Asylum and Immigration (Treatment of Claimants, etc.) Bill
2:30 pm

Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, we and many others have already explained our objections to Clause 8 in some detail in Committee, and I do not intend to repeat all that here. However, we do not accept that Parliament and the state can abdicate responsibility for the children of failed asylum seekers by saying that, if the parents refuse to depart voluntarily when they get to the end of the appeal process, it is the parents who are putting the children at risk and it is for the local authority to decide how the interests of the child should be protected under existing child protection legislation.

If any local authority should fail to protect the children in that situation, there would be a breach of the UN Convention on the Rights of the Child and of the Human Rights Act. Morally, it would not be only the local authority that was to blame—the Government and your Lordships would share the opprobrium for creating the circumstances in which the violation was likely to occur and failing to build in adequate safeguards to prevent it happening.

The noble Baroness said in Committee that it was not the intention of the Government to separate children unnecessarily from their parents. That means that there will be circumstances in which they think it is necessary to separate children from their parents; otherwise the Minister could have given an unqualified assurance that it would never happen. So far, no Minister, either in another place or here, has explained how this can be achieved without contravening the Children Act and corresponding legislation in Northern Ireland and Scotland. It is not surprising that the British Association of Social Workers has said that to operate this clause risks breaching their members' professional ethics. It will be the Secretary of State who lights the fuse that leads to this explosion of children's rights by certifying that the parents have failed without reasonable excuse to leave the United Kingdom voluntarily.

As the Minister said in Committee on 5 April, the Government mitigated the harshness of this clause by providing a right of appeal to an asylum support adjudicator against the certification and the consequent loss of support. The adjudicator would not be entitled to consider the likelihood that if the certificate was upheld, there would be a breach of the Children Act, the UN Convention on the Rights of the Child or the Human Rights Convention. Again, it comes down to the manner in which the local authority deals with the conundrum that is presented by Clause 8. The Minister can tell the House whether—and, if so, under what conditions—the local authority has to provide accommodation and support to the family. It would be grossly unfair to the hard-pressed local authorities not to spell this out. In particular, do Ministers say that powers to support children in need under Section 17 of the Children Act 1989 can be used?

The assessment of whether a child is in need directs social workers towards promoting the upbringing of the child within the family. If parents are asking for support to keep their families together, and social workers believe that it is in the child's best interests, this is the support that ought to be provided, but as we read it, that is not allowable under Clause 8. If there is only a very limited power and, in practice, the local authority has no option but to take the children into care, leaving the parents on the street, it may be acting unlawfully too. As the Joint Committee on Human Rights put it, and the Minister candidly acknowledged:

"While Clause 7"—

as it was then—

"in itself is compatible with rights under the ECHR and the CRC, we fear that violations could all too easily follow in practice. We draw this to the attention of each House".

The noble Baroness said that the Government had taken that warning into account in providing a right of appeal, but, in effect, that only deferred the moment at which the risk envisaged by the JCHR would arise. The adjudicator has no power over the decisions that are to be made by the local authority. On the basis of those considerations, the only proper response to Clause 8 would be to delete it.

That is not to say that we believe that people who are unsuccessful in making asylum claims should be allowed to stay here indefinitely. We accept the need to remove them compulsorily as a last resort. However, what we find absolutely repulsive is the way in which the Government describe the infliction of destitution on families with children as voluntary departure. We want to know how they intend to apply the provisions of new paragraph 7A of Schedule 3 in the real world. If the parent or parents have no means and no accommodation, does Section 21C of the Children Act 1989 kick in? Are local authorities caught between the Scylla of paragraph 7A and the Charybdis of an expensive court case under the Children Act or the Human Rights Act? If your Lordships have not the faintest idea how the conflict is to be resolved and if Ministers will give us no answers, how can we expect local authorities to make such painful decisions?

We already have some idea of what will happen when Clause 8 comes into effect from the experience of EEA asylum seekers from 1 May onwards. We dealt with the matter on two previous occasions: on 23 April, when your Lordships approved—I use the word tactfully—the accession regulations, and on 26 April, when the Committee heard that news of the three-day concession had not filtered through to NASS officials in Brent and, for all we know, in other parts of the country.

In a letter sent to A8 asylum seekers dated 5 April but, in some cases, received much later than that, NASS said:

"If you are living in accommodation provided or funded by NASS, you will need to vacate it by 1 May"—

that part was in bold—

"as you will no longer have authority to remain there".

The letter said nothing about the safeguards—limited as they may be—in the schedule, nothing about supporting children, and nothing about supporting people when not doing so would be a breach of their human rights, including the right to family life of a child threatened with separation from his or her parents. No evaluations of the likelihood of such breaches were carried out, and NASS made no attempt to assess individual cases to ensure that breaches of human rights did not occur.

Unsurprisingly, the evictions have been challenged. The High Court asked NASS to stay evictions so that the court would not be overwhelmed by applications for relief, as we predicted. NASS agreed to do so, but only if people contacted them, with the result that many people were unaware of the temporary reprieve. Mr Justice Collins granted permission to proceed to a full judicial review, which is now scheduled for 20 May. In that hearing, he said to the Government's representatives:

"You say that, because you have left it to the last moment, nothing can be done, subject to the [human rights] convention . . . That is a recipe for bad administration: leave to the last moment—don't do what you should have done earlier. Then you get away with it. That doesn't sound very attractive. That is the problem I am faced with. I think all the evidence points one way as to whether it was reasonable to expect them suddenly to find work when they had not been able to work".

What is to stop the same appalling situation occurring when Clause 8 comes into effect? The families that are to be deprived of support are not only those who reach the end of the line from now on but all the people who are likely to benefit from the backlog clearance procedure.

I had a letter from Home Office Minister Fiona Mactaggart about one such family. I shall give the reference in case the Minister wants to look it up: A545063. The applicant had arrived here on 6 November 1995 and applied for asylum at the beginning of January the following year. The former Minister, Beverley Hughes, wrote to me on 13 December last year, saying that Mr H would hear from the IND shortly. Four months later, there was still no word, and I wrote again. Ms Mactaggart replied, pleading that, as a result of the reorganisation of the IND, there had been what she described as "occasional delays". She apologised for the distress and inconvenience that it had caused the family. The Minister said that the IND would send Mr H a form in the next two months.

I use that case as an illustration that, if Clause 8 were in effect while the backlog was still being cleared, Mr H and his family would have to live on nothing while the IND got round to sending out the forms. We are suggesting that, as a minimum, procedures should be established to ensure that the modest exceptions in Schedule 3 are identified and honoured. Amendment No. 22 spells out particular groups whose needs must be evaluated before any decision to withdraw support is taken. That list is modelled on the EU reception directive. Although that directive is concerned with the reception of people seeking asylum rather than those who have reached the end of the process, we used it as our source because it provides a definition of "vulnerable persons" agreed by the UK and other member states.

I have just seen a letter from the Treasury Solicitor to an applicant. It says:

"We confirm that those who have indicated their wish for support to continue by their representations to NASS either in writing or on the telephone will be eligible for an assessment".

Over the page, it says:

"We confirm that the assessment will take into account factors relative to whether or not the failure to provide support would result in an ECHR breach".

If that is the case, and the Treasury Solicitor is making the concession, we are almost where we want to be with Amendment No. 22. I hope that the Minister will confirm that the letter from the Treasury Solicitor represents the change in government policy that we are asking for through Amendment No. 22. I beg to move.

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