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Grand Committee

Wednesday, 18 July 2007.

The Committee met at fifteen minutes to four.

[The Deputy Chairman of Committees (Viscount Simon) in the Chair.]

UK Borders Bill

(Fourth Day)

The Deputy Chairman of Committees (Viscount Simon): If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Lord Avebury moved Amendment No. 34:

The noble Lord said: This amendment, like the two amendments we considered at the end of the third day’s proceedings, concerns the despicable policy of trying to force asylum seekers to return to their countries of origin by making them destitute. It approaches the question simply and straightforwardly by repealing the infamous Clause 9 in accordance with existing statutory powers.

The director of the BIA case resolution directorate acknowledged in a witness statement to the High Court at the end of May that there were still 400,000 to 450,000 incomplete asylum cases on the books—the same number that the Home Secretary gave in July 2006. She said that these were cases where an asylum claim had been made but the case record had not been concluded, due to errors in recording information or because there were outstanding actions that still needed to be taken. Some of the 400,000 files relate to persons who have left the country voluntarily or who were citizens of countries that subsequently became members of the European Union. However, a significant number in the backlog—the National Audit Office’s estimate was 283,000 between 1994 and 2004, an estimate which the Home Secretary has appeared to accept—were applicants who had exhausted all their appeal rights yet remained in the UK. The case resolution directorate has the job of examining every one of the 400,000 files, deleting the duplicates, updating the remainder and giving top priority to removing those who prove to have criminal records. Your Lordships may be surprised to know that at the beginning of May this work still had to be undertaken, 10 months after it was acknowledged by the Home Secretary.

In the context of this amendment, it is the people who have not committed any offence who are of prime concern. These people are to be contacted and asked to provide current reasons for seeking to remain in the UK, and in the light of that information

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consideration will be given to granting leave, if appropriate, or to effecting removal. The implication is that although no general amnesty is contemplated, some people will be eligible for discretionary leave, which applies when a person’s ECHR rights would be breached or, in the case of a child, where inadequate arrangements exist for the child’s care and protection in the country of origin. There were also some 30,000 cases of applications made before 31 December 1995 where special conditions were applied in accordance with the 1998 White Paper Faster, Firmer and Fairer.

We need a progress report from the Government on how the case resolution directorate is tackling this enormous backlog of files and, in particular, whether they have a better idea of how many they think will be left on the books when the sifting of the files and the removal of the criminals has been completed. It is this total, which includes the families, to which the infamous Section 9 could be applied and which the Government want to keep as a sword of Damocles hanging over their heads. We objected to it at the time. At Report stage of the Immigration, Asylum and Nationality Bill, in February 2006, we persuaded your Lordships that the Secretary of State should have power to repeal it by order. To summarise very briefly, we said that Section 9 breached the UN Convention on the Rights of the Child; that the pilots had already caused enormous distress and terrible destitution; that a number of families had vanished under threat of being separated from their children; and that it was an inhumane way to coerce vulnerable families.

There are countries to which families are not normally returned and this at the very least should be acknowledged by the law. If Section 9 is retained as a power of last resort, it ought not to be capable of being used against those families. The list would have to include: Zimbabwe, to which no one is being returned pending a decision of the courts; Somalia but not Somaliland; Iraq, with the exception of the Kurdish region; Afghanistan, the DRC and Darfur. It would be manifestly unreasonable to dump families in war zones and I hope that the Government will agree at least with that.

The Government have spent a lot of money in the courts upholding their right to return Zimbabweans to a country which they acknowledge is a ruthless and brutal dictatorship which—according to the UN—in Operation Murambatsvina made 700,000 people homeless and affected another 2.4 million people countrywide. It seems to me that, with the endgame rapidly approaching for Mugabe's rule, we should grant all irregular Zimbabwean migrants now living here one year's leave to remain with permission to work. That would send a signal to Africa that we consider Zimbabwe to be a uniquely dreadful place for anyone to live whether they are directly persecuted by the ZANU-PF dictatorship or deprived of all means of living a normal life by the catastrophic mismanagement of the country. One-third of the population has fled into neighbouring countries. Last week, the noble Baroness, Lady Royall of Blaisdon, said that a further 2 million people were expected to flee in the not-too-distant future. It is unthinkable that, as long as Mugabe lasts, anyone, let alone

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families, should be forced back to the hopelessness and starvation that he has created. On the contrary, they should be allowed to work here, contributing to the economy and developing the skills that Zimbabwe will need when it is liberated.

When the noble Baroness, Lady Ashton of Upholland, accepted our amendment allowing the repeal of Section 9, she said that the pilots were being evaluated together with the exploration of other options that could encourage failed asylum seekers to leave the UK. Assisted voluntary returns are already having some effect and the better management of asylum applications is expected to deliver faster outcomes, resulting in improved chances of a speedy removal. After a delay of nearly 18 months, during which the Home Office sat on the results, the BIA’s report on the pilots was finally published in June 2007, with an update to that month. It confirmed that,

at least 32 according to the Refugee Council and Refugee Action in their joint report, Inhumane and Ineffective.

Local authorities said that they had difficulties reconciling conflicting principles of child welfare in Section 9. That point was reinforced in a letter I received from the chairman of the LGA Asylum and Refugee Task Group, dated 2 July, in which he said the following:

The report on the pilots finds that Section 9,

but it fails to point out that only one family—I stress only one—out of 116 in the cohort to which Section 9 was applied, was actually removed by the end of the study, with nine families leaving voluntarily under the scheme run by the IOM. In the control group, of the same number of families, nine were removed and two left voluntarily. After two years’ work which, according to the chairman of the LGA task group,

one more family out of the control group left the country than in the cohort. Yet instead of admitting that the exercise was a dismal failure, both inhuman and ineffective, the BIA wants to keep Section 9 on the books for use against targeted families who are not co-operating in their removal. How it imagines that it is going to coerce individual families to co-operate when it has been able compulsorily to remove only one family out of 116 over a period of two years passes my comprehension.

The JCHR has added its voice to the long list of voluntary agencies that have called for Section 9 to be

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repealed. In the reply to their report published last Thursday, the Government said that they were still conducting the Section 9 review. Can the Minister explain how that has happened? The Government said that it would be premature to repeal Section 9 before the completion of the review, implying—as they have all along—that if the review showed that coercion was a total failure they would strike it out. Never in the dozens of debates and questions in both Houses has it been suggested that, even if the pilots were a disaster, social and financial coercion might be kept for use against particularly recalcitrant families. I can hardly think of a more hateful and controversial idea, and one which reinforces my view that noble Lords should not have agreed to take this Bill in Grand Committee. If we cannot get rid of Section 9 altogether now with the consent of the Minister, we will certainly have to put it to the House on Report.

On support for asylum seekers generally, we are particularly concerned about the burdens which have been arbitrarily laid on particular local authorities. In their carefully argued response to the consultation paper on UASC, the LGA, its Scottish and Welsh counterparts and the directors of social services, through the UASC reform steering group, warn that the present crude grants regime needs to be reformed to take account of the changes in care needs at the age of 16, for instance. Clearly local authorities are not going to volunteer to become specialist authorities as envisaged in the consultation document unless they are assured of full cost recovery and that asylum support will be funded separately from the general grant settlement. There is also a particular issue with the funding arrangements to cover the provision of services to UASC post-18, where the spend for 2006-07 is estimated to have been £50 million while the government grant was only £12.3 million. It would be sensible for the Government to err on the side of generosity, making the grant offer to ensure that candidate specialist authorities can enter into detailed discussions with the Government without fearing that council tax payers in their area will be required to subsidise the scheme or cut existing services to pay for it. If they pay slightly more than the cost, this may well assist the local authorities when selling the idea to their residents. I beg to move.

Lord Roberts of Llandudno: I support my noble friend Lord Avebury’s amendment. I suggest that it is time that the Government weighed this up in the most serious way possible. Under the previous Prime Minister we saw policies seemingly driven by tabloid pressure—if the Murdoch press said this or Fox News said that, then the Government seemed to go that way. With a new Prime Minister we may get a more open approach on these matters.

Let us dispel some of these media myths. People who come here—asylum seekers or not—often suffer extreme poverty. The Penrose report of 2002 said that 85 per cent of asylum seekers regularly experience hunger, 95 per cent are unable to buy clothes or shoes and 80 per cent are unable to maintain their health. It estimated that 2,100 refugee children are out of school in London alone. These people are already in a desperate situation. Some will say, “People come here

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only to take advantage of our benefits system”. I spoke to a former commissioner who was well versed in European Union politics. He told me that, in his time, 363,000 people came from eastern Europe to the UK and only 16 claimed benefits. That destroys for ever the myth that people come here just to take unfair advantage of our system. If that impression is put forward by the media, some people will always go with it.

4 pm

The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 applies to people already in a desperate situation. The Minister at the time, Beverley Hughes, in evidence to the House of Commons Home Affairs Select Committee, said:

I do not know whether there was a reason to say, “all families destitute”. Perhaps it was just a slip of the tongue. She continued:

Possibly, that was the intention.

The category of “failed asylum seeker with family” came into being and immediately those people lost entitlement to financial or material support. This was in contravention of the Children Act 1989, the Human Rights Act 1998, the UN Convention on the Rights of the Child 1991, the European Convention on Human Rights 1991 and the 1954 United Nations convention on the rights of refugees. The Joint Committee on Human Rights also was deeply concerned. There was total contravention of all these Acts and conventions to which we have signed up.

I thought that there was a wee bit of light on 25 June 2007 when the noble and learned Baroness, Lady Scotland of Asthal, speaking on Section 9, said:

That is an admission of failure. There is a desire to keep Section 9 on the statute book just in case there is a family somewhere who can be sent from these shores in any other way. As my noble friend Lord Avebury mentioned, there was only one case in which the provision was effective. There are three trial areas—West Yorkshire, Manchester and parts of east London—but there has been only one such case. Surely with such a record of failure, this provision is not only irrelevant but clutters up our legislation. It should be wiped out of the Asylum and Immigration (Treatment of Claimants, etc.) Act once and for all.

Let us put ourselves in the shoes of these asylum seekers—and that includes little children. I have a grandson who is two years old today. These children are just like our children. They need to be loved, cared for and supported. They need to be given hope and

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potential. Yet we are depriving them of that. It is a blot in the copybook of our nation. We are supposed to have a record of compassion and care. That is an aberration and it destroys our image. We are ready to cause terror and harm to totally innocent people. At the time of the invasion of Iraq, some of us wore t-shirts saying, “Not in my name”. To think that my name, and our name, is associated with causing harm to little children—it is our name, your name and my name! It is in the name of the Parliament of the United Kingdom. I have mentioned before that we gave wholehearted support to Make Poverty History. This is one thing that we can do today to make one aspect of poverty history in our country. I urge the Government, by the time this amendment is debated at a later stage, to say that they can see that this position is a blot which should be removed.

The Earl of Listowel: I offer my very strongest support to the amendment proposed by the noble Lords, Lord Avebury and Lord Roberts of Llandudno. There is very little that I can add, given the eloquent and passionate presentation of the amendment, but I feel so strongly about it that I have to speak. I was present when the noble Lord, Lord Avebury, and many others, sought to persuade the Government on a previous Bill of the ill-advisedness of this measure. I thought that they had been successful, and I am deeply disappointed to see the measure being brought back again. The noble Lord, Lord Avebury, pointed out the failure of the pilot of Section 9 of the Act and how that demonstrated how harmful the provision can be.

The Border and Immigration Agency’s intention to do more to ensure that families are made fully aware early, and throughout the process, that they will be unable to integrate and that steps will be taken to deport them if their asylum application is rejected, and the BIA’s strengthening of financial incentives—referred to by the noble Lord, Lord Avebury—in voluntary return packages, are welcome and well-advised measures. Families that fail in their application already experience the sanction of reduced benefit and denial of access to work. Pushing further than that only increases the risks of families vanishing, as they have done, or children possibly being taken into care. I am glad that Her Majesty’s Government have sought to increase the support for immigration officers, and I look forward to further information in due course from the Minister on how far that has progressed and on plans for future development. I welcome that.

The power to make a family destitute is a remarkable one to vest in any individual’s hands. I wish that the people making those decisions were superhuman; but I fear that they may be as fallible as any one of us. I recall that 20 per cent of initial decisions on cases are rejected on appeal. Those people make mistakes. I urge the Minister—

Lord Bassam of Brighton: I hesitate to interrupt the noble Earl’s flow, but Section 9 does not apply during the early part of the process. It does not apply until we are well past the decision being made. I really do

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not want it to be felt that somehow we are treating families—children in particular—at all adversely, for most of the time; in fact for nearly all of the time, because the law does not allow us to do so. I urge noble colleagues to apply some precision to the debate.

The Earl of Listowel: I thank the Minister, and I apologise for not making myself clear. The point that I was trying to make is that we are depending on the judgment of the case managers. Is that not correct?

Lord Roberts of Llandudno: Yes, that is correct.

The Earl of Listowel: That is the same judgment that fails in 20 per cent of cases. At the initial stage, a decision is made on whether to accept an asylum application. When those go forward to appeal, in 20 per cent of cases the people judging the appeal decide that the judgment of the case manager was wrong and that the person should not be removed. I understand that that is to be the position. I welcome the fact that the Government are seeking to support them better and are improving their recruitment in this area, but they are human beings, just as you and I are, and are deciding whether families should be made destitute. I therefore urge the Minister and the children’s champion at the Border and Immigration Agency to think again and to withhold this power for immigration officers. I strongly support the amendment.

Lord Hylton: Will the Minister say whether I am correct that Section 9 was applied only in three areas to a small sample of 116 families, or do case managers across the country even now have discretion to apply it to individual families? I await his reply with interest. Moreover, the size of the asylum backlog is nothing less than a national scandal. The fact that some people’s cases have been undecided for perhaps 10 or even more years must surely deny them their right to proper consideration under the UN convention on refugees.

It is good news that some of the families caught in the backlog may be eligible for some form of discretionary leave to remain. I think that the noble Lord, Lord Avebury, said that 30,000 cases go back to before December 1995. What is key for these people is the right to work here. I hope that that will be made possible for the greatest possible number of people, particularly for the non-returnable families who will have to stay here in some shape or form for an unknown period or indefinitely. Will the Minister confirm that benefits cannot by themselves be a magnet to attract people from other countries to the United Kingdom? It must by now be very widely known that the full rate of benefit is not paid; they are at a discount to British citizens.

In conclusion, I initiated a debate on destitution in your Lordships’ House on 14 December last year. I am sorry to say that the replies given then and subsequently have not been very satisfactory. Nor has it been possible to arrange a meeting between the

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leading voluntary organisations in this field and the relevant Ministers. I support the amendment.

4.15 pm

The Earl of Sandwich: I spoke in favour of the amendment in a sense when I spoke to the last group of amendments on a previous occasion. The noble Lord, Lord Avebury, knows that I support it, and the Joint Committee on Human Rights made it one of its very strong arguments. I have two points to make. The noble Lord, Lord Roberts, made a connection with international development. I would so like the Home Office and the Department for International Development to have some common cause in future. The noble Lord’s point is such a good one. This really is about joined-up government. I refer particularly to the UN High Commissioner for Refugees’ resettlement quota, which the Minister may remember I mentioned before. We are very behind other countries, and this is another very good example of development going hand in hand with asylum.

I have only one other point—to pick up a point that the Minister made toward the end of the last group of amendments. He made quite a lot of the advantages of Section 4 hard-case support. My figures, based on the statistics from the last quarter of 2006, show that 6,555 cases received Section 4 support, which is only 2 per cent of refused asylum seekers in the UK. So it is no great panacea to refer to that section. As we all know, most of the so-called refused asylum seekers—I really object to that term coming from a Government—will be supported by friends and members of their own community as well as mainstream charities.

Lord Dholakia: I support my noble friend Lord Avebury’s brilliant analysis of the situation on Section 9. This is not the first time that he has spoken to the issue; we have taken up these issues in previous legislation. I start with the report of the Joint Committee on Human Rights, which, as early as March 2007, said:

That is precisely what my noble friend is saying. When the matter comes up on Report, he can bet that we will divide the House on the issue.

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