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Some of the pressures at the borders of the UK may be mitigated by the unforeseen consequences of the present global economic malaise. Economic migrants—a term much and rightly used by my noble friend Lord Hurd of Westwell when he was Home Secretary back in the 1980s; I do not know whether he coined it, but he certainly popularised it at the time—may be less willing to move to better themselves, whatever the pressures that face them at home, if they perceive that the economic conditions within the United Kingdom have turned sour, thanks largely to the policies of this Government over the past 11 years, I am bound to say. If I was one of those multihanded economists—we all know them—I would doubtless go on to say that, on the other hand, poor global conditions might encourage more of the disadvantaged, the criminal and the money-launderers to travel and perhaps to try our borders. However, in these matters I have only the one hand and I stick to my prior sense of what is going on globally in economic terms.

The fact that some pressures may abate for a bit must not allow us to relax our attempts to ever backfill our permeable borders against threats old and new, including terrorist incursions. Any self-styled borders and immigration provisions—I shall briefly mention just one citizenship matter when I conclude my remarks—should pass at least three tests. The first test is whether the legislation will keep us safer. The second test is whether it will promote community cohesion between settled and newcomer; on this, I very much understand what the right reverend Prelate the Bishop of Lincoln said about the need to be welcoming. Finally, the third test is whether it will help to promote economic welfare and growth.

Looking at each of these in turn, I think that the legislation tightens to some extent matters at frontiers, which on the face of it may be helpful in public safety terms. However, can the Minister reassure me on three points? First, will the new powers to be applied at borders be in all respects identical in their effect in the six territories mentioned in the Bill, which are England, Scotland, Wales, Northern Ireland, the Isle of Man and the Channel Islands, whatever legislative route, of which we have various here—new provisions, amendments and doubtless orders—is used in relation to the Bill?

Secondly, will there be improvements in manning and surveillance to follow what seem to me welcome provisions in Clause 46 to control all persons arriving in the UK by whatever means from the Republic of Ireland, the Isle of Man and the Channel Islands? If there are no improvements in surveillance and manning, there will be no point to this provision, with its apparent defence against illegal immigration, persons subject to

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an arrest warrant, money-launderers or, indeed, potential terrorists. Without a commitment to such additional provision, the words in the Bill would be quite meaningless on the statute book. Hitherto, anyone travelling by, for example, an overnight boat from Guernsey or Jersey to our southern ports will have been struck by the usual absence of any form of obvious customs or police presence in the early morning disembarkations. There may be surveillance by remote means, but of obvious policing there seems to be none at all.

Thirdly, will the Minister assure me that he and his colleagues have taken advice to ensure that the golden and timely opportunity presented by the Bill to include any necessary emergency provisions to guard our borders against particular and peculiar terrorist threats of an extraordinary sort has not been overlooked? I declare my interest, as I should do, as a member of the advisory board—this may surprise your Lordships—of the British Olympic Association, for which I am uncompensated and unexpensed and which mercifully makes no demands on me physically or athletically. The Minister told me in a helpful Written Answer on 22 January that organisations such as the security services and the Serious Organised Crime Agency have a job to co-ordinate with the UK Border Agency in relation to the 2012 Olympics. However, do they have all the emergency powers that they need under the provisions before your Lordships? There is time for government amendments if not. However, in the context of this Bill and of preparations for 2012, I remain alarmed that, shamefully, there is no security plan yet for the Olympics—Ministers said only last week that it will be two or three months before there is a plan—because border security is a vital component of such planning.

My second test is whether the Bill helps to promote social cohesion between the settled and the incomer. Again—a point made by the right reverend Prelate the Bishop of Lincoln—there seem to be few specific provisions in the Bill.

My third test concerns the need for our borders and immigration legislation to do nothing that prevents economic well-being and growth. It strikes me as vital that all these provisions are applied in a way that does not give in to economic nationalism or protectionism, let alone the near return to 16th or 17th century mercantilism, all three of which are currently stalking the economic globe. We need orderly movement of labour as well as of capital, and we need orderly movement of talented people as much as liquidity of capital. We need openness, because ultimately that is important not only in trade but to the people whom we need here, whether they are economic migrants, to whom I have already referred, or talented as well as needy refugees—the sort of people to whom the noble Lord, Lord Avebury, referred in his introductory remarks. These people may help us to power recovery from our present economic discontents after the past 11 years.

I end, mindful of wanting to get the noble and learned Lord, Lord Goldsmith, to his plane, on one citizenship point. I remind the Minister that Protocol 4 to the European Convention on Human Rights and Article 12 of the International Covenant on Civil and Political Rights both guarantee the right of nationals

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to enter their country of nationality. The Minister has stated on the face of the Bill that in his view the legislation is compatible with convention rights. Yet, despite our being a signatory to these and other human rights instruments, British nationals, as defined, who are not full British citizens do not currently have the right to enter the UK, unlike under EU laws that already allow some millions of EU citizens—I happen to welcome them—to live and work here. I woke one morning to hear the Minister on the media describe himself self-deprecatingly as a simple sailor. In that spirit, I should like to ask him whether he can give a very simple answer to my question, “Why is that?”, in a way that a simple Peer such as myself might be able to understand.

5.22 pm

Lord Thomas of Gresford: My Lords, I was much struck by the invocation of the right reverend Prelate the Bishop of Lincoln of a spirit of hospitality rather than hostility when he addressed his remarks to your Lordships. As the noble Lord, Lord Patten, pointed out a moment ago, over the centuries we have gained very greatly from immigration to this country, and over the centuries we have a proud record of granting safe refuge to those who flee persecution. Refugees, too, have enriched the United Kingdom’s culture and wealth immeasurably. We differentiate between asylum and migration but only because the one is essentially a human rights issue and the other essentially a social, economic and political issue.

One major problem in this area is that the original decision-making in asylum cases is very poor. The Home Office is slow at making decisions; it loses track of people; and, while nine out of 10 applications are initially refused, 20 per cent of the cases that go to appeal are successful and 40 per cent of refugees from certain countries succeed in their appeals. That indicates a very high error rate in initial decisions and poor training of caseworkers and interview staff. There may be political pressures on caseworkers to refuse applications, which amounts to what refugee support organisations have called a “culture of rejection”. The Refugee Legal Centre, which is one of those organisations, made a series of freedom of information requests and discovered that publicly funded appeals were 22 per cent, but when people were not represented on their judicial reviews the success rate was as low as 3 per cent.

That indicates that when there is proper legal representation and proper submissions are made, applications for judicial review can be successful. I refer to judicial review because I am confining myself to Clause 50. As the noble and learned Lord, Lord Lloyd, said when referring to the letter from the Lord Chief Justice, the judiciary has a desire to reduce the pressure on judicial time and the courts. On the other hand the Home Office appears to have a desire to get rid of as many people as quickly as it can, and decisions are taken in highly sensitive cases accordingly.

Asylum cases in particular involve life and death decisions, but all these immigration appeals, as the noble Lord, Lord Avebury, said, are fraught with

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human rights implications. Whereas the transfer of judicial review applications to the Upper Tribunal may be carried out with proper safeguards, such safeguards are not contained in this Bill. The High Court judges are used to dealing not merely with the areas of asylum and immigration but with constitutional and administrative law and have a much broader way of looking at things. The Abdi case recently against the Home Secretary showed that the Home Office had been operating a secret and illegal system of dealing with asylum seekers. Such matters make it important that cases should be dealt with at an appropriate level.

The history of judicial review in this area stretches over a number of years. In the Immigration and Asylum Bill of 2003, your Lordships will recall that the Government proposed to abolish judicial review in immigration cases altogether. That was resoundingly defeated in this House. The noble and learned Lord, Lord Lloyd, referred to the Tribunals, Courts and Enforcement Act 2007, in which he played an important part when it was initially proposed that the Upper Tribunal should hear judicial review cases. As a result of his efforts, an undertaking was given by the noble Baroness, Lady Ashton, on behalf of the Government that these types of cases would be excluded from being transferred for hearing in the Upper Tribunal until there had been some experience of how that tribunal worked.

The Upper Tribunal has been in place for only a month or two—I think it started in October or November of last year—and there is no experience as yet of how it works. Nor is it clear which judges will preside at hearings of application review that are made to them. The noble and learned Lord, Lord Lloyd, referred to the fact that, through Section 19(7), he had ensured that an application for judicial review could not be heard if it called into question any decision that was made under legislation dealing with immigration, British nationality, and so on. Why then, so soon after the Tribunals, Courts and Enforcement Act was passed, do we now have these proposals before us?

It seems that the matter has been transferred from the Ministry of Justice to the Home Office. One would have thought that the appropriate government department to deal with where cases of judicial review should be heard and for laying down the rules on that, or controlling how the rules are made, should be the Ministry of Justice. That has not happened. For some reason, the Home Office has stepped in. With the recently created UK Border Agency, it published a consultation document last August that set out the proposals now before us. That document was prepared by a working party of the judiciary and Home Office officials, but there was not a single representative from the agencies who assist asylum seekers and refugees. As consultees, they have submitted their views, but the Bill has been brought forward before any response to their views has been published by the Home Office.

Clause 50 removes the limitation in an Act of Parliament that is only 18 months or so old, and the rules under which applications are to be heard in the Upper Tribunal are to be created not by the Tribunal Procedure Committee, which will govern all other rules made about procedures in the Upper Tribunal

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and is an independently constituted body, but by the Lord Chancellor, who appears to have devolved his powers to the Home Office. So it is possible that judicial review will be brought to the Upper Tribunal under rules made by one party to the proceedings. That is completely inappropriate. I should be obliged if in his reply the Minister could tell us why, if the proposals pass and judicial review proceedings are to be held in the Upper Tribunal, the procedure rules are not to be made by the committee that makes the rules for everyone else. Why has the power effectively been retained by the Home Office, which will be a party in almost all the proceedings brought there?

Many issues arise as a result of the Government proposing Clause 50 before their consultation document has been properly considered and reviewed and in such a hurry, with such speed, after the Act passed only in 2007. We will be examining Clause 50 with considerable particularity.

5.33 pm

The Earl of Sandwich: My Lords, there are good things in the Bill, there are bad things and there are things that have been left out. It is not the Bill that we were expecting, but we continue to look forward to the comprehensive simplification Bill, which has long been promised.

First, through the Minister, I thank the UK Border Agency for its co-operation with the Independent Asylum Commission, of which my noble friends Lord Ramsbotham, Lady Mar and I were members, last year. The Minister will recall that our findings not only drew on evidence from the UKBA but were put to it before we listed our final recommendations so that government responses could be clearly seen alongside our proposals. That did not necessarily mean that the policy could often be reconciled with our findings, and there is still work to be done through our parent body, the Citizen Organising Foundation, but I recognise that under some headings, the Government have been listening and clearly taken up positive suggestions from NGOs and agencies—the Solihull model was one of them and another was the improvement of initial decisions and the new role of caseworkers under the new asylum model. In other cases, the work of the commission has helped to improve public understanding of the process.

In our third report, Deserving Dignity, the UKBA admitted on page 30 that, particularly during 2005-06,

“unacceptable delays occurred in the provision of support under section 4 of the Immigration and Asylum Act 1999”.

It is extremely important for asylum seekers and others that the Government admit these past mistakes and the possibility that other mistakes are still being made, which must be the case. I shall talk later about our recommendations on Section 4 and destitution.

Before I talk about the Bill, I shall say a brief word about removals. I also declare an interest as a patron of the Haslar Visitors Group in Portsmouth. The Minister recently replied to a Written Question from me about the cost of removing Kurdish asylum seekers to Iraq twice in one week last December, and I have just received a letter from Phil Woolas, the Minister in the other place, explaining that this double removal

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occurred because of fog at Arbil airport. He denies that there were any serious examples of self-harm. I accept that there have to be forced removals, but this story is indicative of the rough and ready nature of many of these subcontracted removals, and there is a lot of evidence of the harm caused to asylum seekers while being escorted during their detention and removal. Here, I commend the latest report of the London Detainee Support Group. Will the Minister assure us that more care will be taken with these escorts and removals?

Will the Minister say whether the five-year qualifying period in Part 2, on citizenship, has been designed for illegal immigrants or for genuine refugees? The UNHCR says that it would be quite inappropriate to require recognised refugees, including those who have been resettled under the Gateway Protection Programme, to spend more than five years here before being able to apply for naturalisation.

Will the Minister comment on the special case of resettled refugees and whether community activity is really appropriate for certain groups of refugees who may have suffered torture or other severe forms of persecution? I share the concern of the noble Baroness, Lady Hanham, the right reverend Prelate the Bishop of Lincoln, and the noble Lord, Lord Judd, who could not be here today, that voluntary activity should never be allowed to become a condition of asylum, less still a form of coercion in the course of earning citizenship. I listened carefully to the noble and learned Lord, Lord Goldsmith, who said that asylum seekers should obey what is expected by their fellow citizens. That is pause for thought. As the noble Lord, Lord Avebury, asked, would it not be more consistent with the refugee convention to count the years that asylum seekers have already spent in the UK—in other words, the time since they first claimed asylum? Several of us will support amendments on this to Clause 38(5) and Clause 37(11).

I am also very concerned about the restrictions in Clause 47 on some students: for example, those who may wish to change their institution. I will certainly support amendments to this clause, and I expect that we will hear from the noble Baroness, Lady Warwick, on this in a minute.

In Clause 50, Her Majesty’s Government are clearly doubling back on their earlier decision not to transfer judicial reviews to the Upper Tribunal. They seem to have ignored the consultation process, as has been said, and now want to limit oversight by the Court of Appeal and yet avoid parliamentary scrutiny. I certainly agree with the noble Lord, Lord Thomas, that investing in the quality of Home Office decision-making, and therefore in better representation in the early stages, would be a far more desirable course of action.

On children, the Government have responded positively, but I agree with the Refugee Children’s Consortium that the best interests of the child must be a primary consideration in all immigration legislation and should be expressed as such in Clause 51.

Now for what is left out. One thing that the Bill does not address is the acute situation of destitute, so-called failed, asylum seekers, many of whom have been in the UK for years, barely surviving on Section 4

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support. Noble Lords may remember that the noble Baroness, Lady Warsi, and the Joseph Rowntree Charitable Trust did valuable work on this in West Yorkshire in 2007. Of course the Government deny that there is destitution. But if a destitute person is one who cannot meet essential living needs, that describes many people now on Section 4 provision: vouchers of £35 a week—£5 a day, my Lords—no access to secondary healthcare beyond accident and emergency; HIV screening but no treatment; no medicines, even paracetamol; and no clothing, nor enough to cover the cost of washing clothes.

As the noble Lord, Lord Kirkwood, said during the debate tabled by the noble Lord, Lord Roberts of Llandudno, last week, Section 4 is not working. I think the Government know that. It was meant to be temporary, but some families have to live on Section 4 provision for long periods, with consequences for their health, particularly that of children. It is expensive because of accommodation, administration costs and the costs of review.

An alternative would be to remove Section 4 and allow others besides families, as at present, to stay on Section 95, saving the costs of assessing the voucher scheme and accommodation, which is not necessary for those who already have family and friends to stay with. I therefore ask the Government whether they will consider retaining all asylum seekers on Section 95 until they are removed, they voluntarily return to their country of origin, or they are given some form of status in the UK.

On the issue of Zimbabweans in this country, I refer the Minister to the Prime Minister’s promise to Members of Parliament last July that,

“we are actively looking at what we can do to support ... Zimbabweans who are failed asylum seekers ... and we will report back to the House in due course”.—[Official Report, Commons, 10/7/08; col. 1556.]

We have not yet heard back from the Prime Minister on this proposal.

I was recently among those who called at No. 10 to hand over the CVs of 500 Zimbabweans who are ready to work now and pay taxes. Last week I met one of them, Luka Phiri, a young Zimbabwean trade unionist who was tortured and forced to flee because he was using a false Malawian passport. The noble Lord, Lord Joffe, will describe the case in more detail. I have heard of other cases of Zimbabweans suspected of coming from other countries because their Zimbabwean passport was out of date.

Another one, Joshua, from Bulawayo, is an MDC activist who was detained and tortured and applied for asylum in 2003. He lost his appeal, was cut off and became destitute two years ago. He has been living on a cousin’s charity ever since. Why should he be so deprived?

Chipo, an accountant, aged 32, had to leave two young children behind because of threats from ZANU-PF. Her asylum application was turned down and she has been destitute for many years. She says, “I would have stayed in Zimbabwe and died in Zimbabwe rather than

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waste my life here. For people in the first world to treat people who are fleeing persecution, to be treated like this, that’s very harsh”.

In our report Safe Return we recommended that refused asylum seekers who cannot be returned to their country after six months, who are effectively in a limbo through no fault of their own, should be eligible for a time-limited, revocable permit to work in the UK. For obvious reasons, there is enormous public sympathy for this group of people. At the very least, will the Minister confirm that the UKBA is looking at the issue very seriously, that the Prime Minister’s promise is going to be kept and that an announcement will be made very soon?

5.44 pm

Baroness Warwick of Undercliffe: My Lords, I am pleased to be able to speak at Second Reading of the Borders, Citizenship and Immigration Bill. As many noble Lords will know, higher education institutions will be the biggest users of the new points-based system which this Bill enables and universities take their responsibilities in this area very seriously. Indeed, the Minister will know from his experience as chancellor of Southampton Solent University how important international students are to this country in terms of cultural exchange and the diversity of our institutions.

Universities UK, in which I must declare my interest as chief executive, has been very appreciative of the efforts of the Minister in this House and Phil Woolas, the immigration Minister in the other place, for their continuing dialogue over international student issues and immigration. Universities UK has valued its extensive engagement with the Home Office throughout this process. We have certainly learnt a great deal about the pressures and complexities of the immigration system.

I should like to focus my remarks on Clause 47 and make some wider points about the new immigration system and its impact on higher education. Higher education institutions support the new provision that student visas will be linked to particular institutions. I understand from briefings I have received that other organisations have concerns about this, but for the universities it will enable institutions to have greater predictability about the international students they can expect to join them.

Currently, students may change their minds after obtaining their visa and decide to study at another institution, rather than the one whose documentation they used to obtain their visa. The new system will ask students to decide on a particular institution at an earlier stage; that is, when they make their visa application. That institution will appear on their visa or in future on their ID card. That will bring the student route in line with the employment route, as employees will be linked to employers in the visa. I hope that the Minister will note that I do not support the provisions of this clause being applied retrospectively to any students already studying in the UK under the current immigration arrangements.

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