§ . In the determination of applications for asylum by children under the age of 18, the Secretary of State shall—
- (a) ensure that a child is fully informed, in a manner appropriate to his age, of the nature of an asylum application and is provided with sufficient opportunity to describe his reasons for the application;
- (b) ensure that an independent assessment is made of the child's ability to articulate a 'well-founded fear of persecution'; and that such assessment should be undertaken by a childcare specialist with knowledge of refugee matters;
- (c) ensure that full consideration is given to objective factors including
- (i) the circumstances of the child's parents and other family members in the country of origin or elsewhere,
- (ii) the characteristics of the child's ethnic, national, religious or other social group in the country of origin,
- (iii) the general conditions prevailing in the country of origin, and
- (iv) specific forms of persecution directed at children in the country of origin;
- (d) apply liberally in the case of a child the general principle that the benefit of the doubt should be given to an asylum applicant.").
§ The noble Lord said: My Lords, Amendment No. 5 is complementary to Amendment No. 3, which was moved by the noble and learned Lord, Lord Brightman, and agreed to by such a substantial and encouraging majority. Had that amendment not been passed, this amendment would have been rather a floating kidney and I do not quite know how it could have operated. Since Amendment No. 3 was passed, Amendment No. 5 becomes extremely relevant.
§ The amendment imposes duties on the Home Secretary to ensure that the work done by the advisers is carried out properly and efficiently. It dots the 'i's and crosses the Ts. In answer to a point made in debate, the noble Earl stated that he wished to bolster local authorities. The amendment bolsters the Home Secretary and those who do the work in carrying out exactly what is provided for. The provisions that the amendment sets forth are perfectly obvious factors which unaccompanied children arriving in this country as refugees will require.
§ The terms of the amendment are self evident and require little explanation from me. It is obviously necessary that a child shall be properly informed in a manner appropriate to his age. It is obvious that a proper and professional assessment should be made of the child's needs, and the capacity to articulate those needs. It is equally obvious that the items set forth in paragraph (c) should be dealt with. I do not believe that I need to spend your Lordships' time explaining why such consideration should be given. Under the earlier amendment, we now have, in the form of advisers, a means to ensure that such consideration is given, and that the child's needs are properly answered. I beg to move.
My Lords, I understand the concern that the asylum procedures should properly protect the interests of children. Children—especially unaccompanied children—are vulnerable and have particular needs to which we have to respond with sensitivity. I should like to reassure the noble Lord, Lord Bonham-Carter, again that the fact that the Bill does not make specific provision for children should certainly not be taken as any indication that the procedures will not recognise the special needs of children.
I must repeat that I do not think that any new legislative provision is necessary. I have accepted the need to make our procedures clear. I undertook during the Committee stage to look at whether it would be possible to include some additional material in the Immigration Rules on the matter. Work on it is in hand and I shall ensure that draft paragraphs for the rules will be made available in advance of Third Reading.
The present amendment deals with procedural matters and, as such, it would not be appropriate to include it in the primary legislation. The amendment is clearly inspired by the section on unaccompanied minors in the handbook of the United Nations High Commissioner for Refugees. I made clear in earlier debates that the handbook is not binding. We value it 573 as a source of guidance for our case workers but we do not think that it would be right to legislate to give it any particular authoritative status. That reinforces my reluctance to accept the noble Lord's amendment. However, I shall explain our attitude to each of the points which it contains.
First, I fully endorse the principle behind paragraph (a) and I think that it should—and indeed does—apply to all asylum seekers and not just to children. Applicants will certainly be informed of the nature of the process on which they have embarked and will have every opportunity to state their case.
I am less persuaded by paragraph (b). I believe that it is a matter of common sense that the younger a child is the less one can expect him to give a comprehensive and reasoned account of why he is likely to be persecuted. Inevitably, it is necessary to look for information from other sources. The UNHCR handbook puts some stress on whether a child is capable of having a well-founded fear of persecution. Our approach is to look more at the objective likelihood of persecution. If we consider there to be a real threat, we would never dismiss an application simply because a child had not properly comprehended it or seemed insufficiently frightened or had inadequately articulated it.
I find paragraph (c) a statement of the obvious. If the word "person" were substituted for "child" it would be valid for the consideration of any asylum claim. For those reasons, I believe that it would be inappropriate to insert the amendment into the Bill.
§ Lord Bonham-Carter
My Lords, I am grateful to the noble Earl for his answer to the points I raised. Of course, it is true that the noble Earl himself recognises the need for the stipulations and for what is set forth in the amendment. The point is that his successor may not. We have had this conversation before: undertakings by one Minister on what he intends to do do not carry much conviction when other Ministers who may succeed him do not share his good will or understanding.
I agree with the noble Earl in all these matters. Oddly enough, the subject came up in the statement which he made just before we returned to the Bill. It is crucial that those involved are properly trained. It seems to me that one attribute which immigration officers need is to be trained in interviewing children, even if now there will be an adviser present.
I regard the amendment as complementary to the one moved by the noble and learned Lord, Lord Brightman. I believe that his amendment is not enough. It is important that it should be bolstered and supported by the terms of this amendment. I feel, therefore, that I must take the opinion of the House.
§ 5.34 p.m.
§ On Question, Whether the said amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents, 108; Not-Contents, 138.575
|Division No. 2|
|Ackner, L.||Kennet, L.|
|Acton, L.||Kilbracken, L.|
|Airedale, L.||Kirkhill, L.|
|Archer of Sandwell, L.||Lawrence, L.|
|Aylestone, L.||Longford, E.|
|Barnett, L.||Lovell-Davis, L.|
|Beaumont of Whitley, L.||McCarthy, L.|
|Beloff, L.||McIntosh of Haringey, L.|
|Blackstone, B.||Mallalieu, B.|
|Bonham-Carter, L.||Mayhew, L.|
|Boston of Faversham, L.||Milner of Leeds, L.|
|Bottomley, L.||Mishcon, L.|
|Brightman, L.||Molloy, L.|
|Broadbridge, L.||Morris of Castle Morris, L.|
|Brooks of Tremorfa, L.||Mulley, L.|
|Callaghan of Cardiff, L.||Murray of Epping Forest, L.|
|Campbell of Eskan, L.||Nicol, B.|
|Carmichael of Kelvingrove, L.||Ogmore, L.|
|Carter, L.||Palmer, L.|
|Cledwyn of Penrhos, L.||Parry, L.|
|Clinton-Davis, L.||Pitt of Hampstead, L.|
|Cobbold, L.||Plant of Highfield, L.|
|Craigavon, V.||Prys-Davies, L.|
|Darcy (de Knayth), B.||Radnor, E.|
|Dean of Beswick, L.||Rea, L.|
|Donoughue, L.||Richard, L.|
|Dormand of Easington, L.||Ripon, Bp.|
|Eatwell, L.||Ritchie of Dundee, L.|
|Falkender, B.||Robson of Kiddington, B.|
|Falkland, V.||Rochester, L.|
|Foot, L.||Russell, E.|
|Gallacher, L.||Seear, B.|
|Galpern, L.||Sefton of Garston, L.|
|Geraint, L.||Serota, B.|
|Gladwyn, L.||Shaughnessy, L.|
|Glenamara, L.||Shepherd, L.|
|Graham of Edmonton, L. [Teller.]||Simon of Glaisdale, L.|
|Slynn of Hadley, L.|
|Grey, E.||Stedman, B.|
|Hamwee, B.||Stoddart of Swindon, L.|
|Hanworth, V.||Swinfen, L.|
|Harris of Greenwich, L.||Taylor of Blackburn, L.|
|Healey, L.||Taylor of Gryfe, L.|
|Hilton of Eggardon, B.||Thomson of Monifieth, L.|
|Hollis of Heigham, B.||Tordoff, L. [Teller.]|
|Holme of Cheltenham, L.||Turner of Camden, B.|
|Houghton of Sowerby, L.||Underhill, L.|
|Howell, L.||Wharton, B.|
|Hughes, L.||White, B.|
|Hylton, L.||Wigoder, L.|
|Jay, L.||Wilberforce, L.|
|Jay of Paddington, B.||Williams of Elvel, L.|
|Jeger, B.||Williams of Mostyn, L.|
|John-Mackie, L.||Wilson of Rievaulx, L.|
|Judd, L.||Woolf, L.|
|Abercorn, D.||Brookeborough, V.|
|Ailesbury, M.||Brookes, L.|
|Alexander of Tunis, E.||Brougham and Vaux, L.|
|Archer of Weston-Super-Mare, L.||Butterworth, L.|
|Buxton of Alsa, L.|
|Arran, E.||Cadman, L.|
|Astor, V.||Caithness, E.|
|Auckland, L.||Campbell of Alloway, L.|
|Banbury of Southam, L.||Campbell of Croy, L.|
|Barber, L.||Carnegy of Lour, B.|
|Belhaven and Stenton, L.||Chilver, L.|
|Bessborough, E.||Clanwilliam, E.|
|Blatch, B.||Clark of Kempston, L|
|Blyth, L.||Colville of Culross, V.|
|Boardman, L.||Colwyn, L.|
|Borthwick, L.||Constantine of Stanmore, L.|
|Boyd-Carpenter, L.||Craigmyle, L.|
|Braine of Wheatley, L.||Cranborne, V.|
|Bridgeman, V.||Crickhowell, L.|
|Brigstocke, B.||Cumberlege, B.|
|Davidson, V.||Mountevans, L.|
|Denton of Wakefield, B.||Mowbray and Stourton, L.|
|Dundonald, E.||Moyne, L.|
|Eccles of Moulton, B.||Munster, E.|
|Eden of Winton, L.||Nelson, E.|
|Elibank, L.||Norrie, L.|
|Elles, B.||Onslow, E.|
|Ferrers, E.||Oppenheim-Barnes, B.|
|Finsberg, L.||Oxfuird, V.|
|Flather, B.||Park of Monmouth, B.|
|Fraser of Carmyllie, L.||Pender, L.|
|Fraser of Kilmorack, L.||Perry of Southwark, B.|
|Gainsborough, E.||Peyton of Yeovil, L.|
|Gilmour of Craigmillar, L.||Pike, B.|
|Goold, L.||Plan of Writtle, B.|
|Goschen, V.||Plumb, L.|
|Greenway, L.||Plummer of St. Marylebone, L.|
|Gridley, L.||Prentice, L.|
|Grimston of Westbury, L.||Quinton, L.|
|Haddington, E.||Rankeillour, L.|
|Hailsham of Saint Marylebone, L.||Reay, L.|
|Harmar-Nicholls, L.||Rippon of Hexham, L.|
|Haslam, L.||Rodger of Earlsferry, L.|
|Hayhoe, L.||Romney, E.|
|Henley, L.||St. Davids, V.|
|Hesketh, L. [Teller.]||Saltoun of Abernethy, Ly.|
|Hives, L.||Seccombe, B.|
|HolmPatrick, L.||Selborne, E.|
|Hooper, B.||Skelmersdale, L.|
|Howe, E.||Stevens of Ludgate, L.|
|Ironside, L.||Stewartby, L.|
|Johnston of Rockport, L.||Strange, B.|
|Kitchener, E.||Strathclyde, L.|
|Lauderdale, E.||Strathmore and Kinghorne, E. [Teller.]|
|Lawson of Blaby, L.|
|Layton, L.||Sudeley, L.|
|Leigh, L.||Swansea, L.|
|Liverpool, E.||Teviot, L.|
|Long, V.||Thatcher, B.|
|Lucas of Chilworth, L.||Thomas of Gwydir, L.|
|Mackay of Ardbrecknish, L.||Trumpington, B.|
|Mackay of Clashfern, L.||Ullswater, V.|
|Macleod of Borve, B.||Vaux of Harrowden, L.|
|Manton, L.||Wakeham, L.|
|Marlesford, L.||Wedgwood, L.|
|Merrivale, L.||Westbury, L.|
|Mersey, V.||Whitelaw, V.|
|Milverton, L.||Wyatt of Weeford, L.|
|Monson, L.||Young, B.|
|Montgomery of Alamein, V.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.42 p.m.
§ Clause 3 [Fingerprinting]:
Earl Ferrers moved Amendment No. 6:
Page 1, line 21, leave out ("an "authorised person", that is to say").
§ The noble Earl said: My Lords, in moving this amendment I shall speak at the same time to Amendments Nos. 7, 8 and 9. These amendments are intended to make clear that a child under 16 should only be fingerprinted in the presence of a person who is independent of the immigration authorities or police and whose role is to look after the interests of the child. The amendments provide for this to be the child's parent or guardian, or a person who for the time being takes responsibility for the child. That would cover, for example, a local authority social worker; the child's legal representative; a relation other than the parent or guardian; or a worker with a voluntary agency. The amendment makes it clear that the person cannot be an immigration officer or other 576 member of the Home Office, or a police or prison officer. I believe that these amendments meet the principal concern which was expressed in Committee, that the adult should be seen to be independent of the authorities and to be responsible for looking after the child's interests.
§ Amendment No. 9 in the names of the noble Lords, Lord Tordoff and Lord McIntosh of Haringey, seeks to achieve the same effect, although in a slightly different way. In this respect I commend to your Lordships the Government's amendments. I beg to move.
§ Lord Tordoff
My Lords, I am most grateful to the noble Earl for moving this amendment. As he said, the amendment in my name and that of the noble Lord, Lord McIntosh, seeks to do similar things. To be honest, I have no means of judging which amendment is technically the better. On the whole the Government tend to have expert advice that is not always available to us.
We on these Benches are grateful for what I consider an important concession which will be of considerable help to children in the circumstances that we have been discussing this afternoon. I know that my honourable friend the Member for Caithness who first raised this matter in another place will be equally grateful for what the Government have done.
§ 5.45 p.m.
§ Lord Mcintosh of Haringey
My Lords, I too wish to express my appreciation to the Government for recognising the validity of the arguments advanced from these Benches and the Liberal Democrat Benches in particular at Committee stage. It is important for those who are not following the Bill in detail to recognise that this is a very limited affair. We are talking now about fingerprinting minors, whereas in the earlier amendments we were dealing with the wider issue of the way in which unaccompanied young people in particular are received in this country.
The principle which has been adopted by the Government in these amendments—namely, that there is special recognition required for children—is a valuable one which goes wider than the issue of fingerprinting. I hope that in discussions on later amendments we shall be able to use the Government's welcome conversion to the recognition of the rights of children.
§ Lord Monson
My Lords, I am very hesitant about challenging the drafting abilities of the noble Earl or his department. However, I cannot make any sense out of Amendment No. 7. If it is incorporated as it stands, the last two and a half lines of subsection (2) (on page 9) will read:fingerprints shall not be taken from a person under the age of sixteen ('the child') except in the presence of a person of full age who is not an authorised person".I wondered whether the original intention was to leave out the reference to the age of 16 and substitute "the child". That would make sense. The amendment as currently drafted does not.
My Lords, I shall reply to that point as best I can. The point of adding the words "the child" is that they refer to the person who is under the age of 16. It is explanatory.
§ On Question, amendment agreed to.
Lord McIntosh of Haringey moved Amendment No. 6A:
Page 2, line 7, after ("his") insert ("over the age of 7").
§ The noble Lord said: My Lords, we have already made some progress on this clause. In welcoming the Government's amendments, I made clear that our view is that the whole issue of fingerprinting children is offensive. We are grateful for the protection that has been provided but our position remains that the very act of fingerprinting children is offensive, particularly as it is proposed that children can be fingerprinted at all ages, presumably right down to birth.
§ The arguments put in favour of fingerprinting children were difficult because they depended in particular on the claim that it is very difficult to recognise the age of a young person. It was said that those who claimed to be dependants, in the sense that they were under 18, could easily be older than the age of 18.
§ I appreciate that, if one is to pursue that argument, it may be pursued for any age—18, 16, 14, 12, 10 or whatever. We therefore considered the option of making fingerprinting impossible under a certain age, such as 16 or 14. In the end we decided to table a modest amendment and simply exclude fingerprinting for those aged seven or under. In other words, we allow fingerprinting under Clause 3(2) for those over the age of seven.
§ It is not a satisfactory situation. I would rather see fingerprinting abolished altogether. However, it is in the proper tradition of your Lordships' House that, having tried to achieve the greater good and failed at Committee stage, we should at least have a stab at achieving a modest improvement in the hope that the Government may feel disposed to say, "We do not like the idea either of fingerprinting children aged seven and under". I am sure that that feeling must be in the minds of many noble Lords on the Government Benches. I appeal to them to support this modest but still worthwhile amendment. I beg to move.
§ The Lord Bishop of Ripon
My Lords, I should like to make one comment in favour of the amendment. I was one of those opposed to the idea of the fingerprinting of children. As I understand the argument, fingerprinting is necessary to prevent multiple applications. It seems to me that the possibility of children under the age of seven making multiple applications is fairly slim and therefore the necessity for fingerprinting in those cases hardly exists.
§ Lord Tordoff
My Lords, in supporting this extremely modest amendment may I ask the noble Earl, Lord Ferrers, if he cannot accept the age of seven, what age he will accept? Otherwise, perhaps he will tell us that he is leaving the way open to children being fingerprinted at the earliest possible age.
My Lords, I realise the anxieties your Lordships have felt regarding the fingerprinting of 578 children. But it would be unwise to place in the Bill a lower limit on the age at which children might be fingerprinted.
Many asylum seekers present themselves at ports or elsewhere in this country without any reliable means of identification. It would rarely be possible in those circumstances to determine a child's age with any degree of satisfaction by reference to documents. Often the documents do not exist or are inadequate. Whatever limit is set, there are bound to be disagreements about whether a child is under or over a stipulated age—be it seven or 17. Therefore the answer to the noble Lord, Lord Tordoff, is that we would prefer to see no age limit in the Bill. Whatever one stipulated, there would be constant arguments. If there are no documents with the child, it is obviously impossible to determine what age he or she is.
We are not saying that children of seven or below are likely to instigate a fraudulent claim. The right reverend Prelate the Bishop of Ripon thought that children under seven simply would not make fraudulent claims. That is a reasonable argument. However, some families are prepared to "lend" their children to relatives or compatriots at the time they are claiming asylum. That is done presumably to increase the amount of benefit that they may claim. There does not seem to be any other logical reason for it. I do not say that the practice is widespread but there have been several recorded instances of it. Some of those instances came to light because the children involved became distressed with their situation—being in a waiting area perhaps with a number of other people and accompanied by somebody whom they did not know very well.
In order to deter that kind of abuse of children, it would be imprudent not to retain the ability to fingerprint any asylum seeker regardless of his or her age. However, I can assure the House, and repeat the assurances I gave earlier, that in the case of children it will be done only where it is deemed appropriate. It will be done in a suitable manner in the presence of the parent, guardian or other responsible adult. I believe that it is important to retain the provision in the Bill.
§ Lord McIntosh of Haringey
My Lords, I am sorry to say that I find that argument today as unconvincing as I found it in Committee. It is true, as I recognised when moving the amendment, that there is no magical age at which a child is instantly recognisable as being above or below the age of seven, 10 or whatever it may be. But the right reverend Prelate rightly said that children under the age of eight are not likely to make multiple applications.
In his response the Minister indicated that children were used in multiple applications. He said that there were examples of them becoming distressed at being presented by adults whom they did not know. It seems to me that in giving that example the Minister answered his own point. Clearly if children become distressed upon being presented by adults they do not know, the suggestion of multiple applications is evident without fingerprinting. Fingerprinting cannot be deemed to add much to the case that he gave. Either he is saying that they are getting through without being noticed, in which case the argument of distress 579 has no validity, or he is saying that distress is the argument, in which case fingerprinting has no validity. The Minister cannot have it both ways.
Between Committee and Report stage the noble Earl was kind enough to see me to talk through some of these matters and to confirm subsequently that he hoped to be able to provide by Third Reading draft guidance on the treatment of children for inclusion in the Immigration Rules. It is probably better that I wait to see that draft guidance to consider whether it is adequate or whether action needs to be taken at Third Reading. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Earl Ferrers moved Amendment No. 7:
Page 2, line 9, after ("sixteen") insert ("("the child")").
§ The noble Earl said: My Lords, I spoke to this with Amendment No. 6. I beg to move.
§ Lord Brightman
My Lords, with great diffidence perhaps I may suggest that there is a mistake in the wording of the amendment. It reads, starting at line 8 on page 2,fingerprints shall not be taken from a person under the age of sixteen ('the child') except in the presence of a person of full age who is".It should read,fingerprints shall not be taken from a child under the age of sixteen except in the presence of a person of full age who is",which is where Amendment No. 8 comes in,the child's parent or guardian".
My Lords, the noble and learned Lord brings forward a point which I shall certainly consider. My initial reaction is that if Amendment No. 8 refers to the child's parent or guardian, one needs the fact of "the child" to be mentioned after the word "sixteen" to indicate that that is the person to whom the parent or guardian is referring.
§ Lord Brightman
My Lords, it would then read,fingerprints shall not be taken from a person under the age of sixteen ('the child') except in the presence of a person of full age who is the child's parent or guardian".
§ 6 p.m.
My Lords, I am nervous that we will get into Committee stage. With the leave of the House I make the following observation. My understanding is that if one refers to "the child's parent or guardian" one has to refer to who the child is and that is why the amendment is necessary. It explains that anyone under the age of 16 is regarded in this context as the child to whom the parent is referred later on. If I am wrong on that I will get in touch with the noble and learned Lord, but I will certainly consider what he has said.
§ Lord McIntosh of Haringey
My Lords, I do not believe that I need the leave of the House because the Minister has not yet responded to the debate. I suspect that he is right. It is clear that one needs a definition of "the child" in order to refer to the child on two occasions in Amendment No. 8. The question raised by the noble and learned Lord, Lord Brightman, and the noble Lord, Lord Monson, was whether Amendment No. 7 should say "a child under 16" 580 rather than refer to a person under the age of 16 ("the child"). I cannot see that there is any difference between the two in sense although there is a difference in wording. It may be as well for the Minister to say that he will take advice on it. If he turns out to be wrong we will not chide him if he comes back with a further amendment at Third Reading.
My Lords, with the leave of the House I shall do that.
On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 8:
Page 2, line 9, leave out ("not an authorised person") and insert ("—
- (a) the child's parent or guardian; or
- (b) a person who for the time being takes responsibility for the child and is not an immigration officer, constable, prison officer or officer of the Secretary of State.").
§ The noble Earl said: My Lords, I spoke to Amendment No. 8 when dealing with Amendment No. 6. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 9 not moved.]
Lord McIntosh of Haringey moved Amendment No. 10:
Page 3, line 16, at end insert:
("() Nothing shall be done under this section which contravenes the provisions of the Convention.").
§ The noble Lord said: My Lords, Amendment No. 10 is a further attempt to seek concessions from the Government. I do not believe that we can do more than that at this stage, having achieved the minor concessions on fingerprinting that have been achieved. It is stated in Clause 2 that nothing in the Immigration Rules shall lay down any practice which would be contrary to the convention. The provisions in Clause 3 relating to fingerprinting are not included in the Immigration Rules; they are explicitly on the face of the Bill. Assuming for the sake of argument that the Government are right and the Immigration Rules—which are subject to parliamentary scrutiny only in the most minimal sense—should be controlled by the requirement that they conform with the convention, surely the same applies to the rules for fingerprinting that are on the face of the Bill.
§ We are not asking that other provisions of any other international legislation or agreements should be given this prominence in the Bill. We could have done so because there are plenty of rules laid down or guidelines suggested by the United Nations High Commissioner for Refugees providing protection that may be relevant to fingerprinting, particularly the fingerprinting of children. We have not done that because the guidance provided by the United Nations High Commissioner for Refugees can vary from time to time and it is inappropriate for such variable guidance to be incorporated in United Kingdom legislation. However, since there is already a recognition in the Bill that the Immigration Rules should conform with the provisions of the convention it seems to us logical that the same thing should apply to the provisions for fingerprinting that are set out in Clause 3. I beg to move.581
§ Lord Renton
My Lords, I am sure that all of your Lordships will agree with the noble Lord, Lord McIntosh, that nothing should be done in contravention of the convention. However, the amendment refers to things "done under this section". I hope and believe that nothing we have so far enacted in Clause 3 is contrary to the convention. It is an enabling clause. If people exceed the powers contained in it, that is perhaps not only contrary to the convention but contrary to our own law. I should have thought it was unnecessary for us to insert this further subsection. It will be interesting to hear what my noble friend Lord Ferrers has to say about it. As for guidance by the High Commissioner, any guidance that he can give can only be an interpretation of the convention; he cannot add to or detract from it in any way. That also would not justify the insertion of this amendment.
§ Lord McIntosh of Haringey
My Lords, since we are at Report stage perhaps I may say before the noble Lord sits down that regrettably there are two respects in which what he says is in error, though I tremble in saying so. The necessity for this amendment is not in any way affected by the fact that Clause 3 is an enabling clause. The action taken on fingerprinting is authorised by the clause. Whether the Secretary of State is required, or has the ability, to implement it has no relationship to whether action taken with the Secretary of State's authority is mandatory or based on enabling legislation. The question that has to be answered—one that I am not capable of determining—is whether not just the enactment but the implementation of the provisions of the clause turns out, when seen in detail, to be in conflict with the convention.
I am afraid I have forgotten the second reason why I believe the noble Lord is in error.
§ Lord Renton
My Lords, bearing in mind our rules of procedure the noble Lord was kind enough to say that he was merely intervening in my speech. Perhaps I may say with humility and respect that I do not agree with the argument he has just put forward.
My Lords, I agree with my noble friend Lord Renton. Obviously, in operating the fingerprinting provisions the Government have no intention whatever of doing anything which will contravene the convention. We have signed the convention; we are part of it and do not want to do anything that will contravene it. I would be reluctant to see added to the Bill a specific provision to that effect. I can see no possible way in which the operation of Clause 3 can contravene the convention. That is reinforced by the fact that the convention says nothing about fingerprinting. Clause 2 is drafted in such a way that quite properly it ensures that nothing in the Immigration Rules will conflict with the convention. I believe that that ought to be sufficient.
§ Lord McIntosh of Haringey
My Lords, I have remembered my second objection to the points raised by the noble Lord, Lord Renton. He said that the guidance given by the United Nations High Commissioner for Refugees could deal only with 582 matters covered by the convention. I am paraphrasing what he said because I do not remember his exact words. He will find that the United Nations High Commissioner for Refugees—who has recently been appointed by acclamation by the General Assembly and whose remit has been continued for another five years—has very considerable powers and responsibilities that go beyond the convention on refugees. He is certainly entitled to give guidance to members of the United Nations.
My Lords, the noble Lord, Lord McIntosh, has spoken three times and my noble friend Lord Renton is about to speak for the third time. It is Report stage and I think that we ought to try to keep to the rules.
§ Lord McIntosh of Haringey
My Lords, it is my amendment and I was responding to the debate after the Minister had spoken. I was giving way to the noble Lord, Lord Renton, in the course of my speech. If the House thinks that that is inappropriate, I shall carry on, but I note from his attempted intervention that the noble Lord, Lord Renton, does not agree with me. Perhaps we could discuss the matter privately afterwards.
The Minister said that he cannot conceive of any way in which Clause 3 conflicts with the convention because the convention does not. mention fingerprinting. It is exactly because the convention does not mention fingerprinting that the possibility arises that the clause may conflict with the convention. It may well be that there are elements of general protection in the convention which would be breached by the introduction of compulsory fingerprinting. This is not a matter on which I consider myself to be adequately informed to the extent that I would wish to take the opinion of the House on it. But I still think that there is a valid point here which may need further attention at Third Reading. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 [Housing of asylum-seekers and their dependants]:
§ 6.15 p.m.
Baroness Hamwee moved Amendment No. 11:
Page 3, line 24, leave out (", however temporary,").
§ The noble Baroness said: My Lords, with this amendment we return to the housing provisions of the Bill and in particular to the words "however temporary" when used to describe accommodation. Clause 4(1) (b) provides that a housing authority should be satisfied that an asylum seeker has available for his occupation any accommodation, however temporary, which it would be reasonable for him to occupy.
§ The words "however temporary" must mean something. Their natural meaning is that the accommodation in question may be accommodation which is very temporary indeed. Church halls and the floor of a kind friend were examples given to your Lordships in Committee. We were glad of the 583 Minister's comments then that he doubted whether those examples would be regarded as reasonable accommodation. I of course accept that comment in the good faith in which it was no doubt given but I doubt whether the Minister's doubts could amount to an assurance that those examples would not fall within the provision.
§ The Minister also said that it was right to treat asylum seeker applicants in a similar way to other applicants for housing. I am sure that we would all agree with that. It was a comment which was made on a number of occasions during the debate. The Housing Act 1985 provides tests for a local authority which has to assess an application by someone who presents himself as homeless. Under Section 58(2) (a) of the Act a person is not treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. The Bill repeats those words in Clause 4(1) (b). It provides that the accommodation must be accommodation which it would be reasonable for him to occupy.
§ What is added—or perhaps taken away—by "however temporary"? On re-reading the debate in Committee it seems to me that the comments made by the Minister, the noble Lord, Lord Strathclyde, were a little inconsistent with statements that asylum seeker applicants should be treated as other applicants. For instance, at col. 773 of the Official Report of 11th February the Minister talked of the clauses limiting the initial entitlement of asylum seekers under the homeless legislation to temporary accommodation to allow authorities to make better use of their permanent housing stock in providing homes for other homeless families. The Minister also sought to read the provision along with the reasonableness test. Again I ask: are the words "however temporary" therefore necessary?
The noble Lord distinguished between temporary accommodation and accommodation under the 1985 Act. He referred to an applicant who,
has no interest in a property, or licence to occupy it—in broad terms, if he has no degree of security in his existing accommodation".—[Official Report, 11/2/93; col. 775.]
The 1985 Act does indeed provide for the situation where a person must have accommodation which has a degree of security, which is how the Minister described it. But under Section 58(2) (b) of the Act it is reasonable for a person who has to occupy accommodation if he has an express or implied licence to occupy it. I apologise for the technical jargon but it is necessary to refer back to the existing legislation.
§ To summarise, the 1985 Act provides that, if there is an implied licence to occupy accommodation, that will effectively knock out an applicant who is seeking local authority housing on the grounds that he is homeless. Surely the person who is using a kind friend's floor or a church or community hall has at the very least an implied licence to occupy it if not an express licence to occupy it. It cannot be, therefore, that the Housing Act 1985 is regarded by the Government as adequate to cover the situation. I come again to my question. Why it is necessary to have these words?584
§ The Minister also said in Committee that the provisions of the 1985 Act dealt with those who were threatened with homelessness and that those would continue to apply. Section 66 of the Act provides for those who are threatened with homelessness and requires a housing authority to take reasonable steps to secure that accommodation does not cease to be available. It would be quite hard for a housing authority to take steps to secure that a church or community hall did not cease to be available. In the case of applicants who are not in priority need the obligation is one of advice rather than the provision of accommodation. As noble Lords quite rightly mentioned in Committee, many asylum seekers will he single men who will not fall within the provisions of those who are in priority need.
§ There was talk too in Committee of the code of guidance to which local authorities must have regard. It is quite difficult to accept that one should rely on provisions which may be in the new code or the revised code when one has not yet seen those provisions. But given the other provisions of Clause 4 I remained unconvinced at the end of the Committee stage debate that the words "however temporary" were necessary.
§ Clause 4 is not about imposing duties on housing authorities. It is directed to making exceptions and variations to the provisions of the 1985 Act. In other words, it detracts from the homelessness provisions of the Act. If the words "however temporary" are necessary, they amount to an extra test which an asylum seeker applicant has to meet. If they are necessary, to those on these Benches they are words with which we are not very happy.
§ Lord Finsberg
My Lords, I find that a somewhat confused argument. I listened very carefully and it seems to me that the noble Baroness has perhaps overlooked Clause 4(2) which deals with the "reasonableness" test bearing in mind the general circumstances. I believe that it is important that the words "however temporary" remain, because I can foresee arguments being created by certain well-meaning people who might encourage asylum seekers to say that the accommodation offered to them is not really suitable as there is no real degree of permanence in it. I believe that the Minister and those who drafted the subsection are perfectly right to make it clear. In my judgment it is not a question of an additional test; it is merely stating the facts. That is what I thought legislation was all about.
§ Lord Strathclyde
My Lords, I am sorry if any element of confusion crept into my speech at Committee stage and the noble Baroness did not understand what it was that I was putting forward, particularly since my noble friend clearly did understand the point that was being made both in the drafting of the clause and in the way I explained it in Committee.
The term "however temporary", as I mentioned in Committee, is used in subsection (1) (b) of Clause 4 in distinction to the requirements that flow from Part III of the Housing Act 1985 under which someone is defined as homeless if he has no interest in a property or licence to occupy it—in broad terms, if he has no 585 degree of security in his existing accommodation. The provisions of the 1985 Act are a direct route into settled accommodation for homeless households that meet the criteria set out in that Act. Although most homeless families these days do have a spell in temporary accommodation, that is not a necessary part of the 1985 Act. In the Act the yardstick for homelessness is set by reference to the security of tenure that flows from the duty of authorities to secure that accommodation is available for homeless families. In other words, because the 1985 Act is concerned with providing permanent accommodation, it sets its definition of homelessness by reference to the security of such accommodation.
The housing provisions in the Bill are directed towards a different concern. They will ensure that an asylum seeker has adequate temporary accommodation, but they relieve authorities of the duty to provide permanent accommodation until he has been given leave to remain in this country. It is therefore appropriate that the need for an authority to intervene in providing accommodation should be set by reference to criteria based on the type of accommodation that the authority has a duty to provide in such instances at that time; namely, temporary accommodation.
It is for that reason that perhaps the noble Baroness thought I was being contradictory at col. 773 when I said:That will allow authorities to make better use of their permanent housing stock in providing homes for other homeless families".The point is that there will be no discrimination by local authorities concerning people who are treated for temporary accommodation.
The Bill provides that an authority does not need to intervene if the asylum seeker has accommodation, however temporary, that it is reasonable for him to occupy. It is important to note the word "reasonable". "However temporary" does not mean "however unsatisfactory". As I have said on previous occasions, although the floor of a church hall, or a couch in a friend's flat, might meet the criteria of "however temporary", such accommodation would probably not be reasonable for an asylum seeker and his family. The test of reasonableness would embrace both levels of overcrowding, hygiene and safety as well as cost and the willingness of friends and relatives to continue to provide accommodation.
Once a local authority has accepted responsibility to provide temporary accommodation for an asylum seeker and his dependants, there is no reason that this should be any different in quality from the accommodation provided for other homeless families. We have heard much about keeping asylum seekers in bed and breakfast accommodation. I remind noble Lords that bed and breakfast now accounts for only a small proportion of the temporary accommodation used by local authorities.
When introducing legislation that treads new ground—as this does—it is inevitable that there will be some uncertainty as to how the new provisions will work out in practice. As I have said on a number of occasions, and as the noble Baroness, Lady Hamwee, 586 pointed out, we will be making revisions to the code of guidance that we issue to local authorities on the operation of the homelessness legislation, and to which authorities are required by law to have regard. Naturally, when we are drafting the new code of guidance, we will take note of the concerns and the uncertainties expressed by the noble Baroness as well as the views of local authorities.
This measure will reduce the pressure on authorities to provide accommodation for asylum seekers while their applications are being considered. At the same time it assures asylum seekers of a sound underpinning level of accommodation should they need it. We believe that this is the proper way to proceed. I ask the noble Baroness to withdraw the amendment.
§ Baroness Hamwee
My Lords, I thank the Minister for that reply. I regret however that I remain unconvinced. Perhaps I may first deal with the comments made by the noble Lord, Lord Finsberg, when he argued that Clause 4(2) provided one aspect of the reasonable test. One of my objections to that provision is that it sees the situation from the point of view of the housing authority. That authority has very great concerns which need to be dealt with. This Bill is about asylum seekers. The test applied under Clause 4(2) is the circumstances prevailing in the district and not the situation of the individual asylum seeker. I see that the noble Lord agrees with me to that extent: The Minister cautioned against basing our argument on the use of bed and breakfast accommodation. Happily, its use is being reduced, although it is still necessary. It is also desperately unsatisfactory. If the provision remains it will be necessary for the housing authority, if not continuously, then very frequently, to reassess the situation of an individual because as he moves from one set of temporary accommodation to another, does not his position have to be reconsidered? An element of confusion and more work is unsatisfactory.
The Minister concluded his argument by saying that the provision will reduce pressure on housing authorities. As I said, I am concerned for housing authorities and in this context concerned also for asylum seekers. In view of the time and unconvinced as I am, I suspect that courtesy to the House means that I should withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Bonham-Carter moved Amendment No. 12:
Page 4, line 4, leave out (", at that time").
The noble Lord said: My Lords, in moving this amendment I speak also to Amendment No. 13. Noble Lords will remember that during our debates at Committee stage the noble Lord, Lord Strathclyde, argued, at col. 801:
Asylum seekers will acquire their full rights to a range of benefits, including full rights to housing, only from the time that they have been granted the leave to remain".
§ The noble Lord called that "a principle" which we might disagree with, and I do disagree. I disagree with it because, as I argued at the time, the argument neglects to take account of the fact that the courts have decided that an asylum seeker is a genuine 587 asylum seeker from the moment that he puts in his application for asylum; therefore, his rights should start from that moment.
At the end of that debate the noble Lord accepted that there was some confusion in what he was putting forward and said that he was happy to consider the debate that we had had and to reflect on it. He has reflected on it. He wrote to his noble friend Lord Brentford and was kind enough to send me a copy. I regret to say that his reflections did not take him very far for some reason or another which I shall try to discover. He wrote:
It would not make sense to offer someone permanent accommodation when manifestly he had ceased to be so entitled because, for example, his dependants had all left the country".
The noble Lord said that in the debate. My noble friend Lady Seear asked him whether the asylum seeker was different to anyone else in the queue for housing who, by the time he had acquired the housing, found that his family had left him and left "the nest", as she put it. Is not a refugee who has now become a regular homeless person in exactly the same position? She asked: what is the difference?—and, asking, got no answer. The noble Lord simply repeats the question in his letter but does not answer it; so we did not get very far with those reflections. He then went on to say to the noble Viscount, Lord Brentford, who had used the metaphor of snakes and ladders to describe the position of the asylum seeker, that he thought this was not a very satisfactory metaphor. He said that it was wrong for a local authority to justify granting a secure tenancy when there was a queue of bona fide homeless people waiting. He went on to say in his letter:
There is no concept of a queue, or of prioritisation"—what a horrible word for the noble Lord to use—"in the legislation".
Most housing authorities have some kind of list—a points system—in which residence plays some part. Therefore although there may not be a queue in which length of residence is the dominant qualification, it is always a qualification. Therefore you are in fact treating an asylum seeker extremely unfairly if you do not take into account the time he has spent here from the moment when he applied for asylum, which was the moment when the courts decided that he was a refugee. When the noble Lord says in his letter:
This measure is a logical complement to the main housing provisions of the Bill. I do not believe that it will materially disadvantage the former asylum seeker",
he is guilty of inexactitude. The asylum seeker must be disadvantaged. He is disadvantaged by the length of time which his appeal for asylum took and the weighting which that length of time gives him in the points system which may be exercised by the local authority concerned. Of course it is grossly unfair and it is for that reason that I beg to move this amendment.
§ 6.30 p.m.
§ Baroness Hamwee
My Lords, I should like briefly to support my noble friend. The Minister has quite rightly in his correspondence reminded us that there is no such thing as a waiting list for local authority 588 housing. There may be no waiting list as such, but there is a considerable degree of overload and de facto that means "waiting list", whatever term is used to describe it. Local authorities have discretion as to how they give priority to those whose other criteria for accommodation are very similar. As a matter of fact, housing authorities very often use the date order of applications so as to distinguish between those who are otherwise indistinguishable.
This amendment is not seeking to put asylum seeker applicants at the head of the queue: nor at this point are we seeking to delete paragraph 6 of the first schedule, which is concerned with security of tenure. That subject is dealt with in a later amendment. But, at the very least, if this amendment is not accepted I hope the Minister will be able to give us some assurance as to the good practice which the code of guidance may suggest with regard to the treatment of those who might fall down a snake on the board of snakes and ladders.
§ Lord Hylton
My Lords, I do believe that we need a national policy for the reception of refugees. If we are going to have such a thing, that policy will need to have a housing component. These two Amendments, Nos. 12 and 13, seem to me to relate to the housing element of a national strategy and for that reason I am very happy to support them.
§ Lord Strathclyde
My Lords, when we discussed this at Committee stage the noble Lord, Lord Boyd-Carpenter, as he said, recognised that I had said there had been some confusion in the debate and I agreed to reflect on it. As the noble Lord also said, I have done so and indeed I have discussed the matter with my honourable friend the Minister for Housing and Planning, who has lead responsibility in these matters.
I do understand the anxieties expressed by noble Lords but I think we need to remember the purpose of the Bill and the contribution made by the provisions which the amendment seeks to delete. The housing provisions are essentially concerned with ensuring that the entitlement to permanent accommodation under the homeless legislation follows from someone being granted leave to remain in this country. Secure and assured tenancies are a scarce resource in many parts of the country and it is therefore only sensible for a housing authority to assess whether a person is entitled to it at the time that he acquires his entitlement.
In these circumstances it would be difficult to defend giving a secure or assured tenancy to someone who had ceased to be in priority need. The noble Lord, Lord Boyd-Carpenter, re-asked me the question put by the noble Baroness, Lady Seear, as to how the asylum seeker might be different from others whose families leave the nest. For homeless households in general there is no requirement for local authorities to reassess the circumstances, because there is no clear break between temporary and permanent accommodation. The noble Baroness may indeed reflect the practice of local authorities, but not the law, and there is an important distinction.
589 Under the 1985 Act a person acquires the right to permanent accommodation the moment he is accepted as homeless by the local authority, but in the case of asylum seekers, as I have already pointed out, the intention is that such a right should flow only once leave to remain has been granted. I stated in Committee that the noble Baroness might not like the answer I had to give, and I am sorry to bring her into this debate because of course it was the noble Lord, Lord Boyd-Carpenter, who raised the point.
I am reminded that I should be addressing the noble Lord, Lord Bonham-Carter. I do apologise. Much has been said about how this provision would result in the asylum seekers going to the back of the queue for a secure tenancy and how this would mean a long period of uncertainty in substandard accommodation for the asylum seeker and his family. I would remind the House that temporary accommodation provided by the local authorities is often of very good standard. That is part of the debate that we have just had. In some cases it is better than the standard of secure tenancies that a local authority allocates within its own stock. I say that because much temporary accommodation now takes place in assured short-term tenancies, some of which are of a very high standard indeed: better than that of some local authorities.
However, more importantly, I should make it clear that there is nothing in the homelessness legislation which requires an authority to operate a queueing system for the allocation of secure or assured tenancies. It is for the authority to rehouse homeless families in whatever order it feels to be most appropriate, taking into account all the circumstances. If an authority feels that, bearing in mind the length of time already spent in temporary accommodation, the former asylum seeker needs or deserves a secure tenancy the moment he is granted leave to remain, then the authority is at liberty to allocate such a tenancy to him.
The local authority must treat all applicants fairly and if there is a ranking then it should reflect the length of time spent in temporary accommodation. This is a system which is run by local authorities and therefore it is for them to find the system which is most appropriate. The noble Lord, Lord Bonham-Carter, also suggested that, when a refugee is granted asylum, this is in effect a decision which shows retrospectively that he had the right to remain in this country from the moment that he entered it. It is argued that that should mean that he has full housing rights from that time. That goes to the nub of the provisions.
In a substantial number of cases an asylum seeker is granted not asylum but exceptional leave to remain. So one cannot assume that all asylum seekers are refugees, nor, until an asylum claim is resolved, that a person has any entitlement to remain in the country. As I have explained, an important principle underlies the provision, although I hope that in most instances it will have little practical consequence for the asylum seeker.
§ Lord Tordoff
My Lords, I hope the Minister will forgive me. With the leave of the House, because I 590 have not yet spoken, will the Minister elaborate on what he has just said? It seems to me that he is saying, "OK, an asylum seeker has rights which will be exercised retrospectively"—we are talking about asylum seekers and not people given exceptional leave to remain—"once he has been granted asylum. In all other ways he will be treated as if he had been a refugee from the moment he put in his application". What the Government are saying in the legislation is that they will not allow that to apply to housing. Is that what the Minister is saying?
§ Lord Strathclyde
My Lords, when an asylum seeker is granted leave to remain in the country, a local authority can re-assess his priority needs under the homelessness legislation. It is up to the local authority to decide how it deals with his time in temporary accommodation. There is nothing in the Bill that means that the local authority has to treat him differently from any other homeless person.
The Bill is designed to shorten the period during which someone awaits a decision on his application for asylum. We believe that under the Bill it will be reduced substantially. Any delay in his being eligible for permanent accommodation will thus be reduced correspondingly. The provision gives authorities a safeguard when handling homelessness applications from former asylum seekers. It does not require the asylum seeker to make a fresh application under the homelessness legislation. For those whose circumstances remain unchanged from the time of their initial application, its effect is likely to go unnoticed. I hope that I have this time explained the matter clearly, and I hope that the noble Lord, Lord Bonham-Carter, will withdraw the amendment.
§ Baroness Seear
My Lords, since I have been brought into the controversy as a result of a remark I made previously, I must say that I wonder sometimes what the Government will do when they have finally got rid of local government, which is what they seem to be aiming to do. Whenever there is a difficult decision to be made they say that it is the responsibility of local government. The Minister has used a good many words, but he has not answered the question. The nub of the matter in our view is that once a decision has been made by the court that the man is a genuine asylum seeker, he has been a genuine asylum seeker since he came into the country. The court is saying, "This man is a genuine asylum seeker. He always was". If he always was a genuine asylum seeker and put in his application at the time, that is the point of time from which his entitlement should be measured. That seems to be a matter of the most simple logic. The Minister has not answered that point.
§ Lord Strathclyde
My Lords, the noble Baroness is being slightly uncharitable about the Government's views of local government. We are fond believers in local democracy—a local democracy that works. I hope that what the noble Baroness says about our feelings towards local government will be proved to be untrue, but only time will tell.
§ Lord Strathclyde
My Lords, as I said, the noble Baroness was being uncharitable and she is continuing to be so. We believe that when an asylum seeker is given leave to remain his position should be re-assessed. It should be re-assessed to ensure that the priority needs under which he made his application are still relevant. I accept that there might be a fundamental disagreement on that point between the noble Baroness and the Government. The point of today's discussion is to explain what the Government mean.
§ 6.45 p.m.
§ Lord Bonham-Carter
My Lords, I have listened to the Minister's argument with increasing bewilderment. I shall read what he says with a wet towel around my head. I must tell him one or two home truths. First, it is impossible to be uncharitable about the Government's views on local government. Secondly, if this place were not privileged he would put himself in danger of a double libel action from me and the noble Lord, Lord Boyd-Carpenter for muddling us up. Both of us resent that deeply. If he cares to say that outside, I shall take him to the courts. However let us put those matters to one side.
We are not talking about people with extended leave to remain, and so that is irrelevant to my argument. We are talking about asylum seekers. It is unquestionable that any ordinary person reading the clause would interpret it to mean that an application for local authority housing put in by an asylum seeker on arrival would not operate until his request for asylum had been granted. It would start from that moment and not from when he arrived.
The Minister said two things about that. First, he says that under the homelessness legislation local authorities have to re-assess the situation, irrespective of whether the person was an asylum seeker. In that case, the clause means nothing. Is he saying that the clause is meaningless and that the whole matter is entirely one for the discretion of the local authority, or is he saying that it does mean something? If the clause means something, it surely means what I have said; that is, that there is a contradiction between the fact that the court says that the man was a refugee from the moment that he applied for asylum and that local authorities treat him as a genuine refugee only from the time that that decision is made. That contradiction remains. It can only be resolved by saying that the clause means nothing.
I find this matter bewildering. I shall not press the amendment because I found the Minister's speech even more bewildering. I shall have to read it carefully to interpret it and to see whether I can make sense out of it. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 13 not moved.]
Baroness Gardner of Parkes moved Amendment No. 14:
After Clause 4, insert the following new clause: