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I was taken aback by the Minister’s challenge to the case made out by the noble Earl, Lord Listowel, who I think was right in his analysis and conclusion. If there is one noble Lord to whom I listen carefully on children’s issues, it is the noble Earl. I was delighted by the way in which he presented his case. The issue boils down to a simple fact. We go round the world producing reports on Africa and the third world and saying that we want to eliminate poverty and the factors leading to destitution, but here we are using destitution as a punishment. That is unacceptable and cannot be a value held by a civilised country, and that is what the amendment is saying.

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The evaluation of the pilot scheme, so ably explained by my noble friend Lord Avebury, confirms our suspicion about what is going on. The scheme is ineffective and the Government have ruled out its full-scale implementation. But they do not stop there. We waited some time for the scheme. Now that it has been demonstrated that it does not work, they say that it will be left to the case worker to decide whether an individual is trying to avoid deportation and benefits should be withdrawn. One thing is clear: it is one thing to support destitution, although that should not be one of our values; but it is unacceptable to use it as a punishment. Deciding the matter on a case-by-case basis will result in many children falling within this network.

Asylum seekers include not only men and women but the many children who accompany them. By trying to punish the parents we will be punishing the children. Has the Minister consulted the Children’s Commissioner on the implications of the Government’s proposals? Is the Children’s Commissioner happy that we should punish children through the way the Government intend to use this legislation? It is very clear that the Government’s proposals are incompatible with the Children Act 1989. There is no getting away from that. The Children Act is very clear about the duty to promote the welfare of children. I very much hope that the Government will indicate whether consultation took place with the commissioner.

Further, the people who are to implement this policy objected to it. Social workers have objected to it, as have directors of social services, who ultimately have to bear the brunt of it. There is a very clear inherent conflict between Section 9 and children’s legislation.

I am grateful to the Refugee Children’s Consortium, which produced an excellent brief on this matter. If the Minister does not have it, I shall be delighted to send him a copy. I refer to one or two issues in that briefing. It makes an excellent suggestion as regards an alternative approach that the Government could take. It supports the development of an alternative approach to the return of families who have exhausted all appeal rights. It contends that putting in resources at the outset to engage families would result in more dignified and sustainable returns and that, through this, the Home Office’s aim of reducing long-term costs to the taxpayers would be met. That is a sensible suggestion. It further states that the new asylum model’s case ownership framework provides an opportunity to engage families and keep them informed throughout the process, leading to more effective and dignified returns models—models such as the work of the Hotham Mission asylum seekers project in Melbourne Australia. The briefing also refers to other interesting projects.

The Joseph Rowntree Trust recently held an inquiry which reached the clear conclusion that the pilot has caused widespread fear among the children of families who have been removed. This is likely to encourage families to distance themselves further from the Home Office and refugee agencies, and

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therefore to cause destitution among the children—the point that the noble Earl, Lord Listowel, has made again and again.

The RCC comprises people who are working hard with these children. It concludes that Section 9 has resulted in families being made destitute—as we know—that it places children’s welfare, health and development at risk; that it has the potential to separate children from their parents and family; and that it has resulted in uncertainty and confusion and will eventually inevitably lead to costly and time-consuming litigation paid for out of public funds.

I sum up with the conclusion of the report of the Joint Committee on Human Rights. It stated:

We shall do everything in our power to make sure that that happens.

Lord Bassam of Brighton: I had not envisaged that we would spend quite so long on this amendment as we have. We went through much of this debate in Committee last week. The arguments that were made then and those made today have varied very little. That is not to say that the sincerity, passion and genuineness of the arguments put by noble Lords on the Liberal Democrat and Cross Benches are not as well meant as they always are because they are always coming from the right place. We simply take a different approach on some of these matters—although not as regards our humanity—and to how hard cases that occur from time to time in the asylum process should be dealt with.

Many arguments have been poured on us this afternoon as to why we should repeal Section 9, and I have heard most of them before. However, my mind has not shifted on this issue. I entirely understand the comments about the pilot and its success or otherwise. I confirm that it was conducted only in Leeds, London and Manchester, and that the numbers to which the noble Lord, Lord Hylton, referred are accurate. Obviously we have learnt a great deal from it.

Noble Lords seek to extend their arguments about the pilot trialling of Section 9 across the whole range of decisions on judgments on asylum seekers and the process at large. I shall not deal with those arguments because they are broader and do not have too much bearing on the amendment, and it would not serve the Committee well if I simply repeated them. However, I assure the Committee that we will not use Section 9 lightly or indiscriminately. We do not think that it would be suitable for blanket use, but it is important that we retain an ability to withdraw support from families who are wilfully not co-operating in the process of return. We should remember this simple fact: the point at which we might apply Section 9 is the very point at which the persons who are affected by it have exhausted pretty much every avenue open to them to advance their case to stay in the United Kingdom. We are talking about hard cases at the end

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of the process. We may criticise that process, but it is rigorous and has been very well worked out.

As I said, we are talking only about the hard cases where there is wilful non-co-operation. A judgment must be made by those who manage those cases. I also assure noble Lords that further guidance will be provided to case owners before Section 9 is used in any new case. It is also worth reminding your Lordships that Section 44 of the Immigration, Asylum and Nationality Act, as argued before in 2006, provides for the repeal of parts of Section 9 by order. If a future Government wish to exercise that option, they will be able to do so without recourse to further primary legislation. It is an important part of the process—a tool in the armoury, if you wish, although that analogy might not be the most attractive to all those involved in the debate. However, there may well be cases—I cannot say how many, although I do not think that it will be used in a blanket fashion—in which we must apply that section.

Noble Lords made other points that were more relevant to the amendment, and I will try to respond to some of them. The noble Lords, Lord Avebury and Lord Roberts, talked about returning people to Zimbabwe. We are closely monitoring the position in Zimbabwe, and a key case is going through a tribunal. I assure noble Lords that there are currently absolutely no forced removals. Asylum support generally is available from the beginning to the end of the process for those who would otherwise be destitute.

Lord Roberts of Llandudno: How will a family which is to be deported because it has failed in every way to stay in this country be treated if its destination is Zimbabwe or any other country where life is impossible for it?

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Lord Bassam of Brighton: The noble Lord asked a question, which I respect him for asking, and which requires a precise response. We would have to consider each case on its merits, and there would have to be detailed consideration. It would depend on whether the family wanted to return voluntarily or was seeking to stay here for a long period. It would require case-by-case consideration and depend very much on the personal circumstances of the family. If the noble Lord’s point is that we would seek to use Section 9, it is extremely unlikely that we would use that section because we would be going against the other part of our policy, which is that currently there are no enforced removals to Zimbabwe.

Lord Roberts of Llandudno: I am grateful to the Minister. Perhaps we can consider two families: one to be repatriated to, let us say, Nigeria, and the other to Zimbabwe.

Lord Bassam of Brighton: Perhaps the noble Lord would permit me to say this: it is extremely unwise to exchange and trade cases across the Committee Floor when dealing with the principles of a provision. When we are considering broad principles, I am not going to

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be put in a position of making the judgment of Daniel on each individual case that someone brings up in Committee. That is not the right way to proceed. If the noble Lord has such a case, and wishes to draw it to my attention, I shall certainly be happy to process it by way of correspondence, but that does not necessarily take us further in looking at this Bill.

Lord Avebury: The point I was trying to elucidate earlier was a more general one. Zimbabwe is an illustration of it, but there are other countries to which we do not return people at the moment. We do not return anyone to Baghdad, although we send them back to Erbil in northern Iraq; and we do not return anyone to Somalia, but we return them to Somaliland. In all those cases, where there is a de facto policy of not returning people to their country of origin, will the noble Lord give a guarantee that Section 9 will not be applied to families from that group? Will the instructions that have been given to immigration officers cover that matter?

Lord Bassam of Brighton: I am always reluctant to give absolute guarantees because there can always be other cases. I return to my earlier point that I do not think that would be right, and I think the Committee would be badly advised by me if I were to make that kind of commitment. It depends on the nature of the case; it depends on the individual circumstances; and it depends on whether there is a desire in the household to leave voluntarily. All of those matters may have an application. So I shall not make that absolute commitment, and I do not think that it would be right or proper to do so.

Lord Dholakia: Perhaps I may help the Minister on this matter. A little while ago, he said that further guidance would be provided to social workers. In that case, is there to be a code of practice for social workers and, if so, would it be possible to have sight of that guidance or code of practice before Report stage, so that we are in a better position to decide what further course of action might be necessary?

Lord Bassam of Brighton: Perhaps I can help the noble Lord. He has been very helpful in getting us back to more sensible territory. A code of guidance will be made available to case workers dealing with the matter. Yes, of course, the issues raised in the debate by noble Lords from the Liberal Democrat Benches and others are exactly those kinds of issues—we are dealing with hard cases at the extreme end—that will need to be considered by case workers. Yes, the code of practice is where we need to try to tease out some of those issues so that the right decisions are made.

Lord Dholakia: All I was asking for was to have sight of the code of practice before Report stage, so we know how to proceed on this matter. That is a perfectly simple reason.

Lord Bassam of Brighton: We do not have any difficulty with that.

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The Earl of Listowel: Probably it will be as a matter of course that this will be in the guidance, but it would be interesting to know what consultations the case manager will be obliged to have before he can make the decision. Will he have to have a discussion with social services? Will he have to have a discussion with medical services? Will he have to have a word with his supervisor before he takes the decision? I imagine that will, as a matter of course, be in the guidance, but I look forward to hearing that.

Lord Bassam of Brighton: Of course all those considerations have to apply. There will obviously be discussions with senior case workers or supervisors. There will have to be some discussions with those involved in the welfare of children, because that is proper and right. I have made the point before that many years ago I was involved in social work. I would have expected that sort of good practice to apply, and we want to ensure that good practice applies in all these cases.

Lord Avebury: I am most grateful to all those who have taken part in this debate which, the Minister will agree, has been entirely one-sided, because there have been seven speeches against the Government’s position and only the Minister’s for it. We have tried to help him. My noble friend Lord Dholakia made the excellent suggestion that we should know what is in the code of guidance, because at least it would limit the damage caused by the Government’s decision to apply Section 9 on a discretionary basis to individual cases. It is repugnant to me that a social worker should be put in the position of having to do that. Whatever the circumstances are, he is going to have virtually a power of life and death over a particular family, which may have been recalcitrant or may have been obstinate in resisting attempts by the Government to persuade it to go back voluntarily. They have always got the power of compulsory removal; nothing was said about that. Why should we exercise the power of making someone destitute when there are plenty of provisions in the statute book, throughout the immigration Acts, for removing people compulsorily?

The Minister did not respond to the noble Earl, Lord Sandwich, who said that only 6,500 so-called failed asylum seekers received emergency support, and that was 2 per cent of the total. Already, 98 per cent of people are being cut off at the end of the process, and anyone who has met these people will know how difficult it is for them. I was talking on Sunday to a failed asylum seeker who is a citizen of Nepal. He is going to depart voluntarily, and the Home Office knows that perfectly well. He has been in negotiation with the International Organisation for Migration with a view to helping him depart for Hong Kong, where he has a job offer. It is a matter of sorting out, first, the renewal of his Nepalese passport, which has expired since he has been here and, secondly, getting the visa on the passport, which has been promised him by the Hong Kong authorities. In the meanwhile, even though he has a wife and

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child, he is depending on a cousin’s support, and he is totally without means of his own. There is no support for him.

Are we going to say that every failed asylum seeker, as he is, is to be put in the position of depending on cousins or, even worse, of sleeping on the streets, such as in the case of Janipher Maseko, which I quoted earlier? The noble Lord may raise his eyebrows and look aggrieved, but the fact is that there are thousands of these people already.

Lord Bassam of Brighton: I beg to differ. I accept that there are occasional hard cases. In the case that the noble Lord is drawing out for the attention of the Committee, it may well be that the individual could have applied for Section 4 support. I do not know, because I do not know precisely his circumstances. Section 9, on which we have had a tremendously long discussion, is really only there for very hard cases; for very few cases indeed.

Noble Lords are trying to create a picture of us applying this provision to thousands of people across the board. The provision itself would in future only be applied to cases already managed under the new asylum process. It is not there to be applied to the 450,000 cases that have been referenced at an earlier stage of this debate. Noble Lords should try to understand exactly how we intend to use these powers under the circumstances. Otherwise, one could develop a nightmare vision of how our system works that is quite a long way removed from the reality.

Lord Avebury: It does not matter whether it is one person or 10,000 who is made destitute. For the purposes of that family, it is a disaster. The Minister should not attempt to excuse the retention of this provision by saying that it will only apply to a small number of people.

Lord Bassam of Brighton: I am not trying to excuse it; far from it. When we have these debates, we must be a bit more forensic and deliberate in applying our intelligence to difficult issues and hard cases.

Lord Avebury: Okay, let us be forensic and deliberate, and challenge the Minister to say—which he has not, in response to my earlier comment—why, if only a few tens of families will be covered by this provision, the Government cannot deal with them under the numerous provisions for deportation under the immigration Acts. That is a simple question.

Lord Bassam of Brighton: It may well be the case that they are dealt with by other provisions. But I make the point that there will be hard cases—very few over time—where we will need to apply this provision. Nevertheless, the provision has value in those hard, exceptional cases when there has been wilful refusal to leave when the process of applying for asylum has reached its end point and people have decided to flaunt that decision.

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The Earl of Listowel: Before the noble Lord, Lord Avebury, stands up, I want to clarify this. Can the Minister help me to understand this better? Is he saying that, in certain circumstances, it would be preferable to make a family destitute rather than take those people into a removal centre and hold them there until they are taken out of the country? Perhaps I have not understood the argument properly. Is that what the Minister is saying?

Lord Bassam of Brighton: I am reluctant to accept the noble Earl’s words, because I would not necessarily recognise the description of a case that the noble Earl has come up with. It would very much depend on the circumstances of the case, but I make the point that there may well have to be cases—very few in number, perhaps one, two, three or four a year; I have no idea—where there has been a wilful refusal to co-operate and we have to make use of this particular provision, but I say to the Committee that it would be in very few cases indeed.

Lord Avebury: The Minister has reinforced my opinion that we should get rid of this clause. If we are only talking about three or four cases a year, I find it impossible to believe that there is no provision in the Immigration Act by which that person should be compulsorily removed. I again challenge the Minister to produce one example of a case where it is impossible to use the normal procedures for removal of a family to their country of origin where this provision would be necessitated. Otherwise, as my noble friend Lord Dholakia said earlier, we know that we are not going to get anywhere in Committee this afternoon, but we are determined to strike this provision out of the statue book on Report. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clause 19 [Points-based applications: no new evidence on appeal]:

Lord Avebury moved Amendment No. 34ZA:

The noble Lord said: Clause 19 deals with exceptions to the rule that new evidence may not be submitted to the AIT relating to in-country appeals under the points-based system. The general rule under Section 85 of the NIA Act 2002 has been that at the hearing of an appeal, the AIT can only consider the circumstances as they were at the time of the decision to refuse, although there is nothing to stop the person from making a fresh application later on.

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The Home Office told ILPA that this has caused difficulty where evidence has been submitted close to, or even in some cases on, the day of the appeal, making it difficult or impossible for officials to consider in time what evidence has been supplied and to respond to it properly. This argument would be reasonable were it not for the fact that the AIT has

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the power in Rule 45(4) of the 2005 procedure rules to give directions on when evidence must be submitted and to exclude evidence where directions have not been followed, admitting that evidence may unduly prejudice a party, including the Home Office. It also has the power to adjourn the hearing or put it at the end of the day’s proceedings to give representatives time to consider the evidence. ILPA contends, and we agree, that these powers are more than adequate for the AIT to manage the appeals process.

We have particular concerns about the effect of the exclusion in the clause on appeals under the points-based system, against which it is aimed. That system has yet to be fully rolled out, but there is inevitably a risk at the beginning that an applicant or his representative may miscalculate points or misunderstand certain criteria, with the effect that an appeal fails simply because of an error of fact which there would be no means of correcting. This could be particularly disastrous for people applying to extend their leave to remain in the UK, who are the appellants dealt with under the clause. It could be too late for someone to submit a corrected application after the appeal has been dismissed because his permitted leave to remain might then have expired, with the result that he would have to return to his country of origin and make a new application to enter. In the mean time, it could have a severe effect on, say, his studies at a university, or it could mean the loss of his employment or the disruption of his business relationships.

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