Committee (5th Day) (Continued)
Clause 67: Disapplication of retained EU law deriving from Trafficking Directive
172B: Clause 67, page 71, line 13, at end insert—
“(1A) This section may not come into force until the Secretary of State has conducted a review of the impact of subsection (1) and laid a copy of the review before Parliament.(1B) A review under subsection (1A) must include, but is not limited to—(a) identification of any parts of the Trafficking Directive which the Secretary of State considers to be incompatible with provisions made by or under this Act;(b) analysis of the costs and benefits of the disapplication of the Trafficking Directive;(c) the impact that the disapplication of the Trafficking Directive is likely to have on the identification, protection, support and access to wider remedies of victims of all forms of slavery in the United Kingdom.”Member’s explanatory statement
This would require the Secretary of State to review the impact of disapplying the EU Trafficking Directive before this section can come into force.
My Lords, my Amendments 172B and Amendment 174A relate to Clause 67.
I say at the outset that I do not want to reopen a debate about Brexit, but I do want to reopen a debate about the practical implications of the UK being outside the EU and how it relates to the protection of children and those who are victims of slavery and trafficking.
The Government actively chose to opt into the trafficking directive in 2011, stating that it would send a powerful message to traffickers. The modern slavery strategy of 2014 stated that opting in showed
“our commitment to working with other countries in Europe to drive up standards across the continent in tackling trafficking.”
Can the Minister say what has happened to that and how the Government are demonstrating those continuing commitments? Why is Clause 67, on disapplying the directive, necessary? What the Committee would like from the Minister—which may be difficult to do now as he may need to refer to others before coming back to us—is to explain which specific provisions of the Bill the Government consider to be incompatible with the directive? The Government have not given any detail on this. Is it victims’ rights or children’s rights? In other words, what difference has it made, what was covered and what is not covered? These answers are necessary for us to make a comparison and see whether there are any gaps which we believe would be important to close.
In the Commons, the Minister said that
“the transition period for this measure finished in January, so in effect it has already been disapplied.”—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; col. 547.]
I hesitate to suggest this, but I certainly would not be able to tell noble Lords exactly which bits have been applied, which have been disapplied and whether it makes any difference. Can the Minister provide clarity on this? Are we disapplying it under this Act, or have the Government already decided that it does not apply? In other words, has it just been abandoned?
My amendment does not prevent the disapplication, but simply asks the Government to complete an impact assessment before this part comes into force—including identifying which parts of the Bill are incompatible and, crucially, what impact this would have on the identification and protection of victims of slavery. The Government may have already conducted an impact assessment but if so, I could not find one. If they have, it would be interesting for the Committee to note that. This is particularly important because a Google search finds all sorts of regulations and legislation which have been passed, presumably to protect victims of slavery and trafficking. So, my amendment is a simple probing amendment to ask the Minister what difference the disapplication has made. How do we know it has not made a difference if we have no information about the difference between what there was and what there is?
I do not intend to commence a huge new debate for this Committee, but I want to use this grouping as an opportunity to highlight the issue of internal trafficking and county lines. The Minister will know that large numbers of children are referred to the national referral mechanism. He will also know that 34% of referrals are British citizens. There is a real problem with slavery and trafficking within the UK. Euphemistically, this is called county lines, and we know what that means. This will be the tip of the iceberg. The Government have set up all sorts of initiatives to try to deal with this, but what I am seeking to do is simply to raise the issue of slavery and trafficking of children—British children—within the UK. How big is the problem, what is its extent and what are we doing to get on top of it? People of this country would be shocked at the numbers of British children being trafficked and enslaved. Often, including in the debate we have had on this Bill, much of the discussion has been about people coming into the country—rightly or wrongly—what the numbers are and what the impact of the new provisions will be.
Although this is a probing amendment, it is nevertheless really important. I am pleased to see that the Home Office Minister, the noble Baroness, Lady Williams, is now in her place. Perhaps these are issues that should be debated elsewhere, but county lines and internal trafficking are important issues and the number of British children in slavery is increasing. It is a growing phenomenon that is a great shock to us all, and we need to do more to tackle it. I beg to move.
My Lords, I would like to lend our support from these Benches to both the amendments of the noble Lord, Lord Coaker. The subject of retained EU law is one on which it is easy to go down a rabbit hole. But at least this is being put in primary legislation instead of being done by the stroke of an executive pen, which is what the noble Lord, Lord Frost—who is, well, I had better not say—who used to be the Brexit Minister, appeared to suggest would happen. So, I suppose we should be grateful for small mercies.
The EU trafficking directive is, in a sense, a classic EU directive. It aims to get common standards as a measure of human rights protection, in order to establish robust provisions to prevent and prosecute the crime of trafficking and to protect, assist and support its victims. But also, the point of trying to get similar standards was to facilitate cross-border co-operation between member states’ law enforcement authorities through police co-operation, exchange of information and best practices, and dialogue between police, judicial and other authorities. Sometimes misunderstood, the whole point of EU harmonisation was to enable things to happen better, not least law enforcement.
I too do not want to rerun the issue of Brexit, but it is hard to see how pulling out of the EU trafficking directive is a Brexit opportunity. It is a lost opportunity to co-operate internationally across European borders with Europol on major crime. I am afraid that major criminals are one of the beneficiaries of Brexit.
It is a great pity that the part of the TCA on security is so thin. Things like the EU trafficking directive deserve a place in it. You can withdraw unilaterally, but that means you do not get the reciprocity of other police forces co-operating when you have criminal perpetrators who come from all over. Of course, we know this is an international crime. The EU directive also enables the pursuit of action in non-EU countries, such as raising awareness, reducing vulnerability, supporting and assisting victims, fighting the root causes of trafficking and supporting third countries in developing appropriate anti-trafficking legislation. That is an action that would rebound to the benefit of EU countries and the UK, if we were to stay plugged in to the EU’s directives. So, I do not see that pulling out is other than a lose-lose situation.
On the other amendment from the noble Lord, Lord Coaker, as has been mentioned—I believe this figure comes from Care UK—in 2020, 34% of all potential victims of modern slavery referred to the NRM were UK nationals. So, the noble Lord, Lord Coaker, is right to focus on that and on the many children involved in county lines drug dealing. We fully support the call for a report on these issues.
My Lords, Amendment 172B, moved by the noble Lord, Lord Coaker, and concerning Clause 67, disapplies the EU trafficking directive so far as it is incompatible with provisions in the Bill. This means that any provisions in the directive that continue to have effect—I stress that we do not think that any do—and remain compatible with the Bill will be unaffected by this clause. Clause 67 provides an important point of legal clarity to ensure that victims can understand their entitlements, that we are clear on the rights that we are providing and that these are in line with our international obligations. I appreciate that this is a probing amendment, but what it proposes is unnecessary. In future, should it be required and parliamentary time allows, we will consider whether further legislation is needed to clarify other elements of the EU trafficking directive. Here, we seek to provide clarity on the specific measures in the Bill.
In speaking from the Liberal Democrat Front Bench, the noble Baroness, Lady Ludford, took the opportunity afforded by this short debate to land some side swipes at Brexit and its consequences, a topic I would be happy to debate with her all night. However, not to take up the Committee’s time, I simply stress that we are not removing any entitlements from victims. I can confirm that this will not have an impact on victim identification, protection or support.
Turning to Amendment 174A, tabled by the noble Lord, Lord Coaker, I take the opportunity to reassure the Committee that there are already robust mechanisms in place across government, the police and the criminal justice system for gathering, recording and publishing victim data. There are measures in place for collecting and publishing data on the areas in which the noble Lord is interested and to which he referred in Committee. The Home Office publishes data on potential child victims of modern slavery referred through the national referral mechanism. Anticipating my answer in greater detail to the noble Lord’s point about the need to collate statistics on the incidence of trafficking of British children, the Home Office also publishes the nationality of recorded potential victims, based on information provided by the first responder on arrival. The noble Lord is shaking his head; I suspect he knows these things better than I do but, for the benefit of the Committee, that information may be updated by the competent authority staff as further information is gathered.
I am grateful to my noble friend Lady Williams here: the short answer is to look at the Modern Slavery Act. It can involve coercion, which can be occasioned by way of threats to others or by threat to the individual. It can come in many different forms; it can be emotional or psychological as well as physical. It is a pernicious practice that exists among nationals of this country as much as it does overseas. Perhaps, therefore, it gives an insight into the universal failings of the human character. The short answer—I have detained the Committee for too long—is the advice that I gave, for which I was the conduit for my noble friend Lady Williams.
I was about to expand on the fact that data concerning criminal gangs is operational and held by each police force. Adding reporting requirements for this data would, we submit, require a significant change in the way the Home Office collates and publishes data on crime. Changing this reporting approach would be unnecessary since we already publish data on county lines NRM referrals through the NRM statistics publication.
I hope that goes some way to answering the noble Lord’s important concern over how we identify, go to the defence of and offer protection to children—nationals of this country who are the victims of these gangs. Modern slavery offences committed against children are, as I say, recorded and published by the police, the Crown Prosecution Service and the Ministry of Justice. The Crown Prosecution Service maintains a central record of the number of offences in which a prosecution commenced, including offences charged by way of the Modern Slavery Act 2015. All modern slavery offences committed against children are identified through the child abuse monitoring flag. The Crown Prosecution Service definition of child abuse covers any case where the victim was under 18 years of age at the time of the offence.
I reassure the Committee and the noble Lord that a child’s welfare and best interests are the primary considerations in any decision-making—in this Bill and any other. Local authorities are responsible for safeguarding and promoting the welfare of all children in their area, including child victims of modern slavery. In addition to this statutory support, the Government have rolled out independent child trafficking guardians, who are an additional source of advice and support for potentially trafficked children. These have been rolled out in two-thirds of local authorities across England and Wales. The Government remain committed to rolling them out on a national basis.
Given all this, I respectfully request that the noble Lord withdraws his amendment at this stage.
I thank the Minister for his answer. It was a short debate but an important one. There are couple of things that the noble Lord said in his answer about the EU directive that I think are helpful. It is something I might suggest with respect to the other amendment on county lines.
I think the people who read our debates will be pleased to hear the Minister say that no entitlement will be removed on victim support, protection or identification. I think I have that quote right. That will be helpful because, in the sector certainly, that is what a lot of people have been worried about: that the disapplication of the directive will impact on those aspects. The Minister’s reassurance will be welcome, although, as with everything, we will see how it works out in practice.
It was also interesting that the Minister said that other legislation may be needed to clarify the disapplication of the EU directive in due course—a fabulous phrase. As we move forward, we will see how it goes. Like Clause 67, this is very important. Sometimes, Governments fail to spell out how the disapplication works and what the practical consequences are. So, short debates like this are important.
On county lines and the report, I think that, despite the information being available, the British public have no idea that 34% of the referrals to the national referral mechanism—the body set up to deal specifically with this—are British children. I do not think that people have any idea that it is that high—that is an astonishing figure. Given that 47% of referrals to the NRM are children, this means that a very high proportion of all the people who are referred are British children. So that is the purpose of this.
It is not that the Government are not doing anything. If I had been the Minister, I would have mentioned the co-ordination centre that the Government set up in 2018, which is actually about all of the things that I am talking about: the need for more data, greater co-ordination, greater prioritisation of this work and greater identification of this as a new crime that people have not taken as seriously as they should; the fact that children are moving across county boundaries without being tracked or followed; the lack of statistical sharing between police forces, social services and children’s services; and children ending up on the south coast and coming back to London. All of those sorts of things are what the co-ordination centre was set up to deal with.
All I would say is that the Government, through the Home Office, need to keep their foot on the pedal on this because it is a growing problem. What is happening in our country is an absolute disgrace. Some of the children involved are not even teenagers; they are not even 17 and a half—I was admonished earlier by the noble Lord, Lord Wolfson, for mentioning 12 and 13 year-olds rather than 17 and a half year-olds, which is what he wanted me to say. Some of these children are seven, eight and nine years old. It is a disgrace, which is why I make no apology for bringing this forward in that context. British children are being enslaved and trafficked within our shores. I know that this is a priority for the Government and for all of us, and this has given me the opportunity to raise it, so that the people of this country can hear how bad the situation is and what we are seeking to do to try to address it. I beg leave to withdraw the amendment.
Amendment 172B withdrawn.
Clause 67 agreed.
Amendment 173 not moved.
174: After Clause 67, insert the following new Clause—
“Migrant domestic workers
(1) The Secretary of State must amend the Immigration Rules to make provision for the matters the subject of subsection (2).(2) All holders of domestic worker or diplomatic domestic worker visas, including those working for staff of diplomatic missions, must be entitled—(a) to change their employer (but not work sector) without restriction, but must register such change with the Home Office;(b) to renew their domestic worker or diplomatic domestic worker visa for a period of not less than 12 months, provided they are in employment at the date of application and able to support themselves without recourse to public funds, and to make successive applications;(c) to apply for leave to enter and remain for their spouse or partner and any child under the age of 18 for a period equivalent to the unexpired period of their visa and of any subsequent visa;(d) to be granted indefinite leave to remain after five continuous years of residence in the United Kingdom if at the date of application their employer proposes to continue their employment.”Member’s explanatory statement
This amendment would serve to reinstate the rights and protections that domestic workers originally had under the terms of the original Overseas Domestic Worker visa, in place from 1998 to 2012.
My Lords, in moving Amendment 174, I will leave my noble friends Lord German and Lord Wallace to speak to their Amendments 181 and 183. I received a message asking me to pass on the apologies of the right reverend Prelate the Bishop of Bristol, who signed this amendment; she is in her place, but I suspect that she is going to make a hasty exit at some point fairly soon. She is of course the bishop with safeguarding responsibilities. I have her speech on my iPad; we are not allowed to read out other noble Lords’ speeches, which is a pity because it is much more neatly set out than the rather scrappy notes that I have.
The very unhappy position of some—too many—overseas domestic workers and the appalling situations that many of them are in were explained very powerfully to many of your Lordships during the passage of the Modern Slavery Act. One of the things that remains in my memory is the thanks that we received after the discussion on the Bill, even though we had not achieved the changes that we sought. A number of women who had been treated as slaves and prisoners but who had escaped and have connections with the charities working in the sector, particularly Kalayaan, were very keen to get us all together after those defeats to say thank you and of course to continue the campaign. They presented each of us with a single flower, which felt very significant.
It was a cross-party effort at that time. At the end of the day, we did not succeed in amending the Bill, but the Government commissioned an independent review into the terms of the overseas domestic worker visa to see whether it facilitated abuse and, as a result of that, made some changes to the visa regime in 2016. I am advised that these remain, in practice, ineffectual. The Government accepted in 2015-16 that workers need an escape route and should not be trapped working for abusive employers, so they reinstated the right of workers to change employers, but it is limited to the time remaining on the worker’s visa, which is kept at six months—so in practice a worker has weeks or, rarely, months, but very little time remaining to find new employment. Of course, most employers need the certainty of having someone working for a longer period. Many workers do not have their passports and they cannot demonstrate that they have valid leave, so automatically they fail work checks.
The Government also committed to the implementation of mandatory information sessions for workers newly arrived in the UK, in recognition that many—I suspect almost all—workers did not know what rights they had here. These information sessions were also intended to help them to know where to find help, if they found themselves in abusive employment. The right reverend Prelate tabled a Parliamentary Question last year, which confirmed that the commitment has now been abandoned.
Given the barriers that such workers still face in the UK, this amendment would simply serve to reinstate rights which holders of this visa originally had under the terms of the overseas domestic worker visa in place from 1998 to 2012. Concern has been expressed by United Nations experts, who say that they firmly believe that migrant workers should be granted the right to change their employer—and I have explained the problems here. It sent out a communication in July last year to which the Government have responded, confirming that they are looking to understand the nature of exploitation and are developing proposals to reform the route from next year—that is, this year.
There is a lot of evidence that demonstrates that reported abuse is lower when migrant domestic workers—this does not apply only to domestic workers—have rights that enable them to challenge abuse. These rights are not some sort of Trojan horse enabling people to come into the UK on an overseas domestic worker visa and then join the wider workforce. They could not, under this amendment, change work sector; they would have to register with the Home Office. They would have a right to renew but, provided that they were in employment and not dependent on benefits, a right to be joined by family and to be granted indefinite leave to remain after five years, provided that their employment at that time was secure.
Noble Lords will appreciate that this would provide stability and certainty, to which I have referred, to those who are forced to work in the teens of hours each day, every day, and to sleep in the corner of a kitchen, fed on nothing more than scraps from a family’s table. I am not suggesting, of course, that every overseas domestic worker is in this situation, but it seems that many are—and one in this situation would be too many.
The amendment also refers to the visas granted when a diplomatic family brings in a servant for the family. Again, this does not of course apply to all diplomats, but I remember that in 2015 we were told of examples of families from the Gulf with Filipino servants. It would make it practicable for them to find other employment.
As Callaghan put it, working conditions should not have to deteriorate to the point of slavery before workers can access redress and justice. I see that the right reverend Prelate has had to leave. She would have said that, by the standards of this Bill, this is a very modest amendment, merely restoring a model that worked well in the past. I beg to move.
My Lords, Amendment 181 seeks an exemption from the immigration health surcharge for international volunteers who come to the UK to work with vulnerable adults and children. International volunteers make a significant contribution to the work of UK charities across the whole of our country, particularly in the health, social care and education sectors.
The decision of international volunteers to travel hundreds and thousands of miles to help vulnerable people in the UK is a huge decision and commitment. Though they might get a subsistence allowance and board and lodge, they receive no salary. Additionally, the volunteers have to pay for their visa, insurance and flights. The additional impact of the immigration health surcharge simply adds to the financial burden on these volunteers and the charities they support, with the net result that the UK will probably attract fewer international volunteers.
Beyond the role they play in our domestic work, helping our society, these volunteers often become friends for life, not just to the individuals they have helped but as friends of the United Kingdom, in much the same way as international alumni of UK universities become friendship ambassadors of this country. They have formed bonds of friendship that can pay big dividends for us as time passes.
This amendment has the support of 55 charities and voluntary sector bodies across Scotland, Northern Ireland, Wales and England. These organisations are feeling the impact of this surcharge and are seeking an exemption for their international volunteers. One of these organisations is Camphill Scotland, which supports more than 600 people with learning difficulties and other support needs. It works in the social care sector and has the support of more than 300 international volunteers. Without them, the charity would have to curtail its work. The Welsh Centre for International Affairs supports international volunteers, many of whom work with young people in disadvantaged areas in the south Wales valleys.
By way of comparison, if the work of international volunteers was undertaken by full-time paid staff, each post would cost the charities more than £17,000 per year. Volunteers cost charities about £600 plus subsistence, board and lodge. But the volunteers have to pay £625 for a visa, plus now another £230 for the immigration health surcharge, plus their air fares, plus their insurance. As an example, this is what international volunteer Constantin Jacobs says of the problem:
“There will be so many people that cannot afford to volunteer abroad any more, it might not sound like a huge difference for everyone but for young people who have just finished their school or their studies, and who do not have a lot of money, this difference can mean the decision to go or not to go to the UK to spend their voluntary year there. The UK would be much less attractive as a host country. I am sure that there would be many people who would actually love to go to the UK, deciding in the end to go to another country because of this change. This would be very bad for the volunteers and even worse for the organisations in health and social care systems that rely on volunteers from abroad!”
International volunteers are unpaid—not because they are worthless but because they are priceless. If they are priceless, I hope the Government will consider removing this charge from this one special group of people to allow us to continue the work being done and to create such good will around the world.
My Lords, I will speak to Amendment 183, which I hope the Government may be willing to accept before Report.
Investor visas were introduced in 1994. They became tier 1 investor visas in 2008. Conditions were tightened under the coalition Government in 2011 and further in 2014. Successive Governments, from different parties, have allowed them to continue. Theresa May announced a review of the scheme in 2018, after the Salisbury poisonings raised concerns about the numbers of wealthy Russians resident in the UK, but so far that review has not been published.
The majority of investor visas have been given to wealthy people from Russia, China and central Asia—all countries with high levels of corruption and extreme inequality. Given the FCDO’s recognition that the greatest state threats to the UK come from Russia and China, this does not fit easily with the Prime Minister’s aspirations for “global Britain”. It has been reported that more than 6,000 golden visas—half of those ever issued—are now being reviewed for possible national security risks. Many of those who received them will by now have acquired full UK citizenship.
Two Court of Appeal judgments in the past year have thrown up new questions about the regulation of this scheme and the sources of the finance pledged by applicants. Paragraphs 49 to 52 of the Intelligence and Security Committee’s Russia report, now published over three years ago and to which the Government have been extremely slow to respond, let alone to implement its recommendations, say that
“the UK has been viewed as a particularly favourable destination for Russian oligarchs and their money. It is widely recognised that the key to London’s appeal was the … UK’s investor visa scheme … The UK welcomed Russian money, and few questions—if any—were asked about the provenance of this considerable wealth … What is now clear is that it … offered ideal mechanisms by which illicit finance could be recycled through what has been referred to as the London ‘laundromat’. The money was also invested in extending patronage and building influence across a wide sphere of the British establishment … there are a lot of Russians with very close links to Putin who are well integrated into the UK business and social scene … This level of integration … means that any measures now being taken by the Government are not preventative but rather constitute damage limitation … It is not just the oligarchs either: the arrival of Russian money resulted in a growth industry of enablers—individuals and organisations who manage and lobby for the Russian elite in the UK. Lawyers, accountants, estate agents and PR professionals … To a certain extent, this cannot be untangled and the priority now must be to mitigate the risk”.
After warning about the extent of illicit Russian financial activity in the UK, including extensive donations to political parties, the report states in paragraph 56:
“One key measure would be an overhaul of the Tier 1 (Investor) visa programme—there needs to be a more robust approach to the approval process for these visas.”
So far, the Government’s published response to the ISC report makes no reference to this recommendation. If this has been true for Russians, it has also been true for Kazakhs, Azeris, Malaysians and Chinese. The Government recently made a great fuss about a British citizen with close links to the Chinese state and the funds she had donated to a Labour MP. It is surprising that they have so far made much less fuss about our resident Russian-linked community.
In a Bill that is largely designed to make access to UK residence and settlement more difficult, this singles out the very wealthy, who are often also politically exposed people, for easy entry. Home Office records show that, between 2008 and 2020, some 9% of golden visa applications were refused. In comparison, 42% of asylum applications were rejected. The UK has been one of the top 10 to 15 most popular golden visa regimes in the world.
It is also reputed to have one of the fastest application turnarounds globally, with the Government promising a decision within three weeks to applicants. In comparison, the turnaround time for a UK asylum application is six months. It is perhaps ironic that a recent report suggests that the UK has now lost ground in comparison with Cyprus and Malta, since UK citizenship no longer provides easy access to other EU states, including the Riviera and southern Spain—another unintended consequence of Brexit, of course.
Peers will recall May and Johnson’s rhetoric about patriotic “somewheres” and unpatriotic “anywheres”. But these new citizens are the ultimate cosmopolitans, using London as a safe haven while maintaining much of their wealth and business connections offshore. Those who provide for their needs in London serve the ultra-rich without considering the implications for Britain’s sovereignty and reputation. Oliver Bullough’s new book labels British enablers “butlers to the world”. One of them is co-chairman of the Conservative Party.
If I were a conspiracy theorist, I would believe that the reason the Government have not published the report of the review they promised in 2018, now four years ago, is all of a piece with their reluctance to act on the recommendations of the ISC’s Russia report: that they have something to hide; that Russian money flowed to the Conservative Party; and that the close links between property developers, other enablers and these wealthy people has become, as the ISC report put it, impossible to untangle. I hope that is not the case and that publication of the review will show that it is not so.
However, it is demeaning. A Government who claim to be proud to have restored British sovereignty are selling a fast track to citizenship to dodgy people from dodgy countries. It has distorted the London property market to an extraordinary degree. The Minister will remember Nigel Farage complaining that London commuters hear more Polish and Romanian on their trains home than English. He did not remark that there are parts of Belgravia and Hampstead where you now hear more Russian, Mandarin and Arabic than English. We have imported corruption and, with it, the danger that corrupt overseas wealth will in turn corrupt our own society and democracy.
My Amendment 183 asks the Government to publish this overdue review in full and, in the light of that report, to reconsider whether this scheme should be ended or restricted and policed more tightly.
My Lords, the noble Lord makes a very strong case, but I rise to strongly support Amendment 174, to which I have added my name. I am grateful to my friend Professor Fiona Williams, an important researcher on this issue, and Kalayaan, to whom I pay tribute for all their work on behalf of migrant domestic workers and for their briefings.
As we have already heard, it is clear that the 2016 reforms are not working. Rather than listening to overseas domestic workers and reinstating the original ODW visa, the 2016 changes ignore the need for workers to be able to exercise their rights before exploitation escalates. Support organisations such as Kalayaan and Voice of Domestic Workers report the bind in which the current situation leaves many such workers. Do they risk leaving before abuse escalates? If this abuse does not equate to trafficking, they could be left destitute, without a reasonable prospect of finding work and without access to public funds or legal aid to challenge mistreatment. The desperate need to remit money to one’s family and pay off debts means that workers may not feel able to risk leaving exploitative labour situations.
Professor Williams argues that key to understanding the problems faced has been the shift from placing ODW protection within an employment and immigration rights frame to a trafficking frame. The problem with the latter is that it puts the onus on the worker to prove that they have been trafficked when their exploitation may come from daily infringements of what should be their rights as workers. It leaves them more vulnerable to these infringements, not less.
Kalayaan has given me a recent case study that exemplifies the problem. I will go into some detail because it makes the case rather well. Jenny—not her real name—is from the Philippines. She comes from a poor family but, having won a scholarship to train as a teacher, she was unable to finish her training for various reasons. She later married and gave birth to a daughter who caught an aggressive form of pneumonia, which needed specialist costly private treatment. Jenny and her husband had to borrow money to pay for it. Their joint income could not cover the loan repayments, which prompted Jenny to look for work abroad.
Jenny moved to Lebanon to work as a cleaner. Her employer gave birth to a third child; Jenny was instructed to look after the baby as well as continue her cleaning duties, which was not in her contract. She worked longer hours than expected and was on the go and on call for much of the day. She had wanted to return home at the end of her first contract but was persuaded to stay when the family relocated to London. She was offered shorter working hours and pay at the national minimum wage.
Jenny arrived in the UK last year on a visa. In contravention of UK published policy, she was issued no information on her rights as a worker in the UK, either during the visa application process or on arrival. She worked the same long hours as before and, although she was paid a little more than in Lebanon, her hourly rate was less than half the national minimum wage. Her employer told her that she would be arrested if she left. Nevertheless, she did leave because she was exhausted from her long working hours for pay less than she had been promised.
Jenny approached Kalayaan when her visa had two weeks before it expired, having only just heard of the organisation. Kalayaan explained to her that her visa was non-renewable and that while she had permission to work in the UK, it would only be while her visa remained valid—for the next two weeks—after which she would be subject to the UK’s hostile/compliant environment for migrants. On the basis of Kalayaan’s assessment, it did not consider Jenny to be a victim of trafficking or slavery, so could not refer her to the NRM.
It is worth noting here that even cases that Kalayaan has judged appropriate for NRM referral are frequently turned down on the grounds that, while the working conditions may have breached employment terms, they do not constitute trafficking or slavery. Yet calls for the reinstatement of the original ODW visa are repeatedly met with the response that workers who have suffered abuse can avail themselves of the NRM.
Despite experiencing labour law violations, Jenny’s right to change employer was in practice of no use to her, given that she was not allowed to renew her visa. Had she entered the UK on the original kind of ODW visa, she would have remained visible to the authorities by renewing her visa annually, while contributing in taxes and visa renewal fees. Jenny’s case underlines how unhelpful it is to require maltreated migrant domestic workers to fit themselves into the slavery or trafficking frame, and how their rights would be better protected through the restoration of the original ODW visa.
Professor Williams also argues that the issue should be seen in an international context, where there have been very important advances in employment rights for domestic workers. In particular, ILO Convention 189 on domestic workers has been ratified by 35 countries—but not the UK. Ironically, when the convention was voted on, the UK Government abstained on the grounds that the UK already had a progressive policy—the OWD visa—which they then went on to withdraw. Will the Government therefore now rethink their position and restore the ODW visa without further delay?
My Lords, I support Amendment 183 in the name of the noble Lord, Lord Wallace of Saltaire, which I am cosponsoring along with the noble Baroness, Lady Bennett, and the noble Lord, Lord Rooker. I do not always agree with the Lib Dems, but I think the noble Lord’s arguments were very powerful and need to be listened to. The effect of this route is to sell permanent residence in the UK, and later even citizenship, to anyone who turns up with a couple of million to spare, with no questions asked about where that money came from. It is an extraordinary outcome. I can see why one might have thought this was a good idea initially, but it has turned into a nonsense.
As the Committee may know, this route is for individuals able to make an investment of £2 million. The applicant does not need a job offer or sponsor, and the visa includes all immediate family members. The tier 1 investor visa is initially granted for three years and four months and can then be extended for another two years by providing evidence of an investment of the required amount. The funds must be invested in UK gilts, bonds and equities only—of course, the money can be taken out of those afterwards, so it is a very convenient little entry for your money.
Currently, if you invest—so called—£2 million, you will get your permanent residence in five years; if you have £5 million to spare, it is three years; and if you have £10 million in your pockets, it is two years. The whole thing is just absolutely absurd, frankly. Indeed, between 2008 and 2020 it has led to a total of more than 12,000 such visas being issued. There is not even any economic benefit to the UK in this. According to Sir David Metcalf, a former chair of the Migration Advisory Committee, in 2014,
“the main beneficiaries are the migrants. Investors benefit from, for example, rule of law, property rights and access to efficient markets. Second, at present, the investment is a loan, not a gift.”
A MAC report from 2015 noted that the main proponents of this type of visas are—guess what—law firms, accountants and consultancies that help organise the affairs of such extraordinarily wealthy investors. There are also speculative concerns around whether this investor visa is being used by criminals. In an October 2015 report, Transparency International UK argued that it was highly likely that substantial amounts of corrupt wealth stolen in China and Russia had been laundered into the UK via this visa programme.
It is not clear what will happen to the tier 1 investor visa under the new points-based system—at least, it is not clear to me—but it seems that it will remain in place. I suggest that a thorough review is in order and, meanwhile, the route should be closed, as set out in this amendment.
My Lords, I am happy to join the noble Lords, Lord Green and Lord Wallace, and others who have brought this amendment. I may not agree with all that the noble Lord, Lord Wallace, says, but I share with him a passion for the rule of law and a real concern for our reputation for protecting the rule of law. It is a real irony that our reputation for protecting the rule of law is one of the things that attracts people who have very little regard for the rule of law themselves and come from countries which ignore it almost altogether. I am afraid that this Government and their predecessor have a very inadequate record in responding to the threat of corruption of all sorts, and of course I support the proposals in this amendment.
In 2016, the then Prime Minister, David Cameron made a seminal speech about the importance of stamping out corruption. The Minister will remember the Criminal Finances Act 2017 and what a nuisance I was during its passage. I found it inadequate in a number of respects, including unexplained wealth orders, which I did not consider were nearly tough enough. I also put down amendments to try to persuade the Government to establish a register of overseas entities’ property, in order to try to reveal a great deal more about who actually owns vast parts of London. The noble Baroness was emollient and responded that as soon as parliamentary time allowed, there would be an appropriate response. I was slightly reassured by that. I continued to harry the Government. I asked the noble Lord, Lord Young, when he was a Minister, about the progress of matters. He was reassuring—none more reassuring than he—and said good progress was being made.
In 2018, when the Sanctions and Anti-Money Laundering Bill came before your Lordships’ House, I put down a similar amendment with the noble Lord, Lord Hodgson of Astley Abbotts, on the register of beneficial owners of overseas entities. The matter progressed through Committee and was debated at some length. It then came to Report, when I was fully prepared to take it to a vote. I was in the Conservative Party then and it was not a popular decision. Quite frankly, I was leant on. I was leant on by No. 10 Downing Street and summoned to a meeting of officials from all sorts of different departments, who told me it was very unfortunate that I was going to do this because the matter was in hand.
I was then told, from the Dispatch Box, that the Bill was a priority for the second Session. It would be introduced by 2019 and the register itself would be operated by early 2021—sooner, if possible. I suppose I then received the prize for being a naughty boy; I was asked to chair the Joint Committee on the draft Bill. We looked at it in 2019. It was an excellent Bill that had been very well prepared by some skilful civil servants. We responded, stressing that time was of the essence. The Government appeared to accept our recommendations.
What has happened? Absolutely nothing. In the meantime, frankly, we look like a laughing stock. We are not responding to the threat of economic crime. We are giving away visas and the rest of the world must think we simply do not care. I thoroughly support this amendment.
My Lords, it is a pleasure and privilege to make this trio of noble Lords—of naughty boys—into a quartet led by the noble Lord, Lord Wallace, because I strongly support all the points that have been made. On this occasion, I am talking not about people with millions of pounds, but about domestic workers, mentioned in the amendment from the noble Baroness, Lady Hamwee. Here, there is another financial imperative for the Treasury, because I have long thought that we force people into the black economy because they simply cannot find a legal way to stay here.
I suggest to the Minister that this amendment would at least help a lot of people to come out into the open and pay taxes. If they could extend legal visas, those people would not go into the black economy and extend that uncontrolled area of work.
I support all three amendments in this group and particularly that of the noble Lord, Lord Wallace, for two reasons. First, it gives me a rare and particular pleasure to say that I strongly support an amendment in the name of the noble Lord, Lord Green of Deddington, among others. His dedication has been remarkable throughout these debates, and this is the first time I have agreed with what he has said.
Secondly, there is just one element missing from the powerful case for this amendment made by the noble Lord, Lord Wallace. It is partly filled by the remarkable speech made by the noble Lord, Lord Faulks, and it is about reputation. The noble Lord said that we have become a laughing stock worldwide but, in America and large parts of continental Europe, it is worse than that. People are not laughing; they think it is beyond a joke. I strongly recommend this amendment to the Minister.
My Lord, I strongly support the basic thrust of Amendment 183 in the name of the noble Lord, Lord Wallace of Saltaire. I do so having regard to the negative effects of the system of tier 1 visas, both in our own country and overseas. The first undesirable effect of this dirty money is on the economy of London; in particular, the cost of housing being pushed up to unaffordable levels by foreign so-called businessmen seeking secure investments, as explained by the noble Lord, Lord Wallace. My noble friend Lord Faulks identified a lack of progress by the Government in this area.
I accept that there may be some business opportunities in meeting the demand and providing both professional and artisan services to tier 1 investors. Personally, I would not want to earn my living from dirty money, in effect stolen from people of overseas countries. The noble Lord, Lord Wallace, explained this with his usual skill. Not only do some of these tier 1 investors illegally suck money and assets out of their own country to enjoy in ours but they take full advantage of our well-developed system of justice and the rule of law—JROL. This means that they can keep their assets secure and also enjoy a reliable means of passing them on to their offspring. Of course, they have no incentive to seek to implement any decent form of JROL in their own country because it is not in their interests to do so. The lack of JROL and the negative effects of corruption mean that countries such as Russia, and many developing countries, will never be able to achieve their full economic potential.
For instance, defence equipment apart, I cannot think of any manufactured product that comes from Russia. No wonder it has an economy the size of Italy’s, despite its natural wealth, larger, if declining, population, and vast space. It is not for us to interfere with the internal arrangements of other sovereign states, but if we denied oligarchs, the super-rich and despots of countries without JROL the safety and advantages of a safe landing and base in UK and other similar countries, they might be more inclined to seek to put their own countries in order. This would have enormous economic benefits and other benefits for the people of those countries.
I turn to the problem of Ukraine. It is clear that any invasion by Russia will result in severe sanctions against Putin’s regime, including Russian tier 1 investors in the UK who are judged to be close to Putin. I am confident that the Government are planning such potential sanctions as we speak, although the likely targets will already have taken precautionary action. However, if our worst fears are realised, we should go much further and hit all Russian tier 1 investors, whether they are President Putin’s friend or foe. That way, they might be more inclined to get off their posteriors and put pressure on Putin and maybe even think about improving JROL and press freedom in Russia. Furthermore, this course of action would not adversely affect the inhabitants of Russia.
We cannot continue to allow filthy, dirty money to come into the UK via the tier 1 investor visa route, because it pollutes our economy, damages the economies of other countries, and seriously erodes our soft power position.
Amendment 174 would return rights to people in the UK who are on the overseas domestic workers visa—primarily, the right to change their employer and renew their visa for a period of not less than 12 months. The then coalition Government changed the visa regime in April 2012, so that workers and their immigration status are tied to their original employer, and their visa cannot be renewed past six months. That has caused real concern that the working people involved are tied into situations of abuse and slavery. The cross-party Joint Committee on the Draft Modern Slavery Bill, as it then was, said that the changes to the regime had
“unintentionally strengthened the hand of the slave master against the victim of slavery.”
“Tying migrant domestic workers to their employer institutionalises their abuse; it is slavery, and is therefore incongruous with our aim to act decisively to protect the victims of modern slavery.”
In 2015, the independent Ewins review called for all overseas domestic workers to be given the right to change employer and apply for further leave to remain in the UK for up to 30 months. It found that the terms of the domestic worker visa were
“incompatible with the … protection of overseas domestic workers’ fundamental rights while in the UK”.
Unfortunately, the Government disagreed with the recommendation; instead, they made more limited changes to the Immigration Rules, with the effect that all domestic workers can change employer during their six-month visa, but only those who are found to be victims of trafficking or modern slavery can change employer and apply to stay for longer in the UK. The problems with this limited approach were set out in the Ewins report: they failed to provide an immediate escape route out of abuse; the six-month limit makes it difficult for people to find other employment; and the national referral mechanism requirement means that a person must have taken the step to report, and met an evidential burden to prove, that they are victim of slavery, which, frankly, many are too frightened to do. We certainly support the thrust of Amendment 174.
Amendment 181 would exempt international volunteers from paying the immigration health surcharge, and I await the Government’s response with interest. I would like to know what consideration the Government have given to extending the exemption, and have the Government met charities which have raised concerns about its effect on volunteering in particular sectors, especially social care?
Amendment 183, about which most has been said—with some feeling and fervour—would require the Government to suspend the tier 1 investor visa route, known as “golden visas”, until the review into those visas has been made public. In its 2020 Russia report, the Intelligence and Security Committee recommended that a key measure for
“disrupting the threat posed by illicit Russian financial activity”
“overhaul of the Tier 1 (Investor) visa programme—there needs to be a more robust approach”.
In March 2018, the Government announced a review of golden visas issued between 2008 and 2015. This followed revelations that the Home Office and banks had made next to no diligence checks in that period. According to a freedom of information request in June 2021, the Home Office is reviewing 6,312 golden visas, half of all such visas ever issued, for a range of possible national security threats. Almost four years since the Government announced the review, and as has been said more than once this evening, the findings have not yet been reported.
Many of those who received visas during this period will have been eligible to apply for British citizenship over the past seven years, and it is surely essential that there is full transparency about the findings of the review, including: a detailed breakdown of how many visas have been revoked; how many cases have been referred to law enforcement; and how many applications for renewal or citizenship have been denied.
In the Commons last month, Stephen Kinnock MP asked the following question:
“Six months ago, the Government said that they were finalising their report into how more than 700 Russian millionaires were fast-tracked for British residency via their so-called golden visa scheme. Can the Foreign Secretary tell the House when that long-overdue report will be published?”
The Foreign Secretary’s reply was:
“We are reviewing the tier 1 visas that were granted before 5 April. I am sure the Home Secretary will have more to say about that in due course.”—[Official Report, Commons, 31/1/22; col. 60.]
Therefore, I ask the Minister, speaking on behalf of the Government: does the Home Secretary have “more to say” about this tonight? We are all waiting to hear why it has taken so long to produce this report. In the absence of a credible explanation, one can conclude only that there are some embarrassing reasons that have led the Government to delay producing this report.
My Lords, I thank all noble Lords who have spoken in this debate. I thought it might be helpful to slightly unpick the two types of workers—the difference between domestic workers in households and those who work for UK-based diplomats. Obviously they are different groups with different needs, the latter being served by the temporary worker international agreement route, which permits dependants. This is not the only aspect of our domestic immigration system that already provides what the amendment proposes. Both groups of workers are free to change employers; in fact, our existing arrangements already go further than the amendment proposes, and I will outline why.
We do not expect domestic workers to register with the Home Office because we want a worker to be able to leave as soon as their mind is made up to do so, so we must avoid anything that may act as a barrier to exercising that right. Imposing an extra condition now risks undermining changes that have been made for the better. We have already made provisions under which both groups of domestic worker can obtain a two-year extension of stay if they are found to be a victim of modern slavery. I think these arrangements strike the right balance, ensuring that those who find themselves in an abusive employment situation are able to escape it by, first, finding alternative employment and, secondly, encouraging them to report that abuse through the appropriate mechanism.
On the point made by the noble Baroness, Lady Lister, on overseas domestic workers who are not slavery victims, very similar to the case that she has pointed out, but are actually exploited, the Immigration Rules are deliberately designed to prevent the importation of exploitive practices—for example, they set out that they should be paid the national minimum wage. I hope that helps on her point. I appreciate that the case she outlined seemingly falls between the cracks, but the Immigration Rules are very clear on that.
The fact is that I do not think it is an unusual case; I asked Kalayaan for a recent case study and that is what it came up with. The Immigration Rules are not working in that respect. We have overseas domestic workers who are being exploited but, even when they are referred to the NRM, are told that it is not slavery or trafficking. Would the Minister be willing to look at that again? There is a problem, as she put it, of some people falling through the cracks.
Is the Minister aware that, in some countries, applicants choose those families that come to London regularly in the summer, with a view to leaving them after a month or two and settling, legally or otherwise, in the UK? The system needs to be fairly tight to avoid trouble on that front.
Between what the noble Lord has just outlined and what the noble Baroness, Lady Lister, has just said, that probably explains both ends of the system in different ways.
On visa extensions, although I fully support the noble Baroness’s determination to improve protections for migrant domestic workers, rewinding the clock and reinstating the features of a route that were deliberately removed almost a decade ago is not the answer—probably, in part, for some of the reasons that the noble Lord, Lord Green of Deddington, outlines.
The overseas domestic worker visa caters specifically for groups of visitors who by definition stay for short periods. That visa allows private domestic staff to accompany their employer where that employer enters the UK as a visitor and where they intend to leave together. Approximately 20,000 visas are issued every year on that basis, and the vast majority leave well within the validity of their visa.
The amendment seeks to reintroduce features of the route which were removed for good reason. We must not forget that abuse existed before 2012 and be mindful that allowing overseas domestic workers to stay could inadvertently create a fresh cohort of recruits for traffickers. We must avoid a route that could be used by criminals to entice victims to come to the UK.
Noble Lords have referred to the report, commissioned by the Government, by James Ewins QC, which, crucially, did not establish a direct link between the length of stay and the likelihood of exploitation. Years later, this picture remains. There is no greater risk if a domestic worker is here for two weeks or 12 months, so increasing the length of time that they can stay will not afford them greater protection from being exploited.
I think that the noble Baroness and I share the same objective of the delivery of a safe and appropriate system for a very vulnerable category of workers. However, for all the reasons that I have given, we do not agree on the means of achieving it.
I am aware of comparisons that have been made between those employed in the healthcare sector who are exempt from the health charge and those who come to the UK as volunteers. However, there are very clear and important distinctions between workers and volunteers on the charity worker visa. The route should not be used to fill gaps in the labour market, even on a temporary basis. To answer the question asked by the noble Lord, Lord Rosser, yes, we have been engaging with charities. The Government think that appropriate immigration concessions are already in place, which support volunteers on this route. The charity worker visa offers a low fee, compared to other work routes, and sponsors pay a lower licence fee, in recognition of their charitable status. While the charity worker route is the main route for volunteers, it is not the only way in which volunteers can be recruited to support the work of charities.
I note the concern of the noble Lord, Lord German, that the immigration health charge might deter volunteers from coming to the UK. Published figures indicate that, for the years immediately preceding the pandemic—clearly the years after that are very unusual—the number of charity visas granted remained broadly consistent. This indicates that volunteers are not being deterred by having to pay the health charge.
The NHS must continue to be properly funded and the immigration health charge plays an important role in that. It has generated almost £2 billion for the NHS since its inception, and it ensures that temporary migrants who come to the UK for more than six months make a direct contribution to the comprehensive range of NHS services available to them during their stay. Those who pay the charge can, from their point of arrival in the UK, use the NHS in broadly the same way as a permanent resident, without having to make any prior tax or national insurance contributions. For those reasons, I hope that the noble Lord, Lord German, will not press his amendment.
On Amendment 183, I hear noble Lords loud and clear. I recall the debate that my noble friend Lord Faulks and I had during the Criminal Finances Bill. I also completely acknowledge the point about those relying on funds that have been illegitimately acquired. It is because of those concerns that we have committed to a review of visas issued under the route between 2008 and 2015. We are finalising the review, if noble Lords can be patient, and we will publish it in due course—I knew there would be a sigh from behind me and in front of me when I said that.
Four years is quite a long time to produce a report. Why has it taken four years to date and why are the Government still in a position where they cannot really give any proper indication of when it will be produced? “In due course” is the cop-out expression for a Government who do not really know.
I say to noble Lords that I share their concerns. I will also be writing to the Committee before Report on this very matter. Since 2015, we have excluded investment in government bonds and strengthened the rules to ensure that investments are made in active and trading UK companies. Applicants must also demonstrate that they have a wealth of at least £2 million for at least two years, up from 90 days, or provide evidence of the source of those funds. We require banks to explicitly state in a letter to the Home Office that they have completed all requisite customer due diligence and know your customer checks prior to opening the applicant’s account, and we have increasing evidential requirements where migrants have invested their qualifying funds through a chain of intermediary companies so that the Home Office can better assess the ultimate destination of qualifying investment.
My Lords, I hope the Home Office has consulted the FCDO on this issue. The Minister will be aware of the report from the Center for American Progress in Washington which argues—and this is the conventional wisdom in Washington as far as I can see—that we are the weak link in the West’s relations with Russia, and the reason why we are the weak link is because of this large colony in London with such close links to Putin.
My Lords, I acknowledge all the points that the noble Lord has made and agree that there is more to be done here. I do not think anyone could deny that. The Criminal Finances Act was a start and there is more to be done in this space, most definitely, but I think I will leave it there. I hope, with what I have said, that the noble Baroness will be happy to withdraw her amendment.
My Lords, my noble friends both made very powerful cases. I hope that my noble friend Lord Wallace will forgive me if I make only one comment on his amendment, in fact in response to what the Minister said about banks checking up: I wonder whether the banks check up on the holders of golden visas as often as they check up on noble Lords who are PEPs.
With regard to my amendment, like the noble Baroness, Lady Lister, I ask why we would have been asked to propose this amendment if there were no problem. I regarded the registration with the Home Office as a sort of olive branch, something that might make the Government feel a little more comfortable. The Immigration Rules are not working because there is not the distinction to which she and I have referred.
The noble Lord, Lord Berkeley of Knighton—how is “Berkeley” pronounced? I should know from hearing him on the radio—referred to the financial aspect of this and forcing people into the black economy. It is wider in respect of people who are here irregularly, of course, because it is hugely important. But it is exactly the same as the point made by the Minister that if the situation were changed it would provide a group of people who would be—I wrote it down—a cohort for traffickers, but that is exactly what the danger is now. I am puzzled and disappointed but clearly we are not going to make progress today, so I beg leave to withdraw the amendment.
Amendment 174 withdrawn.
Amendment 174A not moved.
Clause 68 agreed.
Clauses 69 and 70 agreed.
Clause 71: Electronic travel authorisations
175: Clause 71, page 74, line 16, at end insert—
“(c) the individual is travelling to Northern Ireland on a local journey from the Republic of Ireland.” Member’s explanatory statement
Under this amendment, persons who are neither British nor Irish would nevertheless be able to make local journeys from the Republic of Ireland to Northern Ireland without the need for an Electronic Travel Authorisation.
My Lords, the amendment is in my name and those of the noble Baroness, Lady Suttie, and my noble friend Lord Coaker. Its purpose is to ensure that persons who are neither Irish nor British would nevertheless be able to make local journeys from the Republic of Ireland to Northern Ireland without the need for an electronic travel authorisation. Clause 71 amends the Immigration Act 1971 to introduce electronic travel authorisations. It provides for a pre-entry clearance system which requires anyone who does not need a visa, entry clearance or other specified immigration status to obtain authorisation before travelling to the UK. This includes journeys within the common travel area; indeed, the clause has been expressly formulated to ensure that CTA journeys are captured.
This system does not apply to British or Irish citizens or those who have already been granted leave to enter or remain in the UK. The system will impact mainly non-visa nationals, including EU nationals, who can presently enter the UK visa-free for set periods. Almost all such persons are presently automatically considered to have deemed leave to enter the UK when crossing into Northern Ireland on the land border. It is believed that new subsection (4) in Clause 71 has been drafted intentionally to ensure that persons who are travelling within the CTA and consequently would not need leave to enter the UK will still require an ETA.
In preparing for this amendment today, I spoke to both the Human Rights Commission and the Equality Commission based in Belfast, which have commitments under Article 2 of the Ireland/Northern Ireland protocol in all these matters. I spoke also to the Committee on the Administration of Justice, and my noble friend Lord Coaker and I spoke to representatives of the Irish Government based in the Irish embassy, who are deeply concerned about the impact of Clause 71 on tourism, not only in the Republic of Ireland but in Northern Ireland —for those people who come in to have a holiday via Shannon and Dublin airports and then move northwards.
It appears that the UK Government intend the scheme to apply on the land border and, so far, are dismissive of concerns raised. This looks very much like it is in breach of Article 2 of the Ireland/Northern Ireland protocol, which deals with specific rights of individuals. The clause shows a total lack of understanding of the border, which has many crossings. The noble Lord, Lord Patten of Barnes, who served in Northern Ireland as a former Minister and was chair of the Patten commission on policing, will be well aware of the geography not only of Northern Ireland but of the border area. I am sure that he would very clearly see the issues involved.
The situation for some time has been that almost all EU, EEA and non-EEA citizens who are non-visa nationals present in the Republic of Ireland can cross the land border freely on local journeys into Northern Ireland without any requirement for prior immigration permission. In some ways, the Bill conflates modern slavery issues with immigration, as well as with the necessities of an economy and tourism.
It has been the case for some time that citizens who are non-visa nationals present in the Republic of Ireland can cross the land border freely on local journeys into Northern Ireland, without any requirement for prior immigration permission. For EU-EEA citizens since Brexit, as was already the case with other non-visa nationals, permission in such circumstances is restricted to entry as a visitor and certain activities, such as work, are restricted when entering the UK this way. However, this system has allowed non-visa nationals resident in border areas in the Republic of Ireland to enter Northern Ireland freely for a range of activities, even visiting family members or for work purposes. I am aware of people who do that; they contribute to the economy in the Republic but have family in the north, and vice versa.
Under this new proposal, non-visa nationals resident in the Republic of Ireland will be required to apply in advance and pay for an ETA before crossing the border into Northern Ireland. It is clear that this will have a detrimental impact on non-visa nationals who need to enter Northern Ireland for activities such as visiting family, accessing childcare, carrying out permitted work engagements and accessing services and goods. This system will also impact the ability of members of the migrant community to take part freely in cross-border projects and programmes. I am sure the noble Viscount, Lord Brookeborough, living in County Fermanagh, will be well aware of these issues for people who are resident or working in Counties Monaghan, Cavan and Donegal.
Concerns have also been raised about the impact of the ETA system on business, health and tourism, plus recreational issues, as it would require non-visa nationals in the Republic of Ireland to obtain an ETA before a visit to Northern Ireland, a fact that has been recognised and raised directly with the Home Office by the Irish Government. This would have an impact on tourism in Northern Ireland, as many people travel via Dublin and Shannon airports and head northwards. Therefore, the Government’s ETA proposal will impact detrimentally on tourism and economic opportunities in Northern Ireland. It will act as a disincentive to people from North America coming northwards to visit the Mourne Mountains in my own area and the Giant’s Causeway in north Antrim, which are both geographical icons. My noble friend Lord Coaker will be aware of this from his time as shadow Secretary of State, when I travelled with him round the constituency of South Down.
In the context of an invisible land border that British and Irish citizens can freely cross, it is eminently foreseeable that many other persons who have hitherto been able similarly to cross the border without any prior permission will be largely unaware of the ETA requirement. There are legal impacts to this. I am a member of the protocol sub-committee in your Lordships’ House. We wrote to the noble Baroness, Lady Williams of Trafford, with a series of questions on 14 January. To my knowledge, we have not yet received an answer. We asked whether she would specify
“who will be required to have a valid ETA, and any exceptions to this; the form or manner in which an application for an ETA may be made, granted or refused; any conditions that must be met before an ETA application can be granted; the grounds on which an ETA application must or may be refused; the validity of an ETA (length of time and/or number of journeys); and the form, manner, or grounds for varying or cancelling an ETA”.
I hope the Minister answering this debate will be able to provide the Committee with some answers this evening and will exhort his colleague, the noble Baroness, Lady Williams, to reply to the chair of the protocol sub-committee. I ask again: can the Minister confirm whether holders of a frontier worker permit will be exempt from the requirement for a valid ETA? Will there be any other exemptions or special arrangements for people crossing the land border frequently from the Republic of Ireland?
It would be preferable if ETA requirements did not exist or were not applied when travelling from the Republic of Ireland to Northern Ireland. I understand that much discussion has taken place. I exhort the Minister to give such commitments here this evening. If he cannot, can he give a commitment that the Government are prepared to come back with an amendment on Report to deal with this matter and cancel ETA in such circumstances, because it is utterly crazy? Can the Minister specify what the results of those discussions have been? If the Government do not wish to adopt my amendment, will they bring forward an amendment on Report to deal with these issues?
I also agree with Amendment 175ZA in the name of the noble Baroness, Lady Hamwee. Although it is very much an exploratory amendment, it is a very important one that is allied to mine. I agree too with the amendment in the name of my noble friend Lady Chakrabarti, which I have also signed. It deals with the birthright commitment under the Belfast/Good Friday agreement and the onus on the Government to report on progress in giving effect to the nationality provisions of that agreement. We should always remember that the Belfast/Good Friday agreement states that people can identify themselves as
“and be accepted as Irish or British, or both, as they may so choose.”
For my part, I hold an Irish passport. I am Irish and I declare myself to be Irish, although I live in the UK—which I freely recognise.
I look forward to the Minister’s response. I thank noble Lords who will speak in support of these amendments, and I hope that the Minister brings us some positive news tonight, or that he indicates what the Government might do on Report.
My Lords, I will speak in favour of Amendment 175 tabled by the noble Baroness, Lady Ritchie of Downpatrick, to which I have added my name. I also support Amendment 175ZA, in the names of my noble friends Lord Paddick and Lady Hamwee, and Amendment 186, tabled by the noble Baroness, Lady Chakrabarti.
I will be brief because I fully support and agree with the very powerful points made by the noble Baroness, Lady Ritchie. As it stands, the Bill does not give proper consideration to the economic and legal implications for the island of Ireland. Amendment 175 would amend the Bill so that all local journeys from the Republic of Ireland to Northern Ireland, including for people who are neither British nor Irish, could continue to be made without the need for electronic travel authorisation.
I will highlight three areas of concern about the proposals as they stand and would very much appreciate a response from the Minister. The first is the question of legal uncertainty. If the Home Office remains committed, as I sincerely hope it is, to no checks on the land border on the island of Ireland, how will it enforce this new measure in practice? As the noble Baroness, Lady Ritchie, has said, thousands of crossings are carried out each day by non-British and non-Irish residents in the Republic of Ireland who need to cross the border for work, leisure, family or educational purposes. There is currently no requirement or expectation that people carry passports if they live or work in the border areas. Given the very particular circumstances of the border areas in Ireland, I would be grateful if the Minister could explain how these measures will be enforced in practice.
The second area of concern is how these measures will sit with the existing commitments on the common travel area, as set out in the Northern Ireland protocol. The protocol sets out quite clearly that, irrespective of nationality, the rights and privileges contained within the common travel area will continue
“with respect to free movement to, from and within Ireland for Union citizens and their family members”.
Can the Minister confirm that this will continue to be the case?
My third and final point is the issue, raised by the noble Baroness, Lady Ritchie, of the potential economic impact of these measures on the Northern Ireland economy, most particularly the potentially very detrimental impact on tourism. Tourism is a major part of the economy in Ireland. Previously, American tourists, for example, arriving on the island of Ireland would have the expectation of free travel across the island for the duration of their visit. They would expect to be able to travel completely freely between Dublin, Belfast and Donegal during their stay. Has an economic assessment been undertaken on the impact of these measures? In particular can the Minister say whether any studies have been undertaken on whether the requirement for an ETA might discourage tourists from travelling to Northern Ireland from the south during their visit—and the consequent impact on the Northern Ireland economy?
In summary, I believe that these measures have not been properly thought through, and I urge the Government to think again and accept these amendments.
My Lords, I support the amendment moved by the noble Baroness, Lady Ritchie. I had not necessarily thought about saying anything, but she mentioned me in her speech. First, I declare an interest in that we are involved in tourism at home. Secondly, my brother is chairman of Tourism Ireland, a cross-border body that survives on funds from both the United Kingdom and Ireland to market the island of Ireland. Therefore, this particular regulation would make a complete fool of the whole practical implementation of it.
People ought to understand what the border really is—or, in fact, what it is not. We have come through all the Troubles. Before them, we had a border and we had to have certain papers to cross it. Then we all joined the European Union and that side was taken out of it. But then we had the Troubles so, in effect, the border was reinstated, albeit for a different reason. We do not have those border checks now; there is no border under the Good Friday agreement and everything since, including the protocol. That is the way it should be. Whether the noble Baroness and I are supporters of the protocol is neither here nor there; it is about the practical problems raised by this.
Whether tourists from another country cross the border, and who polices this, is of course an issue. In fact, they will not know whether they are crossing it, so it becomes rather ridiculous—on the whole, they do not have a clue. During the Troubles, there was a time when even our own British people—soldiers and police—did not know whether they were crossing it, so they used to draw yellow lines on it so that they knew when they were. A certain part of the population moved the yellow lines, so they still did not know where they were and then there were diplomatic incidents.
I live in County Fermanagh, which is one-third of the border in Northern Ireland. The border does not just affect it in terms of regulations—people cross it not just from day to day but time and time again in one direction or another to do very simple things. I know that you can use euros here if you are pushed, but every shop and business there uses euros and pounds. Therefore, half the time, no one has a clue whether they are in the north or the south, even when they walk into a shop. All the people working there, and of course the ones who are straightforward British or Irish, are not covered by this.
However, a wealth of people who are not British or Irish live and work within a few miles of the border and they do not think twice about it. If you cannot get a plumber very locally—we might get one from further afield anyway—you just ring up the nearest person. We are five miles from the border and he could well be from either side of it, and he might not be an Irish or British citizen.
I entirely support this amendment. I know that what I have said is not technical and I can only be very grateful to the noble Baroness, as we all can, for going into it in such detail because there is very little for us to say, except for the Government to sort it out.
My Lords, I support the amendment moved by the noble Baroness, Lady Ritchie, and spoken to by other noble Lords. I was grateful, too, to have been briefed by the Equality Commission for Northern Ireland and the Northern Ireland Human Rights Commission. I did not need to be convinced of the importance of local journeys for work, education, health services, shopping, frontier workers and so on. I was lucky enough to be a member of the EU Select Committee of the House during the transition period, when we heard direct from people living and working in Northern Ireland about the concerns which the amendments in this group address.
I want to speak particularly to Amendment 175ZA. The points raised in it apply more widely than to the Northern Ireland/Republic of Ireland border. I certainly do not want to suggest that there is greater concern about criminals in the Republic than at other borders. I am not quite sure why these proposals come to be in the same group but I understand why there is a concern to get through the remaining amendments. The point is relevant to the border and there is a practical problem, as the noble Viscount just said.
My noble friend Lord Paddick is concerned about checks on the criminal record of an individual, now that we are no longer a member of the EU or have access to SIS II or ECRIS. We have to fall back on the Interpol database, which requires specific uploading of information and is not integrated with our police national computer or with member states’ national systems.
The report of the EU Security and Justice sub-committee on post-Brexit arrangements in that area is due to be debated on 25 February. I know that the Minister will deal with the points in the report then. I was going to say that I was sorry to see she does not get that Friday off, but it is never off for a Minister, is it? The points in it are relevant to Northern Ireland.
My noble friend Lord Oates has Amendment 180, which is not in this group, on physical proof of status. This amendment relates to the points that I know he will make and asks the very pertinent question: what happens when the digital system malfunctions? I am normally a glass-half-full person but that is pertinent to everyone, especially at this land border.
I noted, and think it deserves to be mentioned here, that the Constitution Committee of your Lordships’ House has reported in the following terms:
“The House may question why the detail of the Electronic Travel Authorisation scheme introduced under clause 71 is not set out in the Bill.”
It is because the scheme has not been worked up—at any rate not to completion, as I understand it. The report continues:
“If it is appropriate to make such provision in immigration rules, the House may expect it to be subject to a form of affirmative procedure, at least for the establishment of the scheme.”
The committee is saying much more delicately what I said the other day: we should not be expected to deal with criminal offences, as it was that day, arising from the scheme when we do not know what the scheme is. That also applies here.
My Lords, I thank the noble Baronesses, Lady Ritchie of Downpatrick and Lady Suttie, for raising this issue, and I think some very good questions have been asked. I have a different question. In the absence of an electronic travel authorisation, are there problems in enforcing immigration, asylum or indeed criminal law? Can we be reassured that there would not be an incentive for people who want to come to the UK to come in large numbers through the Republic of Ireland? That would be my one concern in trying to address the very real issues across the border that have been identified, and which you see in other countries where you have borders—especially where there has been a practice of having no border.
My Lords, I will very briefly give support from these Benches to all three of these amendments. They all demonstrate the practical consequences of Brexit. I declare a bit of an interest on Amendment 175—not that I am neither British nor Irish but that I am both British and Irish. In fact, I have been Irish from birth without for a long time realising it, but I have now just got my passport, so I am a dual national.
But it makes no sense—and the noble Viscount, Lord Brookeborough, gave very graphic examples of how silly it is to try to stop people crossing the border. It is not just about tourism; it is about work and business. Surely it is not in the spirit of the good relationship that we have with the Republic of Ireland, or of the Belfast agreement, or of everything that we want to work, Brexit or no Brexit—or despite Brexit. We want to have very good relations on the island of Ireland. I am not sure how it would actually work, but trying to stop people would be a nuisance, to put it at its mildest, and harmful from every direction.
On the point about the ETA system having to rely on the clunky Interpol system, my noble friend reminded me that we are going to be debating the report from the noble Lord, Lord Ricketts, in a couple of weeks. We do not have access to SEIS or ECRIS, or other EU instruments, and this is not good for operating an ETA system. So it would be very good to hear from the Minister whether he has anything positive to say about how to remedy the practical consequences, to use a neutral word, of Brexit, both for internal travel on the island of Ireland and for how the ETA system can work optimally.
Perhaps I, too, should declare that I am both British and Irish since birth. I understand the difficulties locally that potentially arise and have been so well illustrated by the noble Viscount, Lord Brookeborough, but I wanted to ask the Minister whether he could put this in the context of the common travel area. Does it really exist in practice as a reciprocal arrangement? I specifically ask because I have never been able to land at Shannon Airport, even on a direct flight from Heathrow, without standing in a queue and presenting a passport—yet when I return and land at Heathrow, I walk straight through and am guided past the passport gates. To what extent is this common travel area being operated by the Irish Republic on a genuinely reciprocal basis? Could it not in a sense be tied up with this issue?
I will add my voice of support to my noble friend Lady Ritchie. It is good to have the perspective that she brings to this Committee. Our institutional memory in Parliament, in this place and the other place, with respect to Ireland is not as great as it was. It is a perspective that needs to be brought here more often, so this is an important little debate. I think the noble Viscount, Lord Brookeborough, will agree.
I say to the Minister that, whatever the rights and wrongs of all this—and I agree with what my noble friend said—it plays into the narrative that the Government do not have a grip with respect to Ireland. The consequences of that, as the noble Baroness, Lady Suttie, pointed out, are absolutely and potentially really difficult. Even if people are non-British or non-Irish, if they have to have an ETA to cross the border, how on earth is that going to work? Practically, at the end of the day, if it is worth having, somebody will have to check it. I know that it does not apply to British and Irish citizens, but suppose, as a British man, I have an American wife or a French girlfriend; we go to Northern Ireland and somebody checks it—with the history of the police and security forces checking documents. The Government have to wake up to this. Unless the Minister can get up and say, “We’re going to sort this and this is what’s going to happen”, it will drift on and on and the consequences will be potentially really difficult.
It is no wonder that the Irish Government and various organisations across the whole of the UK and Ireland are saying that the Government need to get a grip on this. It is ludicrous. I gave an example. The noble Viscount, Lord Brookeborough, will know far better than me. What about somebody who for years has lived a mile across the border, has a mixed marriage in terms of nationality—somebody who is a British or Irish citizen married to an American—and wants to go shopping or to a hotel four miles down the road that happens to be in Northern Ireland? Do they need an ETA?
This is one of those things about which people outside Parliament say, “Do you know what you are doing?” Frankly, this is something that is so serious, and all the time we are looking at it we are trying to resolve it. It is difficult. It raises issues that you do not appreciate. If only you understood how difficult it is. Well, I do understand how difficult it might be, and I also understand this: the border, for reasons that we all know, whether it is drawn in Ireland or down the Irish Sea, has consequences that are enormous for the people of Ireland and for people here.
The Government have to sort this out in a way that commands respect and agreement from all communities. The amendment that my noble friend Lady Ritchie has brought before us is important, but I implore the Government: whatever the rights and wrongs of getting into Shannon Airport, whoever is right about whether it is seen as a back-door way of getting into the UK, et cetera—and I should say that the Irish Government have visa requirements as well, which will influence how people come in, so that may be one of the answers —it just has to be resolved. There has to be more than a ministerial, “We understand the importance of this and the difficulties, and that it needs to be sorted out”. The frank reality is that the time for sorting it out was yesterday, not today or tomorrow. It is about time that the Government got a grip of this, otherwise there will be very serious consequences further down the road.
My Lords, I thank noble Lords very much for participating in this short but powerful debate. I thank the noble Baroness, Lady Ritchie of Downpatrick, and second the point of view of the noble Lord, Lord Coaker, that you bring—I said “you” again; I am very sorry—an interesting and unusual perspective to this debate. I thank her for that. In answer to the noble Baroness’s question about the letter to my noble friend Lady Williams of Trafford, the noble Baroness will have a reply in a week that will outline the details she asked for.
The Government are clear: there will continue to be no routine immigration controls on journeys to the UK from within the common travel area, and none whatever on the land border between Ireland and Northern Ireland. That will remain the position when the ETA scheme is introduced.
It may be helpful if I explain that all individuals, other than British and Irish citizens, arriving in the UK, including those crossing the land border into Northern Ireland, already need to enter in line with the UK’s immigration framework. I think this goes some way to answering the point raised by the noble Lord, Lord Coaker, about the hypothetical American wife or French girlfriend. I think it also deals with the point made by my noble friend, Lady Neville-Rolfe. For example, visa nationals are required to obtain a visa for the UK when travelling via Ireland, otherwise they are entering illegally. We are therefore applying the same principle to individuals requiring an ETA who enter the UK via Ireland without one.
The noble Baroness, Lady Ritchie, referenced Article 2 of the protocol. The Government consider that the ETA scheme is compliant, and they will continue to consider their obligations under the protocol with regard to this. I want to reassure the noble Baroness that the process for obtaining an ETA will be quick and light touch. I am told that it will be not dissimilar to acquiring an American ESTA, which I am sure many noble Lords are familiar with. As many people will know, that is very straightforward and easy. Once granted, an ETA will be valid for multiple journeys over an extended period, minimising the burden on those making frequent trips, including those across the Northern Ireland border. I perhaps should have said that I have had considerable experience of crossing that border on numerous occasions.
In terms of the specific questions on the CTA, as far as I am aware, it has nothing to do with Brexit. It predates Brexit does it not? It goes back to 1923 and partition I think, from my dim and distant memory. I am sure I will be corrected if I am wrong. All CTA members are firmly committed to protecting the common travel area. I will reiterate this point: even with the introduction of ETAs, there will be no routine immigration controls on arrivals to the UK from elsewhere in the common travel area—only intelligence-led controls with no immigration controls whatever on the Ireland/Northern Ireland land border. Given the tone of the debate, I hope noble Lords will allow me to keep reiterating that point.
I thank the Minister for giving way. Could he outline to the Committee how these ETAs will operate. Where will the work be carried out? How will people complete the necessary requirements and what will be the cost? These are the issues that the people are asking. They do not want ETAs to be a disincentive to tourism, the local economy or business generally.
I thank the noble Baroness for that intervention. I am going to come on to a number of those points subsequently. In terms of cost, I am told it will be competitive with international norms. I have just referred to the ESTA programme in the States. I looked that up this morning in anticipation of this, and it is currently $14, so it is not overwhelming. In terms of the enforcement, which I think is at the heart of the matter, I will come to that in a second if I may.
There will be no controls whatever on the Northern Ireland land border. Individuals will be able to continue to pass through border control at first point of entry to the common travel area. As is currently the case, individuals arriving in the UK, including those crossing the land border into Northern Ireland, will need to continue to enter in line with the UK’s immigration framework. Obviously, that includes the ETA.
Many noble Lords, including the noble Viscount, Lord Brookeborough, have asked about the impact on tourism. The Government acknowledge that a clear communication strategy is obviously going to be key to tackling any misunderstanding about the requirements to travel to Northern Ireland. We are planning to work across government, utilising internal and external stakeholders and a variety of communication channels to ensure that the ETA requirement is communicated very clearly.
Can I just make one point? Northern Ireland is the size of Yorkshire. What the Minister is really stating is that somebody who goes on holiday to Yorkshire must not go to a neighbouring county for any reason without complying with this regulation. I am terribly sorry, but this is complete and utter rubbish. It is nonsensical and it is not going to work. What do people do if they go touring in Yorkshire? They tour outside it. If tourists go to Ireland, why should they not simply tour Ireland? No amount of communication will do—I am very sorry—and there is nobody to police it. What the Government are talking about is simply unworkable and disastrous.
I thank the noble Viscount—sort of. There will be no hard border. As I said, there is not going to be a hard border in Northern Ireland, and within the CTA there is effectively no change.
In answer to the point made by the noble Baroness, Lady Suttie, about enforcement, which was brought up subsequently as well, I have said it three or four times now: there will be no routine border controls on journeys from within the common travel area, which goes some way to answering the Yorkshire example. There will be none at all on the land border between Ireland and Northern Ireland. Everyone entering the UK, regardless of where they enter from—again, as I have said—is required to meet the UK’s immigration framework. In answer to “What’s the point of having it, then?”, anyone entering the UK without an ETA, or any form of immigration permission where required, will be entering illegally and may be subject to enforcement if encountered during intelligence-led operational activity.
I say gently to the Minister that he has to be really careful with language on things such as conforming to immigration policy and the UK border. The historic context of some of the language that he used means that he has to be really careful when talking about moving across borders or even saying that there will not be a border control but talking about complying with UK immigration policies.
I completely understand the point that the noble Lord, Lord Coaker, is making. I promise him that I am sticking very closely to the script. I am well aware of that.
I think I have dealt with most of the questions, albeit probably not to noble Lords’ satisfaction. What I cannot do, I am afraid, is commit to coming back on Report with anything, but obviously I am going to reflect very carefully on the tone of this debate—to go to the point made by the noble Lord, Lord Coaker—and take that back to the department.
Turning to Amendment 175ZA, I assure the House that the Government will conduct robust identity and suitability checks before granting an ETA. We will use the information supplied in the ETA application form to check against our watchlist system. However, as I am sure the noble Lord and the noble Baroness will understand, I cannot go into details of the exact checks that applicants will undergo or how those checks will be conducted, as to do so could undermine our ability to secure the UK border. Such a detailed commentary could provide those people whom we want to prevent from travelling to the UK sufficient information to attempt to circumvent our controls, undermining the very objective of the ETA scheme and the wider universal permission-to-travel requirement to enhance the security of our border.
The noble Baroness, Lady Hamwee, asked about what has happened since we left the European Union and lost access to the European Criminal Records Information System and the Schengen Information System. The UK participated only in the law enforcement aspects of SIS II, meaning that we could not, and did not, use SIS II information for immigration purposes. Therefore, having returned to the Interpol channels, we are now routinely exchanging information with EU member states on persons of interest, including missing and wanted individuals, and on lost and stolen documents. Moreover, through the EU-UK Trade and Cooperation Agreement, we continue to share criminal records with the EU for law enforcement purposes, including to assist criminal proceedings and for public protection. This is almost identical to the arrangement that we had under ECRIS as an EU member state.
I assure noble Lords that the confirmation of an individual’s status prior to travel will be a matter for the Home Office and their carrier. The onus will not be on the individual to produce evidence of their status to a carrier; instead, carriers will be expected to check and confirm with the Home Office that an individual has an appropriate permission before they bring them to the UK. It is our long-term ambition for all carriers operating scheduled services across all modes—air, rail and maritime—to use interactive advance passenger information, or iAPI, systems to provide passenger information to the Home Office in advance of travel. In return, passengers will receive confirmation of permission to travel prior to boarding.
iAPI is already a well-established mechanism used around the world, particularly by other countries that already operate travel authorisation schemes. None the less, the Home Office will undertake rigorous systems testing to ensure that our messaging to carriers works before the scheme goes live. We expect the likelihood of a technical malfunction occurring to be negligible.
In the unlikely event that a technical malfunction does occur—
I wanted to ask my noble friend about what happens when there is a technical malfunction, but I think he was going to answer that question. Having been caught out when the ESTA system went down when I was trying to go to California, I ended up missing my flight and having to go via Seattle, which took another eight or nine hours. It is important to have strong technical systems if you are going to rely on them, but it may be that there is a waiver or some arrangement that can be introduced.
I completely agree with my noble friend: obviously it is important to have well-established protocols in place if such a thing happens. I can assure noble Lords that the Home Office will ensure that passengers are not disproportionately impacted or prevented travelling to the UK. As is already set out in Clause 72, we will not penalise carriers where, due to a Home Office systems outage, it is not possible for them to establish an individual’s status.
On Amendment 186, the Government are steadfastly committed to the Belfast agreement and the two distinct birthright provisions in it: the right to identify and be accepted as British, Irish or both; and the right to hold British and Irish citizenship. In recognising the birthright of the people of Northern Ireland in respect of identity and confirming their birthright in respect of citizenship, the Belfast agreement is clear in guaranteeing that these rights already exist. It expressly and clearly said how and where the law should be changed in many areas but it made no such stipulation on this particular matter of identity.
This amendment would require the Home Secretary to propose stipulating a particular view of identity in law. Doing so would risk impinging on the freedom of the people of Northern Ireland to choose what their identity means to them. It would also amount to treating an integral part of the United Kingdom differently. The Government cannot accept such a proposition; nor can they accept an amendment that is contrary to the intention of the Belfast agreement.
I am aware that some of these answers have not satisfied noble Lords. As I said, I will reflect the tone of this debate back to the Home Office very carefully. I am also aware that I have not answered my noble friend Lord Moylan’s question about reciprocity; I am sure that he will forgive me for not even attempting to do so.
I invite the noble Lords not to press their amendments.
I thank all noble Lords who have contributed to this debate from across the Committee. I say to the Minister that I happen to agree with the noble Viscount, Lord Brookeborough: the proposal in Clause 72 is a nonsense and will be unworkable, not because people will not want it work but because it will be dysfunctional both physically and operationally. It will act as a disincentive to tourism and business, as well as to societal arrangements because many non-Irish and non-British people who live in the Republic of Ireland have family in Northern Ireland. There will be preventions there.
I urge the Minister to reflect on all the contributions that have been made today in his discussions with the Home Office. Again, I suggest that we will probably come back on Report with a further amendment on this issue because we do not want impediments placed in the way of our tourism industry, our economy, our business and the normal day-to-day travel of people who live on both sides of the land border, which is largely invisible as it stands. Noble Lords who have travelled a lot will know exactly what we are talking about.
For those reasons, I rather reluctantly beg leave to withdraw my amendment but reserve the right to bring it back on Report.
Amendment 175 withdrawn.
Amendment 175ZA not moved.
Clause 71 agreed.
Clauses 72 and 73 agreed.
Clause 74: Counter-terrorism questioning of detained entrants away from place of arrival
175ZB: Clause 74, page 79, line 7, leave out subsection (3)
My Lords, the short point that my noble friend Lord Paddick wanted to make, as he generally does, in leaving out Clause 74(3) is that, again, this seems to conflate immigration and terrorism. It extends powers to question people about involvement in terrorism at the border and applies the powers to people being detained under a provision of the immigration Acts, and so on. The objection runs like a thread through the Bill, to so many points. Immigration and terrorism are not the same. Not all terrorists are immigrants. Terrorists who have succeeded in the UK have been British, and if the Government allow, in legislation, the bias implied by the conflation of these two, no wonder others display the same bias. I beg to move.
This clause would extend the use of Schedule 7 to the Terrorism Act to people who have been detained under the immigration Acts and transported outside of a port or border area. Schedule 7 can be an important tool in the prevention of terrorism, but it has had a chequered past at times. It has been improved in recent years by the work of independent reviewers of terrorism legislation, two of whom we are now fortunate to have as Members of this House.
I have three or four questions for the Government on the provisions of Clause 74. Have the Government consulted on the extension of the power? Has the change been requested and, if so, by whom or by what body? Can the Minister give more detail on the scale of the problem this is designed to address? How many individuals are officers unable to stop and question under the current arrangements? How was the period of five days arrived at? For those who travel through conventional routes, does not the power have to be used pretty much immediately, in which case five days is a considerable extension? Finally, the powers apply provided an officer “believes” that the person arrived at sea, was apprehended within 24 hours of arrival, and it has been no more than five days since they were apprehended. What will that “belief” that the officer is required to have be based on? It would be helpful if the Government could give some responses to those questions.
I thank both Members of the Committee for their remarks. Schedule 7 examinations have been instrumental in securing evidence to convict terrorists, yielding intelligence to detect terrorist threats and supporting the disruption or deterrence of terrorist activity. Currently, officers may exercise Schedule 7 powers only when an individual is located within a port or border area as defined in the Act. Clause 74 will provide an added layer of protection to the existing processes in place for dealing with those who arrive irregularly by sea in the UK. I think that goes some way to answering the question of the noble Lord, Lord Rosser—they are arriving irregularly outside of ports. The Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, has stated:
“In principle, people arriving irregularly in the United Kingdom should be liable to counter-terrorism examination as much as those arriving at sea ports and airports.”
This clause ensures that, for those arriving irregularly by sea, such as via illegal channel crossings, this will continue be the case.
There are several reasons why those who engage in illegal channel crossings can be moved to a different location from their place of arrival very quickly after arriving. They can range from weight of numbers to the need to move the vulnerable or those in need of medical attention to more appropriate facilities. It is impractical and inhumane to keep large groups of people port side in order to give counterterrorism police an appropriate opportunity to exercise their current powers under Schedule 7.
I reassure noble Lords who tabled the amendment that this is by no means an attempt to treat all migrants arriving in this manner as terrorists, or to stop and examine large numbers of people away from ports and borders. Schedule 7 is not designed and cannot be used as a universal screening mechanism, and Clause 74 has been deliberately drawn to provide an appropriate time window for counterterrorism police to exercise their powers under Schedule 7.
To remove the effect of Clause 74 would impact our ability to determine whether those who are entering the UK in this way are involved in terrorism, impacting our national security. It would continue a scenario where those who arrive in the UK by conventional means are subject to powers to determine involvement in terrorist activity, whereas those who have arrived irregularly by sea, and about whom we have very little documented information, may not be.
I cannot answer precisely who has been consulted on this, other than the Independent Reviewer of Terrorism Legislation, and obviously the counterterrorism police will have a keen interest in how this debate develops. To answer on the numbers, this concerns those arriving irregularly by sea, outside established ports, under the existing rules. I could not tell you how many there are. The other questions impinge on operational matters, on which I am not qualified to comment. I therefore ask the noble Baroness to withdraw the amendment.
My Lords, the Minister said there is a deliberate time limit to these powers. I may be reading this wrong, but they apply to
“the period of 5 days beginning with the day after the day on which the person was apprehended”.
It is not five days from entry or arrival. I am not sure whether that would alter those points that the Minister suggested we take into account. But, since we are not even half way through the groups of amendments, I had better just beg leave to withdraw the amendment.
Amendment 175ZB withdrawn.
Clause 74 agreed.
Clause 75 agreed.
Clause 76: Tribunal charging power in respect of wasted resources
Debate on whether Clause 76 should stand part of the Bill.
My Lords, the noble Baroness, Lady McIntosh, has her name to the opposition to Clause 76 standing part of the Bill. I am happy to pick this up briefly, as she has had to leave.
Clause 76 gives the tribunals a charging power in respect of wasted resources. I do not know whether it is aimed at lefty, liberal lawyers, a group to which I would be proud to belong, although I do not think I quite qualify—lefty maybe, liberal certainly, but I am an ex-lawyer.
I am trying to read my notes, but I cannot understand what I wrote last night.
Perhaps while the noble Baroness looks at her handwriting, as a lefty, liberal lawyer, I say briefly to the Minister that the immigration and asylum system is the most unlevel playing field in our legal system. Tribunals were set up, as the Minister will remember, with the aim of people being able to represent themselves, not as places for expensive lawyers.
In the end, what happens is that the Home Office has some of the best lawyers in the country at its disposal, all the way up to the noble Lord, Lord Pannick, while refugees and asylum seekers struggle. The idea that the people who represent those refugees and asylum seekers in tribunals are going to be under threat of wasted costs will cause concern. It sends a signal that this is part of the Home Secretary’s agenda in her war on “activist lawyers” and whatever. This is not judicial review; we are talking about the tribunal system. We are not talking about people like me and the noble Lord, Lord Pannick, getting involved in the Miller 1, Miller 2 and Belmarsh cases—this is about people’s appeals. That is possibly the concern behind the amendment.
That is very kind of the noble Baroness. My handwriting is perfectly clear; it is just that it makes absolutely no sense for me to have written down the word “goodness” in the middle of this.
My short point is: is this really necessary? Are there not adequate discretionary powers in the tribunals to consider whether a legal representative has acted improperly or unreasonably and has wasted tribunal resources? What assessment has been made of the deterrent effect of this on taking on cases in the First-tier Tribunal or Upper Tribunal? It would damage our system if fewer lawyers felt prepared to do so. The clause extends to negligence but that is another matter; it is between a client and his lawyer and is surely a matter for the civil courts. Any award of damages would then go to the claimant, not, as is provided here, into the consolidated fund.
I have two amendments in this group that would allow for a charging power but for it not to be mandatory. Surely there are procedures for making, as it were, procedure rules. Those should be followed rather than the Government imposing this out of the blue through the medium of this Bill.
As we indicated in Committee in the Commons, we think that the provisions in these two clauses are unnecessary and should be removed from the Bill. The Bill requires the Tribunal Procedure Committee to give the tribunal the power to fine individuals exercising a right of audience or a right to conduct litigation, or an employee of such a person for “improper, unreasonable or negligent” behaviour. There are also issues about wasted costs. That kind of formulation could certainly have a somewhat chilling effect on the willingness of solicitors to take on difficult cases for fear of risking personal financial liability. I suppose that it might also extend to Home Office presenting officers, who would be similarly liable under the measure, but no doubt someone would pay any fine or penalty that they got so no need to worry as far as they are concerned.
As far as we are concerned, the immigration tribunals already have all the case management costs and referral powers that they need to control their own procedure. Giving new powers to immigration tribunals without establishing a basis in evidence for them is surely not warranted. The clauses will therefore make it harder for lawyers acting for people with immigration cases to do their job in immigration hearings. Surely all lawyers have a responsibility to uphold the rule of law and they are strictly regulated by several bodies to ensure that they act to the highest professional standard.
Frankly, and I think that this relates to the point that my noble friend Lady Chakrabarti was making, in acting for people subject to immigration control, among other things, immigration lawyers work with clients who may lack funds and legal aid entitlements, whose documents may be incomplete, missing or badly translated and whose statements as to their past experiences may be hard to secure on account of the ill treatment that they have suffered in their country of origin.
We share the concerns of the Immigration Law Practitioners’ Association and the Law Society that immigration lawyers are being needlessly targeted by the new costs orders and charge orders, which are not necessary and do not apply in other areas of law. Surely it is a well-established fact that access to justice includes equal protection under the law. That principle admits of no distinction between British nationals and foreign nationals, and those who are subject to UK law are entitled to its protection. Clearly this is aimed—put bluntly—at foreign nationals.
I am not sure that the Government have particularly argued their case. I have not really heard the evidence adduced to support the proposition being made or indeed to demonstrate that existing case management powers, wasted costs powers or the powers to refer to the regulator are inadequate to deal with such matters. Frankly, there must be a feeling that this is a proposal from a Home Office that does not like to see so many of its decisions overturned and wants to create the image that somehow it is due to foul play on the part of immigration lawyers, and not to a degree of incompetence from the Home Office in dealing with cases in the first place, that so many get overturned or that proceedings are taken at a fairly late stage in the process. If the Government are to deny that this is the case, it would be helpful if they could set out why and what their evidence or reason is for needing these powers, when surely those powers already exist as far as the tribunals are concerned.
The other point is that the measures could create the risk of a conflict of interest, because solicitors could find that doing the right thing for their client or following their client’s instruction puts them at risk of having to pay a financial penalty if somebody decides that that is acting in an unreasonable way. One might have thought that alarm bells would be ringing in the Home Office at the idea of putting in place a procedure that will, as I said, apply only to lawyers operating on behalf of non-nationals. As was said quite clearly in Committee in the Commons, a lawyer
“could go along to the immigration tribunal and do something”
“might do without facing consequences in the social security tribunal, employment tribunal, tax tribunal or any other tribunal”.
It looks as though some special provisions are being made in the case of immigration tribunals that could lead to some sort of financial penalty having to be paid and that do not appear to apply in other tribunals. No doubt the Minister will want to comment on that.
If we really want to know a reason for the Government’s decision, I think that it came from the reply received in Committee in the Commons. The Minister said:
“Costs orders are rarely made and are generally considered only at the request of the other party. To encourage more use of those existing powers, clause 63”—
as it was at that stage—
“provides a duty on the tribunal procedure committee to introduce tribunal procedure rules in the immigration and asylum chamber, which will lead judges to more regularly consider making a wasted costs order or an unreasonable costs order, or the new tribunal costs order introduced by clause 62”—
as it was then. He went on:
“That will ensure that circumstances and behaviours that have warranted the making of costs orders previously will more often give rise to judicial attention.”—[Official Report, Commons, Nationality and Borders Bill Committee, 2/11/21; cols. 575-76.]
There does not appear to be much of an argument that the existing powers are not there; it is just that the Home Office has decided that the judiciary is not using them sufficiently often to its liking, so it is bringing in these two clauses. This could lead to some of the consequences I have already mentioned. They clearly apply only to immigration tribunals and not other tribunals, and only to foreign nationals and not British nationals, even though there is meant to be equality for those being dealt with under UK law. I do not say it with any hope, but ask anyway that the Government think carefully about the road they are going down with these two clauses.
My Lords, I thank the three noble Lords who have taken part in this debate. I should note for the record that I do not see the opposers of Clauses 76 and 77 in the Chamber, but I will carry on.
The Government are committed to making the immigration and asylum system more efficient, while also maintaining fairness, ensuring access to justice and upholding the rule of law. Representatives and participants have a role in ensuring that appeals run smoothly so that justice is served. We are aware that there are concerns about the behaviour of some representatives in immigration proceedings which can waste judicial and tribunal resource, leading to delays in the tribunal process overall. We are seeking to strengthen the tribunal’s ability to tackle such conduct, in order to improve the efficient running of the immigration tribunals.
Costs orders are one of the mechanisms available to tribunals to encourage good conduct in proceedings. Currently, tribunals can make wasted and unreasonable costs orders which relate to the legal costs of the parties. However, these mechanisms are infrequently employed and generally considered only at the request of the other party. Clause 76 creates a new power for tribunals to order a party to pay an amount which represents a portion of the tribunal’s costs. I should stress and expand on the costs we are talking about. The value of costs orders to be applied to specific behaviours will be calculated by the tribunal according to a defined schedule of typical costs to it, rather than being set at an arbitrary or punitive level. The tribunal will not seek to recoup all its costs relating to a particular case, just the portion which can be attributed as wasted due to the specified unreasonable behaviour.
This will allow the tribunal to make an order in relation to wasted tribunal resources in the same types of circumstances which would currently warrant a wasted or unreasonable costs order. An order can be made against “relevant participants”, which means legal and other representatives exercising rights of audience, and the Secretary of State, where they are a party and do not have legal representatives. The noble Baroness, Lady Hamwee, asked whether this might act as a deterrent and ensure that fewer representatives want to take on immigration work. We think it right that representatives should explain themselves if they are responsible for circumstances to be set out in the rules as warranting consideration of a costs order. However, where there is a reasonable explanation, no order would be expected; the tribunal continues to have full discretion as to whether to make the order. Therefore, these changes should not impact legal representatives who fulfil their duties to the court and remain committed to their work and ensuring justice for their client. I hope that also goes some way to answering the questions raised by the noble Baroness, Lady Chakrabarti.
On the basis that the Government have a very clear idea of how many instances there are of unreasonable behaviour, how many of the cases dealt with over the last 12 months fall within the category of unreasonable behaviour, for which the Government would expect these costs orders to be activated?
To encourage increased consideration of whether to make costs orders, Clause 77 provides a duty on the Tribunal Procedure Committee to introduce tribunal procedure rules in the Immigration and Asylum Chamber, which will lead to judges more regularly considering whether to make a wasted costs order, an unreasonable costs order or a tribunal costs order under the new Clause 76 provision. That will ensure that circumstances and behaviours which have warranted the making of costs orders previously will more often give rise to judicial attention. Existing case law identifies the types of circumstances and behaviours which have led to costs orders being made or considered, and the principles applied by the courts. These have included showing a complete disregard for procedural rules through, for example, abusing court processes in relation to evidence or the timing of applications.
Clause 77 requires procedural rules which identify circumstances or behaviours that, absent reasonable explanation, the tribunal will treat as warranting consideration of the making of a costs order. The rules thereby introduce a presumption that requires the representative or other relevant party responsible for such circumstances or behaviour to explain themselves and why such a costs order should not be made. To ensure fairness, Clause 77 applies both to the party’s representatives and to the Home Office direct. This will ensure the regular consideration of costs orders by the tribunal. However, importantly, the tribunal will retain absolute discretion as to whether to make an order at all in all cases.
Amendments 175ZC and 175ZD to Clause 77 would reduce the mandatory nature of the provision to a more passive one. This would work against the Government’s intention for this clause, which is to encourage the more frequent consideration of costs orders where they may be warranted, while upholding the tribunal’s discretion to decide whether an order should be made.
I promised to try to get those details for the noble Lord, Lord Rosser, and I will do so, but for the reasons I have outlined, I urge noble Lords to withdraw their opposition and not press Amendments 175ZC and 175ZD.
Clause 76 agreed.
Amendments 175ZC and 175ZD not moved.
Clause 77 agreed.
Clause 78: Pre-consolidation amendments of immigration legislation
175A: Clause 78, page 81, line 20, leave out from “State” to end of line 24 and insert “must, no later than 31 December 2025, publish draft primary legislation to consolidate the Acts relating to immigration.
(1A) The Secretary of State must consult such persons as are appropriate during the period of six months following publication and shall report the result of the consultation to Parliament.”Member’s explanatory statement
This amendment removes the Henry VIII power in Clause 78 and replaces it with a duty to consolidate immigration law. It further requires consultation on this draft consolidation.
My Lords, on Tuesday the noble Lord, Lord Wolfson, brought into the Chamber the Criminal Law Handbook and referred to its size. “Handbook” is a bit of a misnomer because lifting it could break one’s wrist, but it is as nothing compared to the immigration legislation and the Immigration Rules. The rules are too many to print; one has to access them online—unless things have changed in the last year or two.
Clause 78 allows the Secretary of State, by regulations, to make “amendments and modifications” such as are
“desirable in connection with, the consolidation of the whole or a substantial part of the Acts”
listed. Perhaps it is a secondary point to remark on the potential confusion of consolidating a part of, but not the whole of, an Act. We know the difficulties with regulations—certainly, we in the Opposition would call them difficulties—the problems of scrutinising and debating them, and the impossibility of amendment.
We have been promised the consolidation of immigration law for I do not know how many years. Has it got stuck in the quagmire of legislation, or is it just that it is too difficult? It is obviously recognised that there is a problem, but I am not convinced that Clause 78 is the solution: I think it may be an addition to the problem. More in hope than expectation, I have tabled Amendment 175A—Amendment 176A is consequential on it—in order that we publish draft consolidating legislation by the end of 2025 and then consult on the work.
I do not know whether I am doing an injustice to what is proposed. Clause 78(4) proposes that regulations be made after consolidation of
“the whole or a substantial part of the Acts.”
That gives rise to potential confusion. The big question is whether the Minister has news of the consolidation exercise. I find it a little odd to provide here for regulations that cannot be made until after this long list of Acts is consolidated. I beg to move.
I advise the Committee that if this amendment is agreed to, I will not be able to call Amendment 176 by reason of pre-emption.
As the noble Baroness, Lady Hamwee, has said, this clause gives the Secretary of State the power by regulation to amend immigration legislation in order to make pre-consolidation changes for the purpose of facilitating a consolidation Bill. It provides a power for the Secretary of State, by regulation, to make those amendments and modifications to Acts relating to immigration that
“in the Secretary of State’s opinion facilitate, or are otherwise desirable in connection with”
the consolidation of the Acts. It also provides that regulations made under this section do not come into force unless a consolidation Act is passed.
The consolidation of immigration law has long been sought and is a recommendation of the Windrush Lessons Learned Review, which was published in July 2018 and said:
“It is widely accepted that immigration and nationality law is very complex.”
We strongly support the consolidation of our complex and unwieldy immigration law as recommended by the Windrush Lessons Learned Review, but we share the concerns already expressed about the provisions of this clause, not least the part that I have already referred to—namely, the extremely broad powers it seems to give the Secretary of State to amend and repeal provisions that
“in the Secretary of State’s opinion facilitate, or are otherwise desirable in connection with”
the consolidation of the Acts.
We support the addition of a requirement for the Secretary of State to consult appropriately before making regulations under this section. I hope the Minister, on behalf of the Government, may be able to give some encouragement on that score. Is it intended that the Home Secretary would consult before undertaking such a task? If not, why not? If so, would the Government see fit to include that requirement in the Bill?
I have another question on the issue of regulations under this section. On what issues or matters are regulations under the section necessary that could not be achieved in the primary consolidation Bill? There appear to be two stages. What is it that has to be achieved by these regulations, under which the Secretary of State has such broad powers, that could not wait or be enshrined in the primary consolidation Bill?
As I think the noble Baroness, Lady Hamwee, asked, can the Minister give the House an update on when we might be able to expect a consolidation Bill? Has the Law Commission been tasked to consider immigration statute? If so, what progress or otherwise is being made? I hope the Minister may be able to address some of the concerns expressed over the drafting of this clause, the possible interpretation of what it might mean and the powers that it might give to the Secretary of State.
My Lords, I am grateful to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser, for their contributions to this debate. Amendments 175A and 176A remove the power to make regulations to facilitate the consolidation. We have to be clear about the scope of the regulation-making power. It cannot be used to make policy changes; it can be used only to ensure the future consolidation of the whole or substantial parts of the Acts relating to immigration listed in the clause. Subsection (4) is clear that regulations made under this power do not come into force unless such a consolidation Act is passed.
The regulation-making power is limited to changes to facilitate the consolidation, such as updating terminology and aligning any inconsistencies. It is standard practice to take such a regulation-making power when consolidating legislation, and this power is drafted in terms familiar to Members of the Committee.
The noble Baroness, Lady Hamwee, asked for news of the consolidation process, and the noble Lord, Lord Rosser, echoed that call. Without the power, any inconsistencies in many immigration Acts could not be resolved as part of consolidation; it would require further primary legislation, which would delay, potentially for some time, the important work to consolidate immigration legislation, which has started. The Law Commission has already started its work on consolidation, and it hopes to complete that work in 2023. It is unlikely that the timetable will be met if further primary legislation is required to address inconsistencies or issues which need to be resolved to facilitate consolidation and which could otherwise have been dealt with within regulations before the consolidation Act can be finalised.
Members of the Committee are concerned about the ability to change primary legislation by regulation. The regulation-making powers are necessary to ensure that if amendments are identified which facilitate or are otherwise desirable in connection with the consolidation, they can be made for that purpose, but I seek to provide the Committee with further reassurance that appropriate safeguards are in place. The safeguards are twofold. First, the regulations are subject to the affirmative procedure, so any attempt to go beyond what is necessary to facilitate consolidation can be identified in scrutiny by both Houses. Secondly, the Joint Committee on Consolidation Bills will review this Bill, ensuring that it does not start amending the law beyond minor corrections and improvements.
The amendments would also impose a duty to consolidate and a duty to consult. Amendment 175A requires publication of a draft Bill, a consultation and a report on that consultation within six months of publication. Under that amendment, there is no regulation-making power. I am grateful to the noble Lord, Lord Rosser, for reminding the Committee that the impetus behind consolidation of immigration law stems from the Windrush Lessons Learned Review, and these procedures follow from that recommendation that the simplification of immigration law be desirable. For the reasons given, I invite the noble Baroness to withdraw her amendment at this stage.
My Lords, the impetus started a long time before the Williams review. It is quite some time since I had a proper clear out of my filing cabinet in this building, and when I last did—many years ago—I found a whole lot of material relating to consolidation. I cannot remember whether I kept it or not. If the impetus had been acted on then, there would have been no need for the Wendy Williams recommendation or, more importantly, for what we all know happened to have happened. I thank the Minister for that really interesting response. I had not begun to appreciate the context of this clause, which is no doubt because of my failure to look at all the relevant information, as I could have done if I had researched it.
I take this opportunity to make a point about the regulations to which the Minister has referred, which will be necessary to enable the work that is being undertaken by the Law Commission. I ask that the Explanatory Memorandum for each of those statutory instruments—I assume that that is what they will be—explains fully why each is being proposed. Otherwise, it will be impossible for the outside world and difficult for our pressed Secondary Legislation Scrutiny Committee to understand what is going on and give the appropriate responses.
The Minister started by saying that this would remove the regulation-making power. Of course, that was done in order to enable the amendment that I proposed, which was for a different approach to consolidation—I just want to make that clear. The Constitution Committee welcomed the general purpose of the clause and urged the Government to proceed with consolidating immigration law, but it said that
“this does not get to the root of the problem, which is that the law in this area needs to be simplified and made more intelligible. We urge the Government to prioritise simplification, in addition to consolidation. As part of this process the Government should consider imposing a greater degree of parliamentary scrutiny over delegated powers relating to immigration law, including the immigration rules under section 3(2) of the Immigration Act 1971.”
That will be a familiar plea or cry. I beg leave to withdraw the amendment.
Amendment 175A withdrawn.
Is Amendment 176 not moved? Would the noble Baroness, Lady Hamwee, like to move it?
176: Clause 78, page 81, line 24, at end insert—
“(1A) The Secretary of State must consult with such persons as the Secretary of State considers appropriate before making regulations under this section.”Member’s explanatory statement
This amendment requires the Secretary of State to consult before making regulations under this section.
As the noble Baroness, Lady McIntosh, is not here, I wanted to say that her point about consultation was well made, but what I think is particularly important in this group is Amendment 194A, in the name of the noble Baroness, Lady Ritchie, which should not be left until goodness knows what time. I beg to move.
My Lords, I rise to speak to Amendment 194A in my name and those of my noble friend Lord Dubs and the noble Baroness, Lady Hamwee. The bottom line is that, independently of each other, we have had various meetings with the Equality Commission and the Human Rights Commission in Northern Ireland, which are deeply concerned about the extent provisions in Clause 82—hence our amendment. It seeks to exclude Northern Ireland from the operation of Clauses 57, 58, 60, 61, 62 and 67 in order to ensure that there is no diminution of the rights of victims of trafficking in Northern Ireland and to avoid the potential breach of Article 2 of the protocol in this regard.
I urge the Minister and his colleagues in the Home Office to have discussions about this issue with the Executive Office in Belfast and both commissions because, first, certain provisions, which have been outlined by the noble Lord, Lord Morrow, underline that many of these issues are already devolved in Northern Ireland. Secondly, I urge them to do so because the Ireland/Northern Ireland protocol exists, and both those commissions have direct responsibility for ensuring that Article 2 of the protocol is adhered to and that there is no diminution of such rights—or such rights under the Belfast/Good Friday agreement.
What consideration was given to Article 2 of the protocol in the development of this legislation? I urge that Article 2 be considered and complied with throughout its implementation and the development of regulations and guidance. Depending on the answer that we receive this evening, we reserve the right to bring this amendment back on Report. I look forward to the Minister’s response on this issue, particularly about what consideration was given to Article 2 of the Ireland/Northern Ireland protocol in formulating and devising this legislation.
We indicated in the debate on the previous group our support for the need both for the Secretary of State to consult before making regulations as part of consolidation and for the Secretary of State’s powers to be properly defined. For the same reason, we support the aim of two of the amendments in this group on consolidation and transitional and consequential provisions.
I will be particularly interested to hear the Minister’s response to the amendment in the name of the noble Baroness, Lady Ritchie of Downpatrick, which, as I understand it, reflects concerns raised by the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland. As I think the Government will be only too aware following today’s debates, we do not believe that these clauses should apply in any part of the UK. Nevertheless, we also want to ask what specific consideration was given to the impact of the changes provided for in these clauses in the light of the withdrawal agreement and Northern Ireland protocol as negotiated by this Government and raised by the noble Baroness, Lady Ritchie. These are important issues that, if not handled properly, could potentially cause difficulties and further problems.
I hope that the Minister will be able to give the Committee some clarity on how the relevant clauses in Part 5 of the Bill interact with devolved matters and existing devolved legislation in Northern Ireland on modern slavery and trafficking. As my noble friend Lord Coaker indicated, the inclusion of Part 5 in the Bill was a bit of a surprise to many people. Were the devolved Administrations, not least that in Northern Ireland, consulted on these provisions in advance of the Bill being introduced? I echo the concerns raised by the NIHRC and the Equality Commission that the Government’s actions on modern slavery, including the provisions in this Bill, might serve to diminish existing rights and protections for victims. Obviously, I hope that, in his response on behalf of the Government, the Minister will be able to put any concerns expressed during this debate to rest. We await the Government’s response with interest.
My Lords, the Bill will not reduce the rights and protections in relation to modern slavery and trafficking. Accordingly, there can be no diminution of rights under Article 2 of the protocol. The Bill complies with all our international commitments, so I do not think that this amendment is necessary—in fact, I think that it could do harm. It could exclude some, but not all, of the Bill’s modern slavery provisions from extending to Northern Ireland, which would only create disparities across the United Kingdom. In turn, this would create a potentially damaging lack of certainty for potential victims of modern slavery and decision-makers.
I am not in a position to answer the request from the noble Baroness, Lady Ritchie, for an account of the consultation between the bodies that she identified and those preparing the Bill but, if she wishes, I am prepared to undertake to correspond with her on that topic if that would be satisfactory at this stage.
My Lords, I know that the lead amendment is Amendment 176, and I did not really speak to it, but I am very glad to have heard that offer from the Minister. As I think I said earlier, I also had a meeting with the two commissions, and I was very keen that the points raised by the noble Baroness could be pursued. But I beg leave to withdraw Amendment 176.
Amendment 176 withdrawn.
Amendment 176A not moved.
Clause 78 agreed.
177: After Clause 78, insert the following new Clause—
“Afghan Citizens Resettlement Scheme
(1) The Secretary of State must, in regulations subject to affirmative resolution procedure, provide for a resettlement scheme for Afghan citizens known as the Afghan Citizens Resettlement Scheme (“ACRS”).(2) There must be provisions within the ACRS to allow those who are fleeing persecution and have family members in the United Kingdom to apply for the Scheme.(3) For the purposes of this section, “family member” includes—(a) the spouse of the applicant;(b) an unmarried partner with whom the applicant is in a stable relationship;(c) any children of the applicant; (d) a parent or guardian of the applicant;(e) an aunt, uncle or grandparent of the applicant; or(f) a sibling of the applicant.(4) Regulations under this section must be made and the ACRS must come into force within 30 days from the date of the passing of this Act.”Member’s explanatory statement
This new Clause will place the Afghan Citizens Resettlement Scheme on a statutory footing and ensure that it includes provisions for a family reunion route within it.
My Lords, in this group I have the lead Amendment 177, which puts the Afghanistan citizens resettlement scheme—ACRS—on a statutory footing and includes provisions for family reunion. Noble Lords will know that the ACRS finally opened on 6 January—the day after this Bill had its Second Reading. That was after a delay of five months. The scheme is separate to the ARAP scheme—the Afghan relocations and assistance policy—on which the noble Baroness, Lady D’Souza, had tabled her welcome and important amendment.
I have a number of questions and comments to make on this important group. The Government have promised to resettle up to 20,000 people under the scheme. I wonder whether the Minister has any idea about the time period in which the 20,000 will be resettled? What oversight mechanisms will be in place to ensure that the promise is delivered, and who will be included in that total? Ministers have promised that 5,000 people will be resettled under the scheme in the first year: how many of them are already here? Will the Minister tell the House how many additional people will be arriving under this scheme in the next six months—what the Government’s aim and estimate of that is?
The crucial point is that the Government have not included a family reunion route in the scheme, which this amendment seeks to address. The Government’s stated aim in the Bill is to prevent people making dangerous journeys, but does the Minister not agree with our concern that those who are at risk from the Taliban—and who have family in the UK or have family members who are resettled here—are at extremely high risk of taking desperate and dangerous journeys in order to be reunited?
We strongly support the Government seeking to provide safe and legal routes out of Afghanistan, but a family reunion stream must be part and parcel of that resettlement plan. The longer we do not act to provide a safe family reunion route, the more likely these dangerous journeys are to be made at the hands of people smugglers. There are significant numbers of people who are eligible for the scheme who have already fled Afghanistan due to the urgency of the danger they faced. Can the Minister give more information about how those who are now in a third state will be included in the scheme? We have waited five months for the scheme to be open at all; why is it that this route into the scheme has not opened yet?
My Lords, as the noble Lord, Lord Coaker, has said, my amendment falls within this grouping.
This new stand-alone clause would expand eligibility for the ARAP scheme by amending the Immigration Rules. It would insert into the rules the current Home Office guidance on the extended eligibility for the relocation of additional family members. This amendment would also narrow the basis for those who would otherwise be eligible for relocation under ARAP being excluded from the scheme. This would bring the ARAP provisions into conformity with the standards set out in the 1951 refugee convention—including, for example, ensuring procedural safeguards in relation to any exclusion decisions.
The ARAP scheme is a considerable improvement on previous policies on the UK’s support for former interpreters and staff in Afghanistan, but it remains restrictive. Further narrowed eligibility criteria were introduced in December, including heightened risk thresholds. Most recently, the Government have indicated that approximately 6,500 Afghan evacuees—plus those who, although called up for evacuation, did not manage to get on the flights—will now be included in the commitment made under the ACRS, thereby significantly reducing the number of places available, as the noble Lord, Lord Coaker, said. The UK is reneging on its promise to evacuate all those who contributed towards its security interests. We should remember, for example, that Canada has offered 40,000 resettlement places. We stand quite low on the chart of resettlement. This amendment would ensure that all those who worked for the UK Government and whose lives and security are at risk precisely because of their association with the UK are eligible for relocation under category 1 of the ARAP scheme.
Finally, this amendment would insert into the Immigration Rules a route for additional family members of locally employed staff to apply for relocation on terms no less favourable than current guidance, meaning anyone beyond a spouse and children under 18 years old, which in turn would enable proper family reunification. In speaking to my amendment, I reiterate the obligations that the UK holds not only under the international convention but as a responsible employer.
My Lords, I would briefly like to support both amendments. There is an advantage in putting both ACRS and ARAP on a statutory footing. It is important to understand the need to add a right to family reunion. The fact that the 15,000 people we got out have been given only temporary leave to remain—they do not have refugee status as such, and they are not entitled to any family reunion rights—is shabby, to be honest, and it would be good to put it right, as the amendment tabled by the noble Baroness, Lady D’Souza, would do.
I have only one query about the amendment. The conditions on links to the UK and help to the UK which would justify inclusion in the scheme are quite tight. One of the conditions applies to any person who worked in Afghanistan
“alongside a UK government department”.
Is the British Council a UK government department? Is the World Service a British government department? That seems to me a little too narrow—but the spirit of the amendment is absolutely right. It is important to avoid being shabby. We suffered a serious defeat, but we really need not suffer dishonour.
My Lords, I support both amendments. It is in some ways unfortunate that ARAP and ACRS have to be debated in the context of a Home Office Bill, where, on this occasion, we do not have representatives of the MoD and the FCDO. Normally, I raise these issues with the noble Lord, Lord Ahmad, the Minister of State in the FCDO. There is very clearly a foreign policy dimension to these two amendments, so, in many ways, I hope the Minister—I assume it will be the noble Baroness, Lady Williams, who will respond to this group—will have conversations on a cross-departmental basis. Clearly, the decisions on who comes into our country and whether they are deemed to meet various issues associated with terrorism—checking each individual to make sure that they have been properly processed and so on—is a Home Office matter, but the wider set of issues links back to our role in Afghanistan, and our moral duties to tens of thousands of people go back to the 20 years we were in Afghanistan.
There are two amendments which are clearly related and if we had more time—if we had seven, eight or nine more days of debate—we could debate them all separately. We have been told clearly on numerous occasions by the MoD and the FCDO that the ARAP scheme, as currently defined, is not time limited, nor are the numbers of people who can apply to ARAP limited. However, although the scheme was lauded by the Secretary of State for Defence when launched in April last year, before the US withdrawal from Afghanistan, it was limited in December—I think the noble Baroness, Lady D’Souza, has already pointed that out. We had a scheme which was fit for purpose, just about. Some of the people who were evacuated under Op Pitting have come under ARAP, and that is most welcome, as it is a more generous scheme than the ACRS.
It is to be very much welcomed that people have come in under ARAP and that more are still entitled to do so, but I very much support the noble Baroness, Lady D’Souza, on Amendment 193A because it may be limited. The noble Lord, Lord Kerr of Kinlochard, asked, “It seems to be narrowly defined. Does it include the British Council?” I very much hope that it does because some of those who were called forward in August were from the British Council. Others called forward have still not made it to the UK; others have now been told “You were going to be part of ARAP; now you have to apply on a case-by-case basis under the ACRS.” That is not good enough.
The noble Lord, Lord Patten of Barnes, said from a sedentary position “and Oxford University”. I think the spirit of this amendment says, “We believe there is a duty to people who worked with us in Afghanistan, whose lives are now at risk precisely because they did so, teaching English and British values, and supporting those values as part of our activities there.” We have a duty to them.
If the Minister says, as I suspect she will, that she cannot accept Amendment 193A, will she at least consider ways in which opportunities can be brought forward to ensure that those people whose lives are at risk today are looked after? I have received so many representations, as I am sure other noble Lords have, from individuals of Afghan heritage—people who may be dual nationals here—saying that their uncle, cousin or father is at risk now. The Taliban are knocking at their doors now. What are the Government going to do?
On the ACRS, it is welcome that we now know how people can apply. But how depressing it is that individuals cannot put their names forward under the ACRS and that the assumption is that most of the 5,000 people who are to be eligible this year are probably already in this country? Is that sufficiently generous? Do we not need to look again at the ACRS? If the Government really think that the routes to that scheme should be through representations by the UN—maybe because they have worked for the British Council or Garda World as interpreters—that is great, but what about individuals and their families? Surely there should be an opportunity for wider family reunification, as outlined in Amendment 177. There are many issues to consider and I hope that the Minister will be able to answer some of them this evening.
My Lords, I intervene briefly to support Amendment 193A in the name of my noble friend Lady D’Souza, the remarks made by the noble Lord, Lord Coaker, and particularly those made just now by the noble Baroness, Lady Smith of Newnham. She will not mind me saying so, but hers was the speech of the debate we had recently in the Moses Room, where we were discussing the International Relations and Defence Select Committee report on Afghanistan. The noble Baroness, Lady Smith, and I served on that committee. We both made some of the points which have made again today about resettlement and the need to reach out.
One of the other extraordinary speeches in that debate, if the Minister has not had a chance to read it, concerned what the noble Baroness just said about the importance of interdepartmental dialogue and discussion, which was represented in a way during that debate because we had the Foreign Office—the noble Lord, Lord Ahmad of Wimbledon, replied—as well as the noble Baroness, Lady Goldie, of the Ministry of Defence, who has been engaged with this issue too. That is a really important point about the need for joined-up government and it is an excellent report, which I commend to the Minister.
Returning to a couple of questions that were asked directly of the Minister during the debate, the British Council was raised; I think, in parenthesis, my noble friend Lord Kerr also referenced the BBC World Service. Only yesterday I wrote to the noble Lord, Lord Ahmad of Wimbledon, copying in the Minister, about the situation of 60 Afghan journalists who worked for the BBC in Kabul. It is to the credit of the British Government that they are now here in London. However, the point I made was that as a result of the reduction in our aid programme, in cutting from 0.7% to 0.5%, the BBC is not now in a position to offer contracts to those 60 and it looks as though only 26 will be employed.
That brings me to my next question, about integration. Some of those who have arrived here from Afghanistan have been put in pretty grim accommodation. The Minister may recall that I wrote to her about one of the hotels in which some were based here in London. Some have now been relocated to where I live, Lancashire. The conditions in one of the houses that I had described to me recently were pretty awful. Even worse, the father of the family, who was a major in the Afghan army, and whose life would obviously be at great risk from the Taliban, is unable to get a job at the moment. This comes back to the right-to-work discussions that we had earlier in the proceedings on the Bill. What can we do to help people in that position?
The Minister will recall that earlier in our proceedings I raised the issue of language. My wife, in “retirement”, as a speech and language therapist, does two days a week as a volunteer in Lancashire, teaching English to people who have arrived as refugees and asylum seekers. They now include some of the Afghan arrivals. I will not go into the tragic details of some of those whom she has been working with or some of the trauma that has been experienced by the children of some of those families, but I urge the Minister to build on the intervention that was made by the right reverend Prelate the Bishop of Durham last week about the importance of English as a second language. If we do not provide the opportunity of learning English, opportunities for employment and integration will be minimal indeed.
This amendment is good. No doubt it can be improved between now and Report. Perhaps more can be done to ensure the successful resettlement of those who have already reached here, and we will not leave it to people such as the noble Baroness, Lady Kennedy of The Shaws, to hire private aeroplanes and persuade businessmen in Britain, generous as they have been. She specifically mentioned Sir Michael Hintze, who paid for a plane to come from Kabul full of people who had been lawyers, judges, journalists, human rights defenders—people at risk. It should not be left to private citizens to do that. I know the Minister sufficiently well to know that she would share that view. Therefore, I hope that we can build on this amendment to some extent.
My Lords, I thank all noble Lords who have spoken in this debate. I agree with almost everything that noble Lords have said. Our actions have spoken louder than our words in the last few months, in the efforts that have gone into helping those people most vulnerable in Afghanistan and getting them out. On government join-up, I could not agree more. We do not always do well on that as a Government but it is what we have attempted to do. It is undoubtedly true that MoD, FCDO and Home Office join-up has been crucial here. We have a proud history of supporting those in need of our protection and I understand and agree with the concerns that noble Lords have about the plight of the people from Afghanistan.
I turn first to Amendment 177, on putting the Afghan citizens resettlement scheme on a statutory footing; this is probably the one thing I do not agree with, given how we operate as a Government and the flexibility we need to adjust to different crises and situations around the world. During Op Pitting, the Government and military worked around the clock to airlift about 15,000 people out of Afghanistan; it was the biggest airlift from a single country in a generation. We have relocated thousands of people who loyally served our military in Afghanistan and continue to help more.
In addition, the ACRS has now commenced—it includes female judges, whom the noble Baroness, Lady Kennedy of The Shaws, and I are so concerned to help. As the noble Lord, Lord Coaker, said, it will provide 20,000 people at risk with a new life in the UK. We initially planned for 5,000 people in the first year; we have exceeded that and now have 6,500. The timescale for the 20,000 will depend on national and local authority capacity to support that resettlement. I know that he will understand that. As to the point of the noble Lord, Lord Kerr, they will all receive ILR—that is quite clear.
The reason why we keep this non-legislative, operating completely outside the Immigration Rules and on a discretionary basis, is that it provides flexibility to respond to changing international events—and there is absolutely no doubt that they are changing rapidly. Placing the ACRS on a statutory footing might make it more difficult for us to respond flexibly when and if we need to, which was essential in the aftermath of the Afghan crisis.
We play a leading role as one of the world’s largest refugee resettlement states. However, we cannot provide protection through resettlement to absolutely everyone, as I think the Committee recognises. It is essential that any decisions regarding resettlement take that capacity consideration into account.
The purpose of the ACRS, as noble Lords know, is to provide a route to safety for those at risk and in need of protection due to the situation in Afghanistan, rather than to provide a route to family reunion. This is because those routes already exist; I will say more about them in a minute. There are established family routes for both refugees and non-refugees resident in the UK to bring eligible family members here. The UK has a generous approach; since 2015, we have granted more than 39,000 refugee family reunion visas, over half of them to children.
This amendment seeks to bring the ACRS into force within 30 days from the date of Royal Assent to this Bill. However, as I am sure the Committee will understand, it is already in operation, having commenced last month.
Amendment 193A from the noble Baroness, Lady D’Souza, is on the Afghan relocations and assistance policy. We remain eternally grateful to all those Afghan nationals who put their lives at risk working for or alongside the UK military and UK government departments in Afghanistan. They were critical to our safety and mission over 20 years and it is absolutely right that they and their family members are now supported by the UK. That is why the ARAP scheme was established last April; it has already seen over 8,000 people relocated in the UK, many as part of the 15,000 people that we safely evacuated from Afghanistan last summer. Rightly, eligibility for ARAP has already been expanded several times since it was launched: first, to include people who had resigned from service; then to include people who had been dismissed for all but serious or criminal offences; and then last December to include people who had worked alongside, rather than directly for, Her Majesty’s Government, and their non-Afghan family members. The effect of the changes has been significantly to expand eligibility for the scheme, which I remind noble Lords is neither capped nor time limited.
My understanding of the ARAP scheme was that it was widened to some extent to allow those who may have been dismissed for minor offences to be included, but that the most recent changes, towards the end of 2001, reduced eligibility, particularly for certain groups of people who had worked with the British Council as contractors, so those in the second wave were no longer eligible and would have to apply under the ACRS and not ARAP.
I think the noble Baroness probably meant 2021 rather than 2001, but it is late and we are not going to split hairs over that—I know what she means. I understood that the scheme had been expanded, but I will clarify that in writing, because what she said is contrary to what I have been briefed. I recall that the scheme was expanded because of pleas in both Houses about the various cohorts of people who might be caught or excluded under the scheme. I do not have specific information about the British Council or indeed the BBC, but that is what I shall write to the noble Baroness on if she is amenable to that.
Of course, we are aware that there are people still in Afghanistan and neighbouring countries who are eligible for relocation under ARAP, and the Home Office is working closely with the MoD and the FCDO to ensure their safe passage here. I think it was the noble Lord, Lord Alton, who talked about jobs. People who have come here from Afghanistan are often highly qualified. It was brought up the other day, I think in the Home Office, about how each department could help in the endeavour with people who have such skills. I shall include in the letter some of the detail on that. It was mentioned almost en passant, but I know that departments are reaching out, as is the private sector.
On the sentiment behind this amendment, which would widen further the criteria, I do not think that the changes suggested are needed in primary legislation. The Immigration Rules are designed to be flexible so that they can be altered where necessary, with the approval of Parliament, to enable us to make changes such as those I have already talked about. Having them prescribed in primary legislation would prevent the Government responding quickly, as I said earlier.
The specific changes put forward are quite marginal. The ARAP rules as drafted, and changed as recently as December, provide us with the requisite flexibility to include those who made a substantive and positive contribution to the UK’s objective in Afghanistan either directly or alongside a UK government department and who are now at risk as a result of that, and to allow them to come to the UK. That was always the intention behind the scheme, and it continues to be delivered.
On additional family members, to which the noble Lord, Lord Kerr, referred, the ARAP rules reflect the wider immigration system in that principals can be joined by spouses, civil partners, durable partners and children under 18. It is absolutely right that they are consistent with other routes to the UK. However, as the amendment notes, in June last year we published guidance on how additional family members can join principal ARAP applicants here outside the rules where there are specific levels of dependence or risk. This option has been widely used, and it provides us with greater discretion than would be the case if prescriptive criteria were set out in the rules.
The noble Baroness, Lady Smith of Newham, asked whether we will look at other opportunities. It is a most horrendous situation and so of course we are looking at other opportunities for how we can get people out. However, I conclude by saying that I think the ARAP scheme thus far has been a great success, fraught with difficulty though it is. It has provided relocation to more than 8,000 people, with a similar number yet to come. We think the rules in place strike the right balance and I hope the noble Lord will withdraw the amendment.
I thank the noble Baroness, Lady Williams, for her reply. There is no doubt that the Government have made some progress in bringing out of Afghanistan people who supported us and worked with us in our hour of need. She gave us an interesting figure: rather than 5,000 people, which was the target in the first year, I think I am right in saying that there were 6,500 people. We all welcome that and appreciate the efforts there. Alongside that, though, there are still people who should be being helped who we are not able to help. That is the purpose of the amendments before us. All of us are searching for ways to speed this up and accelerate progress, to make sure that the people who helped us are helped.
It would be interesting at another time for the Minister to say more about the other opportunities the Government are exploring to help more people in future—in other words, to adapt and amend the scheme. We would all be interested in those other opportunities and actions the Government are taking.
This is an issue we will continue to come back to. It is right for all of us to continue to put pressure on the Government over this, but I am grateful for the reply and I seek leave to withdraw the amendment.
Amendment 177 withdrawn.
178: After Clause 78, insert the following new Clause—
“Indefinite leave to remain payments by Commonwealth, Hong Kong and Gurkha members of armed forces
(1) The Immigration Act 2014 is amended as follows.(2) In section 68(10), after “regulations” insert “must make exceptions in respect of any person with citizenship of a Commonwealth country (other than the United Kingdom) who has served at least four years in the armed forces of the United Kingdom, or any person who has served at least four years in the Royal Navy Hong Kong Squadron, the Hong Kong Military Service Corps or the Brigade of Gurkhas, such exceptions to include capping the fee for any such person applying for indefinite leave to remain at no more than the actual administrative cost of processing that application, and”.”Member’s explanatory statement
This new Clause will ensure that Commonwealth, Hong Kong and Gurkha veterans applying for Indefinite Leave to Remain following four years of service will only pay the unit cost of an application.
My Lords, I am sorry, but it is me again. I am the second signatory to this amendment. I spoke to the noble Lord, Lord Dannatt, earlier, and he sends his apologies to the Committee; he has had to leave but has asked me to move Amendment 178. I also support Amendment 185 in this group, in the name of the noble and gallant Lord, Lord Craig, but I will leave him to speak to that.
Amendment 178 deals with an issue that has huge cross-party support and that has been raised for years. Most recently, we tried to fix this in the Armed Forces Act, and now we are trying again to fix it here. The amendment seeks to prevent Commonwealth veterans being charged frankly extortionate fees to remain in the country that they fought for.
I have some questions. Does the Minister agree that this is not a general immigration issue but is about the treatment of people who have served our Government and our country? Parliament has repeatedly been asked to wait for the Government’s response to the consultation, but the consultation closed in July 2021, so where is it? The Government’s consultation is based on a possible reduction of fees after 12 years of service, but the former Defence Minister, Johnny Mercer MP, said that that number was
“plucked out of the air”.—[Official Report, Commons, 7/12/21; col. 300.]
Can the Minister explain why the figure of 12 years has been consulted on, rather than the four or five years in Amendment 178, for which there is widespread support?
It is difficult to understand why the Government are so reluctant to act on this. How much would it cost to implement, if done on the terms of this amendment? Can the Minister confirm that, since 2010, the fees have increased from £840 per person to £2,389 per person? What percentage of the current fees being charged to service men and women—more than £10,000 for a family of four—is profit?
This support for our Commonwealth veterans is long past being debated. There is huge support for this change and it is about time the Government got over just giving us warm words and actually acted. I beg to move.
My Lords, I have put my name to both these amendments. I shall speak to Amendment 185, in my name and those of the noble Lords, Lord Alton of Liverpool and Lord Coaker, and the noble Baroness, Lady Smith of Newnham. It follows on from the welcome remarks of the noble Baroness, Lady Williams, when she summed up at the end of Second Reading. She said, in relation to the requests about citizenship and right of abode that I had raised about these veterans of Her Majesty’s Armed Forces who were recruited and served in Hong Kong and elsewhere, that
“the Government have identified a potential solution to this issue”.
That is of course potentially welcome news.
For the past six years or more, the Home Office, including the Home Secretary at the time and other Home Office Ministers, has been approached on numerous occasions by many Members of both Houses, including myself, on behalf of these loyal veterans, and indeed has been lobbied by some of the veterans themselves. All these veterans have taken the oath of allegiance and paid UK taxes on their pay. They were encouraged to make representations by features of the Armed Forces covenant, enacted in law a decade ago—features that seek to ensure that veterans and their families are treated fairly.
For the past six years or more, invariably the reply from the Home Office Minister at the time was that they were indeed valuable veterans of Her Majesty’s Armed Forces and their case was being “actively considered”—a verbatim quote from the many replies received from Home Office Ministers. So this is not a new issue for the Home Office. Indeed, on behalf of 64 former members of the Hong Kong Military Service Corps veterans I submitted their applications to the Home Secretary with a personal letter from me two years ago, in March 2020. Regrettably, not even a single acknowledgement was offered by the Home Office.
At last, it seems that a potential solution has been identified. However, in her reply at Second Reading the Minister said it would require
“considerable work … with a view to a solution being provided before the end of this calendar year.”—[Official Report, 5/1/22; col. 668.]
That is, “with a view to” the end of 2022—hardly very convincing, given the Home Office’s track record that I have explained. Surely after having actively studied this issue for six years or more, it should not take the Government a vague 12 months to reach a decision. I feel it is reasonable to ask that a definite decision be reached a little sooner, as proposed by the amendment.
I hope that the Minister responding will not resist the amendment. That would only signal that the Home Office was yet again seeking to play this issue along and did not value the true worth of these veterans. Surely it is long past time for these valued veterans to know the outcome and have a more precise date by which they will be informed. I hope the Minister will agree. The noble Baroness, Lady Williams, will recall that, when this issue was debated in the Armed Forces Bill last year, these veterans rightly received considerable support from all sides of your Lordships’ House; indeed, it was the MoD’s approach to the Home Office then which has sparked this movement towards a promising resolution. I commend the amendment to the Committee.
My Lords, it is a great pleasure to support my noble and gallant friend. I feel as though I am part of the infantry. I have been supporting him on this issue for some years, and during the course of the Armed Forces Bill I set out at some length, as did the noble Baroness, Lady Smith of Newnham, the reasons why, which are similar to those that were expressed in the debate earlier: the responsibility and duty that we have to honour the commitments that were made by men serving the Crown in extraordinarily difficult circumstances from time to time in Hong Kong. The noble Lord, Lord Patten of Barnes, will know more about the history of our Armed Forces there than anyone else in this Chamber.
Given what has happened since 1997 and the danger that some of these men would now be in—we are talking about a very small number of people—I know it is hugely important that we should act, as I know the noble Baroness, Lady Williams, wants to do because she has said so in the House. I know the noble Lord, Lord Sharpe of Epsom, who has a long history of experience in Hong Kong and knows the situation there incredibly well, wants to see this happen too.
In asking that:
“Within three months of the passing of this Act, the Secretary of State must report on whether veterans who were recruited and served in”
“should be granted citizenship or indefinite leave to remain in the United Kingdom”,
my noble and gallant friend is really asking for very little indeed.
Before I sit down, I thank the noble Baroness, Lady Goldie, for listening carefully during our debates on the then Armed Forces Bill. She promised to take it up with the Home Office and clearly did, and she ought to take a lot of credit for this. The honourable Member for Romford, Andrew Rosindell, who has campaigned tirelessly on this too, ought to be mentioned in dispatches.
My Lords, I support both these amendments but will speak more particularly to Amendment 178 than to the one on Hong Kong, of which I have no experience.
This was all brought home to me when I was asked to present medals for one of the operational tours in Iraq. In presenting the medals to a regiment that had Commonwealth soldiers in it, I was giving a medal to somebody and saying, “Congratulations on what you have done for that country and on serving in the Army; you are one of our soldiers”. Then I suddenly thought, “But you’re actually not one of our soldiers”. We have two different types of soldier: people we consider British and people we consider other Commonwealth country soldiers. Where is the equality in that? We have soldiers, whether they are Commonwealth or British, who have suffered serious PTSD and serious health issues thereafter. While they are serving we treat them equally, but when they leave they are no longer equal. When one is severely injured—sadly, there were plenty of them—what happens to their family, who are not British? Maybe it is difficult for him to even apply for citizenship or whatever.
As part of my job as a lord-lieutenant, I was doing a citizenship ceremony. I am sorry to repeat this, but we raised this on the then Armed Forces Bill and did not get anywhere except for getting it shuffled to the Home Office. I hope that it will not fall down a gap and that we will not pass the buck again. I was giving out citizenship, where they have to swear allegiance—which, incidentally, they have already done in the military. This gentleman came up and I asked him, “What do you do?” We have everybody from Chinese people to Indonesians and Filipinos doing nursing and other valuable jobs. He said quietly, “Oh, you know, I have been here for a while”. In Northern Ireland people do not shout about it if they are currently in the Army or anything else, so I asked, “Are you in the Army?”. He said, “Yes, I am”. I asked, “But you’re getting citizenship?” He said, “Yes, because I want it and I’ve paid the money to get it”. I asked, “How many tours have you done?” He said, “I’ve done two of Afghanistan and one of Iraq”.
This is a two-tier, unequal thing. What we are doing is really unbelievable. I wonder what happens when somebody is killed. Are they a British person who is killed or just British Army? What statistics do they come under? We treat them like mercenaries. Personally, I believe it would take very little for the Government, instead of finding reasons why it is difficult—I do not know who they are consulting in the MoD, because I do not know a single serviceperson who would not think that they should automatically be citizens of our country—simply to make the presumption that they will be citizens, unless there is some impediment or reason why they cannot be.
We are engaged in almost racism or racial discrimination. We are engaged in inequality. What do all our Governments, of whichever colour, try to do? We raise everybody to make them equal and yet we ask these people to lay down their lives. We are saying, at the end of the day and the end of their service, “Sorry—you are not equal”. The numbers concerned are beyond the belief of most people in this country, certainly of everybody in this Committee and in another place. Quite simply, there should be a pen put through it so they all become citizens, with exactly the same rights as those who laid down their lives with them.
My Lords, there is something quite unusual about defence and Armed Forces matters. In some ways, they are so uncontroversial that, when the Armed Forces Bill was in Committee, it was relegated to Grand Committee in the Moses Room. The Moses Room is a very nice place to do business. It has a friendly atmosphere, and we could all agree with each other. As the noble and gallant Lord, Lord Craig of Radley, the noble Lord, Lord Alton, and the noble Viscount, Lord Brookeborough, have pointed out, we effectively talked about these two amendments during the Armed Forces Bill—now the Armed Forces Act 2021—at the end of the last calendar year. But we did it almost unwatched. Unlike the Chamber, there were relatively few people in the Moses Room, but we were being watched and, in part, by veterans of Her Majesty’s Armed Forces Hong Kong. Sadly, I received a letter after the debate, as I am sure did other noble Lords.
The issues that have been raised in this group of amendments have been rehearsed many times. As the noble Lord, Lord Alton, said, we are sure that the noble Baroness, Lady Goldie, will have relayed some of these issues to the Home Office, but we need to raise them again. As the noble Viscount, Lord Brookeborough, said, we let our Commonwealth and Hong Kong colleagues sign up and fight alongside Her Majesty’s Forces who have British passports. We would allow them to die serving with and for us, or to get PTSD or be injured in another way. Yet, when they stop serving, what do we do? If they say they want indefinite leave to remain, we charge them hefty fees. Can that be right? Surely the very least we can do is to charge only the cost. We should not be making a profit on somebody seeking indefinite leave to remain. That is the moral thing to do.
As the noble Lord, Lord Alton, said, Her Majesty’s Armed Forces Hong Kong is a small number of people but, at present, it really matters to them that they be considered for citizenship or indefinite leave to remain. Please can the Secretary of State look at this as a matter of urgency?
I had not meant to intervene in this debate but, from listening to the remarks of the noble and gallant Lord, I felt obliged to, but briefly. I guess I attended many events in Hong Kong when members of our armed services were marching into an uncertain future or disbanding. At those events, they would normally march off the parade ground with a pipe band playing “Auld Lang Syne”. I used to worry at the time, and have worried ever since, that they meant it. I am not sure we did. That we are still wrestling with this 25 years after we left Hong Kong is dishonourable. We should sort it out, because I cannot think of a decent political, bureaucratic or honourable reason for not doing so.
I very much thank all noble Lords for participating in this debate. In particular, I thank the noble Lord, Lord Coaker, and the noble and gallant Lord, Lord Craig of Radley, for their amendments.
Before I start, the noble Lord, Lord Alton, alluded to the fact that I have some experience in Hong Kong. I must declare an interest: I have marched to that pipe band. In fact, my noble friend Lord Patten was briefly my boss, which he probably did not know and probably horrifies him. I have worked closely with the Hong Kong Military Service Corps, as both the noble and gallant Lord, Lord Craig, and the noble Lord, Lord Alton, know. I hold those men—they were all men—in extremely high regard. I come at this speech with that in mind and wish to put it on the record.
The Government highly value the service of all members of the Armed Forces, including Commonwealth nationals and Gurkhas from Nepal. They have a long and distinguished history of service to the UK both here and overseas. We also remain extremely grateful for the contribution made by former British Hong Kong service personnel, which is why the Government announced on 7 December last year that the Home Secretary has identified an option that will enable our Government to treat this group of personnel in a similar way to other non-UK service personnel who were based in Hong Kong before handover. It was announced by Kevin Foster, the Minister for Safe and Legal Migration in the House of Commons.
I appreciate that, in tabling Amendment 185, the noble and gallant Lord, Lord Craig of Radley, wants reassurance that the Government are taking concrete steps to further support British Hong Kong veterans where possible. I can confirm that the Government will update Parliament as soon as we have more details that can be shared, with the aim of implementing any changes by the end of this calendar year. I am probably going too far here but that is not an “in due course”, in response to a comment made in an earlier debate; it is a concrete commitment to making the relevant announcement soon. However, once again, I agree with the noble and gallant Lord that they are loyal veterans; I also commend him on his long work on this particular subject. That is all I can say for now.
Before I address the detail of Amendment 178, I want to say a few words about the process for setting administration fees. For a number of years, application fees for immigration and nationality applications have been charged under powers set out under Section 68 of the Immigration Act 2014. They play a vital role in our country’s ability to run a sustainable migration and borders system, reducing the burden on taxpayers. Sitting beneath the Immigration Act is an affirmative procedure fees order, which is scrutinised by both Houses before coming into effect, and beneath that are negative resolution fees regulations, which are laid before both Houses prior to coming into force. In addition, all fees are set with the consent of HM Treasury. This system ensures that there are checks and balances within the system, and maintains the coherence of the immigration fees framework as it is set out in legislation. I will come back to this subject in a moment.
When non-UK service personnel, including Commonwealth citizens and Gurkhas from Nepal, enlist in the regular Armed Forces, they are granted “exempt from immigration control” status for the duration of their service to allow them to come and go without restriction. They are therefore free from any requirements to make visa applications or pay fees while they serve, unlike almost every other category of migrant coming to work in the UK.
Those who have served at least four years or been medically discharged as a result of their service can choose to settle in the UK after their service and pay the relevant fee. The time before discharge that such settlement applications may be submitted was extended this year from 10 to 18 weeks, providing ample time to plan and make the application. Those applying for themselves do not have to meet an income requirement, be sponsored by an employer or meet any requirements regarding skills, knowledge of the English language or knowledge of life in the UK, again putting them in a favourable position compared to other migrants wishing to settle here. I stress that this a personal choice. We should bear in mind that not all countries allow dual citizenship. Indeed, not all Commonwealth citizens who are members of our Armed Forces choose to take up this option.
Of course, we recognise that settlement fees may place a financial burden on non-UK serving personnel wishing to remain in the UK after their discharge and the strength of feeling from parliamentarians, service charities and the public about this issue is very strong. That is why the Ministry of Defence, together with the Home Office, ran a public consultation between 26 May and 7 July 2021 on a policy proposal to waive settlement fees for non-UK service personnel in HM Armed Forces. The results of the consultation have been analysed and, once collective agreement has been secured for a final policy, the Government will publish their response and make any associated changes to fees through fees regulations at the earliest opportunity. I know those are warm words, but I am also aware of the strength of feeling in this House and the other place, so noble Lords should draw the appropriate conclusion as to what “earliest opportunity” means in practice. We are also exploring what options there are to assist non-UK veterans of HM Armed Forces who do not have settled status in the UK.
In conclusion, I understand the strength of feeling expressed in the House in relation to this issue and I emphasise again my gratitude to all individuals who have served this country. However, as I have explained, there is an existing legal framework in place for immigration fees which already enables proper consideration to be given by government and Parliament to the full range of issues in setting those fees. The issue raised by this amendment is already subject to a review, which is entering its final stages.
To answer the question from the noble Lord, Lord Coaker, about how much it would cost, the best we can do is about £210,000 a year. There are other issues to be considered as well, which centre on things such as recruitment and retention. Those are part of the reason why the consultation has not yet been completely closed off. To give some more detail about the consultation, 6,398 responses were received and the results have been used to advise Ministers. I think I have covered everything, so I hope that, following those assurances, which are as warm as they can be, noble Lords will agree to withdraw or not move their amendments.
As I understand it, people are allowed to apply before they leave the services. While people are serving, the Government have huge charges for every soldier, airman and seaman every day of the week. For those who choose to apply for citizenship prior to leaving, why could this not be a normal cost of administration suffered by the MoD as part of its commitment to them?
I thank the Minister for his response to a very moving debate. I particularly welcome the contribution from the noble and gallant Lord, Lord Craig, with his background in the Armed Forces and the work he has done on this issue over many years. I found it very moving. I have never had the opportunity of meeting the noble Lord, Lord Patten of Barnes, but I think all of us respect, remember and honour the work he did with respect to Hong Kong. The fact he has come here tonight to listen and contribute to this short debate will be noted by everyone in this House, even those who are not here. He is to be commended for that, if I might say so. I also welcome the contributions from the noble Lord, Lord Alton, the noble Baroness, Lady Smith, and the noble Viscount, Lord Brookeborough. Again, their points were made very well.
Maybe I am an optimist or maybe it is the time of night, but I detect some movement from the Government on these issues; it would be churlish not to welcome that. On Amendment 185 in respect of Hong Kong veterans, the Minister said—he will correct me if I get this wrong—that there is an expectation that there will be an announcement on this by the end of this calendar year. One hopes that that does not mean December 2022. I am not being sarcastic; one hopes that this will happen as soon as possible, but we note that he referred to the end of this calendar year. The Hong Kong veterans and the noble and gallant Lord, Lord Craig, will have heard that, but all of us would ask that this happens as soon as possible and does not slip to December. I am not being sarcastic or churlish in saying that; everyone will want to know that that will be the case.
We also heard about the issue of unit costs for Commonwealth veterans applying for indefinite leave to remain, and that the Government are looking to come forward with something in respect of that at the earliest opportunity, whatever that means—in the not too distant future, I hope. I think that the Minister said that what it means in practice is that we might come back to this issue on Report. Maybe by then the Government will be able to say something about it.
In this short debate, the Government have shown that they have listened to what has happened. To be frank, it has taken longer than it should, but we are seeing some movement. Ministers here are to be congratulated on any part that they have played in that, as are other Members of this House. We all now want to see this move forward and happen quickly, because it is doing the right thing by those who have done the right thing by us.
Amendment 178 withdrawn.
179: After Clause 78, insert the following new Clause—
“British National (Overseas) visas: eligibility
(1) Within two months of this Act being passed, the Secretary of State must amend the immigration rules to ensure that all persons meeting all the conditions set out in subsection (2) are eligible to apply for the British National (Overseas) visa.(2) The conditions in this subsection are that—(a) the person has at least one parent who is a British national (overseas);(b) the person was born in or after 1997; and(c) the person is currently resident in Hong Kong or the United Kingdom.”
My Lords, Amendment 179 stands in the names of the noble Lord, Lord Patten of Barnes, the noble and learned Lord, Lord Falconer of Thoroton, the right reverend Prelate the Bishop of St Albans and myself. In some ways, it says everything which needs to be said. That a former governor of Hong Kong and a former Lord Chancellor are two of the signatories to this amendment shows that it is not just cross-party but has support across both Houses. I know that the noble Baroness, Lady Williams, has taken a personal interest in this and I really appreciate the time she took in organising a meeting and being willing to address the issues during a long discussion on the subject. I am indebted to her, and I know that she gets the message of this amendment. It stands after Clause 78 and concerns the visa eligibility of British nationals (overseas). The amendment would rationalise the UK’s policy by offering courageous young people in Hong Kong a lifeboat out of the city. I declare my interest as a patron of Hong Kong Watch and as the vice-chair of the All-Party Parliamentary Group on Hong Kong.
I warmly welcome the Government’s creation of the BNO visa, which was opened up just over a year ago, allowing those holding BNO status in Hong Kong to come to the UK to live the life of freedom that they were promised would continue after 1997. However, as the former Foreign Secretary and leader of the Conversative Party, the noble Lord, Lord Hague, noted last week in his column in the Times, the policy has immense benefits:
“Improvements to this scheme can still be made, in particular by creating equivalent rights for those born after 1997—there are many young people who want to leave Hong Kong even though their parents want to stay, and they should be welcome here.”
The Government’s commitment to the people of Hong Kong and the unanimous cross-party support that this has received shows that we are a country which does not turn its back on the persecuted. However, I have become increasingly concerned at the exclusion of young people born after 1997, who are unable to access this lifeline visa route, even though these are the very people who flooded the streets of Hong Kong and stood up for the freedoms throughout the protests in 2019. That was when I was part of the international team which monitored the last free elections in Hong Kong; it was an extraordinary thing to see at first hand.
Research published at the end of last year showed that 93% of the defendants in protest-related prosecutions in Hong Kong were under the age of 25. In happier times, I chaired a meeting here in your Lordships’ House at which two young Hong Kongers spoke. One was Joshua Wong, one of the most heroic young defenders of Hong Kong’s freedoms and, for this, he is now incarcerated in a Hong Kong prison. In 2019, I was able to take the Westminster Award for Human Rights, Human Life, and Human Dignity to Hong Kong and present it to him. That was after he was refused permission, even then, to travel to the United Kingdom. The other person at that meeting was Nathan Law, the youngest member of the Hong Kong Legislative Council. The noble Lord, Lord Patten, might remember that in my day I was briefly the youngest Member of the House of Commons, and I told Nathan that we babies of the House should stick together. Nathan is now in exile in the United Kingdom and last week we stood together at an open-air rally in London focusing on the destruction of Hong Kong’s freedoms and other aspects of the erosion of freedoms elsewhere in China.
Amendment 179 is an act of solidarity with Joshua and Nathan. It would provide a way out for the people of Hong Kong who need it most. The amendment would at least make young people with a BNO-status parent eligible to apply for the visa and start rebuilding their lives in this country. A previous version of the amendment was tabled by the right honourable Damian Green in the House of Commons and received the backing on the amendment paper there of 30 senior Conservative Back-Benchers, including several former Cabinet Ministers, a former Foreign Secretary, the former leader of the Conservative Party and the chair of the Foreign Affairs Select Committee, as well as support from across the opposition Front Benches. Charles Moore—the noble Lord, Lord Moore of Etchingham—writing in the Spectator in December, was equally supportive and called it “logical and just”. He correctly highlighted that such a move would not meaningfully alter the overall number of BNOs expected to arrive, because the children of BNO status holders had already been factored into the Government’s estimates to some extent at least.
In December, the Minister raised concerns about Damian Green’s amendment, saying that it did not contain certain safeguards, such as an age limit and residency. We have listened to that, and this amendment has inserted conditions that would give access only to those born after 1997 who are
“currently resident in Hong Kong or the United Kingdom.”
Both honourable Members from the other place and we here have consistently throughout this process underlined our desire that the Government adopt the proposal themselves. I have suggested to the noble Baroness, and I know that she is sympathetic, that a simple immigration rule would be able to achieve this purpose.
I appreciate and welcome the outreach and efforts that the Government have put into finding a way forward with us. I was pleased to hear that, in response to a Question that I tabled in January, the Government recognised there is a need. They said:
“We are sympathetic to the circumstances of children born on or after 1 July 1997 with BN(O) parents and are considering what more can be done to support this cohort where they wish to build a permanent life in the UK.”
The noble Baroness and the noble Lord will realise that in this amendment, as in the amendment from the noble and gallant Lord, Lord Craig, we have put a timeline so this does not disappear into the future by too long a distance.
I am pleased that the Government have moved beyond the arguments that they made in the other place that the existing youth mobility scheme was a viable alternative for these young people. The youth mobility scheme in its current form is designed to give young people from a selection of countries an experience of life in our country for up to two years before taking that back to their own countries. It is not designed for those fleeing tyranny. The youth mobility scheme is a non-renewable visa. It does not count towards the five-year route to resettlement that those on the BNO route possess and, crucially, one must apply via a ballot from Hong Kong which typically opens in January and July each year, meaning that it is not appropriate for those needing to flee the city immediately.
With these young Hong Kongers, we need to provide a meaningful route to settlement. The BNO scheme, if it were opened up to them, would provide that but I am sure that there are a range of alternatives that the Government could explore, and I look forward to hearing what conclusions the Minister has reached on this matter.
Let me come an end. At the moment, many young Hong Kongers are left only with the option of applying for asylum. More than 200 who have unnecessarily applied for asylum have described how they left the city at very short notice and could not afford to wait until the youth mobility scheme ballot opened. One example, Steven—obviously not his real name for reasons the House will understand—is a 19 year-old who fled Hong Kong in November 2020 to claim asylum in the UK. He had a protest-related charge brought against him after his part in a protest and his subsequent arrest in 2019. He was released on bail and was awaiting a date for his court hearing when he fled to the UK—a decision he took suddenly after hearing of friends being arrested and a further charge brought against them.
Young people like Steven have been floundering in our asylum system for more than a year and have been unable therefore to work—an issue the Committee has addressed at earlier stages—living a life on the breadline and in limbo. There is no need for young, talented Hong Kong pro-democracy activists to be treated like this when they have the ready-made BNO scheme as an alternative.
As someone who once represented the great city of Liverpool, I note the debt that it owes to the Hong Kongers who have arrived there over the years, some fleeing the Cultural Revolution and some coming from as early as the 19th century. The talents and the gifts that they bring to our country are enormous.
What we are asking for here is a small and rational compromise that would help those young people who really need it. I look forward to continuing the conversations with the Government to achieve a solution to that end. I beg to move.
I will be very brief in supporting that speech and this amendment, not because I do not feel passionately and strongly about it—I do—but, first, out of a late-evening act of charity to the crowds that are still with us this evening and, secondly, because the purpose of the amendment was explained so clearly by the noble Lord a moment ago.
I perhaps do not spend enough time praising the Government for things that they have done, but I praise without qualification the lifeboat that is the BNO passport scheme, which is imaginative and has been set out and pursued with considerable competence by the Government. One result is that, in the last three months, 90,000 Hong Kongers came to live in our country. Overwhelmingly, the heads of household were young professionals. The latest figures in Hong Kong suggest that, of those working for medical services, the number of doctors has decreased by 5% and the number of nurses has decreased by almost 8%, and there has been a huge drop in the number of teachers—1,000, I think, have left. Most of them have come here. It may be a matter of amazement to the Chancellor that fewer of the young entrepreneurs have come here than have gone to Australia, Canada and the United States, but nevertheless a number of people who will make a huge contribution to our society have come here.
The amendment before your Lordships repairs a hole in this lifeboat. It is very important to do so, for the reasons that the noble Lord has just made clear and that I will refer to again in a moment. But why is this lifeboat necessary at all? Shortly before he became Trade Minister, my noble friend Lord Grimstone referred to the “strong authoritarian guidance” that had been offered to Hong Kong by Xi Jinping, which he said was very good for banks. It might be good for banks—although that is questionable—but it is not very good for people. It has gone rather beyond “strong authoritarian guidance”.
We know what has happened: there has been a vengeful and comprehensive assault on all of the freedoms that we associate with an open society. Take freedom of speech: journalists have been locked up, proprietors have been incarcerated and newspapers’ funds have been frozen. Anyone who protests this is locked up. People are locked up for wanting to light a candle to mark the 4 June vigil of Tiananmen every year. The Pillar of Shame, as it was called, in the University of Hong Kong, reminding people of 4 June, was taken down in the dead of night. As my noble friend Lord Hague pointed out in a Times article earlier this week, to which the noble Lord has just referred, there has been an absolutely comprehensive assault on all of the freedoms that Hong Kong was promised it would continue to exercise for 50 years after 1997.
My main critic when I was the last colonial oppressor was a very distinguished diplomat, Percy Cradock, who used to say—and was happy to be quoted as such—of the leadership in Beijing that they may be “thuggish dictators” but they are “men of their word”. We know that at least one of those things is correct. It is a terrible example of the problem we face today that the Chinese Communist Party has behaved towards Hong Kong in a way that confirms that it cannot be trusted to keep its word in international affairs. That is something we have to think about when we are working out how to share this planet with China, almost 50 years to the day since President Nixon went to Beijing to see Mao.
This amendment is extremely important. The noble Lord pointed out that 93% of those who have been arrested for protest-related offences are aged between 18 and 24. They are young people whose lives will be blighted. With this amendment, which has been sensibly circumscribed to take account of criticisms in another place, as the noble Lord pointed out, we want to give those people who were born after 1997 the chance, like their parents, to live in and contribute to this country.
As the noble Lord said, the amendment was supported right across the other place and by both wings of the Conservative Party—I am not quite sure what flying object they support at the moment but, extraordinarily, both wings supported this amendment. Nobody else can manage that but this amendment has. I hope it will be accepted by this House in due course as well. It is a wonderful way for us to make absolutely clear what our commitment to Hong Kong and our last imperial responsibility has become.
I want to conclude by saying two related things. First, every one of my successors as chief executive in Hong Kong had either a foreign passport or members of their family with foreign passports. The present chief executive had a British passport, which she gave up to become chief executive, and her husband and her sons have British passports. I am not against that: I hope they enjoy the liberties and freedoms that come with being a British citizen with that passport. But it is an unhappy paradox that the people doing the persecuting—the quislings—including members of the police force, have British passports, and those who are being persecuted and locked up do not. I think we should address that rather unhappy imbalance in due course.
Lastly, today I went to the memorial service of somebody who many noble Lords will have read and some will have known: the very fine American scholar of China, and Observer and Guardian journalist, Jonathan Mirsky. He wrote about China for years. A defining moment for him was being beaten up while he was trying to follow what was happening in Tiananmen Square in 1989. He was covered in the blood of a young student who was shot standing next to him. The great thing about Mirsky, who could be extraordinarily tiresome and very awkward, was that at the heart of his journalism was an understanding of the difference between what is right and what is wrong, wicked or evil. What we are seeing from President Putin at the moment is wrong. It is wicked. What we have seen in Xinjiang and in Tibet is wicked. What is happening in Hong Kong—the destruction of one of the great free cities in the world—is wrong and we should say that it is wrong. Whenever we have an opportunity to do anything about it, we should take it.
My Lords, in moving this amendment the noble Lord, Lord Alton, pointed out that it was supported across all parts of your Lordships’ House. However, such is the nature of amendments that you can have only four names on the top of them, which on this occasion omits any Liberal Democrat name. So I rise, genuinely briefly, to support the amendment on behalf of these Benches because, as both noble Lords have made so clear, it really plugs the hole in the life raft, as the noble Lord, Lord Patten of Barnes, pointed out.
We are talking about a relatively small amendment and a relatively small number of people. But the amendment would make the difference of giving these people the freedom and ability to express themselves, and the opportunity to come and live freely, which is given to their parents and grandparents, and some of those who are in government in Hong Kong—so it is very important.
Some months ago, the young people of Hong Kong were very vocal in writing, again and again, “Please support us because we don’t have the right to come out under any sort of visa scheme”. This is an important amendment and I very much hope the noble Lord, Lord Patten of Barnes, is right that it brings together both wings of the Conservative Party. The last time I remember something similar happening right across your Lordships’ House was on the rights of the 3 million EU nationals resident in the United Kingdom in the wake of the referendum, when all parts of your Lordships’ House and of the Conservative Party, apart from the Government Front Bench, agreed. I hope that on this occasion those on the Government Front Bench might be able to agree with the two wings of their own party, and with everybody else.
I will be brief. Not surprisingly, we wholeheartedly support this amendment, in the same way as we were among those who raised this issue during the Commons stages of the Bill. As has been said, this is not a party-political issue; there is huge cross-party support for the BNO scheme, and there is obviously the same strong cross-party support for this necessary extension to that scheme.
Currently, those born after 1997—24 year-olds or younger—cannot access the scheme, as has been said. I believe that is unless they are a dependant of a BNO passport holder, but I am not entirely sure whether that is the case. What has been said on more than one occasion during this debate is that 93% of those who face process charges in Hong Kong were born in or after 1997. We certainly do not believe that it was the Government’s intention to exclude a significant number of the people who are protesting against oppression and fighting for democracy. Our argument is that the scheme, in practice, is not working as the Government intended it to, and today is an opportunity for them to make it clear that they do intend that the scheme should work—as I am sure they did when they originally introduced it.
The Minister in the Commons raised drafting issues with the amendment that was considered there. As I understand it, those have been dealt with in the amendment before this House. The draft now includes an age limit and applies only to those who are resident in Hong Kong or the UK. On Report in the Commons, Damian Green MP, who led the cross-party amendment on this issue, said:
“I want to give Ministers more time to work out better details of a mobility scheme that is suitable for young people in Hong Kong.”—[Official Report, Commons, 7/12/21; col. 233.]
We hope, as do other Members who have taken part in this discussion, that the Government have taken that time and that, on their behalf, the Minister will be able to respond favourably to this amendment.
I conclude by saying that there was an article in the Times recently—a reference has already been made to it—which stated:
“One in five of those granted indefinite leave to remain as part of the bespoke visa scheme for Hong Kong citizens were under-25.”
So that is already the situation. The article also said:
“The Home Office expects about 300,000 people to apply in the first five years of the scheme.”
I do not know whether that figure, which was mentioned in the Times on 1 February, is accurate or not. It might be helpful, if the Minister was in a position to do so, if he would say by how many the Government think that figure of 300,000 would increase if, as they should, they accepted the terms of this amendment and extended the scheme so that those younger people who are the ones facing protest charges in Hong Kong—or have faced them—and who clearly have a desire, in many cases, to leave and to come here are able to do so.
My Lords, again, I thank all noble Lords who have participated in this debate, and I thank all noble Lords who signed this amendment. I understand that their concerns centre around the accessibility of the route for those who are too young to obtain BNO status in their own right and who no longer reside with their BNO parents, or those whose BNO parents do not wish to apply to the route. Although perhaps unintended, the clause would also enable unaccompanied children under the age of 18 to apply independently of their parents—which obviously risks creating safeguarding and other concerns.
The BNO route was designed bearing in mind the moral and historic obligations the UK has to those who elected to retain ties to the UK by obtaining BNO status and who wish to make the UK their home. The route already enables adult children born on or after 1 July 1997 to apply with their families where they are part of the BNO’s household—which I think answers the question of the noble Lord, Lord Rosser—ensuring that family units are not split up. This is a generous provision—being over 18, there adult children fall outside the UK immigration system’s usual definition of a dependent child. Nevertheless, the provision recognises that, although they are too young to have been eligible to obtain BNO status in their own right, they may still be able to form a household with their BNO parent.
I am going to make a brief digression into the numbers of people who have already applied, and so on. As of 30 September, over 88,000 people had applied—status holders and their family members—since 31 January, and 76,000 applications had been granted. The net-positive impact to the Treasury—in answer to the comment about the Chancellor and how he should be pleased about this—is estimated to be between £2.4 billion and £2.9 billion over five years. With that in mind, I would perhaps ask my noble friend Lord Patten why we did not grant BNO status to everybody back in 1997, which many of us in Hong Kong at the time thought would have been a very good idea. In answer to the subsequent question asked by the noble Lord, Lord Rosser, that number of 300,000 is accurate—I do not know, though, how many would apply under this particular amendment, but obviously we will do some work on that and come back to him.
Those who are not eligible for the BNO route do have a number of other UK immigration routes available to them, and that includes student visas which are up 5% compared with 2019—of course, there may be a pandemic effect in that as well. The skilled worker route enables individuals to come to the UK in a wider range of professions and at a lower general salary threshold than in the past—although, again, the information I have suggests the vast majority are very well educated indeed, as my noble friend pointed out. The graduate route is open to sponsored international students who have successfully completed a degree at undergraduate level or above. We believe that those existing routes provide avenues for many Hong Kong nationals to come to the UK, and we expect some new routes that will be created next year to open up another pathway to young Hong Kong nationals.
However, we have heard the concerns raised by noble Lords around the appropriateness of some of these other routes and are very sympathetic to the circumstances of children born on or after 1 July 1997 with BNO parents. We are, therefore, looking at whether more can be done to support this cohort wishing to build a permanent life in the UK. I can assure your Lordships that we are considering the matter carefully. I hope it will cheer your Lordships up—particularly when it comes to matters of precise timing—to hear that we hope to update the House by Report stage. In light of these assurances, I ask the noble Lord to withdraw the amendment.
I am not entirely taken by surprise, but I think that the noble Lord, Lord Sharpe, certainly kept the best till last. I am delighted that he has put flesh on the bones of the incredibly helpful conversations that I was able to have with the noble Baroness on this matter. If a Statement to Parliament could be made—rather than just a press release from the Home Office—setting out those details, that would be extremely well received by your Lordships.
I was very struck by what the noble Lord said about the positive impact that people make, both in purely economic terms—those figures of £2.4 billion to £2.9 billion over five years to the Treasury are an amazing statement—and in human terms as well. I certainly know this from having volunteered as a student, a long time ago, to teach English to Hong Kong children who had come to United Kingdom and seeing what happened to them in the next generation: they produced a lawyer, a doctor, a teacher and an entrepreneur and, in the next generation, a goddaughter of mine. These people bring real gifts to our society. I know your Lordships’ House shares that view.
On the basis of everything we have heard, I thank all noble Lords who have participated in this debate, but I am sure the Committee will agree that hearing the noble Lord, Lord Patten, was deeply inspiring. Many people from outside this House will have heard this debate, as the noble Baroness, Lady Smith, said, and hopefully many people who still have access to such things as the internet in Hong Kong will have seen on our parliamentary channel what the noble Lord had to say, because I think it will give them a great deal of inspiration. On the basis of what the noble Lord, Lord Sharpe, said, I beg leave to withdraw my amendment—
I hope I am not being a bit of a cynic, but if the noble Lord intends that the Government respond to us on Report, that might make it a little difficult for us to prepare for the possibility of a vote. Can he secure a response? We were promised jam tomorrow—I think we wanted to hear some jam today. We should at least get the jam before Report, not on Report.
Amendment 179 withdrawn.
180: After Clause 78, insert the following new Clause—
“UK immigration status: certification
(1) The Secretary of State must issue physical proof confirming immigration status to anyone who has been granted such status under the immigration laws of the United Kingdom and who requests such proof.(2) No fee may be charged for issuing physical proof under this section.(3) The certificate mentioned in subsection (1) must confirm that the relevant person has the relevant status.(4) The certificate mentioned in subsection (1) is valid for right to work checks, right to rent checks and all other checks that may be undertaken by agents within and without the United Kingdom to confirm the relevant person’s UK immigration status including permission to travel to and enter the United Kingdom.”Member’s explanatory statement
This new Clause would require the Government to issue a physical certificate to all people with a UK immigration status, allowing all those with such status to provide documentary proof.
My Lords, Amendment 180 in my name and those of the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord McNicol of West Kilbride, would require the Government to provide physical proof of status for those with immigration status in the United Kingdom.
I will try not to detain the Committee too long, because the arguments for providing physical proof alongside digital status have been aired extensively in this House, most recently on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, when your Lordships overwhelmingly supported a cross-party amendment to this effect for EEA citizens with settled or pre-settled status. At that time, there was no need to argue for such physical proof for those with other immigration status in the United Kingdom because they were already entitled to it—something the Home Office now seems determined to reverse. I will come to that in a moment.
When we discussed this previously, the main arguments advanced by the Government against providing physical proof appeared to be, first, that digital proof was better than physical proof because it could not be lost—putting aside the fact that digital proof can indeed be lost or destroyed, no one ever suggested that physical proof should replace digital proof, but rather that it should complement it; and secondly, that as the Government intended us all to move to a digital-only system at some point, it made sense for the settled status scheme to adopt digital-only from the outset.
If the Government wish to transition to greater reliance on a digital system, which I can perhaps see some merit in, they should do so only after extensive trials and with a physical backup. However, instead of extensive trials before embarking on this course, the Government appear to have conducted only one, in 2018, which found that:
“There is a clearly identified user need for the physical card … and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”
So, there was just one government trial, and they simply ignored its findings. The Government then failed to publish a statement on the equality impact assessment of the digital-only scheme, which they admitted had been conducted. The Minister told me on Report of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill only that such a statement would be published shortly. That was nearly a year and a half ago. Can the Minister tell us whether that statement was published and if not, why not?
When we debated the issue at that time, I said that non-EEA citizens who were spouses of EEA citizens in the UK and those with other immigration status had the right to biometric residence cards or permits, meaning that EEA citizens under settled status were the only people with immigration status in the country who did not have the right to physical proof of status. Since then, the Home Office has, extraordinarily, decided to tell employers and those renting property that existing valid biometric residence cards and permits are no longer to be considered proof of status. For those who have never read the right to work guidance, updated on 17 December 2021, you do not want to be an employer, because the complexity involved and what they are being asked to do is huge.
The guidance now states that from 6 April 2022, holders of biometric residence cards, biometric residence permits and frontier workers permits will have to
“evidence their right to work using the Home Office online service only. Employers will no longer be able to accept physical cards for the purposes of a right to work check even if it shows a later expiry date. BRCs, BRPs and FWPs will be removed from the lists of acceptable documents used to conduct a manual right to work check.”
Therefore, the Government are stating that their own permits will no longer be considered acceptable documents. Not content with the huge anxiety that has been caused to EEA citizens by not allowing them to have physical proof of their status, they now want to do the same for everyone, even those with existing government-issued documents. Perhaps the Minister can remind us, because I cannot recall, whether people have to pay for those documents. If they do, will they get a refund if they are no longer valid?
I hope that the Minister can explain the reason for this astonishing decision. It is a decision like the one originally to refuse physical proof to EEA citizens with settled and pre-settled status, which I can only explain as being driven by some sort of bureaucratic convenience, since it takes no account whatsoever of the impact on ordinary people, of the stress and anxiety caused and of the exposure of vulnerable and IT-illiterate people to exploitation by others who take charge of their digital status. Ministers in a democratic system are supposed to prevent bureaucratic convenience trampling over people’s rights, but the Minister and her colleagues seem happy to trample over this.
Since we last debated these issues, in October 2020, the warnings about the consequences of failing to provide physical proof—warnings made by noble Lords on all sides of the House and organisations representing EU citizens, such as the3million—are no longer just warnings. They are borne out by real-life experience. The “view and prove” system has thrown up multiple errors, including: “You are already logged in”, “The details do not match our records”, “Service currently available” and, most chillingly, “We cannot find your status”—all to people who had legitimate status.
There have been problems with updating status; for example, because a person has a new passport. One such person reports: “I got a new passport. I sent it to the resolution centre. They took a copy and sent it back to me. Two months later, my settled status is still not linked to my new passport. I no longer have my old passport as the French Government doesn’t allow keeping the old passport when getting a new one. This is very stressful because I am planning to visit my family in France in January. I have not seen my family since October 2020. I am feeling powerless.”
There have been problems with immigration officials demanding physical proof. There have been problems with accessing mortgages and loans. One such person says: “I have sold and I am buying a house. I have had to apply for another mortgage and the mortgage company won’t process my application until I have a share code. I have still not received a share code. I have called the resolution centre three times and explained the situation. I keep getting told that someone will call me to progress this, and still nothing has happened.”
At the end of last year, the First Ministers of Scotland and Wales and the First and Deputy First Ministers of Northern Ireland wrote to the Home Office with further examples of difficulties caused by lack of physical proof, including
“a citizen being out of work for two and half months … another being denied a crisis grant … a citizen being threatened with being removed from temporary emergency accommodation … a citizen losing out on a number of job openings … citizens having to rely on support organisations to access their proof of status, causing stress and anxiety”,
as well as the fear of what would happen if they
“lose access when this support is no longer available”—
and all because the Home Office has not moved on an issue that has caused such evidence problems.
However, in what I hope was a glimmer of light and good sense, the Home Office, in its response to your Lordships’ European Affairs Committee’s report on 19 November 2021, undertook to look at the possibility of providing a QR code. This could work along the lines of the Covid passes on our NHS app, which provide digital status of vaccination but which, if we want, we can download as a PDF and print out—just as I have today, as I am going to France and want the reassurance of a physical back-up if I cannot access the NHS app for some reason. That physical proof gives us a sense of confidence and means that, if there is a problem with the digital service, we have something to show. It could be an ideal solution to this issue.
I hope that the Minister can give us in her reply a substantive progress update on the Home Office’s consideration of such an alternative digital status implementation, which could allow all people with immigration status the ability to create physical proof as back-up. I also hope that, if the Home Office goes down that line, it will work with representatives such as the3million, Citizens Advice and others who can give real input on the real-life effect this is having. I know that the Minister is a person who cares about the impacts on individuals, so I hope that she can help the Home Office find the way to a policy that is far more considerate of the real-life experiences of people. I beg to move.
My Lords, I will very briefly say how much I support the noble Lord, Lord Oates; he made a very powerful case. I freeze over whenever I hear the phrase “digital by default”, so I hope the Minister is not going to use it. We have heard how it railroads over the real-life experiences of people who have real problems with digital by default.
The idea of a QR code as a way through is a very good one. I know there have been discussions with the Home Office, and it is offering hope. However, the 3million is quite worried—certainly in its email to me—because it sees no evidence of anything progressing. I hope the Minister will be able to tell us what progress is being made, because we can brook no delay. This has to happen quickly if we are not to have more of the kinds of problems that the noble Lord outlined.
I stress that these Benches as a whole support my noble friend Lord Oates’s amendment, as we consistently have. I applaud him for pursuing this issue relentlessly. It seems like one gigantic mess. The EEA citizens under the EU settlement scheme were used as guinea pigs for a digital-only system, although I understand that it is now being extended to everybody. My noble friend referred to a 2018 pilot which basically said not to do it. There does not seem to have been any good policy evaluation along the way, and people are having all these practical problems.
For example, some people cannot go to France because they do not know whether they are going to get back in as their status has not been linked to their new passport. These are major issues for individuals. They may not be major issues from a bureaucratic point of view in the Home Office, but some people are unable to get a mortgage or a job because the system does not work.
I cannot stress enough how much this needs to be sorted out. The noble Baroness, Lady Lister, mentioned the 3million; those of us working with that group find it admirable. The Home Office said it was considering the 3million’s proposal but has failed to engage with it since June 2021, which is eight months ago. The Home Office really needs to focus on this. The Minister has consistently said, “Don’t just bring me criticisms; bring me solutions”—my noble friend has brought a solution.
Frankly, if I can work a QR code for my Covid pass on the app, anyone can—actually, I did get a bit of help from my neighbour at one point. But this is a solution, and it has worked with the Covid pass. I really hope that the noble Baroness can give us some good news and at least go and talk to the 3million.
I certainly do not want to detain the Committee, but, as has been said, we are in a situation where people’s lived experience is that the lack of proof of their status is an unnecessary issue in everyday life, at least for some. The 3million certainly has examples of people being asked for documents that do not exist when trying to board flights, handing over documents for new jobs or trying to open a bank account, among other things.
There has been consistent cross-party support for this issue since the EU settled status scheme opened. I think the arguments in favour, made in both Houses over a number of years, have been compelling. The Government have been equally consistent in their refusal to move on this issue. Frankly, at times, it has been very difficult to understand why. I hope that this evening we will perhaps get a different message. That is what all those who participated in this debate now want to hear from the Government: whether they are willing to move on this issue and resolve a genuine problem that exists for many people.
I thank noble Lords who have spoken in this debate and express my admiration for the noble Lord, Lord Oates, on this subject. He is not going to give up on it. He mentioned the QR code, and I totally agree; the QR code has worked brilliantly throughout the pandemic for certain things such as updating your Covid vaccination status. I will take that back to the Home Office and report back on any progress. I know it is not that simple, but we have said that we are considering it and I will report back to the House on its progress.
The noble Lord will not be surprised to hear any of my other arguments, though. When people are granted immigration status, they get a formal written notification of their grant in the form of a letter sent by post or email, which sets out their immigration status in the UK. They can retain it for their own personal records and use it, if they want, when contacting the Home Office about their status. Those issued with a biometric residence permit or an e-visa can use the online services to share that status online with other individuals or organisations, such as employers and landlords. Holders of an e-visa can also print off a copy of their immigration status, which is shown on their online profile, and store it with their personal records.
I know the hour is late, but I will touch on a couple of the other advantages of the e-visa. It puts individuals in control of their own data, gives them direct access to information held by the Home Office about their status and, importantly, adheres to the principles of data minimisation, ensuring that only the information required by a checker, rather than all the information held on a physical card, is made available to the checker. Secondly, information on a physical document might be out of date if a person’s status has changed since it was issued, and a person’s digital status is always up to date.
The noble Baroness, Lady Lister, is going to cringe now, because we are developing a border and immigration service that is “digital by default”, which means that we will increasingly replace physical and paper-based products and services with accessible, easy-to-use online products. My parents were not at all digital by default, but they have become digital by default over time. I know it is difficult when you do not have a physical document in front of you, but it is more and more the way the world is going.
We started the rollout of e-visas in 2018, starting with EU citizens granted status under the beta phases of the EU settlement scheme and expanding to all EEA and Swiss EUSS applicants when the scheme first opened back in March last year, followed by the Hong Kong BNO route, the graduate route and, most recently, the student and skilled worker extension routes. We plan to continue to roll out e-visas incrementally. The Home Office’s ambition is to have biometric residence permits replaced by e-visas by the end of 2024, so that eventually all foreign nationals granted status will have e-visas that can be securely and easily accessed and shared online.
In response to what the noble Lord, Lord Oates, said, so far the online services have been positive. Individuals who struggle can contact the UKVI resolution centre, including by phone.
I will give the House an update on the QR code, but I support the whole principle of being able to use a QR code. With that, I hope the noble Lord will withdraw his amendment.
My Lords, I thank the Minister for her response. Given the lateness of the hour, I shall not delay proceedings further. I was very encouraged—I think it is the first time I have been really encouraged in these debates—by what the Minister had say: that she would take back this issue of a QR code. It has been around for a while, so I hope that she can push the Home Office on it. There seems to be some ideological or bureaucratic resistance—I do not know what it is—because, as we discussed, this is not a partisan matter; it is a just a matter of giving people the sort of surety they need.
On what the Minister said about digital by default, the study that I quoted from 2018, as well as the trial, made it clear that digital by default does not mean digital only—and it should not have to. If we can find a way with a QR code, I would be absolutely delighted. I hope that the Minister will be able to come back to us before Report with something positive and joyous, but I ask her to involve the representative groups as sector systems develop. I beg leave to withdraw the amendment.
Amendment 180 withdrawn.
Amendment 181 not moved.
182: After Clause 78, insert the following new Clause—
“Compatibility with Refugee Convention
Nothing in this Act is intended to undermine the obligations of the United Kingdom under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees.”Member’s explanatory statement
This new Clause reflects the Government’s stated intention that the Bill complies with the Refugee Convention and ensures that any ambiguity around interpretation of provisions is resolved in compliance with the Convention and its Protocol.
The noble Baroness, Lady Chakrabarti, has had to leave and has left me to speak. I start by apologising to the Committee that I did not speak at Second Reading. I hope that every Member of the Committee will be satisfied that, by sitting here till 10 pm on the Thursday when we are all supposed to be going home, I have done due penance. I shall also be very short.
The Government have expressly and repeatedly asserted, and continue to assert, that they will make sure that the Bill is compliant with our obligations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees—good. Nevertheless, for all the assertions, for many of us—I include myself in it, although I only had to listen to the debate on the television—our concern about some of the provisions in the Bill arises simply from the fact that we do not see compliance or even consistency. That is an issue which will have to be resolved when we come back; today is not the time to list the various provisions in the Bill which seem non-compliant or inconsistent.
The purpose of the amendment is first to ask for the Minister to confirm, here at the Dispatch Box, that nothing in the Bill is intended to undermine the obligations of the United Kingdom under the convention. That would be a start. We then would presume that if the Government did not accept the proposals to amend that will come up on Report, that would have been based on the advice of government lawyers. You do not need to be a lawyer to know that there is a privilege position between the advice given by the lawyer to the client, but there is of course nothing to prevent the client saying, “It is my privilege”—which it is—“and I am prepared to disclose the advice that I have been given.”
Speaking for myself, I would need a great deal of convincing that the Bill as it now stands is compliant. If the Government were so advised and prepared to disclose their legal advice, we could examine it. I do not expect them to do so; that would be launching into the unknown in a way that no Government ever would.
In the end, this amendment is down really as no more than a marker, a warning, that the issue of non-compliance with the convention—to avoid its long title—is live and kicking, but it would a great start if the Minister were prepared to accept at the Dispatch Box the words that I have used in the terms of the amendment. I beg to move.
I love surreal art, even if I do not always understand it. This amendment seems to be completely surreal.
Twenty-six pages of the Bill are clearly non-compliant with the refugee convention, starting with Article 11. The Committee will remember Magritte’s “Ceci n’est pas une pipe”—a large canvas with a picture of a large tobacco pipe, nothing else, with across it the words, “This is not a pipe”. It is really dangerous for a Cross-Bencher to cross swords with the Convenor of the Crossbench Peers—there are terrible penalties for it—but the amendment is quite surreal in a Bill where a substantial part, 26 pages, is clearly not compliant with the convention and the protocol. That view has been supported by a number of extraordinarily distinguished lawyers in the Committee—by the noble Baroness, Lady Chakrabarti, for one, and I would like to say that at every stage of this Committee I have found her interventions particularly helpful.
The noble and learned Lord, Lord Judge, has now made clear that with this amendment he is merely sticking a pin in the Government; it is a warning of intention. If we were to get an Act of Parliament along the lines of Part 2—the asylum provisions—that included the amendment proposed by the noble and learned Lord, I cannot see what the effect would be in the courts.
Would a court pay any attention to the amendment? The court would have to be guided by the 26 pages of specific, detailed provisions that are in breach of the convention, so if the amendment were there it seems to me that it would be surreal and would have no effect. However, if it is merely a warning to the Government, then fine. I certainly share the noble and learned Lord’s view that what is required here is not the ineffective sticking plaster that the amendment would be but radical surgery.
My Lords, this has been a theme running through the Committee, so it is perhaps fitting that we should come back to it right at the end.
There is a question that I have asked a number of times but I still have not received a proper answer. To go back a step, noble Lords have challenged the Government on the point just made, that the Bill is not compliant with the refugee convention, and the UNHCR, among others, has made that very clear, and the Government have said, “We interpret the convention differently. There are lots of different interpretations.” So I have asked why we should accept the interpretation of this Government over that of the body that is given global responsibility for the refugee convention, and I am still not clear why.
We might have a better inkling of why we should do so if we were given not the actual legal advice, because I take the point about privilege and so forth, but some clearer understanding of what that legal advice contained. Indeed, two days ago—I cannot remember now whether it was in the middle of the night or not—the noble Lord, Lord Wolfson, was pushed on this matter and said:
“I hear the point from the noble Lord”—
that is, the noble Lord, Lord Anderson of Ipswich—
“that he and others would like to see a greater fleshing out of the Government’s legal position. I have said that I will see what I can do to assist in that.”—[Official Report, 8/2/22; col. 1434.]
I know that was only two days ago—or even less, if it was in the middle of the night—but can the Minister update us on that? Will we get some kind of legal statement before Report? She is nodding, which is very hopeful.
My Lords, as a fellow penitent, though in my case probably for taking too much interest and spending too long sitting here—that is not intended as any sort of criticism of the noble and learned Lord—I thank him for explaining the amendment. Of course we on these Benches agree with the objective, which is hugely important, but I was a little puzzled, although I shall not go down the Magritte route, by the words:
“Nothing … is intended to undermine”.
I have been trying to think of a way of using the point about “sticking a pin” in this. I think it would be something about deflating, but I am not quite sure who we would be deflating and my imagination has rather come to a full stop. I am grateful to the noble and learned Lord for raising this point again.
We certainly support the amendment. Throughout the passage of the Bill, the Government have repeated in both Houses that their plans are in line with the refugee convention. We, along with a great many other noble Lords, have some difficulty accepting that view, but if the Government believe that their plans are in line with the refugee convention and therefore, as it says in the amendment,
“Nothing in this Act is intended to undermine the obligations of the United Kingdom under the 1951 Convention”,
there should be no difficulty in them accepting the amendment. I suspect that we are about to find that there are all sorts of reasons why the Government will not agree to it, which will simply add to our view that they know that what they are doing is not in line with the 1951 convention. I think this will probably expose it once and for all, when they are not prepared to put that commitment into the Bill.
My Lords, I thank the noble and learned Lord, Lord Judge, for speaking on behalf of the noble Baroness, Lady Chakrabarti. He is absolutely right: we will not disclose our legal advice. We are absolutely firm on the fact that nothing in the Bill undermines our convention obligations and, on the legal position—which, I think, is what he is getting at—we have already committed to writing, and we will be setting out why we consider it compatible. I hope that that will dispel a load of arguments—while perhaps creating another load—but, with that, I hope that he will withdraw the amendment.
I shall of course withdraw the amendment for today, reflecting with some sadness that there is no Whip among the Cross-Benchers—I am very sorry about that. The issue cannot be resolved without the main provisions of the Bill being amended. It will take a great deal to persuade me and many Members of this House that some of the 26 pages of provisions are compliant with the convention. I was hoping that the Minister would positively assert that “Nothing in this Act” was “intended to undermine” our obligations but, as she has not, we have to draw our own conclusions. For today, I beg leave to withdraw the amendment.
Amendment 182 withdrawn.
Amendment 183 withdrawn.
184: After Clause 78, insert the following new Clause—
“Consultation on citizenship
Within six months of the passing of this Act, the Secretary of State must issue for public consultation a review of its implications for the nature of British citizenship and national cohesion.” Member’s explanatory statement
This amendment requires the Government to consult publicly on the impact of the Act on citizenship and national cohesion.
My Lords, I apologise for detaining the Committee, given the lateness of the hour. I am grateful to my noble friend Lord Hodgson of Astley Abbotts, the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Blunkett, for adding their names to the amendment. The noble Lord, Lord Blunkett, asked me to convey his apologies for being unable to be here this evening because of a commitment tomorrow morning in Sheffield.
Although it is late, this is an important topic. The amendment was meant to give us the opportunity for a leisurely debate on the meaning and value of British citizenship. I suspect that it will be a shorter debate than was originally hoped, but nonetheless it is a very important topic. The British Nationality Act 1981 was shaped by Britain’s new place in a post-imperial world. Previously, we were subjects of the monarch, and the monarch’s sway extended throughout a large part of the world. With the transition to a post-colonial world, thought was given in the late 1970s and early 1980s to the meaning of the bond that should exist between the citizen and the state. An important White Paper in 1980 or 1981 set out the new and alien concept of citizenship—we had never really used the word “citizenship” before—that would express the close bond that existed between people and the United Kingdom.
The question really is: are we living up to the ambition that there would be a citizenship that was more than just a piece of paper, or a particular travel document, but would represent a close sort of bond? It was assumed, I think, in the White Paper and the British Nationality Act, that anyone who had the status of citizen would be treated equally; they would have an equal citizenship. I regret to say that I do not think that is really true any more.
The first inequality, which was discussed much earlier in Committee, on an earlier amendment, concerns the power the state has increasingly taken to itself to deprive British citizens of their citizenship; a power that, since 2015, has extended to any British citizen about whom the Secretary of State believes or has reasonable grounds for believing might have not another nationality but a claim to another nationality. This includes an enormous number of British citizens: anyone with an Irish grandparent and all sorts of people of Commonwealth heritage. The Prime Minister, sadly, since he had the misfortune to be born in the United States, has claims in that regard. All these people now hold a sort of second-class citizenship which could be removed from them by administrative action, simply on the grounds of a reasonable belief held by the Home Secretary.
There is another class of impaired citizenship, which requires me to make a brief comment on how citizenship is actually acknowledged. For most of us, it is acquired by birth or descent—our British citizenship is manifest, if you like, from the time we are born. But there are others who are born where their citizenship is more obscure; they might have been born abroad or their circumstances might be different. Because of that, since 1948 we have allowed people who are British to register that citizenship so that it can be acknowledged. But nowadays, we impose huge, almost punitive fees on people who wish to register their citizenship—their right to citizenship. While I have no particular objection to the Home Office making money out of the rich, if that is what it wants to do, when that becomes a bar to claiming rights to citizenship, it is a genuine obstacle to the exercise of a right and there should be some alleviation of the fee for those who find it difficult to pay.
The third category which is somewhat impaired are those people who are naturalised citizens. Naturalisation is not like registration. Naturalisation is a concession by the state. Nobody has a right to be naturalised as a British citizen, except as provided for in statute, but once they are naturalised, surely they should be treated equally with every other British citizen. Sadly, that has not been true since 1918. It seems to me that it behoves a Conservative Government in a post-Brexit world to have a clearer idea of the meaning, value and equality of citizenship, and I hope they will start to develop one.
I also come briefly to the question of the Government’s view of the value of citizenship—the joy we have in our British citizenship, if you like. I use that word because I spoke on another amendment in Committee about the joy I had seen in people coming to be naturalised and going through the citizenship ceremony process that was introduced about 20 years ago; we never had such a thing previously. I talked about the fact that, when you see these people—in my case, I would see them coming to my town hall—they were very often coming in a spirit of family joy, as if they were going to a wedding; it was a great thing. They were wearing their best clothes and were proud of the event.
I wonder whether the Home Office shares that sense of pride and joy; I do not necessarily feel that it does. Rather, I hear Ministers and government officials speaking increasingly of citizenship as if it were a privilege or concession, rather than a right. That is wrong and insulting, because it is a right. That is also logically absurd, if you think about it, because you have to have citizens before you can have a Government. You can have citizens without a Government—we call that anarchy—but having a Government without citizens is an absurdity. The citizens come before the Government. Citizenship is not conferred by a Government; rather, Governments are acknowledged and created, so to speak, by the citizens.
I will not say any more for now, because the hour is late. I know that one or two others want to speak, so I will leave them to take up the argument. I hope the subject I have raised is not too abstruse. I know the Ministers are tired; I understand that. They have worked heroically. They have been worn down by having to deal with highly detailed, technical questions and are now being invited by me to embark on a broader subject that may slightly frazzle their brains. However, I hope they might be able to make some sort of fist of a response, and I look forward to hearing what my noble friend on the Front Bench has to say. I beg to move.
My Lords, I was pleased to add my name to this amendment. At the risk of frazzling the Government Front Bench even further, I did so with citizenship having been one of my main areas of research and scholarship as an academic—fear not, I will not wear your Lordships’ patience with a treatise on the subject—and also having served on the Select Committee on Citizenship and Civic Engagement, chaired so ably by the noble Lord, Lord Hodgson of Astley Abbots.
Although, as our committee’s report made clear, citizenship is not just about the legal question of who is a citizen, some of our debates during Committee have raised important issues about this aspect of citizenship. During the first day of Committee, noble Lords such as the noble Lords, Lord Moylan and Lord Anderson, and the noble Baroness, Lady Warsi, spoke about how citizenship has been degraded in recent decades by successive Governments. Their focus was exclusively on deprivation powers, but it is not only in respect of those powers that this degradation has happened.
Important too is the exclusion from citizenship of children and young people who are required to register their entitlement, as mentioned by the noble Lord, because of the immigration status of their parents, even though they may have been born in and/or lived their lives in the UK. Aspects we debated on the first day of Committee were the failure to raise awareness of rights of registration, the requirement to show good character even for children as young as 10 and the introduction of well above cost fees, which were described as punitive by the noble Lord.
With regard to the last issue, the level of fees charged for registration, I thank the noble Lord, Lord Sharpe of Epsom, for his letter of 8 February. In particular, I appreciate its recognition that the best interests of the child review required by the Court of Appeal under Section 55 of the Borders, Citizenship and Immigration Act 2009 is separate from the point appealed to the Supreme Court. The decision on the Supreme Court appeal was published on 2 February, as noted in the letter, yet the rest of the letter was written as if it had not yet been published, which I found rather puzzling. It was a disappointing result from my side but, as the letter acknowledged, it raised a separate issue from that of the earlier best interests appeal, the result of which the Home Office accepted.
I have to say that, in view of that, it is still not clear to me why the best interests review had to wait over a year for that judgment. But, now that the judgment has been given, can whichever Minister is replying give us some idea of when we can expect the outcome of the best interests review and an assurance that it will be published? I ask because we may well want to return to this issue on Report.
The theme of my academic work was how we can best develop inclusive citizenship that recognises the importance of citizenship to identity, security and belonging. While that raises much wider issues than those we have debated in this Committee, from the perspective of both the exercise of deprivation powers and the barriers to accessing citizenship registration rights, we have been addressing ways in which citizenship is all too often in practice more exclusive than inclusive, especially for people of colour. The amendment would facilitate a public debate on the implications of this legislation for citizenship and cohesion, which are vital in the face of the many divisions that risk tearing our country apart. I hope the Government will take it seriously.
My Lords, most of the Bill has focused on those who are trying to arrive in this country and whose status is uncertain and contested. However, this amendment is about our attitudes to British citizens whose status is agreed and lawful and should be uncontentious. Yet parts of the Bill seem to be ambiguous about the rights and status of some British citizens. I remind noble Lords that British citizens are from a range of ethnic backgrounds, with many from first, second and third-generation immigrant backgrounds. As a society, these factors are and should be irrelevant. We are all fully British, and it is what we have in common that matters.
Perhaps it is also worth noting that British society in 2022 is not endemically racist. It has changed over recent decades. When I was a young activist in Coventry, Newcastle and then Bradford, gangs of racist thugs regularly hunted down and beat up immigrants, and often the police turned a blind eye. Workplace discrimination was also widespread. It changed because British citizens, often workers, enacted the slogan “Black and white, unite and fight!” and changed the climate and atmosphere—and, indeed, laws and policies—in this country. In other words, people came together beyond racial differences and created a better society. Citizens came together.
I worry that elements of the Bill undermine those achievements and degrade citizenship. But I also worry that contributions opposing the Bill—I have listened to a lot more of the debates than I have spoken in, which is uncharacteristic of me but I wanted to listen and learn—have sometimes done British citizens a disservice, somehow dismissing perfectly reasonable concerns about, for example, the migrant boats or the lack of control over borders as a populist dog whistle, and implying that British citizens are driven by anti-foreigner or even racist sentiments.
One of the reasons I support this important amendment from the noble Lord, Lord Moylan, is that I am keen that we use the Bill to show a commitment to a positive citizenship agenda and, as has previously been argued by the noble Baroness, that we have a public debate and discussion on it in positive terms.
As I explained in relation to Clause 9 in Part 1 of the Bill, I am keen that we bolster the virtues of citizenship and I worry that part of this Bill undermines citizenship in a divisive way. This amendment allows us to check whether this Bill causes any unintended damage, but also more proactively encourages a public debate on the equal rights and duties of all citizens.
Under a range of circumstances, people can work, live and study in the UK without becoming citizens, but for those who actively chose to become citizens or have chosen legally to become citizens, surely our aims should be to ensure that they are fully welcomed and integrated into the social fabric of the UK. Indeed, the amendment mentions social cohesion and it seems to me that the common bond of citizenship is hugely important in 2022, as our society has rarely been more fragmented or atomised.
Despite this, aspects of this Bill and a range of government policies seem to indicate that it is uncertain whether British citizenship is even a good thing. We have heard how the cost of citizenship is prohibitively expensive—the highest cost in the western world, in fact. I am glad that is being addressed. The process is so complicated that most people need lawyers to help them to apply to be citizens.
The noble Lord, Lord Moylan, pointed out that citizenship ceremonies—one of the good ideas of recent years—were joyous occasions. I think they want to be, but they often take place in neglected, hidden-away local council offices, while other countries celebrate them in iconic historic buildings and involve local communities, school pupils and residents in welcoming new citizens. Those kinds of ideas, as suggested by British Future’s excellent report Barriers to Britishness, I think the Government should take up.
Then there are those soulless multiple-choice citizenship tests that reduce British values to a box-ticking exercise and hardly encourage serious discussions of, let alone commitment to, shared national values. One problem, I suspect, is that we as a society are no longer confident that we know what British values are. On that issue, one trend we must avoid is that often when we discuss immigration, citizenship and social coherence, there is an implication that immigrants becoming citizens leads to lack of social cohesion; that they fail somehow to integrate into civil society or identify with the nation state.
I dispute this. So much evidence shows—and anecdotally I know—that many of those immigrant citizens are more likely to identify with the UK and be patriotic than, for example, your average activist student or a decolonising academic in British institutions, from universities to museums. That might be a bit glib, but I think we might all agree that British values are highly contested at home and have got nothing to do with immigration.
I would argue that recasting the project of collective citizenry with an emphasis on what all citizens have in common is a very important and positive move. That requires treating all British citizens as equal. One challenge to this is the present fashion for identity politics which fuels divisions, viewing citizens through the prism of ethnic and cultural boxes. This has led to the de facto treatment of individuals from minority groups not as citizens in their own right but simply as members of a particular ethnic background. This has led to well-documented problems of parallel communities in many towns and cities, and more recently this identity ideology has morphed into the racialising of politics and, for example, the absolutely unhelpful accusations of white privilege promiscuously thrown at citizens just because of their skin colour.
Surely what we need is a model of citizenship that cuts across this insidious focus on ethnicity or skin colour. It is one reason that I fear that the controversial Clause 9 in Part 1 has doubled down on the notion of tiered citizenship, with many citizens feeling insecure and that they are being treated as second-class citizens. British citizens from immigrant backgrounds fear that this Bill itself is racialising their experience.
This amendment would allow a fresh and positive reassertion of the idea that citizenship in the UK, unlike in other countries, once legally and lawfully acquired, is a permanent and inviolable right. It is not a privilege and it is not provisional; all British citizens are equal. This will undoubtedly help us tackle the fraying of social solidarity. This seems especially pertinent when we think of the boost that British citizens gave to the British democratic system when they voted to take back control. National sovereignty, if it means nothing else, is about creating the real living bonds of a British citizenry who are proud to be part of the United Kingdom. I hope the Government will seize the positive aspects of this amendment to improve their Bill and ensure British citizenship for everyone.
I will listen with interest to the Minister’s reply, on behalf of the Government, to this amendment. The amendment states:
“Within six months of the passing of this Act, the Secretary of State must issue … a review of its implications”.
One will have to start pretty smartly, once the Act comes in, to carry out a review and put it out for public consultation within six months. I am not necessarily sure that the implications will be fully known within six months, but presumably the movers of the amendment feel that that could be addressed and it could be done within that timespan. Usually, the Government would argue that this is far too quick and that they need more than six months.
What also strikes me is that the review is not going to be independent, or at least, the amendment does not say it will be. It states that
“the Secretary of State must issue for public consultation a review”.
It could be independent or it could be knocked together by the Secretary of State herself, as far as the amendment is concerned. It may be done by members of the Government, but I am not sure Mr Johnson ever talks in negative terms about his own legislation. If it is going to be a government review, I do not think it will say that the implications are adverse in any way. If it does, it would be a remarkable change of stance from this Government.
The amendment also says that it is a review only of the “implications” of this Act
“for the nature of British citizenship”.
To take the wording strictly, it is not a general review of
“British citizenship and national cohesion”,
but one purely related to the “implications” of this Act for
“the nature of British citizenship and national cohesion”.
Those were a few thoughts on the wording of the amendment. If the Government wish to accept it, fine. We will not stand here and demand they change their stance, but I will listen to the Government’s response with interest. I suspect they may not accept it, or they may tell us that they are already doing other work on the nature of British citizenship and national cohesion, and we should wait for that and that it will be available in due course—which may be some years ahead.
My Lords, so many of the points made in the submission of the noble Lord, Lord Rosser, appear in my briefing note that I am suspicious that the Bill team is leaking him material. Perhaps I should institute a security review. But I am grateful to the noble Lord. I also say to the noble Baroness, Lady Lister of Burtersett, that, far from frazzling the brains of the Front Bench, noble Lords’ contributions to this debate in Committee have had a tonic effect.
I laughed when the noble Lord, Lord Rosser, introduced his remarks by inviting us to look at the wording because, with all due respect to my noble friend Lord Moylan, it seemed there was a degree of pretext about the manner in which this amendment was tabled. I noted that many of the points my noble friend made this evening were foreshadowed in previous debates. I accept that his purpose was to introduce a debate on the nature and values of citizenship, but we lack the time and personnel. This is not to suggest that the noble Lords who contributed are not Members whose views are listened to with the utmost respect, but I think my noble friend wished for a fuller House before these topics were canvassed. I am grateful to the noble Baroness, Lady Fox, who is nodding in agreement.
My noble friend Lord Moylan spoke about “the joy of citizenship” in a manner which, to Conservatives, called to mind the writings of the late lamented philosopher Sir Roger Scruton. My noble friend spoke about the history of the expression “citizenship” and took us back to the 1981 Act and the circumstances nationally and politically in which it was framed, wondering whether the hopes behind the legislative change in that Act were fulfilled.
Undoubtedly, for many of us, in a British context the expression which “citizenship” replaced, that of being “a British subject”, carried with it, at least in poetic terms, a greater resonance—although that is not to say that “citizen” is not an exceptionally powerful expression in other contexts too, particularly in France and the United States of America, where to say that one is a citizen of those countries is an extremely powerful thing. If the Committee will indulge me, my noble friend’s remarks prompted reflection on the speech of Cicero in the prosecution of Verres, when he drew the jury’s attention to the conduct of the tyrannical despot in flogging a man to death. When strokes landed on his back, he punctuated the blows by exclaiming, “I am a Roman citizen! I am a Roman citizen! I am a Roman citizen!” That is the power which the word can take on.
Returning to the more mundane, again, I thank the noble Lord, Lord Rosser, for anticipating my point. The amendment does not and could not provide sufficient clarity without the leisurely debate that my noble friend has called for about what it wants the Government to do. It calls for public consultation and a review of the implications for the nature of British citizenship and national cohesion, but it does not say what the terms of reference should be for the review, nor who should lead it—to adopt again, gratefully, the point made by the noble Lord, Lord Rosser. I am therefore concerned at the wide scope of the expressions “nature of British citizenship” and “national cohesion”. The scale of the questions likely to be posed were hinted at in a short but thoughtful contribution by the noble Baroness, Lady Fox, which alone could provide the House with material for a week’s-worth of debate.
The second reason why I cannot accept the amendment is that the call for public consultation—again, the noble Lord, Lord Rosser, was, as they say, bang on the money—to start within six months of Royal Assent is unworkable. Some measures in the Bill will not be fully in effect six months after Royal Assent. Many will, but some will take longer to operationalise, if your Lordships will pardon the neologism. Those measures that are fully in effect will, by definition, have been so for less than six months, so it is very doubtful that any such review could say anything meaningful about the impact they may be having.
However, I assure the Committee that as part of our work to start operating the Bill’s measures, we are drawing up plans to monitor and evaluate its impacts, and to develop the evidence base to support further work. For these reasons, and anticipating—
That is a very helpful answer. I understand the technical difficulties of accepting the amendment, but monitoring is only one aspect. I supported this amendment because of its commitment to a public debate. On who might lead the inquiry, it could be the Minister, who actually understood the points about the importance of citizenship, whether he was referring to Cicero or the French meaning of citizenship. Might the Government come back with a better-worded version of this to ensure that the public have the kind of debate that we are not quite having tonight but is being hinted at? The amendment’s intention is to give the Government the opportunity to launch a positive discussion about British citizenship.
I am grateful to the noble Baroness for her intervention. I cannot promise that any such debate will take place within the framework of this Bill, but I merely reiterate my thanks to her, along with other contributors to this short and late debate, for focusing the Committee’s attention on these extremely important and significant matters.
In conclusion, and with thanks again to all who have contributed, I invite my noble friend Lord Moylan—
I am obliged to the noble Baroness, and I apologise for not raising the matter before I went to sit down. We will write to her to answer the point that she raised. Unless there are any other matters with which I can assist the Committee, I propose to take my seat, in the hope that my noble friend will withdraw his amendment at this stage.
My Lords, I think that, if the House divided now, we might win on this, but let us not pursue that thought. I will just say that I am extremely grateful to the noble Baronesses, Lady Lister of Burtersett and Lady Fox of Buckley, for their contributions to this debate. I am overwhelming grateful to the noble Lord, Lord Rosser, for missing the point entirely and doing the Government’s work for them so effectively. However, I will look to him for support if I come back on Report, having changed the amendment to allow a more ample period for the review to be carried out and possibly even to specify who might carry it out. We could appoint the noble Lord himself in statute to lead it. If that were the case, perhaps he would come round to supporting it.
I much preferred the response of my noble and learned friend the Minister, not least because he brought Cicero into it. If the Committee will indulge me for a moment—I know that it is very late—I have to say that I once asked the current Prime Minister, when he was in a different role, for a reference for a particular purpose. One of the questions was, “Could you give an account of his speaking skills and abilities?” In the large box beneath it, in which he was expected to write several paragraphs, he simply wrote, “Ciceronian”. So my noble and learned friend will know that he is on the right side of power at the moment in his insight, and he should cling to that position for as long as it lasts.
On substance, I cannot do better than repeat the intervention made just now by the noble Baroness, Lady Fox of Buckley. She said what I think the three of us wanted to say: there is a role for a debate about what citizenship and nationality mean. In my view, it is incumbent on the Government, especially in the new circumstances in which we have found ourselves since leaving the European Union, to initiate such a debate and have views on what the answers to those questions are.
I will not elaborate further on that because the noble Baroness said it very clearly. Temporally, noble Lords will be relieved to know that I shall not divide the Committee just now, despite the favourability of the numbers. I beg leave to withdraw my amendment.
Amendment 184 withdrawn.
Amendments 185 and 186 not moved.
187: After Clause 78, insert the following new Clause—
“Time limit on immigration detention
(1) This section applies to any person (“P”) who is liable to detention under a relevant detention power.(2) P may not be detained under a relevant detention power for a period of more than 28 days from the relevant time.(3) If P remains detained under a relevant detention power at the expiry of the period of 28 days then—(a) P must be released forthwith, and(b) P may not be detained under a relevant detention power thereafter, unless the Secretary of State or an immigration officer, as the case may be, is satisfied that there has been a material change of circumstances since P’s release and that the criteria in section (Initial detention: criteria and duration)(1) are met.(4) In this section, “relevant detention power” means a power to detain under—(a) paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal); or(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).(5) In this section, “relevant time” means the time at which P is first detained under a relevant detention power.(6) This section does not apply to a person in respect of whom the Secretary of State has certified that the decision to detain is or was taken in the interests of national security.”Member’s explanatory statement
This new Clause would prevent people who are liable to detention under a relevant power from being detained for longer than 28 days.
My Lords, I will move the amendment tabled by the noble Baroness, Lady Chakrabarti, and supported by the noble Baroness, Lady Jones, because I feel so strongly about the subject. Who knows, the Government might have something new to say; I would not want the Minister to waste her speech. I am not sure whether the noble Baroness, Lady Williams, will be replying—she is nodding. I want to use this opportunity to thank the noble Lords on the Government Front Bench at the moment for their courtesy through a number of trying hours. There is a lot that I do not agree with—I have made no secret of the fact that I think this is an awful Bill—but we always appreciate how the noble Baroness approaches everything. She must be very tired but she does not show it. I just wanted to express my thanks; I have heard such comments outside the Chamber as well.
Last night, I discovered that the beautifully honed notes for my speech had disappeared. It was not so beautiful as to include “civis Britannicus”, though—if I have got that right. Perhaps I dreamed that I wrote it because this is not the first time that I have spoken on the importance of immigration detention not being indefinite, although it may be the shortest speech I have made on the subject. Some of the amendments may be in the same form as ones I have spoken to in the past and divided on.
Detention centres are formally immigration removal centres because they are for the removal of people liable to be removed, not indefinite incarceration. In a lot of our debates over the years, the Government have said that people are not detained for that long. That is not point. Some are, of course—some are detained for a long time—but it is uncertainty and lack of hope that characterise indefinite detention. We have often heard from ex-detainees of the loss of hope and its impact on them.
I want to mention one other amendment in this group, on ending the use of privately run places of detention. It is not something we have previously debated, I think, but I recall having a conversation with Brandon Lewis when he was the Minister in the relevant department—at least I got his name right this time—following revelations about Brook House. I asked him why the Government did not just terminate the contract with the contractor. He said, “We’d end up with the same staff because they’d be transferred or they’d reapply for their jobs, and there are not many people who want to do the job”. I did not find that entirely convincing; rather, it was not a complete answer. I fear that the ship of having only state-run detention centres has sailed but, if the Minister has notes that refer to this, I think that the Committee—or, if not the Committee, the people who read Hansard—would be glad to hear them. I beg to move.
My Lords, I will speak very briefly to support the amendment. Seven years ago, I was a member of the inquiry by the All-Party Parliamentary Group on Refugees into detention. We called for time limits and had strong support across both Houses of Parliament, yet here we are, seven years later, still having to make the same arguments. Despite the Shaw reforms, there is still evidence of people who have survived traumatic experiences being detained and evidence of the damage it does to them and their health. There is evidence to suggest that the indefinite nature of detention contributes to mental ill health for the reasons that the noble Baroness has given—uncertainty, the lack of hope, and so forth.
I really hope the Minister will not respond by saying that detention is not indefinite, because that is semantics. She is laughing; I am sure that is in her brief. The fact that people are released does not mean it is not indefinite—the lack of a clear time limit is the popular understanding of what “indefinite” means. There is no time limit, so people do not know how long they are going to be kept there, and my memory from that inquiry of when we talked to people who had been in detention was that it is worse than being in prison because you do not know when you are coming out.
The only other point I want to make—maybe this is not the time and maybe the Minister can write to us—is that I wonder where we have got to on community-based alternatives to detention. That was put forward as a possibility and I know there were pilots. Given that a high proportion of those detained are released back into the community, it seems to make a lot of sense to try and do it in the community as far as possible, as opposed to these terrible detention centres. But please do not say that detention is not indefinite because it is, in the way it is experienced.
My Lords, I want to say a few sentences as my last words in Committee—thank goodness, at 11 o’clock at night. I agree with what my noble friend Lady Hamwee has said, and I applaud everything she has done over the years on immigration detention—and the noble Baroness, Lady Lister of Burtersett. Both are doughty champions of trying to constrain immigration detention and stop it being indefinite. I do not have their background on this subject, but I know that the Minister has grappled with them—if I can put it like that—over the years, and if she had some encouraging news for them that would be a great way to end the Committee.
I certainly endorse the words of the noble Baroness, Lady Ludford, about my noble friend Lady Lister of Burtersett and the noble Baroness, Lady Hamwee. I will be brief, but in 2019 the Home Affairs Select Committee reported that it had found
“serious problems with almost every element of the immigration detention system.”
“It is time to implement radical change”
and, in line with the Joint Committee on Human Rights, urged the Government to bring an end to indefinite immigration detention and to implement a maximum 28-day time limit with immediate effect. The Government have, so far, refused to act on this recommendation despite votes in this House in favour of a time limit. I simply conclude by asking what plans the Government have to overhaul immigration detention, including limiting the length of its use.
My Lords, I will start by making the noble Baroness, Lady Lister, happy by talking about alternatives to detention and managing people in the community, because 95% of people who are liable to removal from the UK are actually managed in the community while their cases are progressed. That obviously demonstrates, for a start, that we are using alternatives to detention to manage those without status in the UK.
Following the Home Secretary’s announcement back in July 2018, officials have been working with the UNHCR to develop and deliver two pilots to provide those who would otherwise be detained with a programme of case management support in the community, including access to legal advice to progress their cases to conclusion. The first pilot, Action Access, concluded on 31 March last year. I understand that the UNHCR evaluation has just been published and I will send a link to that, if I can. The second pilot, the Refugee and Migrant Advice Service, is currently supporting men and women in the community and will remain in operation until June of this year, with a further UNHCR evaluation to follow.
The noble Baroness also mentioned the Stephen Shaw reforms—I am now working backwards in my speech. The Government have commissioned two of them and I think that they form an important part of our ongoing immigration detention reform programme. We have introduced significant reforms in the last few years, including the detention gatekeeper assessing the suitability of all those referred for detention, independently of those making the referral, which brings consistency and scrutiny to prevent potentially vulnerable individuals from being detained. We have case progression panels, which consider whether continuing detention is actually appropriate in the light of progression to return and any changes in vulnerability. The adult risk policy ensures that an appropriate balance is struck between vulnerability and immigration considerations. There are now also more Home Office staff in IRCs and a higher ratio of supplier staff to people in detention.
The noble Baroness, Lady Hamwee, mentioned Brook House, absolutely rightly. We have implemented steps across the detention estate to enhance assurance and oversight of service provision. We have strengthened our capacity to monitor performance across the estate. This includes: action to refresh and reinforce whistleblowing; improving information flows on and analysis of complaints, incidents and use of force to better enable effective interventions, where appropriate; strengthening service and contract monitoring within IRCs; and enhancing supplier and Home Office engagement with people in detention.
In the period ahead, new contracts will set high expectations for the quality of management and staffing in IRCs. The contract for the recently opened Derwentside IRC, and the new contract to operate Dungavel House IRC, take into account Stephen Shaw’s two reviews of vulnerability in detention and the lessons from the events of Brook House in 2017, in particular through strengthening IRC staffing levels, professional skills in staff and an assurance on whistleblowing procedures. The design of the new IRC contract also takes into account the findings from the National Audit Office’s review of the management of the Brook House IRC contract in 2019, with more importance given to issues of safeguarding, the welfare of detained individuals, staff culture and training. I hope that noble Lords can see the sort of progress that has been made over the last few years.
I think that I have talked through Amendments 187 to 189. Let me just touch on Amendment 189. The proposal for the judiciary to be involved in considering cases at or around the 96-hour period of detention would place significant additional burdens on the Courts & Tribunals Service and legal aid budgets, due to the dramatic rise in the number of cases that would need to be referred. These increases would make the system unsustainable without significant reform.
The statutory powers to detain are rightly vested in the Secretary of State. Going back to the point of the noble Baroness, Lady Lister, it is unlawful to detain people indefinitely. There are safeguards in the system, including access to the courts in the form of judicial review, bail applications and automatic referrals for consideration of bail.
On privately run institutions, the needs of those in detention are safeguarded by a robust statutory and policy framework for operating the immigration detention estate. This includes: the Detention Centre Rules, the Short-term Holding Facility Rules, published operating standards for IRCs, escorting and pre-departure accommodation, and published detention services orders, which provide detailed operational guidance. We are very committed to ensuring that everyone in immigration detention is treated in line with proper standards of care and decency. Robust statutory oversight is provided by HM Chief Inspector of Prisons and the independent monitoring boards.
The Home Office contracts specialised private sector companies to provide a wide range of custodial services for the operation, management and maintenance of those in the detention estate. However, although the operation, management and maintenance of IRCs is undertaken by experienced custodial suppliers, it is important to note that the Home Office has overall responsibility for ensuring that companies meet the required standards. In every IRC we have a Home Office compliance team, which is responsible for ensuring that suppliers are fulfilling their contractual requirements. They monitor the services provided, the treatment of detained individuals and the condition of the establishment, and ensure that the Home Office receives effective service and value for money. We have also introduced dedicated teams in each IRC to engage proactively with detained individuals and liaise between them and their Home Office caseworkers.
The noble Baroness, Lady Lister, rightly talked about mental health issues in IRCs. We have 24-hour medical provision in IRCs, but she is absolutely right that mental health issues must be of prime concern. I also mentioned earlier the adults at risk policy.
I think that is about it, but I close by saying that detention decisions are made on a case-by-case basis. I hope that, with those rather random responses, going backwards, the noble Baroness will be happy to withdraw her amendment.
I did address that point. The noble Baroness will not be surprised to know that we are against putting time limits in the Bill because of the potential for abuse. I have said this before, and opposition to it has not changed our mind.
My Lords, obviously that is disappointing. I do not feel I am in a position to judge what, on the face of it, seems encouraging from the comments that have been made about improvement of detention arrangements. I will be very interested to see the UNHCR evaluation that the Minister mentioned. However, I cannot help saying—I suppose it is the role of the Opposition to approach assurances with our own questions—that I remember the gatekeeper point and that the JCHR, of which I was a member, was unpersuaded that that role was effective.
With regard to the points on care and decency, not just in Brook House but throughout the detention estate, it seems that it took the media to prompt action and not the reports by inspectorates and others through the system. I suspect that the explanation we have had may prompt views from the sector; let us see what happens. I beg leave to withdraw the amendment.
Amendment 187 withdrawn.
Amendments 188 to 191 not moved.
Amendment 192 had been withdrawn from the Marshalled List.
Amendments 193 and 193A not moved.
Clause 79 agreed.
Clause 80: Transitional and consequential provision
Amendment 194 not moved.
Clause 80 agreed.
Clause 81 agreed
Clause 82: Extent
Amendment 194A not moved.
Clause 82 agreed.
Clause 83: Commencement
Amendment 195 and 196 not moved.
Clause 83 agreed.
Clause 84 agreed.
Bill reported without amendment.
House adjourned at 11.18 pm.