§ 8.41 p.m.
§ Consideration of amendments on Report resumed.
§ Clause 9 [Immigration officer: power of arrest]:
Lord Bassam of Brighton moved Amendment No. 26:
Page 11, line 22, leave out "and
§ The noble Lord said: My Lords, I shall be brief. The proposed amendments extend immigration officers' powers to provide a power of arrest without warrant and ancillary powers of entry, search and seizure, in respect of several human trafficking offences. Those offences are trafficking people into, within or out of the United Kingdom for exploitation, trafficking people into, within or out of the United Kingdom for sexual exploitation and comparable offences in Scotland.
§ Given that tackling organised crime, including human trafficking, is now such a high priority both at national and international level, and given the sometimes tragic consequences of this appalling and abhorrent trade, it would seem opportune to give a power of arrest to immigration officers. Human trafficking is an offence that immigration officers are 737 increasingly encountering, particularly those who work with the police in joint teams investigating immigration crime. If immigration officers had a similar power of arrest and ancillary powers of entry and search, it would allow them to play a fuller role within these teams.
§ In addition, the current position fails to take account of the difference between the offences of people trafficking, where only the police have a power of arrest, and the offence of assisting unlawful immigration to a member state—under Section 25 of the Immigration Act 1971—in respect of which immigration officers currently have a power of arrest, and circumstances when the offences overlap.
§ The terms "people trafficking" and "people smuggling" are used indiscriminately and inaccurately, adding to the confusion on this subject and making it difficult to gauge the true size of the problem. If we are to bring clarity to this area, it is essential that we make the distinction at the outset; if a person is suspected of trafficking people for the purpose of exploitation, immigration officers should be able to arrest that person for trafficking rather than the less appropriate charge of facilitating the unlawful immigration of a person to a member state. As with the other offences specified in Clause 9, an immigration officer will be able to arrest a person for a trafficking offence only when, in the course of exercising a function under the Immigration Acts, the officer forms a reasonable suspicion that a person has committed or attempted to commit such an offence.
§ Noble Lords may be assured that adequate safeguards in terms of selection, appropriate training and mentoring will be in place for those immigration officers who are designated as able to use these powers. This will include an examination before acceptance on to a three-week, intensive training course run by the police. Officers who pass the course are then subject to a period of mentoring. It is only when they have demonstrated that they are able to use these skills safely and appropriately that they will be designated to do so by a senior Immigration Service member of staff. It will remain policy that those who are not designated to do so will not exercise their statutory power of arrest.
§ Having heard that explanation, I hope that noble Lords will be satisfied with these fresh amendments. I beg to move.
§ On Question, amendment agreed to.
§ 8.45 p.m.
Lord Bassam of Brighton moved Amendment No. 27:
Page 11, line 29, at end insert—
§ On Question, amendment agreed to.738
§ Clause 12 [Retention of documents]:
Baroness Anelay of St Johnsmoved Amendment No. 28:
Page 12, line 27, leave out from "document" to "an" and insert "is retained by
§ The noble Baroness said: My Lords, in moving Amendment No. 28, I shall also speak to Amendments Nos. 29 and 30. I tabled probing amendments to Clause 12 in Committee, and I have brought two of those amendments back—Amendments Nos. 28 and 29—and tabled Amendment No. 30 as a peg no which to hang questions. I wish to enable the Government to put on record their explanation of the purposes behind the clause and how it will operate. Noble Lords will recall that the clause was added to the Bill on Report in another place without any ministerial comment or debate, because the guillotine fell.
§ We raised questions on the clause in Committee, towards the end of a long evening. The Minister—the noble Baroness, Lady Scotland, at that stage—gave a courteous but curtailed answer with the assent of all those present, since a full answer would have taken us some way towards midnight. However, she offered to write in depth to noble Lords to give the Government's full response, which she estimated would take about 20 minutes to give verbally.
§ The trouble was that that letter did not arrive, so I tabled the amendments last Wednesday while my colleagues contacted the Minister's office and were assured that a reply would come—which it did, finally, at a quarter to one today. In normal circumstances, I would be stamping feet, as I may do later tonight under another group of amendments, and say that it is a hopelessly late hour properly to consider the Government's response. However, on this occasion I am able to press ahead because the questions in the first instance came from me alone and not from outside bodies. Therefore, I do not have to refer the letter to other bodies to see what their consideration is before we plough ahead.
The Explanatory Notes state:
Clause 12 provides the Secretary of State or an immigration officer with the power to retain documents … whilst it is suspected that the person the documents relate to is liable to removal, and that retention of the document may facilitate their removal from the United Kingdom. It complements current powers, such as those in paragraphs 4(2A) and 18(2) of Schedule 2 to the Immigration Act 1971, which already permit the seizure and retention of documents in certain circumstances".
§ In summary, I asked the following three questions: how the Home Office and the Immigration Service would get hold of the documents in the first place; the type of documents that could be kept; and whether the power to keep the documents extended to the retention of documents that were the private property of the individual or another person. The noble Lord, Lord Avebury, followed up with some in-depth questions on that point, too.
§ The Government seem to have taken us further along the line of clarifying the clause. I do not propose to go into detail about that letter, except to remark that it is in the Libraries of this House and another place. I wish to use this as an opportunity to ask the 739 Minister whether the Government have had further thoughts on any of the amendments beyond that which they have already expressed in their letter to noble Lords. I beg to move.
§ Lord McNally
My Lords, I have not had an opportunity to see the letter in question. The postal service these days is just absolutely shocking. The only guidance that I have had on the amendment is from I LPA—the Immigration Law Practitioners' Association—which states:ILPA suspects that this clause is intended retrospectively to legalise current Home Office practice of retaining the passport of overstayers or alleged illegal entrants who have sent them to the Home Office in connection with applications for leave to remain even when the person has expressed the willingness and intention to leave the country".It goes on to say that it is worried about wider implications, for example, making it harder for people who genuinely want to leave the country to do so. From the debate in Committee it seems that the definition of the kinds of documents that could be impounded in this way is vague and wide-ranging. As ILPA points out, this is also an opportunity for the Home Office to lose the documents. I look forward to the Minister's reply.
§ Lord Bassam of Brighton
First, I ought to apologise to the noble Baroness and to other Members of your Lordships' House for the late arrival of the letter. The copy I have is dated yesterday and I know that I received it late last night. I am not at all surprised that the noble Baroness received her copy some time this morning. Like the noble Baroness, I have had to read it rather rapidly to understand fully its import in relation to today's debate but I do understand it.
The first two amendments as drafted would largely render the clause ineffective. They would restrict the power to retain documents to immigration officers and even then only—.
§ Baroness Anelay of St Johns
My Lords, I think I made it clear that my amendments are merely pegs and I am very happy for the Minister not to address them. I am merely seeking to assist the House at Report if the Government have got further information.
§ Lord Bassam of Brighton
My Lords, I am grateful to the noble Baroness for reminding me of her earlier observation. All I wish to say on this group of amendments is that Amendment No. 30 raises an interesting question and we are interested in the point. I am happy to take that amendment away and see how we can make the clause more workable in practice. I am happy to give it further consideration. As I understand it, it clarifies how we intend the clause to work in practice. On that basis, if the noble Baroness is happy, I will draw my comments to a close as she may find it useful for us to do that.
§ Baroness Anelay of St Johns
My Lords, the noble Lord, Lord McNally, is right to point out that I may have had the letter but he has not. Yet again we reach 740 this matter at a late hour and I am trying to assist the House in dealing with the matter as briefly as possible. I am grateful to the Minister for saying that he will look again at my new Amendment No. 30, which was not tabled in Committee and refers to having reasonable cause to suspect. I hope that might be of assistance in the clarification of the clause. I look forward to a further response from the Government on that and I am sure that we all hope for a rather earlier response next time round. Of course, none of us underestimates the difficulty of managing Bills and trying to get the responses. But it was a corker to get an eight or nine page letter more or less just before we came into the House today. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 29 and 30 not moved.]
Lord Avebury moved Amendment No. 31:
Before Clause 19, insert the following new clause
"DETENTION OF CHILDREN: ASSESSMENT
(1)Section 62 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (detention by the Secretary of State) shall be amended as follows.
(2)After subsection (9) insert—
(9A) Where a detained person, within the meaning of section 147 of the Immigration and Asylum Act 1999, as amended by this section, is under the age of 18, an independent assessor appointed by the Department for Education and Skills, or the appropriate executive body in the country, must visit the detained person for as long as the person remains detained to carry out on each visit an assessment into the welfare, developmental and educational needs of the detained person.
(9B) All assessments under this section shall be guided by the principles set out in—
(9C) Reports of the assessment shall contain advice on the compatibility of detention with the welfare of the detained person and must be sent to—
(9D) When a Chief Immigration Officer receives a report of an assessment carried under this section he must review the decision to continue detention in the light of the advice contained in the assessment and send his decision on review, with the reasons for the decision, to—
§ The noble Lord said: My Lords, as I said when we last discussed the detention of children in Committee, we were not satisfied with the answers that we got then from the ever-courteous and helpful noble Baroness, Lady Scotland. In spite of her efforts there were some questions on which we did not get answers at all.
§ The Minister knows that it is not only Members of all parties in this House and the Bench of Bishops who are worried about children being held in detention centres. The Bill contains no provisions that would adequately 741 address the concerns that have been expressed by Her Majesty's Chief Inspector of Prisons in relation to Dungavel, let alone those of the Refugee Children's Consortium, which is opposed to the detention of any child under Immigration Act powers on the grounds that it is incompatible with the principles of the UN Convention on the Rights of the Child and other human rights instruments.
The recently appointed Commissioner for Children and Young People in Scotland, Professor Kathleen Marshall, also recently expressed criticism of the detention of children at Dungavel when she said:
Detention itself is inherently against the welfare of children and you cannot expect children's welfare to be served in that situation".
§ We have reason to believe that children are frequently held for weeks rather than days and that they are not being held just prior to removal in accordance with stated government policy. Following considerable pressure, the Government have begun including statistics on child detention in the quarterly asylum statistics. That information is of limited use as the figures do not show how old the children are, at what stage of the case they were detained or for how long, and gives no indication of the outcome of the detention.
§ In Committee, the Minister gave some more recent information which showed that the number of detained had increased from 10 in the quarterly RDS statistics to 24 at the time of the debate. That illustrates one difficulty of having only a snapshot at three monthly intervals. Between the dates of the snapshot the IND can detain any number of children without being noticed as long as they were cleared out on the day before the snapshot is taken. A child could be detained for 89 days in between and remain invisible in the statistics. It is true that the more extreme cases, such as the two that occurred immediately before the December statistics were published, of two single mothers and their children detained for 143 and 114 days at Oakington, would be picked up in at least one quarterly statistics, but the public still would not know that they had been held for all that length of time.
§ In Standing Committee B the then Minister argued that the requirement for Ministers to "expressly authorise" the detention of any child in excess of 28 days would provide protection for children. On April 27 I asked how many times the Secretary of State had used the lock on a child and whether he had ever used the key instead. Last week I wrote to the noble Baroness to remind her of her undertaking to respond by letter to the points that were left outstanding in that debate. Only if we have that information can we judge whether the Government are complying with our obligations towards children under Article 37(b) of the Convention on the Rights of the Child, which the Government say they accept.
§ This House is also considering the Children Bill which aims to improve services and safeguards for all children. That Bill extends the duty to safeguard children and promote their welfare in the exercise of their functions to a range of bodies, including the 742 police and prisons, but not to immigration removal centres. The noble Baroness, Lady Ashton of Upholland, said in the debates on the Children Bill that the reason for excluding the immigration removal centres was because to do so might "cut across existing procedures". Surely existing procedures will have to be reviewed as a result of the Children Bill in other places where children are detained, so why not review them in removal centres as well?.
On the previous occasion when I gave the account of Jacqueline Konan and her baby, Thelma, the noble Baroness argued that,
systems are in place to prevent a recurrence",
and, further, that:
The detention procedures have been tightened up since the time of that case".—[Official Report, 27/4/04; col. 714.]
§ She prayed in aid the system of ministerial authorisation of detention of cases involving children beyond the 28 days that I have already mentioned. I respectfully suggest that that system is not working. I have just seen a report in the Islington Gazette of May 13 where a judge slammed a decision unlawfully to lock up a 17 year-old asylum seeker, saying that it was perhaps the worst case he had ever come across. In that case apparently the immigration officer detained the individual because he simply did not like the fact that an independent adjudicator had released him on bail. In that case the system lamentably failed, but that is not the only case.
§ Last week I received a letter from a child born on 29 March 1988 who has been detained at Harmondsworth since December 22 last year—147 days. Yesterday I gave the Minister notice that I would mention this case. The IND is disputing his age, although he claims to have given it a birth certificate. It had him examined by a dentist, who gave the opinion that, because his wisdom teeth had not erupted, he was probably 17 or 18. The determination of age from bone development of any kind is notoriously uncertain.
§ Given that development occurs at widely different ages in different ethnic groups, where there is a dispute about age a person should be given the benefit of the doubt. I would be grateful for an assurance from the Minister that that must be the case. Will he also agree that such cases must be submitted to the Secretary of State for express authorisation at the end of 28 days, and that that was done in the case of Master A? Even if there is a genuine review of the necessity to detain at the end of every 28 days, that far exceeds the few days recommended by the chief inspector, and fails to satisfy the UK's domestic and international obligations towards children.
§ 9 p.m.
When we proposed in Committee that an assessment of children's needs should be undertaken to,
advise on the compatibility of detention with the welfare of the child",
as the chief inspector had proposed in her Dungavel report, the Minister said that that recommendation had already been rejected. However, I am not aware of any reasoned answer to the report. The then Minister
in another place, Ms Beverley Hughes, had undertaken to the Home Affairs Committee on 6 January this year,
to consider ways in which the assessment of the welfare and educational needs of children detained for more than just a short period might be improved".
It seems that the noble Baroness, Lady Scotland, has reneged on that commitment, however. She said that:
In all probability, it would add an additional layer of bureaucracy",
whether it is necessary or workable".
If a child were released within the seven days, there would be no assessment and no bureaucracy. If the child were released after 10 days or a fortnight, say, very little would have been done, as the Minister pointed out. She said:
More than likely, the children would have been removed or released from detention before the assessor had a chance to do anything at all".
However, the 134 children detained between 27 February and 25 March 2004 spent an average of 9.8 days in custody. If the situation had continued, assessments would have begun on at least half of them according to the amendment. In practice, the existence of the assessment mechanism would give the IND an incentive to release many of those unnecessarily detained beyond the seven days, or very soon thereafter.
In any case, I was a bit surprised to hear the noble Baroness object to safeguards for children on such grounds. I would hesitate to describe an assessment of children's needs as bureaucracy. In the case of Dungavel, the Minister told us that the Government were,
discussing arrangements with South Lanarkshire Council to conduct a welfare assessment for any child detained at Dungavel for 21 days".—[Official Report, 27/4/04; cols. 712–13.]
The argument between us is not one of principle, but only of detail. It is about when the assessment should be conducted—whether it should be 21 days or some shorter period—and what the assessment should cover. Despite assurances by Ministers, we believe that, without formal assistance such as we propose, children will continue to be detained in violation of both domestic law and our international obligations. If children's welfare was "monitored constantly", as the Minister asserts, there would be no anxiety that independent assessments would not confirm that the best interests of the child were being observed. I beg to move.
§ Baroness Stern
My Lords, I support the amendment; I promise to be extremely brief. My home is in Scotland where, as I am sure that the Minister knows, the detention of children is of great concern, because of the location of Dungavel Removal Centre. It may be that it is a particular cause of anxiety in Scotland because of the rather different approaches taken there, both to immigration and asylum—that is, 744 some enthusiasm to welcome newcomers—and to the locking up of children, which is done in Scotland extremely sparingly.
I note that a briefing on the amendment comes from a consortium that includes all the major bodies that campaign for children, work with children and support disadvantaged children; and such widespread support from such a knowledgeable group might well make the Government feel that the amendment has considerable merit.
The Chief Inspector of Prisons has stated clearly that an independent assessment should be made after seven days; and that recommendation is based on a detailed inspection of what was actually happening in Dungavel removal centre at the time of the inspection. Locking up children is always a bad thing, a serious step to take; and locking up children for no reason that relates to the child, that is not for their own protection or the protection of others, is a very serious step, especially when they are in a foreign land and after experiences of upheaval and trauma.
The amendment seems to be an appropriate way of balancing the Government's need for a proper policy with our international obligations to protect the rights of children. I am happy to be able to support it.
§ Baroness Anelay of St Johns
My Lords, the noble Lord, Lord Avebury, is right to have retabled the amendment, which was debated in Committee, because it gives us the opportunity to press the Government a little further on the need to assess the requirements of children in detention. I thank the Refugee Children's Consortium for its helpful briefing on the matter.
Detention does give rise to a range of child protection issues. It can damage the physical and emotional health of children. The consortium is right to draw attention to the fact that the Bill does not address the concerns about children being held at immigration removal centres that were highlighted most recently in the report by Her Majesty's Inspectorate of Prisons, to which the noble Lord, Lord Avebury, and the noble Baroness, Lady Stern, have referred.
I asked questions in Committee (at col. 711 of Hansard for 27 April) regarding the Government's plans for implementing fully the recommendation of HMIP for an independent assessment of the welfare and educational and developmental needs of each detained child.
When the noble Baroness, Lady Scotland, replied to that debate (at col. 714) she answered my question only in part—she stated that arrangements for educational facilities were being put in place at Oakington as well as at Dungavel. The HMIP recommendation had gone beyond the provision of educational facilities. Can the Minister explain today what the Government intend to do with regard to the full extent of the HMIP recommendations for independent assessment of children in detention?
§ Lord Hylton
My Lords, I am happy to support the amendment, which seems to me to be extremely 745 modest in the terms in which it is couched. It simply asks for the visiting of detained families and assessment of the welfare of the children. When we most recently discussed the matter the noble Baroness, Lady Scotland, said that,we are discussing arrangements with South Lanarkshire Council to conduct a welfare assessment for any child detained at Dungavel for 21 days".;[Official Report, 27/4/04; col. 713.]Will the noble Lord who is to speak for the Government say what the outcome of those discussions has been? Others far more learned in these matters than I have pointed out that by 21 days damage and harm may already have occurred to children and that they should be visited and assessed earlier than at that point.
Lord Balsam of Brighton
My Lords, before I deal with the specifics of the amendment I want to say something about general government policy with regard to children. Our Government have a record and a reputation that is second to none for parties in government of making sure that in everything we do legislatively children are very much at the forefront of our thinking. We are a very child-sensitive administration and we have been praised on many occasions, across a whole range of domestic policy, for legislation that we have brought forward and for the general thrust of what we are trying to achieve—not just in child protection but in raising standards of provision for nurseries, educational facilities and so on.
Our concern, care and compassion obviously extends to those who are going through the processes of asylum and immigration. Therefore, I do not at all mind being put in the position of having to outline exactly what we are trying to achieve in the Immigration Service and in caring for and ensuring that children caught up in the asylum processes are looked after.
Amendment No. 31 would introduce a new clause requiring the establishment of a prescribed system of independent assessment for all children in detention. I shall spend some time going through exactly where we are in respect of children in detention.
The new clause is identical to one tabled and debated during Committee. We rejected that earlier clause and the noble Lord, Lord Avebury, agreed to withdraw it. Our position remains unchanged and we must reject this new clause too.
The detention of families with children is, understandably, an emotive subject and we recognise that it causes concern in many quarters. Indeed, we share those concerns and it is not something that we do lightly or gladly.
However, as we have made plain on many occasions, it is a regrettable fact that some families with children can give rise to the same immigration and asylum concerns as single adults, particularly in terms of failing to leave the UK voluntarily when they have no lawful basis of stay here. The detention of some families may therefore sometimes be necessary as part of maintaining an effective immigration control and asylum system. We cannot exclude families with children from those controls.
746 Having said that, I must stress that overall very few families are detained and that most of those who are detained are held very briefly just prior to their removal from the UK. There is a presumption in all cases in favour of granting temporary admission or release, and each case will always be considered on its merits.
Unfortunately, despite figures to the contrary that we have given previously, the misconception that there are large numbers of families detained for lengthy periods continues to prevail in some quarters. Perhaps I can take this opportunity to dispel that notion and provide some reassurance to your Lordships.
Yesterday, there were 35 children in detention. Two of them were at Dungavel, 24 at Oakington and nine at Tinsley House. The numbers will necessarily fluctuate from day to day but those figures are not unusual. I would hope that demonstrates that at any one time there are very few families in detention—something we have been saying for some time, but it is a message we must repeat.
The noble Lord, Lord Avebury, and others have made much of the need for statistical evidence and have suggested that the absence of such evidence prevented them from accepting what we have been saying about the detention of families with children. We have listened to those calls and have conducted a special exercise to compile statistics to inform this debate. I should stress that this was a one-off exercise drawing solely on internal management information. However, I believe that the figures provide the reassurance being sought on this issue and I hope I will be forgiven for setting them out in some detail.
The figures relate to the period 1 March to 30 April and cover children taken into detention as members of family groups during that period. They do not include the 35 children who were already in detention on 29 February.
During these two months—that is, March and April—a total of 323 children were taken into detention. Fifty per cent—that is 164—were under the age of live. The average length of detention for the 323 children was four nights. In fact, most of the children spent considerably less time in detention. One hundred and twenty-eight—that is 40 per cent—were detained for just one night.Fifty-eight children—that is 18 per cent—were detained for only two nights. So, 186 children—in other words,58 per cent—were detained for no more than two nights. A further 74 children, making up 23 per cent of the total, were detained for between three and seven nights.
Before moving on to the very few children who remained in detention for more than seven nights, let me just stress this very important figure. Of the 323 children who were taken into detention with their families during March and April, 80 per cent of them—260—were detained for no more than seven days. Just to complete the picture: 47 children, or15 per cent, were detained for up to 14 nights; and16 children, just 5 per cent, were detained for more than 14 days. To sum up, 80 per cent of the children were detained for no more than a week, 15 per cent were detained for no more than two weeks and just 5 per cent for more than two weeks.
747 Although no one would argue that detention is an ideal place for any child, I would hope that your Lordships will accept on the basis of these figures that children detained with their families are not spending long periods in detention, which is particularly relevant in terms of the proposal for a complicated system of independent assessment. There will always be exceptional cases, where individual families unfortunately may need to be detained for longer periods, but such cases are exactly that—exceptions. They are extremely small in number.
As my noble friend Lady Scotland informed your Lordships in Committee, systems are now in place to ensure very close and frequent review of all detained family cases. The continued detention of any family beyond 28 days is now subject to ministerial level review and authorisation. Last week—the week beginning 10 May—ministerial authorisation for continued detention beyond 28 days was requested in respect of just one child. This week, the request to my honourable friend Des Browne, the Minister for immigration, was in respect of just two children.
We are also exploring the possibility of drawing up protocols with local social services to conduct a welfare assessment at day 21 of a child's detention, which would then feed into the system of ministerial authorisation at day 28. This work is being carried forward initially in relation to Dungavel but, if successful, would be extended to other centres.
Long-term detention of families is an extremely rare occurrence. It is truly exceptional, as the figures I have given show. Having established this crucial fact, I should like to provide reassurance to your Lordships on the facilities that are provided for children detained with their families. I recall that the noble Lord, Lord Avebury, suggested in Committee that we had failed to provide proper facilities for detained children. I must reject that suggestion and, again, I should like to provide some detail on this issue as it is important that our debate should focus on the reality rather than on some unfounded concerns.
At Tinsley House there are child carers on duty seven days a week between the hours of 8 a.m. and 6 p.m. All the needs of babies and young children are catered for; for example, cots, pushchairs and prams, baby baths, high chairs, bottles, formula milk and a variety of baby foods are all provided. There is a children's menu for older children.
Children have access to games, books, a playroom, games consoles, outdoor games such as swingball, scooters and bikes. There is a junior pool table and a designated and secure outdoor play area. The PE instructor leads children's games in the sports hall. Children receive gifts on their birthdays and at Christmas.
It is a similar story at Oakington. There is comprehensive provision of all those things that are needed by families with babies and young children. There is an outdoor playground for children, as well as outdoor sporting equipment. The crèche provides 748 activities for children up to 12, including arts and crafts. For those children of school age at Oakington, I am pleased to be able to say that there is now education provision at the centre. Classes will be provided between 9 a.m. and noon and from 1.30 p.m. to 3.30 p.m. every weekday. Classes will run throughout the year except of course, and importantly, on public holidays.
Dungavel is no different. Here school-age children can attend classes between 9 a.m. and 5 p.m. on weekdays. Younger children can spend time at a creche that is open throughout the day and is staffed by fully qualified nursery nurses. There is a children's menu in the family dining room and all children are offered milk and biscuits at bedtime. There is an outdoor play area, and bikes, and there is dedicated gym time for families. Dungavel also has a family cinema slot once a week.
Children in detention are well cared for. Within the confines of detention, their needs are met. We care about those children. Staff at the centres, particularly in the family units, treat all detainees, including children, with great respect and humanity.
Each centre has in place robust policies and procedures for dealing with child protection issues. Links have been established with local area child protection committees, and local social services are always involved in any case of concern. Staff who deal with families are trained in child protection. There are excellent healthcare units at all removal centres, and the healthcare needs of adults and children are met in confidence and with care and respect.
I hope that noble Lords are reassured that the current provision for the care and welfare of children detained in immigration removal centres is of a very high standard. We will never be complacent about the issue, and we will ensure that we are aware of the need to maintain—and, where necessary, improve—the standard of care for children.
Introducing what appears to us to be a highly bureaucratised system of assessment and reviews would be unwieldy and unworkable. Our position is that we must have in mind not only the interests of the child but the need to maintain effective immigration control and to remove families who have no lawful basis for staying here. The proposed system would not allow a proper balance between those two needs to be struck. It would be likely to hinder proper immigration and asylum processes without at the same time providing any real benefit to the children concerned.
The noble Baroness, Lady Anelay, asked about the Government response to the HMIP recommendations. It is only right that I address that issue. We rejected the time limits suggested by HMIP but we accept the sentiment behind it; that is to say, detention should last for as short a period as possible. Also, we are actively looking to ensure that welfare needs in the detention of children are met, as I have made plain throughout my response.
I apologise for responding at great length, but it is only right that I place on the public record our approach to such matters. If perhaps the detail did not 749 thrill everybody, I want to ensure that we move away from the notion that we provide a barren, arid range of minimal services, because we do not. We try to have a balanced view and approach to those matters. We realise that the circumstances of some of the children detained can be traumatic. We do not want to have children in detention for very long, but, where they are necessarily there, we want to ensure that that stay is properly conducted, that they have access to the right sort of things and that they can play, learn, grow and develop, however short a period they stay in those institutions. I have tried to demonstrate that that is exactly what we have done. The detail that I have put on the public record fairly reflects that.
The noble Lord, Lord Avebury, raised a specific case. It is not practice for Ministers to go into the details of an individual case, but it is probably right that I try to set the record straight. The individual—obviously, it would be improper to name him—to whom the noble Lord referred, entered the United Kingdom illegally on a false passport in early January 2003. He claimed asylum and said that he was born in 1988. At the time, the claim, if true, would have made him 14 years old.
The noble Lord questions the efficacy, or perhaps the accuracy, of the medical examination in the form of a dental assessment. However, the assessment has been undertaken in good faith, and it is believed that it firmly established that the individual was at least 18 years old. The individual's claim for asylum was refused at the end of February 2003, and his appeal against that decision was dismissed in October 2003. By the end of November, it was apparent that the individual had failed to keep in touch with either his representatives or the immigration authorities. In effect, he had absconded.
The individual came to light again just before Christmas, when he was arrested by the police for driving offences. He claimed at that point to be 15 years old, but the police were unconvinced that that was his real age. The individual was detained in order to effect removal. Two attempts have since been made to remove him, and on both occasions his disruptive behaviour has sadly meant that his removal has not been possible. He has been refused bail by an independent adjudicator. It is certainly worth noting that during his time in detention, this individual has not—I understand—sought to renew his claim to be a minor.
We could argue and dispute the facts of this case across the Dispatch Box. That would not be in anyone's best interests. I am trying to make the point that these cases are not always as they seem, and if my explanation has at least given some voice to that, it is worth reflecting on. I respect the proper attempt made by the noble Lord to raise issues of concern emerging from that case. That is fair enough, but I have described the situation as we understand it. It is only right that I try to put the record straight.
§ Lord Avebury
My Lords, I asked the noble Lord a perfectly simple question, and that was whether the cases that were submitted to the Secretary of State for his 750 approval at 28-day intervals included people who claim to be under the age of 18, or are they only people who in the opinion of the Home Office are under the age of 18?
§ Lord Bassam of Brighton
My Lords, in those cases, in any event, we seek to establish the real age of the individual. That is what this case exemplifies.
§ Lord Avebury
My Lords, obviously, we will not reach a conclusion on this case across the Floor of the House. I am disappointed at the way in which the Minister has approached it. There are many cases where age is disputed. With great respect to the noble Lord, this determination of age by bone development is not an exact science. I refer him to a paper in your Lordships' Library on the use of X-rays for age determination in immigration control, which was published by my office on 5 June 1981. If the noble Lord refers to that paper, he will see that it was acknowledged by medical experts—and still is—that the process of determining chronological age from bone development is grossly inaccurate. The best that can be done is to come to within plus or minus two years of the actual age. It is important that where there is a dispute, as there is in this case, the Secretary of State should be asked to approve at the end of 28 days, as he would be with someone who is acknowledged to be a child. I am disappointed that the Minister did not give me a proper reply on that.
I am grateful for the statistics that the Minister has given, because they are useful, although I have one gripe about the way in which he presented them. It was as if this situation had existed since time immemorial. When I went to Oakington with Sub-Committee F just a couple of months ago, there were no educational facilities for children over 12. Now the noble Lord says that they have provided them between 9 a.m. and 12 noon every day, and I am delighted to hear that that is the case. I am glad to have on the record the various statistics that he gave about the length of detention of children. I cannot understand why this should not be a matter of regular reporting, instead of a one-off. He suggested that the exercise was undertaken for the purposes of this debate only. There were some statistics given in the quarterly Research Development Statistics for the past quarter, but they were nothing like as complete as those given by the noble Lord. I request him to consider whether it is possible to include that sort of analysis in the quarterly RDS statistics.
At the end of the remarks made by the noble Lord, I was left questioning why, if everything is so perfect, they did not agree to include detention centres in the process of assessment under the Children Bill. It would be perfectly normal for that to have been done, because as the noble Lord presents the picture that exists at the moment, the situation for children is as good in detention centres as it is in the other places that are subject to this provision in the Children Act. I do not think that we will take this matter much further this evening. I cannot promise not to return to the detention of children on Third Reading. For the time being, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.751
§ Schedule 3 [Removal of Asylum Seeker to Safe Country]:
§ [Amendment No. 32 not moved.]
§ 9.30 p.m.
§ Clause 21 [Deportation or removal: cooperation]:
Lord McNally moved Amendment No. 33:
Page 21, line 7, at beginning insert "Subject to subsection ( 1A),
§ The noble Lord said: My Lords, noble Lords will be aware that Clause 21 allows the Home Secretary to require a person subject to criminal penalty at an undetermined stage in his claim to remain in the UK to assist and co-operate with any specified action designed to obtain travel documents to facilitate removal or deportation. That co-operation is defined in extremely broad terms, and failure to do any of the things specified is a criminal offence. The only defence under the clause is one of reasonable excuse.
§ The Government promote the clause as one that speeds up the removal or deportation of obstructive, undocumented individuals. We agree that, for the immigration and asylum system to work properly, removals must be effectively managed. However, the clause will expose people whose asylum claims remain unresolved to premature contact with the very authorities from whom they seek protection and criminalise them for a reluctance to co-operate. The main criticisms of the clause include the general dangers of contact with the authorities before a claim has been decided, the danger of premature prosecution and the lack of detailed guidance.
§ No guidance, draft or otherwise, has yet been provided; nor has the Minister acceded to requests to put that guidance on a statutory footing. We maintain that the new offence should not reach the statute book without a full, clear statement of the limitations on the specified action required and the circumstances in which it would be considered reasonable to refuse to co-operate.
§ Amendments Nos. 33 and 34 arise specifically from concerns about the Minister's response in Committee. The Home Secretary fully intends to commence the redocumentation process at a highly premature stage of the asylum determination process, subjecting applicants at the same time to criminal penalty. In effect, it will infect our refugee convention status determination with the process of criminal sanctions.
§ Amendment No. 35 deals specifically with breach of confidentiality and data protection. The Government have given no assurances on the concerns about data protection and confidentiality. We believe that there is every reason to respect the confidentiality of asylum seekers—even those whose claims have failed. It is a serious concern, and we hope that the Minister will have a response. I beg to move.
§ Lord Bassam of Brighton
My Lords, Amendments Nos. 33 and 34 would mean that we could not require—with the prospect of criminal sanction—a person to take certain steps with a view to obtaining a 752 travel document if he or she had an outstanding asylum or human rights application or an outstanding appeal. The offence is all about encouraging people to co-operate with the process of redocumentation so that they may, if appropriate, be returned home. The offence is aimed at stopping people being obstructive, and only in the most extreme circumstances would we want to prosecute people. We would much prefer to remove them.
If a person fails to co-operate with the provision of the information or provides information that is false or incomplete, a travel document is unlikely to be issued, and the person may not be removed from the United Kingdom because of that—potentially indefinitely. So, there is a strong incentive for non-compliance—an incentive that we need to eliminate. We want to remove people with no basis to stay in the United Kingdom as soon as possible. In most cases, that would be after appeal rights had been exhausted, but in some cases removal is lawfully possible before that stage—for example, in the case of non-suspensive appeals procedures.
The provision refers to taking specified action only if the Secretary of State thinks that action will enable a travel document that will facilitate the person's removal from the United Kingdom to be obtained. This is made clear by subsection (1).
For those with asylum appeals outstanding, we believe that many of the listed actions are ones we can reasonably expect a person to take. It is rare for a person to be required to attend an interview at an embassy at this stage. If we require that, we do not inform the embassy of any asylum application that the person may have made. We also make it clear to the person that he is not required to answer any questions which relate to such an asylum application.
The offence provided for by Clause 21 is committed if a person fails to take action without a reasonable excuse. Thus, we would be unlikely to prosecute those who had a reasonable excuse for not undertaking actions required. That should ensure that someone who may have been requested to do something, which in his particular circumstances could be deemed as too restrictive, would not have committed the offence.
Restricting the offence in the way that is proposed in those two amendments would mean that some of its efficacy would be lost. As the House, which is now concentrating on noises outside, will know, obstructing redocumentation is a serious barrier to removal and undermines immigration control. We need robust measures to combat that.
In Committee, concerns were raised about how this offence, which will apply to those above the age of criminal responsibility, will affect unaccompanied children. I can assure the House that we would seek to remove an unaccompanied child only if we were confident that we had put in place reception arrangements and long-term care for that child in his or her country of nationality or we were returning the child to their family who had been traced.
753 Unless one of the above circumstances applied, we would not try to remove that child. Therefore, no application for redocumentation would be made and the child would not be requested to take actions of the type that are covered by this offence. In cases where we are looking to remove, expecting the child to comply with the redocumentation process is not unreasonable. Guidance will contain specific reference to measures which will be used to ensure that no unreasonable demands are made of children.
Amendment No. 35 seeks to specify what should normally be considered a reasonable excuse for failure to co-operate with an interview or other information-gathering procedure. A consequence of this amendment would be to require a certain standard on the part of the authorities, in particular the consular authorities.
First and foremost, I do not consider this offence to be one for which it is appropriate to include a list of reasonable excuses. It is for the prosecution to prove that the person did not take the step and does not have a reasonable excuse for failing to do so. That is better left to the circumstances of each individual case and, ultimately, the courts. There are also more specific but still significant difficulties with the amendments. I hope that I have demonstrated by way of explanation the deficiency in Amendment No. 35.
Amendment No. 36 would require statutory guidance, subject to the affirmative order procedure, on the interpretation and implementation of the eight actions specified in subsection (2). We consider this amendment to be unnecessary. Although we will be publishing guidance on how Clause 21 is to be applied, we do not see the case for it to be on a statutory basis. Several of the actions listed are not ones for which detailed guidance, let alone detailed statutory guidance, is appropriate: for example, completing a form accurately and completely; or attending an interview and answering questions accurately and completely; or making an appointment.
Those are the sort of requirements that are susceptible to a common-sense assessment. Where a person is not complying with a process that we consider he should be complying with, our efforts will go first and foremost into persuading the person to comply. So there is no risk of someone being landed with a criminal charge from nowhere. We will make it clear to him what we expect to be done and the consequences of a failure to do so.
If a person is charged with this offence, it will be for the prosecution to prove in the usual way that he has failed to take the action required. The prosecuting authorities would need their own guidance for implementing this offence, as they do for other offences. We would have to be sure of our ground and would not be able to take an irrational view of what the requirements in subsection (2) amounted to.
I appreciate that I have given a lengthy explanation, which I think that the amendments deserved. Having heard what I have said, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord McNally
My Lords, Hansard is never able to give the flavour of the Minister's reply, which took 754 place during some extraordinary noises off. The noble Lord kept a stiff upper lip throughout. Given how he ploughed on, clearly he is someone who the noble Earl, Lord Attlee, might keep in mind as a person good under fire.
I am grateful for the response. Again we are concerned about the guidance, which will be available only after the legislation has passed through the House. It is worrying because such assurances are neither specific nor binding and the consequences of inappropriate prosecution are not only a custodial sentence for the asylum applicant concerned, but may also entail breaches of the 1951 Geneva Convention on the part of the Government.
I note what the Minister has said and I shall consult further with those who are advising us. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 34 to 36 not moved.]
§ Clause 24 [Immigration Services Commissioner: power of entry]:
Lord McNally moved Amendment No. 37:
Page 27, line 2, leave out "or a justice of the peace
§ The noble Lord said: My Lords, I feel like one of those chaps who, when wandering past and seeing a disturbance, says, "Is this a private fight or can anyone join in?". Once again I have been asked to raise a matter by the Law Society of Scotland.
§ The society is far from satisfied with the reply given by the noble Baroness, Lady Scotland, when we discussed this in Committee. At that stage the noble Baroness said that the extension or retention of the right only to sheriffs applied to terrorism or firearms offences. The society has now returned to the fray, citing the Proceeds of Crime Act 2002, the Crime (International Co-operation) Act 2003, the Extradition Act 2003 and the Bail, Judicial Appointments (Scotland) Act 2000, all of which imply that this is not as suggested by the Minister during the last round. The society has therefore taken the fight to no less a person than Des Browne MP, at the Home Office, asking him to review the position in respect of the Asylum and Immigration (Treatment of Claimants, etc.) Bill. I hope that the letter to Des Browne has fared better than the letter sent by the Minister to the noble Baroness, Lady Anelay, in terms of arrival because that will mean that, by this time, the Minister will have prepared a full and detailed response to this further salvo from the society.
§ To be serious, it raises the important point that extending these powers beyond the level of a sheriff presents difficulties and problems north of the Border which need to be addressed. I beg to move.
§ The Duke of Montrose
My Lords, as the noble Lord, Lord McNally, pointed out, this subject has been brought back by the Law Society of Scotland. When something is raised by that society, it causes a stir among various noble Lords with Scottish interests. We have been talking about the issue. Given the hour, I am afraid that some of our more stalwart representatives have not 755 managed to stay on. However, I have spoken to my noble friend Lady Carnegy of Lour and taken the views of the noble and learned Lord, Lord Cameron of Lochbroom.
The only addition I wish to make to the points made by the noble Lord, Lord McNally, is that experience has shown that the grant of a search warrant can be open to challenge, in particular nowadays on the ground that it might involve a breach of the Human Rights Act 1998. Perhaps the Minister can give us some further guidance on this point. This is an area where a professionally and legally qualified sheriff has a better chance of being aware of all the issues in deciding whether or not to grant a warrant. For example, there have been cases in recent years concerning breaches of the right to privacy under the Human Rights Act. Those cases have been raised in the High Court in Scotland.
§ 9.45 p.m.
§ Lord Bassam of Brighton
My Lords, I am sorry. My attention was momentarily elsewhere. I was looking to see whether I had any more useful information to give to your Lordships on this issue but, no, I shall have to stick to my notes. The noble Duke may feel ill supported on this matter but we on these Benches are even more poorly supported at this time of day.
Clause 24 makes provision for a justice of the peace to issue a warrant to the Immigration Services Commissioner where he or she is satisfied of certain conditions set out in subsections (2) and (3). The warrant grants the commissioner a power of entry, search and seizure when investigating an offence under Section 91 of the 1999 Act. In applying the measure to Scotland, the clause makes provision for a sheriff or a justice of the peace to issue the warrant. The effect of the amendment, as described, would be to prevent justices of the peace from issuing warrants in Scotland, reserving the matter simply as the responsibility of sheriffs.
We have consulted colleagues from the Scottish Executive and the Office of the Advocate General and we maintain that sheriffs and justices of the peace should have the power to issue warrants of this kind. In saying that, we acknowledge that in some non-immigration legislation the power to issue warrants is, in Scotland, reserved only for sheriffs—we understand the point—but it is also true that there are non-immigration related powers of search and arrest where both sheriffs and justices are given the power to issue warrants. An example is paragraph 2 of Schedule 18 to the Environment Act 1995.
Justices are able to grant warrants for entry and even arrest in all other parts of immigration legislation. We think it is very important to maintain consistency in this area of law. We would not want to set a precedent in this area which may impair the operational effectiveness of the commissioner or of the Immigration Service as a whole.
We recognise that the position of justices of the peace in Scotland is complicated, with some having signing powers and others not, and that this may lead 756 to confusion in the issuing of warrants. The commissioner has indicated that he would not object to being able to apply to sheriffs to obtain warrants in Scotland. On that basis we will obviously consider the point and we may—I go no further than this in giving an undertaking—return at Third Reading with a suitable amendment. I hope noble Lords will not press me any further because I cannot be absolute in making that commitment.
§ Lord McNally
My Lords, I am sure that the Law Society of Scotland and the Scots who are present at the moment will read Hansard with due care. As the Minister said, we will return to the matter at Third Reading. In the mean time, with some optimism, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 28 [Fees]:
Baroness Anelay of St Johns moved Amendment No. 38:
Page 30, line 35, at end insert —
( ) No fee shall be prescribed using the powers conferred in this section unless the Secretary of State had first given at least three months' notice of his intentions and consulted with bodies and individuals appearing to him to represent the interests of those affected.
§ The noble Baroness said: My Lords, hope springs eternal as I rise to move Amendment No. 38 and speak to Amendments Nos. 39 and 40.
§ I have brought back some of the amendments to Clause 28 that I tabled in Committee in response to concerns expressed by those in the education world that the Bill signals an intent to introduce charges for visa applications which will harm student recruitment, damage efforts to widen access to education and create further burdens for students who are already making a great financial contribution.
§ I shall tonight merely summarise the position—not least because it is 10 minutes to ten and also because at cols. 734 to 737 of Hansard of 27 April our debate is laid out in full. The summary of concerns can be put as follows: the international student market is worth an estimated £5 billion a year to the UK economy; international students contribute to income tax and national insurance contributions for part-time and vacation work; and there have been some negative experiences from the introduction in 2003 of immigration application charges which have failed to lead to an improved service. In short, it is felt that overcharging for students would be short sighted and would risk alienating the international student market. The fees for extensions to and variations of leave under the 1999 Act were introduced only last summer and the greatest complaint of all was at the lack of consultation.
§ Considerable support was expressed for my amendment in Committee. We heard in particular from those who are deeply experienced in the work of attracting students to our higher educational institutions. At the end of that debate—again, it was very late in the evening—the noble Baroness, Lady Scotland, offered to write a comprehensive letter to noble Lords. She said at 757 col. 749 on 27 April that she had not been able to deal with all the issues as she would have wished because she felt under pressure of time.
§ That letter, as I said earlier this evening, was received only today, at lunchtime, so although I have been able to read it, I have not been able to put it in front of outside organisations such as the Association of Colleges, which has such a direct and important interest in this matter. Its interest is not financial but on behalf of the country in ensuring that the Prime Minister's objective of recruiting students can be met.
§ On Amendments Nos. 38 and 39 I shall give an interim view only. On Amendment No. 40 I can go further, because that is not a matter to which the outside organisations have had a direct contribution.
§ Amendment No. 38 would ensure that the Secretary of State cannot prescribe new fees unless he has consulted the relevant bodies beforehand. In Committee, the noble Baroness, Lady Scotland, gave some assurances with regard to the intention to consult in future on the level of fees to be charged, but she said that it was not necessary to put the requirement to consult on the face of the Bill. The feeling I have had since then is that it is important for the Government to be able to signal some definite plans about consultation—when and how it will be carried out. I am still not convinced by the Government's arguments, and I shall wait to hear from the Minister before I decide whether I need to refine Amendment No. 38 before Third Reading.
§ Amendment No. 39 would put the power to correct errors in the charging of fees on the face of the Bill. It would simply put into effect the commitment made by the noble and learned Lord the Lord Chancellor on 12 July 1999 at col. 49.
§ The noble Baroness, Lady Scotland, rejected the amendment on the basis that the Government could make ex gratia payments if they wished. I am still not convinced that this brings enough certainty and equity to the process.
§ Amendment No. 40 is on a different tack; it would put into effect the recommendation of the Select Committee on Delegated Powers and Regulatory Reform in paragraph 6 of its 12th report. It would make the relevant orders subject to the affirmative procedure. The noble Baroness rejected that recommendation on the basis that the Government believe that there are sufficient safeguards in the remainder of the clause. Subsequently, she wrote a response to the Delegated Powers and Regulatory Reform Committee, in which she repeated the arguments she put in Committee without, as far as I can see, any further weight of argument added to the original points.
§ The Government say that they do not believe that subjecting this power to the affirmative resolution procedure would be an effective use of parliamentary time. My Lords, I very much beg to differ. I am surprised and disappointed that Home Office Ministers have yet 758 again rejected a recommendation of the Delegated Powers and Regulatory Reform Committee, whose advice I greatly value. I beg to move.
§ Lord McNally
My Lords, clearly my in-tray will be pretty full when all these letters arrive. In the mean time, I understand why the noble Baroness does not press ahead with Amendments Nos. 38 and 39. All I can say about Amendment No. 40 is that if she wishes to test the opinion of the House now or on Third Reading, we will be with her.
§ Lord Bassam of Brighton
My Lords, I am already quaking.
I am obviously grateful to the noble Baroness, Lady Anelay, for tabling these amendments and for the opportunity to comment further on the procedural matters contained within them. I should first deal with Amendments Nos. 38 and 40, about which we had had a full and constructive debate in Committee. We also had some mini debates during Question Time on the issues—as I know to my cost because I had to deal with the Questions. We particularly dealt with the way in which any fees levied under this clause might affect our ability to attract overseas students to the UK. The central allegation is that the extra cost of visa fees would act as a disincentive to those who might otherwise have sought to come here to access higher education, especially students from poorer countries. Noble Lords from all quarters of the House have been concerned that there might be a decrease.
The correspondence deals with that issue very well. However, it is worth placing it on the official record that the Prime Minister's challenging initiative set targets to increase the number of students in higher education by 50,000 and in further education by 25,000. We are a joined-up Government and the Home Office fully supports the Prime Minister's initiatives. Home Office officials are members of the steering group that oversees the strategic direction of the proposal's planning and implementation.
Members of your Lordships' House will be interested to know that there is absolutely no evidence to date to suggest that the introduction of charging has caused numbers of foreign students seeking to come to the United Kingdom to decrease. In fact, in a report released by UCAS on 29 April this year, entitled Latest figures for 2004 entry to UK higher education, there is an indication that applications by non-EU nationals for the forthcoming academic year received prior to March 2004 actually increased by 16.8 per cent in comparison with the same period in 2002–03. Therefore, quite the reverse appears to be the case. We continue to be successful in the overseas student market.
During the last debate, my noble friend Lady Scotland confirmed again—and, as I said, we are resolute in our commitment—that we would consult all interested parties, in accordance with Cabinet Office guidelines, before the introduction of any fees under this clause. As she said, and as I have said in the past, we were mistaken in our failure to consult fully before the introduction of new charges last year, but we are determined to learn 759 lessons from that misplaced exercise. I know that noble Lords still have reservations about the way in which this power will be operated, and these were echoed by the Delegated Powers and Regulatory Reform Committee's comments that the power gives a "very wide discretion".
Although I understand the concerns, I can assure your Lordships that Clause 28 has been drafted with specific limits and safeguards in mind to ensure that it is operated in a fair and proportionate way that does not unduly disadvantage particular applicants or undermine our wider economic and social objectives. I know that the safeguards and assurances that we have given will not satisfy everyone and I am conscious that noble Lords still harbour concerns about the inappropriateness of the clause. To alleviate those concerns, we aim to introduce amendments at Third Reading that require a three-month consultation period and approval by both Houses of Parliament under the affirmative resolution procedure before any new fees can be introduced.
On Amendment No. 39, which we were able to discuss briefly during Committee, I wish to emphasise at the outset that we take this matter extremely seriously. I can assure anyone who has been inconvenienced by mistakes and administrative errors that we are absolutely committed to ensuring that we deliver a fast, efficient and effective service to all our customers, not least those who have paid a fee in relation to their applications. We have dedicated teams working hard to identify ways in which our procedures and case handling can be improved. There have been significant improvements. We currently meet our advertised service standard to process 70 per cent of all postal applications for leave to remain within three weeks of receiving them in IND. The Public Inquiry Office in Croydon is trialing an appointments system to ensure that customers do not have to queue for long periods before being seen. The Public Inquiry Office aims to process 100 per cent of applications on the same day. Sometimes that is not possible and the target is not met, but we have introduced a new screening process so that customers whose applications cannot be dealt with on the same day are advised of that before they pay the premium fee.
We recognise that in addition to ongoing improvements to the service and the limitation of mistakes and errors we must be able to deal with cases of maladministration. If and when they do occur, we must deal with them efficiently. We have made it clear in previous debates that we already have the power, and have used it, to make ex gratia payments in clear cases of maladministration. That exists independently of charging legislation, so there is no need to make express provision for it in Section 5 of the Immigration and Asylum Act 1999. All error cases reported are fully investigated; when there is a clear case of maladministration, we will rectify the case free of charge. We have successfully reduced delays in processing cases and are now working with UK visas to set up a coordinated system for rectifying errors, which will provide our customers with a central point of contact and a more streamlined service.
760 I hope that I have been able to offer reassurance and hope that the noble Baroness will feel able to withdraw her amendments.
§ 10 p.m.
§ Baroness Anelay of St Johns
My Lords, I am more than usually grateful to the Minister, who started by saying, in response to a comment from the noble Lord, Lord McNally, that he was already quaking at the thought of Third Reading. I know that he said it with a little irony in his voice—and rightly, because the gift that he has just given us means that he need quake no more.
I assure the Minister that there were two very significant issues here. First, outside organisations homed in very closely on the fact that they found it inconceivable that there should not be a clear plan for consultation in the Bill. I welcome the proposals that the Government have made today and look forward to seeing the amendments when they are introduced.
The other matter on which those organisations concentrated involved the importance of having proper parliamentary scrutiny of any future change in the level of fees. That is why I have taken so very seriously—as I always do, but even more particularly in this case—the recommendation of the Delegated Powers and Regulatory Reform Committee, which said that this should be done by affirmative rather than negative resolution. I am doubly glad that the Minister has confirmed that the Government are prepared to move on that issue, too.
That left another two issues. Although I am now almost sure that I shall not have to bring the amendments back, I shall need to consult the further education colleges and others. The Minister referred to the matter of ex gratia payments. I know that many still feel that measure to be inadequate, because of its uncertainty. I understand what the Minister says with regard to flexibility and will certainly consider the matter again and decide whether it needs to go any further.
With regard to the Minister's remark that higher charges have not proved the disincentive that it was anticipated could be the case, the argument that has been put to me this afternoon by those to whom I have been able to speak is that the people who have arrived here to take up places just after the summer 2003 announcement were already committed to coming to those courses. They were not in a position simply to give them up, having arranged their lives around it. They made the extra sacrifice. The concern that the universities and further education colleges have is that it will be a disincentive for future groups of students making decisions over the past winter about where they will go. It is the future application level that will be even more interesting, and which will either prove or disprove the Government's position.
However, the Minister is introducing amendments at Third Reading, and I suspect that those amendments will give outside organisations adequate opportunity to make any further representations that 761 they wish to make. Therefore, it is most unlikely that, in withdrawing these amendments, I shall need to return to any at Third Reading. I beg leave to withdraw the amendment
§ Amendment, by leave, withdrawn
§ [Amendments Nos. 39 and 40 not moved.].
Baroness Anelay of St JohnsM moved Amendment No. 41:
Page 30, line 35, at end insert —
( ) Section 5 of the Immigration and Asylum Act 1999 (c. 33) (charges) shall be amended as follows.
( ) At the end of subsection (3)(b) insert—
§ The noble Baroness said: My Lords, we are still in Clause 28 but are approaching from a different angle. Amendment No. 41 has been brought to me by the Refugee Children's Consortium, which is concerned that Clause 27(2) makes reference to fees imposed under Section 5 of the Immigration and Asylum Act 1999. It says that there is a particular problem with the fees that are currently charged to children under the system. It is important to highlight them in the debate on this clause.
§ The problem is that unaccompanied minors who are refused recognition as refugees, but who are given leave to remain, are now being charged under Section 5 of the 1999 Act. They would thus face increased charges under Clause 28. However, the very fact that they are charged at all is considered problematic. It looks as though the Government have delayed too long in addressing this issue. Many of these young people were given leave until their 18th birthday. Where the leave award totalled less than one year, under Section 83 of the Nationality, Immigration and Asylum Act 2002 they will have had no opportunity to appeal against the refusal to recognise them as refugees, as this right only arises once leave has been granted for over 12 months.
§ The Refugee Children's Consortium says that under Section 5 of the 1999 Act, applications are to be refused if not accompanied by the fee. Many of the people who are in school or college are supported by social services. Some social service departments pay up, others do not or cannot. The consortium has seen cases in which legal representatives have refused to put in an application because there is no means of paying the fee or sometimes they have delayed putting the application in while seeking to find a means of getting the money. As one can imagine, the consequences of this can be devastating.762
§ If an application is made before the leave expires, the young person continues to have all entitlements to support and benefit attendant on that leave until such time, if any, when the application is refused. But if the application for an extension of leave is made after the extant leave has expired, the young person is technically an overstayer at the time of the application and he or she is at risk of losing all support. I understand that the Home Office is well aware of the problem but the difficulty is how and when it is going resolve it. What action is coming from the Home Office, and when? I beg to move.
§ Lord McNally
My Lords, this time I have received the briefing from the Refugee Children's Consortium, and I thought that its position was put most adequately by the noble Baroness, Lady Anelay. I have nothing further to add other than to say this: as it seemed to work last time, if the noble Baroness divides the House on this matter, we will be with her. So will the Minister start quaking again, please?
§ Lord Hylton
My Lords, there are by now a very considerable number of people in this country quite legitimately, but having only exceptional leave to remain. They suffer from a number of disabilities which I hope the Government will seek to improve, taking into account the ones specified in Amendment No. 41.
§ Lord Bassam of Brighton
My Lords, I am grateful, as ever, for the tabling of this amendment. We have not yet had the chance during the Bill's passage to discuss how the fee regime affects unaccompanied asylum-seeking children in relation to this Clause.
Section 5 of the 1999 Act, which enables the Secretary of State by regulations to prescribe fees for certain immigration applications, including those for leave to remain in the United Kingdom, provides for exemptions to the leave to remain application fee in two ways. First, it provides that asylum claims and Article 3 ECHR claims can be made without charge. This reflects the special status of these claims for international protection and our international obligations.
During the passage of the 1999 Act, the then Home Office Minister Mike O'Brien stated that,no fee will be levied on applications for the right to remain by asylum seekers …our view that would not comply with the 1951 Convention …is debatable whether article 3 of the ECHR would allow a fee to be charged, but in any event, we have no intention of charging any such fee".Secondly, the 1999 Act provides that regulations prescribing fees may provide for no fee to be payable in certain prescribed circumstances. This enables particular categories of applicants or applications to be exempted from the prescribed fee from time to time, as appropriate.
It would not be inconsistent with our international obligations to impose a charge on unaccompanied asylum seeking children or former unaccompanied asylum seeking children whose application for further claims is not based on asylum or Article 3.
763 We do accept that children or those applicants who sought asylum whilst under the age of 18 who subsequently apply for further leave to remain in the United Kingdom are in some ways a special case. We have heard strong arguments for that during discussions on that point. But whether that justifies exempting them from charges even where no asylum or Article 3 ECHR claim is being made is another matter.
The majority of these applicants will not have qualified for asylum or Article 3 protection and in most cases will have been granted leave only as a result of our policy not to return unaccompanied asylum seeking children. If, having turned 18, they then apply for further leave to remain, there is a strong case for saying that they should be treated in the same way as any other adult who wishes to remain in the United Kingdom, and be charged accordingly.
We do not accept that the fee is prohibitive. Such applicants who apply for further leave to remain whilst their current leave is still valid—as they are expected to—are entitled to work in the United Kingdom without restriction.
Nevertheless, we are aware that some of these applicants may be in receipt of benefits and support from local authorities under the Children (Leaving Care) Act 2000 and may find it difficult to pay the fee themselves and may in turn look to the local authority to do so.
In view of this we are currently considering whether it would be appropriate to exempt such applications under the regulations. We have reached no final view on that issue but I would expect us to do so in the near future and be able to report back to the House on this matter at Third Reading.
In any case, we do not believe that it is necessary or appropriate to provide for exempt categories of applicants in or through primary legislation. As I have indicated, we already have the power to provide for exemptions by regulations made under Section 5. This provides us with the necessary flexibility to respond to changing circumstances rather than having to attempt to classify exemptions on the face of the Bill. I suggest that that is the more appropriate way to do so, should we feel such exemptions are necessary. The amendment would take away this flexibility by requiring the regulations to contain this exemption.
764 I would not normally give as lengthy an explanation but I wanted to set it out fairly on the record. I also wanted to try to demonstrate that, while we were not entirely convinced of the case, we saw some merit in the argument and would have a period of reflection on that prior to Third Reading. I hope that response is useful and that I have answered the points that were raised.
§ Baroness Anelay of St Johns
My Lords, I am grateful to the Minister for taking us further down the road. That has been very much the tenor of our debates today. We have been able to develop some of the more difficult issues that we addressed in Committee in a constructive way. I am grateful to the Minister for saying that he will reflect further on these matters.
There are special considerations with regard to people who are minors when they are granted leave. They could still be minors when that runs out and they have to apply again, so those are difficult circumstances for them. The greatest concern is that at the moment the Home Office is providing a stopgap measure so that when an application is received without the fee attached it is not processed to avoid giving a mandatory refusal. People are rather in limbo. I realise that the Home Office is trying to be helpful but it means that the whole question is not resolved.
I appreciate what the noble Lord said about the Home Office not being completely convinced about providing exceptions by amending the immigration leave to remain fees regulations, but it is helpful that the Government are prepared to reflect further. I shall look keenly to see whether the Government have tabled any amendments, and perhaps a week before Third Reading get ready to table mine so that if we complete Report on 7 June, I can resubmit this amendment so that at least I have a holding position. At this stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Evans of Temple Guiting
My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
§ House adjourned at fifteen minutes past ten o'clock.