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Nationality, Immigration and Asylum Bill

9.46 p.m.

Consideration of amendments on Report resumed on Clause 15.

[Amendment No. 17 not moved.]

Clause 17 [Destitution: definition]:

[Amendment No. 18 not moved.]

Clause 21 [Person subject to United Kingdom entrance control]:

[Amendment No. 19 not moved.]

Clause 22 [Provisional assistance]:

Lord Bassam of Brighton moved Amendment No. 20:

"(2) Section 99 of the Immigration and Asylum Act 1999 (c. 33) (provision of support by local authority) shall have effect in relation to the provision of support for persons under subsection (1) above as it has effect in relation to the provision of support for asylum-seekers under sections 95 and 98 of that Act."

The noble Lord said: My Lords, these government amendments will ensure that local authorities have power to enter into contracts with the Home Office in respect of National Asylum Support Service emergency accommodation, induction centres and accommodation centres. We had thought that existing provisions in the Local Government Act 2000 would be sufficient for that purpose. However, on reflection, we have concluded that that may not be the case and have decided to put the matter beyond reasonable doubt.

The National Asylum Support Service has existing powers under the Immigration and Asylum Act 1999 that enable it to enter into contracts with local authorities in respect of accommodation under Section 95 of that Act, which is generally referred to as dispersal accommodation. However, to date NASS has contracted with the voluntary sector for the provision of emergency accommodation under Section 98 of the 1999 Act. NASS is currently considering how to expand the range of providers used for emergency accommodation. A number of local authorities have expressed an interest in both providing such accommodation and running induction centres on behalf of NASS. We must be assured they have the powers to do so.

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Likewise, local authorities in potential accommodation centre areas have shown an interest in providing services in respect of accommodation centres. Although the intention is that accommodation centres should not burden mainstream services, local authorities see an advantage in ensuring that accommodation centre services are closely aligned with mainstream provision. Providing services under contract to the Home Office or the centre operator would be one way forward, if that was mutually convenient for those concerned.

In addition, as we said during the debate on Clause 14, we have decided to pursue alternative models for accommodation centres, with a view to developing one or two broad options—perhaps a network of accommodation blocks round a central service core or a self-contained centre with a capacity of 250 to 300 beds. Either would increase the likelihood that a local authority would have suitable premises that it might be prepared to offer for use as an accommodation centre.

The amendments will ensure that we have the flexibility that we need to procure alternative models of accommodation centre provision. The powers contained in the amendments are permissive and impose no new duties on local authorities. They will simply give local authorities the confidence that they have a clear statutory basis for entering into contracts in respect of emergency accommodation, induction or accommodation centres. That clarity will be broadly welcomed. I beg to move.

On Question, amendment agreed to.

Clause 23 [Length of stay: family with children]:

Earl Russell moved Amendment No. 21:

    Page 12, line 35, leave out "17" and insert "18"

The noble Earl said: My Lords, I must first apologise to the House for not being in my place one minute ago. I must confess that I had not expected quite such a degree of punctuality in the House. I congratulate it; it does a great deal better than our railways.

The amendments deal with the age of majority and would change the age set out in the Bill from 17 to 18. Eighteen is recognised as the age of majority in the law of this country and in the UN Convention on the Rights of the Child. There is something to be said for a degree of harmony on the matter. The use of 17 is anomalous. The age will frequently be forgotten, as, on at least one occasion during the passage of the Bill, it was forgotten by the Minister. It will be easier to remember if we have the same age of majority all round. I beg to move.

Lord Filkin: My Lords, the Home Secretary announced in another place that we would propose an amendment to limit the time to be spent by families with children in accommodation centres. The concerns that prompted the announcement focused on the fact that children would be educated in accommodation centres and not at schools in the community.

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The purpose of Clause 23 is to allow a decision to be made after a set period, which we think should be six months, about whether the family should remain in the accommodation centre. That will take account of the stage that the asylum claim has reached in the process, a report from the education provider at the accommodation centre and the views of the parents. I should make it clear that, when producing guidelines on how that should operate, we will ensure that account is also taken of the view of the children.

If a decision is made that the family should remain in the accommodation centre, the relevant maximum period will be three months, as previously stated. After that, if the family is still there, it will be at liberty, if it wishes, to move to a dispersal area.

The point is not the age of majority. It is how we enable a child to enter a school in the community, if the decision is made that the family should leave the centre after a certain period. Given that, it would seem strange that the clause should be amended to apply equally to those aged 17, who are not of compulsory school age. The issues are not the same. Naturally, I understand the noble Earl's desire to ensure that all residents of an accommodation centre should leave after six months. However, dependants who are above the age of compulsory schooling—17 and above—will, of course, have the opportunity to take part in the purposeful activities at the accommodation centre. In any event, as we envisage it, if they wanted to take part in further education they would have access to the mainstream system in the same way as any other 17 year-old.

We have considered the clause in the light of representations and have further decided to make the regulations under this clause subject to the affirmative resolution procedure, as I believe the Home Secretary recently indicated to Simon Hughes by letter.

For these reasons, we see the issue essentially as not about the age of majority but about the age at which compulsory schooling ends.

Earl Russell: My Lords, I do not think that the Minister has taken on board quite how the educational calendar works. I agree that 16 is the school leaving age, but the Minister referred to proceeding into further education. Normally, with any kind of further or higher education, the age of entry would be 18. In the remarkable event of any asylum seeker, after education at the centre, being already fully qualified to proceed to that stage, he or she would not be able to do so, probably, for another year afterwards. That year would be rather difficult to fill.

The difficulties of being a British-born 16 or 17 year-old at the moment are already very considerable. I have addressed the House on this subject probably 30 or 40 times—I reassure the Minister that I am not going to do so again—but such people fall regularly between two stools: they are not bound to be maintained by their parents but they do not have any adult private support. They have considerable difficulty. One would expect those difficulties to be multiplied in the case of an asylum seeker, who has no

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right to work, no entitlement to support, and very little in the way of a place to go. I believe the Minister will hear a lot more about the troubles of these 17 year-olds before he is through. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 22 not moved.]

10 p.m.

Clause 24 [Withdrawal of support]:

Earl Russell moved Amendment No. 23:

    Page 13, line 26, at end insert-

"( ) The Secretary of State may not stop providing support under section 15 or 22 of this Act where-
(a) to stop providing such support would render the person or any dependant of his destitute within the meaning of section 17 of this Act or section 95 of the Immigration and Asylum Act 1999 (c. 33) (provision of support), and
(b) the Secretary of State has not provided or arranged for the provision of support for the person under section 4 (accommodation for those temporarily admitted or released from detention) or section 95 of the Immigration and Asylum Act 1999."

The noble Earl said: My Lords, Amendment No. 23 seeks to provide that the Secretary of State may not stop providing support under Clauses 15 or 22 of the Bill where to stop providing such support would render a person destitute. The noble Baroness, Lady Hollis of Heigham, knows perfectly well that I am allergic to any social security measure that has the effect of leaving people destitute. I shall not go over those arguments again, save to make one point which I have not previously made. It concerns the link between rights and responsibilities, an issue on which I touched during the debate on Clause 4.

The proper way of understanding it is that the Government owes to all their subjects a duty of protection. That responsibility is the overriding principle of civil society. However, "protection" does not only mean protection against external elements; it means—and has meant since the Poor Law Act 1601, if not longer—protection against destitution and starvation. We do not believe that asylum seekers are the right people—if anyone is the right person—to be deprived of that particular protection from the state.

The issue has been discussed for a long time. I once discovered in the Cecil papers for the year 1601 a proposal to deprive all blackamoors of rights to support under the poor law. Nothing more was heard of that proposal. Queen Elizabeth I—unlike the present Government—was allergic to such measures and she was probably the one who stopped it.

But even if one were to say that it is perfectly proper for people to be deprived of all forms of support, asylum seekers are not in a position to be suitable candidates. If you are not allowed to work and are not allowed to receive any form of support, what are you to do next? You are in a far worse position than a British-born person suffering similar difficulty.

Most of us who have been on holiday and have lost our money, got lost, been robbed or found that our traveller's cheques have fallen into the water know that

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it is a far greater hardship to be destitute in a foreign country than it is to be destitute in one's own. One does not have the contacts or the network of friends to offer support. One does not know where to go, or which restaurants throw out food which is still good to eat. It is much harder to be destitute in a strange place. To be destitute when you have no right to work leaves you with no honest means of keeping alive. That is leading people into temptation, which is a bad thing to do.

The powers in the Bill to withdraw support from those who are taken out of accommodation centres is one of the more sinister aspects of the Bill. If that withdrawal of support is seen as a penalty for not entering an accommodation centre, one wonders whether that may make the placing of people in accommodation centres have more resemblance to detention than the Minister intends it to have.

In Committee, the Minister said that he did not intend the centres to be regarded as detention centres. I accept that that is his intention. But the Home Office knows well enough that what may be perceived by the courts as the effect of its actions may not always be what it intended to produce.

The deprivation of support for leaving an accommodation centre bears some resemblance to a penalty. It is a penal deprivation. So if going out of an asylum centre results in a loss of support and that is seen as a punishment, the restraint followed by the punishment for breaking the restraint may come to have some resemblance to detention.

There is a grey area here which is between liberty and detention. It is a commonplace that people who are under police investigation may be asked to hand in their passports. That does not amount to detention. When we come to a case such as house arrest—used more in other countries than it is here, I am glad to say—we are in an even greyer area. If you are not allowed to go out of your house, that could very well be construed by a court to be detention.

In that context, will the Minister answer a question which I asked him earlier in the debate on accommodation? How free will people in the centres be to come and go? Is there any maximum number of hours in a day that they must be in the centre? If they find the means to go up to London for the day and do not tell anyone that they are going, is that to be an offence? If they miss the last bus back, or if, as all too often happens, the last bus is cancelled, are they then committing an offence which renders them liable to expulsion from the centre, deprivation of support and possibly detention as well? These questions will help lawyers—of whom I regret to say I am not one—to determine whether the degree of restraint involved in being put in an accommodation centre amounts to detention.

If it does, it will engage Article 5 of the European Convention on Human Rights. People will need to be given written reasons for their detention. They will need to be given an explanation of the case. They will need to be given the chance to defend themselves. I believe that the Government intend none of those things. But the combination of the withdrawal of

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support and the compulsory placing in particular accommodation is capable of a more arbitrary construction than I think Ministers would wish me to give it. However, in the end it does not matter what construction I give it; what matters is the construction that the courts give it. There is the further point to be considered that it is now being argued by your Lordships' Joint Committee on Human Rights, among others, that deprivation of support may amount to inhuman or degrading treatment under Article 3 of the European Convention on Human Rights.

I shall quote from the case Husain v Asylum Support Adjudicator, which, I think, arose since the report was written. If the Minister wishes to check its reference, it is case CO/105/2001. The judgment was made by Mr Justice Stanley Burnton on 5th October 2001. He said:

    "I find the question whether a failure to support destitute asylum-seekers constitutes a violation of Article 3 a difficult one. I do not think it necessary for me to answer it and I do not propose to do so".

However, he then remarks:

    "In my judgment, unless other means of support are available when support is withdrawn, there will be a violation of Article 3".

That remark should be taken as obiter dictum, but the judgment might interest the Minister. It involved an asylum-seeker who had got into a fight with an Algerian. He was deprived of support, and the judgment was that, in general, a failure to provide support might not constitute inhuman or degrading treatment. However, once he had been recognised as having a right to receive support under the ordinary rules of law, to take it away from him on an individual basis did constitute inhuman or degrading treatment. It is an interesting, logical, good lawyers' distinction. That judgment was made at first instance, but no judgment on the point has yet been made in an higher court.

Before going ahead with the power to declare people not to be destitute, or the power to take away support from anyone outside a centre, as contained in Clause 24, I ask the Minister to take the advice of the noble and learned Lord the Attorney-General, for whom I have great admiration, and to whose opinion I believe he and I would both listen extremely closely. This is a matter in respect of which the Government are sailing in very deep legal water. They need a rather better chart than they have at present. I beg to move.

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