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Earl Russell: The Minister speaks of the Government's intention. That she can do with honour. Can she possibly answer for the effect of the legislation?
Baroness Scotland of Asthal: All I can do is create a framework where the effect of what we anticipate is managed in a way that we hope will not inure to the disadvantage of the families—and they will include children. Of course, we cannot legislate for each and every occurrence. What we can ensure is that the framework that we put in place is robust, fair, proportionate and enables people to receive the succour that they justly and rightly deserve when their application has failed, and they wish, with propriety, to leave the country.
Baroness Howarth of Breckland: Listening to the Minister's reasoning, which she gives with her usual clarity, the question that is still very firmly in my mind is what happens when there is a difference of opinion about what might be considered reasonable in terms of assessment. I recognise the complexity of these situations, but there will be situations in which the social worker and the immigration officer come to a different conclusion about what is reasonable. I want a good reassurance that the framework of assessment—and I intervened because the Minister was talking about frameworks of assessment—in any regulation is absolutely clear about how this kind of dispute will be resolved.
10 p.m.
Baroness Scotland of Asthal: I hope that I made it clear, in repeating what Beverley Hughes, the then Minister of State in the Home Office said on 17 March, and the comments that I have made, that we do not propose that those who co-operate appropriately with the provisions made for their return should in any way be disadvantaged.
I hope that in the full answer that I am in the middle of giving, noble Lords will receive the comfort and reassurance that they seek. It is very important to understand how the system currently works, how we propose that the new system will work and at which point these decisions will fall to be made. Noble Lords will have noted that when I repeated what was said by Ms Hughes in the other place, I said that it would be
for the local authority to decide how the interests of their children should be protected under existing child protection legislation.I was seeking to describe the process by which support would cease 14 days after the failed asylum seeker receives a copy of the Secretary of State's certificate. When the certificate is sent by first-class post, the person is treated as receiving it on the second day after the day on which it is posted. It will also be possible for the Secretary of State to serve the certificate personally, when appropriate. When a decision is made to withdraw support under Clause 8, we will also, as a matter of administrative practice, send a copy of the certificate to the failed asylum seekers' representative if one is acting on their behalf. The family will also have the right to appeal against the Secretary of State's decision to certify to the asylum support adjudicator following the amendment that we brought forward in another place.
Amendment No. 22 would mean that nothing in Clause 8 should be taken as requiring a person to act in contravention of an obligation imposed by virtue of the Children Act, the Children (Scotland) Act 1995, the Children (Northern Ireland) Order 1995 or the Children Act 2004. The latter reference refers to the Children Bill, which received its Second Reading here on 30 March. Clause 8 inserts a new class of person into Schedule 3 of the Nationality, Immigration and Asylum Act 2002. Paragraph 1 of that schedule makes it clear that local authorities are prevented from offering support under certain sections of the legislation contained in the amendment in respect of adults. The amendment would run counter to our intentions, and I cannot accept it.
We have made clear repeatedly that we need to tackle what we regard as the perverse incentive whereby people are able to remain in the UK, supported indefinitely at the taxpayer's expense, even in cases where they are not co-operating with efforts to remove them. As the amendment would allow the local authority to provide support to the whole family, we can see that this incentive would not be tackled. From the perspective of the family, it is irrelevant whether central or local government provides the support. If they are able to receive support, then they have no reason to co-operate if they are determined to remain here.
It is important that we continue to emphasise that the families affected by Clause 8 are those whose asylum claim has been refused and—and it is an important "and"—whose appeal has been turned down, assuming they have used their opportunity to appeal.
We need to be clear that there is no choice between staying here or returning home. Quite simply, the family is here illegally and has no right to stay here. Can we expect the public to accept a situation in which their money is used to support indefinitely those who do not qualify under our rules, regardless of whether they co-operate or not? I stress again that our intention is not to make families destitute. Our whole approach to this issue has been one of encouraging families to take up opportunities of voluntary return, and we explain clearly the consequences of a failure to depart. We have also provided for a right of appeal against the decision to withdraw support to the asylum support adjudicator. That provides a further safeguard.
There has to be an end point, unless the Committee is of the view that there will never be an efficacious method by which we can determine whether someone has a bona fide claim. That would be the consequence. We would never be able to determine someone's claim—provided they had been able to get here—and say, "You do not fall within the rules that we have created and therefore regrettably you have no right to be here". Unless we say that we shall disable ourselves from making that distinction, disable ourselves from making those decisions and be incapable in any circumstances of moving failed asylum seekers, we have to find a method of bringing matters decently and appropriately to a close.
Two arguments are used. First, why do we not simply enforce removal? Where we can, we will. But, if the family does not have appropriate documentation, we cannot put them on a plane. That is simply not an option—hence the incentive for families not to co-operate. Secondly, why can we not simply engage with the family and encourage departure without the ultimate sanction of withdrawing support? Such an engagement with the family is precisely what we want, as I have explained. It is part of the process we have outlined and it remains the case that, if the family co-operates, support will not be withdrawn. But we are not prepared to let support continue indefinitely where a family is failing, without reasonable excuse, to take reasonable steps to leave the UK or to place itself in a position to do so.
In a number of cases, families do not have the appropriate documentation for return and the country will not accept them, but they do everything that they can to co-operate with us. Therefore they remain in this country for some time, and quite properly they continue to receive our support because they are co-operating. Such families would continue to be covered. If people say, "We will not co-operate with you; we do not have documentation; we are not going to do anything to help you to get the documentation and we are going to stay here none the less", it must be appropriate for us to do something in response.
I draw the attention of the Committee to the provision in paragraph (3) of Schedule 3 which ensures that the prohibitions on offering support do not prevent the exercise of a power to the extent that it is necessary to avoid a breach of a person's rights under ECHR.
I understand the concerns that have prompted the amendment. I say that openly to the noble Lord, Lord Avebury. But, for the reasons I have given, we cannot allow a provision that fails to tackle the very incentive that the clause is designed to address. In summary, this clause will ensure that we have a robust system for making families absolutely clear about what is happening and about the consequences of failing to leave. We do not want families to be separated. We do not want people to be destitute. We want a managed system where people leave voluntarily after a fair hearing of their case and where people are clear that they cannot expect the state to support them indefinitely, regardless of the merits of their case.
I hope that that explanation assists, but I do pray in aid the JCHR report to which the noble Lord, Lord Avebury, made reference. The committee accepted,
- "that the Bill would not make it impossible to give appropriate protection to Convention rights".
- "and we accept that it is not in a child's best interests to remain for a long period in a country where he or she has no prospect of being allowed to remain permanently".
- "While clause 7 in itself is compatible with rights under the ECHR and the CRC, we fear that violations could all too easily follow in practice. We draw this to the attention of each House".
The noble Earl, Lord Listowel, and the right reverend Prelate the Bishop of Southwark both raised issues about how we are making it unattractive for families to return voluntarily. It becomes unattractive because families have no right to remain here and need to return home. Emphasis throughout has been on encouraging those families to return voluntarily. As I said earlier, the truth is that we and they have to accept that their asylum claim has been rejected and that they have not got a choice as to whether to remain here because the decision has been made.
The noble Earl, Lord Listowel, raised the issue of torture victims. Of course, those who are victims of torture in the way described by the noble Earl will have been granted refugee status. As I hope I have made absolutely clear, Clause 8 is aimed at failed asylum seekers.
The noble Earl asked about numbers of families. We have no specific figure in relation to numbers where support was withdrawn. We anticipate that those numbers will be small. The whole point is to encourage those people to go in a way that is decent and appropriate so that we never have to use that as a means of drawing matters to a close.
I hope that with that explanation, if noble Lords will not feel content, they will at least have a better or a modicum of understanding as to why the Government have come to the decision that we have now reached.
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