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Commonwealth Development Corporation Bill

Read a third time, and passed.

Asylum and Immigration Bill

3.9 p.m.

The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.

Moved, That the House do now resolve itself into Committee (on Recommitment).--(Baroness Blatch.)

On Question, Motion agreed to.

House in Committee (on Recommitment) accordingly.

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[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 9 [Entitlement to housing accommodation and assistance]:

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish) moved Amendment No. 1:


Page 7, line 17, leave out ("who") and insert ("unless he").

The noble Lord said: In moving Amendment No. 1 I shall speak also to Amendments Nos. 2 and 3. The broad purpose of Clause 9 is to ensure that council housing is used to best effect and not allocated to people who may be in this country only for a short time and to align entitlement to assistance under the homelessness legislation with entitlement to housing benefit. The overall policy intention here is to ensure that persons who are subject to immigration control do not have access to housing assistance at the taxpayers' expense if they have no valid claim to it.

As drafted, Clause 9 provides the Secretary of State with a power to specify by order those classes of persons subject to immigration control who are to be excluded from housing entitlement. In effect, that means that exclusion from entitlement of certain classes of person is achieved by subordinate legislation; namely, an order.

We have been considering two issues concerning the construction of Clause 9. The first is that the approach I have just outlined is not consistent with the construction in Clause 10 which deals with the entitlement to child benefit. In Clause 10 it is made clear on the face of the Bill that persons subject to immigration control are entitled to child benefit only if they satisfy prescribed conditions. I think your Lordships will agree that of the two the construction in Clause 10 is clearer.

The judgment of the Court of Appeal on 21st June concerning the validity of the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996 has prompted us to look again at the construction of Clause 9. I shall be moving a new clause after Clause 10 which addresses the main effect of the judgment, so I do not intend to dwell on the detail of it at this stage.

For the purpose of considering these amendments, I would just say that the court ruled that the regulations were ultra vires and unlawful in so far as they deny council tax benefit, housing benefit or income support benefit to asylum seekers whose claim has not been finally determined. The judgment was not unanimous. Two of the three Lords of Appeal hearing the case considered that the appeal should be allowed. But the judgment makes clear that their decision turned on the question of the extent to which subsidiary, or secondary, legislation can be drawn without conflicting with either the enabling statute or with other primary legislation. Those are very proper concerns, and they have caused us to reconsider the construction of Clause 9.

The amendments would bring the construction of Clause 9 into line with the construction of Clause 10. The effect would be to make clear on the face of the Bill that persons subject to immigration control are not entitled to council tenancies or eligible for assistance

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under the homelessness legislation unless they fall within certain classes of such persons specified by order. That would make clear in primary legislation the policy intention that persons subject to immigration control do not have entitlement to housing assistance except where that is warranted.

The classes of person we intend to exclude from entitlement to council tenancies or to homelessness assistance remain unchanged. The policy is unchanged. It is the means of delivering the policy which is turned about. Under Clause 9 as drafted we would specify by order those classes of person subject to immigration control who are excluded from entitlement. Under the clause as amended we would specify by order those who are entitled. We intend that an order under Clause 9(1) would specify that the only classes of person entitled to be allocated a council tenancy would be refugees, persons granted exceptional leave to remain, and persons with indefinite leave to remain.

The order would also specify that persons subject to immigration control who are students attending a full-time course at a UK college or university may be granted a tenancy of surplus accommodation leased by a local authority to the college or university where they are studying.

As regards an order under Clause 9(2), we intend that the classes of person subject to immigration control who would be entitled to assistance under the homelessness legislation would be refugees, persons granted exceptional leave to remain, persons with indefinite leave to remain, and persons who sought asylum on arrival, for as long as their claim is being determined by the Home Office.

The amendments would improve the clarity of the provisions in Clause 9 and ensure that any question as to vires or lawfulness regarding the exclusion of certain classes of person subject to immigration control from housing entitlement would be put beyond doubt.

The arguments about council housing being available and about the homelessness legislation are exactly those I put forward and which the House agreed when we discussed Clause 9 on the previous Committee day. These amendments merely reconstruct the clause taking account of Clause 9 and also of the decision by the Court of Appeal. I commend the amendments to the Committee. I beg to move.

On Question, amendment agreed to.

3.15 p.m.

Lord Mackay of Ardbrecknish moved Amendments Nos. 2 and 3:


Page 7, line 18, leave out ("who is of a class specified in an order made by the Secretary of State").
Page 7, line 25, at end insert ("unless he is of a class specified in an order made by the Secretary of State").

The noble Lord said: I have spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Clause 9, as amended, agreed to.

Clause 10 agreed to.

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Lord Mackay of Ardbrecknish moved Amendment No. 4:


After Clause 10, insert the following new clause--

Saving for social security regulations

(".--(1) Notwithstanding any enactment or rule of law, regulations may exclude from entitlement to any of the following benefits, namely--
(a) income support, housing benefit and council tax benefit under the Social Security Contributions and Benefits Act 1992;
(b) income support and housing benefit under the Social Security Contributions and Benefits (Northern Ireland) Act 1992; and
(c) jobseeker's allowance under the Jobseekers Act 1995 or the Jobseekers (Northern Ireland) Order 1995,
any person who has made a claim for asylum and is of a prescribed description.
(2) Regulations may provide that, where such a person as is mentioned in subsection (1) above is subsequently recorded by the Secretary of State as a refugee within the meaning of the Convention--
(a) that person may, within a prescribed period, claim the whole or any prescribed proportion of any income support, housing benefit or council tax benefit to which he would have been entitled had he been recorded as a refugee immediately after he made the claim for asylum; and
(b) where he makes such a claim as is mentioned in paragraph (a) above in respect of housing benefit or council tax benefit having resided in the areas of two or more local authorities in Great Britain, the claim shall be investigated and determined, and any benefit awarded shall be paid or allowed, by such one of those authorities as may be prescribed.
(3) Regulations making such provision as is mentioned in subsection (2)(b) above may require the other authorities there mentioned to supply the prescribed authority with such information as it may reasonably require in connection with the exercise of its functions under the regulations.
(4) Schedule (Modifications of social security regulations) to this Act--
(a) Part I of which modifies the Social Security (Persons from Abroad) Miscellaneous Amendments Regulations 1996; and
(b) Part II of which modifies the Social Security (Persons from Abroad) (Miscellaneous Amendments) Regulations (Northern Ireland) 1996,
shall have effect.
(5) The Jobseeker's Allowance (Amendment) Regulations 1996 shall have effect as if they had been made on the day on which this Act is passed.
(6) In this section--
"claim for asylum" and "the Convention" have the same meanings as in the 1993 Act;
"prescribed" means prescribed by regulations;
"regulations"--
(a) in relation to income support, housing benefit or council tax benefit under the Social Security Contributions and Benefits Act 1992, means regulations under that Act or the Social Security Administration Act 1992;
(b) in relation to income support or housing benefit under the Social Security Contributions and Benefits (Northern Ireland) Act 1992, means regulations under that Act or the Social Security Administration (Northern Ireland) Act 1992;
(c) in relation to jobseeker's allowance under the Jobseekers Act 1995, means regulations under that Act or the Social Security Administration Act 1992;

1 Jul 1996 : Column 1221


(d) in relation to jobseeker's allowance under the Jobseekers (Northern Ireland) Order 1995, means regulations under that Order or the Social Security Administration (Northern Ireland) Act 1992.").

The noble Lord said: In moving Amendment No. 4 I shall speak also to Amendments Nos. 15 and 17. As I announced in the House last Monday, I am today bringing forward primary legislation to respond to the decision of the Appeal Court on 21st June that the regulations on asylum seekers passed by your Lordships on 30th January were ultra vires and that primary legislation alone could achieve what the Government and both Houses of Parliament had agreed.

I should like to remind your Lordships why the Government reached the conclusion that something had to be done to control the increasing numbers of asylum seekers coming to this country and receiving benefits from British taxpayers on what, in the great majority of cases, turned out to be a false basis.

Over the past 10 years the numbers applying for asylum in this country have increased tenfold. In 1984, 1985, 1986, 1987 and 1988 the numbers ranged from 4,000 to 6,000. In 1995 they had reached 55,000. A decade ago the numbers ranged from 4,000 to 6,000 and by last year they had reached 55,000.

The Benches opposite may say that I should not be surprised. They will tell us that the world has become a much more dangerous place. But has it? If it has, and that is the reason for the increase, then surely I should find the same increase elsewhere in Europe. But I do not. Perhaps we may look at the European picture. In 1986, when we had 5,700 applicants, the total for Europe was 228,000. In 1995 the European total had increased to 329,000. That is an increase of 44 per cent. During those years the increase in the whole of Europe was 44 per cent. Our numbers, which were 5,700 in 1986, were 55,000 last year. That is an increase of almost 800 per cent. One needs to compare and contrast an increase of 44 per cent. with an increase of 800 per cent.

If we look at those asylum seekers from the point of view of the success or otherwise of their application, what do we find? In 1985, with 6,200 applicants, 21 per cent. of the initial decisions led to the granting of asylum. Last year, with 55,000 applicants, that had fallen to 5 per cent. In other words, 10 years ago, for every 100 asylum seekers coming to these shores 21 were found to be genuine whereas, last year, only five were. Therefore, the UK has seen a far greater increase over the past decade than the rest of Europe, for which the figure is 44 per cent. in contrast with 800 per cent. in this country. The proportion of those who turn out to be genuine has fallen quite markedly. I do not believe that those figures and those comparisons give any weight to the contention that the world has become more dangerous, only that we have become more attractive.

In social security we have a threefold objective: to pay benefit to the right person at the right time and at the right amount. The "right person" in this context is someone who claims and is found to be a refugee. In 1995, out of every 100 who claimed asylum, after both the initial Home Office decision and any appeals, seven

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were granted refugee status, 16 were granted exceptional leave to remain and 77 were refused both. In other words, months and indeed, in some cases, years of benefit was paid to the wrong person. On the 1995 figures, and excluding dependants, 34,000 people were receiving benefit who turned out not to be genuine refugees.

That cannot be right. We would not accept that degree of error in any of the benefits we pay to our own citizens. And we surely cannot expect our own taxpayers to dig into their pockets to pay around £200 million without justification. Therefore we brought forward our proposals, and made changes from last February, changes which I believe were both fair to genuine asylum seekers and fair to our own taxpayers.

We removed entitlement from three groups of asylum seekers: first, those who entered this country illegally and only later claimed asylum; secondly, those who enter this country claiming to be tourists or businessmen and who undertook to maintain and accommodate themselves without recourse to public funds--and I repeat, without recourse to public funds; and those who had been found by the Home Office not to fulfil the criteria set out in the UN convention.

Under normal rules in the benefits system you have to establish that you have a legitimate claim before receiving any benefit. Of course we accept that asylum seekers have to be treated more generously. That is why anyone who applies at the port of entry--at the first possible opportunity--will be eligible to receive income support at the 90 per cent. rate, housing and council tax benefit, and help under the homelessness legislation. And for anyone here on business, visiting or to study, who finds that his home country has suffered a significant upheaval, his claim for asylum will allow him entry into the benefit system.

Also under normal rules in the benefit system, a British claimant who is appealing does not receive benefit during the course of the appeal. Our proposals will apply the same rules to asylum seekers who appeal as apply to our own citizens. I know that some of your Lordships think that that is particularly harsh. But let us consider the facts. Almost every person who is refused appeals against that refusal and of course stays on benefit--17,000 in 1995. The appeals process is long, and of course every appellant has every incentive to delay the day of decision, and some do. And only three out of every 100 have their appeal upheld. I submit to the Committee that that is not a very good example of benefit going to the right people.

Now, it would be a very fair question to ask me what has happened in the months since February as the policy we agreed here on 30th January has come into effect, and I am glad that that question has been asked. Taking this year's figure for February and comparing it with last year, the number of applicants was down by 6 per cent. In March, it was down by 5 per cent.; in April it was down by 27 per cent.; and in May it was down by 49.16 per cent.--from 3,450 in May 1995 to 1,754 in May 1996.

I am in no doubt that the policy that we agreed in January, and the policy which I am asking the Committee to confirm today, is the correct one. The facts I have

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outlined make it clear that any responsible government had to act, and the results since February justify that action. The new clause and the new schedule put beyond doubt Parliament's powers to restrict benefit entitlement for asylum seekers in the way set out in the February regulations.

I shall explain the amendments in terms of how they achieve their goal. Subsection (1) of the new clause specifically provides in primary legislation for the power to withhold benefit entirely from certain asylum seekers. It therefore directly meets the appeal court's concerns. Having provided for the powers that the court said were missing the second task is to reinstate as from Royal Assent those regulations which the court found to be ultra vires. This is done in the schedule.

The third task is to deal with the unforeseen entitlements that have arisen because of the return to the rules which existed before 5th February. Anyone who obtains benefit because of the court's judgment, will have that stopped once this Bill becomes law. And anyone who comes along after Royal Assent and claims benefit for the period between 5th February and this Bill becoming law solely on the basis of the court's judgment will not be entitled. Those who have obtained money during the period will keep it.

Perhaps I should say a word about those people who were transitionally protected. The provisions of 5th February regarding them still stand as the court did not find against them.

There is a fourth task, and one not arising out of the Court of Appeal's decision. I announced last Monday that once someone is accepted as a refugee he will be able to ask for his entitlements to benefit to be backdated at the asylum seeker rate to the start of his application for asylum. This will bring the treatment of refugees into line with that of British citizens who win an appeal, and will apply to income support, housing and council tax benefit. This will address one of the concerns expressed by the Court of Appeal in its judgment of 21st June.

I have no doubt that in the course of discussing the various amendments tabled by the Benches opposite I will be able to go into greater detail, but I hope that during the debate we can hear some indication of what the two parties opposite would do to deal with the very considerable abuse of the asylum system and the considerable sums of taxpayers' money which have been wrongly spent on people who turn out to have no claim on our hospitality.

On 30th January, when I successfully persuaded your Lordships to join me in the Division Lobby to pass the regulations, I believed that they were sensible measures which, given the facts that I have outlined--and I outlined them then--any sensible and responsible government had to take. I am equally convinced today, and even more so when I examine the statistics for the months which have passed since we agreed to the amended regulations in January. I commend the amendments to the Committee. I beg to move.

[Amendment No. 5, as an amendment to Amendment No. 4, not moved.]

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