§ Section 55 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (late claim for asylum: refusal of support) shall cease to have effect."
§ The noble Earl said: In moving Amendment No. 24, I shall speak also to Amendment No. 41, which would amend Schedule 4. Section 55 of the Nationality, Immigration and Asylum Act 2002 was in my view a mistaken and last-ditch attempt to reduce the number of asylum seekers in this country. It was introduced during the very final stages of the NIA Bill's passage through Parliament in the autumn of 2002, giving both Houses only very limited opportunity to consider its potentially devastating consequences.
§ The amendment to repeal Section 55 was tabled in another place by Neil Gerrard. It was grouped, but because of the guillotine it was never debated, which is another example of this House picking up the pieces—in this case an argument which already had considerable support among MPs. Incidentally, the original government amendment to introduce Section 55 was given only 15 minutes in this House in October 2002 and no time at all in the Commons.
§ Noble Lords may remember that Section 55 originally denied all National Asylum Support Service (NASS) support to adult asylum seekers who claimed in country and could not show that they claimed as soon as reasonably practicable after arrival.
§ The Government have since all but admitted that this section is not working, conceding only last December that three days is a reasonable time in which to claim. In other words, the Government have accepted that this section, which so many of us opposed 18 months ago, was always based on the false premise that people—including many genuine claimants who may have suffered trauma, been trafficked or tricked into coming, been given false documents or destroyed documents under duress—should somehow be able to produce all the right papers at the port of arrival or soon afterwards.
§ Noble Lords who support the amendment are pointing out that most people are in this position when they come here, and that the three-day concession has made very little difference. That is also confirmed by the high rate of success of in-country applications. Many applicants with well founded claims apply after 72 hours.
§ As the noble Lord, Lord Avebury, said in a previous sitting, the High Court is now flooded with cases, with solicitors turning away more than they can take on. In-country applications, meanwhile, are still at a very high level. Four out of 5—81 per cent—of asylum seekers on whom the Home Secretary made a positive asylum decision in the first three quarters of last year, 658 for example, had applied in country. That is three quarters of all applicants. Using 2001 figures, two out of three positive decisions were based on in-country applications. That situation will continue unless Section 55 is removed. The Home Affairs Select Committee this year described it as harsh and called for a review. There is an element of official desperation in that, while most people are refused support in their first week, case workers are even being instructed that someone claiming asylum four days after arrival is a suitable case for refusal. It is obviously absurd to say that asylum claims that have credibility on a given evening somehow lose credibility the following morning.
§ I shall briefly cite two cases from the Merton Churches' support group. One young woman arrived on the Saturday of a bank holiday weekend. She went to the immigration office in Croydon on the Monday, and it was closed. She went back on the Tuesday and was judged to be a late claimant and refused under Section 55. An elderly Somali woman lost her first appeal on the ground that she did not know where she was or where she had come from. Her second appeal was won for the same reason, because she was obviously suffering from dementia. That surely demonstrates the absurdity of the three-day rule.
§ Incidentally, it would be helpful to hear from the Minister whether the section was regarded as a deterrent. I understand that the fall in applications last year was not the result of Section 55, but of other factors, such as external border controls and reduced numbers coming from Iraq, which were down by 72 per cent last year. The proportion of asylum applications made in-country has actually increased. Of the total number of UK asylum applications, 65 per cent were made in-country in 2001, and that figure rose to 72 per cent in 2003.
§ The humanitarian consequences of all that are most obvious to local authorities, non-governmental organisations and churches, all of whom have to take responsibility for any failures of legislation. The Mayor of London's office, which is very concerned about the matter, has published its own report, Destitution By Design, expressing concern about the number of adults made destitute by the section, which came close to 10,000 last year, or 200 people a week.
Research for the Greater London Assembly showed that, despite the efforts of local communities, 29 per cent of people denied support under Section 55 in London last November had to sleep rough. That implied a rise of more than half on the previous recorded tally of people rough sleeping in London. As many as 50 per cent of those destitute under Section 55 are women, which is a much higher proportion than of asylum seekers as a whole. I declare an interest as a board member of Christian Aid. Thanks to the Churches' Commission for Racial Justice, I have read case studies from the Merton Churches' support group and the Eritrean group at the Crossroads Women's Centre. There are also examples from Oakington. Those show how many church and community groups, mainly in London but also elsewhere, are trying to cope with increased numbers. People who have
undoubtedly escaped persecution and destitution in their own country are simply being turned out on to the streets. The Catholic bishops have called for repeal of the section. Their statement reads:
seeking asylum is a fundamental human right, guaranteed in international law. It is therefore incumbent on the Government to make certain that no-one is left destitute, homeless or detained arbitrarily at any point during the process of an asylum application".
One worrying consequence of Section 55 has been the suspicion that some established voluntary agencies that are trying to administer NASS support under this section are seen by asylum support groups as agents of policy as well as service-providers. That could easily undermine the mutual trust that has always existed at local level. I know that the Government are under pressure to get results. We have all heard about the Daily Mail poll that shows how public confidence has fallen. But I hope and expect that I have said enough to convince noble Lords that Section 55 was a mistake and that, although we may well need to discuss the cut-off point following earlier amendments, the Government must now move to repeal it. At the very least, they should organise an independent review. I beg to move.
§ 9.15 p.m.
§ Earl Russell
My Lords, I thank the noble Earl, Lord Sandwich, for the clarity with which he has introduced the amendment. He has dealt with all the nuts and bolts with admirable precision. I want to try to look at it in a slightly wider context. It seems that there are four possible grounds on which the amendment could be held to be valid. I need to prove only one of them to satisfy the Committee; in fact, I think that there is force in all four of them.
First, it could be argued that it is always wrong to reduce people to a level of destitution; that it is a basic principle that people have a right to life; and that the state is there to protect them and to help to ensure that right to life. The Minister will talk about rights and responsibilities, but when you link rights and responsibilities, the biggest responsibility of all is that of the Government to protect the lives of those temporarily or permanently under their protection. That is, in the 17th century phrase, the keystone which closes up the arch of government. Take that away and all the rest collapses.
Prima facie, having no visible means of support is below subsistence level. But, as my late colleague Professor Jack Fisher used to say, if you are below subsistence level you are dead. That creates a rebuttable presumption that some of those who have been so disentitled but have stayed alive have done so by illicit means. The maxim,lead us not into temptation",has more force than it is sometimes given. It is to lead people into temptation to give them no visible means of support whatever.
Saint Thomas Aquinas maintained that it was not a sin for the destitute to steal from the rich to support themselves. I have never been certain that I have agreed all the way with Saint Thomas. I would prefer 660 to say that it was a sin that I would always be inclined to look on with mercy. But it is certainly a temptation that is created. So it contributes more—and, God knows, we do not need this—to the fear and hatred of asylum seekers, which was demonstrated last week in Portishead, where there was an attempt to open an office for interviewing asylum applicants. All the residents of Portishead have created such an outcry against that—polluting the town with these evil people—that the only one who spoke up for them at a town meeting was in real danger. That is not clever.
I once said that the case for not disentitling people to benefit was as strong in terms of fear created among the rich as of want created among the poor, because when the rich get fear they tend to get fierce. I had quite forgotten that I had said that. I was reminded of it by the noble Baroness, Lady Kennedy of The Shaws, whose newly published book, Just Law, is well worth studying.
It may be argued that even if it is right to deprive people of benefit, it is wrong to do it to asylum seekers because they are too vulnerable. There is a sort of unofficial guidebook—a sort of Down and Out in Paris and London as it were—which English people on the streets pick up from each other very quickly indeed. Having had a pupil who was homeless on the streets for six years, I have heard a lot about this. He was a paranoid schizophrenic who decided not to take his medicine. English people on the streets know which restaurants put out food, at which times; they know the culture; they can talk to people and we do not allow the force of this. During the policy of dispersal, that ill-fated policy, there was once a Malay who was sent to Brighton where not a single person in the whole town spoke his language. Arguably, it is a more severe penalty when inflicted in these circumstances than when it is inflicted on people who are in surroundings that they know.
There is also a remarkable failure of due process in the working of this clause. The noble Earl, Lord Sandwich, quoted cases of the next working day. In Mr Justice Maurice Kay's judgment, there is a case of someone who applied for asylum later the same day on which he landed, which was held to be an unreasonably delay. Attention has rightly been drawn to the fact that the proportion of in-country applicants has gone up. I have never been able to understand how the Home Office believes that it is possible to deter people from applying in a particular way by changing British benefit regulations. I simply do not see how such regulations are brought to the attention of the people who are supposed to be subject to them. This is not a rhetorical question: were these changes promulgated on the streets of Harare, or Freetown, or Kabul? Are the presses of those countries so free that you can report, in detail and accurately, under what terms you can get asylum in the United Kingdom? I would be surprised if that were the case, but I cannot see how these things can have a deterrent effect if they cannot be made known to those who are supposed to be deterred.
It is about time that the Home Office gave an answer to that question. Certainly, the system is not working. It is having the reverse effect from the one intended.
661 Also, it assumes that applicants in-country are likely to be less genuine than those who apply at the ports. That contradicts the Government's own figures, which show that two-thirds of successful applications are made in-country. As one of my pupils said to me when he found a contradiction in my index, "Where are you right?". The Government must be wrong in one or other of these things.
It is likely contrary to the European Convention on Human Rights. I had a communication this morning from Fisher Meredith, the firm for which my daughter-in-law works—I declare an interest. I do not have the details, because I mistakenly thought that this was coming up tomorrow. It confirms what Mr Justice Maurice Kay has said, that the volume of cases under ECHR on this subject is in danger of clogging up the courts because they have nowhere else to go. He also confirmed my impression that the interpretation of the words, "inhuman or degrading treatment" in Article 3 of the Convention is at present hanging in the balance and that a judicial consensus has not yet emerged as to how those words are to be interpreted.
We also agreed that the more cases of the sort precipitated by this clause that come to the courts, the more likely the judges are to reach the conclusion that disentitlement to benefit is always inhuman and degrading treatment. At present, the threshold is referred to as "destitution plus". No one understands exactly what is meant by the "plus", but it could be held that the particular circumstances of being an asylum seeker, on which I was speaking a moment ago, constitute that plus. That is a risk that the Government should not take lightly.
Were the Government or the ECHR judges to decide, either in Strasbourg or in this country, that all disentitlement to benefit was in breach of Article 3, that would cause a confusion in Government social security policy which, if I were the Minister, I would not approach with equanimity. It would be a good example of the regular political rule that when one gets very frightened of something one produces rather than prevents the effect that one fears. The Government really ought to think again, or they will find that it is too late.
§ 9.30 p.m.
§ Lord Hylton
This discussion appears to raise important questions of procedure. First, why are we being asked to consider four amendments and one clause stand part debate in isolation from the rest of Committee stage of the Bill? Secondly, why have the Government brought this little piece of Committee stage before us at a very late hour, well after any conceivable dinner time, following two other complex and controversial Government Bills? It seems to be unusual, unprecedented and very undesirable.
Turning now to the amendment, I am very happy to support my noble friend Lord Sandwich. I think that he moved the amendment in a most comprehensive, logical and moving way. I hope that the Government are therefore in listening mode tonight, particularly regarding an amendment designed to prevent 662 destitution. The Government may fancy that they have saved themselves some trouble of an embarrassing kind by the way in which they have treated the House. But I think that it is not out of order to suggest that they will be storing up trouble for themselves during the later stages of the Bill. Have they perhaps considered the prospect of sitting on every Friday between now and July?
Home Office statistics apparently admit that there are already 7,500 people destitute because of the legislation that we are considering. Reference has already been made to the burden that this causes for Church groups. I hope that the right reverend Prelate, who is in his place, will be able to add to that and to give more details. It is certainly causing problems, acute worries and anxieties for the members of refugee and exile communities already in this country who are bound to feel moved by compassion for their fellow countrymen who find themselves in such difficult circumstances. It is also causing major problems for a whole range of charities that are confronted with people in a destitute state and feel that they cannot and should not just walk by on the other side.
As to public policy, it seems that the present state of the law is likely to cause people to take to begging as the only way of keeping themselves alive and, possibly, to resort to quite aggressive begging, which many will find offensive in itself. It is also bound to be a strong incentive to those affected to find whatever employment they can at whatever wage rate in the black economy. Surely that runs totally contrary to the Government's minimum wage policy.
On all those grounds I am happy to support the amendment and I wish it very well.
§ Lord Avebury
At the time Section 55 was introduced by the Government, I believe it was generally understood that the intention was to deny benefit to those who had entered the UK in some other capacity and who claimed asylum either when they reached the end of the road of their permitted leave to remain or at some point after their leave had expired and when they were detected as overstayers. That was certainly how Mr Neil Gerrard, the chairman of the All-Party Refugee Committee in another place, thought it was supposed to operate. The Minister did not contradict his assertion that people had been denied support even if they applied the day after arrival. My noble friend has given an example of someone who applied on the very day of arrival, but was denied support.
In Committee in the other place the Minister, Miss Beverley Hughes, referred in the last few words she spoke before the guillotine fell to the December 2003 concession, under which people who applied within three days were supposed to be given support. She did not say whether people who had applied within three days prior to the concession and had been denied benefits would have them restored. As the noble Baroness may recall, the Inter-Agency Partnership found that almost half of those refused support under Section 55 between November 3 and 21 last year had actually applied either on the day of their arrival or the 663 day after. The Minister said nothing about why someone who applies within three days should be considered meritorious, while someone who applies within four or five days would be considered undeserving of benefits. I should be grateful if the Minister could explain the Government's thinking on these points.
I believe that the noble Earl, Lord Sandwich, mentioned the communication we have all received from the Mayor of London saying that the 72-hour concession was not likely to make a significant difference because it was only a presumption which had to be confirmed by National Asylum Support Service caseworkers, who have not been particularly generous in their interpretation of Home Office guidance. The Mayor pointed out that a great many people with well-founded claims do apply more than 72 hours after entry, and they will continue to be destitute.
I want to draw attention to a matter notified to us by the Children's Society; that is, the large number of asylum seekers from the A8 countries who are about to be added to the pool of Section 55 indigent. NASS wrote to local authorities on April 1 saying that, from the end of this month, those people will lose their rights to benefits and accommodation. They will of course acquire the right to work, but not only will they have to find a job by the end of the month and satisfy an employer that they are lawfully able to work, they will also have to find living accommodation with a landlord prepared to wait until the arrival of the first wages payment or salary cheque. In the real world, landlords ask for a deposit up front. None of these people will have that kind of money.
We have already discussed the problems arising from Schedule 3 to the Nationality, Immigration and Asylum Act 2002 in relation to another group which has been made ineligible for benefit under it: those whose immigration claims have failed. The same problems arise with all of the classes of person denied benefits; that is, the duty to support children, if not the parents, and the duty to support any person where failure to do so would breach their rights under Community law or the ECHR. But in the case of the A8 nationals, no provision has been made for NASS to conduct an assessment to ensure that those rights would not be affected by an abrupt withdrawal of support. Some of them would be incapable of work because of pregnancy or their duty to care for young children or sick relatives.
In the past few weeks, as we have heard, practitioners have received an avalanche of claims from agencies and individuals with either Section 55 refusals or, now, EEA support withdrawal crises. Mr Jean Patrick of Brent Initiative Community Action has told us that he had 16 Section 55 refusals in a single day, half of them having claimed on the day of their arrival. So it appears that the December concession has not yet dawned on NASS officials in Brent. But Mr Patrick says that he is unable to take on 664 any of the Section 55 cases submitted to him in the past two weeks because he is absolutely swamped with A8 cases.
Does the duty to support people where their community or ECHR rights would otherwise be breached extend to NASS itself as well as to local authorities? If so, why is it not conducting assessments of the 2,571 A8 asylum seekers on its books instead of handing over the entire responsibility to local authorities on 1 May?
Among this A8 group there are some who had become eligible for indefinite leave to remain under the backlog clearance programme. Some had even been sent forms and returned them, but the forms had yet to be processed. Others had not yet been sent the forms. What is the benefit and accommodation situation for these people?
The combination of Section 55 and the dumping of EEA nationals by NASS at the end of this month without transitional arrangements or an agreed mechanism for looking after those unable to work or whose rights are in jeopardy, threatens chaos for local authorities, agencies and the courts, and an increase in the numbers sleeping rough without the means of providing themselves with the basic necessities of living, as described by the IAP. Will the Minister agree to meet us, together with representatives of local authority and non-governmental organisations, to discuss all these problems as a matter of urgency?
§ The Lord Bishop of Chester
My Lords, I should like to identify myself in general terms with all noble Lords who have spoken thus far. This is an extremely serious issue in our midst. As has been mentioned, individual church groups often get involved in caring for those who have no other means of support and subsistence. It does not happen much in my diocese—it is a long way from the main ports and it does not have the large immigrant communities to which people often go—but I know from talking to others and receiving correspondence just how difficult and critical the stories are of people who are directly affected.
At the same time, I have sympathy for the Government. They face a most difficult question. One of the problems is that the question tends to get caught up in political debate. It seems to me that we have to search for cross-party agreement as to what to do with a problem that, ultimately, we cannot control. It is impossible to control in advance how many people will come to this country with a genuine claim for asylum, a point made previously by the noble Earl. It is absolutely right. I can understand the political pressures on the Government which lead to the setting of targets—the Prime Minister stating that numbers will be halved by a certain date and so on—but, frankly, the thought that we can control all the problems in our midst is a modern myth that does not face up to reality.
There are great questions about global warming, terrorism, what to do with despotic regimes and how to control large flows of population from one country to another. The flows will get greater and greater in the 665 years to come as transportation gets easier and language barriers are less. In a society which more and more operates on the basis of freedom of opportunity—something that I am happy to welcome—you will always have a bigger difference between the winners and the losers. Societies based upon freedom always generate an underclass. That is the story of America in many ways and it has become true in this country in the past 20 or 30 years on the back of considerable economic prosperity.
This problem will not simply go away. We should admit that and try and find a way in which we can achieve some cross-party understanding which can be presented, in those terms, to our country, and avoid getting caught up in political debate. Once that happens, the people who lose are the asylum seekers. One thinks of the questions we remit to Select Committees or Royal Commissions. This strikes me as a question which must get beyond the party political debate.
I can see that simply removing the section by amending the Bill in this context will not in itself solve the problem, but the problem will not easily go away. As the noble Earl said, every society is judged by the way it treats the weakest in its midst. That is a deep truth in every society. That is why what goes on in our prisons and young offenders' institutions is such a scandal. I recently visited one and was absolutely horrified at what happens. Eighteen and 19 year-olds in a young offenders' institution were routinely sworn at by the prison officers and banged up 16 or 17 hours a day. This is another debate which has to be taken out of the to-ing and fro-ing of party politics.
While I support all the speeches that have been made so far, I have great sympathy with the Government's position. Somehow we must find a better way of addressing these issues.
§ 9.45 p.m.
§ Baroness Anelay of St Johns
The noble Earl, Lord Sandwich, was kind enough to telephone me last week about his amendment. I made it clear that I was not in a position to be able to support him. However, I recognise, as have other noble Lords during the debate, that this is a highly sensitive and complex issue that will, as the right reverend Prelate said, not go away. It is right that the noble Earl has tabled this amendment. It holds the Government—any government, of any political party, who have to consider these issues—continuously to account.
It is not only right that there should be continuous parliamentary scrutiny of these matters, but it would be useful if the Government looked again at the recommendation of the Select Committee on Home Affairs in January this year that there should be an independent review of Section 55. I agree with the right reverend Prelate that there are advantages, in some issues, of going out with the normal party political argument. This may well be one such issue. I shall be very interested to hear how the Government have reflected on that recommendation since January this year.
666 I am also grateful to the Refugee Children's Consortium for the careful briefing it has given noble Lords on the amendment. One issue which was referred to fleetingly is the fact that when we pass such measures, there can be unintended consequences, and I would like to draw the Minister's attention to one. The Refugee Children's Consortium refers to the fact that pregnant women can be deprived of all manner of support under Section 55, which can place both them and their child at risk. Have the Government looked at that particular problem since the operation of Section 55 and, if so, what has the result been? If the Government's attention has not been drawn to that, might they be prepared to consider it and receive representations from the Refugee Children's Consortium?
§ Baroness Scotland of Asthal
My Lords, I thank all noble Lords who have participated in this debate. The noble Earl is right that this is the greatest degree of scrutiny that this provision has had to date.
I should like to say a word in response to the comments of the noble Lord, Lord Hylton, about the stage at which this matter comes before your Lordships today. As noble Lords know, we are now permitted—indeed, enjoined—to sit on all these days until at least 10 o'clock. The Committee stage has to be agreed between the usual channels. It was hoped initially that this part of the Bill would be reached somewhat earlier in the previous debate. It is simply fortuitous that it has come before the Committee at this time. Others may say that the noble Lord's comments should have been targeted at those who came before us, as opposed to those who have waited so diligently for our line to be reached today.
The noble Earl, Lord Sandwich, made a number of points, with which many noble Lords have agreed but not all of which I feel able to agree with. I wish gently to make some points about the context in which some of the reports should be put. The noble Earl rightly mentioned the GLA report. Noble Lords will know that that survey used a very limited sample; the response rate was only 24 per cent and only 248 people were covered, of whom only 14 per cent were said to have been affected by Section 55. It is easy to get the wrong impression from the figures. However, I take on board entirely the basis of the noble Earl's concern: he is concerned that those who should have had succour did not receive it.
I also acknowledge what was said by the right reverend Prelate the Bishop of Chester. It is easy to take an unbalanced or one-sided view of what is inherently a difficult problem. In considering these issues, there is a tension between providing proper succour for those who seek asylum and dealing with another issue—that of economic migration. One can understand why a number of individuals in other countries seek properly to move from that country for adventitious advantage, for economic reasons. One does not blame them for so doing, but one must recognise that there is a difference between asylum and economic migration.
667 This Government have taken strenuous steps to enhance the opportunity of legitimate means for encouraging economic migration in a proper, planned way. We dealt with some of those in our earlier debates on other subjects. The question is how we achieve that proper balance. Section 55 has contributed to halving the asylum intake over the past 12 months, from October 2002. It achieved its original purpose. Throughout that period, the way in which it operated in practice was kept under close review.
§ Earl Russell
The Minister is saying a great deal that makes sense, but can she show me any way in which Section 55 distinguishes between genuine applicants and economic migrants? If so, how?
§ Baroness Scotland of Asthal
We have sought to say that it distinguishes between those groups by encouraging those who come to this country to make their application as soon as possible, so that we can together differentiate between one group or another.
Throughout the period, the way in which Section 55 has operated in practice has been kept under close review. As a result, as noble Lords have said, the policy was adjusted on 17 December 2003 to allow the three days following the arrival in this country to lodge the asylum claim. That has resulted in about half of those who are subject to a Section 55 decision being granted access to asylum support, as opposed to about 75 to 80 per cent being refused support, which was the position before 17 December. So it is not right to say that a significant change has not taken place; it has.
To answer the question asked by the noble Earl, Lord Sandwich, the Government are keeping the operation of the policy under review, including the way in which it interacts with Article 3 to ensure that, while it continues to provide the necessary deterrent, it is applied only to the extent necessary to deliver our overall aim of an effective asylum process that encourages applicants to come forward and to be frank with us. If further adjustments are necessary, the Government will make them in line with the original statement made by my noble friend Lord Filkin on 17 October 2002.
I should say to the noble Baroness, Lady Anelay, that the recommendation in relation to the review has been considered. It was raised by the Committee. We shall look at that. I cannot give the noble Baroness any promises in that regard but it is certainly something that the Government will bear in mind.
The noble Lord, Lord Avebury, and the noble Earl, Lord Russell, mentioned the issue of the number of judicial reviews that are currently before the court. The Committee will know that there are three test cases which await determination by the court. Many of the judicial reviews that are currently pending before the court are reliant on those three test cases. Many of them are waiting almost in abeyance until they are decided. Once those three decisions are available, of course the Government will consider further what to 668 do in response to those judgments and in relation to this policy. That would be an appropriate opportunity for us to look at those issues.
§ Lord Avebury
Has the Minister left the subject of the three-day concession? Will she give me an answer to the question of what happens to people who were denied benefit having claimed within the three days and who now reapply following the concession?
§ Baroness Scotland of Asthal
I have not left that subject. As the noble Lord will know, I try to give a comprehensive answer and take the points in order. It was convenient to tell the noble Baroness about certain issues as I was talking about whether there would be a review.
It is not proposed that we should use retrospectivity in relation to those cases which were dealt with before December. Those decisions were lawful within the context. The noble Lord will remember that we had three cases dealing with whether it was or was not appropriate to make that determination at that time. The authorities supported that action. We do not intend to go back over those but we certainly took fully into account the comments that were made by a number of agencies and individuals about their operation. It was for that reason that my right honourable friend the Secretary of State for the Home Department, David Blunkett, made the statement regarding the change in relation to three days. Since that period it has operated as I have just indicated.
The noble Earl, Lord Russell, also asked whether we had advertised. We have done so. Before implementation these provisions were advertised overseas. The posters have continued to be displayed since then. It is quite clear that there is an active appreciation and interest about what the provisions are in individual countries to which people seek to move. Therefore, this information is a matter of some importance.
The number of judicial reviews has reduced now compared with those before Christmas. Before Christmas there were 50 or 60 a week. There are about 10 a week now. Effective reconsideration of the process since 24 November 2003 has provided an efficient and timely review mechanism. That has helped. As I have indicated, the three-day process eased the situation in which people found themselves.
It is important to remember that Section 55 was part of a wider package of measures contained in the 2002 Act aimed at creating a more streamlined and cohesive asylum system. It was designed to tackle abuse of the asylum system and send a clear message to those who are simply economic migrants that they will not be supported at public expense. It also seeks to bring about a change in behaviour so that genuine asylum seekers should make an asylum claim immediately at the port of arrival or as soon as reasonably practicable afterwards. Section 55 has played its part in reducing asylum claims.
669 It is a tough policy but there are safeguards to protect the vulnerable. Families are exempt from Section 55 and support will be provided, as noble Lords know, if it is necessary to avoid a breach of Article 3 of the European Convention on Human Rights, even if the claim was not made as soon as reasonably practicable. Unaccompanied asylum seeking children are not affected by Section 55—they are supported by local authorities under the Children Act 1989. Those with care needs are also supported by local authorities under the National Assistance Act 1948. It is open to anyone who receives a negative decision under Section 55 to request reconsideration, as I have indicated.
§ In relation to NASS support—
§ 10 p.m.
§ Earl Russell
I am sorry to return to the point, and I am grateful to the Minister, but can she give me any reason at all to suppose that Section 55 has caught more economic migrants than genuine applicants?
§ Baroness Scotland of Asthal
It has certainly helped to differentiate those who have a bona fide claim and those who do not. That is my understanding. Whether the figures go further, I know not. I certainly undertake to write to the noble Earl if there is a better answer to be had that is not available to me now.
I was also asked about the NASS support for accession nationals. Members of the Committee will know, not least from our Friday debate in relation to an order on the subject, that we have now written to all accession nationals supported by NASS or a local authority under the interim provisions to explain their options. NASS outreach teams are following that up with home visits to ensure a smooth transition.
Accession nationals currently supported by NASS or a local authority will have three options. They can register as workers under the Home Office workers' registration scheme, and will be eligible for only certain DWP benefits and social housing. They can remain in the United Kingdom as jobseekers but become self-supporting—that is, stay with friends or relatives. Alternately, they can leave the United Kingdom, and local authorities will have the power to provide temporary accommodation to families, and make travel arrangements to their country of origin both for families and singles.
The work registration scheme will go live on 1 May. A designated, dedicated casework team has been recruited and training is under way. Accommodation for the team and the IT systems are in place. We went through the details of that on Friday. We hope that the scheme will come into operation on 1 May smoothly.
I understand the concern expressed in relation to Section 55. The Government's view is that it has utility and has been amended to make it respond more creatively and effectively to the needs identified. We will continue to review it, and certainly will review it when the matter comes for further consideration as a result of the cases currently before the Court of Appeal.
670 One specific point to which I did not respond, and which I should have mentioned, was in relation to pregnant women. The noble Baroness will know that they are a group of people who are very vulnerable and are always given very careful consideration. If they are visibly pregnant and in advanced stages, Article 3 provides the safeguard. Caseworkers have been trained to take great care in considering all potentially vulnerable cases, so it is very much an issue that is at the forefront for those who make such decisions. I hope that the noble Baroness will feel a little comforted as a result of that.
I invite Members of the Committee not to press the amendment. Particularly bearing in mind that it is now two minutes past 10, I shall say no more.
§ The Earl of Sandwich
I thank the noble Baroness very much for that full explanation of why we have to live with Section 55. She may have anticipated that I was not expecting her to withdraw the section at a stroke. On the other hand, I hoped that she would recognise the strength of the opposition to it and, even more, the arguments against it continuing in its present form. At the very least, the Home Office could more seriously after today consider the possibility of the review, which was supported by the noble Baroness, Lady Anelay, if only in relation to Court of Appeal cases. That is an advance.
I had hoped that some of the arguments for retaining the section would fall away. For example, the three-day concession may mean that fewer people are destitute, but thousands more are bona fide applicants who do not qualify for assistance and still have to prove their claims the hard way. To my mind, there is still no evidence that Section 55 is an effective deterrent.
When referring to that section, the noble Baroness used phrases suggesting that it had "contributed to" or "played its part in" halving the number of applicants. I was grateful to the noble Earl, Lord Russell, because it would be helpful if the Minister wrote to him—and copied the letter to me—explaining how those calculations are made. Of course I do not intend to challenge the figures given by the noble Baroness, but we will return to the matter at the next stage.
I also thank other noble Lords for making important contributions. For example the noble Earl, Lord Russell, asked how people could hear about our regulations in the United Kingdom. The Home Office has an exaggerated view of its own publicity. The noble Lord, Lord Avebury, mentioned the important question of the 2,000 or so A8 asylum seekers, which is causing a degree of chaos. The right reverend Prelate raised our sights and made a case for sympathy for the Government, which we all appreciated half way through. I was also glad to hear the reassurance given by the Minister about the outreach, including efforts being made by NASS to research the true situation of asylum seekers through careful casework. That is always encouraging.
671 We shall return to the matter and we will read the debate carefully. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 [Retention of documents]:
Baroness Anelay of St Johns moved Amendment No. 25:
Page 12, line 27, leave out from "document" to "an" and insert "is detained by
§ The noble Baroness said: In moving Amendment No. 25, I shall also speak to my Amendment No. 26. The debate on whether Clause 12 should stand part is in the same group and appears in the names of the noble Lords, Lord McNally and Lord Avebury.
§ I am grateful to the Immigration Law Practitioners' Association for their briefing on the background to the clause. These are probing amendments that seek to clarify the Government's intentions in adding this new clause to the Bill at Report in another place. At that stage there was no time for the Minister even to introduce and explain the clause, nor for the House to debate it.
§ Clause 12 provides the Secretary of State or an immigration officer with the power to retain documents—which could include a passport or a birth certificate—while it is suspected that the person to whom the documents relate is liable to removal; and that the retention of the document may facilitate their removal from the United Kingdom. The Explanatory Notes state that this clause complements current powers, such as those in paragraphs 4(2A) and 18(2) of Schedule 2 to the Immigration Act 1971, which already allows the seizure and retention of documents in certain circumstances.
§ Can the Minister explain in what respect the new powers in Clause 12 complement the existing ones and in what respect they add to them? In what circumstances are the documents likely to "come into the possession" of the Secretary of State or an immigration officer? The drafting is rather odd. It sounds as though someone could be trying to obtain documents by stealth. I am sure that that is not the case, but the drafting has some odd implications.
§ Do the Government agree that the provision in the clause could authorise the Home Office or the Immigration Service to hold almost any document of a person with limited leave to remain—who would be liable to removal if a future application were refused, or if he overstayed—as well as those here without authority? There is no time limit given for the retention of the documents. It is not even stated that the documents would be returned to the person on removal or on being granted leave. Why is that? Do the Government intend that there should be occasions when documents would not be returned and, if so, what would those occasions be?672
§ My reason for tabling the amendments is to ask the Government to put on the record their explanation for this clause and to confirm which documents they expect to hold and how and when they should be returned. I beg to move.
§ Lord McNally
Following the noble Baroness, Lady Anelay, is increasingly becoming like following the school swot. So assiduous is she in preparing herself for her amendments that, looking desperately through the Immigration Law Practitioners Association brief, I could find nothing to delay the Committee beyond the questions she has put.
My noble friend Lord Avebury had the same intentions in the more brutal method of getting rid of the whole clause. The guillotine in the Commons prevented discussion on the matter and that is why the Government want the clause.
§ Lord Hylton
The Government have a lot to explain in particular about the drafting of Clause 12. Why is the 1971 Act thought to be insufficient in what it says about documents? The Explanatory Notes blandly state that Clause 12 "complements" the 1971 Act. What on earth does that mean?
The noble Baroness, Lady Anelay, rightly pointed out that the clause says nothing about the return of the documents. How long may they be retained and when will they be returned? I most definitely hope that they will be returned before a person is removed from this country, otherwise there surely is a danger of the person becoming undocumented and a further risk of his ending up in a stateless condition. The burden of proof is on the Government.
§ Lord Avebury
The clause is drafted so that the document may not be owned even by the person to whom it relates. Is that supposed to deal with the fact that passports are generally the property of the issuing authority? I do not know whether that applies also to driving licences, identity cards or student cards. However, does the Minister agree that, as drafted, the clause could refer to a document which bears little relation to the person, such as the bank statement belonging to someone else showing a payment to that individual, and that that document could be seized?
Is it one of the purposes of the clause to legalise the Home Office practice, presently followed, of hanging on to the passports of individuals who send them in with their applications for leave to remain when it is alleged that they entered illegally or are overstayers? Apparently, the Home Office continues to retain the passports even when the person concerned indicates a willingness and intention to depart voluntarily. I can understand that the IND may not be satisfied that the person genuinely intends to leave, but there has to be some procedure for reuniting a departing suspect with his passport.
ILPA has given us a couple examples of how the Home Office is already misusing the power which is supposedly conferred by this clause. Mr C, an asylum seeker, married a British woman in 2000 when he applied for leave to remain as her spouse. The 673 application was refused in December 2001 and again when his wife made further representations. In June 2003, he applied to the High Commission in New Delhi for entry clearance to join his wife and was given a date of interview of 10 September. His solicitors then repeatedly asked the Home Office for his passport so that he could return to India for the interview. That, of course, would have meant abandoning the asylum claim he had made. However, the Home Office failed to respond. In December 2003, it told his solicitors that if they gave a few weeks' notice of his intention to travel, it could arrange for him to collect the passport after he had passed through immigration control.
Mrs J tried to stay in the UK with her second husband and their two young children early last year. She had no reply from the Home Office, but was advised that she needed to apply for entry clearance from her West African country of origin. She applied repeatedly but in vain for the return of her passport last summer until finally the Home Office told her that the passport had expired and that it would get her a temporary travel document—a process which took until January 2004.
Considering that the clause relates to persons who may be liable to removal, one would have thought that the IND would be only too pleased to facilitate their departure to cross them off the books. We want to know why those problems arise and why the Government should be given much greater powers when they cannot manage their existing powers to hold on to passports more efficiently and responsibly. How can we be confident that all documents will be returned properly when the person concerned has a need to travel? I hope that the Minister will explain the purpose of the clause, which documents are likely to be retained and the length of time for which they will he held.
§ 10.15 p.m.
§ Earl Russell
The return of documents is a genuine problem. I was once called in on behalf of a colleague in the University of London, who was Georgian by birth and whose research was in Armenia. He had exceptional leave to remain—there was no question of his bona fides —but the Home Office hung on to his passport, I think, for four years. During that time, his research was brought to a dead halt and his college's income was thereby considerably diminished. That case was solved by calling in Lord Williams of Mostyn, a person of whom there are few equals. But you cannot have a Lord Williams of Mostyn for every case where the Home Office computer lets you down.
§ Lord Hylton
I am glad that the noble Earl, Lord Russell, has raised the point of exceptional leave to remain. For years, there have been problems. People in that category, of perfectly good standing in Britain, have been unable to travel or impeded from travelling for a holiday or to visit a relative in another country simply for lack of documentation.
§ Baroness Scotland of Asthal
I find myself in a quandary, because I am able to answer each and every question save for that raised about a particular case by the noble Lord, Lord Avebury. It would probably be wrong, if not improper, to answer him from the Dispatch Box. However, I see that it is a quarter past 10. I am likely to take 15 to 20 minutes in answering all those questions. I am entirely in your Lordships' hands. If it would suit your Lordships, I propose to give a rather staccato answer and then to undertake to write in depth. I would anticipate my reply being seven pages' long. I am entirely within your Lordships' hands. If noble Lords would not like me to take that course, I shall not do so.
I shall answer noble Lords in brief. The 1971 Act does not cover caseworkers, but only immigration officers. The provision would widen the scope of documents that can be retained to include those that may help the redocumentation process. The noble Baroness, Lady Anelay, asked which documents we expect to be able to hold and what the time limits would be. We expect to hold any document that facilitates removal, but primarily passports and identity cards. We must be working towards removal, so the power would be limited. Such documents will be returned unless they are forged or counterfeit. The noble Baroness, Lady Anelay, and therefore all other noble Lords, asked about "come into possession". They come into possession if they can be supplied with applications and they can be obtained during enforcement visits. Those are the two main ways.
Those are the basic reasons for the amendments. I absolutely understand that there has been little opportunity to discuss the issue and to interrogate the Government. That is why I would be more than happy to put what I would have said to the House into writing and to send it to each noble Lord who has participated in the debate. If further comments arise from that, I would be most happy to deal with them on Report. Unless any noble Lord wants me to take a different course—I am quite happy to devote 15 or 20 minutes to my full answer—that is the course that I am minded to take.
§ Baroness Anelay of St Johns
For one brief moment, I thought that a noble Lord was about to say that they wished to let the Minister expand the answer.
§ Baroness Farrington of Ribbleton
It was voices offstage.
§ Baroness Anelay of St Johns
I may be the class swot, but I think that I would have swatted such a voice out of court as well at this late hour. I shall simply thank the Minister for her staccato response and say that we look forward to a greater response. The difficulty is always that the lack of time and consideration that may be paid to measures in another place have to be put right here. However, at this time of night, all we can do is put down a marker and, as the noble Baroness says, have the opportunity of considering her response to see whether we need to return to the issue on Report.
675 I simply signify that I accept what she says as regards the return of passports and ID. Those are not the personal property of the holder as such, and it would not be right for them to be returned if they were forged, counterfeit or stolen in any respect. I will look carefully at other matters that could be personally owned and ensure that those could be properly returned at the right time. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
676 [Amendment No. 26 not moved.]
Clause 12 agreed to.
§ Baroness Farrington of Ribbleton
I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ House adjourned at twenty-two minutes past ten o'clock.