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Statutory guidance under which local authorities must act when performing these specific duties was published in 2004. It sets out in detail our expectations of how local authorities should provide effective advocacy services. The guidance makes clear that we expect local authorities to have arrangements for providing advocacy services that are separate from their own management and delivery functions, and that they ensure that advocates are not part of the service in respect of which any complaint or representation is being made. Local authorities are free to develop their own models for advocacy services, and many contract out this service to the voluntary sector. The noble Earl, Lord Listowel, for example, mentioned Voice, which is a small charity providing advocacy for young people in secure settings. He and the noble Baroness, Lady Howarth, are patrons of Voice, and it does excellent work in this field. It is one of a number of such organisations.
Furthermore, as I said in Grand Committee, we see the role of the independent reviewing officer as central to ensuring that the voice of the child is heard. I set out at length in Grand Committee how we are building on this role, both through the Bill and the wider Care Matters reforms, to ensure that each IRO can fulfil their role with credibility.
The noble Earl asked two specific questions on IROs. The reviews are frequent: they take place after the first 28 days, then after three months and every six months thereafter. On how the IRO will get to know the child with whom they are dealing, they will have a duty to meet the child before every review and will be a named person to ensure continuity. The IRO will support childrens active engagement with the care planning process, ensuring that there is greater scrutiny of the care plan for each child in care, and ensuring that children and young people are informed of their rights if they consider themselves to have been treated unfairly.
However, the provisions in this area are not restricted to the IRO. I have already mentioned independent advocacy services. Equally important on educational issues is the role of the designated teacher in the childs school, who will have a part to play in ensuring that the child is able to participate fully in decisions that affect him or herin particular, those about their personal education plan. For many children, their class teacher or other member of staff, such as a learning mentor, will also be able to provide support and assistance on a wide range of everyday matters. Other children may choose to turn to their carer, their independent visitor or a relative for advice and help in addressing issues of concern to them. All of these people have different skills that the child can access when they have a need to do so.
However, as I say, we recognise the valuable role that advocates can play, and expect, through statutory guidance, local authorities to review their advocacy services annually to ensure that compliance with national standards is maintained. This includes seeking regular feedback from children about their experience of the service.
IROs ... have a role when they meet children to inform them that they have a right to make complaints to the local authority, and of the local authoritys responsibility to provide them with an independent Advocate if they wish.
In addition, it is part of the IROs functions under the regulations to assist the child in obtaining legal advice if the child wishes to take proceedings under the 1989 Act. The IRO of course has the power to refer the childs case to CAFCASS if he has serious concerns that the childs rights are being infringed. The guidance outlines the relationship between the IRO, the designated complaints officer and advocate, and states:
The process of advocacy and complaints can run alongside the IROs actions in resolving an issue, and it will be good practice for the IRO, the Designated Complaints Officer and the Advocate to agree ... their respective roles
and how they will communicate with each other. We are updating the guidance to IROs, and we will reinforce the importance of IROs informing children of their right to an advocate to make representations about the service they receive. I hope that that will go some way further to meeting the concerns of the noble Baroness and other noble Lords.
Finally, Amendment No. 38 seeks to ensure that children and young people receiving or seeking services from a childrens home or a fostering agency have access to independent advocacy services and that the arrangements for such services are publicised by placing the duty to do so directly on fostering service providers and children's homes. In practice, the vast majority of children placed in childrens homes and all children who receive services from providers of fostering services are looked after, so they already benefit from the statutory framework that I have outlined. The exceptions are those children who are placed in residential special schools by education authorities and children placed in childrens homes by health bodies. These latter children will benefit from the new statutory visiting requirement introduced by Clause 17 for their local authorities to arrange for children to be visited throughout their placement. As part of the consideration and assessment of their needs we will expect the local authority representative to consider whether access to advocacy would be beneficial to the child and appropriately to ensure that he and his parents are aware of his entitlement to advocacy support in making representations about the services that he receives.
Baroness Walmsley: My Lords, I thank the Minister and other noble Lords who have taken part in this debate. I have been given some reassurance by the Minister, but I am not entirely happy with what he said because in talking about Amendment No. 22 and the duty of the IRO to give the child information about advocacy, he again talked about advocacy in relation to complaints only. The only thing that gave me some comfort was when he was talking about multi-disciplinary working: the advocate working with the social worker and the IRO. If that works well, it could be that the child might receive some advocacy before he found it necessary to go into the formal complaints process, which is what we are trying to pre-empt by providing greater access to advocacy. It can be much more effective to get things sorted out much earlier than when it is necessary to go through the formal complaints process.
As I understand it, the existing duty is to provide advocacy predominantly in the situation where the child is going through the complaints process, although I was slightly encouraged by what the Minister said about it not being totally restricted to the complaints process. Given that there is not enough advocacy around, I strongly suspect that the vast majority of advocacy interactions with children will be in relation to complaints.
I understand the difficulty the noble Baroness, Lady Morris of Bolton, has about the spending commitment we might be making if we pass this amendment because it is difficult to know how much uptake there would be and what the corresponding benefit would be in savings that might come from better decision-making on behalf of the children. Will the Minister consider commissioning some research taking a particular local authority or group of local authorities where children would be provided with advocacy far ahead of the complaints stage to see what that might produce in savings? The noble Earl, Lord Listowel, Voice and I firmly believe that there would be better decision-making which would save the great cost when placements break down, which always involves the local authority in greater costs. If we had better decision-making, we would have fewer placements breaking down and there would be savings. It would be helpful to have serious research comparing the cost of providing that additional advocacy, finding out how much additional advocacy the young people would request and offsetting that against the cost of placements breaking down because of the lack of advocacy. That would give us some idea of what this sort of provision could cost nationally, if it was rolled out. I understand the difficulty of assessing that economic figure, but I am sure it is not beyond the capability of some clever researchers to give us a reasonable estimate.
We are hearing from children and from organisations such as Voice how positive the experience can be, so I am a little disappointed that the Minister is still talking about advocacy and access to it in relation to the complaints process only. However, there were two or three little chinks of light in what he had to say, so I am slightly reassured, but I cannot promise not to come back to him at some stage with further requests for advocacy. Will he write to me and consider undertaking some serious research on the matter? In the mean time, I beg leave to withdraw the amendment.
The noble Lord said: My Lords, we oppose this statement on a number of counts, but first and foremost because there has been no consultation with any of the stakeholders. The Immigration Law Practitioners' Association, the Immigration Advisory Service, the Transport and General Workers' Union, the Refugee Children's Consortium and Universities
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HC321 brings into force the tier 1 component of the points-based scheme announced by the Home Office in March 2006, and we fully endorse the criticisms made by the JCHR of the tighter conditions for the grant of further leave to remain, which apply not only to those coming here under the new scheme but to highly skilled migrants who came here under the previous arrangements. Those people came here to settle down and they bought houses and placed their children in schools with the legitimate expectation that if they satisfied the conditions specified, they would qualify for settlement at the end of four years. Now, the carpet is being pulled from under their feet, and the retrospective imposition of additional conditions is seen by the JCHR as a fundamental breach of their right to family life. This matter is being tested in the courts as we speak, and it was wrong of the Government to ask your Lordships to approve these changes until that matter had been decided.
However, our concerns also extend to the general changes that are being made here in dealing with false documents and applicants who previously breached immigration laws. It is to be mandatory to refuse an application for entry clearance or for leave to enter or remain where false representations have been made or false documents submitted whether or not they are material to the application and whether or not they are to the applicant's knowledge, and the same applies to material facts not disclosed.
On Third Reading of the UK Borders Bill, we moved an amendment to allow mistakes or misunderstandings in an application to be corrected. The noble Lord, Lord Bassam, said that under this system appeals,
Thus a clerical error or the wrong document submitted by mistake will lead to mandatory refusal, even where there was no intention to deceive. The applicant can then be prohibited from returning to the UK for one, five or 10 years.
However, the noble Lord, Lord Bassam, confirmed explicitly in an earlier debate that a person whose application for an extension of stay is rejected because of a clerical error or a wrong document would be entitled to have a corrected application considered if it was lodged within 28 days of the expiry of his existing leave. In response to an amendment, the noble Lord said:
A 28-day grace period will be included in the Immigration Rules as part of the tier 1 process in March 2008 ... This will allow those who send their applications within 28 days of their leave expiring to continue with their application. That is a very
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He repeated that assurance later, making it crystal clear that the 28-day period would allow a person whose application had been rejected because of an inadvertent clerical error or the submission of the wrong document to put in a new application within 28 days. When I put that to him, he replied:
However, there is no discretion in the rules on false documentation, even for asylum applicants who customarily have to produce travel documents to which they were not lawfully entitled, because obviously a Government who are persecuting them do not want them to escape and tell their story in a free country. Will the Minister explain how any appeal can succeed when the law makes no provision for exceptions in those cases?
Paragraph 47 imposes catastrophic penalties on an applicant who commits breaches of the immigration laws, including minor infractions of the conditions attached to his leave. I expect that my noble friend Lord Roberts will deal with the retrospectivity of these penalties, which is particularly abhorrent. Apart from that, a mandatory ban on entry for a fixed time in a given set of circumstances is undesirable, and paragraph 320 of the rules already provides adequate powers to deal with persons who had previously obtained leave to enter by deception, or who failed to observe a time limit or any other conditions attached to a previous stay.
Paragraph 320 provides that such persons are normally to be refused, but allows for discretion so that the punishment can fit the crime. Thus an inadvertent or accidental breach could be overlooked, while deliberate breaches can be treated with appropriate severity. Making exclusion mandatory is to ignore the gravity of the breach so that, for example, a missed attendance for reporting, for whatever reason, or a short delay in advising the BIA of a change of address when a residence condition has been imposed, would mean a one-year ban on re-entry if the person leaves the UK voluntarily at his own expense; a five-year ban if he leaves voluntarily at the expense of the taxpayer; and a 10-year ban if he is deported at the expense of the taxpayer. The European Council is currently looking at a draft directive on returns of illegal third-country nationals and has agreed with the Parliament that the length of the re-entry ban should be no more than five years, except where there is a threat to public policy or to security. There is no mention in that draft of the ability to pay.
When your Lordships considered Clause 16 of the UK Borders Bill, which allows for the imposition of residence and reporting conditions on any person given limited leave to remain, we had no idea whatever that breaches were to be dealt with in this arbitrary and disproportionate manner. Among those who are to be made subject to the conditions are child asylum seekers, for whom the Refugee Childrens Consortium has expressed great concern. The degree of responsibility to be laid on a child, whatever her age, for observing conditions ought not to be equal to that of an adult, still less where the child has been trafficked or smuggled into the UK. However, the same procrustean penalties are to be imposed on children as on adults, and in practice they are more likely to suffer the longer ban of five years because they will be less able to pay the fare back to their country of origin.
Last week, Amnesty International and Southall Black Sisters published a report on gender-based violence against women with limited leave to remain. The men who rape, mutilate and starve these women also threaten them with penalties under the immigration rules. In the particular case of domestic workers, on whom conditions are being imposed that prohibit a change of employment, the perpetrators are being handed an additional weapon. In the Governments response to the EU Select Committee report on illegal migrants, they said about a proposed EU-wide re-entry ban that,
Is that not what we are being asked to agree to now? Children, abused women, domestic workers and other vulnerable people without means are going to suffer the five-year ban. There is a threat that students may also be added to the categories of those with limited leave to which these penalties will apply. Even worse, as the thousand Zimbabweans now being threatened with deportation will be subject to a 10-year ban, if any of them is the victim of fresh persecution when they arrive back home, they will be unable to submit a new application. Indeed, without an exception to the ban for any person who establishes a claim to have been persecuted for a convention reason, this statement could well be unlawful.
The statement is ill considered, arbitrary, inflexible, unnecessary, out of line with the rest of Europe and contrary to recent government policy. It could have serious repercussions on our commitment to ratify the Council of Europe convention on human trafficking and the UN Convention on the Rights of the Child. The sensible thing to do now is to wait until the reviews on the steps that we need to take for those purposes have been completed, so that the carve-outs mentioned by the Minister in his replies to questions from the JCHR can be incorporated into the rules. That would give time for the process of consultation that has been so grievously side-stepped so far. It is not too late for the Minister to say now that he will not proceed with the changes but will further reflect
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Baroness Warwick of Undercliffe: My Lords, I wish to speak briefly in this debate on the changes in the Immigration Rules. Statement HC321, which the noble Lord, Lord Avebury, wishes to disapprove, will introduce changes to the immigration rules that could cause problems for international students coming to higher education institutions in the UK. I declare my interest as chief executive of Universities UK.
Although I fully understand the Governments need to crack down on illegal immigration, I have concerns that international students and staff, as highly skilled migrants whom we want to come to the UK and who contribute to the high quality of our higher education system, could be caught up in the unintended consequences of this measure. The general principle behind the position of the noble Lord, Lord Avebury, is that the changes proposed in HC321 would retrospectively affect people in unfortunate ways, condemn people for errors made by others or for very minor errors and place those who overstayed for brief periods in what could be very difficult positions.
HC321 requires that an application for entry to the UK as a student must be refused if the applicant has at some point breached UK immigration law. This could include a period of overstaying in the past. Depending on how the person left the UK previously, this effective ban on his or her re-entry might last for up to 10 years from the time they left. As I understand it, any student application under these proposed rules must be refused if it contains any statement or document that is false, whether or not the individual knew of the falsity and whether or not it is relevant to the application. It is not clear from the rules as formulated whether false has the meaning of mere inaccuracy, which is one ordinary dictionary meaning, or whether a deliberate fraud must be attempted.
Universities UK has recent experience of the Home Office applying the immigration rules in unfortunate ways. Last autumn, we became aware that, from 1 September 2007, Border and Immigration Agency caseworkers were operating a policy of automatically refusing all applications from students who had overstayed. This was in contrast to previous practice and appeared to contradict information we had been given in the summer of 2007 by the BIA that students who overstayed for more than 28 days would be automatically refused, but that applications from students who had overstayed fewer than 28 days would be handled with discretion. There was also no communication by the BIA to Universities UK about a change in that policy.
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