---

Nor, as has been said, has the continued presence of Section 9 on the statute book achieved the objective of encouraging people to take up voluntary-assisted returns when their claims fail. We do not know whether any families have been removed under Section 9 since the end of December 2005, when the pilots came to an end, but inquiries that I have made seem to indicate that such removals have been in total abeyance. Therefore, the presence of the measure on the statute book for the past two years has not done anything towards improving the take-up rate of voluntary repatriation.

In any case, we share the views of the RCC that engaging, rather than punishing, families, as with the Hotham Mission asylum seeker project in Australia, is more likely to ensure that protection needs are met and that returns are safe and sustainable. In this model, which has been mentioned by my noble friend, when rights of appeal are exhausted, the role of the caseworker is to provide practical and emotional support for the family in considering their options and in planning their possible return. Such a model achieves a high level of voluntary repatriation, which demonstrates that preparing, supporting and empowering asylum seekers at the end of the process pays dividends.

It may interest the Minister to know that the Nepali failed asylum seeker, whom I mentioned in Committee on 18 July, departed voluntarily with his wife and child on 22 August, having been supported by his cousin for many months and with no help whatever from the IOM or the Government in meeting the cost of his fares, as I reported to Mr Byrne. The only contact that that family had with the immigration authorities was when Mr G had to report to them every single week. That put an additional financial burden on the family because he had to pay his own fares when travelling to Croydon and back home again; nor was any support or help offered by those in coming to their decision.

11 Oct 2007 : Column 370

We continue to oppose Section 9, as we have done ever since it was first introduced, and we make no apology for demanding its repeal yet again. We deplore the use of family destitution as a means of enforcing immigration control, placing children’s welfare, health and development at risk. We condemn the threat to separate children from their parents and families, and we deplore the uncertainty and confusion caused by the continuance of this obnoxious legislation. I appeal to your Lordships to sweep it into the dustbin, where it belongs.

1 pm

Lord Bassam of Brighton: My Lords, I fully recognise that a great deal of passion and a little anger have been expressed during the debate. I also recognise that Members of your Lordships’ House deal with this issue with great seriousness and that they have consulted and have been briefed widely by many aid and support organisations which help those who seek refuge in our country. If the system, in extension, were as has been described today and during the course of our deliberations on this part of the Bill, then I too would probably stand with those who make a case for the repeal of this part of our legislation. However, I do not believe that to be the case.

In my work in this area I have seen our officials and those who deal with these difficult issues approach their work with seriousness and sensitivity. That does not mean, as I said before, that absolutely everything is perfect in this policy area and that there are not hard issues and hard cases, because there certainly are, as the evidence suggests. But we have to maintain fair and effective procedures and we have to maintain a system that is robust. Yes, sometimes it produces difficult cases and hard choices.

I shall take some time and care to go through the issues because I believe that they deserve that treatment. I hope that noble Lords, while they may not agree with the Government’s position on this, will at least understand that we give this very serious thought and careful consideration.

Amendments Nos. 14, 15 and 17 seek to extend asylum support to those who have been found to have no need for international protection and who should be taking steps to leave the United Kingdom. A very clear choice is set out in the amendments. Clause 17 as it stands seeks to ensure that an asylum seeker and his dependants will continue to be eligible for asylum support as an asylum seeker, or as the dependant of an asylum seeker, until the end of the immigration appeals process. Clause 17 provides that. Amendments Nos. 14 and 15 would maintain that support, potentially indefinitely, for those who have made an asylum claim, who have had that claim and any appeal rejected and who choose not to leave the United Kingdom.

As I said, I entirely accept that the reasoning behind these amendments is well intentioned. They seek to address a perceived gap in support for those whose asylum claims and appeals have been unsuccessful and who no longer qualify for asylum support. However—this is a very important point—we should not forget that there are already options available for failed asylum

11 Oct 2007 : Column 371

seekers who find themselves in this position. There is no reason for people refused asylum to be destitute. They can choose to return home, as it has been found that it is safe for them to return. Those making a voluntary return are eligible to receive the world-leading re-integration assistance that is provided by the International Organisation for Migration on behalf of the Home Office.

Lord Avebury: My Lords, I accept that in the case of the Nepali failed asylum seeker to which I referred in Grand Committee, he applied to the IOM which was not able to assist him, for reasons that I am sure the Minister would not want me to go into in detail. I have explained all this to Mr Byrne and I have suggested that the IOM rules for helping people who want to return voluntarily should be re-examined because they are not helping everyone.

Lord Bassam of Brighton: My Lords, it is recognised that the way in which the International Organisation for Migration works is a very good model indeed. Of course, it may well be that some individuals do not receive the assistance and support that the noble Lord and I would clearly wish. I am grateful to him for drawing that case to our attention. No doubt the correspondence that he is conducting will lead to some further reflection on this. I am grateful to him for undertaking that correspondence. I also make it clear that support is available, under Section 4 of the 1999 Act, for those who are taking all reasonable steps to return home, while that return is being arranged. It is also available where there is some temporary barrier to return.

I do not believe that it is right that United Kingdom taxpayers should be asked to fund, potentially indefinitely, those who have been unwilling to make a voluntary return home. We think it is important to make it clear that failed asylum seekers cannot expect to receive support on the same basis as those still in the asylum process. Section 4 support is intended as a limited and temporary form of support. We acknowledge that there are some needs which cannot be met within the existing Section 4 regime and have now commenced a consultation on draft regulations to meet specified services and facilities which will enable us to give additional support to the most vulnerable receiving Section 4 support, including pregnant women and mothers with children.

The proposed amendment to repeal Section 4(11)(a) would not have the effect of abolishing vouchers, but would instead restrict our ability to provide for specified non-accommodation-related needs for supported individuals, including those who are vulnerable. We could not agree to such an amendment as to do so would undermine the integrity of the system by sending out mixed messages to those expected to leave the UK.

Asylum support is provided as a temporary measure, pending the outcome of the asylum application. To provide support after a negative decision and once the applicant has unsuccessfully exercised his appeal rights could mean that the person would be supported indefinitely at taxpayers' expense. I hope noble Lords

11 Oct 2007 : Column 372

are able to see that this is not an option that we can justify nor indeed is it one which I would wish to defend, as it amounts to exploitation of the asylum process in this country.

Subsection (1) of Amendment No. 15 seeks to repeal Section 55 of the Nationality, Asylum and Immigration Act 2002. This provision was originally introduced as part of a wider package of measures aimed at tackling abuse of the asylum system and removing incentives to the making of non-genuine claims for asylum. There are a number of safeguards in Section 55 to protect the vulnerable. Children and their families are excluded from its provisions and it does not prevent the provision of support if it would be a breach of human rights not to provide it. Support is not refused under Section 55 to any person who does not have alternative support available, including overnight shelter, adequate food and basic amenities.

The essential point of Section 55 is that we are not prepared to use taxpayers' money to support those who make speculative asylum claims or who have some alternative support. Section 55 has been effective in tackling this kind of abuse and, to our minds, sends a clear message to those who are simply economic migrants that they will not be supported at public expense. Agency-published quarterly statistics show that less than 1 per cent of cases refused under Section 55 are granted support following reconsideration.

I turn now to Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which all three proposed amendments seek to repeal. Section 9 provides for the withdrawal of support from the principal applicant and his family, whose claim for asylum has been refused and fully determined and whom the Secretary of State certifies that, in her opinion, have failed without reasonable excuse to take reasonable steps to leave the UK voluntarily. There are, however, exceptions and support will remain available, if necessary, in order to avoid a breach of a person's rights under the European Convention on Human Rights. Section 9 is not designed to make families destitute or to split them up but to influence behaviour to ensure co-operation and to incentivise voluntary return to the country of origin before removal is enforced.

In June this year, my honourable friend the Minister of State, Liam Byrne, published the evaluation report on the Section 9 pilot, to which many noble Lords have referred in this debate, which made it clear that the agency does not think that Section 9 is suitable for application on an indiscriminate basis. However, it remains important that we retain a provision to withdraw support from families who wilfully refuse to co-operate with the returns process. We cannot agree to the repeal of Section 9.

During Grand Committee stage, the agency agreed to produce draft guidance for asylum case owners on how it proposes to apply the Section 9 provision in any new asylum cases. Draft guidance is now available, on which the agency will consult, ensuring careful and inclusive discussion. I can make this point clear today: there will be no further implementation of the Section 9 provision until after consultation and

11 Oct 2007 : Column 373

publication of the finalised guidance. The agency is working to ensure that the guidance supports the case-specific approach for dealing with asylum applications under the end-to-end system. Specialist case owners are now responsible for managing the claimants and their cases through the whole system, until either removal or integration as a refugee. There is a strong focus on ensuring that earlier steps are taken so that those whose claims are not successful leave the United Kingdom in a timely fashion. Those who have been refused asylum have no legal basis to remain here. It cannot be right to give them false hope that they will be able to stay here after their asylum claim has been fully determined. It is particularly important that families should not give false expectations to children, and to make clear that those refused asylum cannot expect to receive support indefinitely.

Repeal of Section 9 would also give a right of appeal to the asylum support tribunal where asylum support is refused or withdrawn because of the operation of Schedule 3 to the Nationality, Immigration and Asylum Act 2002. Schedule 3 is an important measure to discourage benefit shopping and prevent support to those within specified classes except to the extent necessary to avoid a breach of their rights under the European Convention on Human Rights or Community treaties. This exception already provides an important safeguard to the operation of Schedule 3.

To conclude, the proposed amendments seek to extend asylum support to those who have been found to have no need for international protection and who should be taking steps to leave the United Kingdom. We must, as a Government, maintain the integrity of our asylum system. We have a long and proud tradition of granting asylum and protection to those fleeing persecution and torture, but that tradition must not be abused and exploited. To support indefinitely those who have been found not to need our protection would be to undermine our purpose in protecting the United Kingdom’s borders and our efforts to ensure that those with no right to be in the United Kingdom make arrangements to leave.

A number of other questions were raised in the debate which perhaps I have not dealt with in my main address; I shall deal with some of them as quickly as I can. The right reverend Prelate the Bishop of Ripon and Leeds, in his carefully thought-out comments, observed that he thought that the current system was ineffective because, in its denial of benefit and support, it forced failed asylum seekers underground, making removal harder. We endeavour in every instance to maintain contact through a process of contact management. Support is available under Section 4 to all for whom there is a barrier to leaving the United Kingdom. We make a careful assessment of what those barriers might be and, during that process, support is maintained.

In his passionate address to your Lordships’ House, the noble Lord, Lord Roberts, made a number of assertions suggesting that we were in breach of Articles 3 and 8 of the ECHR. In particular, my mind alighted on his assertion that we were depriving even failed asylum seekers of healthcare and treatment. I am not

11 Oct 2007 : Column 374

aware that that is the case. Failed asylum seekers continue to receive immediately necessary health treatment, and children continue to receive healthcare—as they rightly should—through the process of being supported and beyond. Of course, we carefully take account of their educational needs as well. Even in how Section 9 is applied the provision ensures that we undertake a careful risk assessment and consultation with all the relevant agencies when any withdrawal of support is considered. In those circumstances, it cannot be argued persuasively in a court that we are in breach of Articles 3 and 8 as the noble Lord asserted, although I understand the passion of his argument and why he makes it as he does.

The noble Earl, Lord Listowel, asked me to confirm that Section 9 will be used only in a handful of cases. That is obviously the case and my answer is simply yes.

The noble Lord, Lord Avebury, asked in general debate why, in the face of so much opposition, the Government continue with Section 9. As I have said on a number of occasions, there must be a mechanism to stop support for families who have no right to be here and where there is a wilful frustration of the process. I say to noble Lords that, hard though it may seem to consider that that might be the case, even the noble Lord, Lord Avebury, would confirm that there are cases where people wilfully obstruct quite proper processes—processes with many safeguards in place to protect those caught up within the system.

Lord Avebury: My Lords, most of those cases use the power of removal, which is applied to other families. Why do they not remove them?

Lord Bassam of Brighton: My Lords, of course we do.

The noble Baroness, Lady Carnegy of Lour, drew attention to subsection (6) and asked about the particular purpose of the provision. We always thought that the provision covered asylum seekers for the duration of the in-country appeal, but the Court of Appeal in one case found otherwise. We are of course appealing to the Judicial Committee of the House of Lords on that point. We therefore seek to clarify the issue by confirming the position in Clause 17(6) to cover all cases past and future. The provision is retrospective, but for the benefit of asylum seekers, in that it makes it clear that they have always been entitled to the support described in the clause.

Baroness Carnegy of Lour: My Lords, would it not be possible to draft that clause in a different way so as not to make legislation retrospective? I do not like the fact that we are doing that. We are always fighting attempts to make retrospective legislation because it is not fair on people, but let us not go into that. I did not really understand the noble Lord’s answer; I do not know if he did. I think he got the information from those who are well-informed. I shall read with interest what he said.

Lord Bassam of Brighton: My Lords, the noble Baroness has actually alighted on an important point, and I am grateful to her for drawing it out because it needs to be understood. As I had just described, the

11 Oct 2007 : Column 375

clause is drafted as it is to benefit asylum seekers and it is very much in the face of the appeal case that the Judicial Committee is shortly to hear—or is perhaps currently hearing. I am happy to interrogate the noble Baroness’s point, which she is entitled to raise, further, but we are in this case acting entirely properly and in the public interest.

The right reverend Prelate the Bishop of Winchester raised a further point about people being afraid to leave the United Kingdom, even after appeal. Decisions appealed are heard by an independent tribunal. We have a process properly put in place to ensure that the quality of decision making is compliant with the UNHCR. Support is available while people document themselves, as I have made clear throughout this discussion, and we take other reasonable steps to help them to take reasonable steps to leave the United Kingdom. That assistance and support is made available under Section 4. I have heard the criticisms of Section 4, but it is there, it works and we provide that assistance.

I have heard the arguments this afternoon. I am not convinced by the arguments in opposition to Clause 17 and how it operates. I understand the passion of the views expressed about Section 9, but it is applied only in an entirely proportionate and balanced way. We have reflected long and hard on the pilots and, as I have described to your Lordships’ House, we are perfecting guidance as to any potential use of that section in future. Having made all of those points, no doubt noble Lords will wish to express their opinion.

The Lord Bishop of Ripon and Leeds: My Lords, I thank the Minister for his characteristic care in responding to the debate and all noble Lords who have taken part.

I am grateful to the Minister for his expressions of sympathy with those who are in most need in this area of our society and of the way in which we try to provide for them. He referred to a perceived gap between need and provision, but there is a real gap between them. I was disappointed that he was unable to suggest any way of coping with the terror, fear and appalling conditions in which a number of people live in this country. They were referred to by the noble Lords, Lord Judd and Lord Roberts, and the right reverend Prelate the Bishop of Winchester. As the noble Lord, Lord Roberts, said, we need to realise how difficult it is for people to return home when their asylum claims have been dismissed. For many, that is not a practical proposition and so they are driven into a twilight world.

This is a matter of common humanity—a phrase used by the noble Lord, Lord Judd—and of the dignity of people and the care of children. I hope that at this point we will make some statement about our desire for work to be done on the Bill to provide basic support for such human beings who are in our society and in our midst.

I have heard the arguments about Section 9 and about how it is key to that concern. As Amendment No. 17 is much shorter than Amendment No. 14—and

11 Oct 2007 : Column 376

it seems that it will get to the heart of the matter in a test of the opinion of the House—with reluctance, I beg leave to withdraw Amendment No. 14.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 and 16 not moved.]

Lord Roberts of Llandudno moved Amendment No. 17:

After Clause 17, insert the following new Clause—

“Withdrawal of support: repeal

Section 9 of the Asylum and Immigration (Treatment of Claimants, etc. ) Act 2004 (c. 19) (failed asylum seekers: withdrawal of support) is repealed.”

The noble Lord said: My Lords, it is getting late and this is a massive moral question. Can we in any way justify any action which leads to destitution? In order to find out exactly what our opinion is, I beg to move the amendment and wish to call for a Division of the House.

1.23 pm

On Question, Whether the said amendment (No. 17) shall be agreed to?

Their Lordships divided: Contents, 58; Not-Contents, 106.

Division No. 1

CONTENTS
Addington, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Burnett, L.
Chidgey, L.
Chorley, L.
Clement-Jones, L.
Cotter, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.

---