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I do not wish to continue in that vein, because we are not discussing that order. We are talking about it only because at the end of the day, when the fees were announced, we found that they were grossly higher than anyone had expected. That applied in particular to dependants, who were mentioned by the noble Lord, Lord Hylton. We fear that when this clause has gone through and the consultations have taken place, people still will not know the level of the fees and that, ultimately, the Secretary of State will come forward with wholly extortionate demands, which are beyond the means of applicants.

What my noble friend said about an audit needs to be taken on board. We have no idea whatever whether the £750 charged to spouses and other persons applying for indefinite leave to remain is a true reflection of the cost of the application plus the appeals system, which is being loaded on to it. At the time, I said that it was completely unreasonable to make legitimate applicants who wish to come here as a dependant—whether a spouse, elderly dependent relative, or whatever—cover the costs of the people who are not legitimate and who are dealt with through the appeals system. It is my fear that, having given the Government a blank cheque through Clause 20, we will find that, in particular, for the poorest of the Africans—mentioned by my noble friend Lord Roberts—or in the case of an elderly grandmother coming from the Indian subcontinent, for example, the sponsor, a working-class individual on a minimum wage in this country, will suddenly be faced with a bill that makes it impossible for him to look after the elderly dependent relative.

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I warn the Committee that if we let this power for the Secretary of State to charge whatever he likes go through, we will get protests from communities that are disadvantaged by it. I have said my piece, and I hope that the Government will listen. I do not have any hope that they will. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Lord Bassam of Brighton moved Amendment No. 37:

(a) shall be made by statutory instrument, and(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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(a) “the Border and Immigration Agency” means—(i) immigration officers, and(ii) other officials of the Secretary of State, and the Secretary of State, in respect of functions relating to immigration, asylum or nationality, and(b) “child” means an individual who is less than 18 years old.”

On Question, amendment agreed to.

[Amendments Nos. 38 to 40 not moved.]

Lord Judd moved Amendment No. 41:

The noble Lord said: I express my appreciation at the outset to the Refugee Children’s Consortium for its insight and advice which has led me to table this amendment. I do so to press the Government on the current situation that denies many unaccompanied children a right to an appeal while they are still children.

Article 2 of the UN Convention on the Rights of the Child requires states party to it to “respect and ensure” the rights enshrined in the convention,

and to ensure that a child is protected against all forms of discrimination on the basis of status, including national origin. I obviously hope that the Government intend that refugee children should not be subjected to a lower standard of justice than other children in the UK. I cannot believe that the Government intend otherwise.

Section 83 prevents those granted leave for less than one year from making an appeal against the refusal of their asylum claim. Unfortunately—again, I cannot believe this was the Government’s intention—in practice, this applies disproportionately to unaccompanied children who frequently receive less than a year’s discretionary leave. Following the recent Home Office policy change, which lowered the age to which discretionary leave will be granted from 18 to 17 and a half, many more unaccompanied asylum-seeking children are going to be caught by the Section 83 provisions in the future.

Currently, 46 per cent of unaccompanied children arriving in the UK are 16 or 17 years old. This amounts to some 1,500 children. As the majority are likely to be over 16 and a half by the time they receive an initial decision on their claim, they will therefore be denied access to the appellate system. Young people are of course able to make an appeal at a later stage if their application to extend their leave is refused. However, this will possibly be some years after the initial application. Such a delay can prejudice the outcome of the appeal in a number of ways. Experience suggests the following examples of how it can do so.

First, when the events relevant to the appeal occurred a significant time ago it can be much harder

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to gather evidence either because the child finds it difficult to recollect important details or because it may be impossible to trace important witnesses. We should remember that we are dealing with children who may have been through traumatic experiences.

Another significant problem is that children and young people often lose contact with their lawyers before their appeal is heard, which results in many being unrepresented at the hearing. The Refugee Children’s Consortium reports cases of children and young people in these circumstances being forced to represent themselves at appeal hearings.

Finally, if the length of delay means that the young person’s appeal is heard after they become 18, this may well put them at an even greater disadvantage because children benefit from a more generous application of the merits test legal aid funding. If they are merits tested as adults, they may be denied representation at their appeal.

I further believe that the proposed amendment makes sense in the light of the Government’s plans for reforming the support system for unaccompanied children. Their proposals place significant emphasis on the need to prepare young people to return to their home countries on reaching the age of 18. However, while Section 83 remains in force, it is very difficult for social workers to do this because the young people with whom they are working have not been able to bring finality to their claim; that is, a decision which includes an appeal. Without this they are likely to retain the hope that they may have the decision to refuse asylum overturned at a later stage. I hope that the Minister can respond to these anxieties. They are very genuine anxieties among those with real experience of working in the front line. I beg to move.

Lord Avebury: On 30 March the Home Office issued APU Notice 3/2007, entitled “Amendment to Discretionary Leave Policy relating to Asylum Seeking Children”. This policy deals with children who do not qualify for asylum or humanitarian protection and who up to then were granted discretionary leave for three years, or until their 18th birthday, whichever was the shorter. The APU notice provided that from 1 April, discretionary leave was to be granted to the age of 17 and a half, if that was less than three years. This means that, because under Section 83 of the NIA Act 2002, only an asylum seeker who has been granted leave to enter for more than a year has a right of appeal, a child making an application at the age of 16 and a half or over will have been given a year or less and will have no right of appeal.

The notice says that this provides more clarity to the young person about their future, meaning that they can look forward to removal at the age of 18. Somewhere around half of UASC will be 16 and a half by the time they get the initial decision on their asylum claim, and, as the noble Lord, Lord Judd, explained, their only recourse will be to submit an application for an extension of leave to remain as they approach the 17-and-a-half watershed, and then if that is refused, as inevitably it will be, to appeal against that decision. Since by the time the appeal is

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heard, generally at least a year and a half will have elapsed since the child’s original application, it will be much harder to assemble the evidence required, as the noble Lord said, and to prove that the circumstances at the time of the appeal, which the immigration judge has to consider, are the same as those which applied when the asylum claim was made.

As the noble Lord also said, there is the additional disadvantage that since the child will almost certainly have turned 18 by the time the appeal is heard, the adult merits test will be applied to the application for legal aid funding, and since this is less favourable than the test for children, the young person is in greater danger of being denied representation altogether at the appeal. So much for the clarity about the child’s future.

Lord Hylton: I realise that the amendment is technically about appeals. Nevertheless, it provides an opportunity to raise issues about the policy of unaccompanied asylum-seeking children. We may be talking about 6,000 such children already in this country. The Local Government Association believes that the cost of maintaining them here is of the order of £50 million a year and it points out that the government grant which goes to local authorities undertaking the care amounts to only £12.3 million. Therefore, there is a huge burden on local authorities up and down the country which, in my view, should be borne as a national expense.

I also inquire about what is supposed to happen at the end of the period in which the child can stay here. Is the age 16, is it 17 and a half, as was suggested, or is it 18? At the moment no one seems to know the answer to that question. To what extent have the Government considered whether such children will be safe if they are returned to their countries of origin on reaching the predetermined age? In the case of Vietnam, I think there are very serious doubts about that and the same may be true of Cambodia.

Suppose a child ceases to be unaccompanied because, in the interim, other members of his family have arrived here. Is the intention still to return that child? Whatever the answers to these questions may be, it appears to me that by the time they reach the age limit, we will have invested large sums in each child. Therefore, why not let them stay in this country, if they wish to do so, as we have an ageing population here, which urgently needs more young workers to support it? In general, I am strongly in favour of the amendment.

Lord Bassam of Brighton: I am grateful to the noble Lord, Lord Judd, who makes a good case. I listened to his argument with great care. I shall try to explain the Government’s reason for sticking to their policy on asylum appeals and for resisting this amendment, despite some of its attractions.

An asylum claimant whose claim for refugee status is refused, but who is, none the less, granted more than 12 months of leave to enter or remain in the United Kingdom, can appeal to the Asylum and Immigration Tribunal against the rejection of his

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claim for asylum. Where someone’s asylum claim is refused and they are granted 12 months or less of leave to enter or remain, they may not immediately appeal. We believe that strong policy reasons still exist for the 12-month restriction which this amendment is proposing to remove. It is important to point out that where a period of leave of less than 12 months is granted there will still be a right of appeal once leave expires and a decision is made to enforce removal. Where someone is granted a period of leave of 12 months or less, we expect that person to return to their home country after a period of short stability in the United Kingdom and without the need for an enforced removal.

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The main reason for introducing an upgrade appeal for those people who are refused asylum but are granted a period of leave of less than 12 months was to ensure that such people were not prevented from appealing the finding on their asylum application for a lengthy period of time should they choose not to leave the United Kingdom. Our view remains that, if a period of leave of 12 months or less is granted, it is reasonable to expect the applicant to wait until the expiry of that leave before he or she is entitled to bring a statutory appeal.

I am sure that Members of the Committee will agree that great strides and progress have been taken in speeding up the immigration appellate system in recent years, but appeals still take time to conclude. The length of time that it takes from lodging an appeal to receiving a tribunal determination takes less than 12 weeks in 95 per cent of cases, which, given where we started from, is a real sign of improvement.

Once an appeal has been determined, the tribunal will be asked to consider an application for reconsideration in 49 per cent of cases. Most applications are refused, but this application process takes further time to conclude the appeal. Thus, if someone refused asylum but granted a short period of leave was able to appeal straightaway, the appeal could still be running when that leave expired. Assuming the appeal was dismissed, enforcement action would commence which would attract a further right of appeal. The Government’s one-stop policy on immigration appeals says that there should be one appeal which considers all arguments that someone may have for remaining in the United Kingdom. If accepted, Amendment No. 41 would increase the numbers of persons who could qualify for two appeals, which runs contrary to the one-stop principle that the Government believe is perfectly sensible and has attracted widespread support.

In making his argument, the noble Lord, Lord Judd, suggested that we discriminate against people on the basis that they are asylum-seeking children. There is no discrimination on the basis that someone is an asylum-seeking child. The availability of an upgrade appeal depends on the period of leave granted. We feel that if a period of 12 months or less of leave is granted, it is not unreasonable to expect the person granted leave to wait until the expiry of this period before he or she can bring a statutory appeal.

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If anyone wants to challenge an asylum refusal before this point, judicial review remains available. It is for reasons of practicality, good process, simplicity and a tidier appeals process, and—I would argue—in the interests of the appellant, that this policy is the right one. Having heard that, I hope that the noble Lord will reflect on it and withdraw his amendment.

Lord Judd: As I have said before in our deliberations, I have no alternative but to withdraw the amendment in these proceedings. We could debate this at great length. I thank the noble Lords, Lord Avebury and Lord Hylton, for their interventions. To the noble Lord, Lord Hylton, I simply would say that his interesting, adjacent point about the cost to local authorities is even more of a burden for some local authorities. They are often the very local authorities which have the largest amount of social issues and problems with which to deal already. This becomes the sort of straw that could almost break the camel’s back.

My noble friend has referred to how long appeals take on average and the rest. I refer to a very important point made on an earlier amendment. When you are talking about the human situation, in real stress and, on occasion, in times of considerable mental anguish, to believe that the argument about averages will be convincing is pie-in-the-sky. It is a theoretical argument that does not relate to ordinary people in the immediate situation.

The organisations with which I have been dealing are particularly concerned by the cases with which they have had to deal. They see real challenges and problems in what the Government have now laid down. I said that I wanted to press the Government on this. I would feel more encouraged if my noble friend were to recognise that there is an issue here. Justice has to be seen to be done, and justice demands equality before the law. In both those contexts, there are difficulties around what is happening. I would feel more encouraged if my noble friend were to say, “Okay, I can see there is an issue and that it is an issue that organisations doing a lot of exacting work in the front line really care about. I will ensure that there can be meetings with my department to go into the implications of what has been raised in greater depth and how they might be resolved”. Can my noble friend give me an assurance on that point before I withdraw the amendment?

Lord Bassam of Brighton: I am more than happy to give the noble Lord that assurance, if he feels that there are outstanding issues with regard to the appeals process. He has raised again the issue of discrimination, which he quite properly raised earlier. I am more than happy to say that between Committee and Report, which will take place in early October, we will be happy to meet noble Lords on a range of subjects, not just this one, but we can focus on it as one of those subjects.

Lord Judd: That is a constructive and helpful response from the Minister. On the understanding that we shall be clear about what happened in those discussions before we come to Report, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Goodhart moved Amendment No. 42:

“(ba) he would be entitled to be registered under section 4C of the British Nationality Act 1981 if the words “after 7th February 1961 and” had been omitted from section 4C(2)”.”

The noble Lord said: The purpose of this amendment is to correct what is now almost universally seen as an anomaly in our nationality and immigration law. The amendment confers not citizenship, for reasons that I shall explain later, but rights of entry to the United Kingdom on people who were born abroad between 1 January 1949 and 7 February 1961—just over 12 years—and who are children of a foreign father and a British mother. The amendment adds new matter to the Bill and has no effect on anything now in it.

I raise this issue because in February I received a letter from Mr Kenneth Luke of Houston, Texas. He is the son of an American father and a British mother and was born in the USA. He was 56 at the date of his letter, so he was born in 1950 or early 1951. He wants British citizenship. He knows that had the nationality of his parents been reversed—had his father been British and his mother American—he would have been entitled to British citizenship, even if he had been born in the USA. He knows that if he had been born after 7 February 1961, he would have been entitled to British citizenship, even with his actual parentage and place of birth. I shall read a short extract from his letter:

I was particularly interested in this letter because Mr Luke’s position bears some similarity to my own. I, too, have an American father and a British mother, although, because I was born in the United Kingdom, I am a British citizen by birth. My mother was not a British citizen at the time of my birth because she was stateless. This matter is relevant to the amendment and its history needs some explanation. At the time of my parents’ marriage in 1924, United Kingdom law assumed that a woman marrying a foreigner would automatically get her husband’s nationality, and therefore she lost her British nationality. However, under American law, a foreign wife did not acquire American citizenship on marriage until she had been resident in the USA for a year, which my mother never did because my father’s career was in this country. By 1933, this statelessness had affected enough British women to lead to a change in the law. Under the Nationality and Status of Aliens Act 1933, women retained British citizenship if they did not acquire their husband’s nationality on marriage, but

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not if they did. My mother at that point became British again. It was not until the British Nationality Act 1948 that British women who had lost their nationality on marriage were given it back, and even then they were not given the same right as British men living abroad with a foreign wife to pass on citizenship to a child.

I am not seeking by this amendment to give any rights to anyone born before 1 January 1949—the date when the British Nationality Act 1948 came into force. That would raise a difficult question whether rights could be given to children of mothers who were not British nationals at the date of their child’s birth but nationals of some other country, and the practical difficulty of identifying the status of the applicant’s mother at the time of the applicant’s birth. Therefore, 1 January 1949 has real logic as a cut-off date for granting the right to British citizenship; 7 February 1961 has none.

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