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Lord Rooker: My Lords, I shall get the latest figure. I am not making a point about the numbers. The point is that it is happening. I merely have a figure for the number of applications for refugee status. In terms of those leaving, if there is an up-to-date figure for the current year, I shall get it. If I cannot obtain it before I sit down, I shall give it in a later debate.

We already promote the assisted returns programme through a variety of means, and have discussions with non-governmental organisations such as the Refugee Council and the International Organisation for Migration. Information is available at reporting centres and in letters sent at various stages of the asylum process. Our view remains that, although it would be safe for failed asylum seekers to return voluntarily to Zimbabwe, in the wider context of the Government's position on Zimbabwe it would be inappropriate to return them forcibly at this time.

We will, of course, assess every case on its individual merits before a decision is made to withdraw support. I emphasise that the Secretary of State will not certify under Clause 9, except where a family is failing to take reasonable steps to leave the UK or place itself in a
6 Jul 2004 : Column 691
position where it can do so, and has no reasonable excuse for its failure to do so. That is the current position on Zimbabwe. That is not a Home Office position, or a Foreign Office position. It is the Government position. The departments do not disagree with the policy I have enunciated in answer to this amendment.

Baroness Park of Monmouth: My Lords, I have listened carefully to the Minister. I find it extraordinarily difficult to understand how it can be right to consign people who have made an assessment for themselves that it would be dangerous to return—an assessment which would be supported by many people—to destitution.

I would have liked to hear more about the possibility raised by the noble Lord, Lord Avebury, of the Secretary of State being prepared to consult, or receive advice and recommendations from, skilful and well informed people, who would perhaps be able to make the case better when it has been badly made, as many of them have done in the past. All I am asking is for the Secretary of State to use his powers. As I feel very strongly about it, I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 35; Not-Contents, 123.

Division No. 2


Ackner, L.
Alton of Liverpool, L.
Beaumont of Whitley, L.
Bledisloe, V.
Carnegy of Lour, B.
Chorley, L.
Courtown, E.
Craig of Radley, L.
Dholakia, L.
Donaldson of Lymington, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Fookes, B.
Hooson, L.
Hylton, L.
Joffe, L.
Lester of Herne Hill, L.
Mackay of Clashfern, L.
Marlesford, L.
Molyneaux of Killead, L.
Monson, L.
Moore of Wolvercote, L.
Norton of Louth, L. [Teller]
Park of Monmouth, B. [Teller]
Peyton of Yeovil, L.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Sandwich, E.
Selsdon, L.
Taverne, L.
Thomson of Monifieth, L.
Walton of Detchant, L.
Weatherill, L.


Acton, L.
Ahmed, L.
Alli, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bhattacharyya, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Henig, B.
Hollis of Heigham, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mishcon, L.
Morgan of Drefelin, B.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Patel, L.
Patel of Blackburn, L.
Paul, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Sainsbury of Turville, L.
Sawyer, L.
Sheldon, L.
Simon, V.
Snape, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warner, L.
Watson of Invergowrie, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.

Resolved in the negative, and amendment disagreed to accordingly.

6 Jul 2004 : Column 692

Lord Avebury moved Amendment No. 6:

"(6) The Secretary of State shall, before the commencement of this section, and thereafter from time to time as he may decide is necessary, publish detailed guidance on how the provision of this section should be implemented.
(7) Guidance published under subsection (6) shall not be made unless a draft of a statutory instrument containing the guidance has been laid before Parliament and approved by a resolution of each House."

The noble Lord said: My Lords, if the Government will not agree to leave out Clause 9, the very least there should be is guidance on its implementation, so that the manner in which the removal of support from families when they refuse to comply with removal directions is clearly set out in accordance with the Nationality, Immigration and Asylum Act 2002. In
6 Jul 2004 : Column 693
Schedule 3 to that Act, paragraph 2(1) provides that support shall not be withheld nor withdrawn from children, and paragraph 2(3)(a) provides that the schedule does not prevent the exercise of a power or the performance of a duty to the extent that this is necessary to avoid a breach of a person's rights under the ECHR or European Community law.

We are not happy to rely on vague ministerial assurances to ensure that there are proper safeguards here to prevent breaches of Article 3 of the ECHR. Our amendment provides that the section does not commence until this guidance is published and understood by those involved in its implementation, but that is very much a second best.

We would urge the Government to think again about Clause 9 as a whole, which we have argued all along is inconsistent with the UN Convention on the Rights of the Child, the Children Act 1989 and the Children (Scotland) Act 1995. The Government have failed to explain how the clause is to be operated in a way that is compatible with either of those Acts, or the new provisions in the Children Bill to ensure that children are safeguarded and their welfare promoted. The amendment would ensure that the best interests of children are protected and promoted so that they do not face destitution or separation from their families.

In the Home Affairs Select Committee in another place the then Minister, Beverley Hughes, highlighted the contradiction between Home Office policy in this area and the Children Act 1989 by stating, in relation to the separation of families:

The Government have yet to explain how that hope could be made a reality. They cannot rely on the co-operation of those affected, and when all else has failed, local authorities will have no choice but to separate children from families, because the Government have made them destitute. At the Report stage, in response to questions about how local authorities would be expected to undertake their duties in respect of children, the noble Lord, Lord Bassam, said:

Sections 17 and 20 both rely on the co-operation of parents in agreeing to voluntary separate accommodation of the child. Under both sections, the welfare of the child must be the paramount consideration. Section 17 provides that local authorities must promote the upbringing of the child within the family wherever that is consistent with the child's safeguarding and welfare. The law in this area recognises the critical importance of the family and parental attachment in children's welfare and development and provides that children be separated from their parents
6 Jul 2004 : Column 694
only when being with them is more harmful than not. It was never envisaged at the time Section 17 was drafted that the family might have become destitute as a result of the Government cutting off support so as to coerce them into leaving the country when their asylum appeal rights had been exhausted.

The Government have relied on the safeguards in Schedule 3 to defend Clause 9, yet in the chaos that ensued in the eastern European accession states cases, NASS ignored the existence of those safeguards, despite the fact that the date was set months in advance. NASS did not assess individual cases and that resulted in many legal challenges, so that the High Court had to ask it to stay evictions to prevent its being overwhelmed by applications for relief. The noble Lord, Lord Bassam, confirmed in Committee that NASS is to undertake individual assessments retrospectively, and that experience gives us no confidence that, for these provisions, an assessment will be made in advance sufficient to ensure that no breach of our ECHR obligations arises.

Similarly, the Government have been challenged recently on their policy of refusing support to asylum applicants under Section 55 of the 2002 Act, and have been forced to revise that policy. As a result of the Court of Appeal judgment in the case of Limbuela and others, when it was found that the Home Office had acted unlawfully in refusing accommodation to homeless asylum seekers, the Government have been forced to produce new policy guidance on the implementation of Section 55, to ensure that further breaches of human rights are avoided, and that the courts are no longer the first point of proper decision making on a time consuming and expensive case-by-case basis.

We noted the resistance of the noble Lord, Lord Bassam, to the comparison between what happened in those cases and what may now happen in the cases involving people affected by Clause 9, but the implementation of Clause 9 will create a procedure that is even less clear, more complex and ultimately more costly. The test under Clause 9, to establish whether families,

is going to be more difficult to apply than the Section 55 test of whether a person claimed asylum,

which has resulted in so much litigation. We could see no grounds for confidence that the doubts here also may not have to be resolved in the High Court unless there is greater clarity, and we remain apprehensive about the risks to children and that the courts and the local authorities will be left to pick up the pieces.

We also registered the argument of the noble Lord, Lord Bassam, that our amendment giving practical effect to the safeguards in Schedule 3, by ensuring an individual assessment of need before support is withdrawn, was unnecessary because that assessment would be made when the family is interviewed and they have an opportunity to explain why they have not left the country voluntarily and what steps they were
6 Jul 2004 : Column 695
taking to do so. He said that was precisely what the amendment sought to do, but he must have realised that it was nothing of the kind. That interview would be concerned with persuading the parents to comply with the requirement to leave the country and would be conducted by immigration officers who would have no professional competence to evaluate the situation of the children in the event of their parents' non-compliance.

Previously, at the Committee stage, in rejecting our amendment to ensure that social workers would not be required to operate outside of their duties under the Children Act 1989, the noble Baroness, Lady Scotland, said:

In other words, the clause relies on hope that it will not result in breaches of the Children Act. This is our third attempt to save the Government from the consequences of leaving such an important matter to chance. Without the safeguards that we propose, Clause 9 is a recipe for chaos, confusion and litigation. I beg to move.

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