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House of Lords

Wednesday, 3 February 2016.

3 pm

Prayers—read by the Lord Bishop of Norwich.

Syria: Brimstone Missiles


3.06 pm

Asked by Lord Thomas of Gresford

To ask Her Majesty’s Government what is their assessment of the effectiveness to date of the RAF’s Brimstone missiles in bombing Syria, and in particular in protecting the civilian population.

The Minister of State, Ministry of Defence (Earl Howe): My Lords, the Brimstone missile offers the coalition a capability to strike moving targets accurately, with minimal risk of collateral damage. Between 2 December 2015 and 31 January 2016, RAF Brimstone missiles were used successfully on nine occasions in Syria to strike enemy vehicles. There have been no associated reports of civilian casualties and it is assessed that all targets were successfully destroyed or damaged.

Lord Thomas of Gresford (LD): Yes, I think that the kill so far has been two trucks and five mobile cranes. Does it really matter what type of bomb or which of the coalition partners drop it? It has been reported that some 40 civilians or more were killed in January and in the first two days of this week. Surely we are involved in a joint enterprise and, by long-standing principles of English law, we are all of us legally and morally responsible for the lives of those who are killed—innocent civilians, innocent men, women and children—by these bombs. What comment would the Minister have?

Earl Howe: So far as we are concerned, as a member of the coalition, we take the possibility and risk of civilian casualties extremely seriously. As I said in my initial Answer, to date there is no evidence that UK strikes have resulted in civilian casualties. Three factors underpin that: our use of precision guided weapons; our adherence to very strict targeting and planning protocols; and, above all, the skill of our pilots and air crew. I think that it does make a difference whether it is the RAF or another air force taking part.

Lord Soley (Lab): The real problem here is heavy bombers flying from Russia unloading unguided bombs in large numbers and killing almost indiscriminately. Does not that also have a dramatic effect in driving up the refugee numbers, which continue to destabilise Europe? Maybe—just maybe—we are not taking this seriously enough.

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Earl Howe: The noble Lord is absolutely right. There is no question that Russia is actively targeting civilians and is almost certainly in breach of international humanitarian law in the process. That has to stop. Russia cannot continue to sit at the table as a sponsor of the political process and, at the same time, bomb the civilian areas of the very groups of people whom we believe will form the backbone of the new Syria, once Assad has left.

Lord Stirrup (CB): My Lords, is the Minister able to give the House figures for the number of civilian casualties in Syria caused by the action of ISIL on the ground?

Earl Howe: I do not have precise figures, but as the House will know the vast majority of civilian casualties in Syria have been caused by the regime itself and also as a result of Russian actions.

Lord Hamilton of Epsom (Con): My Lords—

Lord West of Spithead (Lab): My Lords—

The Lord Privy Seal (Baroness Stowell of Beeston) (Con): My Lords, we have not yet heard from the Conservative Benches.

Lord Hamilton of Epsom: As my noble friend will know, the Royal Air Force turns dumb bombs into smart bombs by the use of technology. Is it not possible for the Russians to do the same?

Earl Howe: It should be, my Lords. We lose no opportunity to urge the Russians to desist from indiscriminate bombing and to deploy precise weapons, as we are doing, and thereby conform to international humanitarian law.

Lord West of Spithead: My Lords, I apologise to the noble Lord, Lord Hamilton, for not giving way. The Minister will be aware that a number of Syrian refugees got into the sovereign base area on Cyprus where our air attacks go from without being detected. Can he assure the House that security there has been tightened up? Clearly there is huge vulnerability to terrorists trying to get at our aircraft and our aircrew before they can be in the air being looked after properly.

Earl Howe: My Lords, I can give the noble Lord that assurance. Our security on Cyprus is very tight indeed.

Lord Pearson of Rannoch (UKIP): My Lords, do the Government agree that the European refugee tragedy is caused largely by the evil Islamic State which we, the United States and other allies could destroy on the ground in a few months? Is the reason we do not do so because we have lost our nerve after our disastrous invasions of Iraq and elsewhere? Has the time not come to think again because we clearly cannot solve the problem with airpower alone?

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Earl Howe: The noble Lord is right that airpower alone will not defeat Daesh. Indeed, military action alone will not defeat Daesh. We have to counter its ideology as well and cut off its sources of finance. We have set our face against putting British troops on the ground in Iraq or Syria. Prime Minister Abadi of Iraq has made it very clear that he wishes the action on the ground to be pursued by Iraqi armed forces, not western troops, and we respect that.

Baroness Jolly (LD): My Lords, the Minister spoke earlier of careful planning. Can he tell the House how many time strikes have been called off as a result of that planning to prevent civilian losses or casualties?

Earl Howe: My Lords, the noble Baroness makes an extremely important point. There have been many occasions—I cannot give her a precise number—when a strike mission has been called off because it has been deemed too risky to the civilian population. We always err on the side of caution in that respect.

Lord Touhig (Lab): My Lords, the House is indebted to the noble Lord, Lord Thomas of Gresford, for tabling this Question because the impact of our actions in Syria on the civilian population must never be far from our minds. On this side, we have consistently argued for airstrikes against ISIL’s oil-exporting capability, thus depleting its sources of funding. Can the Minister update us on this? More than that, I remind him that the Defence Secretary promised a quarterly report on our activities in Syria and one must be due any day now. Will he come to the House and make a Statement when that report is published?

Earl Howe: My Lords, if a Statement is decided upon through the usual channels and my right honourable friend’s decisions, of course I am very willing to repeat it in your Lordships’ House. I am in full accord with the noble Lord’s initial statements and I am prepared to update the House on a regular basis.

Islam: Extremism


3.14 pm

Asked by Lord Wallace of Saltaire

To ask Her Majesty’s Government what progress has been made by the review into funding for extremist interpretations of Islam within the United Kingdom, including from overseas sources, announced by the Prime Minister on 2 December 2015 with the declared intention that it would report by the spring of 2016.

The Parliamentary Under-Secretary of State, Department for Transport and Home Office (Lord Ahmad of Wimbledon) (Con): My Lords, the review into the funding of extremist interpretations of Islamic ideology, including funds that come from overseas, has made good progress. Analysts from across government are working on the

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review, led by the extremism analysis unit. It will report to the Prime Minister and the Home Secretary in the spring of this year.

Lord Wallace of Saltaire (LD): My Lords, we understand that the Charities Commission has been doing some work on domestic sources, looking particularly at the role of Muslim charities. Foreign funding is entirely legitimate but it should be transparent, whether it comes from government or private sources. We have indications that some Governments have been supporting Muslim education in this country, but of course it should be directed to legitimate ends and not to the support of extremist versions of Islam.

Lord Ahmad of Wimbledon: I totally agree with the noble Lord that any source of funding that seeks to divide or disrupt what we have here in the United Kingdom should be looked upon, and the full force of the law for anyone seeking to create such divisions will be imposed. The noble Lord mentioned the review by the Charities Commission. That is very much factored into the review that is currently being carried out and I am speaking to colleagues in the Cabinet Office very closely on this subject.

Lord Marlesford (Con): My Lords, what are the Government proposing to do about the Muslim Brotherhood, considering that the report that the Government commissioned, which was published in December, concludes with the words:

“Muslim Brotherhood ideology and tactics, in this country and overseas, are contrary to our values and have been contrary to our national interests and our national security”?

Will the Government at least arrange for a debate in your Lordships’ House on the matter?

Lord Ahmad of Wimbledon: The issue of a debate is very much for the usual channels. If my noble friend wishes to table such a debate, it will of course be taken forward in the normal way. On the issue of the Muslim Brotherhood, he is of course quite right: the Government published their findings in the review. The whole issue around the Muslim Brotherhood is something that the Government are watching very closely.

Lord Singh of Wimbledon (CB): My Lords, when we talk about Islamic extremism, should we not attempt to be more precise in what we are talking about? There are passages in the Koran that might have been relevant to the time when the infant Muslim community was under siege from all sides but may not be so relevant today. It is important that those passages be put in the context of today. Should the Government not be working with Muslim leaders to that end?

Lord Ahmad of Wimbledon: It is not the Government’s role to decide on which interpretation of Islam is correct, but I assure the noble Lord that we work with all Muslim organisations, and indeed all faith institutions across the board, to ensure that we not only sustain what we have in our country today but build the

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resilience, strength and indeed the harmony and diversity of faith across our country that is a source of great strength for this nation.

The Archbishop of Canterbury: My Lords, it is widely agreed that all statements that tend towards causing hatred, contempt and violence towards other faiths should not be permitted, but does the Minister nevertheless agree that it is not extremist in any way, and should in fact be encouraged, for there to be statements that are frank and categorical assertions of faith or no faith, and that there is no right not to be offended or hurt by such statements?

Lord Ahmad of Wimbledon: I agree on the whole issue of interpretations and the right not to be offended, because after all that is what we are protecting here in our country. I think that there is a distinct line to be drawn when it comes to any conservative practice of a particular religion. Indeed, my right honourable friend the Prime Minister is on record, when referring to Islam in particular, as saying that anyone who is devout of faith can be anything but an extremist. The right to offend someone and not to be offended remains a value that we wish to protect, but we need to stand up to those who seek to divide us and to create division between society and faiths. That is certainly what our counterextremism strategy is all about.

Lord Lester of Herne Hill (LD): My Lords, is the Minister aware that I have tried four times to get a straight answer to a Parliamentary Question about whether, in countering extremist ideology, the Government are concerned about the preaching and teaching of Wahhabism in mosques and Muslim education bodies in Britain that are funded from overseas? Could he please answer that question with a yes or no?

Lord Ahmad of Wimbledon: We are concerned as a Government—as we all are—about any kind of funding which seeks to harm and disturb the nature of our society. The noble Lord referred to a particular issue; the review that has been set up was set up with that very intention: to look at all forms of extremism that seek to influence or distort Islam in a way which is not conducive to the fundamental shared values we enjoy in Britain today.

Lord Pearson of Rannoch (UKIP): My Lords, does the Government’s analysis of extremist interpretations of Islam include what is preached in our mosques, madrassahs and prisons by imams and extremists speaking in Arabic and other languages? How many reliable interpreters do we have, and should we not fund quite a few more from our own resources?

Lord Ahmad of Wimbledon: It is not the Government’s role, as I said earlier, to start adjudicating on different interpretations of Islam. The Government’s role—and this is exactly what they are doing—is to protect and secure all our citizens and protect the fundamental values we enjoy, which include the ability to profess, propagate and practise your faith with the basic and

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fundamental value of respect for all faiths and none in our country. That is what the Government seek to do, and I believe that we all subscribe to that principle.

Lord Harries of Pentregarth (CB): Has it been possible to engage mainstream Muslim communities in this review so that any definition of extremism which is used will have widespread agreement—or as widespread as possible?

Lord Ahmad of Wimbledon: That is not only the Government’s intention but what we are doing, including myself as the Minister responsible. My right honourable friends the Prime Minister and the Home Secretary, as well as other members of the Cabinet, are directly engaged. Indeed, the engagement forum, which the Prime Minister has himself led on a couple of occasions, alongside the Education Secretary Nicky Morgan, has been about engaging with all denominations across the wide spectrum of Islam in Britain today.

Channel 4: Privatisation


3.21 pm

Asked by Baroness Bonham-Carter of Yarnbury

To ask Her Majesty’s Government, further to the remarks made by Baroness Neville-Rolfe on 10 December 2015 (HL Deb, cols 1674–6), what they have assessed to be the major benefits of the privatisation of Channel 4.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills and Department for Culture, Media and Sport (Baroness Neville-Rolfe) (Con): No decisions have been taken about the future of Channel 4. Channel 4 is an important part of the UK broadcasting landscape, and the Government want to ensure that it has a strong and secure future. We are looking at a wide range of options to help deliver this, including those proposed by Channel 4’s own leadership and those involving private investment.

Baroness Bonham-Carter of Yarnbury (LD): I thank the Minister for her reply. The Secretary of State has said that he wishes to ensure that Channel 4 can continue to deliver its remit. Does the Minister accept that privatisation would have a negative impact on the channel’s delivery of news and current affairs, diversity, the Paralympics and the plurality of public service broadcasting in general? Will Her Majesty’s Government now rule out privatisation?

Baroness Neville-Rolfe: My Lords, taking into account the remit that the noble Baroness outlines, we are rightly looking at all the options with a view to achieving what the Prime Minister called Channel 4’s secure and successful future. That is very important, because Channel 4 is so unusual in its distinctiveness and experimentalism, being innovative and of course appealing to diverse sections of society.

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Lord Gordon of Strathblane (Lab): Does the Minister agree that, operationally, Channel 4 is already in the private sector in that it raises money through advertising, and it cannot do that unless it is successful in attracting an audience for its programmes? Privatisation would simply face it with the obligation of funding that privatisation through either bank interest or dividends to shareholders, all of which is money that could have been spent on programming. That is therefore undesirable.

Baroness Neville-Rolfe: We are looking at all the options. Of course, government is a sole shareholder, and the channel gets 90% of its revenue from advertising, as has been suggested. Its revenues are £930 million and last year it made a profit of less than £5 million.

Lord Grade of Yarmouth (Con): My Lords, I declare an interest as a member of the Channel 4 pension fund and a former chief executive of Channel 4. Does my noble friend agree that the current settlement for Channel 4 is no longer fit for purpose and puts a risk on the public purse, because in the end the taxpayers are the shareholders of last resort? The world has changed dramatically, and the commercial threats to Channel 4 are a hundredfold greater than they were when I was there and was part of the present settlement. It is absolutely time that the channel had a new settlement that will enable it to change its modus operandi and become a fully fledged business.

Baroness Neville-Rolfe: I very much agree with my noble friend that this is a challenging and fast-changing environment. It is partly because of that that we are looking at options to secure Channel 4’s future. We will look at all the points made about benefits and the changing environment in which the media operate today.

Baroness Howe of Idlicote (CB): My Lords, is the Minister aware that Channel 4’s overall share of young audiences is growing and that a higher proportion of young viewers watch “Channel 4 News” than any other broadcaster’s news? Does she accept that Channel 4 has an important role in providing public service content to young people, and that privatisation could threaten this very important part of its remit?

Baroness Neville-Rolfe: I very much agree with the noble Baroness, except perhaps her conclusion. “Channel 4 News”, which is regulated news provision under Ofcom rules, is important. It is great that the channel attracts younger audiences because that is what we need for the future of the media and our creative industries in Britain.

Lord Stevenson of Balmacara (Lab): My Lords, I am sure the whole House will congratulate Charles Gurassa, the new chair of Channel 4, appointed by Ofcom on the advice of the Secretary of State. According to the Financial Times, Mr Gurassa has previously chaired three media and communications companies,

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all of which were sold during his tenure. Can the Minister confirm whether privatisation experience was specified in the job description?

Baroness Neville-Rolfe: As the noble Lord said, the appointment was made by Ofcom and approved by the Secretary of State. It is true that Charles Gurassa brings a wealth of experience. That includes business experience of the kind the noble Lord suggests, but also experience on the board of the National Trust and as chairman of a housing association. He is very broadly experienced, and it is a sound appointment. I very much look forward to his ideas for the future of Channel 4.

Lord Dobbs (Con): My Lords, while my noble friend is rightly looking at all the options for the future of Channel 4, will she take into account the extraordinary public service work it does for the disabled? Following the exceptional and exhilarating coverage of the Paralympics, it has now nominated 2016 as its year of disability, in which it is substantially increasing the number of disabled actors in its shows, increasing the number of disabled people working in production companies and reserving a full 50% of its apprenticeships for the disabled. Is this not a significant example from public sector broadcasting that other broadcasters would do well shamelessly to follow?

Baroness Neville-Rolfe: I could not agree more with my noble friend. Of course, Channel 4 is particularly tasked with serving diverse audiences, which is an important part of its remit that we want to maintain.

Lord Christopher (Lab): The noble Lord did not quite say what I hoped he would say but he made a very important point. I digress slightly from the issue by saying that many major companies in this country have pension funds that are greater, in terms of their deficiencies, than the value of the company. I declare an interest in Channel 4, having been a member of the authority that set it up in the first place. Will the noble Baroness confirm that the Government’s ambitions here have nothing to do with the Chancellor’s growing need for funds?

Baroness Neville-Rolfe: We are very clear that we are looking at all the options to secure a good future for Channel 4. The sort of considerations mentioned are not the issue.

Baroness Grender (LD): My Lords, I am sure the Minister is familiar with the phrase, “If it ain’t broke, don’t fix it”. Will she please explain to the House what is broken about Channel 4 that needs fixing?

Baroness Neville-Rolfe: I think that would be a good Channel 4 programme. The environment is challenging and changing, as I have tried to explain and as my noble friend Lord Grade kindly said. That is a reason to look at the benefits and at options. As I have explained before, it is good to look at the future of organisations like this and to build on their success.

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Sugar Tax


3.30 pm

Asked by Lord Clinton-Davis

To ask Her Majesty’s Government whether, in the light of the World Health Organisation’s analysis in the Report of the Commission on Ending Childhood Obesity, they support the proposal of the National Health Service to introduce a sugar tax.

The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con): My Lords, we are interested to see the results of the consultation on NHS England’s proposals for a sugar tax. Urgent action is needed to tackle obesity, particularly in children, which is why we will shortly set out a comprehensive new strategy to tackle the problem.

Lord Clinton-Davis (Lab): The World Health Organization and the NHS, both distinguished bodies, have proclaimed that a sugar tax is desirable, necessary and should be introduced as soon as possible. In that light, do the Government have any plans to revise their previous position and introduce proposals for a sugar tax by no later than April of this year?

Lord Prior of Brampton: My Lords, the Government are considering a whole range of options for tackling the scourge of obesity in young people, which include portion control, reformulation, advertising and many others. One issue they are considering is a sugar tax, but we will announce the results of that strategy in the very near future.

Baroness Walmsley (LD): My Lords, does the Minister agree that the key to weight management is correcting energy imbalance? Will the Government therefore consider forcing manufacturers of junk foods to put on their labels the number of hours of vigorous exercise that are equivalent to the contents of the packet?

Lord Prior of Brampton: My Lords, as the noble Baroness will know, there are plans for later this year to have compulsory labelling of sugar content on packaging. However, I am not aware that there are any plans to have pictures of well-known athletes on the packaging as well.

Lord Robathan (Con): My Lords, does the Minister agree that the issue of obesity, which is indeed a scourge, is largely one of individual and, in the case of children, parental responsibility?

Lord Prior of Brampton: My noble friend is partly right. It is of course a matter of individual and parental responsibility, but I think we have an obligation in our country to make the right choice as easy as possible, and for too many people the wrong choice is far too easy to make.

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Lord Patel (CB): My Lords, I am sure the Minister is aware of a meta-analysis study carried out of nine studies which compared the pricing of sugar-sweetened beverages against the reduction of consumption of such drinks. It showed considerable price elasticity. Therefore, it is difficult to determine in an economy like ours the level of taxation that is required to achieve the right reduction. What plans do the Government have to find such evidence?

Lord Prior of Brampton: My Lords, it is interesting that in the plans put forward for consultation by Simon Stevens of NHS England they are looking at a levy of 20% on sweetened beverages. In Mexico, they brought in a sugar tax of 10%, which according to a study by the Lancet resulted in a reduction in consumption of some 12%. But it is very difficult to isolate the particular impact of tax when many other measures are being used at the same time.

Baroness Wheeler (Lab): My Lords, Simon Stevens, the NHS chief executive, recently pointed out that obesity is the new smoking, and that Britain spends more on obesity-related healthcare than on the police, the fire service, prisons and the criminal justice service combined: £6 billion and rising. He has promised to raise the price of sugary drinks sold on NHS premises to staff, patients and visitors as another small step. Cannot the Government take steps to introduce this policy across all government departments and institutions?

Lord Prior of Brampton: My Lords, public procurement certainly has a role to play in tackling obesity. I am sure that that is one of the issues that will be addressed in the forthcoming strategy.

Lord Tugendhat (Con): Does my noble friend agree that taxation, along with other measures, has played a significant role in diminishing the consumption of tobacco in this country over the years? Is it not therefore rather strange that the Government should be so reluctant to make more use of this weapon with regard to obesity?

Lord Prior of Brampton: My Lords, we have to be careful, or at least recognise, that if a sugar tax were imposed it would fall largely on those who are least able to afford it. There is of course a strong argument for a sugar tax, but there is also a case for making the argument against sugar consumption and making it easier for people not to consume sugar before we resort to taxation.

Baroness Jones of Moulsecoomb (GP): My Lords, the Mayor of London, a well-respected member of the Conservative Party, has already put a sugar tax on sugary drinks at City Hall, so might the Government consider doing the same for the rest of Britain?

Lord Prior of Brampton: My Lords, what the Mayor of London has done at City Hall is similar to what Simon Stevens proposes to do within the NHS. The Government will watch both moves with great interest.

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Lord McColl of Dulwich (Con): My Lords, will the Minister give us an assurance that when the new policy comes out to tackle obesity we will not fall into the trap of saying that the answer is exercise? You have to run for miles and miles to take off a single pound of fat.

Lord Prior of Brampton: My Lords, exercise may be a part of our strategy to tackle obesity, but certainly not the major part.

Baroness Howells of St Davids (Lab): My Lords, I am sure that the House is aware that sugar comes from many sources—sugar cane, sugar beet and in fruit. Which sugar would we tax?

Lord Prior of Brampton: The noble Baroness makes an interesting point. This is one of the difficulties with the proposal for a sugar tax. We must be very careful about which sugars we would tax. I cannot give the noble Baroness a proper answer save that where sugar taxes have been introduced, they apply to where sugar is added as part of the manufacturing process or where it is present in syrups and fruit juices, but not where it occurs in, for example, fruit or vegetables.

Trade Union Bill

Order of Consideration Motion

3.36 pm

Moved by Baroness Neville-Rolfe

That it be an instruction to the Committee of the whole House to which the Trade Union Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 15, Schedules 1 and 2, Clauses 16 and 17, Schedule 3, Clauses 18 and 19, Schedule 4, Clauses 20 to 23, Title.

Motion agreed.

Immigration Bill

Immigration Bill

Committee (4th Day)

3.37 pm

Relevant documents: 7th Report from the Constitution Committee, 17th, 18th and 19th Reports from the Delegated Powers Committee.

Clause 34: Appeals within the United Kingdom: certification of human rights claims

Amendment 227

Moved by Lord Rosser

227: Clause 34, page 39, line 16, at end insert—

“( ) After subsection (3) insert—

“(3A) Before a decision is taken to certify a human rights claim, the Secretary of State must obtain a multi-agency best interests assessment in relation to any child whose human rights may be breached by the decision to certify.””

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Lord Rosser (Lab): My Lords, Clause 34 and this amendment deal with rights of appeal relating to persons who claim to have a right to remain in the United Kingdom on asylum or human rights grounds, but whose claim has been refused. Under the terms of the Bill, the Secretary of State will have the power to certify the claim for someone appealing on human rights grounds against an immigration decision so that they can only appeal from outside of the United Kingdom unless to do so would be in breach of their human rights.

This extends to all individuals the provisions that are already enforced for the deportation cases of former foreign national offenders, and will affect all those bringing human rights appeals under Article 8 of the European Convention on Human Rights, on the right to respect for private and family life. In order to make an application under Article 8, it is necessary to gather extensive evidence demonstrating the extent to which a child, for example, has developed a personal life and connections within the United Kingdom, including evidence from the carer, teachers, therapists, medical professionals, mentors and friends. This is surely made far harder where those connections are severed by distance and time, enforced by deportation and delays in the tribunal system.

It is also vital not only to understand and obtain evidence, but to present it appropriately, which requires legal assistance, yet legal aid is not available for Article 8 appeals save on an exceptional basis. For those without the requisite leave there will also be no legal aid to challenge the certification of the case prior to removal. As a result, out-of-country appeals, for which the deadlines to lodge an appeal are often extremely tight, will not be pursued or will be pursued only inadequately, given the costs of taking forward an appeal as a privately paying individual from overseas. It may be that that is the deliberate intention of this measure. Under the Immigration Act 2014, the Secretary of State was given power to certify deportation appeals so that a foreign national offender subject to a deportation order can be removed before their appeal or during the appeal process if the Secretary of State decides that to do so would not cause serious irreversible harm—not just serious harm, but serious irreversible harm. Available data show that in the year since the provision came into force for foreign national offenders, the number of appeals against deportation brought out of country has dropped by 87% compared with the number brought in country in the year to April 2013. The rate of success on appeal is also lower than before, decreasing from 26% in the year to April 2013 to just 13%. That suggests that many individuals are unable to appeal effectively a decision following removal from the UK, and that appeals which would have been successful are not being brought.

The available data indicate that “deport first, appeal later” has had an adverse impact on the ability of foreign national offenders—whom I appreciate may not be the most popular of individuals—to challenge a deportation decision, which suggests that this handicap will affect thousands more individuals if the provisions are extended, including many who have British or settled family members in the UK, such as partners and children. We have in this group a stand part Motion relating to Clause 34.

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Amendment 227 is intended to ensure that before a decision is made to certify any claim for an out-of-country appeal, the best interests of any child affected must be considered in line with the terms of our amendment. As I have already said, Clause 34 is a wide extension of the existing powers relating to a limited class of individuals, and will now cover many people who are appealing their cases. It is not clear to what extent the Government have considered the impact, particularly on children, of separation in such circumstances. The Children’s Commissioner published a report last year about the impact of different rules, including the rules about the income requirement that has to be met before a spouse can join a family. It also addressed the adverse impact on a child of not having access to one parent for months or sometimes years. The Government’s figures indicate that around 40% of appeals succeed, which is a high success rate for appeals, and if a family is involved it could result in the distress referred to in the Children’s Commissioner’s report, because they cannot have any meaningful contact with one of their parents for a prolonged period. That is a real difficulty with the intention to extend the removal of individuals before an appeal can take place. Many appeals take a long time to deal with, and this Bill seems a bit thin in addressing that issue.

3.45 pm

There is also the issue of the practicability of appealing from abroad. The process and procedures will be rather different from how we normally resolve cases, as will the ability of the parties to make and challenge submissions, and of the judge to ask questions and come to a decision. Presumably, if someone has to appeal from abroad, their submissions will be made well before the hearing, either electronically or in hard copy form, and there will not be the prospect of the same kind of exchanges that take place for hearings in this country, with all the parties present, with a view to determining the truth or resolving key issues. There is a very real difference between a hearing at which the individuals are present and able to deliberate and make submissions, and one where some of the most affected individuals are abroad. How does the appellant abroad deal with the points that the tribunal hearing the case wants to make as it begins to make up its mind?

Much of the Bill is aimed at illegal migrants, given its declared intention of making it harder for them to live and work in this country. However, illegal migrants will be affected by the removal of appeal rights in this country. The Bill extends that provision to all migrants making human rights appeals, regardless of any illegality or criminality and whether it has been established or even suspected. As a result, people who have committed no offence and would in fact be granted the right to stay in the United Kingdom will be forced to leave for an indeterminate period, involving separation from their families. The Government cannot dodge the reality that that will be the Bill’s effect.

Immigration appeals currently take about six months, but a year or more is not unusual. There appears to be no significant indication that that situation will improve. The Law Society has apparently suggested that if the current appeal success rate is maintained, it could be at a cost to the Government and taxpayers, since

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successful applicants might be able to seek compensation over the enforced separation from their families. Leaving aside whether that consideration would come into play, bearing in mind the potential consequences for children of separation from a parent, it is surely crucial that, before a decision is made to certify any claim for an out-of-country appeal, the best interests of any child affected be considered, and for that to be on the face of this Bill in particular.

I thank the Minister for the letter and further information regarding these measures. I appreciate that he will no doubt be referring to a particular Court of Appeal decision in his response. It is also worth mentioning that that Court of Appeal said that an out-of-country appeal would be less advantageous to the appellant than an in-country appeal, which supports my point about it being more difficult to appeal when you are overseas.

I have made the case for putting the duty to consider the best interests of the child in the Bill, and I hope the Minister will respond favourably. Surely the last thing any of us wants—I know the Minister will share this view—is for damage to be caused to children by appeals having to be heard out of country. I beg to move Amendment 227 and repeat that we also have a stand part Motion in relation to Clause 34 in this group.

Lord Alton of Liverpool (CB): My Lords, I am a signatory to Amendment 227, which has been so comprehensively and well introduced by the noble Lord, Lord Rosser, this afternoon. The noble Lord, Lord Bates, will recall that, prior to Second Reading, I chaired a meeting in your Lordships’ House organised by the Refugee Children’s Consortium and the Children’s Society. Some of the issues raised by the noble Lord today were raised then, and I know that they have been on the mind of the Minister.

The position of children was brought home to me by a report that appeared in the Daily Telegraph on Monday last, reiterated in the Observer on Sunday, which stated:

“At least 10,000 unaccompanied child refugees have disappeared in Europe, the EU’s criminal intelligence agency has said, as it warned many could be in the hands of traffickers.

Brian Donald, Europol’s chief of staff, said the children had vanished after arriving in Europe and registering with state authorities”.

He went on to say:

“It’s not unreasonable to say that we’re looking at 10,000-plus children”.

We should take the rights of children, which are at the heart of the amendment, very seriously within our own jurisdiction, as well as recognising that children are suffering outside our jurisdiction as a result of this massive crisis of migration.

The seriousness of this question and of out-of-country appeals was also brought home to me this morning when, with my noble friend Lord Hylton and as a result of the kindness of the noble Lord, Lord Bates, and Mr James Brokenshire in organising it for us, we visited Yarl’s Wood detention centre. I was deeply impressed by a lot of what we saw there. We were able to talk at random to people at Yarl’s Wood. I spoke to a lady who is 33 years of age. She has lived in this

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country for 26 years. She has three children, aged 17, 14 and 12. She was born in Somalia. Because she has some minor convictions, including things such as shoplifting in the past, this lady will be deported from this country to Mogadishu in Somalia. “Needless to say”, she said, “Every night, I sleep with my heart pounding”. I do not know, but will this woman have to launch an appeal from Mogadishu? Is this the sort of thing that could arise as a consequence of this legislation?

That is why the amendment that the noble Lord moved is so important. I have three very brief reasons why I support it. First, thousands of children, including British citizens, will be at risk of being separated from their parents or being removed from the UK before any judicial scrutiny of the Home Office’s decision and without adequate consideration of the best interests of the child. Secondly, given the consequences of inappropriate certification and the cost and obstacles to challenging certification—the only means of doing so being by judicial review—surely it is wrong to extend the existing provisions. Thirdly, Clause 34 could see more cases involving unaccompanied children or young people aged over 18 who claimed asylum alone as children, or who arrived as children and have lived in the UK for most of their lives, being certified for an out-of-country appeal and being removed to their countries of origin without a sufficient assessment of their best interests being undertaken.

The Children’s Society tells me that the provisions risk children being deprived of their parents or forced to leave the country that they grew up in before any judicial scrutiny of the Home Office’s decision and without adequate consideration of the best interests of the child. It says that this provision could see more cases involving unaccompanied children or young people aged over 18 who claimed asylum alone as children and/or who have lived here for many years and have built their lives in the UK being certified for an out-of-country appeal.

The noble Lord, Lord Rosser, was right to remind us of the implications, following the changes made under the Legal Aid, Sentencing and Punishment of Offenders Act, of the consequences of removing legal aid. I was struck by a report, again by the Children’s Society, that estimates that 2,490 children would be out of scope in a post-LASPO context. Clearly, without legal aid these children, including those in care, are unable to resolve their immigration issues, often resulting in a crisis for the child as they turn 18.

I have only one other point, which is a question to the Minister. Given the difficulties that children and families face making immigration applications because there is no legal aid for immigration claims, how will the Home Office be sure that it has all the information it needs to make a comprehensive, best-interests assessment before allowing an appeal only from outside of the United Kingdom? Before we agree the provisions of the clause or reject the amendment, we need an answer to that question.

Baroness Lister of Burtersett (Lab): My Lords, I shall speak in support of opposing the question that Clause 34 stand part of the Bill and in support of Amendment 227, to which I added my name. In its

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two reports on the last Immigration Bill, the Joint Committee on Human Rights, of which I was then a member, raised serious concerns on human rights grounds about out-of-country appeals. It questioned reliance on judicial review to challenge certification. I note that the Select Committee on the Constitution suggested that we may wish to bear these concerns in mind. Indeed, I see that the current chair of the JCHR has written to the Home Secretary to raise concerns about how extension could result in families with meritorious Article 8 claims being subjected to extensive separation.

A wide range of human rights and immigration organisations has raised concerns on human rights and rule of law grounds, as access to justice is likely to be impeded, as we have already heard. On the rule of law question, ILFA notes that the Government point to the decision in Kiarie, R v the Secretary of State for the Home Department as support for its view that an out-of-country appeal is adequate. However, ILFA responds that a decision that the Secretary of State is entitled to proceed on the basis that an out-of-country appeal will meet the procedural requirements of Article 8 in the generality of criminal deportation cases, where she is balancing the individual’s right against the public interest of deporting someone with a criminal conviction whose presence, it is asserted, is not conducive to the public good, does not necessarily mean that it will meet those requirements in the wider generality of cases covered by Clause 34.

Concerned organisations, including Amnesty, also point out that the consequences of being removed from the UK may be profound and long-lasting, even if removal is for a short time only. Despite the equality statement’s assurance that no adverse impact on grounds of gender are anticipated, as I said at Second Reading:

“Rights of Women is worried about the implications for women migrants who have left abusive partners but who do not qualify to remain under the normal domestic violence rules because of their status, which is a common occurrence. Rights of Women fears that:

‘A mother seeking to remain in the UK as the parent of a child who is wrongfully refused by the Home Office faces the prospect of leaving her child in the UK with an abusive father or taking her child with her forcing them to leave behind a network of friends and family, abandoning their schools and communities and being forced to live in a country where in many instances they have no ties, no understanding of the language or culture’.

It points out that this upheaval could last for months or longer”.—[

Official Report

, 22/12/15; col. 2491.]

Potential family separation is a concern raised by a number of organisations. Will the Minister confirm that the family test was applied to this provision and, if not, why not? If the answer is yes, would he be willing to publish the conclusions reached, as, to its credit, the Home Office did, in the equality statement Reforming Support for Failed AsylumSeekers? In particular, what impact do the Government believe the policy will have on all family members’ ability to play a role in family life—one of the questions in the family test? The fact that the DWP guidance suggests that this question is aimed mainly at work/family life balance issues should not allow the Home Office to ignore this clause’s potentially much more profound impact on the ability to play a role in family life where families are separated as a consequence of it.

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This brings me to Amendment 227. In its recent note on this clause, the Home Office acknowledges its duty under Section 55 of the Border Citizenship and Immigration Act 2009 to,

“have regard to the need to safeguard and promote the welfare of any child in the UK who will or may be affected by any immigration decision”.

It continues,

“where the decision maker is aware that there is a child who is affected by her decision, the decision maker will have regard to the best interests of that child as a primary consideration in deciding the human rights claim and also in deciding whether to certify the claim so that the appeal is heard after the person has left the UK”.

This is clearly meant to be reassuring but it does not reassure members of the Refugee Children’s Consortium, whose experience is that children’s best interests are not systematically and comprehensively assessed within immigration decision-making. Its briefing reminds us that the,

“UNHCR’s audit of the Home Office’s procedures highlights that, at present, there is no formal and systematic collection or recording of information that will be necessary … to a quality best interests consideration. This includes a lack of any mechanisms to obtain the views of the child”.

As the JCHR concluded in its final report of the last Parliament on the UK’s compliance with the UN Convention on the Rights of the Child:

“The Home Office seems still to prioritise the need to control immigration over the best interests of the child. This is unsatisfactory. The Government must ensure that the best interests of the child are paramount in immigration matters”.

In contrast, the Home Office note emphasises:

“While the best interests of the child are a primary consideration, they are not the only or an overriding consideration”.

Of course they are not the only consideration but established case law makes it clear that decision-makers must first understand what course of action would be in the best interests of the child before going on to take account of other considerations, including immigration control.

4 pm

On the basis of its experience, the Refugee Children’s Consortium raised the question already asked by the noble Lord, Lord Alton, which I hope the Minister will be able to respond to. It also asked for the Minister’s estimate of how many children are likely to be affected annually by Clause 34. The fear is that thousands of children, including some who are British citizens, will be at risk of separation from their parents or of being removed from the UK without there having been a proper determination of their best interests. It could also mean unaccompanied children being returned,

“to countries and circumstances where they may be at risk of serious harm including sexual abuse … violence, forced marriage, forced recruitment as child soldiers”.

This cannot be right.

The Lord Bishop of Norwich: My Lords, I rise from these Benches to support Amendment 227 in the name of the noble Lord, Lord Rosser, and others.

The briefing note on Clause 34 to which the noble Baroness, Lady Lister, referred is a model of clarity. It was certainly very informative to me. It made clear, as the noble Baroness said, the statutory duty on the Secretary of State,

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“to have regard to the need to safeguard and promote the welfare of any child in the UK who … may be affected by any immigration decision”—

that duty is not in doubt—and that,

“the best interests of the child are a primary consideration”.

While I understand that a primary consideration may not be the only one, I do not understand how a primary consideration can be set aside even if it is in some way qualified. If it is trumped by other factors, it does not seem to be a primary consideration. So there must be a risk that Clause 34 unamended could undermine the Secretary of State’s statutory duty.

I do not doubt the Minister’s and the Government’s best intentions here, but there is widespread concern among organisations such as the Children’s Society, as the noble Lord, Lord Alton, said, which deal with vulnerable children on a daily basis, not least about the Home Office’s capacity to cope with an unamended Clause 34. Without an adequate process to determine the child’s best interests,

“children could be returned to countries and circumstances where they may be at risk of serious harm including sexual abuse, neglect … violence, forced marriage”,

and so on. There is plenty of research to indicate the way in which separation from a parent when vulnerable causes long-term harm to a child’s developmental and emotional well-being. We should not be making such separations more commonplace.

The Home Office briefing argues that appeals from abroad have been effective and fair but, as we have heard, the cuts in legal aid for immigration cases are bound to undermine the capacity of families to put forward evidence, and the danger of not knowing the facts in an appeal must surely grow.

I have been talking generally about the impact of all this, but of course it will always be experienced in particular. An example given by the Children’s Society vividly illustrates the risks. A woman came to the UK 16 years ago to escape forced marriage. After an agent stole her documents, she lived under the radar and now has three children aged 11, seven and two. She received help from the Coram Children’s Legal Centre two years ago—pro bono—to make an application for leave to remain on Article 8 grounds. It was refused, largely because it was said that the family could return to the woman’s country of origin. She appealed and had to wait more than a year for the appeal to be heard, apparently because of a “shortage of judiciary”. The children speak only English; the older two are doing well at school and the eldest child, I understand, is now eligible to register as British.

Under the Bill’s provisions, this woman and her family could have been removed from the UK for more than a year while waiting for her appeal. The children would then have lived in a small African village with their estranged maternal grandmother, with whom they do not have a common language. Their schooling would have been interrupted, since there is no teaching in English locally. The youngest child would have been at risk of female genital mutilation in a place with limited health services. The removal of the eldest child from Britain, the only country he has ever known, would have made him ineligible to register as British since it would have happened just before his 10th birthday.

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I want to believe that this family would have benefited from a Home Office caseworker’s laborious and careful sifting of all that evidence, resulting in a recommendation that the family should stay here. But how can this be guaranteed without some amendment of Clause 34? We need full and proper scrutiny before we deport such families or children. I hope that the Minister will offer us some comfort that these points have been heard.

Baroness Hamwee (LD): My Lords, from these Benches we support Amendment 227 and the opposition to Clause 34 standing part of the Bill. I will not speak to Clause 35.

The right reverend Prelate has just mentioned legal work provided pro bono. I would like to take this opportunity of echoing a comment made by the noble Lord, Lord Faulks, from the Dispatch Box the other day when he repeated an Answer to a Question on legal aid. He said that there are a lot of legal firms which are not “ambulance chasers”. Those firms do terrific work in very difficult circumstances, and many of them are engaged in this sort of work.

The noble Baroness, Lady Lister, referred to comments on the last Bill from the Joint Committee on Human Rights. The committee, of which I am a member, has drawn the attention of the House again to particular difficulties which might be faced by appellants if a non-suspensive appeals regime is extended in circumstances in which judicial review is the only means of challenge. This could mean that families with meritorious Article 8 claims are subjected to extensive separation. I think that she also referred to the report of the Constitution Committee, which commented among other things—there were two or three pages on this—on the practical extent to which legal aid is perhaps not likely to be available in respect of judicial review challenges to certification decisions.

We use the term, “Deport first, appeal later”, but of course it is not quite that. It is “Be deported and appeal later”, or deport first and then be appealed against in a situation in which the appellant can apply only in a way that the Court of Appeal and the Solicitor-General have acknowledged is less advantageous—that is the term used in the court. The noble Lord, Lord Rosser, referred to this and it is certainly less advantageous for the appellant or potential appellant. There is difficulty in paying for legal representation and liaising from abroad with legal representatives—if you can find any who can help in the circumstances—difficulty in obtaining, submitting and giving evidence, and difficulty for the tribunal in assessing evidence.

The human rights memorandum published by the Home Office said that,

“there is no intention to apply this power to cases relying on Article 2 and 3 rights”,

and that,

“case law … makes plain that where there is an arguable Article 8 claim, there needs to be the effective possibility of challenging the removal decision”.

If Clause 34 has to remain, it would be good if it could somehow refer to what is in that ancillary documentation.

It struck me during discussions about this how difficult it is to certify a negative. It is almost as difficult as proving a positive. The Secretary of State

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has to certify a claim, as we have heard, if she considers, first, that removal is not unlawful and, secondly, that the appellant would not face a real risk of irreversible harm. I am sure that the Minister will, as the noble Lord said, refer to the recent Court of Appeal case which ruled that the regime was lawful. However, that was in the context of deportation, and the fact that it was lawful does not make it right.

There is no equality of arms and a perversity about this. As the Law Society has pointed out,

“the spouse of a national of any EEA”—

European Economic Area—

“member except the UK would retain a full in-country right of appeal … whereas the spouse of a UK national”—

not the spouse of any national of any other EEA member—

“would have to leave the country”.

Lord Ramsbotham (CB): My Lords, I am proud to be British and was both proud and privileged to serve for nearly 41 years in the British Army. But I have to admit that I am not proud of much of the thrust of this Bill, which seems to be based on the assumption that every would-be immigrant or asylum seeker is illegal, and should be treated as such. That is akin to regarding everyone awarded a prison sentence as being a combination of mass murderer, armed robber, rapist, arsonist and paedophile, and treating them accordingly. The vast majority of would-be immigrants and asylum seekers are legal, which should be the default thrust of any regulatory legislation.

On 12 July 1910, the then Home Secretary, the 36 year-old Winston Churchill, winding up a debate on prison estimates, said that the way in which any country treated crime and criminals was the true test of its civilisation. He could well have added immigrants and asylum seekers. On Monday night, I heard the noble and learned Lord, Lord Keen of Elie, read from his brief an assertion that:

“The Government already have a raft of guidance and standards in place for ensuring that the regimes in detention centres operate at appropriate levels and in the interests of the welfare of detainees”.—[Official Report, 1/1/16; col.1696.]

In view of my experiences while inspecting them, I thought of Churchill and was completely flabbergasted. Has no one in the Home Office paid the slightest bit of attention to inspection report after inspection report, which point out that what the Minister described as,

“a raft of guidance and standards”,

is not subject to any meaningful oversight? For “appropriate”, he should have said “'wholly unsatisfactory”. So stunned was I that I totally failed to ask the Minister what the word appropriate meant, and who in the Home Office was responsible and accountable for allegedly ensuring the operation of such regimes, and whether their reports could be made available to noble Lords.

That was bad enough. But Clause 34 is so far outside the rule of law, let alone what decent people regard as civilised, that I am ashamed to think that anyone British was responsible for the concept, let alone its inclusion in the Bill. I know that the Court of Appeal has ruled that the imposition under the Immigration Act 2014 of out-of-country appeals in deportation cases is legal, but such appellants have committed serious crimes and received substantial

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prison sentences before being deported. How can any Home Office Minister seriously bring forward so draconian a proposal for those whose presence in the United Kingdom is entirely legal knowing that, currently, 61% of immigration appeals are either allowed, remitted for the Home Office to retake its decision or acknowledged by the Home Office to be flawed before a hearing? This means that 61% of those whom Ministers intend to force to make their appeal from abroad will have legal grounds for compensation, which is bound to add up to more than the cost of continuing to do the decent and civilised thing.

Included in the 61%, as the Solicitor-General acknowledged to the Committee and the other place, is an appeal success rate of 42%, which the latest figures from the Asylum Support Tribunal show to have risen to 44%. On what grounds do the Government think their proposal to force legal, as well as illegal, potential appellants to leave the United Kingdom before appealing against such appalling and proven faulty decision-taking is justified, appropriate and civilised?

4.15 pm

There is one group of people for whom the Government’s proposal is even more uncivilised: children —as the noble Lords, Lord Rosser and Lord Alton, the noble Baroness, Lady Lister, and the right reverend Prelate the Bishop of Norwich mentioned. Among the 631,000 undocumented migrants living in the United Kingdom today are an estimated 120,000 irregular migrant children, more than half of whom were born here. Research by the Coram Children’s Legal Centre has highlighted that the environment for irregular or undocumented migrant children in the United Kingdom and their ability to have their legal claims to remain considered fairly have already deteriorated considerably.

The provisions of Clause 34 risk children being deprived of their parents or forced to leave the country they grew up in, before any judicial scrutiny of a Home Office decision and without adequate consideration of their best interests. As we have heard, the Home Secretary has a duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children with respect to its immigration, asylum and enforcement functions. Established law on children’s best interests makes it clear that decision-makers must first understand the best interests of a child before considering any countervailing public interest factors.

However, research by the Refugee Children’s Consortium shows that children’s best interests are not systematically and comprehensively assessed within immigration decision-making. Furthermore, a UNHCR audit of the Home Office’s procedures has highlighted that there is no formal and systematic collection or recording of information that will be necessary and relevant to making a quality best interest consideration, nor any mechanism for obtaining the views of a child and giving them weight in line with their age and maturity. The Home Office usually includes in any decision letter a statement that the best interests of the child have been taken into account, but routinely does not give any adequate reasons for the conclusions drawn.

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In the light of all this evidence, which points to the need for urgent reform of the current decision-making process, is the Minister confident that current Home Office decision-makers, with their proven track record of failure, could guarantee to a court of law that the Home Secretary’s duty has been honoured in every appeal case involving a child?

There is an old saying that justice delayed is justice denied. Currently, immigration appeals are being listed at least six months ahead, and it is not uncommon for appellants to have to wait for a year or more for their appeal to be heard. As I have said more than once during the passage of this monster Bill, it is imperative that the Government codify and simplify their immigration and asylum system, so that those on the front line have the tools to enable them to act quickly and efficiently when it comes under even greater pressure in the years ahead—which it undoubtedly will. Above all, that means having a decision-making process that is efficient, fair and transparent, which the current one is not.

A civilised nation would ensure that its immigration system is fair and includes checks and balances, such as an appeals process—the ability of an appellant to give oral evidence being a central component of any fair hearing. Clause 34 violates all that, and I therefore hope that, in justifying any claim that the United Kingdom has to be thought civilised, it will be removed from both government thinking and this Bill.

Baroness Sheehan (LD): My Lords, I speak in support of Amendment 227 and to oppose the proposition that Clause 34 stand part of the Bill. During my maiden speech I referred to time spent as a caseworker and head of office for my noble friend Lady Kramer when she was a Member in another place. I will recount the salient details of an immigration case that has stayed with me for more than a decade and which will illustrate several speeches made by noble Lords here.

One morning, I received a call from a concerned friend of a young man from Chad who had arrived here as an unaccompanied minor. He was anxious that his friend, having become 18 years of age, had been detained by immigration officers and was about to be deported. To cut a long story short, I was successful in locating the young man and succeeded in getting him off the plane—just. Now, this orphaned young man eventually succeeded in getting indefinite leave to remain, but not until he had spent several months having to report to Lunar House, often having to walk there from Kingston as he had little cash.

He also endured several months in Harmondsworth, where I had occasion to visit him. It was a prison in all but name. In all that time, he lived with the constant fear of deportation. No one should have to go through such mental anguish because of poor decision-making, which was the sole reason behind his ordeal. The Home Office got it wrong. Poor judgment on the part of the Home Office is still prevalent today. If this clause were to be passed as it stands, the injustice this boy suffered would be magnified inordinately.

Lord Horam (Con): My Lords, I will make a brief contribution to this debate based on my own experience as the Member of Parliament for Orpington for 18 years.

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My experience may be the same as or different from that of other Members of Parliament in the other House, but I had so many immigration cases regularly that one out of my three caseworkers was solely devoted to dealing with them comprehensively. By the way, I think the people in these cases got a pretty good service. I am not sure that a lot of people could devote so much casework time to one particular aspect of what an MP has to face.

None the less, I want to address the question of Clause 34, rather than Amendment 227 in the name of the noble Lord, Lord Rosser. However, while I understand the argument put forcefully by the noble Lord, Lord Ramsbotham, about the guarantee you get from having something in the Bill, my experience in relation to the handling of children is that they were handled exceptionally carefully. Whenever there was a family involved, the Home Office took particular trouble to do it properly. I felt that it pursued its statutory obligations very fully.

On the wider issue of Clause 34, my own experience was that the really difficult problem in dealing with immigration cases, whether they were economic migrants or asylum seekers, was the length of time the whole appeals procedure took. As the noble Lord, Lord Ramsbotham, said, it is byzantine in its complexity. That is the truth of the matter. That very complexity and the number of possible appeals you could make—tier 1, tier 2 and then appeals beyond that—meant that cases went on not just for several months but for several years and individuals, whatever the eventual result of the case, were placed in a situation of great difficulty, resulting very often in mental problems and severe depression. These cases could go on for five, six or seven years before they were eventually resolved. This was the really big problem in dealing with immigrants.

Will this clause as it is improve that? Will it speed things up? We have evidence from the new procedures for dealing with visa applications, for example, on the hub and spoke principle brought in by the last Government, whereby visas were dealt with in a particular area—let us say Dubai for the whole of India, for example—and things were speeded up. Those measures were brought in so that visa applications could be dealt with more rapidly than hitherto. Great experience was developed in dealing with the paperwork, as opposed to seeing people face to face, which ordinary common sense would suggest is a better procedure than dealing just with paperwork—but none the less, that is what was developed in the Foreign and Commonwealth Office as a means of dealing with these things more expeditiously than would otherwise be the case. If my noble friend can tell me what experience and evidence we have that Clause 34 would speed things up, I would be in favour of it, because the real problem was the length of time that appeals took in immigration cases.

The Earl of Sandwich (CB): My Lords, in the interests of speeding things up, I shall be very brief in putting a question to the Minister about absconding. There is an overlap again between these groups of amendments. The relationship between support and appeals is very critical, and I do not believe that the Government have quite got it right; they are trying hard but not succeeding.

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We are discussing asylum seekers facing genuine obstacles to leaving the UK; the Government want to remove their right of appeal against decisions to withhold or discontinue support. Does not that relate to Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004? My understanding of the Section 9 pilot is that nearly one-third of the families disappeared to avoid being returned to their country of origin. The rate of absconding was 39% for those in the Section 9 pilot but only 21% in the comparable controlled group, who remained supported. Can the Minister comment on those figures, because they would appear to lend credence to the amendment?

Lord Green of Deddington (CB): My Lords, perhaps it is time for a different point of view on this subject. I have no difficulty with Amendment 227, which of course concerns children, but I would like to speak in favour of Clause 34 in respect of cases that do not involve children. In such cases, the aim should be to confine the application of the clause to vexatious appeals, which would help to speed up the process, as the noble Lord, Lord Horam, pointed out.

Much of the discussion in this Committee has focused on the rights of applicants at various stages of the process. That is entirely understandable, but should not we also have regard to the need for a swift and effective asylum system? That would surely be in the interests of genuine asylum seekers, who make up about 50% of those who apply, and in the interests of maintaining public support for the whole system. This clause is germane in that context. It is in effect the extension of a procedure that has already been applied to foreign national offenders, as has been mentioned already. I entirely accept that the people whom we are talking about are not offenders and are not usually of the same character, but I believe that the extension of the removal of non-asylum cases should be seen in this wider context. It is essential that we should break the link for those who are in reality economic migrants between setting foot in the UK and remaining indefinitely.

At present, removals of immigration offenders—not foreign national offenders—are running at a very low level, of only about 5,000 a year. That has to be tackled if we are to break this link, which I think is increasingly understood as you look at southern Europe and so on. We have to find ways of giving protection to those who deserve it and of removing those who do not. This clause is a step in that direction.

4.30 pm

The Advocate-General for Scotland (Lord Keen of Elie) (Con): My Lords, I am obliged for the comments that have been made with regard to Clause 34 and Amendment 227. I shall begin by clarifying one point. Clause 34 applies in respect of migrants who have been found to have no lawful right to be in the United Kingdom. It does not apply to asylum cases.

Noble Lords will be aware that there is a long-established principle that persons can be removed or deported before an appeal is brought or heard. Indeed, in 2002, the previous Labour Government introduced powers to certify “clearly unfounded” claims so that the appellants could be removed from the United

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Kingdom prior to marking and pursuing an appeal. In 2014, the coalition Government used the Immigration Act to provide that arguable claims from foreign national offenders could be certified where deportation pending appeal would not cause serious irreversible harm or otherwise breach the person’s convention rights.

I emphasise that last point because of the observation made at the outset by the noble Lord, Lord Rosser, about it being a case of serious irreversible harm. That is but part of the test. The test under Clause 34, as under the existing provisions of the Immigration Act and as it was under the 2002 Act, is whether it would give rise to serious irreversible harm or a breach of the person’s convention rights. In this context, it is acknowledged, as it is acknowledged in respect of existing legislation, that this will not apply in cases that fall under Article 2 or Article 3 of the convention. It would generally apply in respect of cases that fall under Article 8 of the convention, which concerns the right to family life. That will give rise to questions about children, which I will come on to address in a moment.

The power introduced in 2014 has yielded significant results because more than 230 foreign national offenders have been deported before appeal in the first year since it came into force, and more than 1,200 European national offenders have been deported under equivalent regulations.

In our manifesto, the Government committed to extend this power to apply to all human rights claims. That is what Clause 34 does. We suggest that it is in the public interest that we maintain immigration control across the board. That means and includes prompt removal in cases where it is safe to do so. It is simply counterproductive to allow people whose human rights claims have been refused—again, it has to be underlined that these are people whose human rights claims have been refused or rejected—to build up their private or family life while they wait for their appeal to be determined.

This power will never apply, and does not apply in its existing form under Section 94 of the Immigration Act, in cases based on Article 2 or Article 3 of the convention. Where it does apply, each case will be assessed on its own facts. We will always ask whether there are reasons why an effective appeal could not be brought from outside the United Kingdom, and any reasons given will be fully considered when deciding whether to certify such a case.

I am conscious of the observations that have been made about whether an appeal from overseas can be a fair or effective remedy. Bringing an appeal from overseas does not mean it is less likely to succeed. Internal Home Office statistics for the five years to July 2015 show that some 38% of out-of-country entry clearance appeals succeeded.

A number of noble Lords have already mentioned a decision in the Court of Appeal, the unanimous judgment in October 2015 in the case of Kiarie & Byndloss, where it was held that Article 8 of the convention does not require an appeal to offer the “most advantageous procedure available”. Rather, an appeal must offer, and this is what is offered in Clause 34,

“a procedure that meets the essential requirements of effectiveness and fairness”.

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The Court of Appeal was satisfied that out-of-country appeals met the essential requirements of effectiveness and fairness. In that context, the Court of Appeal confirmed that the Secretary of State for the Home Department was entitled to rely on the independent specialist judiciary of the Immigration Tribunal to ensure that an appeal from overseas was fair and that the process was in line with legal obligations that arose under the convention. We will also take account the impact of certification on family members, including children. It is important to note that it will always be possible to challenge decisions to certify by reference to judicial review.

I turn specifically to the impact on children and to Amendment 227, which would require that before a decision was taken to certify a claim under the power in this clause, the Secretary of State must obtain a multiagency best-interests assessment of any child whose human rights may be breached by the decision to certify. The amendment has been tabled to ensure that the best interests of any affected child are considered before a claim is certified so that an appeal must be exercised from overseas. One can quite understand what lies behind the desire for such an amendment but, however well intentioned, I suggest that it is unnecessary. It is unnecessary in law because Section 55 of the Borders, Citizenship and Immigration Act 2009, which the noble Baroness, Lady Hamwee, referred to, already imposes a clear statutory duty to consider the best interests of any child affected by a decision to certify. It is unnecessary in practice because whenever a person concerned makes the Secretary of State aware that a child may be affected by her decision, the best interests of that child are a primary consideration in deciding whether to certify. That approach is underpinned by published guidance. I note the observations of my noble friend Lord Horam that in his experience of such cases, which appears to be quite extensive, he noticed that the interests of the child were taken into consideration and regarded as a primary concern.

Today the Secretary of State takes careful and proportionate views regarding the interests of children. Whether it is necessary to engage external agencies with regard to the interests of the child in a particular case will depend on the facts of that case. For example, if the Secretary of State is made aware that a social services engagement exists with a child, she will make further inquiries of the social services. However, I suggest that it would be disproportionate to require extensive inquiries in every case by means of a multiagency assessment even where there was no indication that these were relevant. I am concerned that such unnecessary inquiries could be potentially intrusive and, in some instances, unwelcome to the families themselves. It is the family of the affected child that is best placed to identify the potential impact of certification in their particular circumstances. There are no restrictions on the evidence that a family can submit about the impact on a child, and that will always be fully considered by the qualified judiciary of the relevant tribunal.

Noble Lords asked whether in some cases we could see the separation of families. The answer is yes, in some cases. The effect on the family will always be considered on a case-by-case basis. The best interests of children in the United Kingdom are a primary

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consideration in any immigration decision, including the decision whether to certify under the new power. Where an individual has made a claim or seeks to appeal against a determination that they should not remain in the United Kingdom, the family dependent on that individual will of course be affected by that decision; therefore, there are two obvious options. One is that the children remain in the United Kingdom with a parent or carer, or that they depart with the parent or carer in question. Again, there is no question of children having to face serious, irreversible harm in such circumstances. The right reverend Prelate alluded to a case in which a young child might face the dangers of genital mutilation or other risk of sexual violence. In such a case, there would be no grounds for certification; therefore, there would be no basis for saying that the appeal should proceed out of country. Therefore these safeguards are already in place.

As I mentioned before, in some of his observations the noble Lord, Lord Rosser, alluded to serious, irreversible harm, which is but one part of the test. It is about serious, irreversible harm or a breach of someone’s rights under the European Convention on Human Rights—both aspects have to be addressed. As to the idea that they would be unable to appeal, there is clear evidence in the context of entry appeal processes that out-of-country appeals succeed and are effective. Indeed, in the context of an appeal from out of country before a specialist tribunal, it is necessary to bear in mind that the proportion of the evidence that will be material, particularly to a claim based on Article 8, is that relating to family connection within the United Kingdom. Those who can speak to that might be best qualified to give oral evidence rather than simply the appellant him or herself. In addition, there is of course scope for video evidence to be given, and by other means. Indeed, the specialist tribunal reserves the right to call for evidence in various forms if it considers that necessary to dispose of a particular appeal.

The noble Lord, Lord Rosser, also raised the question of compensation. We do not consider that in circumstances where an appeal was successful there would be any relevant legal basis for a claim of compensation. I notice that that point was also raised by the noble Lord, Lord Ramsbotham. The point was also made that under existing legislation, and in particular in the case of Kiarie and Byndloss, one is dealing with foreign national offenders. However, with great respect, it does not appear that there is any material distinction to be made between the prospects of appeal for a foreign national offender and other migrants who have no right to be within the United Kingdom. Surely they are all entitled to a fair and reasonable appeal process, which is what the Court of Appeal said they would have in the context of an out-of-country appeal. I acknowledge the point made by the noble Baroness, Lady Hamwee, that it would be better, easier and more attractive to have an in-country appeal, but that is not the relevant test. The Court of Appeal made that absolutely plain only a few months ago.

The noble Lord, Lord Alton, alluded to issues pertaining to the disappearance of children or minors coming into Europe, which is a tragic and dreadful state of affairs. One means of seeking to meet part of

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the problem is insistence upon the Dublin regulation and its imposition, which would involve fingerprints and biometrics being taken from these children upon their arrival in Europe. I am sure that more needs to be done in that respect to meet that problem.

The noble Lord also referred to his recent visit to one of the immigration centres, of which I am aware and which he mentioned that he intended to make when we spoke a few days ago upon earlier parts of the Bill. With regard to the Somali case he mentioned, I understand that the lady in question has quite a long record of criminal offending in the United Kingdom. Be that as it may, because she is a foreign national offender, she will not be subject to any out-of-country appeal under Clause 34; she is already subject to an out-of-country appeal procedure on the basis of existing legislation. Indeed, one questions whether she even has an appeal because, if she had no stateable basis of appeal, it would be rejected pursuant to Section 94. There are difficult cases and I hesitate to go into the details of one case at this stage, but I notice that, even in outline, it appears that this is the sort of case that falls under existing legislation.

4.45 pm

Lord Alton of Liverpool: As the noble and learned Lord says, it would be invidious to build a whole argument on just one case, but I must add two points to what he has just said. First, the lady told me that she had several convictions and custodial sentences but none had been for longer than three months, which does not suggest that these were hugely serious offences. Secondly, this is about returning someone to Mogadishu in Somalia, with all the problems that country faces at present. Every day one hears reports of bombings and last week there were reports of bazookas being used on the streets. This is someone who has lived in the United Kingdom for 26 years and has had three children in this country in that time. That is why the case is relevant to this afternoon’s debate about the undesirability of breaking up family life in those circumstances.

Lord Keen of Elie: I quite understand the noble Lord’s point. That is why the Secretary of State retains discretion over certification—this is not an absolute. In circumstances where there is a risk of serious irreversible harm because of conditions in a particular country or part of a country, there will not be certification. In circumstances where that would amount to a breach of an individual’s human rights, there will not be certification. There is that safety net. It may not be as large as some noble Lords would wish but it is there for these very cases. It is not dissimilar from the instance cited by the right reverend Prelate of a child being exposed to the very real risk of sexual violence or mutilation. Again, this is why the provisions of Clause 34 are not absolute and compel the Home Secretary to take a reasoned decision that has regard to a primary issue being the interests of the child.

A further point was raised by the noble Lord about whether and when the Secretary of State for the Home Department could be sure that she had all the information. Of course, there can be no absolutes. However, in a situation involving children, individuals—parents and

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carers—readily come forward to explain that there are children. Where the existence of children is identified, that matter is explored, as it is bound to be, pursuant to Section 55 of the Act I cited earlier.

My experience of being involved in the Kiarie and Byndloss cases before the Court of Appeal involved my examining the decision letters issued by the Home Office. These are not glib, one-paragraph notices, but very detailed and considered letters that were sent out, giving not only a decision but a reasoned foundation for that decision. I cannot—and would never dare to—assert that they are invariably right in every respect, or that they are exhaustive in every way. On the face of it, however, it is the practice, subject to the guidance given, to send out truly reasoned decision letters in these circumstances, with particular reference to the interests of the child or children who may be affected.

I turn to the observations of the noble Baroness, Lady Lister, who also mentioned the Kiarie and Byndloss cases. She suggested that ILPA took a slightly different view of that decision from the one I have expressed. I would cleave, however, to the ratio of the unanimous decision of the Bench of the Court of Appeal: it is quite clear what it was saying with regard to this matter. It is not tied to the fact of criminality; it is tied to the facility for an out-of-country appeal and the ability for that appeal to be discharged in such a way that we can be satisfied that it is fair to the appellant. In other words, it may not be the most advantageous form of appeal but it does meet the essential requirements of effectiveness and fairness. That is not affected in one way or another by the pre-existing criminality, or alleged criminality, of the relevant appellant. To that extent, I am afraid I have to differ from her on that matter.

The noble Baroness mentioned the matter of a family test. However, a family test does not immediately arise in this context. I understand that the family test is designed to ensure that the Government’s policies overall encourage and support family life in the United Kingdom. We are dealing here with someone who is not entitled to be in the United Kingdom, and the policies that concern removing persons from the United Kingdom will therefore not always engage the family test.

Baroness Lister of Burtersett: My understanding of the family test is that it is to apply not to the generality but to any policy proposal in law that might impact on families. One of the big concerns raised by many organisations giving evidence and briefing us is that this will have very serious implications for families because of family separation. Therefore, it seems appropriate to apply the family test to this proposal.

Lord Keen of Elie: It is not immediately apparent to me that it is applicable to this proposal, but in this context one has to bear in mind that a primary consideration is the interests of the child or the children. To that extent, what might be regarded as an aspect of the family test is being applied. That is always a primary consideration. There are circumstances where it may be appropriate for the children to accompany a person out of the United Kingdom, and there may be

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no difficulty about that. There may be circumstances in which it is appropriate for the children to remain with a parent or carer within the United Kingdom. If there are circumstances where they will have no parent or carer within the United Kingdom and it would not be appropriate for them to leave the United Kingdom, again, there is the safety net of the certification, dealt with in Clause 34, as there is under the existing legislation. To that extent, it appears to me that the matter is dealt with.

The noble Baroness went on to mention again the interests of the child and to ask how many children would be affected by this. It is not possible at this stage to say. On the basis of unofficial and informal figures, I understand that no child has been certified for an out-of-country appeal under existing legislation. Of course, the present amended legislation has been in force for only a short time, since 2015, so it is difficult to discern figures from that.

The right reverend Prelate the Bishop of Norwich referred to particular cases. I hope that I have addressed his concerns. If there was such a serious risk to a child as he alluded to, it appears to me that, with respect, the safety net in Clause 34 would apply.

The noble Baroness, Lady Hamwee, referred to difficulties in producing evidence in the context of an out-of-country appeal. I do not accept that it would be materially more difficult to produce evidence in these circumstances. We are talking about an appeal to a specialist tribunal that is well equipped to decide the form of evidence it requires in a particular case. As I mentioned, when dealing with a case that is going to arise largely on the basis of Article 8 of the convention, if there is to be a convention appeal, one is concerned with family links with the United Kingdom, which are going to be spoken to by persons within the United Kingdom. In so far as there is any factual issue to be addressed by an appellant, it can be done in writing, by video link or even by telephone. That may appear less satisfactory than taking oral evidence but, as the noble Baroness may be aware, it is far from exceptional for appellants not to give evidence in such appeals before a tribunal. It is certainly far from exceptional for appellants not to give oral evidence in such proceedings.

Baroness Hamwee: My Lords, I am grateful for that. I did acknowledge the Court of Appeal decision, but I said that in our view it did not make the situation right. However, do the Home Office or the Tribunal Service give information or even assistance to appellants who are outside the country—as a minimum, information on how they can set about dealing with an appeal from outside the country?

While I am on my feet, the Minister credited me with a comment about the best interests of the child which I think came from the noble Baroness, Lady Lister. I have an amendment on that later so it is understandable that he might have thought that I was going to say what I will be saying.

Lord Keen of Elie: I am obliged to the noble Baroness. Without the benefit of second sight, I cannot say whether I thought she was going to say what she had

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not said but was planning to say later—but I acknowledge that the original comment came from the noble Baroness, Lady Lister.

Baroness Knight of Collingtree (Con): I would like to ask my noble friend about a situation that was made clear to us in a fairly recent debate on the question of putting children together into families. There was quite a big family with four children. They were all over the place and the little girl—the tiniest one—was promised that she would have a brother. Her brother was to be put with her in an adoption situation and it was all going to be wonderful. This child believed what she was told. But it was explained to us during the course of the debate on the Bill that years went by and the child had hung all her hopes for the future on the thought that the authorities would place her real brother with her, as they had promised. Nothing was done and it wrecked that child’s belief in what older people told her. But no real comment was ever brought through that made that child’s promise be delivered. Does that still happen? Has it stopped?

Lord Keen of Elie: I acknowledge the observation made, but I cannot comment on the particulars of such a case. What I can say is perhaps only related and not directly on point. Part of the thrust of the next part of the Bill is to address the time taken for appeals to be processed. That matter will be addressed by my noble friend Lord Bates in due course. In general, it is hoped that appeal processes in simple cases will not exceed six months and even in complex cases will not exceed 12 months, so that there will not be the degree of separation that has been alluded to, even in cases where one child perhaps goes out of the United Kingdom and another remains in the United Kingdom. I rather suspect that that would be an exceptional case—albeit it is amazing when you read the facts of some of these cases just how diverse the family arrangements can be.

Baroness Hamwee: Is the noble and learned Lord able to answer the question I asked?

Lord Keen of Elie: The noble Baroness asked about communication of out-of-country appeals procedures. I do not have that information immediately to hand. I am aware of the tribunal regulations. Perhaps I could undertake to write to her to outline what the guidance is.

My research has come to a conclusion already. There is published guidance on the GOV.UK website on how to appeal from overseas, so it is there. I knew that it existed but I was not aware that it was actually on the website. Whether further steps are taken with regard to this matter, I cannot say. If in fact there is something over and above the website, I will write to advise the noble Baroness.

5 pm

Perhaps I may come on to the points made by the noble Lord, Lord Ramsbotham. He observed that the vast majority of migrants in these cases are legally here in the United Kingdom. With great respect, that is not so. We are not dealing with asylum seekers, we

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are dealing only with migrants who have been found to have no right to be in the United Kingdom. It is an appeals process following that determination that we are addressing in Clause 34, so it is not a case of saying to legal migrants that they have to leave the country for some appellate process; with respect, that is simply not the case at all. I cannot accept that the out-of-country appeal process is contrary to the rule of law. Indeed, the Court of Appeal went out of its way to point out that an out-of-country appeal process is perfectly legitimate. It falls within the rule of law and provides what is required under the convention processes; namely, a procedure that meets the central requirements of effectiveness and fairness.

As regards the percentage of appeals allowed in general, I am not able to give a figure, and in respect of appeals that fall under the existing conditions, there are not sufficient data since the Immigration Act 2014 to give percentage figures for out-of-country appeals. But there is a parallel in the context of refusal-of-entry appeals, where, as I noted earlier, some 38% of such appeals succeed: I acknowledge that. Again, I take issue with the suggestion that there is going to be some avalanche of compensation. There might be an avalanche of compensation claims, as there sometimes is in such circumstances, but in my submission they will be ill founded and therefore it is not an issue. The fact that an appeal succeeds does not confer upon somebody a right to compensation. That is taking even our compensation culture a little too far.

With regard to the matter of children, I reiterate that the best interests of the child are a primary consideration and will remain so in terms of Clause 34. We are entitled to have some confidence in the decision-making process which is conferred upon the Secretary of State for the Home Department in this context. The noble Baroness, Lady Sheehan, referred to a particular case involving someone from Chad and she observed that the Home Office does get it wrong. I am not standing here to make a claim of infallibility—indeed, I believe that the right reverend Prelate might intervene if I attempted it—but nevertheless while the Home Office is not infallible, it is responsible. The department proceeds responsibly in applying these powers and procedures. I note again that from my own experience of reading the decision-making letters in the context of the Byndloss and Kiarie cases, they reflect a very detailed assessment, particularly in cases that involve the interests of a child.

I mentioned earlier the matter of the time taken on appeals—a point raised by my noble friend Lord Horam. As I say, it is acknowledged that in the past there were backlogs. The intention is that there should be further improvement in the time taken for appeals, and it is hoped that the further provisions in the Bill will lead to a situation in which the appeal process for those involved in simple cases will be up to a limit of six months, and even in complex cases up to a limit of 12 months.

The noble Earl, Lord Sandwich, referred to Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and gave some comparative figures. I am not in a position to respond immediately to those figures, so perhaps he would be prepared to let me write to him on that subject.

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There is one further point, which was made by the noble Lord, Lord Rosser. He alluded to Section 55 and to the interests of the child, and suggested that perhaps, although these obligations exist, it might be better if they were reflected in the clause itself. That is a point on which I should like to reflect before Report, if he will permit me to do so. I am obliged to noble Lords.

Lord Rosser: First, I thank the Minister for that lengthy and comprehensive reply, which I am sure will have been appreciated by all those who have spoken and raised points in this debate. That does not necessarily mean that they have agreed with the Minister, but I am sure they have appreciated the extent to which he has sought to reply to the points that have been made. I also express my appreciation to everybody who has spoken in the debate.

In the light of the noble and learned Lord’s last comment that he would reflect further on whether something not too dissimilar to what was suggested in our amendment might appear on the face of the Bill, which I think is what he said, frankly I am tempted not to make all the points that I was going to make in response. I hope that that will not be taken as meaning that he has left me completely speechless with his reply; I am doing it in the light of what he said at the end of his contribution. I beg leave to withdraw the amendment.

Amendment 227 withdrawn.

Clause 34 agreed.

Clauses 35 and 36 agreed.

Clause 37: Support for certain categories of migrant

Debate on whether Clause 37 should stand part of the Bill.

Lord Rosser: We have the clause stand part debate on Clause 37 and an amendment in this group.

On 4 August, the Government initiated a consultation on proposals for changes in the support available to refused asylum seekers. The consultation ended just over a month later on 9 September and the Immigration Bill was published six days after the consultation ended. One can only comment that that was remarkably quickly after the end of a consultation exercise on part of the provisions of the Immigration Bill.

At present, there are two forms of support for asylum seekers under the Immigration and Asylum Act 1999—they are usually referred to as Section 95 support and Section 4 support. While waiting for a decision on the application, asylum seekers are not eligible for mainstream benefits. If they would otherwise be destitute, they can apply to the Government for accommodation or financial support or both under Section 95 of the 1999 Act. Since August of last year, the financial support available has been £36.95 per week per adult or child. That is, by the way, one-eighth of the daily allowance applicable in this place, which I believe one noble Lord recently declared was “inadequate”.

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Asylum seekers whose application for asylum is unsuccessful and whose appeal rights are exhausted cease to be eligible for Section 95 support, which is terminated 21 days after the claim has finally been determined. Under some circumstances, destitute refused asylum seekers can apply for Section 4 support under the 1999 Act. If granted, that is not paid in cash but a payment card is provided, credited with £35.39 per person per week to be used in specified retail outlets to buy food and essential toiletries.

Under the 1999 Act, refused asylum-seeking families with children under the age of 18 who were part of the family before the final decision was made on the asylum application can continue to receive Section 95 support until the youngest child turns 18 or the family leaves the United Kingdom.

Under the Bill, that entitlement for refused asylum-seeking families is taken away. As a result, support under Section 95 for families with children will be stopped once they have been refused and had any appeal rejected, following, in the light of the recent information we had from the Minister, what will now be a 90-day grace period, which I acknowledge is longer than the Government were originally proposing.

After the 90 days, these families may then be eligible for a new form of support under new Section 95A, which replaces Section 4 support. However, to qualify for support under new Section 95A, individuals and families who have had their asylum application refused will need to demonstrate that they are destitute and face a genuine obstacle to leaving the United Kingdom. The details of how this will work will be set out in regulations, but the Government have already stated that the criteria for provision under new Section 95A will be very narrowly drawn and more narrowly defined than under Section 4.

Will the Minister say whether the Section 95 support will be withdrawn after 90 days for families who are fully engaging with the authorities over their departure, or will it continue in these circumstances? If so, who would make that decision for it to continue? Would there be a right of appeal against a negative decision in that regard? I ask that in the context that, as I understand it, the Government’s review of their family return process showed that, in 59% of cases, it took longer than three months to complete the process of leaving. Presumably, the evidence suggests that there will be many cases where support under Section 95 will cease before the family whose asylum claim has failed has been able to make all the necessary arrangements to return home.

The Government have also said that, under the new arrangements, it will not be possible to apply for new Section 95A support outside the prescribed grace period of 90 days under Section 95 support, except where the regulations permit this for reasons outside the person’s control. New Section 95A claims will require the applicant to show that there is a genuine obstacle to leaving the UK. For pregnant women, that is defined as being within six weeks of the due date. What will happen in a claim by a pregnant woman during the 90-day grace period for new Section 95A support who, at the time of the application, is not within the qualifying six weeks of the due date? Will they qualify for Section 95 support?

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This clause and its associated schedule are clearly intended to deliver the objectives so bluntly set out in the Explanatory Notes of making it hard for those without the appropriate immigration status to live in this country. In this instance, it is the Government’s stated policy intention to encourage the departure—to put it euphemistically—from the UK of refused asylum seekers.

Will the Minister, when he responds, place on record the Government’s estimate of the reduction in the number of people in this country with no lawful basis to remain that will result from this intended change in the support arrangements, and the basis on which that estimate was determined? I ask that because the Government will be aware that there is far from universal acceptance of their apparent premise that cutting off support after 90 days to asylum-seeking families whose appeal rights have been exhausted will result in their leaving the United Kingdom, because where parents think that their children’s lives will be at risk if they return home they are rather more likely to consider that becoming destitute in the UK is still the better option available to them.

In 2005, the then Labour Government ran a pilot scheme in which families whose appeal rights were exhausted had all their support removed if they failed to take reasonable steps to leave the UK. The Government’s own evaluation of the scheme in respect of Section 9 of the 2004 asylum and immigration Act, which involved 116 families, concluded first that the rate of absconding was 39% for those in the Section 9 pilot, but just 21% in the comparable control group who remained supported. Secondly, it concluded that only one family in the pilot was successfully removed, compared with nine successful removals in the control group. There was no significant increase in the number of voluntary returns of unsuccessful asylum-seeking families. Finally, the earlier evaluation concluded that Section 9 should not be used on a blanket basis.

5.15 pm

The pilot was based on the proposition that withdrawing support—threatening destitution—was likely to encourage people to leave. In the light of the evaluation, the pilot was considered a failure. The reality is that support for families facing removal is the best means of ensuring that they leave. That means financial support, support with documents on obstacles that may arise and support through the giving of advice. Families who are supported are the ones most likely to leave. Withdrawing support for this category of migrants is in reality a threat of destitution as a means of trying to enforce immigration rules.

In Committee in the House of Commons, the Government argued that the measures in the Bill would have a different impact from those that were the subject of the pilot and evaluation in 2005 because the burden would be on the family to show there was,

“a genuine obstacle to their departure”,

in order to qualify for support and because there would be,

“a managed process of engagement with the family”—[

Official Report

, Commons, Immigration Bill Committee, 5/11/15; col. 408.],

instead of a largely correspondence-based system.

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The thinking behind the first point is not clear, since there is no reason to believe that putting the onus on the family to prove a genuine obstacle will make them less likely to go underground if support is withdrawn. On the second point, it is difficult to see how the change referred to will make a difference to the results of the 2005 pilot, since the withdrawal of support will hardly encourage keeping in contact with the authorities. In fact, the evidence suggests that it will have the opposite effect as a result of the hardship, distress and anxiety caused by the withdrawal of support, and will be wholly counterproductive.

Frankly, destitution in the 21st century should not be a means of enforcing immigration rules, yet that is what lies behind these provisions in the Bill, even in the light of the 90-day grace period, because those provisions change the current basis of support. Children should not be adversely affected in this way by the decisions of their parents, yet the Bill will visit those adverse impacts on them.

We also have an amendment in this group which seeks to provide for the right of appeal against Home Office decisions on support for asylum seekers. The Government have indicated that there will remain a right of appeal against a decision to suspend or discontinue Section 95 support before it would otherwise come to an end. I have already asked a question in my contribution about the continuation of Section 95 support in respect of a family who have co-operated with the authorities but whose removal has not been possible within the 90-day period, and what their rights of appeal would be. The Government have provided for no right of appeal for failed asylum seekers against the refusal of support under Section 95A. The Government maintain that they do not consider a right of appeal to be necessary because the assessment of whether there is a practical obstacle to departure from the UK in their view generally involves straightforward matters of fact. That is a somewhat debateable assertion in view of the high success rate of appeals against Home Office decisions on support. I ask the Government to think again on this point.

The Government also say that relatively few existing appeals relate to the issue of whether there was a practical obstacle to departure from the UK, which begs the question: why not provide for a right of appeal in what the Government consider will be very few cases of such claims? The other point to make, though, is that to qualify for Section 95A support the applicant has to show they are destitute. The Government say this will not be an issue since claims under Section 95A have to be made during the 90-day grace period under Section 95 support, and that that support, under Section 95, will have been given only to those who have been able to show they are destitute. However, not every asylum seeker receives Section 95 support. They might have savings or be staying with friends or relatives who are supporting them. However, that position could change so that it becomes necessary for them to apply for Section 95A support because they are claiming they are now destitute and that there is an obstacle to them leaving the country. What happens if their claim that they are now destitute and meet the criteria for Section 95A support is declined?

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Are the Government saying that they would have no right of appeal on the issue of destitution and, if so, why?

I hope that the Government will reflect further on the withdrawal of that support after 90 days and on the need and desirability for the proposed changes in support for refused asylum-seeking families with children. I hope that they will also reflect further on the issues of right to appeal which I have raised.

The Lord Bishop of Norwich: My Lords, I support Amendment 230 in this group. My colleague, the right reverend Prelate the Bishop of Southwark, spoke at Second Reading of his concern about the architecture of Clause 37 and Schedule 8. I share his belief that the reduced weekly support of £36.95 per person, to which the noble Lord, Lord Rosser, referred, for an asylum seeker under the current system is inadequate. Where that financial provision is refused, it is subject to a right of appeal. I note that in nearly two-thirds of such appeal cases, the appeal is successful or the refusal is withdrawn.

There seems to be an inexorable but ultimately self-defeating utilitarian logic in government policy in this area. The argument seems to be that when an asylum seeker’s application is refused and an appeal is unsuccessful, there is no further need for or right to any financial support. It seems to be assumed that this will be an incentive in itself to leave the United Kingdom. I fully understand the Government’s desire to maintain the integrity of immigration control by ensuring removal, whether voluntary or not, but I wonder how effective this policy will be.

As we have heard, the criteria under the new provisions for any financial support in such situations are destitution and genuine obstacles to leaving the UK, and there is then no right of appeal. What constitutes,

“a genuine obstacle to leaving the United Kingdom”,

is not defined, although it could appear in the Bill rather than be left to regulation. In another place, the Minister expressed hope that greater engagement with failed claimants would lead to many more voluntary departures. He said that under existing legislation such engagement led to 377 people leaving between April and October last year.

The Refugee Council notes that this engagement often went on over months and involved many meetings with families and case conferences. Such experience suggests that a significant period of grace, with some financial support, in such cases is both necessary and constructive. I may have misunderstood but the Bill’s existing provision seems inimical to developing this practice and may well undermine its very aim. Scrutiny of the existing system—one which, after all, involves rather modest financial maintenance—shows that on appeal there are a significant number of corrected decisions. That is why, if the provisions of Clause 37 and Schedule 8 are conceded, they ought to be subject to appeal. I hope the Minister may be sympathetic.

Baroness Hamwee: My Lords, my noble friend Lord Paddick and I have added our names to the objections to Clause 37 and Schedule 8 standing part, and we have a number of specific amendments in this group.

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I will deal with what I have noted as minor amendments —although one of them is not that minor—before coming to the more general point. My Amendment 229ZD deals with “further qualifying submissions”. The provision requires them to fall to be considered by the Secretary of State under the Immigration Rules, which I saw, when I was looking for various things on the GOV.UK website, are described as legislation. But, as noble Lords will be very well aware, they are not subject to parliamentary scrutiny. The purpose of the amendment is to ask about the process for scrutiny, if any, of current and future amended rules and the application of these to the schedule.

The provision that is the subject of my probing Amendment 229ZE merely changes “claim for asylum” to “protection claim”. My amendment would omit “as may be prescribed”, which applied to the claim for asylum under the previous legislation. I found that slightly odd in the context, but I wonder whether there has been any experience of a prescription claim under the legislation. Perhaps the Minister can flesh that out a bit.

The last of these three specific amendments, Amendment 230ZB, is much more material. Schedule 8 provides for support not to be in the form of cash. The experience of the Azure card is not a happy one. I can just about see that vouchers for certain services might be defensible. Vouchers for goods require the recipient, in effect, to shop in places which are not convenient, do not provide what may be sought within a particular culture and are not the cheapest. In particular, they cannot be used in a market. They may mean travelling to a place where vouchers can be used but vouchers are not available for travel. Getting to essential appointments, such as medical and legal appointments, becomes a huge problem. Children are affected not only through hunger but because the card does not cover things such as school trips or, as I say, travel fares. We have had evidence that the payment system affects people’s mental health—I am sure that this is not news at all to the Minister. It affects their ability to maintain relationships and to participate in social, cultural and religious life. Not every cashier in shops where the card can be used is properly trained, so embarrassment can be caused. The card can generally be a source of stigma because it singles out the recipients.

On Clause 37 and Schedule 8, reference has been made to the current Section 95 regulations. When I was preparing for my Motion to Annul those regulations in October, I was shocked to read how minimal was the provision for essential living needs. One of my noble friends commented to me afterwards that it was obvious from the expressions on several faces opposite, where a number of the Minister’s colleagues were sitting, that they were shocked by what they had heard. The Official Report does not record facial expressions but on that occasion I felt, as I have sometimes felt on others, that the Minister may not be a particularly good poker player.

I was very critical on that occasion of the methodology used to assess essential living needs, which in the case of a child could hardly be called an assessment. It does not include nappies, formula milk and other items specifically for babies. There was a very blunt tool

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for applying the approach of economies of scale. By just using that rough and ready term, without any disaggregation or analysis, the adult rate was applied. Of course I did not win when I then put the matter to the vote—the regulations have been in force since August—but one outcome was some discussion both privately with the Minister and during the debate about consultation with the NGOs and others who work in the field on periodic reviews of the support rates. The Minister said:

“We would certainly welcome evidence and data”.—[Official Report, 27/10/15; col. 1160.]

That is not of course in the context of the new Section 95A, but it is relevant, and I hope that the Minister can give the Committee an assurance about the process of arriving at the rates.

5.30 pm

I do not want to take the time of the Committee by repeating points which have been made by the noble Lord and the right reverend Prelate, but they can take it that I agree with the detail as well as the spirit of everything that they have said. However, I will pick out, perhaps in a slightly disjointed way, one or two points. One important point is that the opportunity to engage with and receive assistance from the Home Office must not be lost, as it would be with a short grace period. Engaging with the authorities is important if people are not to be lost in the system—or rather fall out of it. That links in with the importance of a good returns process, which I will come back to in a moment.

Comments have also been made about the scope for dispute between the Home Office and local authorities. I am not suggesting that either sets out to be argumentative, but the strain on local authorities means that inevitably, under new paragraph 10A, there will be a focus on whether the responsibility should be that of a local authority. It was suggested that these could be resolved much more simply, quickly and cheaply by a specialist asylum support tribunal rather than through judicial review.

My Amendment 233 is about support for voluntary returns. I have already referred to forced destitution making it more difficult for families to leave the UK, because with ineffective support, families will disappear. The noble Lord, Lord Ramsbotham, the noble Baroness, Lady Lister, and I were all members of the all-party committee which looked at immigration detention. During our work, we heard about the effectiveness of different forms of support for voluntary return in other countries. The International Detention Coalition found that,

“asylum seekers and irregular migrants are more likely to accept and comply with a negative visa or status decision if they believe they have been through a fair refugee status or visa determination process; they have been informed and supported through the process; and they have explored all options to remain in the country legally. In contrast, those individuals who believe their case has never been heard properly”—

I think this comes within the same category as the support that may be given under the provisions we are talking about—

“are more likely to appeal a negative decision or find another avenue”—

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that is put very delicately—

“to remain in the country”.

Our report mentioned the case management models in Sweden and Australia. I do not think we would be surprised to hear of the practice from Sweden, but Australia is not normally held up as a model in the migration area. I had better not take the time of the Committee by reading all this out now. I hear some support for that notion from my side—one can go off people. However, the underlying point is that maintaining contact and providing helpful support is not only humane but effective in gently persuading the people concerned that the best course for them is to accept that they should go back to their country of origin.

Baroness Lister of Burtersett: My Lords, I oppose the Questions that Clause 37 and Schedule 8 stand part of the Bill and support Amendment 230. I note in passing my support for Amendment 230ZB—I was going to say that the history of vouchers and the Azure card is not a happy one, but that is exactly the phrase used by the noble Baroness, Lady Hamwee. I am a bit worried after the confusion about who said what on the previous group that we are somehow seen as interchangeable; I hope not—from both sides, I am sure.

At Second Reading, I warned of the exploitation that could result from Clause 37 and Schedule 8. To show destitution will not now be sufficient on its own to qualify for assistance. It is clear from past research conducted by organisations such as the Children’s Society and the Centre for Migration Policy Research for Oxfam that destitution can all too easily lead to exploitation—notably of women and children—of various kinds. In particular, it can lead to economic exploitation, which the Bill is supposed to reduce, as destitute asylum seekers are pushed into the shadow economy, sometimes earning as little as £1 an hour in deplorable conditions, and sexual exploitation. This can involve both commercial sex work and transactional sex in return for shelter and basic subsistence.

Children’s Society practitioners report that they see many such ambiguous and all-too-often abusive transactional relationships. As one practitioner observed:

“These women are absolutely at the mercy of other people because they are powerless and have nowhere else to go”.

Previous Children’s Society research revealed how destitute children and young people, too, are vulnerable to abuse and sexual exploitation.

Prospective destitution is in effect being used to incentivise voluntary return—the language of incentives is the Government’s, not mine. The thinking that it betrays was challenged by a Centre for Social Justice working group on asylum a few years ago, and by evidence from many organisations working with asylum seekers—at Second Reading, I cited that from Women for Refugee Women. Not one of 45 women it spoke to in a 2012 study felt able to contemplate return, despite facing destitution. That still held true when they spoke to 30 of those women a year later. It concluded that parents who fear for their own and their children’s safety will not be swayed to return to their home countries by the threat of being made destitute or actual destitution.

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Back in 2007, the Joint Committee on Human Rights made it clear, with reference to piloting of the Section 9 scheme, that,

“using both the threats and the actuality of destitution and family separation is incompatible with the principles of common humanity and with international human rights law and … it has no place in a humane society”.

Serious human rights concerns about the proposals in the Bill have been raised by the Equality and Human Rights Commission, with reference to the ECHR and the UNCRC, and the Northern Ireland Human Rights Commission, which has deemed them retrogressive concerning rights contained in the International Covenant on Economic, Social and Cultural Rights.

The only real concession in response to the consultation, other than to local authorities, has been to extend the grace period for families to 90 days, as we have heard. This extension is very welcome. However, there seems to be a sting in the tail, as it now appears that an application for Section 95A assistance will normally be possible only during the grace period while already claiming Section 95 support, and that 90 days will represent an absolute cut-off point. This has caused considerable concern among organisations working with asylum seekers.

Two particular questions arise. I apologise if I am repeating questions posed by my noble friend Lord Rosser, but I am not absolutely sure that they are the same questions because I did not quite take it all in. I do not think that there is any harm, because it is important that these questions are addressed. I should be grateful if the Minister would do so when he replies. First, will he provide an assurance that the regulations that permit applications outside the grace period will include changes of circumstance such as when asylum seekers who were previously supported by friends or family become destitute or encounter a barrier to return after the grace period is over? If the 90 days prove to be too short for families to complete the family returns process—we heard already that the Home Office’s own evaluation of the process shows that three out of five families take longer than three months—what discretion will there be for support to be extended for families still going through the process?

Welcome as the Home Office’s recent note was in providing more information, it is deeply unsatisfactory that it does not contain the level of detail about the regulations that we need to scrutinise these provisions properly. Nor does it indicate the level of support that new Section 95A will provide. Will it be the same as that provided by Section 95? Given the savage cuts to support for children that we debated last year and to which the noble Baroness, Lady Hamwee, already referred, surely there can hardly be less than that level of support. What is the Government’s response to the Delegated Powers Committee’s recommendation that the regulation should be subject to affirmative not negative procedures?

On Amendment 230, it is simply not credible to maintain, as Ministers do, that an appeal is not necessary because whether or not there is a genuine obstacle to leaving is a straightforward matter of fact. As Still Human Still Here legitimately asks, if such decisions are really so straightforward, how come the Home Office so often gets them wrong? As it points out, the

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reality is that these types of support decisions are complex, with caseworkers having to assess both whether someone is destitute and faces a genuine obstacle to leaving the UK. During 2014-15, it represented 168 asylum seekers deemed not to be destitute and in 70% of cases the Home Office decision was overturned. A similar proportion of cases was overturned or remitted in the 89 cases it represented where the appeal was on grounds of fitness to travel or reasonable steps being taken to return.

Such statistics demonstrate that facts are not just facts but have to be interpreted and evaluated, and a judgment made. All too often, it would appear that the Home Office is making an erroneous judgment. Yet in future there will be no tribunals, either to ensure justice or to provide some kind of check on Home Office decision-making, which is likely to become even worse as a result. The Home Office contends that appeals win only because of the late submission of evidence, but that is not supported by the analysis conducted by ASAP. Has the Minister seen that analysis and would he care to comment on its findings?

Important human rights and rule of law issues are at stake here. It is not good enough to say that judicial review remains as it would be very difficult to use JR in such cases. The tribunal system provides a more practical, efficient and fair means of enabling vulnerable people in pretty desperate straits to challenge decisions they believe to be wrong. The stakes are so much higher now than even under the present system. It would be a grave injustice if we were to allow the decision to remove basic appeal rights to stand.

The Earl of Sandwich: My Lords, it is a pleasure to follow the noble Baroness, who spoke with such sincerity. I support these amendments in the name of the noble Lord, Lord Rosser, and others. I am grateful to the noble Lord for mentioning absconding again. I hope we will get an early answer on that.

Amendment 230 would include a right of appeal against the decision not to provide support. There is a small army of campaigners on this matter out there, some of them in the House of Commons where this was a major issue in the last debate on the Bill. One of the campaigners was called Iain Duncan Smith. The Minister may already know that in a 2008 report, Mr Duncan Smith said that the then Labour Government were using forced destitution as a means of encouraging people to leave voluntarily. He said that it was a “failed policy”; only one in five left voluntarily. The same Home Office is again aiming to squeeze Section 95 and Section 95(9A) on support and to narrow down the eligibility of families of so-called refused asylum seekers, although I have never liked that term. That may even prevent, as the noble Baroness, Lady Hamwee, said, local authorities supporting children and families under Section 17 of the Children Act 1989. We were debating this in October, as the noble Baroness said, under the Motion to annul, and arguing whether £5 was enough for a person to live on. If you take into consideration food and clothing—shoes, for example—it is not. There are some sad examples of mothers and children facing destitution, and worse. These are taken from serious case reviews, which I shall not relate now, but they convinced me that the Government have to think again.

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5.45 pm

Lord Roberts of Llandudno (LD): My Lords, for many years we have discussed the Azure card, and it is good to return to it—and also to say that we had one or two victories in our most recent discussions, whereby instead of the value of the card being scrapped altogether there is a rollover now, so people can save a little perhaps from £35 to go over to the next week.

We are dealing here with vulnerable people. People are never illegal; they are people just like every one of us in this Chamber, as I keep on repeating. We have the opportunity to either undermine the dignity of people or to restore it. We should remember that it is as we restore that dignity that we build a legacy for the future that is far more worth while than trying to diminish the rights of people. Imagine that you are in a queue at a checkout in a shop or a store and you are wondering whether, with £35—£5 a day—you have enough to pay for the goods you have in the basket or trolley. Imagine that you get to the cashier and the cashier says, “Sorry, you can’t have that”, because you have gone over the £35. By introducing cash benefits, we could at least give people a little bit of dignity in that queue, so that they are not embarrassed. They are people—and often people of great dignity and worth.

Today I read in a paper that I do not often read that there is an easyJet shop opening in north London where for at least a month most items are 25p each. I do not know whether other noble Lords have read about this. That is great—so the person with the Azure card goes there and finds out that they do not use it there. It is used only in 14 or 15 stores. And how would they get to north London, when you cannot use it to buy a bus ticket or a ticket on the underground? If they had cash, they could do that. I am reading between the lines in transitional instructions—not in what the Minister said in the other place—that the Azure card was to stay. We have another opportunity here to bring about a bit of dignity for those people. You have children with you—and children sometimes might want a piece of toffee or chocolate, but you cannot do it, because you do not have the money. And is that included in the goods that you can buy with the Azure card? Probably it is.

We have created second-class, third-class or fourth-class citizens existing on £5 a day. I spend more on that in the cafeteria and in the restaurants here, and I know that some people pay as much as that for a coffee in some places in our Parliament. But we have the opportunity, and we are moving in that direction whereby the Azure card is yesterday’s news and cash benefits in hand are today’s news. Then we have to restore the right of appeal. There is a lot more to be done, but I am sure that the Minister will give us some comforting words at the end of this debate.

Lord Alton of Liverpool: My Lords, the noble Lord, Lord Roberts, has reminded us that this clause is about forced destitution. Is it right that in a country such as this, which is one of the wealthiest in the world and upholds humane and civilised standards of decency, we should leave people without adequate resources believing that it is a way to somehow force them to leave the country? At Second Reading, I rehearsed

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some of the arguments. I mentioned Asylum Link Merseyside, of which I am a patron, and the work it has done that demonstrates that that simply does not work, because when parents, rightly or wrongly, think that their children’s lives will be at risk if they return home, they will generally consider that becoming destitute in the United Kingdom is the better option available to them. That is why the noble Lord, Lord Rosser, is right to ask whether we wish this clause to remain part of the Bill and to argue why it should not stand part.

Asylum Link Merseyside works with asylum seekers, but as my noble friend Lord Sandwich and others have reminded the Committee, the Home Office commissioned its own report into these things—I think that the Home Office study covered a cohort of about 116 families. It found that the rate of absconding was 39% for those in the Section 9 pilot but only 21% in the comparable control group who remained supported. Only one family in the pilot was successfully removed, compared to nine successful removals in the control group, and,

“there was no significant increase in the number of voluntary returns … of unsuccessful asylum seeking families”.

That is why the Home Office concluded that Section 9 should not be used on a blanket basis. Removing Clause 37 would remove something that we know does not work, that is likely to be more costly, that is an inefficient support system and that will clearly, as others have said, put the welfare of children at risk.

The Bill will establish a highly bureaucratic system which will be burdensome to administer. Local authorities will remain the body to which destitute refused asylum seekers who have fallen through the safety net turn for support. They will have to conduct eligibility tests and assessments to see whether support is required in order to safeguard the welfare of a particular child. In these cash-strapped days, do we really believe that local authorities will be in a position to do that? The complexity of these new arrangements means that families with children are likely to fall through the gaps in the system and find themselves destitute, at least temporarily. The consequences of refused asylum seekers being left without support, even for short periods of time, is extremely serious as it causes illness and complicates existing health problems.

Some noble Lords, including the noble Baronesses, Lady Lister and Lady Hamwee, were able to attend a briefing a few weeks ago which was given by, among others, Still Human Still Here. I asked then for some illustrations of how this could work out in practice. I shall give two brief examples. Still Human Still Here mentioned a 2012 serious case review which involved an asylum seeker who developed a brain infection and could not look after her child. The boy starved to death and the mother died two days later. The family became destitute during the transition from asylum to mainstream support, leaving the family,

“dependent upon ad hoc payments by local agencies”.

The review expressed,

“concern about the adverse consequences on vulnerable children and the resulting additional pressure on local professional agencies”,

when support was cut off.

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In 2011 a serious case review involving child Z noted that the circumstances of the child’s mother, a refused asylum seeker facing removal with a life-threatening illness and caring for a young child with few support networks,

“would challenge any individual's coping strategies”.

It stressed that the,

“need for high levels of support for someone with such vulnerabilities was clear”,

and the absence of this support was a major factor leading to the woman’s death and her child needing to be looked after.

Both these cases highlight the consequences of leaving vulnerable families without support, and I therefore have some questions for the Minister. The Government’s proposals leave the detail of the new support provisions, including the level of support, to regulations. First, will the Government provide an assurance that the level and type of support provided under Section 95A or new paragraphs 10A and 10B of Schedule 3 to the 2002 Act will meet the essential living needs of asylum seekers and that the housing provided will be appropriate for vulnerable children and their families?

Secondly, the Government have stated that it will not be possible to apply for Section 95A support after the prescribed grace period, which is 21 days for single adults and 90 days for families with children. Will the Government provide an assurance that the regulations which permit applications outside the grace period will include changes of circumstance, such as when asylum seekers who were previously supported by friends or family become destitute or when asylum seekers encounter a barrier to return after the grace period is over?

Thirdly, will the Government consider amending language which prevents local authorities providing support under Section 17 of the Children Act 1989 where,

“there are reasonable grounds for believing that support will be provided”,

as it is likely to leave families destitute for considerable periods of time while responsibility is determined?

Fourthly, and penultimately, while local authorities will be able to provide accommodation and subsistence support when they are satisfied that it is needed to safeguard and promote the welfare of a child, regulations will be laid specifying factors which the local authority must or must not take into account in making this decision. What factors do the Government intend to specify must or must not be taken into account?

Lastly, will the Government provide an assurance that the best interests of the child, which were referred to by the Minister’s noble and learned friend in earlier exchanges, shall be a primary consideration in the operation of any actions concerning children in the Bill —a point that I think will be reflected on in response to what the noble Lord, Lord Rosser, said earlier—and that the new mechanisms of support set up in the Bill will ensure that every child has a right to,

“a standard of living adequate for the child’s physical, mental, spiritual, moral and social development”?

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Those words are required by the Convention on the Rights of the Child. I hope the Government will consider bringing forward their own amendment at least to put that in the Bill.

I realise that the Minister may not be able to answer those five questions now, although I hope the Box will be able to provide him with some response. However, at least between now and Report, I hope that he will give reassurance to all noble Lords who have participated in today’s debate supporting the excellent points that the noble Lord, Lord Rosser, made in moving that this clause should not stand part of the Bill.

The Minister of State, Home Office (Lord Bates) (Con): My Lords, as we now embark on Part 5, which deals with levels of support and the treatment of migrants, it might be helpful if I put some general points on the record. First, I readily accept that we are talking about a vulnerable group of people. Irrespective of whether their asylum claims are upheld, they have travelled from another country and find themselves in a country where they often have difficulties with the language. One does not minimise in any way that they are a vulnerable group.

Secondly, when the Immigration and Asylum Act was passed by the previous Labour Government in 1999, the provision under Section 95(5) for people in need was a recognition of our international obligations to provide a basic standard of care for people who had applied for asylum in our country and for our protection while their case was being considered. I do not think that it was ever the intention of the Government at that time, as evidenced by their attempt to reform Schedule 3 to the Nationality, Immigration and Asylum Act 2002, that this would be an open-ended commitment, irrespective of whether the person was within the asylum process or had gone through that process and found that their claim was not upheld. It was not intended for that support to continue ad infinitum.

6 pm

The next point is that we have not embarked upon this approach lightly. We have had a period of consultation on this, and that consultation received many representations from the groups that have already been referred to. The consultation was responded to by the Government. We then set out, in my letter to the noble Lord, Lord Rosser, on 21 January, significant supporting materials setting out what the changes would be, with the purpose that noble Lords would have greater detail than perhaps is normally the case in considering what the reform of support for failed asylum seekers and other illegal migrants is going to be, and the information contained in Schedules 8 and 9.

Because of the above, we are aware that we are dealing with very sensitive situations and that we have a duty of care, particularly to vulnerable people, so we want to be absolutely sure that we are getting this right. That is the reason why so far we have introduced some 26 different government amendments, including three in this group, which we will be coming to in the next seven or eight groups, to deal with some of the gaps that have been identified—for example, in relation to human trafficking. The reports that have been

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received from the Red Cross have been considered very carefully, and the Asylum Support Appeals Project does valuable work, particularly with those who go through that route of applying for asylum support.

The broad principle that I am trying to set out is in many ways a response to the comments of the right reverend Prelate the Bishop of Norwich about the importance of having a fair and humane process. I want to set out that when we talk the about the cash elements that are available, we have to remember that they are in addition to safe and secure accommodation with all utility bills paid for. All that we are talking about here, when it comes into force—“when” being an issue that we will return to—would apply only to new applicants.

In recognising the original purpose of Section 95(5) of the Immigration and Asylum Act 1999, I note that some cases in the asylum applications that we receive, coming to this country each year, raise some question marks. The fact that we receive 80% of 16 and 17 year- old asylum applicants in Europe from Albania is something that we need to factor into these considerations; it is not that there is not a problem. As we want increasingly to extend our hand of help, support and protection to the most vulnerable in our society, particularly those from Syria and Iraq, it behoves us also to ensure that we use the resources available where they are particularly needed, and not perhaps for people who have come to apply to this system who may not be the most in need.

Clause 37 and Schedule 8 reform the support arrangements for failed asylum seekers who the courts have agreed do not need our protection. They do not alter the support for asylum seekers who would otherwise be destitute while their claim is determined and any appeal is heard. Schedule 8 makes two key changes. First, failed asylum-seeking families will no longer be treated as though they were still asylum seekers. They will cease to be eligible for support under Section 95 of the Immigration and Asylum Act 1999, and Section 4 of that Act will be repealed. Support will be available only to destitute failed asylum seekers and any dependent children if there is a “genuine obstacle”—we will return to that phrase and I will expand upon its meaning—that prevents their departure when their appeal rights are exhausted.