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The Earl of Listowel moved Amendment No. 66:

Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (failed asylum seekers: withdrawal of support) shall cease to have effect."

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The noble Earl said: The amendment would delete Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. That created a new group of failed asylum seekers with a family. I very much share the concern of the Refugee Children's Consortium over the amendment. I wish for the section to be withdrawn because I believe it is unhelpful, but I would also like to hear from the Minister what progress has been made in the evaluation of the important pilots under that section and when we are likely to hear the results. That would be most helpful.

I recognise the challenges for the Government in terms of immigration and the importance of maintaining public confidence in the system, and the danger that if that is lost, even more draconian measures may be introduced. I also recognise the important improvements that the Government have made in asylum processing in recent years. The Government established three pilot areas under the treatment of claimants Act and I welcome their decision to take that careful approach. I was also grateful during the passage of that Act for opportunities to speak with the Minister and other colleagues of hers about the concerns of myself and others over that sensitive and controversial piece of legislation.

Under Section 9, families who are denied asylum can have all benefits and all support removed. In those circumstances, the children may be protected under the Children Act, in particular, Section 17, and it is possible for human rights legislation to be applied to ensure that families have protection. But the application of those mechanisms is complex and a careful assessment needs to be made.

A number of local authorities involved in the pilots wrote to the Government last summer expressing their deep concerns about how that would be implemented. They are concerned that, in effect, that will pass the burden for those families from the National Asylum Support Service to local authority budgets, which are already overstretched. They are also worried about how that squares with the principles of the Children Act and paramountcy of the welfare of the child.

I shall concentrate on one aspect that I fear is a flaw in the Government's perspective. The Government have consistently said that if the children come to any harm, that is the responsibility of their parents. The Minister, Mr McNulty, in the other place said in October in deliberations on the Bill that if anyone is at fault in those proceedings, it is the parents. To my mind and to that of many others, that is incorrect. Here, I cite Diane Abbott, a Member of the other place. She said that the Government,

I absolutely agree with that. Lord Russell expressed it very well during debate on that Bill.

During the Bill's passage, I met parents at the Medical Foundation for the Care of Victims of Torture. I spoke to one mother, who told me how her
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children had seen on the television reports a terrible incident in Serbia, where three children had dogs set on them by Serbians. The children were driven into a lake and drowned. In the subsequent commotion, 30 people died. It is understandable why families should feel so concerned. Those families have gone through a thorough, objective asylum process and appeal, but it is their subjective view, given their experience, that may well prevent many of them from returning voluntarily to their home territories.

The Medical Foundation for the Care of Victims of Torture gave a case history of a family from central West Africa, where the eldest, a 17 year-old, had been a child soldier and experienced terrible trauma. Through different means, all the family had arrived in England and been reunited, which was a very therapeutic experience for them. However, the mother still experienced continual suicidal thoughts. That family had had its application for asylum rejected and was being considered for appeal. That is an example of the thought processes, the subjective views, of some of those families.

In a pilot, so far, 100 families have started the process, among them 10 or so families from Zimbabwe and another 10 or so families from the Democratic Republic of Congo. According to Barnardo's, 35 of those families have simply disappeared. Mr McNulty was saying that in October, 38 to 39 families had had their financial support removed and that, as far as he was aware, no family had returned voluntarily, so to speak, to its home country as a direct result of the legislation.

We must consider the risks that those families expose themselves to by disappearing in this way: their children not entering education; families living quite probably in poor, overcrowded, shared accommodation; children experiencing poverty; parents may be poorly paid for working illegally, long hours. I suggest that that is counterproductive. In wishing to return those families we lose all contact with them and there is no opportunity even to detain them for removal and there is no opportunity to continue the process of reassuring them that it is safe to return.

In conclusion, I welcome that the Government have established the careful evaluation of the pilots. When will we have the information from those evaluations? In particular, perhaps she could say how many families have been returned to their home territories as a result of the pilots. I beg to move.

Lord Avebury: Noble Lords will remember how controversial Section 9 of the Asylum and Immigration (Treatment of Claimants, etc) Act was when it first appeared as Clause 8 in the Bill in this House on 5 April 2004, and again it excited a lot of animosity at Third Reading on 15 June 2004. Because of the chorus of opposition from the specialist media and from NGOs, it has not yet been brought into force. As the noble Earl has just said, the Government are going to evaluate the results of pilots in a few local
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authorities, and they have undertaken not to implement the clause nationally until it is shown to be working.

This clause is as unacceptable to us now as it was two years ago. As the Minister is aware, it has attracted criticism from almost every organisation that works on behalf of children, as well as every local authority, according to the Barnardo's survey that was mentioned by the noble Earl. All of them believe that to implement this provision will mean breaking the law on their obligations to children, including the Human Rights Act, to say nothing of duties under the UN Convention on the Rights of the Child, to which the UK is a party. The noble Earl, Lord Listowel, mentioned the comments that were made by my noble friend Lord Russell on the Asylum and Immigration (Treatment of Claimants, etc) Bill that he felt the same about taking away from people the right to food and shelter as he did about taking away their right to life. I only wish that he were here to add his unrivalled expertise and wisdom to the debate.

As regards the pilots, the Refugee Council and Refugee Action say that the families that were affected in the three areas, London, Leeds and Manchester, did not understand what was happening. Presumably the noble Baroness can tell us that they were given notice of their right to appeal against the termination of benefits and the right to occupy NASS accommodation. Will the Minister place in the Library copies of the information that was circulated to the affected families in the pilot areas? What number of families was in each area? According to the Refugee Children's Consortium, not a single family left as a result of being deprived of benefits. I assume that that was easy to establish, because if the families were unable to support themselves they would have had to apply to the International Organization for Migration, which funds the return of destitute people to the country of origin.

The noble Earl mentioned that 35 families disappeared. They presumably went into the homes of relatives or friends who were prepared to support them, or perhaps they split up the families among several groups of friends and relatives, a matter on which the Association of Directors of Social Services expressed enormous concern in a press release on 7 November 2005. It said that it took the children of those families out of education and health provision and made the whole family vulnerable to trafficking, sexual exploitation and illegal working. It has already told the Government that the policy will not work and that Section 9 raises legal and ethical issues for local authorities that will almost certainly lead to court cases against central and local government and that there are constructive alternatives to the Government's destitution policy, which it has outlined.

7.15 pm

If the final results of the evaluation, which I understand began in the second week of November, confirm the RCC's interim findings, there would be no
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question of implementing Section 9. Under what criteria are the pilots going to be judged? How can anyone tell whether the families that may have been returned during the pilot would have done so anyway? To do the job properly, there would have to be an equivalent number of matched control authorities where Section 9 had not been brought into effect, and statistical expertise would be needed to compare the pilots with those controls. Has that been done? Will the evaluation look only at the number of families assessed as having been persuaded to return as a result of the threat of, or actual deprivation of their NASS accommodation and benefits? Will it also examine harmful side-effects on the children in the families that are made destitute? Will it involve the ADSS and children's NGOs in the process? In pursuance of the discussion that we had on the last amendment, will the noble Baroness—if she has not already done so—consult the Children's Commissioner about this issue, about the design of the pilots and their evaluation, considering that it is the statutory duty of the commissioner to promote the rights of children and young people?

Mr McNulty gave an undertaking that Section 9 would not be rolled out nationally until the evaluation had been completed. If the Minister is not going to accept the noble Earl's amendment, will she at least, in the spirit of that assurance, say that no steps will be taken towards cutting off support from those families with children until the full results of the evaluation have been published, and both another place and your Lordships have been given an opportunity in Government time to debate the report? Please, let her not give the stock answer that she does not arrange the business, but let her say that she will put the matter to the business managers with a favourable recommendation.

With regard to Amendment No. 67 on judicial oversight of detention, your Lordships will recall that Part 3 of the 1999 Act provided for routine bail hearings, but it was never brought into effect and was repealed by Section 68 of the 2002 Act. The need for automatic bail hearings is obvious to anybody who has had the slightest acquaintance with what actually happens when people are detained. It is almost impossible for them to find a solicitor to represent them, particularly, but by no means exclusively, when they have exhausted their right to legal aid but have substantial new evidence that they wish to raise. Bail for Immigration Detainees has published a handbook for DIY bail hearings, which is now available at detention centres and has been used successfully by Zimbabweans, among others; but it presupposes a knowledge of English and a degree of competence and confidence that very many asylum seekers would not have.

Your Lordships should also bear in mind that when detainees are moved around the system, and particularly when they are moved to Dungavel in Scotland, as were many of the 430 detainees in Harmondsworth after there was a disturbance there in July 2004 following the suicide of a detainee, they have to start again with a new representative. In
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Glasgow there are very few competent immigration solicitors; and in the neighbourhood of Lindholme in Yorkshire there are even fewer. Automatic bail hearings would ensure that competent representation would have to be provided and properly funded, neither of which is true at present. The detention estate is partly filled with people who ought not to be there at all.

I have previously cited the case of Jacqueline Konan, a citizen of Cote d'Ivoire, who was held, with her 18 month-old daughter Thelma, in Harmondsworth and Dungavel from June 2003 to December 2003, in spite of 13 letters that I wrote to Ministers, the IND and the adjudicator saying that her detention was unlawful and asking that she be given bail. When Ms Konan finally got bail and with effective representation won her case, she brought proceedings against the Home Office for unlawful detention and was awarded £60,000 by the court. I spoke to Jacqueline and Thelma on Sunday, and I am pleased to say that Jacqueline has now got a job and Thelma, now four, is doing very well at her nursery school.

But many other Jacquelines and Thelmas languish for months in detention centres because they have not had a bail hearing? When we discussed this on a previous occasion, the noble Lord, Lord Bassam, gave a few details as a one-off exercise, and we now get bare numbers with the quarterly asylum statistics. At the end of the third quarter of 2005 there were 1,695 people in detention under Immigration Act powers, 245 of them for more than four months. In the past there have been problems of documentation with some nationalities, and I acknowledge that some people with inferior claims have been able to stretch out their stay in the UK by multiple appeals. Both these factors have been dealt with, and of course the number of asylum seekers has fallen sharply. Yet the number of people in detention has increased by 17 per cent over the three years from September 2002 to September 2005. Can the noble Baroness explain why? The only plausible answer I can think of is that the propensity to detain has increased and the ability of people to challenge their detention has shrunk. So, we need automatic bail hearings more than ever as a matter of natural justice, and if that doesn't appeal to the Government, to avoid wasting public money.

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