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Baroness Ashton of Upholland: My Lords, I am not sure if my amendment is being welcomed. We have checked the point about delegated powers which the noble Baroness, Lady Carnegy of Lour, raised, and it is fine. If I discover anything untoward I will of course ensure that I put it right. Parliamentary counsel, in whom I have enormous faith, are very good at ensuring that we have done that, but I will make sure that we check what ILPA said. I am grateful to the noble Baroness for raising that.

The noble Lord, Lord Avebury, will not be at all surprised that I will obviously resist Amendment No. 40. I will be doing that because our amendment recognises that we need to do more. I hope that those noble Lords who have welcomed it will understand that we see the obligations that we have and want to fulfil, but do not want to do so by providing cash.

In a sense, we do not want to invite people to draw on the public purse if they do not need to; more importantly, nor do we want to reduce the incentive
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for people to take steps to leave the UK voluntarily. Whether your Lordships like the consequence of what I am saying or not, it is crystal clear that that could be a consequence if we provided cash. We are trying to meet people's needs in a way which does not increase the incentive for those people who have exhausted all of their appeal rights. We want to ensure that they are able to leave the UK once the barrier to leaving has been resolved. That is the principle behind it.

The noble Lord, Lord Avebury, indicated that there may be an issue about getting health treatment. They are provided with that health treatment which is immediately necessary free of charge under primary care. Under secondary care they can receive a number of services free of charge. To ensure that we have dealt with issues of accessing primary and secondary care we are at present considering, with colleagues from the Department of Health, the eligibility for failed asylum seekers for whom there is a temporary barrier to leaving the UK. I shall come back to your Lordships on that, but there is access to care; I would not want our deliberations to suggest otherwise. We need to think about it more carefully in the light of what the noble Lord has said, and more generally in any event.

I am sorry to resist the amendment but I do so on the right grounds and I hope that my amendments, though not meeting the needs which the noble Lord wished, are none the less recognised for having an important part in providing support.

Lord Avebury: My Lords, I am most grateful to the Minister for saying that these people will, at least, receive free both primary and secondary care. I hope that that will include free prescriptions, since that is an essential element of the care that a general practitioner gives to a patient. He signs a prescription; they take it along to a chemist and, if they have no money, then they must be of a class that would be exempted. That would be a useful concession, because one item which they currently have to buy out of their non-existent money is medication. It is a serious matter if you cannot even buy aspirin to take care of yourself and your family.

With great respect to the Minister, she has not really addressed the nub of the problems which we all know exist with the voucher scheme. We ought to have known better than to reintroduce it after our prior experience of it. We have heard from the noble Earl, Lord Listowel, the noble Lord, Lord Hylton, and the NGOs who are doubtless advising the department that it is a mistake. However, I can see that we will get no further on Report with cancelling the voucher scheme. I shall have to withdraw my amendment and hope to come back to it at some later stage, if we can exert the kind of pressure which the NGOs believe should be brought to bear on the Government on that issue. Meanwhile, I beg leave to withdraw the amendment.

Amendment No. 40, as an amendment to Amendment No. 39, by leave, withdrawn.

Amendment No. 39 agreed to.

Lord Avebury moved Amendment No. 41:
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(1) The Secretary of State may by order provide for paragraph 7A of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (failed asylum-seeker with family: withdrawal of support) to cease to have effect.
(2) An order under subsection (1) shall also provide for the following to cease to have effect—
(a) section 9(1), (2) and (4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (which insert paragraph 7A of Schedule 3 and make consequential provision), and (b) in section 9(3)(a) and (b) of that Act, the words "other than paragraph 7A".
(3) An order under subsection (1)—
(a) may include transitional provision,
(b) shall be made by statutory instrument, and
(c) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

The noble Lord said: My Lords, as your Lordships will recall, Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 created a new category of people in Schedule 3 to the NIA Act 2002—"failed asylum-seeker with family"—and established conditions under which such persons would become ineligible for financial and material support of any kind, including social welfare provisions such as the Children Act 1989 and its equivalents in Scotland and Northern Ireland. If persons in that category do not take "reasonable steps" to leave the UK, the Secretary of State may issue a certificate stating that they have failed to do so without reasonable excuse. Support is then withdrawn from adult numbers of the family, unless that would lead to a breach of the Human Rights Act.

The Government's argument for making those families destitute was that it would encourage them to leave "voluntarily" once their case had been finally decided. We opposed that clause when the Bill came before us and agreed with many in children's and human rights NGOs who argued that its implementation would lead to breaches of the UN Convention on the Rights of the Child. Wisely, the Government decided that, before rolling out the proposal nationally, they would test it in three areas: central and east London, Greater Manchester and West Yorkshire and, in those areas, on 116 specified families.

In a study by Barnardo's, the local authorities concerned said that Section 9 was wholly incompatible with the Children Act and some feared that it would damage the welfare principle and child-centred practice more generally. Ms Nancy Kelly, head of international and UK policy at the Refugee Council, giving evidence before Sub-Committee F of your Lordships' European Union Select Committee on 25 January stated that the pilots had caused:

She said that one-third of the families studied had been wrongly allocated because they still had rights of appeal. In other words, those families had been unlawfully deprived of support. Inevitably, that would happen on a far larger scale across the country if Section 9 were rolled out everywhere.
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One woman in the survey attempted to commit suicide three times and many people had significant mental health problems. Ms Kelly said that there was a low risk of absconding while those families were being supported, but that some of them vanished under threat of being separated from their children.

Subsection (1) of the new clause contains the power to make an order repealing the relevant provision in the 2002 Act inserted there by Section 9 of the 2004 Act. Subsection (2) refers to Section 9(1), (2) and (4) of the Asylum and Immigration Act 2004. Section 9 included a fifth class of persons ineligible for support under Schedule 3 to the Nationality, Immigration and Asylum 2002—a failed asylum seeker with family. It also gave those families a right of appeal to the asylum support adjudicator under Section 103 of the Asylum and Immigration Act 1999, while removing the right of appeal under Section 103 for other classes of persons listed as ineligible for support under Schedule 3. In repealing parts of Section 9, we are not restoring a right of appeal to those other classes. Subsection (3) provides that the order will be subject to the negative resolution procedure.

Section 9 is an inhumane way to coerce vulnerable families. Under the new clause, if the pilots led to the conclusion that other ways to persuade failed asylum seekers to return home, such as the £2,000 grant mentioned by the Minister, should be tried, the Secretary of State would have power by order to repeal the provisions of Section 9 relating to failed asylum seekers with families. I am most grateful to the Minister not only for accepting that idea when we suggested it in conversation after Grand Committee but for her invaluable assistance in drafting the new clause. I hope that that is a signal of the Government's recognition that Section 9 may have to be abandoned and that, when the result of the pilots is published, they will not be afraid to admit that they were wrong to proceed down that road. I beg to move.

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