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In its recent report on the Bill, the Delegated Powers and Regulatory Reform Committee made several recommendations in relation to the detail of the biometric clauses, and we are seriously considering how best to address its concerns. I emphasise that the Government do not view the biometric immigration document as a tool for discrimination. A government amendment was made to these clauses in the other place to state explicitly in the Bill that it will not be compulsory for the document to be carried at all times. I will be placing in the Libraries of both Houses a draft code of practice for the operation of the civil penalty regime. That is the code referred to in Clause 13 of the Bill.

I come now to the third principle of the Bill: deporting and restricting those who have abused our hospitality. Clauses 31 to 38 introduce automatic deportation for foreign national prisoners. Under these measures, subject always to human rights considerations, the Secretary of State must make a deportation order in cases where an adult foreign national has been sentenced to 12 months or more in prison, or is handed down a custodial sentence of any length for an offence listed in the order made under Section 72 of the 2002 Act. Automatic deportation will apply to all foreign criminals who fall within the threshold, save for where one of a limited number of exceptions applies. In-country appeals will be restricted to human rights claims unless those claims are unfounded.

For those criminals not covered by the provisions in the Bill, court-recommended and discretionary deportation will remain to allow flexibility in the system. For those who have committed serious crimes in the United Kingdom but whose removal would breach international obligations, we are introducing reporting and/or residency restrictions. Those conditions will also be used to improve contact with those former unaccompanied asylum-seeking children who have been granted discretionary leave due to poor reception arrangements in their country of origin. It will further be used to improve contact with other children who have been granted leave but who we have reason to believe may be at risk.

The fourth principle behind the Bill is that of laying the foundations for the ongoing improvements of the Border and Immigration Agency. In April 2007 the Immigration and Nationality Directorate became the shadow Border and Immigration Agency. With increasing flexibility in the way the agency conducts its operations, it is vital that there is an independent monitoring mechanism in place to oversee the agency’s work. In December 2006 the Home Office launched a consultation on the proposal to establish a new single inspectorate for the Border and Immigration Agency, and responses to the consultation revealed strong support for that proposal. Therefore, Clauses 47 to 55 create a new chief inspector of the Border and Immigration Agency who will be responsible for monitoring and reporting on the efficiency and effectiveness of the agency. These provisions aim to rationalise some of the existing and somewhat disparate regulators and inspectorates, and establish a chief inspector who will primarily oversee the agency’s processes. The chief inspector will help ensure consistency of standards regionally across the Border and Immigration Agency. The provisions will provide the public with confidence that the immigration system is being overseen in a rational and independent way at all levels.

Before I conclude, I should like to touch on an issue that I know noble Lords are passionate about, and which I am sure we will have the opportunity to discuss further in this and future debates. I refer to the safety of children. It was raised by Members in another place and by the Joint Committee on Human Rights. A number of your Lordships have raised questions about whether the Border and Immigration Agency should be subject to Section 11 of the Children Act 2004. I reassure the House, as have others before me, that the Border and Immigration Agency takes its responsibility towards children extremely seriously.

In two weeks’ time the agency will be publishing the objectives of its framework to keep children safe, which have been developed alongside the plans of the Department for Education and Skills for the Government’s stay safe strategy. This will provide a more robust strategy to help ensure that children with whom the agency’s staff come into contact are kept safe.

Our framework will provide the basis of our approach to keeping children safe, and form part of an overall package of measures. Feeding into this strategy will be the evaluation of the Section 9 pilot and findings from our review of family removals processes.

My role here today is to listen to your Lordships’ concerns on keeping children safe, take them away and seek to address them in our framework and in Committee. I promise to give due consideration to all the arguments aired today. I wanted to say this at the beginning of our deliberations so that noble Lords were aware of our direction of travel. They would then be free to make their contribution, which we would be able to add to our deliberations before coming forward with the final suggestions.

It is essential that the agency is in a position to manage an immigration system that is fair and effective, and that controls immigration for the benefit of Britain. The Bill is a key element in delivering this. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Baroness Scotland of Asthal.)

3.47 pm

Baroness Anelay of St Johns: My Lords, when the Minister in charge of the Bill, Mr Byrne, introduced it in another place, he began by making the defensive plea that it should not be dismissed as another immigration Bill. But nothing that the Government have done since then, way back in February, has given it more credibility than a patch and mend job.

This is the fifth immigration Bill that the Government have introduced in less than 10 years—indeed, the sixth, if one includes the Special Immigration Appeals Commission Act 1997. We await with bated breath the publication of the consolidation Bill next year. If passing legislation were the answer to making our borders more secure, we would have the safest and most secure immigration system in the world. But it doesn’t and we don’t.

Last year, the Home Secretary described the Immigration and Nationality Directorate as “not fit for purpose”, but he is retiring from the front line before he has solved the problems. Putting a series of management targets and organograms in place does not deal with the issue fundamentally.

What has happened in the real world of immigration and the Home Office this past year? At Harmondsworth, the inmates rioted and 150 immigration detainees were bailed or freed from the immigration estate. The head of removals at the IND stated that it did not have the faintest idea how many people were living in the UK illegally. The Home Secretary admitted that there are as many as 450,000 failed asylum seekers resident in the UK. There have been accusations of corruption at Lunar House, the IND’s office, and that senior workers were demanding sex from an 18 year-old girl in return for granting asylum. It was discovered that one of those working at Lunar House was a member of an extremist Islamist group, unchecked by the Home Office. It was discovered that the Home Office itself was involved in employing illegal workers from a subcontractor.

Against the backdrop of this litany of failings, we have before us a Bill that gathers together a number of disparate measures to keep track of who should be here, deport those who should not and deal more effectively with those who employ illegal persons. When the Bill introduces sensible measures, it will have our support; the problem is that even those measures that appear at first sight to have merit will need some amendment to achieve the Government’s stated objective. For example, we support the extension of powers given to immigration officers with regard to detention at ports, as the Minister set out, but at the moment it seems inadequate to meet the scale of the problems faced at our ports and airports. In Committee in another place, the Government improved the Bill by introducing a section establishing the Border and Immigration Inspectorate, which was broadly welcome, but it needs to be improved further by an extension of the powers of the chief inspector to deal with individual cases.

The Minister has talked about the issues surrounding biometric registration, and she is right to realise that the House will want to examine in some detail the clauses that deal with that matter. During the exchange between the two Houses on the Identity Cards Act, I made it clear that we would not oppose the introduction of powers to require those subject to immigration control to apply for a document that records their biometrics—and we do not oppose it. Our opposition centred on the use of the national identity register more widely with regard to British citizens, and the compulsion on British citizens to apply for an ID card and register on the NIR when all they really want is a passport.

We shall need to be convinced that the measures in this Bill will be effective, cost-effective and proportionate. The problem is that, so far, much is left by the Government to secondary legislation. Will the Minister deal with the point raised by Liberty, which cannot see how the creation of a biometric registration document is an effective method of dealing with people living in this country without the right of residence or work? Employers already face legal obligations under the Immigration, Asylum and Nationality Act 2006 and they are obliged to make document checks. Liberty says that it is not aware that there is a significant problem with employers being besieged by fraudulent employees with fake documents. It would be helpful if the Government could clarify if there is such a problem and, if so, what evidence there is for that.

On the treatment of claimants, we welcome the requirement for people granted limited leave to remain to report to an immigration officer, but the debates in Committee in another place reveal that those clauses too may need some amendment so that they apply effectively to those whom the Government intend to target—predominantly, we are told, foreign national prisoners whom the Government cannot remove. We have no objections in principle to the changes in support for asylum seekers, but we shall have questions in Grand Committee about the removal of the right to present new evidence at the appeal stage of an immigration hearing. The Minister will be aware that strong arguments have been advanced by lobby groups against the reduction of appeal rights.

The Minister’s remarks on trafficking measures are most welcome, as they always are. The extension of measures to tackle people trafficking are a welcome addition to the powers in the 2004 Act, but we would like to look very carefully—although we will just be probing—at whether the treatment of those who claim that they have been trafficked is all that it should be. I know that that has been a matter of considerable concern around the House during the consideration of the many Bills on these matters.

One of the weakest sections of the Bill is that which purports to deal with the automatic deportation of criminals. A year ago, the outgoing Prime Minister promised that the system would be “radically overhauled” so that those who are convicted of a serious criminal offence were deported automatically. Naturally, I took the Prime Minister at his word—always a disappointing thing to do—and tried to help him, as I always do, by inserting into the Violent Crime Reduction Bill, which happened to be before this House at the time, an amendment to enable the automatic deportation of serious criminals at the end of their sentence. Surprise, surprise, the Government voted against my modest amendment.

Now we have before us the Government’s version of deporting foreign criminals, which seems to consist of measures that provide for deportation except when it is going to be too difficult to do so. The Immigration Advisory Service pointed out in its briefing that this part of the Bill does not give the Home Secretary any powers that he does not already have. All the relevant factors can be considered under the present rules relating to deportation and the Secretary of State can deport those whose presence is not conducive to the public good. There already exists a rebuttable presumption in favour of deportation.

An additional problem is that the Bill is silent on important matters. We shall table amendments to ensure that they are debated. The first, child safety, was most courteously referred to by the Minister. I welcome what she said. The House will appreciate that she has been able to go only a little way along the journey that we may persuade her to take. I am sure that she will find the House constructive, not destructive in the way that it tackles this matter. The safety of children is paramount.

The Bill should enhance child safety. It is right to extend the duty under Section 11 of the Children Act 2004 to make arrangements to safeguard and promote children’s welfare to those who provide services to refugee children and families. We have in mind specifically immigration removal centres, the National Asylum Support Service and those dealing with refugee children at ports of entry. My honourable and right honourable friends in another place tabled an amendment on Report on which they felt so strongly that they divided the House. As I am afraid is always the case in another place, they were unsuccessful in persuading sufficient Members to enable it to pass. We hope that we shall have better fortune in this House if the Government are ready to be persuaded. I thank the Refugee Children’s Consortium for meeting me last week to discuss this matter. I made it clear that my priority is to ensure that the Bill should contain this improvement based very firmly on that amendment.

The second matter on which the Bill is silent is that of a border police force. We urge the Government to reconsider their rejection of our plans for such a force. If they cannot bear to take our advice, they might at least listen to senior police officers. Sir Chris Fox, president of the Association of Chief Police Officers, said in 2005:

Sir Ian Blair said on 6 February 2005:

the serious organised crime Act—

A policy to have a border police force is cross-party. I am aware that the Liberal Democrats have espoused it and that it was recommended by the Select Committee on Home Affairs in another place. It is not too late for the Government to think again.

On marriage visas, the Government have failed to tackle the abuse of the spouse visa system. We shall try to assist them to do better by tabling amendments to the Bill that would tighten the rules on marriage visas. It is clear that very young women can be exploited and need better protection. We shall table probing amendments to enable debate that we hope will form part of the consultation process that we have launched on this important and sensitive issue.

There is, indeed, much work to do in Grand Committee. The Bill is a long way from being perfect, or even very good. It certainly does not face up to the scale of the crisis confronting our immigration system. It is vital that we develop safe and secure borders and an immigration system that is once again fit for purpose. These Benches look forward to playing our part in making that happen.

3.59 pm

Lord Avebury: My Lords, first, I register a protest at the decision to shunt this Bill off into Grand Committee, as happened with the 2006 Act, as the noble Baroness may recall. We disagree fundamentally with the principle that controversial legislation should be put into Grand Committee. In her references to children, delegated powers and automatic deportation, the noble Baroness recognised that this Bill is, indeed, highly controversial and will require a great deal of scrutiny by your Lordships. The place to do that is on the Floor of the House and not in Grand Committee. We particularly object to the manner in which that was done, again by agreement between the Government and the Tories, without consultation with the Liberal Democrats. They did not even have the courtesy to inform us directly, but left it to the Tories to tell us, which is not quite the way in which to secure our co-operation.

Baroness Anelay of St Johns: My Lords, before the noble Lord, Lord Avebury, goes any further, I understand his passion and I understand his objections. I wonder whether he might wish to consult. I received advice last week that agreement had been reached with the Liberal Democrats as well. I would not wish to say—I hate to say this in front of the right reverend Prelates, but I hope they will accept it in the manner in which it is intended—that that is the gospel version, but I understood that a resolution had been achieved. I perfectly well understand that the noble Lord, Lord Avebury, might have a principled objection.

Lord Avebury: My Lords, I was not going to mention this, but it was the noble Baroness who gave me and my noble friend Lord Dholakia the information, and that was the first that we heard about it. We did not know anything about it, and our Whips told us that they did not get the information in time to notify us before our meeting with the noble Baroness. My objection is not primarily the way in which the decision was notified, but the fact that we are going to have to take the Bill in Grand Committee.

The number of asylum applicants has fallen, the rate of initial decisions has improved and the number of appeals determined has increased. The tabloid scare over the number of Romanians and Bulgarians flooding into Britain to steal jobs and undermine wages was a false alarm, and many of the people who came from the A8 accession countries in 2004 have now gone home. The Immigration Service—or the BIA, as we must learn to call it in line with new Labour’s mania for regularly rebranding public agencies to keep printers and designers in work—has not been so successful in removing failed asylum seekers primarily because of the panic over foreign national prisoners, to which I shall come in a few minutes.

The Bill creates a number of new immigration offences and encourages the courts to impose sentences of at least a year on persons convicted of a range of non-immigration offences specified under Section 72 of the 2002 Act, so that the offenders can be deported automatically without a hearing. The new offence of assaulting an immigration officer is duplicated in Clauses 3 and 21, according to whether he is exercising the power to detain, and in both clauses it is punishable by imprisonment of up to 51 weeks, except in Northern Ireland where it remains six months, the maximum under existing law for common assault or for assault on a constable in the execution of his duty. Why do that when the prisons are full to bursting point? The Government say that they have no plans to bring into effect either Section 281 of the Criminal Justice Act, which raises the maximum sentence of imprisonment imposable by a magistrates’ court from six months to 51 weeks, or Schedule 26 to that Act, which increases the penalty to 51 weeks for a whole range of offences now punishable by maxima ranging from one month to six months. Let us avoid sentence creep in this Bill and keep all sentences down at six months, which has always proved adequate to deal with this and similar offences.

Immigration officers are being given new powers of detention, and their existing powers of arrest, entry, search and seizure are extended. When they take over the functions that had been exclusively exercised by the police, we shall want to know whether they are to be governed by a code of conduct identical to PACE and whether the UN Convention on the Rights of the Child is to be disapplied to those functions.

We disagree strongly with the reservation of the CRC, as the noble Baroness is aware. It allows the BIA to ignore or at best to have inadequate regard to the effect that their practices may have on children. In report after report of the chief inspector on IRCs, and in the horror stories that one hears of individual cases, the treatment of children in ways that are contrary to their best interests is being exposed all the time. For example, on 9 May, after Ms J.M. had been taken into custody by the police in Crawley, her two babies, Collin, aged three weeks, and Chantelle, aged one year, were removed and placed in foster care while Ms J.M. was detained in Yarl’s Wood. At the time, the younger child was breastfeeding. On 23 October last year, the Minister gave an assurance that an infant would be separated from the mother only in the most exceptional circumstances. In this case, it was three weeks before the combined weight of several women’s organisations got the two babies restored to their mother’s care. It is this case and others of a similar nature that leads us to the conclusion that the reservations of the CRC should be reviewed; and we will provide an opportunity of doing that in Committee. So much for the Minister’s assurance that the BIA takes seriously its responsibilities to children; there are enough cases of this kind to indicate that it does not.

In addition, as the Minister predicted, we shall seek to extend the application of Section 11 of the Children Act 2004 to the Immigration Service to ensure that it has regard to the need to safeguard and promote the welfare of children. This would cover immigration officers carrying out arrests, detentions and searches under Clause 2, which until now have been the duty of police officers, to whom Section 11 does apply. We welcome the comment of the Minister, Liam Byrne, at Commons Report stage. He said:

In the spirit of that assurance, we hope that the opportunity will be taken at last to repeal Section 9 of the treatment of claimants Act, which allows families with children to be made destitute if they do not leave promptly after their rights of appeal have been exhausted. The noble Baroness, Lady Ashton, agreed to our suggestion that power to repeal that inhumane provision by order should be inserted in the 2006 Act. We thought that there was an understanding that the report on the pilots, which were then being evaluated, would be published and, depending on the results, the repeal power in Section 44 of the 2006 Act would be exercised. We already knew that making families destitute was both cruel and ineffective as a way of encouraging voluntary departure, but after 18 months the report on the pilots has not appeared, and the Section 9 sword of Damocles hangs over an increasing number of families.

Another matter not dealt with directly in the Bill is the increasing frequency of age disputes concerning UASC, on which a Home Office consultation has just ended. The Children’s Commissioner, Sir Al Aynsley-Green, has urged the Government not to roll out proposals for change until the findings of the Crawley report, When is a Child not a Child?, have been fully debated. I hope that we can have an assurance on that. Sir Al says that there are serious ethical concerns about subjecting children to ionising radiation that is of no therapeutic benefit, when the validity of their consent is doubtful and the process cannot determine a child’s chronological age. I have a particular interest in this, because it was as a result of a report published by my office in 1981 that the use of X-rays as a means of age determination was brought to an end in February 1982 by the then Home Secretary, William Whitelaw.

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