discussion. Given that there is going to be new legislation not that far up the track, it would be wonderful if we could be assured that this will be on the agenda for proper consideration then and that what the right reverend Prelate has said to us tonight will be one of the things that will be considered.
“Ultimately, Kalayaan, workers themselves and the anti-trafficking sector remain firm that the restoration of the terms of the original overseas domestic workers visa is the best way to protect workers.”
I entirely agree. I look back at those debates we had in 2015 and 2016—even, indeed, as far back as 2009, when the Home Affairs Select Committee, quoting Kalayaan, said in its inquiry into trafficking that the visa issue was
“the single most important issue in preventing the forced labour and trafficking of such workers.”
The noble Baroness, Lady Hamwee, referred to what Mr Ewins said, and we spent a lot of time talking about Mr Ewins’s report in those earlier debates. I will not the repeat the quotation that the noble Baroness gave, other than to add a sentence from Ewins’s review, which was to recommend that
“all overseas domestic workers be granted the right to change employer … and apply for annual extensions, provided they are in work as domestic workers in a private home.”
I hope that the right reverend Prelate’s amendment is accepted by the Government tonight, but if they are unable to do that they should at least give the right reverend Prelate the assurance that this will be considered in whatever pre-legislative scrutiny takes place of proposals to go into the new legislation. I cannot help thinking—it is a thought that the noble Lord, Lord Coaker, and other noble Lords, expressed earlier today—that the cart has gone before the horse; how much better it would have been if Part 5 was not in this Bill at all but we had dealt with this when that new legislation came forward.
My Lords, I will be brief. It has been said that Amendment 70A would reinstate the rights that migrant domestic workers had under the pre-2012 visa regime. It would allow workers to change employer and, crucially, renew their visa—a fundamental right that they do not currently have, leaving them either trapped with abusive employers or destitute and at risk of further harm.
We have reservations about proposed subsections (2)(c) and (d). Although they reflect the situation of a person who applied for a domestic worker visa before 2012, these proposals may be slightly more permissive for people who are currently here, for example, on a skilled worker visa.
However, as the noble Lord, Lord Alton of Liverpool, said, if the Government are not prepared to accept this amendment in full, they should at least agree to take it away and come back with a proposal to protect these workers, in particular by allowing them to change employer and renew their visa.
Amendment 75 would require the Government to publish their review of Tier 1 investor visas granted between June 2008 and April 2015 before any replacement scheme can be brought into operation. As has been said, in March 2018 the Government announced a review of golden visas issued between 2008 and 2015, following revelations that the Home Office and banks had made next to no diligence checks in that period. As I understand it, according to a freedom of information request in June last year, the Home Office is reviewing some 6,312 golden visas— half of all such visas ever issued—for a range of possible national security threats. We now know, almost four years after the Government announced the review, that the findings have not been reported, and, subject to what we may hear in response, no satisfactory explanation has been given for this unacceptable delay. One is left to one’s own conclusions as to why the Government might be so interested in delaying the outcome of that review.
I note what the noble Lord, Lord Wallace of Saltaire, said had happened since 2015, and the reference to money from—I think—Chinese sources, and to a Labour MP. I would not like to disappoint the noble Lord, Lord Kerr of Kinlochard, who referred to party politics, but my recollection is that there was also a suggestion that a Mr Ed Davey may have received some money from the Chinese. I assume that, unfortunately, the noble Lord, Lord Wallace of Saltaire, just did not recall that, any more than Mr Ed Davey did.
I listened with interest to the comments of the noble Baroness, Lady Jones of Moulsecoomb. I think she said she had dreamt that there had been a general election—but she did not tell us what the result had been, and whether I would be happy with it or disappointed.
In conclusion, I hope we will hear something positive on Amendment 70A. The right reverend Prelate, the Bishop of Bristol, went through all the arguments for the amendment and the reasons it is needed, and I have no intention of repeating them. I also hope we hear something positive and more specific on Amendment 75. I asked the Government in Committee about the timescale. I said, “Is it this year?” and the reply was:
“Yes, I hope that it will be this year”.—[Official Report, 10/2/22; col.1924]
Bearing in mind that a few weeks have passed since Committee, perhaps the Minister will be able to say something firmer and more specific than, “Yes, I hope that it will be this year.”
My Lords, I am grateful to the noble Baroness, Lady Lister, and the right reverend Prelate, the Bishop of Bristol, for tabling amendment 70A. I thank all noble Lords for participating in this short debate. I also express my sympathy to the noble Baroness, Lady Jones, for her nightmares.
It has been suggested by noble Lords that being able to change employer is of little use to those already close to their visa expiry date. We understand, of course, that it takes time to find work, but we must remind noble Lords that it is not the purpose of the domestic worker visa to enable migrant domestic workers to establish themselves in the labour market. This is about shifting the balance of power towards the worker by making it clear that their status in the UK is not exclusively dependent on the employer they arrived with.
A number of noble Lords asked why we had not changed things back to the pre-2016 arrangements. I remind noble Lords that we did take into account the Independent Anti-Slavery Commissioner’s advice in 2016 that relaxing the visa tie and allowing ODWs to stay for another two years without reporting to the authorities could inadvertently create a market for traffickers.
I move now to the issue of visa validity for overseas domestic workers and the proposal to reinstate a system of annual renewals and a path to settlement. Although I fully support noble Lords’ dedication to protections for migrant domestic workers, we do not believe this proposal would achieve what it purports to. The overseas domestic worker visa caters specifically for groups of visitors who, by definition, stay for short periods. Approximately 20,000 visas are issued every year on that basis, and we know the overwhelming majority leave well within the validity of their visa. A significant proportion of these workers are repeat customers who, for example, accompany their employer on their annual visit to the UK. They too leave before their visa expires, suggesting that, for the majority of those who use it, the visa serves its purpose.
That aside, the Government are not blind to the vulnerability of overseas domestic workers, which is why dedicated arrangements have been designed and delivered with these individuals in mind. This includes a standalone immigration route for victims of slavery who first entered the UK as domestic workers, which enables them to spend a further two years in the UK in that capacity. Unlike other visa holders, domestic workers who enter the national referral mechanism before their visa expires also benefit from continuing permission to work throughout the duration of their time in the NRM system. This is in addition to the support available via the modern slavery victim care contract.
Yes, these provisions are limited to those in the NRM system, but this package is designed to strike the right balance between ensuring that those who find themselves in an abusive employment situation are able to escape it by finding alternative employment, and encouraging them to report that abuse through the appropriate mechanism.
By attempting to rewind the clock, this amendment risks reintroducing features of the route that were removed for a good reason. This amendment gives no thought to how the route should be modernised, or how better advantage could be taken of the infrastructure being introduced via the future borders and immigration system to improve the way we communicate with customers.
I respectfully contest the assertion that the system worked well in the past. We must not forget that abuse existed before the terms of the visa were changed in 2012. We must also be mindful that allowing ODWs to stay could inadvertently create a fresh cohort of recruits for traffickers, as the anti-slavery commissioner pointed out back then. That is obviously something we all wish to avoid.
However, none of this is to say that arrangements for domestic workers cannot be improved. It is important to keep routes such as this under continual review. It is important to look forward rather than backwards and to prioritise ending the importation of exploitative practices from overseas in the first place. We accept that not all exploited workers are victims of modern slavery. Following our previous commitment to explore this problem further, I am told, to confirm what the noble Baroness, Lady Lister, said, that Home Office policy officials will meet NGO practitioners tomorrow. They include Kalayaan and FLEX—Focus on Labour Exploitation. In answer to the noble Lord, Lord Alton, I am afraid I do not know what the agenda is, but the Government are keen to hear directly from those who encounter and support domestic workers, including those who may fall between the cracks of labour abuse and modern slavery. The Government have committed to consider all evidence. In the light of this renewed collaboration and for the wider reasons I have given, I invite the right reverend Prelate the Bishop of Bristol to withdraw his amendment.
I now turn to Amendment 75, tabled by the noble Lord, Lord Wallace of Saltaire. The tier 1 investor route was closed to new entrants on 17 February. I should remind the House that this was introduced in 2008, as mentioned by the noble Baroness, Lady Jones. The Home Secretary has been clear about the need to stop individuals who may be at high risk of threatening our national security or of being linked to corruption or illicit finance flows. The tier 1 investor route failed to offer sufficient protection against those outcomes, nor did it work to deliver significant economic benefit to the UK. The House can be assured that its concerns about this route, which were well articulated by a number of noble Lords during the debate in Committee, are shared by the Government, and we have taken action to address them.
The Home Secretary stated in her Written Statement of 21 February that the historical review is being finalised and will be published in the near future. I can upgrade that slightly. The noble Lord, Lord Wallace, said that it is well under way; I can upgrade it to imminent, without, I am afraid, giving him a specific date.
With regard to the proposed amendment, we have set out that we plan to make alternative provision for investment-related migration through an expansion of the scope of the existing innovator route. This will be a fundamentally different route of entry which, instead of linking residence to funds in the bank, will focus on applicants’ skills and experience as investors in innovative businesses.
The Government’s view is that this would be an entirely new arrangement, in both its objectives and operation, which would be supported by independent assessment through new endorsing bodies, and not just a replacement or successor scheme within the meaning of the noble Lord’s amendment. Without dwelling on that point, the Government will publish the review of the historical operation of the route as well, although I am sorry to say that I am not sure when; I cannot give him that specific answer.
Without pre-empting what the review will have to say, the wider picture is that the Government are, in any event, committed to identifying ways in which to crack down on wider issues of economic crime. In particular, the Government, as noble Lords are well aware, have brought forward a number of measures in the Economic Crime (Transparency and Enforcement) Bill, including removing key barriers to using unexplained wealth orders and bringing in a new register requiring anonymous foreign owners of UK property to reveal their identities.
Given that the tier 1 investor route has now been closed, I question whether it is sensible to constrain the Government’s ability to make improved provision for investment-related migration, which would be aimed at delivering real economic benefits, pending publication of a review of the previous arrangements. I can also confirm that my memory of the “Conservative” press article referenced by the noble Lord, Lord Wallace, is exactly the same as that of the noble Lord, Lord Rosser: I think it mentioned certain members of other parties. Having said all that, I hope that the noble Lord will not press his amendment.
My Lords, having listened to the debates, I am very grateful for the contribution of noble Lords who have spoken on this issue and engaged with it carefully and over time. I have to say that I am disappointed that we do not seem to have made much progress. I would have wanted to hear much more, not just about the agenda of the meeting tomorrow but about the possibility of future legislation and where this clause might fit within it. It concerns me deeply that there has not been any obvious detail about that for the future.
However, mindful of the time and the great number of issues that everyone has before them tonight and in future, I very reluctantly withdraw the amendment at this time.
Amendment 70A withdrawn.
70B: Before Clause 69, insert the following new Clause—
“Visa penalty provision: general
(1) The immigration rules may make such visa penalty provision as the Secretary of State considers appropriate in relation to a country specified under section (Visa penalties for countries posing risk to international peace and security etc) or 69.(2) “Visa penalty provision” is provision that does one or more of the following in relation to applications for entry clearance made by persons as nationals or citizens of a specified country— (a) requires that entry clearance must not be granted pursuant to such an application before the end of a specified period;(b) suspends the power to grant entry clearance pursuant to such an application;(c) requires such an application to be treated as invalid for the purposes of the immigration rules;(d) requires the applicant to pay £190 in connection with the making of such an application, in addition to any fee or other amount payable pursuant to any other enactment.(3) The Secretary of State may by regulations substitute a different amount for the amount for the time being mentioned in subsection (2)(d).(4) Before making visa penalty provision in relation to a specified country, the Secretary of State must give the government of that country reasonable notice of the proposal to do so.(5) The immigration rules must secure that visa penalty provision does not apply in relation to an application made before the day on which the provision comes into force.(6) Visa penalty provision may—(a) make different provision for different purposes;(b) provide for exceptions or exemptions, whether by conferring a discretion or otherwise;(c) include incidental, supplementary, transitional, transitory or saving provision.(7) Regulations under subsection (3)—(a) are subject to affirmative resolution procedure if they increase the amount for the time being specified in subsection (2)(d);(b) are subject to negative resolution procedure if they decrease that amount.(8) Sums received by virtue of subsection (2)(d) must be paid into the Consolidated Fund.(9) In this section—“country” includes any territory outside the United Kingdom;“entry clearance” has the same meaning as in the Immigration Act 1971 (see section 33(1) of that Act);“immigration rules” means rules under section 3(2) of the Immigration Act 1971;“specified” means specified in the immigration rules.”Member’s explanatory statement
This new clause and new clause headed “Visa penalties for countries posing risk to international peace and security etc” provide that immigration rules may make provision penalising applicants for entry clearance from countries posing a risk to international peace and security or whose actions are likely to lead to armed conflict or a breach of humanitarian law.
My Lords, following Russia’s invasion of Ukraine, I am bringing forward Amendments 70B to 70N and Amendment 84E to allow visa penalties to be extended to countries that present a risk to international peace and security, or whose actions lead or are likely to lead to armed conflict or a breach of humanitarian law.
The existing provision in Clause 69 will already give the Government the power to apply visa penalties to specified countries that are not co-operating in relation to the return of its nationals. We will be able to slow down the processing of applications, require applicants to pay a £190 surcharge or, critically, suspend the granting of entry clearance completely. These powers are scalable, and they are appropriate both in the context of improving returns co-operation and to take action against regimes waging war on the innocent.
In particular, the Government are minded to use these powers in respect of Russia. The ability to suspend the granting of entry clearance for Russian nationals will send a strong signal to the Putin regime that they cannot invade their peaceful neighbour and expect business as usual. Although we do not believe this war is in the name of the Russian people, disadvantaging Russian nationals in this way, as part of our wider package of sanctions, will contribute to the pressure on the Putin regime.
Specifically, Amendment 70B sets out the general visa penalties provisions from the original Clause 69, which will now apply in both contexts. This includes the detail on the types of penalties that may be applied and the provision to make exemptions. This has not substantively changed from the provisions that noble Lords have already considered.
Amendment 70C sets out when a country may be specified and provides for three possible conditions. The Secretary of State must be of the opinion that the Government of the country have taken action that gives or is likely to give rise to a threat to international peace and security; results or is likely to result in armed conflict; or gives or is likely to give rise to a breach of international humanitarian law. The Secretary of State must take into account the extent of, and the reasons for, the action taken, the likelihood of further action, and such other matters as the Secretary of State considers appropriate.
Amendment 70K broadly mirrors Clause 70, in that it requires the Secretary of State to review the application of visa penalties every two months. If the Secretary of State concludes that penalties are no longer necessary or expedient in connection with the factors in Amendment 70C, penalties must be revoked. This provision is a safeguard to ensure that any visa penalties applied do not remain in place by default.
I am also bringing forward Amendment 84E to ensure that these powers can be deployed in relation to the invasion of Ukraine as soon as the Bill receives Royal Assent, rather than waiting two months after commencement. The sooner that happens, the sooner this House and all Members can collectively act in response to this appalling crisis.
The United Kingdom stands firmly with the people of Ukraine in their struggle with Vladimir Putin’s monstrous and unjustified war. Extending these powers is a crucial step to enabling the Government to respond to hostile actions, such as those by the Putin regime, in the toughest possible manner. I ask noble Lords to support Amendments 70B to 70N and Amendment 84E for the reasons already outlined. I beg to move.
My Lords, my first reaction to these amendments was to wonder why they were necessary. Surely it is already possible to refuse to grant visas, or to slow the processing of visas to nationals of a hostile foreign state. The Government seem to be doing a good job of not granting visas to Ukrainian nationals fleeing war, so why can they not refuse to grant visas to Russians?
On that issue, I would like the Minister to explain why the Home Secretary told the other place yesterday:
“I confirm that we have set up a bespoke VAC en route to Calais but away from the port because we have to prevent that surge from taking place.”
Later, when challenged, the Home Secretary said:
“I think the right hon. Lady did not hear what I said earlier. I said that I can confirm that we are setting up another VAC en route to Calais—I made that quite clear in my remarks earlier on.”—[Official Report, Commons, 7/3/22; cols. 27, 40.]
Can the Minister explain why the Home Secretary gave inaccurate information and then blamed the shadow Home Secretary for mishearing?
Why have the Government accepted only 508 Ukrainian refugees—as I think the Minister said earlier in the House—while Ireland has accepted 1,800? What makes the UK so unique? Are these amendments not more of the Government saying that they are going to do something, instead of actually doing something?
I am also concerned about subsection (6), to be inserted by Amendment 70B, which would allow the Secretary of State to
“make different provision for different purposes … provide for exceptions or exemptions … include incidental, supplementary, transitional, transitory or saving provision.”
In other words, the new clause seems to allow the Secretary of State to do whatever she wants—including to allow into the UK whoever she wants, despite a general ban on a particular country. Where is the parliamentary oversight?
Amendment 70C would allow the Secretary of State to specify that a country is posing a
“risk to international peace and security”,
or a risk of “armed conflict”, or a risk of breaching “international humanitarian law”, if that is her opinion. There is no qualification that she should be satisfied on the balance of probabilities or beyond reasonable doubt, for example, but simply that she is of that opinion. Again, where is the parliamentary oversight?
These new amendments allow the Secretary of State to impose, or not impose, visa restrictions and penalties on countries which, in her opinion, pose a threat. This allows her to exempt whoever she thinks should be exempted, without any parliamentary scrutiny, oversight or involvement in the decision-making. Will the Minister consider withdrawing these amendments and bringing them back at Third Reading with the necessary safeguards in place?
My Lords, I am grateful to the noble Lord, Lord Paddick, for his comments and I will add a few further thoughts.
I appreciate that the intent of these proposed new clauses is to bring additional sanction pressure on Russia, and perhaps also other states which threaten peace and security. However, I ask whether there are any concerns that, in practice, this provision may make it more difficult for a critic of, for example, the Putin regime, to reach the UK in safety. Such a person—perhaps one of those involved in the courageous protests against the current war—might seek to reunite with family in the UK for their own safety. They would require a valid visa, not least since the Bill makes it so much harder for those arriving without a visa to apply for refugee status. Is the Minister at all concerned that additional costs and barriers to obtaining a visa may invertedly hurt people seeking to escape authoritarian regimes, and who would be eligible for a visa to come here, more than it would actually hurt the regime itself?
I note the provision in these amendments “for exceptions or exemptions”, but I would appreciate a comment from the Minister on how these might work in a case such as I have outlined.
I arrived in this country seeking refuge and safety shortly after the Islamic Revolution swept through Iran, many years ago now. I was fortunate quickly to be given refugee status and to receive a welcome that, in time, has allowed me to begin contributing back to the society that provided me with a new home. However, I cannot help wondering what the impact might have been had these amendments been part of the law then. After all, I came from a country that was undoubtedly regarded as something of an international pariah, a risk to peace and security in the Middle East and, arguably, more widely. I look forward to hearing the Minister’s response and I hope to receive some reassurances.
My Lords, we support the amendments, which are obviously in response to the Ukraine crisis. We support the way the powers could be used with respect to armed conflict, threatening international peace or breaching international humanitarian law. I say to the Minister, as I have said in many debates, that Her Majesty’s Opposition stands firmly with the Government in tackling the illegal invasion of Ukraine. However, there are a number of questions that it would be helpful for the Minister to consider. I think it is right for us to ask them, as indeed other Lords, including the right reverend Prelate, have done.
To repeat a couple of questions that others have asked, what will the parliamentary oversight be of these wide-ranging powers for the Secretary of State? Will the Secretary of State be required to advise Parliament when a visa penalty provision is revoked or changed?
The Secretary of State is required to give the Government of a country “reasonable notice” before bringing in penalties. What counts as “reasonable notice”? Could the Minister say anything about that?
How quickly could the powers be used? Could they be used immediately on commencement? It would be interesting to know the answer to that.
As the noble Lord, Lord Paddick, raised, could the Government already act in this way? What extra powers does the legislation give the Government? What exemptions would be included and what will the arrangements be for vulnerable people, as the right reverend Prelate asked, or people who might themselves be fleeing persecution in a country that these particular visa penalties might apply to?
I appreciate that the Government are trying to respond to the current crisis. Notwithstanding that, and the general support that there will be for these amendments, there are some interesting and important questions that the Government need to answer.
My Lords, I thank noble Lords for some pretty sensible follow-up questions. The first question, about why we need the power, is absolutely reasonable. There are currently limited powers to apply penalties to applications for entry clearance under existing legislation. It might be possible to apply extra checks if a certain nationality is considered to pose an immigration risk that could lead to a slowing down of visa processing. However, that is as far as penalties can reasonably go under current powers.
The Secretary of State must exercise her powers consistently with the Immigration Acts. Neither the Immigration Act 1971 nor the Immigration Rules allows the Secretary of State to adopt measures such as additional charges or suspending visas in order to apply pressure on a foreign Government. By their nature, these powers mean that the penalties can be applied in a blanket way to a nationality. It is correct that the Secretary of State has express statutory authority if she is to take these significant steps.
On parliamentary scrutiny, although the measures are intended to function as a stand-alone measure or in conjunction with a wider package of government measures, they are not directly comparable to the powers in SAMLA—the Sanctions and Anti-Money Laundering Act. The powers in that Act allow for much broader conditions of use, ranging from as broad as furthering
“a foreign policy objective of the government of the United Kingdom”.
The new powers in the Nationality and Borders Bill are more tightly defined and relate only to the most serious and concerning international events: war or breaches of international humanitarian law.
In addition, the powers in the sanctions Act are both broad and deep. They allow for direct targeting of named individuals and freezing of their assets but also for sweeping powers to implement in multiple sectors of the domestic economy and the economy overseas. The visa penalty powers in the Nationality and Borders Bill are much more limited, affecting only the granting of visas. It would be disproportionate to apply a similar procedure to the sanctions Act to these more limited powers and could undermine their use where time is of the essence.
On broader use of the power, the visa penalties provisions explicitly set out a narrowly drafted set of conditions in the legislation under which these powers can be considered. They do not concern trivial matters. These powers will be able to be used only where the actions of a state give or are likely to give rise to a threat to international peace and security, results or is likely to result in armed conflict, or gives or is likely to give rise to a breach of international humanitarian law. Any action will be subject to cross-government agreement, which will take into account the UK’s wider bilateral interests with the country in question.
On the question from the right reverend Prelate the Bishop of Chelmsford, many of the sanctions that the Government are imposing on Russia do not target specific individuals: for example, action against financial institutions. However, the aggregate impact on the Russian state and the ending of normal relations applies pressure to and imposes costs on the Putin regime in response to its abhorrent war in Ukraine. It cannot be business as usual, but I totally accept the right reverend Prelate’s point about the impact on ordinary people.
On the question of the noble Lord, Lord Paddick, about the VAC, I understand that we are setting up a VAC in Lille. I think I went through the numbers of refugees earlier today—was it earlier today? Yes, it was. Obviously, that number has gone from 50 to over 500 in 24 hours and we expect an uptick in that number. I commend what Ireland has done, but I expect us in very short order to have a streamlined and up-and-running system which, I hope, should be providing similar sorts of numbers by the end of the week. It is not a competition, but I expect the system to be running a lot more smoothly. I beg to move.
Amendment 70B agreed.
70C: Before Clause 69, insert the following new Clause—
“Visa penalties for countries posing risk to international peace and security etc
(1) A country may be specified under this section if, in the opinion of the Secretary of State, the government of the country has taken action that—(a) gives, or is likely to give, rise to a threat to international peace and security,(b) results, or is likely to result, in armed conflict, or(c) gives, or is likely to give, rise to a breach of international humanitarian law.(2) In deciding whether to specify a country for the purposes of this section, the Secretary of State must take the following into account—(a) the extent of the action taken;(b) the likelihood of further action falling within subsection (1) being taken;(c) the reasons for the action being taken;(d) such other matters as the Secretary of State considers appropriate.(3) In this section—“action” includes a failure to act;“country” and “specified” have the same meanings as in section (Visa penalty provision: general).”Member’s explanatory statement
See the explanatory statement for the new clause headed “Visa penalty provision: general”.
Amendment 70C agreed.
Clause 69: Removals from the UK: visa penalties for uncooperative countries
Amendments 70D to 70J
70D: Clause 69, page 71, line 38, leave out subsection (1)
Member’s explanatory statement
This amendment is consequential on the two new clauses for insertion before clause 69 in the Minister's name.
70E: Clause 69, page 71, line 40, leave out “for the purposes of” and insert “under”
Member’s explanatory statement
This amendment is consequential on the two new clauses for insertion before clause 69 in the Minister's name.
70F: Clause 69, page 72, line 23, leave out subsections (5) to (11)
Member’s explanatory statement
This amendment is consequential on the two new clauses for insertion before clause 69 in the Minister's name.
70G: Clause 69, page 73, line 11, leave out “includes any territory outside the United Kingdom” and insert “and “specified” have the same meanings as in section (Visa penalty provision: general)”
Member’s explanatory statement
70H: Clause 69, page 73, leave out lines 12 and 13
Member’s explanatory statement
70J: Clause 69, page 73, leave out lines 16 to 18
Member’s explanatory statement
Amendments 70D to 70J agreed.
70K: After Clause 69, insert the following new Clause—
“Visa penalties under section (Visa penalty provision: general): review and revocation
(1) This section applies where any visa penalty provision made pursuant to section (Visa penalties for countries posing risk to international peace and security etc) is in force in relation to a country.(2) The Secretary of State must, before the end of each relevant period—(a) review the extent to which the country’s government is continuing to act in a way that, in the opinion of Secretary of State, has or is likely to have any of the consequences mentioned in section (Visa penalties for countries posing risk to international peace and security etc)(1), and(b) in light of that review, determine whether it is appropriate to amend the visa penalty provision.(3) If, at any time, the Secretary of State forms the opinion that, despite the fact that the country’s government has taken or is taking action as mentioned in section (Visa penalties for countries posing risk to international peace and security etc)(1), the visa penalty provision is not necessary or expedient in connection with—(a) the promotion of international peace and security,(b) the resolution or prevention of armed conflict, or(c) the promotion of compliance with international humanitarian law,the Secretary of State must as soon as practicable revoke the visa penalty provision.(4) Each of the following is a relevant period—(a) the period of 2 months beginning with the day on which the visa penalty provision came into force;(b) each subsequent period of 2 months.(5) In this section, “visa penalty provision” has the same meaning as in section (Visa penalty provision: general).” Member’s explanatory statement
This clause provides for the review of the effectiveness of visa penalty provision made in relation to countries presenting a risk to international peace and security etc, and requires its revocation if the Secretary of State concludes that it is no longer necessary or expedient.
Amendment 70K agreed.
Clause 70: Visa penalties: review and revocation
Amendments 70L to 70N
70L: Clause 70, page 73, line 20, leave out from “provision” to end of line 21 and insert “made pursuant to section 69 is in force in relation to a country.”
Member’s explanatory statement
70M: Clause 70, page 73, line 35, leave out paragraph (a) and insert—
“(a) “visa penalty provision” has the same meaning as in section (Visa penalty provision: general);”Member’s explanatory statement
70N: Clause 70, page 73, line 38, leave out “subsection (2)(a) of that section” and insert “section 69(2)(a)”
Member’s explanatory statement
Amendments 70L to 70N agreed.
Clause 71: Electronic travel authorisations
71: Clause 71, page 74, line 16, at end insert—
“(c) the individual is travelling to Northern Ireland on a local journey from the Republic of Ireland.”Member’s explanatory statement
Under this amendment, persons who are neither British nor Irish would nevertheless be able to make local journeys from the Republic of Ireland to Northern Ireland without the need for an Electronic Travel Authorisation.
My Lords, Amendment 71 in my name and those of the noble Baroness, Lady Suttie, and my noble friend Lord Coaker was tabled in Committee and is brought back on Report because of the serious implications of Clause 71 for the cross-border economy between Northern Ireland and the Republic of Ireland. There are also social and health implications. With the utmost sincerity, I do not think that the Government have fully considered this issue. I am a member of the protocol scrutiny sub-committee in your Lordships’ House, which has discussed this issue. We wrote to the right honourable and noble Baroness, Lady Williams, received a response which we were not happy with, and have written again.
Clause 71 amends the Immigration Act 1971 to introduce these electronic travel authorisations. This provides for a pre-entry clearance system that requires anyone who does not need a visa, entry clearance or other specified immigration status to obtain authorisation before travelling to the UK, including on journeys within the common travel area, which the UK and Ireland are part of. Indeed, the present clause has been expressly formulated to ensure that CTA journeys are captured.
Obviously, as I said earlier, this system does not apply to British or Irish citizens, and it appears that the UK Government intend the scheme to apply on the land border between Northern Ireland and the Republic of Ireland, of which there are about 300 crossings on a very tortuous line, but this looks to be in breach of the rights provisions of Article 2 of the protocol. It also shows a total lack of understanding of this border, which has many crossings. Home Office Minister Kevin Foster confirmed that the ETA will involve payment of a fee and an online application.
However, I am more concerned about the economic, social and health consequences of Clause 71 for the people who live along the border between Northern Ireland and the Republic of Ireland, particularly those who are not Irish or British citizens, of which there are many, and many of them contribute to the economy in the Republic of Ireland and Northern Ireland, and have family who reside on the other side of the border.
Concerns have been raised about the impact of ETA on business, health, tourism, and recreational issues, as non-visa nationals in the Republic of Ireland would be required to obtain an ETA before a visit to Northern Ireland, a fact that has been recognised and raised by the Irish Government because it would have an impact on tourism to Northern Ireland. Many people travelling to Dublin Airport and Shannon Airport journey north to examine the beauty and potential of our tourism in Northern Ireland. In the context of an invisible land border that British and Irish citizens can freely cross, it is eminently foreseeable that many other people who have hitherto been able to similarly cross the border without any prior permission will largely be unaware of this ETA requirement.
The written response from the noble Baroness, Lady Williams, to our committee some weeks ago, and the response from the noble Lord, Lord Sharpe, in Committee to me do not adequately address the situation. They do not provide for the exemption to the ETA requirement for non-Irish British citizens who enter Ireland legally or are legally resident in Ireland and who do not currently require permission to enter the UK for short-term cross-border travel from Ireland to Northern Ireland. The noble Baroness’s points around enforcement in her letter, and the noble Lord’s response in Committee some weeks ago, are unclear and apparently inconsistent. While the letter states that the Government will not criminalise those who are simply living their everyday lives, the scheme as has been outlined would do exactly that for large numbers of people who currently cross the border without restrictions to access essential services, support supply chains, for education or visiting family.
It is worth pointing out that the UK’s ETA proposals would also undermine several core areas of north/south co-operation as set out in strand 2 of the Good Friday agreement. In this respect I, along with other noble Lords, have concerns on the areas of tourism and healthcare. Many of these were raised in Committee on this amendment. The ETA proposals threaten to undermine the mandate of Tourism Ireland as an all-island body set up under the framework of the Good Friday agreement, which exists to promote tourism on the island of Ireland, and disproportionately impact the sector in Northern Ireland. As I said before, most tourists enter the island via Ireland’s ports and airports, and 70% of the £1 billion tourism spending in Northern Ireland comes from foreign visitors.
The ETA scheme would also undermine established cross-border healthcare service provision and the recently signed UK-Ireland CTA healthcare memorandum of understanding, which establishes entitlement on the basis of residency. Healthcare in border regions is highly integrated—I think of Newry and County Louth, Craigavon and Monaghan, Fermanagh and Cavan, Altnagelvin and Letterkenny in County Donegal—with the closest service often across the border, including jointly funded cancer and cardiac services based in Northern Ireland and vice versa.
In this context, I ask the Minister: what discussions have taken place with the Irish Government? I know that the Minister for European Affairs in the Republic of Ireland met Home Office Minister Kevin Foster last week here in London. What was the outcome of those discussions? What discussions have taken place with Ministers in the Northern Ireland Office. I note that a Minister from the Northern Ireland Office is sitting here in the Chamber tonight. I would like to know what discussions have taken place to highlight the issues and problems and the very practical economic, social and health implications that these will have throughout the island. Have there been discussions with civic society—with the businesses that will be impacted, which gain from the employment of many of these people on a cross-border basis? Will there be any exemptions or special arrangements for people crossing the land border frequently from the Republic of Ireland? It would be preferable if ETA requirements did not exist, or were not required from the Republic of Ireland into Northern Ireland.
I say to the Government Front Bench that we are discussing something with political, economic, social and health consequences. It would be preferable if this section did not relate to Northern Ireland and the Republic of Ireland, because it will have severe implications and impact on our day-to-day work and living. That is the important consideration. It is ridiculous nonsense for this to be included in this part of the Bill, because it does not take account of those economic, social or health consequences.
In such circumstances, I ask the Minister to declare tonight that the Government will withdraw this provision. If not, will they come back at Third Reading to do so? If I do not get those undertakings here tonight, I will definitely press this amendment to a vote. I beg to move.
My Lords, I will keep my remarks brief as the case for this amendment has been made so very powerfully this evening by the noble Baroness, Lady Ritchie.
When we debated this amendment in Committee, I raised several areas of concern regarding these proposals for the ETA requirements. In his response, the Minister confirmed that these proposals would not result in any kind of checks on the Irish land border, which is very much to be welcomed. But as the noble Baroness, Lady Ritchie, said, it remains far from clear how these ETAs will be enforced in practice. In the many thousands of border crossings that take place every day for work, leisure, family or educational purposes, there is currently no expectation or need to carry a passport. Given the very special circumstances of the land border on the island of Ireland, and further to his responses in Committee, I ask the Minister to expand this evening on how this scheme will work in practice.
Like the noble Baroness, Lady Ritchie, I remain concerned about the potential impact of these proposals on the Northern Ireland tourist industry. Does the Minister accept that these proposals may deter international visitors who have flown into the Republic of Ireland from visiting Northern Ireland during their stay because of the additional financial and bureaucratic requirements that they will entail? Have the Government carried out an impact assessment of the effect of these measures on the Northern Ireland tourist industry? I hope the Minister can respond to this this evening, as he did not when I asked the same question in Committee.
Given the special circumstances and potential negative impact of these proposals on Northern Ireland and Ireland, I believe they have not been properly thought through. I therefore urge the Government to think again and accept this amendment.
My Lords, I support this amendment. At this late hour I will not go into everything I said in Committee, but I live on the border and see it every day. I deal with and know people who cross the border every day. I know of many people who do not have Irish or British passports. They are not citizens of either country. Many of them are eastern Europeans who have remained and who work on both sides of the border, sometimes at the same time.
We heard about healthcare from the noble Baroness, Lady Ritchie. The whole healthcare drive has been an all-Ireland drive to provide services of the best quality in Ireland. Your Lordships will be well aware in GB that, because of the land mass, it is sometimes better to have centres of excellence. There are therefore health staff and, just as in Great Britain, many of them are not British—and we are now trying to inhibit their crossing the border.
Before I go any further and talk about other areas, I must declare my interests in that, first, I am involved in tourism and, secondly, my brother is chairman of the organisation mentioned, Tourism Ireland. Nobody has lobbied me on this at all, not even him. When I rang him about it, he was not quite able to give me the figures I wanted, so this is not an “I’m telling you what I’ve been told” scenario at all.
I want to look at what the Minister said in reply, because we have heard that a lot of it was perhaps slightly muddled. I think it is worse than that. It was contradictory. First, in talking about the costs in tourism the noble Lord, Lord Sharpe, ventured to say:
“I looked that up this morning in anticipation of this, and it is currently $14”,
so to him it was “not overwhelming”. People will be well aware that air passenger duty has been a bone of contention in this country and in Ireland, especially because in the Republic it was always lower than in the United Kingdom. I am aware that the Chancellor announced that because of the stress on tourism, he was going to lower it for internal travel throughout the United Kingdom but also, I believe, that it would be devolved to Northern Ireland for international travel.
If the Government attach so much importance to that and consider it significant—I think it was being lowered from something like £10 or £12 to £6 or £7—why did the Minister tell us that this is not significant? Is it or is it not? If it is not, why did they change it? I will tell the House why. In effect, the Government have just resurrected it by doubling it in order to bring this measure in. So, it does matter, which is not what the Minister said.
I then looked at the next paragraph. The Minister said:
“There will be no controls whatever on the Northern Ireland land border. Individuals will be able to continue to pass through border control at first point of entry to the common travel area.”
In many cases, the first point of entry is in the Republic of Ireland, so is the Republic going to administer this visa? I suggest that it will not, so this does not tie up.
Next, the Minister said the following:
“As is currently the case, individuals arriving in the UK, including those crossing the land border into Northern Ireland”.
I hesitate to say this, and correct me if I am wrong, as the Minister may have walked up and down our border many times without my noticing it, but I suggest that he would not have a clue where the border was. That is not me laughing at this. He would not have a clue, as there are no markings on the road. He might stop at a shop on either side, which takes euros or pounds. There is nothing else, but I will give him a lead: the telephone boxes in the Republic are yellow. If you see one of those, you know you have “crossed the border”. However, there is no border, so who are these visas for? It is absolutely clear that there is nobody to inspect them, so what are the Government going to do?
The Minister also said that the Government are going to use
“a variety of communication channels”.—[Official Report, 10/2/22; col. 1935.]
Excuse me, but it is almost laughable to say there would be communication in the Republic of Ireland to tell people that they cannot come north and vice versa if they do not have Irish passports.
I am sorry, but the reason for having legislation is to enforce it. This provision is not unenforceable because people refuse to have it enforced, but because it is totally unenforceable under those circumstances. This amendment is therefore not that logical—I think it is getting them out of a hole, but the Government are not prepared to look at the hole they are in. This may not be the most vital thing in the world, even if it is to us; it is a tiny thing.
The noble Baroness also mentioned the protocol. I am not talking about the protocol, because clearly, the Government have not used it as the excuse for not doing this. This is therefore basically outside the protocol, which has no bearing.
However, on the protocol, we all know, and we agree with them, that the Government put in place an incredibly bad arrangement, depending on which way you look at it. They are trying to alleviate it on the one hand, and they have brought out something to dump on top of it on the other. We have a saying in Lough Erne in Fermanagh: “I didn’t come up Lough Erne in a bubble.” It looks as if the Government did, because it seriously is unworkable.
That is all I am going to say, except perhaps ask the Minister to define the hard border. He says in his script: “There is no hard border; there is no hard border; there will never be a hard border.” What is a hard border? I do not know what the definition is, but it is where documents are checked or people have to stop. He is absolutely right that there is no hard border. Therefore, there is no border to make these checks. I suggest that the Government agree to this amendment.
My Lords, I appeal to the Minister, especially as I hope he has received some expert advice from his colleague, the noble Lord, Lord Caine, who, as a Northern Ireland Minister, is respected on all sides of the House. He knows his stuff, and that is a big plus. The noble Viscount has explained in practical detail why it is essential either to accept this amendment or to withdraw the provision and come back at Third Reading without it. My noble friend Lady Ritchie has underlined that with an eloquent speech, which I really hope the Minister has listened to carefully.
This is not a party issue or an Opposition versus Government issue; this is a Northern Ireland issue. I worry that in the construction of this Bill and this particular provision, Ministers have been thinking about everybody except Northern Ireland. That, I am afraid, is far too often the case. Their whole approach to Brexit has neglected Northern Ireland and deeply offended unionists for reasons I completely understand, including the former Government supporters who kept the Conservatives in power for a couple of years—the DUP. In Whitehall, there seems to be a default position in which Northern Ireland does not register when Bills are framed. I am afraid this is a very good example.
May I underline the points of my noble friend Lady Ritchie and the noble Viscount, made with a great deal of practical advice, about the operation across the border? The border, in everyday life for those who live either side, does not exist. People cross the border all the time and work, receive healthcare, get blood transfusions and receive educational opportunities and provision from either jurisdiction. I could go on, but time is short. It is terribly important to keep momentum going following the Belfast/Good Friday agreement, knowing that is the case. These unhappy residents, who are entitled to all these provisions by their residency rather than their nationality—they may be Polish, Lithuanian or all sorts of nationalities—and who provide essential services to people on both sides of the island of Ireland could be caught by this. This is a practical issue.
As surveys have shown, most Northern Ireland tourists who leave Northern Ireland to go to Europe, America or the rest of the world go via Dublin. Equally, most incoming tourists to Northern Ireland come via Dublin. If, in addition to the other issues involved, they will have to pay a fee—nominal, you may argue, but it is an additional hurdle—to benefit from Northern Ireland’s beauty and opportunities and bring much-needed income to Northern Ireland, especially to businesses suffering from an absence of tourists because of Covid, this is really damaging.
Can I also bring to the Minister’s attention the proposal, with cross-party support, to have Rally Ireland, which crosses the border, in the international FIA calendar for the world rally championships? The proposal put this year did not succeed but it is being strongly and widely backed for next year. This will affect Rally Ireland and the practical implications have not been thought through.
I refer to the detailed 1,000-word letter of the noble Lord, Lord Jay, who is chair of the Lords protocol committee, on which I sit, along with my noble friend Lady Ritchie. I have it in front of me, but I will not read it out this evening because the hour is late. It asks all sorts of questions about the reply from the noble Baroness, Lady Williams, to the series of questions that our committee asked. I am afraid that, given her normal standards, it was a very unsatisfactory reply, which reinforces my concern that Northern Ireland has not really been thought of.
The letter asks a series of detailed questions. For example, it asks for an estimate of the number of people crossing the border who will have to get ETAs, possibly for every crossing that they make—this could conceivably be a number of times every day. There does not seem to be any estimate of the number of people caught. The letter also refers to the detailed briefing on the Bill given by the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, which have made a series of recommendations for very important amendments to the Bill to avoid damage being done to the policy agenda in Northern Ireland to take the process of peace and reconciliation forward.
I strongly appeal to the Minister to reconsider and give an undertaking either to come back with a reframed provision or, preferably, to delete this; otherwise, I will certainly vote in favour of my noble friend Lady Ritchie’s amendment.
My Lords, I did not intend to take part in this debate, but, given the description of life in County Fermanagh of the noble Viscount, Lord Brookeborough, I have been tempted to participate, because I too was brought up there, just a few miles from the border. As someone who now lives about 20 miles from the border, I am always interested in hearing descriptions of life on the border from those who are not often in Northern Ireland or, indeed, the Irish Republic. But we should take very seriously indeed those who comment with real experience of living there—I am talking about not just myself but the noble Viscount, Lord Brookeborough, and the noble Baroness, Lady Ritchie, who also does not live very far from the border.
Noble Lords have raised a number of practical issues that affect the common travel area. We need to remember that this has been of immense value and benefit to the people of the United Kingdom and the Irish Republic over many years, predating the European Union. It has existed for many decades, and we should cherish it and do everything possible to remove any travel friction within it, regardless of our position on Brexit—certainly that was always our view.
It is also clear that there should not be any kind of barrier or checks along the border with the Irish Republic in relation to the movement of people—or goods, for that matter. That has always been very clear from the standpoint of my party and those who come from Northern Ireland.
Some people have said that there cannot be checks on the border for the practical reason of the 300 crossings, and all the rest of it—that has always been clear. Never mind the principle; the reality is that you cannot have that kind of checking along the border. No one wants that, and it cannot be done. For that reason, no one was ever advocating that there should be any kind of checks along the frontier between Northern Ireland and the Irish Republic.
There is of course a border; sometimes there is not a visible sign of it, but in other parts of the Province there are visible signs of the border. I recently noticed that, on the road from Dublin up to Belfast, as you cross the border, there is now a sign saying, “Welcome to Northern Ireland”. It has thankfully not been defaced—many years ago such signs were constantly defaced. Maybe after reading this debate somebody might decide to go out and do that, but I hope not. Indeed, there is a camera at that part of the border. We were told at one stage there could not be any infrastructure along the border, but there has been a security camera there for many years, without any controversy.
We have a different fiscal regime, excise regime and currency, as well as different tax laws. There is a whole range of differences between north and south, and they are all managed not by checking anything at the border but by intelligence-led investigation at the destination that people or goods are travelling to. That has been the case for decades. For instance, when it comes to the investigation of fuel laundering, the authorities on both sides of the border co-operate very well and share intelligence. They do not do that along the border but they do investigate these matters. That is the way these things should be done.
The only thing I want to say to the House tonight is that all that having been said and accepted, we would say that exactly the same principles should apply between Great Britain and Northern Ireland. If all of this is correct about checks and there being no friction between north and south, that should equally apply between Northern Ireland and Great Britain, and vice versa—east-west. You cannot have one principle for the north-south relationship and a completely different set of principles for the east-west relationship.
For instance, if the protocol was being properly and fully implemented today, and we did not have the grace periods—that were opposed by some Members of this House and the other House—people would be getting their luggage checked when they travelled between Northern Ireland and Great Britain or Great Britain and Northern Ireland in relation to some SPS and customs regulations. Pets cannot be brought from Great Britain to Northern Ireland and Northern Ireland to Great Britain under EU laws—this is for British citizens travelling from one part of the United Kingdom to the other.
Therefore, all I say in relation to this matter is that of course we need to keep the border open and frictionless, with free movement and the rest, but let the same principles and passion for freedom of movement and no checks apply east-west as well as north-south. That is what is in the Belfast agreement, which the noble Baroness, Lady Ritchie, referred to. It is a three-stranded approach. The first strand is the internal Northern Ireland arrangement and strand 2 is the north-south arrangement. But we also have strand 3, which deals with east-west, and that has to be protected and preserved. The fact that it is not is at the root of the problems we are having with devolution in Northern Ireland at the current time.
I want to put that matter of principle, as it were, on the record, because it is important. I do not disagree with what has been said about the matter under consideration in this amendment but we must also consider ensuring that the principles of the Belfast agreement, as amended by the St Andrews agreement, are preserved and upheld in their entirety.
My Lords, it is always a tremendous pleasure to follow the noble Lord, Lord Dodds—I have been doing so for 20 years. I do not always agree with him but we agree on lots of things, and I agreed with much of what he said this evening: there is a special difference between dealing with these issues about Northern Ireland and dealing with things generally in the Bill.
The proposal by the Government is daft and it could be dangerous, and it is also utterly unnecessary. It has clearly been drawn up by people who know nothing about Northern Ireland—that is the difficulty. If only the architects of this proposal had talked to the Governments in Belfast or Dublin, or even to the Northern Ireland Office. And I absolutely agree, with great respect to the Minister who is winding up, that it should have been the noble Lord, Lord Caine, doing so—he is the one who knows a huge amount about Northern Ireland and presumably he would have been able to answer these questions with the experience of someone who has spent many years dealing with these issues.
The practical problems have been outlined well by my noble friends, such as the problem with tourism. One of the very first north-south bodies to be established was an all-Ireland tourist body. People come from all over the world to Ireland and want to see both ends. To impose this unnecessary restriction on them will jeopardise an industry that has been severely hit because of Covid over the last number of years. There are thousands of Lithuanians working in the Republic of Ireland, and probably a number in Northern Ireland, whose lives could easily be overturned by this—particularly those who work near the border, of course. They rely on common health facilities, as well as common shopping facilities.
As the noble Lord, Lord Dodds, and my noble friends have said, the border does not exist in the ordinary sense. It is not like a border anywhere else. One of the great issues which has been ignored in drawing up this silly proposal is that it ignores entirely what has been agreed for the last quarter of a century. In drawing up the Good Friday agreement, in which I played some part a long time ago, we believed that the border was crucial to the success of our talks. The border has hundreds of crossings; there is no apparatus checking on people going back and forth. The principle lying behind that lack of the border being a border, if you see what I mean, and the fact that it is invisible in many ways, was an integral part of the agreement. I shall not talk this evening about the protocol but that is another disaster, in the sense that it has caused difficulties in Northern Ireland, and we will come to it on another occasion. The resolution on the border was a hugely important and significant factor in the success of the Good Friday agreement, and this provision strikes at the heart of it.
The problem is not simply what is in this particular proposal—it is how the proposal was arrived at, how it was structured, and how people drew it up. That has been disastrous, because it has been done with no knowledge of how it could affect the Good Friday agreement or future proposals on the border itself.
The relations between the Republic of Ireland and our Government are at rock bottom at the moment, and this does not help; it makes it worse—and I bet your bottom dollar that there have been no real discussions between the two Governments, in the way that there should be.
This should be dealt with in the British–Irish Intergovernmental Conference—the agreement set that up. The noble Lord, Lord Dodds referred to strand 3 of the agreement—that is to say, the relationship between east and west. I chaired the talks, along with the Irish Minister, on setting that up, and one result of it was the British–Irish Intergovernmental Conference: a body including both Governments to deal with tricky issues. If this is not a tricky issue, I do not know what is. I bet your bottom dollar, too, that there has not been much discussion with the parties in Northern Ireland either, or with the Northern Ireland Executive or the Northern Ireland Assembly. No—it is a disaster.
The sooner that this provision is removed from this Bill, the better. I doubt that the Government will do it but, if they do not, it will just fall into a pattern, whereby Northern Ireland is put on the side and seen as a peripheral business. It will come back to bite them, and I urge the Government to withdraw the provision or accept this amendment.
My Lords, it is a pleasure to follow my noble friend Lord Murphy, who articulated what I would think is the majority opinion in this House. This is one of those policy proposals from the Government in the Bill that defies belief. We have heard from the noble Viscount, Lord Brookeborough, the noble Lord, Lord Dodds, and my noble friend Lady Ritchie about living on the border. The three people who live closer to the border than the rest of us say that what is before us is an absolute nonsense. It does not make sense. All I say to the Minister who will respond is: why would the Government resist something that everybody says is a nonsense?
How is it going to work? Who will enforce it? Has the Home Office agreed this with the Northern Ireland Office? What discussions have taken place? They may not be able to say it here, but we have a Minister from the Northern Ireland Office and Ministers from other parts of the Government. I cannot believe that the Northern Ireland Office thinks that this is a good or sensible idea.
What reaction has there been from the British Government to the Irish Government telling them that it is a nonsense? The Irish embassy has been on to many of us, in a very reasonable way, saying that it just will not work. It feeds into a belief that the Government somehow do not properly understand Northern Ireland. As the noble Lord, Lord Dodds, whatever the rights and wrongs of what people think about him—not about the noble Lord, Lord Dodds, but about what he said; I apologise. It is a good job he and I know each other well. It feeds into the narrative that the Government do not understand Northern Ireland, do not understand the architecture that has led over many years to the peace that we have had, and take many things there for granted. This is the latest example.
Clause 71 will require people who are not British or Irish citizens to have electronic travel authorisation to move from Ireland into Northern Ireland. I just reread it to make sure. I showed it to my noble friend Lady Smith and said, “Have we got this right?” How is it going to work? There are hundreds of crossings a day. Let us start to be practical about this. I live in Ireland. I am an Irish citizen. I have an American wife who works in Northern Ireland. What happens? Is she supposed to have an electronic travel authorisation every day, every week or once a year? If she does not have it, who enforces that? Who checks it? What arrangements take place for that? There has to be some arrangement, otherwise it is not worth it being in the Bill. There has to be something that happens, otherwise why is there a requirement to do it.
The practical arrangements are of real concern to people because they want to know what happens, so businesses in Northern Ireland and Tourism Ireland are raising concerns about it. The Government’s reaction is simply to ignore it or, without any proper explanation, say that there is not a problem.
What is the answer to people concerned about visiting family, accessing childcare and accessing the cross-border healthcare that we heard about from my noble friend Lord Hain? What is going on and why are the Government not listening to what people are saying? Specifically, have parts of the Government talked? Has the Home Office spoken to the Northern Ireland Office? Is there agreement between them? What have they said to the Irish Government? What are the answers to the practical questions that I have raised and particularly those raised by the noble Viscount, Lord Brookeborough? How on earth is this going to work?
I very much support what my noble friend Lady Ritchie and the noble Baroness, Lady Suttie, said. This matter raises serious questions and the Government have to do more than say that it will be fine—it will be all right and do not worry about it. We have seen the consequences of that in other areas of life in Northern Ireland. The Government need to get a grip on this. It is absolutely ridiculous and the Government need to sort it out.
My Lords, I thank the noble Baroness, Lady Ritchie, for explaining her amendment so powerfully. I appreciate the intention behind it but the amendment would undermine the Government’s efforts to strengthen UK border control. The Government are clear: there will continue to be no routine immigration controls on journeys to the UK from within the common travel area and none at all on the land border between Ireland and Northern Ireland. I am very familiar with the land border between Northern Ireland and Ireland, and I appreciate that you often do not know whether you have crossed it. Individuals will not be required to carry or present any documents when crossing the land border, nor will British or Irish citizens require an ETA.
To protect both the UK immigration system and the common travel area from abuse it is important that, as now, all individuals arriving in the UK, including those crossing the land border into Northern Ireland, continue to enter in line with the UK’s immigration framework. This is a well-established principle of the operation of the common travel area, and it applies when travelling in all directions. Visa nationals are required to obtain a visa for the UK when travelling via Ireland, including when they are crossing the land border. Otherwise, they are entering illegally. That includes UK visa nationals resident in Ireland. This is a well-established requirement and we are simply extending the same principle to individuals requiring an ETA.
The amendment would result in an unacceptable gap in UK border security that would allow persons of interest or risk, who would be refused an ETA, to enter the UK legally, undermining the very purpose of the ETA scheme, which is to prevent the travel of those who pose a threat to the UK. It would also provide an opening for those looking to abuse our current CTA arrangements, which is obviously in no one’s interests.
Some noble Lords are concerned about the impact on tourism and the economy. The Government are committed to developing a clear communications strategy to tackle any misunderstandings about the requirements to travel to Northern Ireland. As has been pointed out, over the last decade Northern Ireland has been transformed and is now very much considered a “must see” tourism destination. We will continue to support tourism in Northern Ireland and to Northern Ireland by ensuring that the process for obtaining an ETA is quick and light touch. Successful applications will be approved within minutes of submission.
Regarding the impact on frequent cross-border travel, I want to first make clear that those with any form of existing UK immigration status, such as frontier worker permit holders, will not be required to obtain an ETA. For those who do require an ETA, the application process will be quick and, as I said, light touch, and the majority of applications will be approved within minutes. Once granted, an ETA will be valid for multiple journeys over an extended period, minimising the burden on those making frequent trips, including those across the Ireland-Northern Ireland border. As now, it will not require those crossing the land border to hold any particular physical documentation, as ETAs will be issued electronically.
In answer to the noble Viscount, Lord Brookeborough, I was not comparing this with other forms of charge when I spoke on this previously at the Dispatch Box, and I certainly did not say that it did not matter. It obviously does matter, and I hope I did not sound as though I thought it was a trivial amount of money, because I do not.
The Government consider the scheme compliant with our commitments under the Belfast/Good Friday agreement and the protocol on Ireland and Northern Ireland.
I have been talking to my noble friend Lord Caine; I entirely agree with the noble Lord, Lord Murphy, that he would have been much better at doing this than me. We have been having discussions with the Irish Government, as he is well aware. The UK has a close exchange with Ireland on all matters of bilateral interest, including this one, and we will continue to engage with Ireland as we develop this scheme. My noble friend assures me that he has been in contact with the Home Office. Having said all that, I appreciate that I will probably not have satisfied anybody in this House, but I nevertheless ask the noble Baroness to withdraw her amendment.
Before the noble Lord sits down, could I ask him about the potential impact on Rally Ireland, which is competing with other countries where this requirement will not be present? About 20 teams compete, with lots of non-British and non-Irish nationals in them, and they will each require multiple applications.
My Lords, this has been a very interesting debate. The noble Lords representing the Government should look to the Good Friday agreement, because that will provide the solutions to this issue. The North/South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference deal with those east-west issues.
I have not heard anything from the Government that provides me with any consolation. I still ask them to come back at Third Reading with a possible amendment, but in this instance, I seek to test the opinion of the House.
Clause 76: Tribunal charging power in respect of wasted resources
72: Clause 76, leave out Clause 76
I am grateful for this opportunity to speak to Amendments 72 and 74, and I congratulate my noble friend on the honour of being appointed a privy counsellor. It is richly deserved, and we can all bathe, I hope, in reflected glory. I look forward very much to hearing from my noble friend how her Amendment 73 will impact, and possibly supersede, my Amendments 72 and 74.
Before that, however, I want to raise my concerns about the new powers included in Clauses 76 and 77, which raise a tribunal charging power in respect of wasted resources. I do not disagree that there may be circumstances in which unnecessary costs arise, but it is a very dangerous precedent to set that a First-tier Tribunal or Upper Tribunal may—as I understand it, for the first time ever—charge the participant. Without going into the details, which I am sure the House is familiar with, I will briefly set out my concerns, those raised by the Law Society of Scotland, and those of the Select Committee on the Constitution in its report published as House of Lords Paper 149.
In the view of the Law Society of Scotland, the reason that Clause 76 is “problematic, unnecessary and unacceptable” is that:
“The First-tier or Upper Tribunal is to be given powers to charge a person exercising rights of audience or rights to conduct litigation if that person is found to have acted improperly, unreasonably or negligently. Under current statutory”
law—for example, the Solicitors (Scotland) Act 1980—
“and common law powers professional regulators have sufficient powers to deal with matters of professional discipline such as improper or unreasonable conduct. It is inappropriate that the determination of negligence should be included in the clause when that is properly the province of the civil courts. Furthermore, we note that any amounts charged under this clause for negligence are to be paid to the Consolidated Fund rather than to the client who may have suffered as a result of any alleged negligence. This appears to be a form of”
“taxation rather than compensation for negligence.”
Through these two small amendments, I would like to understand better the thinking with which the Government have drafted these two clauses. Amendment 74 is consequential on Amendment 72, simply leaving out Clause 77 if the House was minded to remove Clause 76.
I am delighted to say that the House of Lords Constitution Committee, in its report of January this year, also quoted the Law Society of Scotland and said in paragraph 94:
“There is at least the potential that these new rules could discourage legal representatives and immigration advisers regulated by the office of the Immigration Services Commissioner, as well as applicants, from raising or engaging in legitimate proceedings.”
I would like to think that this was not the intention behind the government thinking, but I would very much like to hear reassurance from my noble friend the Minister that this is indeed the case.
To conclude, in the view of the Law Society of Scotland this clause is “unnecessary”; there are already existing statutory and common law powers for the appropriate regulators to deal with such issues as “matters of professional discipline” following existing complaints procedures; and it is therefore
“inappropriate that the determination of negligence should be included in the clause when that is properly the province of the civil courts.”
I also set out the Law Society of Scotland’s and my objection to the fact that this would be
“paid to the Consolidated Fund rather than”
“the client who may have suffered as a result of any alleged negligence.”
With these few remarks, I beg to move. I look forward to hearing the Government’s response.
My Lords, Amendments 72 and 74 are about First-tier and Upper Tribunals being given the ability to order a party to pay a charge in respect of wasted or unnecessary tribunal costs when
“a relevant participant has acted improperly, unreasonably or negligently, and … as a result, the Tribunal’s resources have been wasted”.
Why does such a charge not apply in civil or criminal cases? Is this yet another example of trying to deter asylum seekers from accessing justice and/or to deter lawyers from representing them, as the noble Baroness suggested? I can understand an order requiring one side to pay the other side’s costs, but not the court’s costs. If the Home Office has acted “improperly, unreasonably or negligently”, can the Minister confirm that it will be charged for the tribunal’s time, or is it just the applicants?
This change seems to set a dangerous precedent for the UK judicial system. If the Government were to maintain that they have no plans to extend this principle to other courts and tribunals, they must accept that this is a deliberate attempt to deter asylum seekers from seeking justice and/or to deter lawyers from representing them.
I understand from the Minister’s response in Committee that the Government believe that tribunals are not using existing powers enough to order costs against applicants, so they have included these clauses to compel tribunals to consider imposing costs orders, and potentially, these new court costs orders.
This looks like another attempt to interfere with the independence of the judiciary, as previous clauses have sought to do, by unduly influencing tribunals as to the weight they should place on certain types of evidence and the assumptions they are to make about the character of the applicant. They are now trying to urge the judiciary to impose costs orders.
We support these amendments. Clauses 76 and 77 should not stand part of the Bill.
We also think that the provisions in Clauses 76 and 77 are unnecessary and in fact ought to be removed from the Bill.
The Bill requires the Tribunal Procedure Committee to give the tribunals the power to fine individuals exercising a right of audience or a right to conduct litigation, or an employee of such a person, for “improper, unreasonable or negligent” behaviour. There are issues about wasted costs. As has been said, this change could certainly affect the willingness of lawyers and solicitors to take on difficult cases for fear of risking personal financial liability. As far as we are concerned, the immigration tribunals already have all the case management costs and referral powers that they need to control their own procedure.
In Committee I asked how many of the cases dealt with by the immigration tribunal over the last 12 months fall within the category of unreasonable behaviour, for which the Government would expect these costs orders measures to be activated. I thank the Minister for his letter in response, which states in the second paragraph that:
“It is not, however, possible to say how many cases dealt with by the Tribunal within this period fell within the category of unreasonable behaviour. This is because we do not hold data on the number of cases where behaviour or circumstances could have been considered unreasonable, but where no costs order was sought, or considered by the tribunal of its own initiative.”
I have to say that that letter simply confirms that the Government have no hard evidence to support their assertion that the provisions of Clauses 76 and 77 are necessary, because of the reasons set out in the letter, which I quoted and which indicate a certain paucity of hard evidence to support the Government’s position.
I will be interested in the Government’s reply to see whether they challenge my interpretation of the content of the letter of 3 March which the Minister was good enough to send to me. However, certainly, in the absence of a government response saying that their letter did provide the hard evidence to back up their view that the provisions of Clauses 76 and 77 are necessary, I must say that it is very difficult to understand why they are bringing forward the provisions outlined in those clauses.
My Lords, I thank my noble friend Baroness McIntosh of Pickering for explaining her amendment. Government Amendment 73 is a technical amendment to Clause 77. It does not change the policy; it makes a minor revision to the drafting of subsection (1) of Clause 77 to ensure that it matches the rest of the clause in only making provision in relation to the Immigration and Asylum Chamber. This change will prevent any uncertainty arising about the jurisdictions in which this clause should be applied, and it gives the Tribunal Procedure Committee complete clarity about how to approach drafting the rules to enact these measures.
I turn now to Amendments 72 and 73. The Government are committed to making the immigration and asylum system more efficient, while also maintaining fairness, ensuring access to justice and upholding the rule of law. To achieve this, we need all representatives involved in these proceedings—whether they are acting for the appellant or for the Home Office—to play their part in ensuring that appeals run smoothly. Representatives do not just have a duty to act in the best interests of their client; they also owe duties to the courts and to the public interest, which include acting with integrity, upholding the rule of law and supporting the proper administration of justice. We are aware that there are concerns about the behaviour of some representatives in immigration proceedings, which can waste judicial and tribunal resource and lead to delays in the tribunal process. Existing case law identifies the types of circumstances and behaviours which have led to costs orders being made or considered, and the principles applied by the courts. These have included showing a complete disregard for procedural rules through, for example, abusing court processes in relation to evidence or the timing of applications. As with the current costs orders regime, the policy will apply equally to the representatives of both parties—in answer to the question of the noble Lord, Lord Paddick. This will include the Home Secretary when represented by presenting officers. To further ensure fairness, the paying party will be able to make representations before any order is made, and the tribunal retains absolute discretion as to whether a charge should be made in each case.
As I explained in Committee, tribunals can currently make wasted and unreasonable costs orders which relate to the legal costs of the parties. However, these mechanisms are generally only considered at the request of the other party and are infrequently employed. Clause 76 creates a new power for tribunals to order a party to pay an amount which represents a portion of the tribunal’s costs which have been wasted as a direct result of that party acting unreasonably, improperly or negligently. This power applies across all tribunal jurisdictions and is subject to the Tribunal Procedure Committee making rules for its application in a particular tribunal. It will allow the tribunal to make an order in relation to wasted tribunal resources in the same types of circumstances which would currently warrant a wasted or unreasonable costs order. An order can be made against “relevant participants”: this means legal and other representatives exercising rights of audience, and the Secretary of State where they are a party and do not have legal representatives. I hope that this goes some way to reassuring my noble friend.
To encourage increased consideration of whether to make costs orders, Clause 77 provides a duty on the Tribunal Procedure Committee to introduce tribunal procedure rules in the Immigration and Asylum Chamber. This will lead to judges more regularly considering whether to make a wasted costs order, an unreasonable costs order or a tribunal costs order under the new Clause 76 provision. This will ensure that circumstances and behaviours which have warranted the making of costs orders previously will more often give rise to judicial attention. While the requirement in Clause 77 is for the TPC to make rules in the Immigration and Asylum Chamber, it is at the committee’s discretion to create similar rules in other jurisdictions if it considers it appropriate. Specifically, Clause 77 requires procedural rules which identify circumstances or behaviours which, absent of reasonable explanation, the tribunal will treat as warranting consideration of the making of a costs order. The rules thereby introduce a presumption that requires the representative, or other relevant party responsible for such circumstances or behaviour, to explain themselves and why such a costs order should not be made. This will ensure the regular consideration of costs orders by the tribunal. More importantly, however, the tribunal will retain absolute discretion as to whether to make an order in all cases.
Noble Lords have asked whether this will mean fewer representatives willing to take on immigration work. The Government think it right that representatives should explain themselves if they are responsible for circumstances to be set out in the rules as warranting consideration of a costs order. However, where there is a reasonable explanation, no order would be expected. The tribunal continues to have full discretion as to whether to make the order. Therefore, these changes should not impact legal representatives who fulfil their duties to the court, remain committed to their work and ensure justice for their clients.
The noble Lord, Lord Paddick, asked why these changes are being made in the Immigration and Asylum Chamber and not in other jurisdictions. Obviously, the Nationality and Borders Bill as whole is focused on reforming the asylum system. Clauses 76 and 77 are part of a programme of reforms designed to streamline immigration and asylum appeals. There has been judicial concern, and a recognition that a problem exists with the behaviour of some legal representatives and other relevant parties in immigration proceedings. It is at the discretion of the Tribunal Procedure Committee to create similar rules in other jurisdictions if it considers it appropriate.
For the reasons I have outlined, I hope that my noble friend Lady McIntosh of Pickering feels able to withdraw her amendment.
My Lords, I am grateful to all those who have spoken. I detect the mood of the House is not to support these provisions but the hour is late, and we have a lot more business to come, so am reluctant to test the opinion of the House. At this stage—
I am most grateful. If that is the case, I am surprised that the Law Society of Scotland is not aware of that, because it certainly did not respond in that regard.
I am grateful for the opportunity to raise my concerns. I would like another opportunity at some future date to pursue this further, but for the moment I beg leave to withdraw the amendment.
Amendment 72 withdrawn.
Clause 77: Tribunal Procedure Rules to be made in respect of costs orders etc
73: Clause 77, page 80, line 35, after “Rules” insert “governing proceedings before the Tribunal (see subsection (4))”
Member’s explanatory statement
This is a drafting amendment that clarifies that, like the requirement in Clause 77(2), the requirement for Tribunal Procedure Rules to prescribe conduct of the kind mentioned in clause 77(1) applies only in relation to the Immigration and Asylum Chamber of the First-Tier Tribunal and the Upper Tribunal.
Amendment 73 agreed.
Amendment 74 not moved.
75: After Clause 78, insert the following new Clause—
“Tier 1 (investor) visas: review report
Any replacement, successor or alternative visa scheme to the Tier 1 (investor) visa scheme must not come into operation until the Secretary of State has published and made publicly available the review of Tier 1 (investor) visas granted between June 2008 and April 2015.”Member’s explanatory statement
This new Clause would require the Government to publish its review into Tier 1 (investor) visas granted between June 2008 and April 2015 before any replacement scheme can be brought into operation.
76: After Clause 78, insert the following new Clause—
“British National (Overseas) visas: eligibility
(1) Within two months of this Act being passed, the Secretary of State must amend the immigration rules to ensure that all persons meeting all the conditions set out in subsection (2) are eligible to apply for the British National (Overseas) visa. (2) The conditions in this subsection are that—(a) the person has at least one parent who is a British national (overseas),(b) the person was born on or after 1 July 1997,(c) the person is aged 18 or over on the date of application, and(d) the person is—(i) if applying to enter the United Kingdom, ordinarily resident in Hong Kong, or(ii) if applying for permission to remain, ordinarily resident in the United Kingdom, the Bailiwick of Guernsey, the Bailiwick of Jersey, the Isle of Man or Hong Kong.”
My Lords, it is a great pleasure to introduce Amendment 76, whose equivalent was moved in Committee but had its inception in the House of Commons. The amendment stands in my name and those of the noble Lord, Lord Patten of Barnes, the right reverend Prelate the Bishop of St Albans and the noble and learned Lord, Lord Falconer of Thoroton, so it is an all-party amendment. It affects BNO eligibility for visas for young people; that is, those who were born after 1997, whose parents qualify but they themselves do not. This was in many respects an omission from the original scheme. I declare my interests as a patron of Hong Kong Watch and as vice-chair of the All-Party Parliamentary Group on Hong Kong.
The original plan was launched on 31 January as a bespoke immigration route for BNO status holders and their family members. It was something that we could all welcome, reflecting our moral and historic commitment; and, indeed, it has been a great success, with over 100,000 applications made to date. However, some 18 to 24 year-olds were unable to access this route. as your Lordships know, this amendment would enable individuals born on or after 1 July 1997 who have at least one BNO parent to apply to the route. As I said, the amendment had its genesis in the House of Commons. I pay particular tribute to the right honourable Damian Green for the work that he put into it, but also to the support of Lady May and other notable members of the Conservative Party, as well as the support of the Commons from all Benches on all sides, so this is bipartisan, and bicameral as well.
I pay a special tribute to and thank the noble Baroness, Lady Williams, who has already been congratulated quite a lot today on her notable elevation to the Privy Council—perhaps because of what she did on this amendment. She and her noble friend Lord Sharpe have engaged very much with those who have signed this amendment. He has significant experience in Hong Kong, so this was close to his heart.
The noble Lord, Lord Patten of Barnes, made a very memorable speech in Committee, which was followed by many people in Hong Kong, let alone in this country, and it says an awful lot that someone who has held such high office in the past is willing to commit so strongly to this, to show that his affection and commitment to the people of Hong Kong remain completely unchanged. Like me, he continues to be concerned about those who will not qualify for this scheme, but that is not the point of the amendment. It is something that others must step up to the plate to do something about, but I hope especially that those living in other Commonwealth countries can follow the example that the British Government have set in issuing a Written Statement which was the upshot of conversations that we had in Committee; the Government
“intend to lay the changes to the Immigration Rules in September with the changes expected to go live in October”.
The Written Statement also details the welcome programme led by the Department for Levelling Up, Housing and Communities. Its tone and what it says at the end I particularly welcome:
“We look forward to welcoming applications from those individuals who wish to make the UK their home”.
The Government have taken a positive approach. They have engaged constructively, and this decision is worthy of this country and its special relationship with Hong Kong. It will allow young Hong Kongers who were not eligible for a BNO visa to avoid languishing in the asylum system, unable to work or study. This change of policy will allow these young people to settle more quickly and enrich British society.
I do not need to say very much more, other than to comment on one development in Hong Kong this week which underlines why life has become so difficult for people such as Joshua Wong, Nathan Law and others to whom we referred in Committee. Paul Harris, the former chair of the Hong Kong Bar Association and a veteran human rights barrister, and a man of great standing, has had to leave Hong Kong after police questioned him. It marks another dark day for human rights and the rule of law in Hong Kong. His steadfast defence of Hong Kong’s beleaguered democracy and his opposition to the draconian national security law provoked the ire of the Chinese Communist Party and made him a marked man. For those young people who joined many of the protests and demonstrations, this scheme will literally be a lifeline. I hope that we will then use our standing to convince other countries to follow our example and do the same by extending these lifeboat provisions to enable settlement—other Commonwealth countries especially, such as Australia, New Zealand and Canada, which already have significant communities of people drawn from Hong Kong.
I hope that I have been relatively brief, since the House has a lot of other business to accomplish. I beg to move Amendment 76.
I support the noble Lord, Lord Alton, and I will be even more brief. It may have been obvious that I have been able to contain my enthusiasm during much of the discussion of this Bill to within the bounds of public decorum, but on this occasion I want to say without any reservation how strongly I support what the Government have done.
We have a continuing moral responsibility to the people of Hong Kong. Hong Kong has been hit by a mendacious Government in Beijing—including Mr Putin’s best friend, we are now told—who have set about comprehensively and vindictively destroying the freedoms of a great and open society. It is particularly appropriate that we have recognised some of those who have been more affected, particularly with the charges that have been levelled at them in recent weeks around civil disobedience and freedom of speech. This amendment and the proposals of the Government will help those who have been most affected: the younger Hong Kongers who are the children of people already able to get a BNO passport but who unfortunately are in the group born after 1997. It is a very important amendment. I am delighted that the Government have accepted it and that they continue to assert our continuing moral responsibility for Hong Kong.
I expect, as the noble Lord, Lord Alton, said in our earlier debate, that the young people who come here will make a really significant contribution to this country. One day, I hope, they will be able to return to Hong Kong as a free society. That is not entirely in our hands, though the more we behave like a liberal democracy that believes in liberal democracy, the more likely it is to happen.
I am delighted that I am able on this occasion to say how much I support what the Government have done, and I look forward to doing so on many future occasions—there have not been quite enough in the past. Maybe that has been my fault or maybe the fault has lain elsewhere, but that is a subjective judgment. I thank the Government very much and hope they will continue to be as open-minded and gracious in the way they respond to good arguments.
My Lords, I declare my position as the co-chair of the All-Party Parliamentary Group on Hong Kong. I am in the rare position of congratulating the Government very warmly and thanking them for listening to campaigners, including on their own Benches, in taking this step for the younger people of Hong Kong who have at least one BNO passport-holding parent. I also join the noble Lord, Lord Alton, in congratulating the Government on the welcome programme for the BNO passport holders coming here. The APPG heard from the noble Lord, Lord Greenhalgh, this week and we appreciated his enthusiastic words on that programme.
I will make one extra point. The all-party group held an inquiry into the treatment of young medics and humanitarian workers in Hong Kong during protests. Those young people had to have their voices disguised to testify to us. I remember one of them, who as he was talking to us on the Zoom call was glancing at the door, saying, “I don’t know if the police will come through that door at this moment.” I have no doubt that some of those young people speaking to us had parents who were BNO passport holders, but some of them did not, yet they were young people who had made similar contributions to that society. My simple question to the Government is: will they in future, as the noble Lord, Lord Alton said, work with Commonwealth countries to see that all of those young people who have made brave contributions to democracy and the rule of law in Hong Kong are able to find a route out if they need to?
My Lords, I will even more briefly strike a slightly different note. This proposal—I know it has virtually gone through—is very unwise. We have a scheme which already applies to rather more than 5 million people. That is surely enough, and we should leave it at that.
My Lords, I give the Liberal Democrats’ support for this amendment and pay tribute to the noble Lords, Lord Alton and Lord Patten of Barnes, for their repeated campaigns to support Hong Kong and in particular young Hong Kongers.
It is perhaps right that the noble Baroness, Lady Williams of Trafford, is on the Front Bench when, for once, we are saying, “Actually, you’ve got this right”. So often, we seem to give her such a hard time, although we say, “We think that she is probably with us but having to give the government line”. The fact that the Government have now acknowledged the importance of supporting young Hong Kongers is very welcome. Alongside the privy counsellorship, we are very keen to welcome that.
I am afraid that these Benches disagree with the noble Lord, Lord Green of Deddington—actually, this is the right thing to do. It is not about to open the floodgates to mass immigration, but it does give an opportunity for young Hong Kongers who feel the need to come here to do so.
I express our wholehearted support for the amendment and the extension of the BNO scheme to young Hong Kongers. I congratulate all noble Lords around this Chamber, from all parties and no party, who have campaigned on this issue. I thank the Government for their decision and the progress that has been made, which has led to agreement all around the House.
I thank noble Lords and pay particular tribute to the noble Lord, Lord Alton of Liverpool, who tirelessly campaigns on this and other issues. I thank him for his kind words, and I thank all noble Lords who have contributed to this short debate on Amendment 76.
We recognise that the BNO route is creating unfair outcomes for the families of BNO status holders, with some children able to access the route independently because they were old enough to be registered for BNO status, while their younger siblings, aged between 18 and 24, are unable to do so. That is why, on 24 February, the Government announced a change to the BNO route to enable individuals aged 18 or over who were born on or after 1 July 1997 and who have at least one BNO parent to apply to the route independently of their parents.
The policy change addresses the concerns raised by the noble Lord, Lord Alton, and other Members of both Houses. It will ensure that we are addressing potentially unfair outcomes for families of BNO status holders and ensure that the UK meets its ongoing commitment to BNO status holders.
In answer to the noble Baroness, Lady Bennett, I say that there are of course other routes for those who are not eligible under this particular scheme. We intend to lay the changes to the Immigration Rules in September, and they are expected to take effect from October.
In the light of these assurances, I ask the noble Lord to withdraw the amendment.
My Lords, in the light of what the Minister has been able to say to the House, and of the debate and the excellent contributions from all who have spoken—including my noble friend Lord Green, with whom I have a good friendship but often disagree—I think that young Hong Kongers who come to this country will enrich our lives. I have seen for myself, in my own city of Liverpool, the great contribution that Hong Kong people have made over many generations. I know that these will be patriotic and loyal citizens, who will care for this country and enliven our society.
I beg leave to withdraw the amendment, and I am grateful to all who have spoken in tonight’s debate.
Amendment 76 withdrawn.
77: After Clause 78, insert the following new Clause—
“Indefinite leave to remain payments by Commonwealth, Hong Kong and Gurkha members of armed forces
(1) The Immigration Act 2014 is amended as follows.(2) In section 68(10), after “regulations” insert “must make exceptions in respect of any person with citizenship of a Commonwealth country (other than the United Kingdom) who has served at least four years in the armed forces of the United Kingdom, or any person who has served at least four years in the Royal Navy Hong Kong Squadron, the Hong Kong Military Service Corps or the Brigade of Gurkhas, such exceptions to include capping the fee for any such person and their dependents applying for indefinite leave to remain at no more than the actual administrative cost of processing that application, and”.”
My Lords, I will leave Amendment 78, in the names of the noble and gallant Lord, Lord Craig, and others, to them. I will speak to Amendment 77 in my name and that of the noble Baroness, Lady Smith.
We have been trying for some time to rectify the issue where those who have served our country are charged extortionate fees to settle here, among the communities that they have served. Since we debated this in Committee, the Government have moved a small way and announced that veterans who have served six years will no longer be required to pay visa fees for leave to remain. That is welcome but, frankly, not enough, and it is not what has been called for by the Armed Forces community and Members of both Houses, including some from the Government Benches.
The Royal British Legion said:
“Whilst we welcome the news that these fees will be waived for some Commonwealth Service personnel, this proposal still leaves many Armed Forces families facing severe hardship. We strongly urge the Government to go further and scrap these unfair charges for everyone who has served for at least four years and their immediate family members.”
Currently, a veteran who wishes to settle here with their partner and two children will be charged around £10,000, the vast majority of which is profit for the Home Office. The Government’s policy change amounts to a 25% discount, when a veteran has served over six years. Even in these cases, it will cost more than £7,000 for a family of four to settle in the country for which a veteran has risked their lives in service, and we ask the Government to look yet again at this—because I do not believe that they have got this right, and nor do many others.
It is not right for the Home Office to make a profit from veterans who are exercising their right to settle here with their children. This is not a party-political issue, and it is not an immigration issue; it is an issue of how we treat those who have served this country and how we fulfil our pledges in the Armed Forces covenant. I beg to move.
I support Amendment 77, and I speak to Amendment 78 in my name and that of the noble Baroness, Lady Smith of Newnham, and the noble Lords, Lord Alton of Liverpool and Lord Coaker. I am very grateful for their support.
When I returned in Committee to this issue of fixing a date, the noble Lord, Lord Sharpe of Epsom, spelt out a bit more fully than had the noble Baroness, Lady Williams of Trafford, at Second Reading the Government’s position on this long-standing issue. He said:
“I can confirm that the Government will update Parliament … with the aim of implementing any changes by the end of this calendar year.”—[Official Report, 10/2/2022; col. 1965.]
He went on to say that this was not an “in due course” response, which as noble Lords will recognise is the way favoured by Governments avoiding a firm commitment. But is “with the aim of” any more convincing than “with a view to”, as expressed by the noble Baroness, Lady Williams, at Second Reading? Neither formulation is definitive; both are woolly.
I recognise that the Government seem at last to be willing to do more than give this issue active consideration, which has been their stated position and what they have been doing for the past six years. Noble Lords will recall that the issue has been raised by Members of both Houses, including by me in meetings with successive Home Secretaries and other Ministers, through Oral Questions and Questions for Written Answer, as well as by some of the veterans themselves over the past six years or more. Against that background, it seemed reasonable to require the statutory time for this finally to be settled and for the loyal veterans who have waited for so long to know by when they will receive the answer to their request.
I had hoped that this Government would not resist this straightforward and simple amendment. However, following helpful discussions with the noble Lord, Lord Sharpe of Epsom, I sense that the Government are really on the side of these loyal veterans, some of whom are watching on the Parliamentlive channel as I speak. If the Minister responds to indicate a firm commitment to them and gives a Dispatch Box assurance that the House will be kept informed of that progress, I think that the House will feel that at last there is a positive light starting to glimmer at the end of this long tunnel. If such an assurance comes from the Minister, I shall not divide on Amendment 78 this evening.
My Lords, I rise to support both amendments, and again pay tribute to the noble and gallant Lord, Lord Craig of Radley, for bringing the issue of veterans who have served in her Majesty’s Armed Forces Hong Kong. There are some issues that come back to the Chamber again and again, and they come in different pieces of legislation and are responded to by different Ministers at different times. This is a case in point.
If the Minister is able to give reassurance to the noble and gallant Lord, then so much the better. I hope that even the noble Lord, Lord Green of Deddington, does not think that granting citizenship or indefinite leave to remain to those who have served with Her Majesty’s Armed Forces in Hong Kong will be a dangerous route to go down, and that the Government really will give a sufficient response to Amendment 78.
On Amendment 77, again, we have talked about this issue on so many occasions. We have heard from the Government Front Benches some words of comfort in the past, but not really enough. Surely it is not acceptable to say that veterans who have worked with the British Armed Forces and been willing to put their lives on the line for us should have to pay. The change regarding people who have served for six years is welcome but, as the noble Lord, Lord Coaker, said, it does not really go far enough. If it could be reduced to four, so much the better.
However, surely it ought to include service families as well because it is not only the service man or woman who is putting their life on the line and serving this country. Their families are also giving up a lot. Surely, the appropriate amount for anybody to pay when they seek to live here after their service personnel relative—mother, father or whatever family member—is only the cost of processing the application, just as we do with passports. A cost of thousands of pounds is not appropriate. Surely, the Home Office can find out how much it actually costs to process, and that should be the fee.
My Lords, it is a great pleasure to add my voice, albeit briefly, in support of both these amendments, particularly Amendment 78 in the name of my noble and gallant friend Lord Craig of Radley. Although his amendment is prescriptive in asking the Government to respond
“Within three months of the passing of this Act”,
I think he told the Minister that if an assurance can be given that, within a reasonable time of the Bill’s enactment, the Government will move on this issue, he would be happy not to divide the House. I agree with him about that and if that assurance can be given, it will surely meet the terms of his amendment.
We are not talking about large numbers—it not 5 million people—but people who have served the Crown. If anybody is vulnerable today as a result of the passing of the national security law in Hong Kong, it is surely people who have served the Crown. There is no question in my mind about the justice of what my noble and gallant friend is arguing for, but this is not the first time of asking; he has urged us to do something about this year in, year out—in good times and bad. I hope that the Government will take this opportunity to deliver in the Bill what my noble and gallant friend has asked for.
My Lords, I thank all noble Lords who have participated in this relatively brief debate. I will start by addressing Amendment 77, tabled by the noble Lord, Lord Coaker, regarding settlement fees for non-UK members of our Armed Forces.
The Government highly value the service of all members of the Armed Forces, including Commonwealth nationals and Gurkhas from Nepal, who have a long and distinguished history of service to the UK here and overseas. That is why there are special immigration rules in place for our Armed Forces personnel that put them in a favourable position compared to other migrants, as I detailed last month during Committee. However, we recognise that the fees attached to settlement applications place a financial burden on our non-UK personnel, should they choose to remain in the UK after leaving the Armed Forces. That is why, last year, the Government consulted on waiving these fees altogether in some circumstances.
Following this, the Home Secretary and Defence Secretary announced on 23 February this year that the Government have decided to waive settlement fees, including administrative costs, for non-UK personnel in our Armed Forces who have served for six years or more, or are discharged due to an illness or injury attributable to their service, regardless of length of service. We are also extending the settlement fee waiver to undocumented veterans currently living in the UK who meet these criteria.
The noble Lord, Lord Coaker, asked me why it is six years, not four. I hope he will forgive the lengthy digression. Careful consideration was given to the number of years that should be used for the eligibility criteria. The initial policy proposal was for those who had served at least 12 years at the point of discharge, as the noble Lord acknowledged, but following the public consultation Ministers agreed that the eligibility criteria should be reduced to six years.
When considering the number of years’ service for the fee waiver, a balance rightly has to be made between value for money for the taxpayer and acknowledgement of the service of the individual. For example, it costs approximately £92,000 to train a soldier. Those costs cannot be discounted. Therefore, it was considered appropriate to set the eligibility criteria to those non-UK service personnel who have served for at least six years and wish to settle in the UK following service, given the significant outlay already invested by the taxpayer.
Four years is the minimum term of service that personnel must serve before applying for a discharge. It is important to note that there is no intention to change the option available to non-UK service personnel to make a paid application for settlement in the UK on discharge, as long as they have served a minimum of four years.
We recognise the strength of feeling from parliamentarians, service charities and the public about this issue, which is why it was decided to reduce the required length of service to be eligible, as I just said. It is estimated that the fee waiver may affect around 80% of non-UK service personnel. The Home Office is rightly focused on implementing this new policy at the earliest opportunity, the aim being for it to come into effect on 6 April this year.
I will digress again, because noble Lords also raised the issue of dependants. The Government believe that it is right and fair that fees and policies for non-UK family members of Armed Forces personnel are not more generous than those for dependants of British citizens and are applied consistently. Any decision to relax the fees or policies for non-UK family members of Armed Forces personnel could undermine current fees and the rules would be discriminatory.
Non-UK family members of Armed Forces personnel can apply for settlement once they have spent an initial five-year period in the UK with limited leave. The fees and policies that apply to the dependants of non-UK members of the UK Armed Forces are closely aligned with those that apply to dependants of British citizens and other settled persons under the standard family rules. Furthermore, reducing the fees for dependants of both non-UK and British Armed Forces personnel would be similarly discriminatory and unfair to those in other professions, many of whom face similar concerns and are contributing to the UK in other ways.
There is additional support for families in planning for the cost of visa fees. That is provided by things such as the Joining Forces credit union service for the Armed Forces. That was launched under the Armed Forces covenant in 2015, and it offers savings and loans schemes at fair rates through the payroll scheme. The issue raised by this amendment has largely been addressed by the recently announced government policy, which is due to be implemented in the near future.
I turn next to Amendment 78, tabled by the noble and gallant Lord, Lord Craig, regarding citizenship and settlement rights for British-Hong Kong veterans. I know he will listen to me extremely carefully, as indeed will those Hong Kong veterans watching live.
The Government remain extremely grateful for the contribution made by former British-Hong Kong service personnel. That is why the Minister for Safe and Legal Migration announced to the House of Commons on 7 December last year that the Home Secretary has identified an option that will enable our Government to treat this group of personnel in a similar way to other non-UK service personnel who were based in Hong Kong before the handover.
I appreciate that the noble and gallant Lord wants reassurance that the Government are taking concrete steps to further support British-Hong Kong veterans where possible. I can confirm that the Government will update Parliament by the end of June and implement any changes by the end of this calendar year. The Government remain committed to implementing a solution to the issue of British Hong-Kong veterans before the end of this calendar year, but I respectfully ask the House to give us the necessary space to do so.
My Lords, I will let the noble and gallant Lord, Lord Craig, talk about Amendment 78 when we come to it, but, as one of the signatories, it would be churlish not to recognise the way the Government have moved on that issue.
With respect to Amendment 77, I appreciate that the Government again have made some movement on this but I do not think it is enough. It should be four years; that is what the demand is. I do not understand or accept the point the Minister made about the exclusion of dependants. Dependants should be included in any scheme we take forward. As such, I wish to test the opinion of the House.
Amendment 78 not moved.
79: After Clause 78, insert the following new Clause—
“UK immigration status: certification
(1) The Secretary of State must issue physical proof confirming immigration status to anyone who has been granted such status under the immigration laws of the United Kingdom and who requests such proof.(2) No fee may be charged for issuing physical proof under this section.(3) The certificate mentioned in subsection (1) must confirm that the relevant person has the relevant status.(4) The certificate mentioned in subsection (1) is valid for right to work checks, right to rent checks and all other checks that may be undertaken by agents within and without the United Kingdom to confirm the relevant person’s UK immigration status including permission to travel to and enter the United Kingdom.”Member’s explanatory statement
This new Clause would require the Government to issue a physical certificate to all people with a UK immigration status, allowing all those with such status to provide documentary proof.
My Lords, Amendment 79 would require the Secretary of State to provide physical proof of immigration status to anyone who has been granted such status and requests such proof. The arguments for providing physical proof alongside digital status have been aired extensively in this House, most recently in the debates on the then Immigration and Social Security Co-ordination (EU Withdrawal) Bill, when your Lordships overwhelmingly supported a cross-party amendment to this effect for EEA citizens with settled or pre-settled status. I am heartened that this amendment has also received support from across the House, and I am grateful to all the signatories of it.
This amendment differs a little from my 2020 amendment in that it covers not just EEA citizens with settled and pre-settled status but also non-EEA citizens who have immigration status. That is because, despite the huge difficulties and anxieties caused by digital-only status, the Government have decided to extend it to non-EEA citizens who previously were able to use biometric residence permits, biometric residence cards or frontier worker permits.
Whatever the merits or otherwise of a digital-only system, one would imagine that before introducing such a radical change the Government would have undertaken extensive trials to check that the system worked and could be easily operated by those who had to use it. In fact, the Government conducted only one such trial in 2018, which concluded:
“There is a clearly identified user need for the physical card at present, and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”
The Government ignored that finding and ploughed on.
A comprehensive document setting out many of the difficulties users have encountered was submitted to the independent monitoring authority by the3million in November last year, and I raised a number of specific concerns when we debated this amendment in Committee. These included problems with updating status when a person received a new passport, multiple errors in the view and prove system, and even immigration officials demanding physical proof of settled status.
The Government set up a settled status resolution centre, which, confusingly to everyone, works alongside the UKVI resolution centre. At the outset, those who received a letter telling them they had received settled or pre-settled status were not provided with any contact number at all if something went wrong. Subsequently, the letters included the number of the EU settlement resolution centre for people to contact—but many cannot even get through. Despite the Home Office asserting in meetings with stakeholders that callers who did get through to the resolution centre had to wait an average of 14 minutes, it could not or would not say how many did not get through, although it acknowledged that demand was managed. That seems to mean that callers were simply disconnected to keep waiting times down. For example, the transcript of a call made on 12 November 2021 and included in the submission to the independent monitoring authority showed that the call had been automatically disconnected regardless of the options chosen.
The full scale of the problem has come to light only recently, because until then the Home Office resolutely refused to provide detailed information on the performance of the resolution centre. In 2019, an FoI request to obtain this information was refused, on the grounds that the data was already planned for publication. However, as no such publication subsequently took place, a new FoI request was submitted in July 2021. After repeated follow-up requests, an internal review and a referral to the Information Commissioner’s Office, the information was finally published on 1 December last year. It immediately became clear why the Government had been so reluctant to publish the data, because it showed that, over the 12 months to October 2021, just 44% of the calls to the EU settlement resolution centre were successfully connected.
In response to all these difficulties and to the Government’s rejection of biometric residence cards for EU and EEA citizens with settled and pre-settled status, the3million made the constructive alternative proposal of a barcode system similar to the one we had for Covid vaccination status. The Minister responded to this suggestion in Committee by saying:
“He mentioned the QR code, and I totally agree; the QR code has worked brilliantly throughout the pandemic for certain things such as updating your Covid vaccination status. I will take that back to the Home Office and report back on any progress … but I support the whole principle of being able to use a QR code”.—[Official Report, 10/2/22; cols. 1981-82.]
At last, after so many years debating this issue, there seemed to be a glimmer of hope and some common ground.
How naive I was. Last Friday, the3million received a letter from the Home Office rejecting the idea of a barcode. It is four pages of bureaucratic obstructionism without any acknowledgement of the problem that needs to be addressed, the anxieties of those whom the policy affects, or any positive proposals about a way forward. It makes a whole series of inaccurate assertions that could easily have been corrected if those involved in determining the policy had engaged effectively with those affected by it, but they did not.
Having finally agreed to a meeting for the 3million to present the proposal, the Home Office then took eight months to respond to it and refused to hold an interim meeting with the group during that time to discuss progress with its assessment of the proposal. It then produced a wholly negative response that rejects the proposal out of hand on grounds that are simply wrong and could have been corrected had the interim meeting taken place.
The truth is that the Home Office had made up its mind before it had even begun. Unfortunately, this sort of response is not a one-off but part of a pattern of behaviour at the Home Office that was identified in the independent Windrush Lessons Learned Review—commissioned by the Home Office—which states on page 141:
“It is not clear that the department has learned the wider lesson that it should be engaging meaningfully with the communities it serves. The true test will be whether stakeholders, including those considered to represent critical voices, are firstly invited to participate in developing the department’s policies, and also in designing, implementing and evaluating them.”
The Home Office’s response to the barcode proposal makes it abundantly clear that this test has been comprehensively failed. At the heart of this issue is whether the Home Office is willing to listen to the users of its services and take on board their concerns, or whether Ministers and officials are impervious to them and simply determined to pursue their policy regardless of the consequences.
As I have said in all our previous debates, this is ultimately about people’s lives, the unnecessary difficulties and anxieties being imposed on them, and the Home Office’s seeming inability to recognise or empathise with those concerns. I hope that the Minister and her department will reflect on how their response fits into the wider cultural problems in the Home Office and come back with a proposal that will fix this problem, rather than continuing to pretend that it does not exist. I beg to move.
My Lords, I supported the noble Lord, Lord Oates, last time, as did the House, as he said, by an enormous majority. I did this because I was impressed by the postbag I got from people who argued that they would feel more confident, and that it would be easier to rent accommodation, open a bank account and so on, if they had some physical proof. I am sure that is the case.
The Minister then argued against me that there was a cost involved in doing as I asked and providing physical proof. I confess that she was probably right. There is no cost involved now if one follows the example of the QR code on the NHS vaccination app. That works brilliantly well, as she acknowledged in Committee, and I see no reason why it should not be applied here. There is no reason why one should not be able to download a document off the Home Office website, and present it—with the QR code on it—as the necessary authentication, thus avoiding the need for any biometric card. It seems to me that it is now genuinely cost-free.
Since it would provide considerable reassurance to a large number of people, I hope that this time the Minister will feel able to accept the amendment in the name of noble Lord, Lord Oates.
My Lords, I speak not only on my own behalf but on behalf of my noble friend Lady Altmann, who has had to leave the Chamber due to the illness of one of her children.
I sat on the Select Committee which investigated settled status. We interviewed, at length, as I have said before, the ambassadors for the other European countries. Each and every one of them identified as the most egregious problem the lack of giving their nationals with settled status physical proof. What was more abhorrent is that every English person living in their states was offered such physical proof.
As I am known to be speaking out on this, my inbox has been inundated with examples of people being stuck at airports, at hospitals and when renting. It is iniquitous, because the Government have failed to give any comprehensive, sensible, rational reason why they will not simply change their mind and look at this from the perspective of the people being disadvantaged by it. If I could be persuaded that it was just about money, I am sure that given the choice of having to buy physical proof for a small fee, most applicants would be more than happy to pay to give them peace of mind.
It is simply not good enough to rely on machinery. Machinery lets us down. Why do we have a centre outside the Chamber for when our voting system does not work? Why do we have back-up systems? What happens when the power goes down? What happens when people interfere with systems, which is probably going to happen in any war? What happens if you are dispossessed?
The Government should reflect seriously on how we welcome the many people who live in this country and who give their lives for this country. They are considered to be citizens equal to the people born here but they are disadvantaged by not having the simple provision of a piece of paper—a card, a passport, a driving licence or any other of the pieces of paper we carry around—with no viable explanation as to why it is refused. Please, can they change their mind?
My Lords, I have added my name to Amendment 79. I did not speak on this in Committee, but I did raise this concern in a question on 1 July last year. The Minister told me then that the Home Office had recently met with the3million—that was on 21 June—to discuss this in relation to European citizens. As the noble Lord, Lord Oates, has said, that was over eight months ago, so there has been a lot of dragging of feet.
The recent letter from the Home Office to the3million, with its rejection of the use of a QR code, is hugely disappointing. Perhaps even more disappointing is the fact that the response does not start from the premise that physical proof is a necessity—indeed, quite the opposite. It perversely insists on disputing what is a clear necessity for a significant number of citizens, as the3million would have explained carefully to the Home Office in that aforementioned meeting. In Committee too, the noble Lord, Lord Oates, gave many examples of where physical proof is necessary. We have just heard how noble Peers have had their inboxes inundated.
Whatever happens to this amendment, it is important that the dialogue between the Home Office and the3million continues. I know it has written to the Home Office today addressing every single one of the objections that the Home Office has raised concerning the proposal for the use of a QR code. If it would be helpful, is the Minister willing to meet a number of interested Peers, alongside a representative of the3million, to discuss a way forward?
A purely digital approach is not a panacea in this regard, even if the Government wish to believe it is. There needs to be the option of physical proof of status. I will certainly vote for Amendment 79 if it is taken to a Division.
My Lords, the noble Lord, Lord Oates, ran off an extremely impressive list of people and groups supporting this amendment for physical proof. I add the European Affairs Committee of your Lordships’ House, of which I am a member, along with the noble Earl sitting on the Woolsack. Last year, when we examined the implementation of the settled status system, we unanimously recommended that physical proof be made available. That committee contains members of all parties in your Lordships’ House and none, and we had no hesitation whatever about the recommendation we made. This was after the evidence had come from the Covid barcode system that it could be done at nil cost and would give tremendous relief to people like me who sometimes struggle a little with the digital world in which we now live.
I really hope that the Minister will now go back and accept that providing this physical proof will greatly increase the respect in which this country is held by member states of the European Union, which have unanimously asked for this. It will do nothing but good for the individuals who get the physical proof and for this country, which will have shown that it listens to the views of others. I hope the amendment can be accepted.
My Lords, I am pleased to follow my noble friend Lady Shackleton’s speech.
We had the Windrush disaster because people got nothing in writing. That was a shameful episode; many people suffered badly and we are now paying large sums of compensation. That does not assist the taxpayer, but no doubt the civil servants 30 years ago did not think about that. It costs us all money now, so if nothing else think about the money for future taxpayers. I see no reason why we should risk a repeat of the Windrush disaster.
If a modest charge is necessary, so be it. People will pay £10 for a piece of paper or for registration costs, but what is that? They will have comfort and security. The Home Office’s reluctance to issue proof in documentary form for European citizens living here, minding their own business, is difficult to understand.
There will be personal disasters in future. They will be disasters in 10, 15 or 20 years for the individuals who, for one reason or another, are unable to prove that they are settled in this country when they come back from time abroad. I ask the Minister to think of herself and her children and grandchildren in that position. Decent people living in this country deserve to be treated decently.
My Lords, I rise very briefly to say that the Green group would certainly have attached a signature to this motion had there been space. Like everyone else, my inbox has been utterly swollen with emails and letters about this.
I will make an additional point which no one else has. Travelling has now become much more stressful. There are extra stresses and worries. Not having a piece of paper just multiplies that. I draw here on my own example of helping an older gentleman to make some travels across the channel recently. He carries a whole wodge of printed-out Covid vaccine passports. Every time we travel, we must have a passenger locator form; there is huge stress until it is printed out. He is lucky enough to be a British citizen, so he then puts his passport with those printed-out pieces of paper, and there is a sigh of relief. However, there are additional difficulties if you do not have that piece of paper. In the case of this gentleman, several times recently the travel has gone wrong, his phone has run out of charge and he has been left relying on the kindness of strangers to pull through. However, if you need your phone to prove your settled status, that is not going to help. We cannot assume that people are always going to have charged, working devices with them. Just printing out a piece of paper would offer a level of assurance for travel in these difficult times.
My Lords, I will not delay the House as we are all keen to complete Report stage. Having read Hansard for 3 am on 9 February, I felt that I must return to the charge on Amendment 82, which is eccentrically grouped with the high-profile Amendment 79.
The purpose of my amendment is to ensure that visa provisions can be included in future trade agreements only if they are specifically and separately approved by both Houses of Parliament. The need for this arises because of recent reports of plans to grant visas in trade agreements currently under discussion with India. I know that this has been a long-term aspiration for them. I believe that visas should be the subject of nationality law, such as this Bill. It should be separately agreed, and not bundled up into the CRaG process. Discussion in the CraG process will always look at an agreement in the round in the light of the interests usually concerned with such agreements. It certainly will not want to hold up an agreement for immigration reasons. Yet, as we know from WTO agreements, once provisions are in them, they are legally enforceable whatever happens. Given the population of some countries with which we are negotiating, I am very concerned.
The Minister was reassuring and suggested in Committee that any visa provisions would be confined to mobility issues affecting UK service suppliers seeking to go to India, and that this was precedented in the Japan and Australia agreements. In these circumstances, I cannot see why he cannot agree to my amendment—perhaps with a government tweak to make this explicit and/or to give a categoric assurance that visa provisions in any trade agreement will be confined to this area.
My Lords, obviously, these Benches wholeheartedly support Amendment 79 for the reasons explained.
I have some sympathy for the noble Baroness, Lady Neville-Rolfe, as far as Amendment 82 is concerned. One would hope that there would be cross-departmental working on trade agreements so that there would be no agreement to any visa deal without Home Office agreement. However, bearing in mind the apparent disagreement between the Home Office and the Ministry of Defence over the role of the MoD in the channel in relation to migrant crossings, I am not reassured. Perhaps the Minister can reassure the House on this issue.
I too will be brief. I was anticipating a more favourable response to Amendment 79 and the issue of the QR code. I was certainly taken aback to hear from the noble Lord, Lord Oates, that the Home Office has now rejected the bar code. I accept that the Government did not give any specific commitment in relation to the QR code when we discussed the matter in Committee, other than to say that they would take the matter back to the Home Office.
We have heard some fairly powerful submissions this evening on why that documentary proof is required, why people feel it is necessary, and why people feel that they could be left in an awkward situation if they do not have it. One only hopes that the Government will take some cognisance of what has been said in the debate this evening, reflect further and take this back, and perhaps have another rethink in the hope of coming forward with something more positive when we get to Third Reading.
On Amendment 82, the noble Baroness, Lady Neville-Rolfe, pursued this in Committee. She said in response to the Government:
“I found what he said”—
that would be the Minister—
“about trade reassuring on sovereignty. I am less happy on the application of CRaG, because of course that gives us a vote only on a whole trade agreement. It is the provisions on visas or immigration that worry me. If a favourable trade agreement were presented to Parliament, obviously Parliament would not want to vote against that, so we have a little problem.”—[Official Report, 8/2/22; col. 1574.]
I understand what the noble Baroness is saying. In a way it is a bit like a statutory instrument: you either accept it or you reject it, and you cannot take out bits that you are not happy with. It will be interesting to read the Government’s response.
Having said that, I crave the indulgence of the House because, frankly, I have reached the stage where I will have to depart in order to get home. I apologise because I know that is not what I should be doing, but I hope the House will accept my apologies on that particular score. I have sought to set out where we stand as an Opposition on these issues.
I am always worried that the noble Lord, Lord Rosser, will not get home, so if he wants to exit stage left, I will not be in the least bit offended. I am very keen that he gets his train.
On Windrush, that tragedy did not arise because people did not have a piece of paper. That problem arose because, through successive changes in immigration law over the years, Windrush was simply forgotten. Of course, it was at the time a declaratory system, but the problem did not arise because people did not have a piece of paper.
To return to Amendment 79, I know that the noble Lord, Lord Oates, will not be happy with what I will say. I hope that I can provide a comprehensive and sensible reason why, to quote my noble friend Lady Shackleton.
We provide all individuals who are granted UK immigration status with a formal written notice of their grant. It is in the form of a letter sent by post or email which sets out their immigration status. They can retain the letter for their own personal records and use it, if they wish, when contacting the Home Office about their status.
We took full account of the recommendation from the beta assessment of the Home Office’s “prove your right to work” service and have introduced a wide range of support to help vulnerable users as we roll out the e-visas, which are the secure, online services which can be used to view and prove immigration status. We are and have been implementing the change in an incremental way since 2018, to ensure that no one is left behind.
Those who struggle to use them can also contact the UKVI resolution centre, including by phone, for help using the service or sharing status on the individual’s behalf. We have also developed mechanisms which reduce the need for individuals to prove their status themselves when accessing public services: for example, benefits and healthcare. Status information is already shared automatically with HMRC and DWP and the NHS in England and Wales.
We published a policy equality statement in relation to the EU settlement scheme on 18 November 2020. The statement considered the impact of e-visas and set out the support available to users who need help. There are reports of incidents where the system may not have worked as it should have, but feedback on the e-visas and online service has been generally positive. Most users find it easy to use and it is aligned with other digital government services, such as DVLA services for renewing driving licences and paying vehicle excise duty. E-visa holders can check their status at any time by logging into the view and prove service; they can even contact the Home Office if they experience any issues with their e-visa.
The noble Lord, Lord Oates, previously referred to the Government’s intention to remove biometric residence permits, biometric residence cards and frontier worker permits from the lists of documents acceptable as part of a right-to-work check. We can do this because the online system works. The cards will remain valid for other purposes, including as an identification document and to board travel services when returning to the UK. As the noble Lord is aware and has mentioned previously, we have been considering the merits of introducing a QR code. As he said, I committed to take the matter back and discuss it with the Home Office. He is absolutely right: we have written to the3million, setting out why we do not think it is a viable option. We have had to consider a wide range of factors, not least that using this method in the context of demonstrating vaccination status is not equivalent to using it to show immigration status, since a person’s immigration status can change in a way that their vaccination status cannot.
The information on an insecure printed document, even one validated by a QR code, would not be a secure method of sharing and proving immigration status in a way that gives confidence to the user and the checker. We consider that it would open the system up to potential fraud and abuse because the QR code would not be sufficient to verify the identity of the document holder. We have looked into whether we could incorporate a facial image on to the QR code but found that the technology would not support inclusion of high-resolution facial images. It would not adhere to the principles of data minimisation, whereby only as much personal data as is needed for the checking purpose should be shared and accessible only for as long as required. The checker would require an app on an internet-enabled device capable of reading the code, whereas any internet-enabled device with a web browser can be used to check a share code. Our reply to the3million, which I will share with the noble Lord, has been published on its website and provides a full explanation.
Physical documents obviously expire—my parents insist on printing their Covid passes out, and sometimes they are near or at expiration—they can become invalid or be lost, stolen or tampered with, and they take time to replace, leaving our immigration system open to fraud and abuse. They do not provide that real-time information. Last year, UK Visas and Immigration received over 44,000 reports of lost or stolen biometric residence documents and issued over 22,000 replacement cards for those reported lost or stolen. Implementing this amendment would involve significant costs; they could well be over £270 million if we had to issue a physical document to everyone with an immigration status.
Our provision of a letter sent by email or post meets the need for a physical document showing a person what their immigration status is, and it can be kept for personal records. The ability to view and prove immigration status online in the form of an e-visa provides foreign nationals with the certainty that they need to demonstrate their rights in the UK now and in the years to come. I hope—although I doubt it—that I have reassured the noble Lord on his concerns. On the other point, I am very happy to meet any interested parties that wish to discuss this further.
I turn to Amendment 82 from my noble friend Lady Neville-Rolfe and the noble Lord, Lord Green, on trade agreements containing provisions on visas. We should recognise that the Immigration Rules and decisions about visa requirements are sovereign national powers which rest with the Home Secretary. I sympathise with my noble friend’s desire to retain national control over visa policy. We took back control of our borders when we left the EU and now have the freedom to set our own rules in the interests of the UK.
However, trade and immigration are separate policy areas and the UK does not routinely discuss immigration in trade negotiations. What comprehensive free trade agreements typically include is provisions on so-called mode 4 trade in services. These set the terms for the temporary movement of service providers between parties to the agreement. Immigration policy, as opposed to mode 4, is our overarching approach to long-term immigration and border controls.
I know my noble friend has expressed concerns about the Government’s negotiations with India on a free trade agreement. As is standard in UK free trade agreements, I expect we will explore mode 4 provisions, which could support British and Indian businesses and consumers, in our negotiations with India. This is not a one-way conversation. UK business stakeholders have identified mobility issues affecting UK service suppliers seeking to go to India, which we might seek to address in these negotiations. This is just as we have done in our free trade agreements with other partners such as Japan, Australia and the EU and would expect to do in any future comprehensive free trade agreements. But any agreement will be consistent with the points-based immigration system and we will not compromise the principles or functioning of that system.
I also want to note that Parliament already has appropriate involvement in the scrutiny of free trade agreements and their provisions through the CRaG process. The legislative framework set by CRaG provides Parliament with the opportunity to undertake scrutiny of an FTA prior to its ratification. I understand the point my noble friend raised previously that CRaG is a rather binary tool, but it would not be appropriate to have additional processes to consider individual issues within the agreement. Immigration is clearly an important issue but comprehensive trade agreements, by definition, cover more areas. It would not be practical or desirable to have carve-outs for individual issues; taken together, these could make the process of negotiating and scrutinising trade agreements lengthy and impractical.
While I agree with the thrust of my noble friend’s argument that robust scrutiny is critical, I cannot agree with the amendment. I instead point to the comprehensive processes we already have in place to ensure that Parliament has its say on trade agreements and, critically, that any changes to domestic law would need to be passed by this House in the normal way. I hope I have set out clearly for my noble friend why this amendment should not be pressed.
My Lords, I thank all noble Lords who have taken part in this debate. Given the lateness of the hour, I will not go into detail but just say two things. First, I have read the entirety of the Home Office letter to the3million group, most of which is wrong and could have been corrected if the Home Office had the decency to meet on an interim basis as requested. The Minister will have seen, or will see shortly, the comprehensive refutation of every point that she has made.
Secondly, it is all very well to say that the system works well for some people. For digital-savvy people, I am sure it is fine; but for people who are not digital-savvy, it is not. That is specifically what the pilot undertaken by the Government warned about. It said that the system should not be changed, as unless effective mitigation was put in place it would have a significant impact on vulnerable users. It is having a significant impact. I very much regret and am dismayed that the Home Office does not understand that and will not listen to the people who have to use it. On that basis, I would like to test the opinion of the House.
80: After Clause 78, insert the following new Clause—
“Duty to publish immigration data
(1) The Secretary of State must ensure that information is regularly published on immigration, including data on asylum and other immigration. (2) The Secretary of State must, within six months of the passing of this Act, review the International Passenger Survey conducted by the Office for National Statistics and in particular review whether the data that it collects are—(a) accurate, and(b) relevant for assessing the scale and nature of immigration to the United Kingdom.(3) The Office for National Statistics must update the International Passenger Survey in the light of the review.”