Asylum and Immigration (Treatment of Claimants, etc.) Bill

Part of the debate – in the House of Lords at 2:30 pm on 18 May 2004.

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Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 2:30, 18 May 2004

My Lords, it has been a long and valuable debate in which important points have been made. I am impressed by the compassion and humanity that has been expressed throughout and the recognition that this is a difficult issue. It is attendant on many other difficult and related issues and the answers are not necessarily easy, simplistic or straightforward.

I was very much taken by the comments of my noble friend Lord Judd and his appeal to my sense of compassion. The noble Earl, Lord Listowel, made reference to my social worker past and it was nice of him to think of my first choice of career. I am grateful to him for that. However, I was more impressed by his reflection that, in reality, the Government have taken many important steps to improve the quality and range of services provided to those who seek refuge in our country, who have fled here and seek asylum status. We have invested very heavily in that; we have also invested in ensuring that our processes are robust, that they comply with human rights considerations and that they take account of the world as we see it. This debate and the amendments reflect on those issues and concerns. I have a great deal of respect for those who will differ from the Government's position on this. It is a very difficult and, ultimately, a quite tough and hard line position. We do not apologise for it—we think it is right.

Amendment No. 24 would delete Clause 8 in its entirety and mean that support could not be withdrawn from a failed asylum-seeking family unless they failed to comply with the removal direction. The amendment would mean that an individual evaluation must be carried out before support could be withdrawn or withheld. It lists a number of particular aspects to which special attention must be paid. It would apply to all classes of person listed in Schedule 3 to the Nationality, Immigration and Asylum Act 2002, and not just the cases affected by Clause 8.

As I have said, there has been a lot of discussion and debate about Clause 8. The Government recognise that this is a highly sensitive issue, and we have had to make very difficult choices and tough decisions. Where children are involved, none of those decisions can be taken lightly, and we as a Government do not take them lightly.

However, we face a situation in which families whose asylum claims have been rejected and who have exhausted their rights of appeal do not leave the country voluntarily and frustrate our attempts to enforce removal by not complying with redocumentation. At present, those families are entitled to be supported at the taxpayers' expense. This cannot in the end be right. It undermines the asylum system—it boils down to families being able to disregard our laws completely when they have had a fair decision that an independent appeals process has upheld.

I fully understand the concerns that families may have about returning, but they will not be returning to face persecution. The fair hearing of their asylum claim will ensure exactly that. If we are to maintain a credible immigration and asylum system, there has to come a point where we say enough is enough.

We are not seeking to make families destitute, but we are making it clear that families do not have the option of remaining here indefinitely. It is very important that those opposed to the clause—and I understand the reasons for that opposition—do not inadvertently lead families to think that that is an option. It would be wrong of them to do so.

There is concern that local authorities will be forced to act in a way which is inconsistent with other legislative provisions, such as those contained in the Children Act 1989. First, it needs to be understood that our whole aim is to avoid this becoming an issue. With the family co-operating and leaving voluntarily, that issue simply will not arise.

We cannot have a situation in which central government decide that support for the family as a whole should cease, only for that support to be provided by the local authority. That, in our view, would be no incentive for people to co-operate.

Schedule 3 does not exclude the possibility of support being provided to the child under Section 17, nor does it prevent the use of Section 20 of the Children Act. We know that in both cases this requires the consent of the parents. We do not underestimate the challenges that this may pose in practice. It is why we want to continue well informed discussions with the Local Government Association on the way in which responsibilities towards children might be exercised.

However, we must all face up to the reality of the family's position in the country. This is not about making social workers into immigration officials, but we must all recognise that the family is in the country illegally and will not be given permission to stay. We simply do not believe it is in the child's best interests to remain for long periods in a country where they have no prospect of being allowed to stay permanently.

Amendment No. 22 is concerned with the way the clause will work in practice. I think that the amendment is unnecessary. We have made it clear that before a decision is made to withdraw support, the family will be offered an interview. This is where the family can explain why they have not yet left the country and what steps they are taking to do so. If there are particular reasons why they have not taken steps to leave, then they have the opportunity to inform and advise us of those. So the case will be assessed on its individual merits—precisely what the amendment argues for.

It is worth clarifying this: where people are co-operating, support will not be withdrawn. We are after co-operation—that is what we are trying to achieve. If they have a reasonable excuse for not having taken reasonable steps to leave, then, equally, support will not be withdrawn. The interview will not be an opportunity for people to reopen their asylum claim, and it is important that we are clear about that.

Schedule 3 already makes it clear that support is not to be withdrawn where to do so would breach a person's convention rights. The process we have outlined makes it clear that cases will be decided on their individual merits. Part of that assessment has to include ECHR considerations. We will of course assess whether needs arising, because the person is, for example, a single parent with a minor child, give grounds for believing that withdrawing support would breach our ECHR obligations.

I would have concerns about including an amendment which refers to an individual evaluation without seeking to define what that evaluation might be. That gives rise to greater scope for doubt and increases the likelihood of legal challenge. Given our ECHR obligations, I believe it to be unnecessary.

Because the noble Lord, Lord Avebury, raised this, I know that the amendment has, in part, been prompted by concern at the position of accession state nationals who cease to be eligible for support from 1 May unless a failure to provide support would breach ECHR considerations. I do not think that it is helpful to conflate the very specific situation that applies to those persons with what will happen in the case of those affected by Clause 8. The National Asylum Support Service has said that it will listen to any representations from people affected and will not seek to terminate support until those have been considered. This has been, and is, a very difficult area. I fully understand and respect the important and powerful views that have been expressed in regard to it.

A number of questions were raised in the debate and I will work through some of them. The noble Lord, Lord Avebury, spoke about how local authorities can exercise their duties. They can use Section 17, as I said earlier, but only to support the child, and not the family as a whole. They can, as I also said earlier, use Section 20 of the Children Act. So options might include the child being looked after by a family friend or relative, or the use of foster arrangements. We want to continue the dialogue with the Local Government Association on the workability issues arising from this legislation, and we will consider how best guidance could be given to local authorities.

The noble Lord, Lord Avebury, raised issues relating to European accession states letters. As I said, it would be wrong to conflate the issues; however, the noble Lord raised precise questions about the Treasury Solicitor's letter. That letter was agreed with claimants in the judicial review cases, which were adjourned generally. Among other things, it was proposed that individual assessments would be carried out. That was why it was included at an important point in the correspondence.

As one would expect, the noble Lord, Lord Lester, raised concerns about breaches of Article 3. The saving provision in Article 3 states that support will not be withdrawn when to do so would be in breach of the Human Rights Act 1998, which effectively works within Article 3. The fact that a person is a failed asylum seeker does not have a bearing on a breach of Article 3. I said earlier that we need to address the issue with compassion.