Good afternoon. I have to tell the Committee that Clause 8 has already been amended.

Clause 8 [Use and retention of information]:

moved Amendment No. 25A:

As we begin the third day in Committee on this Bill, as the Minister introduces yet more amendments to the Government’s own Bill on biometric registration documents, it is right to reflect that Government’s policy over security has been in some disarray over the past week or so. That has been revealed by such issues as the progress, or egress perhaps, of Muktar Ibrahim, the leader of the gang that brought fresh terror to our streets just a fortnight after bombs killed the 52 travellers in July two years ago.

At the beginning of the debates on Second Reading and in Committee, we put on record our concern that the Government were trying to fiddle around at the edges while not approaching security in the right way. Muktar Ibrahim was able to leave the country to travel to Pakistan, having been stopped and questioned by Special Branch officers at Heathrow. They were acting on a request from MI5, which had followed a car in which Ibrahim was a passenger to the airport. He was allowed on his way, even though he aroused suspicion, because he had £2,000 in cash, claimed to be attending a wedding—although he did not know whose wedding—and had cold-weather mountain gear in his luggage.

It also emerged that Hussain Osman, another of the convicted plotters who came to Britain in 1996, claiming to be a Somalian, was in fact an Ethiopian who had been living in Italy. When he came to the UK, when his Italian visa ran out and he claimed asylum, his application was turned down; but in 2004 he was given discretionary leave to remain. After his failed bomb attack on the underground, he fled to Italy, travelling unchallenged through the Waterloo Eurostar terminus despite the biggest manhunt in British history.

In the same week, we have seen reports that the head of Interpol has complained that the UK was failing to check visitors against a database of stolen passports. We appreciate that the Prime Minister, Gordon Brown, told Sky News last Sunday that the Government were looking at the issue as a matter of urgency. They should be not only looking at the matter but doing something about it.

It behoves the Government to have dealt with those matters before they considered bringing forward this Bill. We shall continue to scrutinise the Bill with great care but we continue to be of the mind that a lot of its proposals will not provide the solution. I am sure that at Report we shall have to come back to some of the major issues about other ways in which to deal with these matters. In the mean time, we do not oppose the government amendments. I merely observe wryly that at this late stage they have sought to make what appear to be rather basic practical amendments.

The noble Baroness, Lady Anelay, has raised some extremely important matters, although I am not sure that they are immediately germane to the amendments or to Clause 8. Mr Muktar Ibrahim, for example, would not be covered by the provisions in Clause 5(1), even if it had been enacted in time for his exit and re-entry into the United Kingdom.

The noble Lord is absolutely right in saying that my remarks are not germane to the amendments. I am simply using them as a means of reflecting at the start of the third day out of five in Committee that there other methods by which to address this matter. If the Government had been minded earlier to accept proposals from the noble Lord’s party as well as mine with regard to UK border police being established and a much better system of scrutinising passports, much of this Bill would not be required, including some of the provisions to which the noble Lord has much objection.

We will definitely return to these matters on Report. The case of Mr Muktar Ibrahim will be one that we will look at in relation to the border agency which both the noble Baroness, Lady Anelay, and we think would be a better solution than the one in the Bill.

To return to the amendment moved by the Minister, we were grateful to the noble and learned Baroness, Lady Scotland, for her letter of 22 June which explained, as the Minister did again this afternoon, that these amendments are intended to make it clear that Clause 8 applies to the use, retention and destruction of biometric information obtained through regulations made under Clause 5(1) and not to the non-biometric information, which, as the Minister has already explained, is already covered by the Data Protection and Human Rights Acts. In her letter, the noble and learned Baroness added that, subject to those Acts, the Government would share the BID information, including biometrics, with others, including government departments.

The provisions regarding destruction of the biometric information required by Clause 8(3) include provision for the destruction of copies. I hope that the Minister is paying attention to this because I will ask him a question which is of some importance. As I said, there is provision for the destruction of copies unless under Clause 8(4) the information is retained in accordance with and for the purposes of another enactment.

What enactment do the Government have in mind? There would not be any enactment which would already refer to the biometrics. Therefore, I am assuming that the Government have in mind some future hypothetical use to which the biometrics might be put by a person other than the Secretary of State. I would be grateful if the Minister could elucidate that question. Under what enactment might copies be retained since they could not have been referred to in any existing enactment? What sort of purposes do the Government have in mind which would require copies of the biometric information being retained, when the originals in the ownership of the Secretary of State would have to be destroyed under Clause 8(3) regulations? That is an important point because there is no purpose in destroying the parent biometric information if multitudes of copies can be retained by other persons to whom the Secretary of State has transferred them.

I have three questions. My noble friend Lord Avebury, drew attention to the database. When we proceed to a national database following the introduction of identity cards, how will that apply to the destruction of biometric information? If information is on a national database, will it not be retained in one way or another?

Secondly, what distances are involved in the interview areas? I know that certain recommendations have been made, such as 25 miles. How confident is the Minister that there will be access to this centre for interviews?

Finally, we know that there are problems with personal interview procedures for passports—I have mentioned that once or twice before. Of the 69 personal passport interview officers, only two are effective at the moment. How confident is the Minister of the success of this scheme to collect biometric information? Is he confident that the whole system will support the measures outlined in the Bill?

I congratulate the noble Baroness, Lady Anelay, on using a convenient amendment that happens to be passing by to give the Committee the benefit of her party piece, and I understand why she is doing that. She is quite entitled to do so.

One can have the best border police service in the world, but there is always a likelihood or possibility that something will be missed. My guess is that our friends in America would think that they have a fairly robust system, yet they suffered one of the worst terrorist outrages that has ever been visited upon any country in the world—9/11. I am sure that they have improved their processes since then. I am confident that we have done so, and that what we are putting in place through this legislation will improve matters. I have greatly enjoyed some of the support that we have received from the noble Baroness’s party and from other parties to improve the way in which Customs, police and immigration services can work together through the Border and Immigration Agency and the border management programme to ensure that we have more robust procedures in place.

My right honourable friend the Prime Minister made it plain the other day that he was less than satisfied with what had happened with regard to the convicted terrorists and the movement of some of them. He was right to draw attention to that in the way that he did. We will have to ensure that vigilance is maintained. Some of the errors were perhaps of an operational nature. Even if some of the measures proposed here had been in place, there may well have been some gaps—who can be absolutely sure? For that reason, the Prime Minister quite rightly wanted to ensure that matters were properly reviewed. We try and make progress. We try to ensure that that law is right. We think that these measures are right and proportionate. We keep things under review and, no doubt, we will return to the issues raised by the noble Baroness, not just today, but on other occasions.

The noble Lord, Lord Avebury, asked about the use of powers allowing the retention and destruction of biometric information. Clause 8(4) enables biometric information to be used or retained under the Identity Cards Act, even when a person becomes a British citizen. I know that the noble Lord was concerned about those issues and, no doubt, he will continue to be concerned, but it is right that we have those powers so that we can act on the information that they obtain. The noble Lord, Lord Roberts, asked how confident we are that biometric information can be collected. We are entirely confident, as I have explained on a number of occasions. We have already had successful experience of collecting biometrics from visa applicants. We will make use of the possibility for the incremental rollout of bids to pilot and test the process to ensure that the project is implemented as successfully as the fingerprinting of visa applicants.

The noble Lord asked how confident we could be of access to interview centres. We are looking at the best options to achieve a target of reasonable travel to these centres. The noble Lord will be well aware that I have explained on a few occasions that we continue to look at the possibility of mobile units. I think that that system will work well. I congratulate the noble Lord on raising the issue at every opportunity. The rollout programme has been explained to him in the past and we have placed in the Library of the House some of the more refined details. I hope that that answers the noble Lord’s points. I am grateful for the comments made in this debate.

I do not want to prolong the debate unnecessarily, but if the Minister will forgive me for saying so, he has not actually answered my question, which was very specific. Copies are made of the documents that are under the control of the Secretary of State. They are transferred to other persons, such as other government departments and, as the Minister has mentioned, the police. The regulations will specify under what circumstances and at what point the biometric documents under the control of the Secretary of State will be destroyed.

I asked the Minister whether he could explain what the other enactments are that are referred to in Clause 8(4). If such enactments are to be put before your Lordships in the future, we should know about that. This is a purely hypothetical provision to cater for some unforeseen eventualities, and not for something that the Government have in mind at the moment. I wanted the Minister to explain what sort of purposes were envisaged under which these copies would be retained by some other person to whom the Secretary of State had transferred them after the destruction by him of the parent records.

I do not expect the Minister to give me an immediate answer because he may not have access to the information but, as he has been so assiduous in writing to Members of the Committee after every Grand Committee sitting, perhaps I could ask him to include that in the letter he writes after today’s.

I am happy to do so. Much of the regulation for information sharing, data sharing and so on is governed by data protection and human rights legislation. As the noble Lord knows, by and large the retention of this information will be for law enforcement purposes. I do not have anything I can tell him about what other purposes we might envisage that information being retained for, or the legislation we might have in mind.

What are the other enactments?

I will write to the noble Lord and ensure that those data are circulated to other Members of the Committee.

On Question, amendment agreed to.

moved Amendments Nos. 25B to 25G:

moved Amendment No. 25H:

Clause 14 deals with the code of practice covering the penalties that may be imposed on a person who fails to comply with any of the regulations to be made under Clause 5(1). The amendment clarifies the first code of practice for determining whether to impose a penalty on a person who fails to comply with any of the regulations made under Clause 5(1) and, if so, the matters to be considered in determining the amount.

The code may require the Secretary of State to consider the non-financial penalties that may come into play automatically under Clause 7, or they may be imposed at the entire discretion of the Secretary of State. I noticed the extensive powers granted under that paragraph more recently than I should have done. We may have to return to Clause 7(2)(e) on another occasion because it is a very sweeping power.

The provisions in Clause 7 may have a drastic effect on a person’s life. For example, the withdrawal of leave to enter may cause a person’s university studies to be terminated or his leave to remain here for employment to come to an end, wrecking his future career. In view of that, I should be grateful for an assurance from the Minister that the code will require any decision made under Clause 7 to be considered when deciding whether a fine should be imposed and, if so, by how much.

The advice I have is that the two penalties which could be imposed for an immigration offence or a civil offence will not be applied at the same time. That will be made clear in the code, as will the circumstances in which penalties will be applied. The sensitivities which the noble Lord draws to the Committee’s attention will be well understood and the circumstances he describes will be covered by the way in which the code operates.

Again I am sorry to prolong the proceedings but the noble Lord has not answered my precise question. The penalties are described in Clause 14, and the code which covers the penalties may require the Secretary of State to consider the non-financial penalties in Clause 7. My question to the Minister was whether, instead of giving the Secretary of State the option of considering the penalties under Clause 7 when deciding whether to impose a financial penalty, the code would oblige him to do so. The penalties which may come into play under Clause 7 could have a devastating effect on the lives of the persons concerned and should be taken into consideration in deciding whether to impose a financial penalty.

If the Bill were left alone and the Government do not give me the assurance that I seek, it would allow them to impose a financial penalty on a person who fails to comply with any of the provisions in the regulations in Clause 5(1) and can then remove his leave to enter or to remain. We seem to be imposing two penalties for the same offence and therefore, at the very least, the Secretary of State should have to consider the impact of the penalties imposed under Clause 7 when deciding whether to impose a financial penalty as well.

I am grateful to the noble Lord for that further elucidation of his point. I thought I had made it fairly clear that the Home Secretary would not impose both penalties.

Good.

It will be for the Home Secretary to decide which penalty is appropriate. The considerations with which the noble Lord takes issue can be properly dealt with and, no doubt, the Home Secretary will choose whichever is the most appropriate penalty. The point the noble Lord made—about his notional student, for instance—can be considered in the light of that. I hope that that helps.

On Question, amendment agreed to.

Clause 14 agreed to.

moved Amendment No. 27:

I support everything said by my noble friend Lord Avebury. Any nation is judged by the way that it treats the most vulnerable in its midst. Given the examples that we heard today and previously, which are well known to organisations such as the Refugee Council, we would be looked upon with a wee bit of shame by generations to come, considering that the most vulnerable in our midst were those treated most harshly.

In a Written Answer I received from the noble Lord, Lord Bassam, he stated:

“As the Government have said on previous occasions, we believe that without this reservation the interpretation of the UNCRC might come into conflict with the UK's own domestic legislation on immigration. For this reason we think that it is right to retain the reservation as presently worded”.—[Official Report, 31/1/07; col. WA 48.]

Is it not time not to retain this reservation, but to take a lead in abolishing it, and to say that children come first in the conflict between immigration legislation and children’s rights? You can argue in government about different legislation—you can have a million words—but one child suffering is a shame upon us as a nation. As I have done on many occasions, I urge the Government to go ahead and withdraw that reservation. I am glad that Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 has largely been put on hold. We will come to that. It might show that the Government see a glimmer of light and be a wee response to our pleading. I wholeheartedly support the amendment.

I speak as the patron of the Haslar Visitors Group, because I have just been told a story about the treatment of young children pending removal, which I hope that the Committee will find relevant.

On 22 March, a woman from Kosovo and her three children under seven, including a new-born baby, were dawn-raided at their home in Portsmouth while her partner was in London. The children had to witness their parents’ possessions being rifled through in a search for documents. They were not given time to eat breakfast, but were taken to Yarl’s Wood and informed that they would be on a flight back to Kosovo on the following Thursday. On the Wednesday before that, the baby started vomiting and seemed seriously ill, so the whole family was rushed to hospital. They spent the day there, but in the early evening the older children were returned to Yarl’s Wood alone, against their mother’s wishes. The children were terrified and screaming, but had to spend the night in Yarl’s Wood while their mother remained in hospital with the sick baby. The following evening, the mother was taken back to Yarl’s Wood, while the baby stayed in hospital. In other words, she was reunited with her older children, but separated from her sick baby.

On 30 March, the mother was taken back to the hospital to see the baby and said that the nappies had not been changed since she had left the previous day. The baby was discharged later on the same day and, by the evening, they were all together in Yarl’s Wood. Despite the age of the children, they were all held there for two months. They were then returned to Portsmouth and reunited with their father, who had been too afraid of arrest to visit them.

This story may illustrate the range of problems with which the authorities are faced in meeting the best interests of the child during the process of removal—it is no easy matter. It also shows the Home Office’s desperation to achieve its targets, and the lack of consideration for family life which characterises some aspects of government policy. I know that later we shall come to amendments in the name of my noble friend Lord Listowel and others which relate specifically to removals but, as the noble Lord, Lord Avebury, asked, with these sorts of stories, how can we have any confidence in the process?

It seems that horror stories about Yarl’s Wood never end. I have personal knowledge of the third case mentioned by the noble Lord, Lord Avebury, and, on those grounds and generally, I am very happy to support the amendment. I am surprised that the Official Opposition do not appear to support or even comment on it.

We should recall that, when dealing with amendments, it is the custom of this House for the Member representing Her Majesty’s loyal Opposition to speak last, just before the Minister, so that they are able to give the courtesy of their consideration to all that has been said. I always listen with great respect to the noble Lord, Lord Hylton.

I take that point on board and perhaps I should withdraw what I said, although it does not deter me from supporting the amendment.

I am sure that nothing would. The noble Lord, Lord Hylton, has shown great principle and courage over all the years that I have been here, and I know that he has served the House much longer than I have.

It is right that the noble Lord, Lord Avebury, directs us again to the issue of child welfare and how it should be promoted. We have revisited many of the arguments that were dealt with at the end of day one of Committee, when we looked at Amendment No. 13. The conundrum that has to be resolved is: how does one adequately protect and promote the welfare of children who are affected by the immigration system, while the Government, as their prime duty, protect the people of this country, many of whom are children and to whom the Government also owe that duty of protection and welfare?

We have heard some harrowing stories and obviously the Minister will address the particular of those but, looking to the general, I am grateful for the briefing from the Refugee Children’s Consortium. As the noble Lord, Lord Avebury, said, that organisation is concerned that the Government have stated that they do not intend to sign up to the UNCRC in respect of the terms of the amendment. The Government said that they believe that their general reservation on immigration and citizenship does not prevent them having regard to the UNCRC in their care and protection of separated children. I appreciate that the Minister gave much of his answer on the first day in Committee, but we need to hear from him again why the Government believe that that is the case. Of course, we have been given the code of practice, Keeping Children Safe from Harm, from the Border and Immigration Agency, and that has been helpful. We considered the code and need to test how far it goes in meeting our concerns. As the noble Lord, Lord Avebury, and others have said, we will return to this issue. There are other matters covering the welfare of children, particularly those in detention with or without a responsible adult.

The argument of the Refugee Children’s Consortium is that the reservation entered into by the Government means that, in practice, the Government are not able adequately to protect children. It alleges that it allows the UK to pass immigration laws without reference to the convention. For example, it alleges that some of the proposals in the Bill would be in contravention of the convention. Therefore, we need to hear from the Minister why the course that the Government intend to adopt and develop in response to amendments that we have already debated enables them to maintain their reservation without compromising the safety and welfare of children in the system. If the Minister is not able to do that, by the time we get to Report I feel that a head of steam will be building up and that noble Lords will want to try to ensure somehow that there is a core protection.

At the moment, the core protection is that encapsulated in Section 11. If the Section 11 proposals could be embodied in the Bill in some strong, guaranteed way, many if not all of the other amendments would not be necessary. I am not wholeheartedly saying that I support this amendment, because there are other ways in which we can address the problem. It was absolutely right for the noble Lord, Lord Avebury, to bring it forward because the Minister needs to be able to enter his justification.

This observation is felt as well as meant: I could not be other than moved by the cases referred to by the noble Lord, Lord Avebury, and the noble Earl, Lord Sandwich. Clearly, that is not best practice and it is not what we want to hear. I cannot comment on individual cases because it would be wrong of me to do so, but the Committee will record its gratitude to the noble Lord, Lord Avebury, for being as assiduous as he is in pursuing us in government with those issues and drawing our attention to what he and others quite rightly view as malpractice. I congratulate him on doing that and it is right.

One feels extremely uncomfortable listening to disturbing stories of that nature. Whatever the justification, they make one feel very uncomfortable indeed. The noble Earl, Lord Sandwich, made the point that officials find themselves in difficult circumstances when dealing with families who have different family needs—children of different ages requiring different things, where someone has become hospitalised or is in poor health, or where both parents are absent for whatever reason. Clearly, those are distressing circumstances and not easy for anyone to resolve. However, overarching all that must be the consideration that we must look after the best interests of the children concerned—that whatever the outcome of each individual case, their welfare and care must be of primary importance.

We come to the amendment and its effect and the issues that were so neatly drawn together in her concluding comments by the noble Baroness, Lady Anelay, who quite properly draws out the issues relating to core protection. Numerous bodies are charged with the care, protection and welfare of children in this country. Local authorities, education and healthcare professionals are among them. All these are bound under domestic legislation to provide the same standard of care to all children, irrespective of their immigration status. We are satisfied that children subject to immigration control and present in the United Kingdom receive comprehensive care, protection and support in the main. That is not to say that improvements cannot be made or that occasionally there are circumstances when those standards are not met in the spirit of domestic legislation.

The amendment would require every decision to grant, refuse or vary leave involving a child to be made so that it is compatible with the United Nations Convention on the Rights of the Child, with a view to that child’s best interests. However, this wording is too vague; it is not clear how it would be interpreted, and it is quite likely that because of this vagueness it will be used as another avenue to remain in the United Kingdom by those who have no right to stay.

The Secretary of State is entitled to query the purpose of the amendment. We have already established that it cannot be so that children who are subject to immigration control receive the same care, protection and welfare as other children in the UK. Our domestic legislation provides for that. The amendment can only be designed to prevent the carrying out of immigration functions, yet that is the very reason that we have an immigration reservation in respect of this convention. We could not operate an effective immigration system unless its functions—under powers given by Parliament—were not able to supersede other benefits that a person gets simply by being physically present in the country. If it did not matter how you got here, whether or not relatives who could look after you were here or whether or not they had obeyed the laws of this country—if all that mattered was that you should be physically present and claiming to be under 18 and that the immigration functions no longer applied to you—our system could not operate effectively or efficiently and another reason for impeding it would have been found.

No doubt those who support the amendment will say that the second part of it still allows a deportation order to be made, so some of the immigration functions can be carried out; for instance, a child who is a family member of a person who is being deported would not be covered by the convention. Deportation is the last resort in the exercise of immigration control and is hardly ever, if at all, applied to children in their own right. Cases involving children as a family member of an adult who is being deported are, of course, considered very carefully and with specific reference to the effect on the children; the Immigration Rules require that. The amendment would not change anything of practical consequence. Taken together, this would work against the effectiveness of our immigration control. The Government believe that the reservation remains justified to maintain effective immigration control.

Further, the amendment would go beyond removing the Government’s reservation; it would, to a limited extent, incorporate the United Nations convention into domestic primary legislation and make it justiciable in UK law.

All that said, it does not mean that we are not responding to the concerns expressed that the functions of the Immigration Service do not carry with them the same obligations to take account of children’s needs as other agencies. It is for that reason that we have introduced a new duty for the Border and Immigration Agency to have regard to a code of practice to keep children safe from harm while they are in the United Kingdom. That has been welcomed.

I recognise that noble Lords will be disappointed at this response, and I accept that there is more for us to do in the field of protecting the interests of children and child welfare as a primary issue. But we have to return to the point to which the noble Baroness, Lady Anelay, referred: the duty to protect citizens of the United Kingdom. That is one of the primary purposes of immigration control and, however uncomfortable that may feel from time to time, we have to have firm principles in place and a clear basis on which to operate. That is why we have adopted the current position.

I am grateful to all who have spoken to the amendment: my noble friend Lord Roberts, the noble Earl, Lord Sandwich, the noble Lord, Lord Hylton, and the noble Baroness, Lady Anelay, who was in favour of the spirit of the amendment although she believes that the same purposes can be achieved via Clause 11, to which we will come at a later stage.

I should like to put on record the fact that I appreciate the difficulties the Minister mentioned in seeking compatibility between the obligations to safeguard our borders and to get those who do not qualify to remain back to their country of origin, including children and families, and reconciling that duty with the need to look after the best interests of the child. I was interested that at one point in his response the noble Lord said that the Border and Immigration Agency did look after the best interests of the child. That is precisely what we are asking it to do by making the convention applicable to the BIA.

I must tell the Committee that if Amendment No. 27A is agreed to, I cannot call Amendment No. 28 by reason of pre-emption.

moved Amendment No. 27A:

I am not clear why we have taken Amendment No. 28 out of this group, but we will probably hear from the noble Baroness in a minute.

The noble Earl has done me a great favour by mentioning that. First thing this morning I e-mailed everyone I could to express my concern that my amendments had been ungrouped. I got notice of it only when an e-mail was sent out at six o’clock last night, but I was unable to see the amendments and ascertain what impact it would have. I intend to speak to my amendments in this group because they have a particular relationship to Amendment No. 27A, so I am grateful to the noble Earl.

That is very good news. I shall speak to the clause as a whole, which is a classic example of having been designed for the convenience of Governments and not human beings. We know one reason why it is being introduced: it is a convenient means of keeping track of young people or unaccompanied children pending removal. There would have to be a legitimate reason for that and, drawing on the JCHR evidence, I cannot see how the reasons listed in Article 8 on respect for family life and Article 11 on freedom of association under the Human Rights Act can apply to unaccompanied asylum seekers—reasons such as national security, public safety and the prevention of crime and so on. In fact, this clause could apply to anyone with limited leave to remain—even spouses, I understand. In my view, while it might apply to those who committed serious crimes, it would be excessive, an unnecessary addition to the Bill and prejudicial, in particular, to the character of young asylum seekers. The Refugee Children’s Consortium believes it to be unnecessary, unfair and costly, and says that it is damaging and inappropriate to seek to legislate for open-ended reporting and residence requirements for those children.

I think that the noble Lord, Lord Avebury, has already asked for reassurance, but I hope that the Minister can assure me that the clause will not be used for asylum seekers or those with refugee status.

It may help the Committee if I speak to Amendment No. 30, standing in my name and that of the noble Lord, Lord Judd, in this group. That probing amendment would take children out of the new requirements on reporting in the Bill. Its purpose is to discover the Government’s intentions. I regretted not being able to take part in the previous debate, and would like to comment on what happens when we make the sort of mistakes highlighted in it, which we might be encouraged to make by implementing the clause without thinking about the needs of children. The right honourable Iain Duncan Smith recently reported about the impact on this country of the fragmentation of families, and if we intervene incorrectly there is a danger that our interventions will backfire on us.

I think particularly of the four young men convicted recently for an attempted terrorist attack on the United Kingdom. One of them was an unaccompanied child seeking asylum from the civil war in Somalia at the age of 12. He was a Muslim, and was placed with devoutly Christian foster parents. I do not cast any aspersions at all on those foster parents, but for a Muslim child to be placed in a family so inappropriate to his culture perhaps demonstrates a lack of thought and a desperate shortage of foster parents. When we implement legislation of this kind, we must think of the need to manage migration but also the need to give children the right surroundings to thrive and contribute to society. They must not be left to feel downgraded, worthless or alienated. Another of the young men in the trial spent five years in Feltham young offender institution. I understand that that institution has improved recently, but he was caught up with an imam in it. That was an opportunity to give a young man a better education, training and hope for the future and, when we intervene in such ways, we must always seek to try to make the intervention positive and to not inadvertently undermine the development of children.

I return more specifically to the amendment. I wonder why the social worker cannot perform the role of communicating with young people, to reassure the Government that they are not disappearing from the system. If the intention is to prevent absconding, why cannot the social worker prevent that by keeping in touch? It appears that the intention is to enable immigration officers to secure young people more easily for removal. If so, I would appreciate the Minister making that explicit. It is fairer to the young people to explain that the purpose is to facilitate their return.

I hope that the Minister will consider whether the measure might prove counterproductive. We are talking about usually intelligent young people. If the purpose is to make detention and return easier, they will see that and may seek means to make themselves invisible. Is there a particular problem in deporting young people? If so, what does the Minister have to say about this possibly driving children underground and making the problem worse? It will certainly be distressing for them and may interfere with their education if they have to report in person. A more constructive approach might be for social workers and case managers to make the possibility of return clear from the earliest stage—provided that a child is not too troubled to be acquainted with that truth—to encourage continual contact with the child’s family in his home country where that is possible and safe, and for the Border and Immigration Agency to build on existing arrangements for voluntary assisted returns.

Will the children and young people be near reporting centres, or be asked to travel long distances to report to the immigration officers? Will they be expected to be accompanied by a social worker, and will that add further stress on a system that is already overstretched? Will the travel costs be reimbursed? Will account be taken of the educational commitments of children and young people in these situations? I look forward to the Minister’s response.

I warmly support the noble Earl’s amendment, which he spoke to so comprehensively and convincingly that there is really very little to add. I just take this opportunity to stress a couple of points that have come out in our deliberations today, not least in what the noble Earl said.

First, it is not at all clear why this legislation is necessary as these children are anyway supposed to be in the care of the social services. We need to hear a more convincing rationale for why additional legislation is necessary. As the Refugee Children’s Consortium has made plain in a very helpful brief, rather than helping with the Government’s objectives, this legislation, as the noble Earl underlined, is likely to make the situation worse, as young people disappear in fear.

Secondly, towards his conclusion, the noble Earl asked four specific questions that had arisen in the context of the consultation paper, Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children. I am sure that the noble Earl is not alone in wanting that. I shall be very disappointed if the Minister cannot give specific answers to those questions, because there is a lot of anxiety surrounding the matter.

I conclude by emphasising what in our deliberations, with the best of intentions, we are sometimes in danger of forgetting. We are dealing with children going through the most demanding emotional and psychological experience. If we take seriously the undertakings that we have given in the convention, it really is unthinkable that we can be party to increasing that mental anguish, suffering and uncertainty. That point cannot be emphasised enough. We talk these days a great deal about citizenship and what it means to be a United Kingdom citizen. Do we really believe that being a United Kingdom citizen means identifying ourselves with a policy that is aggravating the suffering of children?

First, on a question of procedure, the Grand Committee seems to have slightly reorganised the groupings.

We are dealing with Amendment No. 27A, which is grouped with Amendment No. 30A. The noble Earl spoke to Amendment No. 30, which is in the group headed by Amendment No. 28, which we have not yet got to. Perhaps we could deal with Amendment No. 27A, then move on to Amendment No. 28.

I may be able to assist. I explained in response to the noble Earl, Lord Sandwich, that I e-mailed the Government and all Peers taking part in this debate first thing this morning to express the fact that I refused to degroup the second group of amendments. It should not have been printed as it was on the groupings list; it should have been reprinted and was not. I appreciate that the Deputy Chairman was at a disadvantage because she was not part of the group that I e-mailed. My amendments reflect directly on Amendment No. 27A, and I felt that it would extend the work of the Grand Committee improperly if I were to degroup them.

I must plead guilty to having originally asked for the degrouping of Amendments Nos. 27A and 30A from the following group, containing Amendments Nos. 28 to 30 and 66. I felt that the amendments dealt with radically different issues and had not appreciated, as the Deputy Chairman announced at the beginning of the debate, that if Amendment No. 27A was passed, Amendment No. 28 would fall by pre-emption. It was through failure to understand how pre-emption worked that I asked for a degrouping that was not helpful to the Committee. I entirely agree with the course that the noble Baroness, Lady Anelay, is taking.

I presume from the recent exchanges that Amendment No. 30A will be taken separately later.

No, Amendment No. 30A is in the group.

If the noble Baroness, Lady Anelay, intends to speak to her amendments in this group, I am happy to speak to two amendments on their own or all six together. I really do not mind.

I was caught out. I thought that the noble Lord, Lord Hylton, was about to speak to the amendments and I was diverted as he was speaking.

I am obliged. The noble Lord, Lord Avebury, has raised most important points, not least about what happens to foreign national prisoners at the end of their sentences, given that they have had a serious conviction. As I understand it, that will now come under the control and administration of the new Ministry of Justice; nevertheless, I hope that the Minister will be able to clarify the situation more than it has been clarified so far.

I seem to have spoken an awful lot before actually speaking to my amendments, for which I apologise—but I was trying to assist the Committee. I am grateful to the noble Lord, Lord Avebury. It would certainly not appear at first sight that my amendments would be directly relevant to Amendment No. 27A but, as he appreciates now, if we accepted his Amendment No. 27A, my Amendment No. 28 could not be called. I know that in Committee it is unlikely to happen, but we live in hope that the Government might accept amendments on occasions.

I shall speak to my Amendments Nos. 28, 29 and 66. It was helpful that the noble Earl, Lord Listowel, spoke to his Amendment No. 30. When we had a briefing meeting for all Peers before this Bill began to pass through the House, it rapidly became clear from the views expressed by the outside organisations that Clause 16 is one of the most controversial parts of the Bill.

The questions that lie behind this larger grouping that was originally made by the Government are as follows. Which people are the Government trying to target by introducing this far more stringent set of conditions? Do they really have a justification for introducing them? Will they be properly applied to what appear to be two narrow categories? Do we really need such a scattergun approach as is provided by the Government’s amendments if they are trying to target two groups only? Whoever is to be covered by this tougher group of conditions, are those conditions appropriate or disproportionate in how they will operate?

The new provisions introduced by the Government would introduce reporting and residence conditions for those who have limited leave to enter or remain. Those persons would include refugees, work permit holders, highly skilled migrants and family members of those who are already settled in the UK. I am not sure that the wide remit of these provisions has been properly understood by the public. That is my concern. The whole thrust of the Government’s press release system on this has been to present this as a Bill that attacks illegal migration. Of course, the Government need to do that because they need to impress on the public that they are doing what they can to secure this country. But it means that those who will be affected by Clause 16 may not appreciate what is about to hit them. It is important that we discuss these matters.

I am grateful to the Committee for working in the way it has; it enables us to bracket these matters together and, as we do not vote in Grand Committee, the issue of pre-emption is not so overbearing. In any event, we will not accept any of the amendments, so that certainly does not apply. However, it enables me to address all the issues in one place and I shall go through them. I appreciate the sensitivity of the issues and understand the concerns that have been raised as part of the discussion.

At the outset, I should explain our thinking behind Clause 16, which is designed to allow the Border and Immigration Agency to monitor and maintain contact with certain individuals who have been granted limited leave to remain; that is its primary purpose. Our aim is to keep in touch with individuals in whom we have an interest in monitoring more closely. We will grant leave with reporting and/or residency conditions only where this is justified by a need for close monitoring of an individual. We want to be able to apply the clause to minors with a view to improving child protection.

The noble Baroness, Lady Anelay, made reference to children who go missing from care. The example which is often introduced in our debates is of young people going missing from the care of West Sussex social services, with truly dreadful consequences. We are very exercised by that; we do not want young people in a vulnerable position to be removed from care and trafficked. We do not want them to become involved in that; it cannot be in their interests and it cannot be in society’s interests. So there is good reason for us to improve child protection and we believe that good and close monitoring will help us to achieve that highly desirable objective.

I apologise to the Minister but I am having some difficulty in understanding how this will help to achieve his aims, which are very laudable. We all recognise this as a problem, but surely it is far more likely that these children are already being monitored: they should be monitored in the children’s home and they should be monitored by the social worker. But if they are obliged to go to somewhere where they think they might be picked up and taken off to a detention removal centre, is this not, on balance, more likely to make the situation worse rather than better? In any case, sometimes they will leave of their own volition from the setting they are in—not because someone is taking them away but because they are unhappy with the home or unhappy with their residential childcare worker, and so on. I would appreciate more reassurance from the Minister that this would not be an inadvertent consequence. I apologise for interrupting the Minister but this is a very important point. He has said already that too many children disappear from care at the moment.

As my noble friend has been interrupted, I reinforce the point that the noble Earl has made by putting it in a different way. My noble friend has rehearsed again the arguments that led the Government to their conclusion as expressed in legislation. He has not responded so far to the arguments that have been put forward that this legislation will be counterproductive. We all know that the ultimate objective is not so that the welfare and well-being of the child can be ensured but to ensure efficient deportation. The youngsters are going to know this. If these measures are taken, how can my noble friend argue that they are not more likely to persuade more young people to get into still deeper trouble by disappearing and avoiding the situation?

The noble Earl is entitled to interrupt me—that is how the Committee works, and it is a perfectly reasonable point to make. I shall try to deal with the issue as I go through the arguments. I say the same to my good and noble friend Lord Judd. I hear his question, but the state has a responsibility. Monitoring children in these circumstances is done for good immigration purposes but, equally importantly, for good child protection reasons, too.

It is not our intention to take over the valuable work done by social services, but it is our intention to complement that valuable and important work. As my noble and learned friend Lady Scotland made clear at Second Reading, we will not impose conditions that would end up pulling children out of school to attend reporting conferences far away. We envisage these procedures working sometimes in a light-touch way; it may be that reporting can be done by telephone and outside school hours for children.

On that point, I believe that it was the noble Earl, Lord Listowel, who raised the question about travel expenses for those with a reporting obligation. We currently pay travel expenses to some of those on temporary remissions who have to report. Although there is no express power allowing the Secretary of State to pay travel expenses to thosewith leave to report, we are giving some more consideration to that welfare issue. It is something that we are keeping carefully under review.

We also intend to apply the new powers to foreign criminals who cannot be removed at present due to legal barriers. The need to monitor such people with a view to eventual removal is clearly in the public interest. That case has been made before.

I shall deal first with Amendments Nos. 28 and 30A, as the arguments for resisting them can be quickly made. These amendments would add nothing to Clause 16 beyond that which is already provided in domestic legislation and international agreements. The Human Rights Act makes it unlawful for public authorities to act in a way that is incompatible with convention rights—hence we cannot lawfully impose such restrictions where to do so would be in breach of the refugee convention or infringe rights under the European Convention on Human Rights. Reporting and residency restrictions can lawfully be applied to those recognised as refugees. There is also a general legal requirement on public authorities to exercise their powers in a reasonable and, I argue, proportionate way. This would apply to the exercise of the new powers in Clause 16 as it stands.

Amendment No. 27A seeks to limit the application of conditional leave to specified circumstances and does not allow the flexibility that we would need to attach reporting and/or residency conditions to individuals falling outside those criteria. The amendment would also limit the application of the clause for child protection purposes, which Amendment No. 30 also seeks to do.

As we have already explained, we want to be able to apply the clause to minors, with a view to improving child protection. Granting leave with reporting and, where needed, residency conditions should mean that the absence of a child from care is noted at an early stage, the reason for the absence established and all reasonable steps taken to locate the child. That would not be possible if this amendment were in place.

As a matter of interest, I tried to find some figures about UASC on the Home Office website, but the most recent ones that I managed to locate in the annual statistical summary of immigration statistics related to 2005. That was published in August 2006, so I take it that the figures relating to 2006 will be published in August 2007. Therefore, we can only tell what was happening to UASC about a year and a half ago and not what is happening today.

I appreciate that point; good legislation should rest on good data as well. Clearly, we need timely information and I shall endeavour to secure that for the noble Lord. He also asked about those caught by special immigration status—foreign criminals who are excluded from the refugee convention. I think he said that they were not granted leave, so were not caught by these provisions. That is correct. These conditions can be imposed only on people who are granted limited leave to remain.

The Minister has confirmed what I suggested, which is that the foreign criminal who is dealt with in the Criminal Justice and Immigration Bill—who is deemed not to have been given leave to enter the United Kingdom—cannot be made subject to the conditions in Clause 16.

I agree with the noble Lord on that point. The simple reason for residency restrictions is the need to maintain effective contact management, and they are one of a number of devices that we use to secure that. They are not intended to be applied to all limited leave cases, but it is invaluable for case managers and case owners to have the option of imposing residency restrictions. As I have said before, they will be imposed reasonably and appropriately. We have argued that they are needed in relation to child protection, and contact management is certainly valuable for enforcement reasons as well.

How will the restrictions apply in practice? Obviously an assessment will be made of how contact can be best managed for individuals. We would need to know where most people intended to live and we would generally approve the addresses. In child protection cases, we might wish social services to conduct better and fuller checks on an address to establish its suitability, and further consideration might be appropriate following the intervention of social services. As I have argued before, where leave is coming to an end, the Border and Immigration Agency will, properly, want to be able to consider whether to extend it or pursue removal. In those cases, good contact is very important.

I cannot agree with the assertion that imposing residency restrictions is contrary to our obligations under the refugee convention. That case has been made and upheld in case law. In any event, residency conditions would be applied not only to refugees. There is no policy intention to single out refugees and impose the conditions on them alone. The restrictions can be imposed on all those who do not have a right of abode but have leave to enter or remain in the United Kingdom. It is lawful to impose such restrictions on refugees where the condition can be applied to all non-British residents, so we do not accept that assertion.

I have dealt with the issue of travel costs and I think that I have picked up most of the other questions. However, if noble Lords want to raise other issues here or if they want me to respond in more depth, I shall be happy to write where I do not have the information to hand.

Perhaps I may intervene before the noble Lord, Lord Avebury, replies to the debate that has been rounded off by the Minister. I am grateful for the way in which the Minister addressed my Amendment No. 28 and, in particular, Amendment No. 29. He put on the record some of the assurances about alternative ways of reporting that I wished to see in print. Of course, I shall look very carefully at Hansard to check whether the information given by the noble Lord was as I heard it. According to what I heard, I do not think that I will need to bring back Amendments Nos. 28 and 29 on Report, but I anticipate that, with regard to the other amendments—particularly as they apply to children—the Minister may find himself in more uncomfortable areas.

Before the noble Lord, Lord Avebury, replies, it may be helpful to him and to the Committee to know that the Local Government Association picked out a Home Office figure that there are currently some 6,000 unaccompanied asylum-seeking children already in Britain, of whom perhaps 10 per cent may be thought to be at risk of trafficking.

That helps make our case for the importance and the validity of careful, sensitive but effective monitoring, which plays an important part in those children’s protection and welfare. We would be negligent in our duty if we did not take that view.

Perhaps I may say before the noble Lord, Lord Avebury, replies that the Minister’s argument has some force. I am aware anecdotally that some children’s homes have the reputation of not doing enough to chase up children who leave their premises. The difficulty is one of balance and I encourage the Minister to look at it from a child’s point of view—to take the journey of the child that the Children’s Commissioner often speaks of. When a child is in a children’s home he may, on one hand, have a good relationship with his residential childcare worker; there may be things of interest to do there and he has food and a bed provided to him. On the other hand, there is freedom outside: he can go and stay with friends and sleep on their sofas, and there may be other incentives to disappear.

One has to look at it from the child’s point of view. He does not have to stay there; the door is not locked. If there is enough incentive for him to move out, he will. My concern is that the way in which this well intentioned proposal will be applied might upset that balance and cause more children and young people to leave the security of a safe environment and risk going to stay with friends, or with people who they do not know well but who can offer them a bed for a few nights, and get drawn into the kind of life where perhaps they take a few drugs or develop a liaison with an older man who can pay them money. I ask the Minister to think very carefully about how this might work out in practice.

I do not want to go on about this at great length. It is a long time ago now since I was involved in the world of social work and I do not claim that I was the world’s greatest social worker—far from it. I understand what the noble Earl is saying. We will have to work very closely—we already do—with social services departments and those responsible for child welfare, and clearly they are much more skilled in the way they work and understand that balance. However, I return to the point that there is an entirely benign purpose, in part, behind what we are trying to do. It is important we recognise that we have obligations to those unaccompanied children and we want to assure that they are afforded proper protection.

The noble Lord, Lord Hylton has given an interpretation of the figures which I find alarming. Certainly in the brief period in which I was a professional social worker, had I felt that we had as a home failed to protect children—who then went walkabout and were vulnerable to criminals, to those who do not have their best interests at heart and to those who simply wish to use them and manipulate them—I would have been appalled by our record and our failure.

That is our case. That is why we are where we are on this, but we recognise that we must continue to seek excellence and improve our record. Obviously, we need powers to do that.

It is helpful to have that further clarification on this very delicate issue. I ask the Minister to consult carefully with the Association of Directors of Social Services. It would be useful to hear its view on this and whether, on balance, it believes this measure would be helpful in terms of safeguarding and protecting the welfare of children.

There is also concern about the age of children that this measure might apply to. I am not sure whether I asked about that, but the answer is unclear at the moment. I think that the Minister did reply to that point. I shall look at it in Hansard. I thank the Minister for his helpful responses to these concerns and the noble Lord, Lord Judd, for his helpful support in taking this matter forward.

The noble Earl is being very generous to my noble friend, if I may be forgiven for saying so. One has to distinguish between intentions and perceptions. What I am worried about is the perception of the child—and this has been emphasised by other noble Lords. What is all this about? It could not have been put better than in paragraph 54 of Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children, which stated:

“Restrictions on the use of limited leave will also narrow the scope to make further applications and appeals post 18. This will mean that they are liable to enforced return immediately on turning 18”.

That is the reality that we are dealing with. We are looking at all this in the context of that. Whatever my noble friend’s intentions are, I urge him, when he goes away from these deliberations before Report, to think very deeply about just how this is seen by the young people themselves and what its consequences will be in reality.

I, too, find myself not quite as sympathetic towards the Minister’s answers as the noble Baroness, Lady Anelay. The noble Earl, Lord Listowel, has every right to press the points that he made at the start of his intervention concerning the practical effect of these proposals on unaccompanied asylum-seeking children. Will they be more inclined to co-operate with the arrangements being made by the BIA, knowing, as the noble Lord, Lord Judd, has just pointed out, that under the changes to be made they will be liable to deportation immediately on their 18th birthday? Therefore, the reporting requirements to be imposed under this clause are specifically designed, as the noble Lord said, to facilitate the removal when the time comes. They will know that just as well as everyone else.

I hesitate to interrupt the noble Lord, Lord Avebury, as I try not to draw out proceedings, but, for clarity, I ought to make it clear that I told the Minister that I might be satisfied regarding my two amendments, but I hope that I pointed out very clearly to the Government that he could not count on my support regarding his answer to the rest of the amendments.

I am delighted to hear that and I am sure that we will have to return to these questions—

I am, of course, clearly disappointed with that, but it is exactly what I understood the noble Baroness had said.

Just in case we lose sight of the foreign national prisoners covered by this clause, too, who were referred to in this debate only by the noble Lord, Lord Hylton, I reiterate that I wanted to know something from the Minister about the nature of the problem, which applied, according to Joan Ryan, only to a few tens of persons—I suppose she meant per annum. Was this principally a matter of difficulty in documenting foreign national prisoners as they approached the end of their sentences, either because their nationality could not conclusively be identified or because the countries of origin were difficult or obstructive in redocumenting those whose passports had expired?

I wanted to know whether it was the intention of the Government, in using this clause, to allow foreign national prisoners to be released from custody. At present, because the arrangements for their removal have not been completed, they frequently remain either in the prison or in an immigration removal centre for some further time. I said that if the intention was to avoid that kind of situation, this clause was an excellent idea, but the Minister did not respond to that. Perhaps I can look forward to receiving something in writing.

Coming back to UASC, questions remain unanswered and there are additional concerns over the way that these conditions are to be applied to them, which we have not adequately explored during this short debate. The Government’s consultation document, Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children, which has been mentioned, also leaves many questions unanswered. In fact, it says nothing at all about reporting, although we are told that the clause is aimed particularly at UASC—and we have discussed that at some length.

The noble Lord, Lord Hylton, reminded the Committee that the intake of UASC applying is said to have remained at about 3,000 a year in the past three years, with 6,000 in the pool, because 3,000 come in and 3,000 go out. That is the population of UASC being looked after, while the total number of asylum seekers has declined sharply. I wonder whether the Government think that the global visa regime introduced in 2006 will have any impact on the arrivals of UASC. It would be doubly remarkable if the number of UASC remained stubbornly at this level while the number of asylum seekers sharply declined and continued to do so while the global visa regime, which is intended to have an effect on the numbers, begins to have an impact.

From the sparse information that we have—and I am grateful to the Minister for saying that he will provide further details—it looks as though a fairly large proportion of UASC may arrive here from other EU countries and, therefore, be sent back to those countries under Dublin II. I would be grateful if he could provide a single table of applications by UASC in the asylum statistics and for that to be extended to include the outcomes—particularly the number who are granted limited leave to remain, analysed by age, as is the case in many other categories in the quarterly asylum statistics.

The UNHCR handbook says that an adolescent aged 16 or over may be regarded as sufficiently mature to have a well founded fear of persecution, but children of a lower age are presumably all granted limited leave, unless they came from another EU country. I would be grateful if the noble Lord confirmed that as well.

As the consultation document says, the unpredictability of demand for accommodation and other services for UASC makes it difficult for local authorities to invest in procurement strategies, and there may be merit in the suggestion that provision should be confined to a few local authorities with specialist capacity for dealing with UASC. I was surprised that no one mentioned that during this debate, because the reporting restrictions, which have been severely criticised, could be intended to make sure that the UASC reside in the areas of those specialist authorities, if that proposal finds favour with the LGA and the local authorities concerned. It would be useful to hear what the local authorities have said about that in response to the consultation document. As the consultation finished at the end of May, it ought to be possible for the Minister to tell Members something about it today.

If there is a consensus in favour of the specialist local authorities, a child could be directed to reside in one of them where it has been agreed that that local authority would provide the specialist accommodation and services for UASC. If they were required to report, under new Section 3(1)(c)(iv) a local officer of the BIA could be established in the area, perhaps in one of the offices of the local authority. I am giving the Minister a useful argument that he might like to use if he can provide us with that sort of information.

I ought to thank the noble Lord for that, really. I am sure it is very helpful. He has raised a number of additional questions. I am not in a position to provide him with chapter and verse today. I shall ask my officials to go away and compile something comprehensive. In the past I think I have seen some of the data broken down in the way that he wishes, for the purposes of briefing for Oral PQs, so we should be able to provide some of that.

We ought to be able to provide some sort of feedback through the LGA from local authorities about the desirability or not of specialist local authorities. Some authorities are undoubtedly more expert in dealing with some of these issues than others, particularly those that have child welfare responsibilities close to the major airports. We need to think carefully about that issue, and I appreciate the sensitivity of it. I will do my best on that. I cannot give the noble Lord the answers he wants today—it would be unreasonable to expect me to do so—but I am grateful to him.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 28 to 30A not moved.]

Clause 16 agreed to.

moved Amendment No. 31:

I am grateful to the noble Lord, Lord Hylton, for having tabled this amendment. I apologise for not having spoken at Second Reading and for coming in at a relatively late stage. I put my name to the amendment because I feel that it is incredibly important. I speak as a clinician, not from a political standpoint.

We know that, under Rule 35, the Immigration and Nationality Directorate collates pro forma letters informing of alleged torture, but there is no feedback in this process. Therefore, it is purely a paper exercise which could be deemed almost meaningless.

What are the problems? There are problems in identifying victims of torture for several reasons. First, especially early on, they rarely disclose that they have been tortured and the way in which they have been tortured because they are deeply traumatised by what has happened to them. They do not know who to trust. They do not know whether by confiding in one person they will make their situation worse. They are disoriented, often both about place and their own identity, because part of the process of torture is to begin to break the person’s internal spirit, their knowledge of who they are and their own personhood. The other problem is that they suffer flashbacks and are deeply, deeply traumatised. Sometimes what has happened to them is so awful and so painful that they cannot bring themselves to talk about it.

We all know or have seen survivors from the Second World War who have never spoken to anybody until they get near their own death, when they may finally talk about some of the things that they have suffered—even when they have their own family to trust. That is the depth of the trauma that they may be dealing with. We know, too, that the Immigration and Nationality Directive healthcare staff are not trained in handling victims of torture. They do not know how to ask questions in a way to facilitate disclosure. The Border and Immigration Agency officers have little or no training, and they do not ask questions about torture in the screening interview at all. It is not a subject that is raised or allowed on the table.

The second big problem is that these people who are so deeply traumatised need care, treatment and support. Without that their situation is aggravated by being left and ignored. We know that incarceration is a disaster for them. The Yarl’s Wood report highlighted how deeply damaging it is. David Rhys Jones from the Medical Foundation for the Care of Victims of Torture said:

“Detaining torture survivors is apt to trigger flashbacks and nightmares. They experience very real mental anguish at being locked up. Once the Home Office has been notified, such detainees should be released so their cases can be properly appraised without them being subject to further suffering”.

I fully accept that it is a sad reality that some people in seeking asylum will claim to have been tortured when they have not. It is a sad fact of how human beings behave. It is incredibly important that these people are not only assessed, but repeatedly reassessed. It is that process of reassessment that builds up trust and allows them to disclose, and that process reveals who is making a false claim versus who really has suffered terribly. It is the most reliable way to discriminate between these groups. Given that some people have no external marks at all, that becomes particularly important.

However, I would point out that the Government in their White Paper, Fairer, Faster and Firmer, which goes back to July 1998, recognised that there was a problem. Yet holding asylum seekers in prison now conflicts with that policy. It is also contrary to the guidelines from the United Nations High Commission for Refugees and from the recommendations of the European Committee for the Prevention of Torture. To ignore that would seem to make a mockery of the Home Office’s previous undertaking, and it would seem to compound the unspeakable and gross inhumanity of the torture that these people have already suffered to incarcerate them, lock them up—often with people with a criminal background, who have no understanding or wish to understand or support them.

I strongly support the amendment, and apologise to the Committee for not speaking on Second Reading; I was unable to do so. This afternoon I attended a meeting held by Medical Justice, an organisation predominantly concerned with asylum seekers in detention and torture survivors—defined by the Istanbul protocol on the reporting of torture—who bear physical and psychological scars. The facts are truly horrific. No matter how impeccable the guidelines, it seems that the implementation illustrates unacceptable practice. One of the studies that was carried out by Medical Justice was of 500 individual detainees from four different detention centres. Twenty out of 56 who have now been thoroughly analysed show physical signs typical of torture, but in no cases had the Home Office investigated allegations of torture or offered medical assistance, which is in breach of statutory duties. It is true, as has been said before, that most people who have suffered torture are reluctant to reveal the extent of it because of the wholly dehumanising process that torture engenders and the shame that people feel for having allowed themselves to become so depersonalised. That results in severe depression, which is immediately exacerbated by being held in detention. Many of those examined by Medical Justice were suicidal.

The noble Lord, Lord Hylton, is to be warmly congratulated on the many times that he has raised the issue of torture victims on the Floor of the House and in Grand Committee, particularly on the occasion he mentioned, on 17 May, when there was a useful exchange at Question Time. I asked the noble and learned Baroness, Lady Scotland, about the three successive reports of the chief inspector, Anne Owers, on Dungavel, Campsfield House and Harmondsworth, in which she found that healthcare staff were not trained in dealing with victims of torture. Although pro forma letters were being sent to the headquarters of the BIA in accordance with Rule 35 notifying the allegations of torture made by detainees, there was hardly any feedback, as the noble Baroness, Lady Finlay, has mentioned. The Minister claimed that the case management process had been changed to enhance the opportunity of identifying cases where individuals may need additional support, though we were not talking about support but the recognition of torture victims and their appropriate treatment, as I wrote to the Minister afterwards.

In her reply to the supplementary question of the right reverend Prelate the Bishop of Leicester, the Minister referred to detainees who are “fast-tracked through NSA procedures”. Such claimants are dealt with under the fast-track procedure rules—SI 2005 No. 560—which provide that where a claimant alleges that she has been tortured and the allegation is not manifestly frivolous or ill founded, it would be expected that under Rule 30(1)(b) the claimant would be transferred out of the fast-track system with a view to obtaining expert medical evidence. We have no idea whether that happens, because the asylum statistics do not go into that level of detail. Although I raised the matter in my letter to the Minister of 21 May, she did not refer to that letter—nor has she replied to it—in the letter that she wrote to the noble Lord, Lord Hylton, of 13 June.

NSA cases are an entirely different matter and not to be confused with the fast track. NSA claimants are removed to their country of origin without any hearing, so the question of an in-country appeal by an NSA applicant on the basis of a torture claim must be almost unheard of. I asked the noble and learned Baroness, Lady Scotland, whether there were any cases in 2006 where an NSA applicant had exceptionally been given an in-country right of appeal because of a credible prima facie allegation of torture but, again, she has not replied.

Most NSAs are held at Oakington, and I asked for details of the 72 persons out of a total of 2,893 who had been released for Medical Foundation appointments pre-decision but who all failed to substantiate their claims, according to the noble and learned Baroness. I asked her to let me know how many of the 72 claims of torture were found to be ill founded by the Medical Foundation, and how many had had their asylum claims rejected in spite of medical reports by the Medical Foundation or other independent medical experts confirming that there was evidence of torture.

I also referred the Minister to significant anecdotal evidence of people being detained with no prior medical examination or only a perfunctory one, though the chief inspector reports a large number of pro forma Rule 35 letters which could not be reconciled with the statistics that she gave. I asked her to give me the number of Rule 35 letters that were issued at each of the IRCs in 2006, and the number at each referred to the Medical Foundation or to another doctor with experience of torture victims. I wanted to know why the action was not taken on the chief inspector’s repeated complaint that Rule 35 letters were not followed up. I asked for an assurance that they were now being properly scrutinised by the case holders under the new asylum model, with prompt action taken where this revealed that there were grounds for believing that the person may have been tortured, followed by feedback from the case holders to the IRC concerned.

Having unsuccessfully looked for BIA responses to the three reports by the chief inspector that I have mentioned, I asked the Minister what was the practice on publication of responses and, if they were not in the public domain, whether that did not mean that Ministers and officials were able to ignore the findings with impunity, as they appear to have done on the Rule 35 letters. I would like an answer to that question. Where can one see the responses by the Secretary of State to the successive reports that have been made by the chief inspector in which she has made allegations about the failure to follow up Rule 35 letters? If the Minister and his colleagues do not reply to these allegations—or do not reply for many months afterwards—we have no check on whether these recommendations are being followed up.

The Minister made clear in her letter to the noble Lord, Lord Hylton, dealing with a sample of 21 cases in which it was alleged that procedures for torture cases were not properly followed, that in the majority of these cases—17 out of the 21—the torture allegation had been considered at the asylum decision stage or at appeal, or both. In other words, there was no separate consideration of the decision to detain, as we say that there should be in compliance with Chapter 38.3, paragraph 5 of the Operational Enforcement Manual, which says that in considering whether to detain, account must be taken of any history of torture. In other words, if there is an allegation of torture form—the Rule 35 letter—and the statements made in it are not manifestly ill founded, there has to be consideration of the decision to detain, quite separate from the determination of the asylum claim. The Minister’s letter acknowledged that in the 17 cases cited, that did not happen. It seems to us that Mr Hyde, the senior police officer who was brought in to audit the cases, wrongly advised the Minister that, as she said,

“procedures relating to the new form for recording torture were being correctly applied”.

Since the Minister decided on reflection, as she told me, that Mr Hyde’s report was not to be published, we shall never know how he managed to reconcile his conclusion with the language of the Operational Enforcement Manual. Again, I should like an answer from the Minister on that question.

The noble Lord, Lord Hylton, referred to two further cases submitted by Bail for Immigration Detainees, in which it alleges that the Home Office is in breach of its own guidelines. We are also owed a reply from the Minister to that letter, which was sent on 20 June. I assume that the department would have taken particular steps to see that it was replied to before the matter came before the Grand Committee. If the letter has not yet been answered, will he put a bomb under the officials in the Home Office who have to deal with these matters? It really is insufferable that when we are discussing matters in Grand Committee we do not have the answers to very important questions raised by agencies such as BID.

In response to the JCHR’s concerns expressed in paragraph 236 of its report on the treatment of asylum seekers, the Home Office says that where independent evidence is produced that supports a claim to have been tortured, detention would not normally be appropriate. However, the fact is that BID’s cases and others show there is still a gap between what Marsham Street says is supposed to happen, and what is actually going on in the IRCs.

The amendment proposed by the noble Lord, Lord Hylton, suggests that a claim to have been tortured should automatically lead to the person’s release from detention or prevent him being detained if he is at liberty. Perhaps he might agree that this should be so only when the claim is not manifestly ill founded, or his amendment could lead to a spate of spurious claims. But he is surely right to say that a person whose claim seems to be plausible should have the benefit of the doubt and should not be detained, unless and until he has been examined by a doctor with experience of torture, and that doctor has certified that there is no medical evidence to support the claim. The person could still adduce non-medical evidence of torture in support of his asylum claim, and this would still have to be considered separately. But at least when there were sequelae following torture including rape, that could be uncovered by a medical examination and detention could be ruled out immediately.

Will the Minister write to me on a closely related matter—the rate at which supervision of immigration officers, particularly case managers, will be introduced? All that has been said highlights the sensitivity with which case managers must deal with their interviewees.

When a woman has, for instance, been raped repeatedly in a culture where it is taboo to talk about sex and has to talk about this for the first time with an interviewer, it is vital that the interviewer is supported. I warmly welcome the attention given by the Government to the workforce in this area and the increased diversity of the workforce and case managers. But there is such horror attached to this work, that one is reminded of the words of TS Eliot, who wrote:

“Humankind cannot bear too much reality”.

Some things are just too unbearable to consider and the danger is that a case manager may be led to deny what he is hearing, simply because he cannot bear to consider it himself. Therefore, training is important and perhaps the Minister might write to me about that.

It is also essential that these decision makers should have the same supervision that probation officers, social workers and staff in children’s homes receive. I know that this will be costly and it will take time for it to come about, but I would be grateful if the Minister could inform me what the timescale for this change will be. I understand that the Border and Immigration Agency is considering this and I would be grateful to hear any details that the Minister can provide.

Of course the training and support for immigration officers in the task allocated to them is essential and I very much support the previous remarks. The case has been forcefully and effectively argued by the noble Lord, Lord Hylton, and other noble Lords. I would not like it to be felt that this was an exclusive concern of the Cross-Bench and Liberal Democrat Peers. I know that I am not alone by a very long chalk and assure my noble friend that many noble Lords on the Labour Benches feel every bit as strongly as noble Lords who have spoken. I warmly thank the noble Lord, Lord Hylton, for his amendment, wish him well with it, and urge on my noble friend the paramount importance of taking it seriously, replying as fully as he can this afternoon and, as this Grand Committee procedure enables him to do, going away and considering in depth the points that have been made and how the Government might respond to them.

The Minister will not mind me regarding him as a veteran of this kind of legislation. He will remember that my noble friend and I raised these questions back in the previous millennium. I am sorry that we still have to go on doing that. I hope that the Minister recalls when I raised the question of detailed reasons for detention. The noble and learned Lord, Lord Falconer, said in 1999, during the passage of the Immigration and Asylum Bill, that,

“that detailed check-list will be tailored to individual circumstances”.—[Official Report, 18/10/99; col. 897.]

He was not enthusiastic about giving detailed reasons, but he took seriously the question of torture and gave undertakings that any history of torture would at least be recorded. The Government have frequently given assurances, which were then spelt out in the White Paper in paragraph 12.4 on page 53. It stated:

“The Government also recognises the need to exercise particular care in the consideration of physical and mental health when deciding to detain. Evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release whilst an individual’s asylum claim is being considered”.

Since then, we have had evidence, not least from the Chief Inspector of Prisons, as has been mentioned, and from my three noble friends today, that torture is still being missed at various stages of asylum procedure, even now calling into question, as my noble friend mentioned, the training of case officers under the new asylum model—the people who have to make those important initial decisions.

The chief inspector’s annual report of 2005-06 has been mentioned. It says:

“A particular problem highlighted in inspection reports, and confirmed in the inquiry into the healthcare provision at Yarl’s Wood, was the inadequate use of procedures to alert the authorities to the fact that detention may be injurious to a detainee’s health, under Rule 35 of the Detention Centre Rules. Healthcare staff lacked specific training to recognise and understand signs of trauma or previous torture. Even when such information was provided, we could find no evidence in any IRC that this had been systematically filed, monitored, responded to or followed up by IND”.

I support any efforts to raise this issue. The Minister may think that this is a sledgehammer but it is a very large nut to crack.

How many of those detained because they are seeking asylum or are failed asylum seekers are diagnosed with mental health problems? Has that information been sought? Is a doctor or another professional able to assess it? Furthermore, how many have claimed that they are victims of torture? If figures or some sort of guidance were available, I should be happy to receive them.

The noble Lord, Lord Hylton, will know what I am going to say because I have said it several times before, but he is absolutely right to keep bringing this matter before the House and, in this case, the Grand Committee. There may be occasions later when I shall not speak to an amendment because I do not consider it is my job to do the Government’s work for them and explain why it would not be right to accept an amendment. However, on this occasion, it is right that I continue to give the reason why we on these Benches cannot support the amendment.

I support the noble Lord, Lord Hylton, 100 per cent in what he seeks to do. The principle should be that the guidance and good practice that is supposed to be followed by the BIA or the IND should be followed. There should not be these errors. All noble Lords will be greatly concerned to have heard the instances given today of when good practice appears to have gone out of the window in respect of those who not only have claimed torture but, it would appear, have a substantiated claim that they have undergone it. There can be no doubt that all noble Lords would wish to ensure that those who have been subjected to torture should be treated in the right way. Whether that is extended on every occasion to those who claim that they have been subjected to torture is where we enter a very difficult realm of how one can do that properly without having unintended consequences.

As I have said before to the noble Lord, Lord Hylton, on these occasions, I have concerns about the unintended consequences of the amendment. One could be picky and say that that does not define torture, but that goes to the core of the issue. The noble Lord, Lord Roberts of Llandudno, was right to refer to mental health. We know that if one is subjected to torture it can have a huge adverse effect on one’s mental health. We need to know how one would define torture if an amendment such as this were put into the Bill, because the amendment has significant consequences and confers significant protections against detention.

The noble Lord, Lord Avebury, helpfully pointed out that some amendments might be required to make the amendment more roadworthy. As the noble Lord, Lord Avebury, spoke, I not only agreed with him but thought of several more ways in which the amendment would need to be tweaked. The more I thought about it, the more I realised that it would be extremely difficult to bring the amendment to the condition in which it could be put into the Bill. There has to be so much flexibility in determining how one deals with different people who claim for different reasons that they have been subject to torture.

Let me give an example. On this occasion, I will do the noble Lord, Lord Hylton, the honour of giving him a different example; I shall change my grounds and give him a more up-to-date one which occurred to me after I had read a report of UNICEF UK and Amnesty. I had been looking at the conditions of people in Darfur, as have all noble Lords, and was considering the case of a member of the Janjaweed who had raped, pillaged and murdered—you name it—but came to this country under another nationality, by an indirect route, to claim asylum. He did so because he had double-crossed other members of the Janjaweed, which, of course, is fluid in the way it operates. He had double-crossed his own thuggery chief and had himself then been subjected to torture. So here was a person, a member of the Janjaweed who had perpetrated the most appalling crimes on people there, and yet had come here, masquerading as a different nationality, and claimed that he had been tortured.

Consider then, if there were a case—and I do not know whether there is—of a woman in Darfur who had been raped by a member of the Janjaweed, who comes here and claims that she has been subjected to torture and should also therefore find respite under the amendment of the noble Lord, Lord Hylton. As it is drafted, I would expect the amendment to treat both those people equally and exempt them from detention. I do not believe that is what the noble Lord, Lord Hylton, expects. I give way to the noble Lord, Lord Avebury.

Under Article 33 of the United Nations Convention on Refugees the person would be ineligible for consideration for asylum.

That, of course, is if one knows what their background is. It is a difficulty. The example I have given in the past, of course, is much easier to deal with.

One has to consider that the blanket protection given by the amendment means that a person who genuinely claims he has been tortured, who is someone to whom a country would wish to give protection, will be treated in the same way as someone who has abused others. The question is: should they or should they not be given exactly the same exemption? That is the kind of question that noble Lords would have to answer if the amendment were to return in its current state on another occasion when it could be pressed to a Division. Having listened to the debate so far, but without the benefit of listening yet to the Minister, if I were put in that position, I could not support the amendment and I would ask my noble friends not to do so.

I am careful to cover this at some length because noble Lords will know that I am shortly to enter a period of silence in a different guise and that my noble friend Lady Hanham will have the fantastic experience of taking over this wonderful brief in which one hears the great experience of noble Lords. It covers the most difficult of issues and my noble friend will have to read these debates to see why I would not support the amendment. At first sight, supporting the amendment seems the most honourable thing to do, but I fear it would have unintended consequences.

I do not know whether I have congratulated the noble Baroness publicly on her elevation to the post of opposition Chief Whip in the next Session. If I have not, I certainly ought to. It is a congratulation that is most heartfelt because the noble Baroness has been a tremendous advocate for her party over these past few years, on this and on many other Bills, and I have enjoyed our time in the Chamber and in Committee. I am sure that the noble Baroness, Lady Hanham, will work equally as hard to put forward the best possible case in all circumstances. She should be inspired by the earlier work of the noble Baroness, Lady Anelay.

That is contrary to what the chief inspector said in the three reports that I mentioned. In the cases of Dungavel, Campsfield and Harmondsworth, the chief inspector repeated the allegation that healthcare staff were not trained to deal with victims of torture.

I was talking about whether case workers and case owners were trained, and certainly they do receive training. I was not referring directly to healthcare staff. However, I accept that training is an issue and we are clear that we need to make improvements in the quality of the training. We have had the benefit of the chief inspector’s report and no doubt that will inform the way in which we approach this issue in the future.

The noble Baroness, Lady Finlay, asked more specifically about specialised training. As part of their training, Border and Immigration Agency case workers dealing with the backlog of outstanding asylum claims in the case resolution directorate and case owners dealing with cases under new asylum procedures receive instructions on dealing sensitively with asylum applicants who make claims of torture and rape. That is dealt with in the foundation training programme for case owners dealing with cases under the new asylum model procedures. It is there at an early stage and there is a specific element within the interview skills module. It is an important element of the training programme.

The noble Baroness also asked about the competence of removal centre doctors and addressed the question of whether they are required to assess allegations of torture and whether they are competent to do so. That issue is also of interest to the noble Lord, Lord Avebury. Removal centre doctors are not expected to assess torture allegations, nor could it be fairly argued that they are competent to do so; they are merely required to report concerns that a person may have been a victim of torture. Those concerns may arise from their own observation or examination of the individual, they may be based on allegations made by the individual concerned, or they may be based on a combination of those circumstances. We are exploring the possibility of providing some further training to removal centre doctors on identifying victims of torture, but it is not an easy field and there are no easy answers in terms of improving the quality of understanding on those issues, as I am sure Members of the Committee can appreciate.

The noble Lord, Lord Hylton, asked whether the Government would investigate all cases of those detained for over one month. All cases are already kept under regular review at successively higher levels within the Border and Immigration Agency. Detention lasts for no longer than is necessary and is not prolonged unduly. Individuals may apply for bail at any point and may challenge the lawfulness of detention through the process of judicial review and habeas corpus.

Questions have generally been raised, although I am not quite sure who by, about how many torture allegation reports have been sent to the Border and Immigration Agency. The data I have are from January 2007 to the end of last June and show that some 703 reports were referred to the BIA. Central records were not maintained before that time, when the standardised reporting form was introduced. For that reason I am afraid figures for 2006 are not available. Case workers have instructions to consider the reports in terms of any asylum claim and the appropriateness of continued detention, as I explained earlier. They also provide acknowledgment of receipt to the removal centre doctor.

I am sorry to interrupt, but what Anne Owers specifically complained about was not the filling in of the Rule 35 letters, which she said was more or less universally done by the IRCs, but the lack of feedback from the BIA, when it considers those letters, to the management of the IRC on future action.

Clearly that is an issue which we need to look at and address. I am grateful to the noble Lord for his comments. He also asked questions in his commentary relating to the response to the chief inspector’s reports on Dungavel, Campsfield House and Harmondsworth removal centres. The action plan responding to the recommendations made in the report on Dungavel has been issued, and a copy of that has been placed in the Library. We have deferred responding to the Campsfield House and Harmondsworth reports pending the report of the investigation of the disturbances at the two centres, which is being carried out by Mr Robert Whalley, a retired civil servant who, I can attest, is very experienced at dealing with these issues. We have done that because we want to ensure that our response to the chief inspector’s report can take into account any issues arising from that more recent investigation. We expect to receive Mr Whalley’s report shortly, and it will be published as soon as possible. Copies of our action plans responding to the chief inspector’s report on Campsfield House and Harmondsworth will be placed in the Library.

I thank the Minister. It was most kind of him to make that point. To be clear, I meant to say case owners rather than care managers.

We have had a very comprehensive short debate on this matter. There is hardly an aspect of a very complex question that has not been covered in some way or another—and it is a question that has been causing trouble for a very long time. I am most grateful to those who have spoken in support of my amendment and even to those who have expressed only mild sympathy for it. It was particularly valuable that the guidelines of the UN Commissioner for Refugees were mentioned and the study of a large sample of cases by my noble friend Lady D'Souza. Of course, the noble Baroness, Lady Finlay, gave us the benefit of her profound medical and psychological knowledge. I am grateful also to the noble Lord for the replies that he has given to the other questions raised; we will study them with great care. I am disappointed that the Minister did not say that he would take away the amendment and consult his colleagues about it.

There are two possible approaches to this difficult matter. One approach would be through administrative means of a variety of kinds, but experience has shown over a long period of years that administrative means have not produced the results it is reasonable to expect from them. Therefore, one turns in the direction of amendments to the current Bill. I would be happy to discuss how a possible amendment could be drafted that would lead to real improvements in the field and in practice. Having said that, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Support for failed asylum-seekers]:

moved Amendment No. 32:

I am sure that all of us want to pay tribute to the right reverend Prelate for the profound and moving way in which he introduced his amendment. I should say at the outset that my amendment is not as comprehensive as his, but obviously I completely endorse and support everything that he said in putting forward his amendment.

From time to time in this Committee, I have brought messages from the Joint Committee on Human Rights. Perhaps I could do so again in support of the right reverend Prelate and in support of my own amendment. It is interesting that the committee started what it had to say by doing exactly what the right reverend Prelate did—that is, to welcome the clause in so far as it goes. However, we continued to have great anxieties. In our report, we drew attention to the fact that, in our recent report on the treatment of asylum seekers, we had been persuaded by the evidence that, whatever their intentions, the Government had been practising what was, in effect, a deliberate policy of destitution in relation to asylum seekers and that such deliberate use of inhumane treatment was obviously unacceptable.

Refused asylum seekers pursuing an appeal receive no support as the law is currently interpreted. The committee therefore welcomed the fact that, like us, the Government had come to the conclusion that such destitution was unacceptable. However, we made a number of recommendations for legislative changes at the earliest opportunity to end the deliberate use of destitution as an instrument of policy. The committee believed that the present provided just such an opportunity to implement some of our proposals—and they are there in our report. We therefore recommended that to reduce the risk of asylum seekers being subjected to inhumane treatment contrary to Article 3 of the European Convention on Human Rights and to ensure that they are treated with common humanity, as the common law requires, the Bill should be amended to provide for this. I believe that our amendments seek to achieve that purpose and, in proposing my own, I warmly endorse what the right reverend Prelate said.

I added my name to Amendment No. 33, already spoken to by the noble Lord, Lord Judd. That does not mean to say that I do not support the right reverend Prelate’s Amendment No. 32. However, I shall raise one or two minor points about it. First, I wonder whether it goes sufficiently wide, particularly in the direction of the dependant children of families already in this country. Secondly, in subsection (1)(d) it refers to those who remain in the UK following the making of a claim. Would that also cover those whose cases fail but who cannot be returned to their country of origin, for one reason or another?

At Second Reading I mentioned the significant numbers of asylum applicants who failed to present their cases to the high standard required for refugee status. Many of those thus refused have not been deported, nor have they been able to return voluntarily. Many genuinely need humanitarian protection because they come from countries in turmoil such as Iraq, Somalia or Darfur, or countries suffering repression such as Iran, Burma or China. Others are at risk because of their religious beliefs. Therefore, I have to ask why the old category of exceptional leave to remain has been so sparingly used in recent years? Will the Government enable those who have been refused refugee status to appeal for exceptional leave to remain when they have real protection needs? Exceptional leave, if granted, would enable them to work—and that is a very important point—because it would reduce the demand for welfare benefits, generate tax revenues and, above all, prevent destitution. It would have the further merit of meeting at least part of the current demand for temporary migrant workers. Ministers frequently speak of the importance of building social cohesion and reducing the size of the black and grey economies.

Those are some reasons why I support Amendment No. 33 and the recommendations of the Joint Committee on Human Rights. However, I suggest that what I have asked for is fully compatible with other direct attempts to prevent destitution. I suggest that the Government should grasp both approaches since they both seek to achieve policy aims that various Ministers have stated over and over again.

The right reverend Prelate said that he hoped the amendment would receive support from the Government. If it does, it will be the first time any amendment has done so during the 12 hours or so that we have been sitting in Grand Committee, so I am not quite as optimistic as he is.

The right reverend Prelate and the noble Lord, Lord Judd, have already covered much of the ground in the report Still Human Still Here, which makes a valuable contribution to the discussion of destitution. I pay tribute to the Refugee Council and the many charities, including the churches of all denominations up and down the country, that are supporting destitute failed asylum seekers who they consider have good reasons for not co-operating with the BIA in their removal.

At the time that the Immigration, Asylum and Nationality Bill was before noble Lords in February 2006, it looked as though greater emphasis was going to be put on voluntary returns with the aid of the resettlement grants provided by the IOM. However, that programme seems to have plateaued. In my experience, the grants alone are not enough, but have to be reinforced by counselling to assure the returnees that they will be safe in their country of origin, building on the experience of others who have gone back already. That would be a more effective policy, at least for those who come from the countries on the white list, to which another 10 countries were added this week. That seemed to have some resonance with the Government in their response to the JCHR’s 17th report, referred to by the noble Lord, Lord Judd, where they appear to place greater emphasis on the priority to be attached to increasing voluntary returns.

For those who get to the end of the road and for one reason or another cannot be removed, the right reverend Prelate’s amendment provides that basic financial and housing support should still be afforded to them until it becomes impossible to remove them. To deprive them of all means of support, and even to deny them emergency healthcare, is an abhorrent policy. Parliament should take this opportunity to say that we will not tolerate this use of extreme weapons of coercion against vulnerable and helpless people. We shall have a lot more to say on this subject when we come to the next amendment, but in the mean time we support the right reverend Prelate and the noble Lord in their attempts to mitigate the effects of the Government’s cruel and inhuman policy.

I fear the Minister must feel very lonely in the Committee today. We all criticise. We all see the horror of much of what is going on. There are three amendments here that are intended to see an end to Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act. We are all agreed on that.

Last year, or the year before, the Government gave tremendous support to the Make Poverty History campaign—and yet in our country we are not making poverty history; by forcing people into destitution, we are creating poverty. That is totally at variance with any aim of a civilised society or of a caring Government. Now, however, we might just be seeing a wee bit of light at the end of the tunnel. In a recent Written Statement, the Minister at the time, the noble and learned Baroness, Lady Scotland, put Section 9 more or less on hold, admitting that it was a failure. She said:

“In the form piloted, Section 9 did not significantly influence behaviour in favour of co-operating with removal, although there was some increase in the number of applications made for travel documents. This suggests that the Section 9 provision should not be seen as a universal tool to encourage departure in every case”.—[Official Report, 25/7/07; col. WS 50.]

The noble and learned Baroness goes on to say that she—or whoever is in charge now—will keep it, but it is not to be used on an indiscriminate basis.

We had three pilot areas: West Yorkshire, Greater Manchester and the eastern part of central London. In the past week or so, I am told, we have had the long-awaited evaluation report. Again, that report admits that the provision was a failure.

The Government could take positive action to reduce destitution, and admit their own failure, by repealing Section 9 of the 2004 Act. Whichever amendment the Government accept—whether it be the amendment of the right reverend Prelate, the amendment of the noble Lord, Lord Judd, or our own Liberal Democrat amendment—we are speaking with one voice to ensure that the Government do that. We all make mistakes—even Governments make mistakes—and it is time to back down on this section. I hope that when the Bill is finally enacted, that provision will have gone forever.

I move among some of the homeless and rough sleepers and I have seen the destitution. When counts are taken, people go into hiding and we do not get a proper assessment of the problem. I invite the Minister to accompany me and others to see where the problem lies and what provision is made. Perhaps he has already done so, but it would be an eye-opener for him to see the state of total hopelessness that Section 9 can lead to.

As the noble Lord, Lord Judd, said, we warmly endorse the right reverend Prelate’s amendment, as we do the noble Lord’s amendment. We will urge this provision in the Liberal Democrat amendment when we bring it forward at a later stage.

Time is closing in on us and I, too, would like to see the Minister make one concession today. I support the right reverend Prelate and I was pleased to hear from the noble Lord, Lord Judd, that he thinks this the more comprehensive amendment.

The right reverend Prelate pointed out that there are perhaps more than 280,000 so-called failed asylum seekers. These figures from the National Audit Office in 2005 estimate a cost of £11,000 per forced removal. These so-called failed asylum seekers are being pushed closer to the edge of destitution and the churches, aid workers and others who care for them are increasingly arguing for a new direction, a limited amnesty and a more humane policy above all. The Strangers into Citizens campaign would be a sensible way out for the Government, remembering that it will take three successive Parliaments to remove these numbers at the current rate. I commend also the Still Human Still Here campaign, which focuses on this particular category.

I welcome the Government’s new provision of eligibility during the grace period after appeal. I believe the Government are still appealing against the Court of Appeal and I am not clear about the exact definition of the grace period or the prescribed period described under Clause 17(5). I hope the Minister will elaborate on that.

Meanwhile, as has been said, the Joint Committee on Human Rights, on page 15 of House of Lords Paper 105, concedes that destitution may not be a deliberate policy, but there remains a risk that some asylum seekers will be subjected to inhuman and degrading treatment under Article 3 of the European Convention. This is why the committee, with all its authority, as the noble Lord, Lord Roberts, has said, recommends the repeal of Section 55 of the 2002 Act and Section 9 of the 2004 Act and, most importantly, the extension of the duty under Section 11 of the Children Act to immigration.

I rise not to speak on the amendment, because I was not present when it was being debated, but simply to try to assist the Grand Committee. I have spoken to the Minister and am aware that we must finish at 6 pm. Noble Lords’ deliberations might appear to be guillotined if the Minister were in full flow and noble Lords rightly wished to intervene further on this vital matter, so I just pose the question as to whether the Committee might wish to avoid appearing to lose that opportunity by deferring the Minister’s response until next time. If we do not do that, we will have to finish as the clock strikes six and he will have to continue with his speech next time. I leave it in the hands of noble Lords; it is just a suggestion.

I am grateful to the noble Baroness for her help, as the Committee should be. I certainly appreciate the way in which this very difficult subject has been raised by noble Lords, not least by the right reverend Prelate. It is hard not to feel moved by his comments and observations on the way that the asylum seekers’ support system works. One appreciates the thinking behind his comments. That said, we, as a Government, have to take hard decisions and we have a firm framework of legislation designed to deal with problems within the asylum-seeking process and the issue of support. Noble Lords should not run away from that.

Amendments Nos. 32 and 33 seek to extend asylum support to those who have been found to have no need for international protection and who should be taking steps to leave the UK. Amendment No. 33 seeks to repeal Section 55 of the Nationality, Immigration and Asylum Act 2002, and all three of the amendments we are debating seek to repeal Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

Our amendment is separate from the other two.

I understand that entirely. I want to set out the intention behind Clause 17. The clause is a technical amendment that amends the definition of an asylum seeker to ensure that an asylum seeker and his dependants will continue to be eligible for support as an asylum seeker or dependants of an asylum seeker until the end of the immigration appeals process. That is what currently happens, and was always the intention.

It is relevant where an asylum application has been refused by the Secretary of State but the asylum applicant can bring an in-country appeal or has lodged an in-country appeal with the appropriate authorities and that appeal has not yet been determined. It was always the intention of the legislation that a destitute asylum seeker would continue to be eligible for support until he or she had the opportunity to have an appeal heard by an independent tribunal. However, recent litigation interpreted the existing provision in such a way that destitute asylum seekers may cease to be eligible for support as soon as the Secretary of State served a refusal of asylum. The litigation remains the subject of an appeal, but we consider it only right to take this early opportunity to clarify the statutory provisions to make it quite clear that, so long as they meet the relevant criteria that they are destitute, asylum seekers continue to be eligible for support until the point when any in-country appeal has been determined.

Noble Lords welcomed what we put in the Bill, so far as it went. However, the proposed amendments seek to do something rather different. Amendments Nos. 32 and 33 would maintain asylum support potentially indefinitely for those who have made a claim, who have had that claim and any appeal rejected and who choose not to leave the UK. The motivation behind the amendments is understandable—a wish not to see people living in destitution—but the fact is that these people do not have to be destitute. They can choose to go home, a home to which it has been found it is safe for them to return.

Support is available under Section 4 of the 1999 Act for those who are taking all reasonable steps to return home, while that return is being arranged. It is also available where there is some temporary barrier to returning. Those making a voluntary return are also eligible to receive the world-leading reintegration assistance provided by the International Organisation for Migration on behalf of the Home Office. It is not right that UK taxpayers should be asked to fund, potentially indefinitely, those who have been unwilling to make a voluntary return.

We must maintain the integrity of our system. We have a long and proud tradition of granting asylum and protection to those fleeing persecution and torture, but that tradition must not be exploited. To support indefinitely those who have been found not to need our protection would be to undermine the purpose of protecting the UK’s borders and would undermine our efforts to ensure that those with no right to be in the UK make arrangements to leave.

Amendment No. 33 also seeks the repeal of Section 55 of the Nationality, Immigration and Asylum Act 2002 and Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Both those measures play an important part in encouraging compliance with our immigration system. Section 55 prevents the provision of asylum support to asylum claimants who do not make their asylum claim as soon as reasonably practicable after their arrival in the UK. The sooner an asylum claim is made, the more likely that factual information can be obtained and verified to inform the asylum decision processes.

There are a number of safeguards in Section 55 to protect the vulnerable. Children and their families are excluded from its provisions, and it would not prevent the provision of support if it would be a breach of human rights not to provide it. Support is not refused under Section 55 to any person who does not have alternative support available, including overnight shelter, adequate food and basic amenities.

Amendment No. 33 further seeks to restrict the use of vouchers to provide for those who are receiving support under Section 4. It is important to make it clear that failed asylum seekers cannot be expected to receive support on the same basis as those still in the asylum process. Section 4 support is intended as a limited and temporary form of support. The vouchers provided for the purchase of food and essential toiletries are ordinary high street vouchers which are also available to the public at large. They do not in any way mark the user as a failed asylum seeker.

We acknowledge that there are some needs which cannot be met within the existing Section 4 regime. We will shortly commence a consultation on draft regulations to meet specified services and facilities, which will enable us to give additional support to the most vulnerable receiving Section 4 support, including pregnant women and mothers with children. What we cannot agree to do is to extinguish the distinction between those still awaiting a final decision on their asylum claims and those who have been found not to need our protection. To do so would undermine the integrity of the system by sending out mixed messages to those expected to leave.

I turn now to Section 9, which all the proposed amendments seek to repeal. Section 9 provides, among other things, for the withdrawal of support from an individual and his family whose claim for asylum has been refused and who the Secretary of State certifies has, in his opinion, failed without reasonable excuse to take reasonable steps to leave the UK voluntarily.

The noble Lord will recognise that we have not yet moved the amendment that seeks to delete Section 9. That will be the first thing that we do on the next occasion that the Grand Committee meets.

I appreciate that, but I am addressing the whole group and the issue has been raised by the noble Lord, Lord Roberts. He is entitled to an answer.

There are, however, exceptions, and support will be available if one of these exceptions applies, such as support being necessary in order to avoid a breach of a person’s rights under the European Convention on Human Rights. Section 9 is not designed to make families destitute or to split them up but to influence behaviour so that people co-operate and to incentivise voluntary return before removal is enforced.

My honourable friend the Minister of State, Liam Byrne, recently published the evaluation report on the Section 9 pilot. That report makes it clear that based on the results of the pilot, as the noble Lord, Lord Roberts, said, we do not think that Section 9 is suitable for use on a routine basis. However, we cannot agree to the repeal of Section 9. We think it is important to retain a provision to withdraw support from families who refuse to co-operate with removal. In any case, where a case owner considers that it may be appropriate to use Section 9, a case conference approach involving local stakeholders, such as the local authority, will be followed.

Since the pilot was undertaken, the approach to dealing with asylum applications by the Border and Immigration Agency has undergone a significant transformation. The new approach offers a more credible and sustainable end-to-end system. Specialist case owners are now responsible for managing the claimants and their cases through the whole system to either removal or integration as refugees. There is a strong focus on ensuring that early steps are taken so that those whose claims are not successful leave the United Kingdom in a timely manner.

Those who have been refused asylum have no basis to remain in the UK. It cannot be right to give false hope to individuals that they will be able to stay here after their asylum claim is determined. It is particularly important that families should not give false expectations to children. We think that it is important to make it clear that those refused asylum cannot expect to receive support indefinitely.

We therefore think it important to retain an ability to withdraw support from families who wilfully refuse to co-operate. In such cases, the case owner will take a view on which approach to encouraging departure is most likely to be effective. Case-specific close working with appropriate officials from the local authority will normally be required if the use of the Section 9 provision is being considered.

Repeal of Section 9 would also have the effect of giving a right of appeal to the asylum support tribunal where asylum support was refused or withdrawn because of the operation of Schedule 3 to the Nationality, Immigration and Asylum Act 2002. Schedule 3 is an important measure to discourage benefit-shopping and prevents support to those within specified classes, except to the extent necessary to prevent a breach of their rights under the European Convention on Human Rights or Community treaties. This exception already provides an important safeguard in the operation of Schedule 3. Section 9 and Schedule 3 are important parts of our work to preserve the integrity of the asylum system, and the amendments would not help us to achieve our objectives.

Finally, I should address the question of access to healthcare—an issue that has arisen on a number of occasions during our deliberations. The right reverend Prelate’s amendment seeks to change the current entitlement to free secondary healthcare for those who have been unsuccessful in their asylum claims. As announced in our strategy to enforce compliance with our immigration laws, published in March this year, we intend to shut down inappropriate access to services that are privileges intended for people who are in the UK legitimately. At its simplest, this is an issue of fairness.

In relation to healthcare, we shall review the rules governing access to the NHS by foreign nationals. We will work with the Department of Health to ensure that the implementation of new rules flowing from the review is accompanied by a programme of communication and good practice for those who apply the rules, including practice staff, GPs and trusts. Given that review, it would be inappropriate to make any changes at present.

However, I reiterate to noble Lords that the basic humanitarian needs of failed asylum seekers in relation to access to healthcare are already met. They receive free treatment in accident and emergency departments and for many infectious diseases such as TB. For other life-threatening conditions and for the purpose of preventing any conditions from becoming life-threatening, they will receive appropriate treatment, regardless of their ability to pay. Treatment will not be withheld or delayed. Charging issues will be sorted out subsequently. Therefore, care will be available at the point at which it is most needed and it will be free. Issues of charging will come later. I remind the Committee that trusts also have discretion to write off any debts accrued when it would not be reasonable or cost-effective to pursue them.

I think that I have covered all the issues raised in the debate. I know that the right reverend Prelate will be disappointed by my response but we need to retain the integrity of our system, and we think that the asylum support system works to achieve that end.

I thank the Minister for his comments. Naturally, I am very disappointed by what he said, although I am not entirely surprised. I should like to make one or two points in addition to thanking all noble Lords who joined in the debate. Where there has been absolute unanimity on the matter, that will not go away. Destitution as a policy does not work. It will take 14 years to “clear up the backlog”, which is a terrible way of describing the situation. Therefore, we are committing hundreds of thousands of people to destitution for the next 14 years. What do we think we are doing? As I said, I am grateful for what everyone said, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

[Amendment No. 33 not moved.]

I thank all noble Lords for their attendance and patience. This may be a convenient moment for the Committee to adjourn until next Wednesday at 3.45 pm.

The Committee stands adjourned until next Wednesday at 3.45 pm.

The Committee adjourned at 6 pm.