HL Deb 24 June 1996 vol 573 cc647-57

(". If apart from any travel documents held by a young unaccompanied asylum seeker a doubt would arise as to whether such child is or is not over the age of 18 years, such child shall not be assumed to be over the age of 18 years by reason only that the travel documents or any of them held by such child so state.").

The noble and learned Lord said: My Lords, together with this amendment I ask leave to speak also to Amendment No. 62. The amendments deal with the difficult question of the age of a young unaccompanied asylum seeker. Age is very important because special procedures and practice directions apply to an asylum seeker who is under the age of 18. I can give your Lordships five examples. The first is that once an immigration officer establishes that he is dealing with an unaccompanied asylum seeker who is under 18, he is required to alert the social services department of the local authority responsible for the area in which the entry point lies. Secondly, the Department of Health has issued a practice guide devoted entirely to unaccompanied asylum seekers under the age of 18. Thirdly, unaccompanied asylum seekers under the age of 18 have access to the Refugee Council's panel of advisers, as your Lordships know. Fourthly, there are special immigration rules issued by the Home Office which apply to asylum seekers under the age of 18. An important and well known rule is that interviews with a child under 18 have to be conducted in the presence of an independent adult. Fifthly, immigration officers are not supposed to send an unaccompanied asylum seeker to a detention centre if he is under 18, except as a last resort.

Amendment No. 61 provides that: If apart from any travel documents held by a young unaccompanied asylum seeker a doubt would arise as to whether such child is or is not over the age of 18 years, such child shall not be assumed to be over the age of 18 years by reason only that the travel documents or any of them held by such child so state".

I am told by the Refugee Council and the Refugee Legal Centre that passports not infrequently exaggerate the age of an asylum seeker. The reason seems to be that some countries will not issue a passport to a person who is under the age of majority, which may be 18 years. So the asylum seeker arrives here with a passport saying that he is 20 when really he is only 16.

I have been given a number of examples by the Refugee Council and the Refugee Legal Centre of what may happen. In 1994 a refugee came from Angola, passport age 19, real age 16; he spent two-and-a-half years in a detention centre before his real age was established. Similar cases include a refugee in 1995 from Nigeria, passport age 23, real age 17, who spent almost a year in detention, another refugee from Nigeria in 1994, passport age 19, real age 16, who spent five months in detention, and a refugee from west Africa, passport age 29, real age 15, who was detained for three months; all until their real ages were established.

I turn to Amendment No. 62, which is intended to speed up the immigration process. As the leader in The Times said on Saturday in relation to immigration: It cannot be beyond the powers of invention for Britain to speed up its procedures".

My invention for speeding up immigration procedures and so avoid wasting time ascertaining the age of an asylum seeker in cases where it is relevant is Amendment No. 62. The amendment reads: The Secretary of State shall have power to establish a panel of paediatricians to enable him when he thinks fit to refer a child claiming to be a young unaccompanied asylum seeker to a member of such panel for the purpose of expressing an opinion whether such child is or is not over the age of 18 years. The opinion of such paediatrician shall be final in the absence of conclusive evidence to the contrary".

I wish to emphasise that the establishment of the panel and the use made of it is entirely at the discretion of the Secretary of State. The members of the panel will be selected by the Secretary of State. The amendment places in the hands of the Secretary of State a facility which he can use or not use, as he thinks fit. In my submission, the amendment can only be helpful to the Home Office. I hope that the Minister will feel able to give it favourable consideration. I beg to move.

The Lord Bishop of Ripon

My Lords, at Committee stage we discussed the difficult question of establishing the age of a young person, particularly when there was some doubt about whether the person was over or under the age of 18. I had some exchanges with the noble Lord, Lord Avebury, who resisted any means of determination which would somehow be invasive, particularly of the body of anyone concerned.

The proposals now before us are much more modest than those discussed in Committee. Amendment No. 61 simply asks that the travel document be not taken as in any way conclusive as to the age of a young unaccompanied asylum seeker. We have already given reasons why such people might travel on documents which give a false age and I do not wish to go over that ground again.

As the noble and learned Lord, Lord Brightman, made clear, Amendment No. 62 is a permissive power. It does not require the Secretary of State to do anything but gives him the power to establish such a panel and to refer a child claiming to be under the age of 18 to that panel. It meets the concerns expressed by the Minister when we discussed the matter in Committee. It seems to me that the set of amendments is a good way of responding to the concerns we expressed. As we said in Committee, there are a number of cases of those whose age is undetermined but who later are discovered to have been under the age of 18. In the meantime, they may have been treated as adults for a considerable period. It is important that we find some way of resolving the difficulty. I hope that the noble Baroness will find the proposed procedure acceptable.

Earl Russell

My Lords, I, too, am happy to support these amendments. The difficulty of determining the age of children is one that was extremely common in societies that did not have the benefit of large quantities of written records. Parish registers in this country were introduced precisely in order to bring an end to problems of exactly that type—which is why Thomas Cromwell remains to this day the great hero of English demographers.

There has to be some procedure one uses in the absence of written records. In this country they used to use the testimony of the oldest inhabitants. The difficulty with that was that it was not numerically determined in its memory of chronology. They remembered the "year of the great flood", or "the year when I broke my leg", which does not get us very much further. That will have been the state of affairs in the countries from which many asylum seekers come. That is why the age stated on their passports may not necessarily be correct. It will have been determined by methods that are rough and ready, very much like the ones we used to use here.

The method of determination by the oldest inhabitants is of course not available to us in the case of asylum seekers. The oldest inhabitants of the place where they were born are not here—and one presumes would hesitate to testify on their behalf if they were. So there has to be a method of refereeing the problem of determining age. My noble friend Lord Avebury made a very powerful case against the use of X-rays, which I understand also has the support of the BMA. If we are not to use that method—and in this case the Home Office is likely to be judge and jury in its own courts—the proposal for a panel of paediatricians to be appointed by the Home Secretary is the nearest way I can think of to bring the procedure under some sort of quasi-judicial regulation. It has to be done somehow. I cannot think of a better way of doing it than this. Therefore, I am happy to support the amendment.

Lord Renton

My Lords, Amendment No. 61 seems to contain an accurate statement of the obvious. But whether we need to make that part of the law, I doubt. It is a statement of the obvious because we all know that travel documents are not conclusive as to age. They can be forged; or they can be the result of innocent misrepresentation. It is perfectly right that there should be no assumption about age just because it is stated in a travel document. It may provide prima facie evidence, but that is not the end of the matter.

I am not sure, and my noble friend Lady Blatch will tell us, whether or not the amendment is necessary. Even if the point is not covered in law at present, I am doubtful as to whether this is the sort of detail we need to go into. I personally think it is better to try to state principles instead of covering endless hypothetical cases. That is the doubt I have about Amendment No. 61, although it appears to be accurate in what it says.

As regards Amendment No. 62, there is a difficulty. Nature is notoriously inconsistent; and medical opinions vary very much in relation to the same circumstances. I am told that experience has shown that there is very often a margin of error of as much as two years between the reality of a situation and the medical opinion given. Doctors are just as likely to disagree as lawyers are. I happen to be the son of a doctor, and the noble and learned Lord, Lord Brightman, and I are lawyers. It is quite right that we should make that plain. By all means let there be some paediatricians available. But whether the opinion of one paediatrician should be final, I seriously doubt. In cases like this, very often it would be better to obtain a second or even a third opinion. This is another matter of administration which is best left to the Government.

Baroness Gardner of Parkes

My Lords, in Committee I spoke on points similar to those mentioned by the right reverend Prelate. We discussed them in considerable detail. I think we were all agreed that X-rays were not a desirable method of assessment.

I support the point made by the noble Lord, Lord Renton, in relation to Amendment No. 62. It is impossible for any one paediatrician to make a decision. I remember years ago going with my daughter to the hospital. We were rather concerned about her because she had not been well. The man weighed her and said, "You are absolutely perfectly proportioned in height and weight for the age of 10". She said, "But I am 12". The person she saw was an expert paediatrician at the children's hospital. So it is impossible to take the opinion of one paediatrician as completely binding. It is desirable, if there is a real doubt, that someone should check on those points.

Turning to Amendment No. 61, I find it very difficult to reconcile the point made in Committee by the noble Lord, Lord Dubs, and today by the noble and learned Lord, Lord Brightman, in relation to the fact that people quote their age as 18 in order to obtain a travel document. The noble and learned Lord went on to quote cases in which someone came into the country supposedly aged 29 and was then found to be 15; someone else came in supposedly aged 23 and might have been 16. Quoting your age as 29 or 23 is not the same as simply quoting it as 18 in order to obtain a travel document. I found that point somewhat hard to appreciate.

If people arrive with travel documents, some weight must attach to statements in those documents. The Home Office may then wish to question the information or have cause for doubt. As I said in relation to determining age, my experience at the hospital is that it is extremely difficult with adolescents to know whether to put them into a children's ward or an adult ward, because they vary so greatly in size and development. These matters are not at all easy to determine. I therefore have reservations on these amendments.

6.45 p.m.

Baroness Blatch

My Lords, Amendments Nos. 61 and 62 deal with disputes about the age of an asylum applicant. Clearly, cases where there is a dispute over the age of an applicant do not involve young children. The dispute centres on whether or not a young person is under 18 and we are therefore talking about older teenagers and young people. The Immigration Rules clearly define an asylum seeking child as, a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age". Where a person holds a valid passport showing him or her to be 18 years or over it is entirely right, as my noble friend just said, for the Secretary of State to accept that age in the absence of substantial evidence to the contrary. Amendment No. 61 would encourage unsubstantiated claims to be under 18 in order to circumvent normal immigration controls. This is a very fertile area for abuse of the system.

As I explained in Committee, where satisfactory evidence of age is provided we will accept an applicant as a minor. My noble friend Lord Renton said on that occasion that the burden of proof must lie on whoever has or is most likely to have the necessary information as to the applicant's age. That proof could take the form of documentary evidence such as a bona fide birth certificate which the child or his carers may be able to obtain but which the Secretary of State clearly cannot. I entirely agree with my noble friend.

A young person seeking to obtain the required evidence will not be without assistance at that stage. Apart from the advice of a legal representative, the applicant may have the support of social services and the Refugee Council's panel of advisers. The Immigration Service has agreed with the panel of advisers that it will refer young people who have been detained where there is a dispute over their age.

It is for the young person and his legal representatives to decide what evidence should be put forward. If they are unable to obtain reliable documentary proof, they may choose to commission an independent age assessment. However, I understand that no medical assessment of this kind can be very precise. That point was made by my noble friends Lady Gardner of Parkes and Lord Renton. The margin of error is around two years either side of the assessed age. For this reason it would be unlikely to carry as much weight as any validly issued documentary evidence. Nevertheless, it is for the applicant to decide whether he wishes to obtain a medical assessment and, if so, from whom. It would not be appropriate for the Secretary of State to require him or her to submit to an examination for reasons which are wholly unrelated to health or medical needs. Nor would it be right to restrict his choice of medical adviser.

Moreover, placing such emphasis on medical assessments, which, as I have said, cannot usually be very precise, could encourage more applicants to attempt to deceive the United Kingdom authorities about their age to take advantage of our generous approach to unaccompanied child asylum seekers. To put this in perspective, in 1995 8 per cent. of asylum seekers were aged between 18 and 20 and a further 19 per cent. were aged between 21 and 24. It is clear, therefore, that the potential scope for abuse is very significant, which would not be in the interests of genuine unaccompanied children.

There have been a number of cases where people who are over 18 have, nevertheless, claimed to be younger in order to take advantage of our generous approach to unaccompanied children, often destroying their own documents so that there is no evidence to contradict their claims. Moreover, some people initially present documentary evidence stating their age as over 18 but then change their story at a later date. The special arrangements that are in place for unaccompanied children have been well received. But the Government believe it is essential to guard against putting in statute any provisions that would provide an open invitation for any young adult asylum seeker to abuse these special arrangements for their own advantage. As I said, that would certainly not be in the interests of child asylum seekers.

Where credible documentary evidence is available, including a passport that appears to be genuine, it is entirely right that full weight should be given to that evidence.

Some children may arrive in the country without documents or with obviously forged documents. Each case would be considered according to its individual circumstances. We have made absolutely clear that we understand that it may have been necessary for young people or persons of any age who arrive in this country to have travelled across the world with forged documents or documentation that is not in order. They are given a proper opportunity to admit that the documents are forged and then to prove the authenticity of their age and case for asylum.

In many cases it will be obvious that the person is under 18 years of age. That will, of course, be the case for very young children, who are probably the most vulnerable. But in other cases, particularly 16 to 18 year-olds, the issue may be less clear-cut. The Government consider that the burden of proof must rest with the applicants seeking entry to the United Kingdom to satisfy our immigration officials of their age. If the authorities believe and have come to the view that they are under 18, of course they will accept under 18 as the age, but where they have doubts about that, the whole issue is in contention. The Government do not think it is unreasonable in most cases to expect a 16 or 17 year-old, for example, to take steps to obtain documents, such as birth certificates or other material, to establish their age.

Medical assessments, although useful in the absence of documentary proof, cannot provide conclusive evidence as they measure maturity and not chronological age. That point was well made by my noble friend Lady Gardner of Parkes. In all instances there is a significant margin of error which would create the difficulty.

The other point that I mentioned earlier is that, if the Secretary of State appoints the panel of paediatricians, many asylum seekers would not have confidence in that panel because it had in fact been chosen by the Home Secretary and not themselves. Therefore, we believe that it is important that the individual asylum applicant should be left free to choose how he will prove his particular age.

If we move to a position that the Home Office cannot have regard to credible documentary evidence of age, or to a system based more heavily on medical assessments rather than documentary proof, the Government's view is that it could put the special arrangements for unaccompanied children at risk of being exploited by those who are over 18. We should find that wholly unacceptable.

Earl Russell

My Lords, before the noble Baroness sits down, can she tell the House where the amendment says that the Home Office should not have regard to credible documentary evidence of age?

Baroness Blatch

My Lords, the first amendment states that we should not give weight to it. We are saying that it is very important that we should give weight to documentary evidence given in good faith by an asylum seeker.

Lord Brightman

My Lords, I am not particularly wedded to Amendment No. 61 but I am wedded to Amendment No. 62 which seems to me to have all the virtues for which we look. It is a speedy way of settling a child's age when there is no documentary evidence of that age. The child comes perhaps from a country in which no register is kept and the age of the child must depend, particularly if the parents are not available, on circumstantial evidence. It seems to me that Amendment No. 62 could only be helpful to the Government. It gives the Government a chance to produce finality and prevent endless litigation and so forth in order to ascertain the age.

I should have thought that the amendment was totally in the interests of the Government. I have heard arguments to the contrary. I should like to consider those arguments before Third Reading and perhaps bring back the matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 62 not moved.]

Clause 8 [Restrictions on employment]:

[Amendment No. 63 not moved.]

Baroness Blatch moved Amendment No. 64: Page 6, line 22, leave out from ("employs") to ("as") in line 30 and insert ("a person subject to immigration control ("the employee") who has attained the age of 16, the employer shall be guilty of an offence if—

  1. (a) the employee has not been granted leave to enter or remain in the United Kingdom; or
  2. (b) the employee's leave is not valid and subsisting, or is subject to a condition precluding him from taking up the employment,
and (in either case) the employee does not satisfy such conditions").

The noble Baroness said: My Lords, in moving this amendment, I should say that it is coupled with Amendments Nos. 65 and 66.

Amendment No. 64 responds to concerns expressed during Committee stage when we discussed Clause 8. The amendment does not in any way change the substance of the clause, but I believe that, as amended, the clause will be easier for employers and others to understand. While we shall, of course, be providing employers with guidance, I agree that it is desirable for the legislative provision itself to be as straightforward as possible.

I informed the Committee that the Government recognised that unease had been expressed in this Chamber and elsewhere about the use of the word "immigrant" in this Bill. We made clear that the term was used as a neutral term to refer to a person subject to immigration control. Its use did not in any way affect anyone's immigration status. In particular, nothing in the Bill affects the immigration status of those who are settled here. Nevertheless, we accepted that, however irrationally, the word "immigrant" is perceived by some as having a pejorative connotation and there were suggestions that the use of the term could give rise to anxieties.

We also recognised that the term might be seen by the layman as referring to anyone who has come here from abroad to live rather than only to a person subject to immigration control under the Act.

The Government therefore have come forward with a series of amendments, including this amendment to Clause 8, which removes the term "immigrant" and replaces it with the phrase "a person subject to immigration control". I am satisfied that that phrase, which simply reflects the scope of the Bill, is a technical definition with no pejorative connotations. I beg to move.

The Deputy Speaker (Lord Strabolgi)

My Lords, if Amendment No. 64 is agreed to, I cannot call Amendments Nos. 65 to 67.

Earl Russell

My Lords, I thank the noble Baroness for listening to what the noble Lord, Lord McIntosh of Haringey, and many on these Benches have said about the wording of the amendment. I take the point that the use of which we complained is irrational. People have been known to be irrational before and will continue to be so.

This amendment softens the image created by the Bill and makes it less misleading. As to the substantive effect of the provision, I understand that there is no significant difference. So I give the amendment a welcome by looking forward to continuing the major arguments on the issues of the Bill.

7 p.m.

The Earl of Balfour

My Lords, I am concerned about only one thing in this government amendment; that is, the words, who has attained the age of 16". I do not believe it is legal to employ anybody under that age. I therefore wondered whether between now and Third Reading my noble friend would consider those words.

The Lord Bishop of Ripon

My Lords, I am grateful to the Minister for tabling this amendment which arises in part from a conversation I had with her right honourable friend the Home Secretary and herself, as well as out of debates in your Lordships' Chamber. Perhaps I may ask one question which I am sure arises out of ignorance. I listened carefully to the Minister but was not sure at the end precisely who is, a person subject to immigration control". My noble friend said it is those who are subject to the Bill. Perhaps she could elaborate on precisely who are the people "subject to immigration control". Is there not a sense in which we are all "subject to immigration control"? What is the specific category referred to?

Baroness Blatch

My Lords, my understanding is that a person who has applied for entry, is awaiting some part of the appeal procedure or is waiting to have a case heard but has not had a proper determination of his case is subject to immigration control. Other people who are here with conditions attached—it may be time-limited conditions; they may be here without permission to work or here with permission to work which is also time limited—are also people to whom the provision applies.

Lord Renton

My Lords, would it not also include a person who has been granted a work permit to be in this country for a limited period or somebody who has been granted leave to be here for a limited period without a work permit?

Baroness Blatch

My Lords, it includes both categories. In response to my noble friend who queried the age, I shall continue looking at the wording of the amendment between now and the next stage. I believe the wording is correct. We are talking of people who are of working age, 16 and above. However, I take the point about those under 16 and will come back to my noble friend on that.

Lord McIntosh of Haringey

My Lords, I take it that this toing and froing has been interventions in the speech of the right reverend Prelate. I apologise to the House for not being present during the Minister's opening speech. She will understand in a few minutes why I was not present.

First, I thank the Minister for fulfilling her undertaking made at Committee stage to remove the word "immigrant" from the Bill. However, I want to take those thanks three-quarters back because the amendments which begin with Amendment No. 64 are about the minimum she could possibly have put forward in the face of the considerable opposition expressed to the use of the word "immigrant" and, above all, to the definition of the word "immigrant".

Noble Lords will recall that at Committee we were concerned not just about the use of the word "immigrant", but at the fact that in Clause 12 immigrant was defined as, a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)". We argued that that was a much wider definition than it was intended should be covered by the provisions of Clauses 8, 9 and 10. Unfortunately, if we look at Amendment No. 100, the Government have changed "immigrant" to, person subject to immigration control". However, they have not changed the offensive inclusion of those who have been given leave to enter or remain in the United Kingdom. It was and still is our view that those people should not be included in any definition in the Bill. It does not help for them to be called, person subject to immigration control", rather than being called "immigrant".

I am sorry to say that we have a change of wording but in most of the cases in which it occurs not a change of substance. I do not propose to suggest to the House that we vote against Amendment No. 64 at this time. But I am not happy about it. It is nothing like as good as our Amendment No. 80 moved in Committee. It contains the same faults as the Bill as printed contains; that is, it gives and it takes away. It has the same fault in that it requires conditions to be specified by order by the Secretary of State, which makes life difficult for employers who have to try to interpret who is covered by the provisions of the Bill. Although to some extent it is simpler and reduces to one subsection the original wording, it is only a marginal improvement rather than a major one.

We are grateful for what we have; but it is a small amount compared with the intentions of many of us who opposed the use of the word "immigrant" at the Committee stage. I fear that the implications of unnecessarily and undesirably identifying and isolating hundreds of thousands of people who have a right to be in this country, who have leave to be here or remain here, still exist.

Lord Renton

My Lords, before the noble Lord sits down, if the words "subject to immigration control" or some other limiting words are not inserted, it would mean that a person—the employee—who has attained the age of 16 would be subject to the Bill. That would include anyone, even someone who was born here. It would be absurd to say that somebody born here should be guilty of an offence if they have not been granted leave to enter or remain in the United Kingdom.

Lord McIntosh of Haringey

My Lords, I take that as being an intervention, and the answer is that I was not moving or speaking to Amendments Nos. 65 and 66 which in any case, like Amendment No. 67, are pre-empted by Amendment No. 64, as we were no doubt told by the Deputy Speaker.

The amendments which we will be debating substantively on later clauses refer to a "relevant" person and then define that relevant person. My objection to Amendment No. 64 is that it uses a form of words which then relate forward to Amendment No. 100 in Clause 12. It is up to the Government how they group their amendments. I should have thought that they would wish to group Amendment No. 64 with Amendment No. 100. It would make debate a good deal easier. However, I am not speaking to Amendments Nos. 65 and 66; they will not and cannot be moved.

Baroness Gardner of Parkes

My Lords, I am not sure why the noble Lord keeps saying that these are interventions in the Minister's speech. As I understand it, at Report stage she moves the amendment, we are all then entitled to speak to it and then the Minister winds up.

I wanted to comment briefly and say, as I said at Committee stage, that I have always been proud of being an immigrant. I do not dislike the term and any suggestion of change was because the noble Lord wanted it. However, there may be other people like myself who have come to this country and who are happy to be called immigrants.

Lord McIntosh of Haringey

My Lords, perhaps I may intervene. The noble Baroness does not have a black face and is not likely to be asked questions about her employment status by an employer if she goes for a job.

Baroness Blatch

My Lords, I shall be brief in winding up on the amendment. The change is correct. The noble Lord tempts me to enter a debate which rightly belongs later in the Bill; that is, in relation to the scope of Clauses 9 and 10. We will have that debate later and I rest for the moment on moving Amendment No. 64.

On Question, amendment agreed to.

The Earl of Courtown

My Lords, I beg to move that further consideration on Report be now adjourned and, in moving the Motion, I suggest that the Report stage begin again not before 10 minutes past eight o'clock.

Moved accordingly, and, on Question, Motion agreed to.