UK Borders Bill

– in the House of Lords at 8:31 pm on 9th October 2007.

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Consideration of amendments on Report resumed.

Clause 5 [Registration regulations]:

Photo of Lord Judd Lord Judd Labour

moved Amendment No. 6:

Clause 5, page 3, line 27, leave out paragraph (a)

Photo of Lord Judd Lord Judd Labour

My Lords, I shall, with the leave of the House and for your Lordships' convenience, also cover Amendment No. 10. In Grand Committee, I underlined some of the anxieties of the Joint Committee on Human Rights about this section of the Bill. In the absence of more detail in the Bill or any draft regulations prescribing important details of the proposed scheme, it was impossible for the Joint Committee to assess the compatibility of the proposed biometric registration scheme with the right to respect for private life, as laid down in Article 8 of the European convention. The Joint Committee made comparisons with shortcomings surrounding the proposed identity cards Bill and the dangers of the potentially discriminating impact of introducing compulsory registration for non-nationals before nationals. This is in part due to the real possibility that British citizens from visible minority ethnicities will be subject to more frequent demands to produce an ID card or to allow checks against the register. The introduction of the biometric immigration document gives rise to the same concern about de facto racial profiling.

Even though the Bill does not make it a requirement to carry such a document, the fact that such a document exists for non-nationals and can be requested to prove entitlement to services makes it highly likely that members of black and minority-ethnic communities in the UK will be disproportionately required to prove their immigration status. I must underline that this is at a time when, from various parts of the political spectrum, we are all concerned to bring the nation together in one citizenship. In the Roma rights case, the House of Lords found that the Home Office's policy of targeting Roma for pre-entry clearance at Prague airport was inherently racially discriminating and therefore unlawful. To be lawful, it will be essential that race or ethnicity plays no part in the profiles used by the Government to decide the order in which it phases implementation of the biometric document.

I have read and reread the response of my noble friend in Grand Committee. I must say, and I hope that he will understand when I say it, that I am still to be convinced that the Government have fully understood and dealt with this danger. I hope that he can take us the final mile tonight in persuading us that racial profiling is out of the question and will be impossible. I beg to move.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, I am glad that the noble Lord, Lord Judd, has tabled the amendment again because there seems to be some confusion about the Government's intentions with regard to the order in which persons subject to immigration control will be required to register. In Grand Committee, the Minister said that initially BIDs would be issued to persons renewing leave to remain, such as students from outside the EU—I suppose he meant the EEA—persons asking for settlement after the five-year qualifying period, applicants seeking to extend work permits and those applying for leave to remain on the basis of marriage to a British citizen.

The noble Lord said that those categories would be used to trial the biometric recording and card production processes. The Explanatory Notes say that the first documents will be issued to those who pose the greatest risk to immigration control. When I said that the Minister's remarks indicated that there had been a change of policy since the Explanatory Notes, and that we were hearing about it for the first time, he initially made no comment. Then in his letter of 7 July, dealing with points raised in the second Grand Committee sitting, he reverted to the narrative of the Explanatory Notes. Although the precise order of priority for the rollout still had to be determined, the prime consideration was—I quote from his letter—

"the latest risk assessment to understand where there is abuse of immigration control".

So who is at the front of the queue? The persons renewing or varying an existing leave to remain on whom the procedures would be tested, or the nationalities subject to the highest refusal rates on the basis of experience?

The Minister said that it was unnecessary to consider having a separate monitor to look at the rollout process particularly to ensure—to answer the concern of the noble Lord, Lord Judd—that it was not discriminatory or in breach of data protection legislation, because the chief inspector of the BIA would have that responsibility and would be required to report to Parliament on those issues. I hope that to some extent that reassures the noble Lord, Lord Judd, because presumably the chief inspector would be able to look at the process and satisfy himself that there was nothing inherently discriminatory in it.

Then the Minister said that employers would not be acting lawfully if they required the BID to be produced on the basis of a person's appearance. In the next breath he said that if a job applicant appeared to be a Somali—that was the example I had given on 23 July at col. GC 149, a category that might be among the earliest holders of BIDs if the Explanatory Notes rollout criteria are followed—it would be very sensible for the employer to ask the applicant whether he had a BID.

Then the Minister said that persons of Somali appearance applying for jobs would not "necessarily" be asked to produce a BID. A "verifiable form of documentation", he said, would do. A minute later he mentioned the national insurance number. I then put it to him that any person who had previously been in employment should be able to satisfy an employer of his right to work and his eligibility by giving his NI number, so only those looking for their first job after leaving school or university would have to use a BID to satisfy the employer of his legitimacy as a person who had the right to reside and work in the UK.

I have no doubt that this will all be made clear to employers in due course when they receive guidance on how to carry out their duties under the Bill, but it is slightly alarming that the Minister was not able to clarify the matter while we were talking about it in Grand Committee, and I hope that he will be able to do so now.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, it may seem slightly eccentric to raise an issue concerning the Republic of Belarus on this amendment. However, I do so because biometric visas are involved. It may have been more appropriate to raise it under Amendment No. 9, but I shall go ahead nevertheless.

I have been aware for some years that children and accompanying adults have been coming to this country from Belarus because they were suffering from a variety of radiation-induced diseases and illnesses—for example, leukaemia. In Wiltshire, the county next door to where I live, there has been a very active group of concerned citizens who have been arranging holidays, care and treatment for those children. They are concerned, and so is the Belarusian ambassador in London, that the introduction of biometric visas will seriously prejudice the work that has been going on successfully for quite a long time.

I would like some reassurance from the Government that charges for biometric visas and the bureaucracy and complication entailed in producing them will not upset what I consider—I am sure that many of your Lordships agree—a very useful and quite important little voluntary scheme.

Many of us have pretty strong views about the nature, character and operations of the current Belarus Government. What has been happening to provide care and some degree of treatment has established links between our two countries which it would be tragic to prejudice by the introduction of biometric visas. I hope that the Minister can give me some good news on that subject.

Photo of Baroness Stern Baroness Stern Crossbench

My Lords, I support the amendment moved by the noble Lord, Lord Judd, my colleague on the Joint Committee on Human Rights. There is a real problem of confusion of immigration, asylum-seeking and any person from an ethnic minority, however British, and a real danger that the Government's policy in this respect could contribute to racial feeling. The Joint Committee on Human Rights was alarmed by the Government's proposal to bring in biometric registration in stages, because of the danger of discrimination on the grounds of nationality and the danger that it will be known that certain people from ethnic minorities have to have those documents, so that it is assumed that everyone from an ethnic minority has to have one and therefore people are asked for them even when that is completely inappropriate. It would be very helpful if the Minister could say how far, in devising the proposal to introduce this in stages, the implications for racial harmony and the need to avoid discrimination on the grounds of nationality have been considered.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I am grateful to noble Lords who have placed the amendments before the House this evening. It has been a useful debate because it has flushed out some issues of concern. That is always very helpful and will enable us to set out the Government's intention. I listened with care to what the noble Baroness, Lady Stern, had to say about the issues surrounding race and what the Joint Committee on Human Rights had to say on that matter. I certainly well understand those worries, but I think that they can be well matched by our approach to the biometric immigration document roll-out. Clause 5(2)(a) is designed to ensure that it could be done incrementally. The noble Lords' amendment would mean that regulations would have to require everyone subject to immigration control to apply for a document at the same time.

During earlier debates in Grand Committee, Committee Members requested more details about the roll-out of the BID's process. We plan to roll out the biometric immigration document incrementally by application type over three years, starting with a small pilot in spring next year followed by a roll-out in the year following. There are several reasons for that. It will enable the introduction of a pilot to test the business processes using this legislation. We want to introduce biometric immigration documents gradually. A gradual ramp up in the process is less risky for us to implement. I hear the comments and criticisms about the use of new technologies. In addition, rolling it out incrementally should minimise the burden on businesses or other organisations that may be required to use it, such as employers.

Rolling out by application form will ensure that the application process is simple for customers—it will be clear who will be required to have their biometrics recorded and who will not. Since each application type carries its own unique application form, it will be clear on an application whether a customer's biometrics will be required, without reference to caveats or supplementary rules. We will gradually build familiarity and consistency into the implementation. That is an important issue. We have used this same gradual method many times—for instance, when introducing the knowledge of life tests and perhaps more pertinently, biometric visas overseas.

We have created a consultative document for the Commission for Equality and Human Rights and the Equality Commission for Northern Ireland, and this will be sent out on 16 October. This document provides an opportunity for comment and engagement by the CEHR and ECNI, and an undertaking to consider and respond to any concerns that they may have. In addition, the consultation seeks specific feedback on the aspects of indirect discrimination that may arise under the current roll-out plan.

The pilot will last for three months and aims to enrol the biometrics of around 10,000 applicants who will continue to receive a vignette in their passport if their application is successful—no card will be issued at this stage. The pilot will include those categories of leave planned to be in the early implementation of BIDs—further leave to remain, but categories planned for roll-out may be included to test fully the processes of a range of customers.

We plan to base the pilot in London and aim to test some of the IT equipment and business processes. When we are up to full coverage, we anticipate that in excess of 850,000 customers each year will be required to register their biometric information as part of the application process; this includes those people who lose or damage their cards or have them stolen.

It is our intention to focus the roll-out of biometric immigration documents to immigration leave categories within which the most harm is prevalent. Biometric immigration documents will be a powerful enforcement tool and we want to utilise them as soon as we can. In this way, we can maximise the benefits of biometric recording and checking and issue secure documents. BIA statistical and intelligence-led research indicates that the level of harm is greater both in likelihood and impact among individuals applying in certain leave categories. These include students, those granted discretionary leave to remain and grants of leave based on relationships, such as marriage and civil partnerships.

We plan to introduce the biometric immigration document to categories of leave where it will have the most benefit and reduce abuse. This has produced the following implementation schedule: in 2008, discretionary leave and humanitarian protection, marriage, long-term relationship and civil partnership categories and student categories; in April 2009, remaining high harm further leave categories, including business, children of settled parents, work permits and visitors; in April 2010, remaining further leave categories; and in April 2011, settlement and refugee status grant categories. There may be further changes to the plan based on the outcome of the evaluation of the pilot and the consultation with the Commission for Equality and Human Rights and the Equality Commission for Northern Ireland.

By focusing initially on applications based on marriage, long-term relationships and civil partnerships, and students, we are adding immigration control to categories that have been subject to some abuse. By selecting these groups first for the BIDs programme, we add a further level of control that will mean applicants will not be able to switch identities. If we have seen them before in another identity, our checks will pick this up. BIDs also bring benefits for those who are here legally. They will be able to use their biometric immigration document with their employer or college to help them prove their identity, which some groups undoubtedly have problems with currently. There is a further check on the process through the legislative machine. Both Houses in due course will have to make the secondary legislation required for the pilot and for full roll out, so there will be further opportunity to examine our roll-out plans for BIDs in detail.

A number of issues were raised and I shall deal first with that raised by the noble Lord, Lord Hylton, which in some ways was away from the currency of the debate. I understand the noble Lord's concerns about people coming to the UK from Belarus and his particular concern about children suffering as a result of the Chernobyl disaster, to which he made reference in a note to me. There is a very complicated background to this. We should like to consider in some detail the noble Lord's point and I extend an invitation to him to give us more details of particular cases that concern him so that we can investigate the issues he has raised. I shall be more than happy to assist if I can.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, it would be very helpful if the noble Lord could say something about charging and whether charges will be waived in humanitarian cases.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I cannot give the noble Lord an answer: I should like to reflect on the issue. I shall be more than happy to correspond with him on that and will share that response with other noble Lords who have been involved in this discussion. My noble friend Lord Judd was concerned about visible ethnic minorities being subject to greater checks, which prompted the amendment. Public service providers and employers when requiring proof of immigration status will have to do so compatibly with the Race Relations Act 1976 and its subsequent amendments.

In the employment context, prospective employees must already provide documents to establish that they are entitled to work. A code of practice sets out how employers should do so in a non-discriminatory fashion. The introduction of the BID will not change that. It will instead provide a simpler and, one can fairly argue, much more secure means for employers to check that a person is entitled to work in the UK.

The noble Lord, Lord Avebury, reflected on comments made in Grand Committee on the requirements on employers to check eligibility. Under Section 8 of the Asylum and Immigration Act 1996, an employer commits an offence if he employs someone who is not entitled to work in the UK. The employer has a defence if he takes steps to check and copy certain documents, including, for example, a British citizen's passport. To ensure that employers do not discriminate, Section 8A of the same Act provides for a code of practice for employers to avoid discrimination. Similar provisions are in place to avoid discrimination in the forthcoming civil penalty regime under the Immigration, Asylum and Nationality Act 2006. The introduction of the BID does not affect the existing provisions in any way, which is extremely important. We must ensure that our anti-discrimination legislation is effective in this policy field as much as anywhere else.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, I am sure that guidance has been given to employers on how they should carry out their responsibilities to check that someone is entitled to work in the United Kingdom. Will any variation in the guidance be issued as a result of BIDs coming into force or are they simply ignored in the advice given to employers?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I am not aware that there is a variation involved. It is desirable for us to ensure consistency, so I will check on the point and advise the noble Lord.

Photo of Lord Judd Lord Judd Labour

My Lords, I thank all those who have participated in our brief debate on this vital issue. I also thank my noble friend for his characteristically full reply. This is the second time that we have dealt with the matter today. On the broader issue of the new powers for immigration officers, there is an anxiety that the standard operating arrangements will not be as specific as the PACE regulations for the police. The PACE regulations spell out that the police must be conscious of the danger of racial profiling and take steps to avoid it. We have anxieties about the biometric arrangements that are to be introduced. While I am absolutely convinced of my noble friend's commitment, I believe that there has to be strong leadership at all levels, starting at the most senior political level, to ensure that at the top of the list is the commitment that we will not get involved in racial profiling.

This matters fundamentally in terms of human rights, but I shall make the point ad nauseam that it also matters in the battle for hearts and minds. Racial profiling plays into the hands of extremists; it does not play for those of us who want to preserve a decent society. We must be aware of this. I shall read what my noble friend has said more carefully in the morning but I plead with him to make certain that he and all his friends do not underestimate the challenge to their leadership on this issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

moved Amendment No. 7:

Clause 5, page 3, line 34, after "information" insert "that is specified in an EC regulation or in any other international agreement to which the United Kingdom is party"

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, in Committee we tabled an amendment that sought clarity and reassurance from the Government on the use of other non-biometric information as referred to in Clause 5. We specified what data might be included, such as name, date and place of birth, address, immigration status and national insurance number. As the clause stands, it could oblige any person subject to immigration control to provide unlimited information for unlimited purposes. For example, regulations made under Clause 5(2)(d) could require that any person who is required to reply should provide detailed information about her medical history, which could then be used for purposes that have nothing to do with immigration by virtue of Clause 8(2). We are concerned about the open-ended nature of this provision, and indeed of the regulation-making power as a whole, since it is not confined to matters dealt with in the paragraphs, each of which is governed by the words "in particular". The powers are completely unfettered so long as presumably they have some connection with BIDs, however remote. We are dealing with sensitive personal data, which is why we propose to limit the data to what is strictly necessary for the job.

In Grand Committee, the Minister said that limiting the information as we were then proposing would mean that the United Kingdom could not use the biometric immigration document provisions so as to comply with the requirements of a forthcoming European Commission regulation. We therefore now propose that the BID may contain any information,

"that is specified in an EC regulation or in other international agreements to which the United Kingdom is party".

This will enable the UK to comply with the regulation that the Minister had in mind or any other international obligation that we may take on in the future. However, it will still put a definite boundary around the power to add anything else to the BID at the absolute discretion of the Secretary of State.

As the Minister knows, we are not happy to leave this question to be decided when an order is introduced, even under the affirmative resolution procedure, which he described as being a very powerful one. If, when the affirmative resolution is tabled, we consider that some of the non-biometric information to be specified for inclusion in the BID goes beyond what is strictly necessary to satisfy our international obligations and is not in fact necessary for immigration control purposes, there will be nothing that we can do effectively to correct what we would then consider to be a misjudgment by the Government. We would be unlikely to vote against the order and risk scuppering the whole BID project and we would be unable to amend the order so as to remove the offending provisions. This, of course, is a general observation that applies to all affirmative resolution orders. There is a case to be made for pre-legislative scrutiny of draft orders that are likely to be controversial, as this one may well be if the amendment is not accepted by the Government, as I fear.

The Minister did not comment on my off-the-cuff suggestion at the end of our previous debate, either at the time or in his subsequent letter of 11 July, on other points raised in the second Grand Committee sitting. Perhaps if he had done so we could have saved time this afternoon, but I still think that we would have wanted to hear his defence today of this extraordinary power. I beg to move.

Photo of Lord Roberts of Llandudno Lord Roberts of Llandudno Spokesperson in the Lords, International Development, Spokesperson in the Lords, Welsh Affairs, Whip 9:15 pm, 9th October 2007

My Lords, the reference to international agreements, of course, would also cover the United Nations Convention on the Rights of the Child, a convention to which we are required to respond and which we are required to fulfil. I have here a copy of it—I have read it quite thoroughly—and one can question whether we are complying with, accepting and making effective article after article of the convention. I shall not take too long on this—I shall not go through all the articles—but Article 2 requires states parties to,

"respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion", and so on. So there is to be no discrimination at all and every child is to be treated in the same way.

I think of the children I know who play on the beaches of north Wales and who climb the hills of Snowdonia. Are they as restricted as those who are in detention centres or in immigration centres, or who are in hiding because they fear the knock on the door and their enforced deportation? Under Article 2 of the convention, I would question whether we have the right to deal in this way with children.

Article 3 states that everything shall be done in,

"the best interests of the child".

We have argued on this before and this debate has become very much a debate on children and on their opportunities and freedoms. Imagine the trauma of being a child who is forced, with his or her parents, to flee from a very unfriendly country. Perhaps we should put ourselves in the shoes of these children. I have grandchildren and others here have grandchildren whom we would protect with our own lives, yet such children are subject to traumatic experiences in the countries from which they come. I am told that there are one or two countries in Africa where you can buy a child for £10. There is suffering and poverty there, but perhaps that is for another debate.

As to the process of leaving their country, how are they carried? What happens to them on that journey from their country of origin to this country? How are they to survive here? Is it a sort of Anne Frank subsistence in hiding? How are they fed? How are they cared for? What hope do they have? In all things we try to build a world fit for children to live in—I have said this before—because that is one of our greatest responsibilities. Nothing should clamp down on the hope and joy of childhood. But there is no joy in a detention camp. There is no joy in the back of a lorry fleeing from a country. When we look at this, we cannot claim that what we are doing is in the best interests of a child, if we keep that child in situations here that are totally contradictory to the United Nations convention.

Article 5 deals with the rights and duties of parents. The whole set-up of immigration centres leads to fear and dread about what will happen to their children and what tomorrow will bring. I imagine that some of our children are afraid of the dark, but life is nearly all dark for these children. Article 6 says that,

"every child has the inherent right to life".

But what sort of life is it—a life of fear, poverty and general hopelessness?

I was looking at the evaluation report for Section 9. I saw these children's countries of origin to which they would be deported. The country that came up most often was Pakistan. Yes, you can perhaps send a family back there. The next country was Somalia. Do you send a child back to Somalia with his family? The third most popular was Zimbabwe; after that was the Democratic Republic of Congo. Then it was Angola and Iran. When we talk about people going back to their countries of origin, these are the countries that we mean. If we say that we are supporters of the United Nations convention, we must look carefully at what we are doing with these families when they are not allowed to stay here. Article 9 says that,

"a child shall not be separated from his or her parents against their will".

So let us go to Section 9, which I expect we will deal with on Thursday.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I understand the noble Lord's concern, but he is making an argument that seems to be a long way away from what we are discussing, which is the content of a biometric immigration document and what it might contain by way of information. I urge the House to keep to the subject.

Photo of Lord Roberts of Llandudno Lord Roberts of Llandudno Spokesperson in the Lords, International Development, Spokesperson in the Lords, Welsh Affairs, Whip

My Lords, I am doing this because of the mention of international organisations. I realise that perhaps I should be speaking about it on Thursday. I am tempted, if the Minister agrees, to repeat this speech then. The international organisations that we are dealing with demand a certain standard of response, which means that we have to act in a certain way. Going through the Convention on the Rights of the Child, I see that we are often in breach of various of its articles.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I apologise for interrupting the noble Lord. It is not something I would normally do, but we should try to focus on what is actually on the Marshalled List. In general terms, though, I am grateful to both noble Lords for tabling the amendment because it enables us to explain a little more about how we intend bids to work.

In our view the amendment places an unnecessary restriction on what information may be recorded on the biometric immigration document. It would further limit the development of BIDs, particularly if the document is to be combined with another document such as an ID card or where we wish to tailor the information on the card for national purposes. Limiting the information on the document could restrict our ability to take up some technological advances, as we would be unable to add contents to the card unless there were either international agreements or EC regulations that permitted such developments. That seems to be an unnecessary fetter on our ability to improve the quality of information on a card. It is slightly bizarre to suggest that we would have to wait for yet another international agreement or EC regulation.

The amendment may mean that we could not combine the biometric immigration document with any other document, such as the ID card, if the other document is required to contain information not covered by an EC regulation or under international treaties to which the UK is party. For example, this could include the holder's national insurance number. I am sure that that is not the intention of the noble Lord, Lord Avebury, in moving the amendment. If it is, then the noble Lord has clearly found a clever way of inflicting some damage on an important element of our policy.

In making his argument, the noble Lord rather suggested that it would allow the Secretary of State to collect unlimited information and to keep unlimited information on the BID. I must refute that; it is not the case. The power to require the provision of information must be read in the context of the purpose of a biometric immigration document; that is, a document which is connected to proper immigration control, providing evidence of immigration status. The provisions do not give a power to collect unlimited information which has no relevance to immigration at all. The noble Lord was citing health details. I cannot think of circumstances where they would be terribly relevant to immigration status; there may be some, but it is not a licence to collect unlimited data. In addition, the processing of personal data must be done compatibly with the Data Protection Act. Together with the Human Rights Act, that of course provides particular and specific safeguards which I am sure noble Lords quite appreciate.

So I do not accept the noble Lord's argument. If we were to go with the amendment as it is, it would fetter our ability to develop the card and unreasonably restrict the amount of information we could place on it. Of course, the precise format of the BID will be determined by the forthcoming EU regulation on biometric residence permits, expected to be finalised in November, which I guess is the cleverness in the amendment. It will require member states to issue a biometric residence permit, which of course will be the BID in the UK to a specified uniform format.

From our understanding of the draft regulations, we are planning for the BID to appear as a highly secure polycarbonate standalone card which will contain a tamper-proof embedded chip. It will have a definite menu of information—with which we are familiar—listed on it, most of which will be compatible in some way or other with the sort of information one would expect to be collected on other documents such as passports. I must resist the noble Lord's amendment, but this has been a useful, short debate.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, I am happy to accept the noble Lord's assurances, which it is useful to have on the record. We look forward to further scrutiny of what is to be in the document when we get the regulations. I repeat that if we are not satisfied when we get the regulations, there will be nothing we can do about it at the time because, in spite of the Minister's arguments in favour of the power of such regulations, they very seldom get voted down, as he knows perfectly well, and they cannot be debated on the Floor of the House.

However, it has been useful to get on the record what the Minister has said about the limitations to be built into the biometric immigration document. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 9:30 pm, 9th October 2007

moved Amendment No. 8:

Clause 5, page 5, line 17, leave out "(5)(a), (b), (e) or (f)" and insert "(5)(a) or (b)"

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, this should be the shortest debate of the day. The amendment rectifies an oversight which has led to a drafting error in the Bill. It will delete references to clauses that no longer exist. As such, it is a highly technical amendment. I beg to move.

On Question, amendment agreed to.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

moved Amendment No. 9:

After Clause 5, insert the following new Clause—


Before the Secretary of State makes regulations under section 5, he shall consult those representing the interests of—

(a) refugees and asylum seekers,(b) universities, and(c) the tourist industry, on the costs for biometric immigration documents, and shall take into account the results of such consultation."

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, the cost of BIDs and how it was to be charged to their users was discussed in Grand Committee. The Minister provided just a few pieces of the jigsaw. He said that persons making an application would be charged for the BID and that the amount would be included in the immigration application charge fee. That perhaps answers to some extent the question of the noble Lord, Lord Hylton, about people coming from Belarus. They would have to pay for the BID, and the charge would be included in the cost that is imposed on them for the visa. However, the answer tells him nothing about the amount that is likely to be incurred.

The Minister stated in his letter of 11 July that the cost of providing BIDs to foreign nationals who apply to extend their leave in the UK up to April 2017 was estimated to be £200 million, to which I presume must be added the cost of providing BIDs to applicants entering the UK for the first time. I hope that the Minister will give us that figure this evening so that we can add it to the equation. I hope also that he will tell us the number of BIDs that will be provided for the £200 million, plus the amount that is to be charged for first applicants, so that we can at least calculate the average cost of a BID.

The Minister said that people who visit for six months or less would be exempt, implying that a person who entered originally as a visitor for private medical treatment, for marriage or civil partnership would be charged if they then applied for an extension or for leave to remain as a civil partner or spouse. Asylum seekers will not be required to register, but when a recognised refugee is granted leave to remain, they will be given a free BID which will last for 10 years. The Minister did not say what the position would be for other asylum applicants who are granted humanitarian protection or discretionary leave to remain, or, more importantly perhaps, for the large number of persons who cannot be returned to their country of origin for one reason or another—for example, Zimbabweans. I look forward to receiving that information when he replies.

As the Minister is aware, we are concerned particularly about the way in which the Government are using the power granted by Section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 to recover an amount exceeding the administrative costs of processing an application or undertaking a process. We understand that their intention is to charge over the odds for BIDs by using that blank cheque that Parliament unwisely gave them. In our debates earlier this year, I drew particular attention to the case of spouses, who now have to pay £500 for a visa to enter the UK with the intention of marrying, £750 for ILR, and £400 for citizenship, making a total of £1,650 for the privilege of coming here and taking up residence as the spouse of a British citizen. Will they have to pay for a BID as well?

The Minister thinks that students will be happy to pay for BIDs on top of the visa and student fees, because, as he said,

"our rates are very competitive internationally, which is one reason why we continue to be one of the favoured destinations for students across the world".—[Official Report, 5/7/07; col. GC 171.]

He did say, however—and I am pleased about this—that the universities would be consulted on the charges for BIDs. He may find when he does that that we are not quite such a popular destination as we used to be, largely because it has become ever more expensive to live and study in this country. I respectfully suggest that the Government think twice before charging overseas students more than the cost of the BIDs. In the case of work permit holders, we benefit substantially economically from the labour of foreign workers, who generate revenue from the taxes that they pay, both direct and indirect, and there is no need to profiteer in addition by charging them over the odds for BIDs.

I am conscious of the fact that my list of those who should be consulted about the fees is far too limited and that the Government consulted widely on the fees order in March. I hope that they will do the same before deciding on the charges for BIDs but that this time they will give the consultees some idea of the amounts they have in mind—because, without having the figures, it is not sensible to ask people to express opinions on general questions. I beg to move.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

My Lords, the figures that the noble Lord, Lord Avebury, quoted are staggering. The existing figures go a long way to explain why I have heard over recent years significant anxiety from the management of universities and other organisations for higher education and from student unions about the whole area that he has just described. When this country is eager to gather people from overseas to study here, and when the long-term advantages in terms of relationships 20 or 30 years down the line are critically important in ways that we cannot foresee but have been shown over decades, it would be short-sighted to add insult to injury to charge over the odds for biometric data. It is bad enough to be charging over the odds already. It is quite wrong that there should be profiteering, to use the good word used by the noble Lord, Lord Avebury, in this matter at all. We want to encourage people, not put them off, and it is very important.

The same thing is true for the other things in this amendment, mutatis mutandis. I put my name to it because I felt particularly strongly about the universities and colleges of higher education.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I am grateful to the noble Lord, Lord Avebury, and the right reverend Prelate the Bishop of Winchester for their interest in this issue, because it is important that we consult properly and extensively and get this right with regard to students. While I may not necessarily agree with the observations made on the issue, I recognise that they may have some validity and are issues that we have to consider properly.

As I made clear in Grand Committee, the Government do not have any plans to charge refugees for biometric immigration documents. In addition, short-term visitors to the UK, such as tourists, will not be required to apply for a biometric immigration document.

We already talk to different stakeholder groups on a regular basis, including the Joint Education Taskforce, and take into account the views expressed by members of those groups when deciding policy. I was grateful for the noble Lord's observation that we had carried out a more extensive consultation than his amendment in a sense permitted. We shall continue to engage in this dialogue in respect of the appropriate fees for applications for leave as a student.

Migrants applying for leave to remain as a student at a UK educational establishment will in due course be required to submit their biometrics as part of the application process. During the initial years of the programme, we propose to include the costs of the biometric immigration document within the fee paid for consideration of the application for leave.

The noble Lord made some observations about costs. Broadly speaking, he has helpfully reminded the House of the information that we provided in Committee about the resource costs for implementing BIDs for foreign nationals. I think that I gave the figure of some £200 million at an earlier stage, of which £40 million are for set-up costs and £160 million are for operational costs. These figures include the cost of the technology required to run the system. The costs will, of course, be regularly updated.

The proposed fees payable by foreign nationals for a BID will be set out in secondary legislation and put before Parliament in the usual way when we have finally agreed an appropriate charging structure with HM Treasury. Will the fees recover the full administrative costs to the system? We usually expect to do so. It is not our intention to profit from the implementation of this measure but we are considering very carefully what the appropriate charging structure will look like. The secondary legislation debates will enable us to focus more closely on some of those issues. Consultation is a given. We will endeavour to ensure that cost recovery levels match what is reasonable and appropriate, but they must abide with Treasury rules in recovering the full administrative costs to the system.

I am afraid that I cannot help the noble Lord more than that. He asked a few other questions on which I shall reflect. If I can provide more data to noble Lords who joined in this short discussion, I will.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, let me get this right. Is it the Minister's intention to charge only the recovery cost of the BIDs, and not to take advantage of Section 42 of the treatment of claimants Act to recoup more than the administrative costs of providing the BIDs? If that is what he has just said, I am very pleased to hear it and I warmly welcome the decision not to do so.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, so that we are absolutely clear and I am not accused at a later stage of misleading the House, I should put it on the record that the secondary legislation setting out the proposed fees will make it clear whether we seek to recover what one might describe as normal administrative costs or to recover any additional contribution to the end-to-end costs of the immigration system. We need to be specific about this. When we have that secondary legislation debate we will crystallise exactly the basis on which the costs are formulated.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, I withdraw what I have just said. In that case it is profoundly unsatisfactory that we have before us a proposal to make charges for BIDs but do not have the faintest idea whether the Government will charge the actual cost, as was always the case in the past, or will seek to profiteer from BIDs, as they did on the earlier occasion when we—

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, we cannot profiteer from this process; that would be quite wrong.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, that is my word. I used "profiteer" and fully justified it in the figures that I gave a few minutes ago when I pointed out that in the case of indefinite leave to remain, for example, the increase imposed by taking advantage of this power was between £350 and £750, and that the total cost of a spouse entering the United Kingdom for the legitimate purpose of marriage was £1,650, which I consider a totally extortionate amount that bears no relation to the actual cost of providing these services. I am afraid that, because the power exists, when the BIDs come into force, Ministers—perhaps not this Minister but a future one—will look around and say, "Here is an easy source of revenue. We can charge these students, work permit holders or visitors asking for additional leave to remain beyond six months far more than it will cost us to provide the documents". That is the whole point, yet the Minister cannot say whether it is the Government's intention to do that. He cannot say whether they intend to adhere to the principle that was always followed in the past of recovering the actual costs of providing the services, or whether they now intend—I am sure that they must have something in mind—to recoup additional revenue from the people who are required to have these documents.

I have to say that I am not at all happy about the answer that the Government have given this evening, and if it were not so late I would ask to test the opinion of the House. I can see that there is not really much point in doing that, because there are not enough people here to make it work. With great reluctance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Use and retention of information]:

[Amendment No. 10 not moved.]

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs 9:45 pm, 9th October 2007

moved Amendment No. 11:

Before Clause 16, insert the following new Clause—

"Applicability of Convention on the Rights of the Child

After section 4(1) of the Immigration Act 1971 (c. 77) (administration of control) insert—

"(1A) In the exercise of their powers under subsection (1) it is unlawful for immigration officers or the Secretary of State to act in a way which is incompatible with the United Nations Convention on the Rights of the Child.

(1B) Subsection (1A) does not apply to the making of a deportation order under section 5 (procedure for, and further provisions as to, deportation).""

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, this was one of the issues that I hoped we would be able to discuss with the Minister during the Summer Recess. In the event, we never had that full meeting, although I was available for most of the time. I was around for the whole of August and the first half of September. I regret to say that I received an invitation from the Minister only last week, when I had some family commitments that did not enable me to take it up.

We might well have been prepared to modify the amendment to exempt decisions to grant, refuse or vary leave involving a child from the application of the convention, to satisfy the Minister's argument against the amendment in its present form. We would also have been prepared to add decisions to detain. As the Minister will appreciate from the examples given in Committee and what was said earlier this evening, it is not on the decisions themselves but in the manner in which children subject to the decisions are treated where it is essential that the convention should apply. The separation of children from their parents, particularly from breast-feeding mothers, is inhuman and cannot be an ingredient of any civilised policy of immigration control.

As the Minister observed, local authorities, education and healthcare professionals, among others, are charged with the care, protection and welfare of children in this country, irrespective of their immigration status. That includes children being detained or removed. They are all subject to the convention in the exercise of their duties, and there is no practical reason why BIA staff should not have identical obligations, except where they are carrying out specific functions under the immigration Acts which otherwise might be argued are contrary to the best interests of the child. We are not trying to frustrate immigration control, as the Minister unworthily insinuated, but to find a way of applying the convention to the BIA in such a way as not to create an opportunity for judicial review of every decision taken by the agency which affects a child, whether in her own right or as a member of a family. Once he had a chance to think about what had been said, the Minister acknowledged that those were our motives in his letter of 19 July, and I would be grateful if he would put that on the public record now that he has the opportunity this evening.

I had asked what the experience was of other countries that had signed the convention without reservation. In the same letter, the Minister said that France, Italy and Spain had done so. There were differences in the way in which the immigration control systems operated in those countries, he added, which,

"account in a significant way for the decisions these countries had made about the Convention".

It cannot be that legal challenges to decisions regarding immigration are not per se possible in the courts of France, Italy and Spain, as one can see from the fact that ECHR immigration cases have arisen in all three of those countries. It may be that an action for a breach of the CRC would be more difficult to set in motion because the convention may not be part of their domestic law. That point was touched on by the Minister in Committee. In an attempt to throw more light on the reasons why neighbouring countries with immigration control systems sharing the same broad objectives as we do came to different conclusions on the convention, I asked ILPA to make some inquiries on the matter, and it very kindly did so.

In addition to the three states already mentioned as having signed up in full to the convention, Australia, Austria, Canada, Denmark, Ireland and Sweden managed without any immigration reservations whatever. If the reason that these countries manage without reservations is that their immigration systems operate differently from ours, perhaps we need to take a closer look to see if we can learn something from them.

Shortly, the United Kingdom has to report to the Committee on the Rights of the Child on our compliance with the convention. I am sure that it will be interested to read this debate. If the committee finds that we have made no attempt to discover why many states manage to operate their immigration control systems without a reservation like ours, it may not be too pleased. In any case, the committee is bound to ask us why the UK's reservation could not be narrowed, whereby all acts by the BIA and its officials that are not immediately related to immigration control are covered. For instance, other countries detain minor immigrants and have no difficulty in accepting the convention as applicable to the conditions of their detention, just as we do with children who are given custodial sentences for serious criminal offences. Again, comparison with other European countries might provide us with some ideas on how it could be done.

In his letter of 19 July, the Minister said that Belgium, the Netherlands and Germany had reservations,

"that allow them to carry out specific immigration functions"— a far more limited derogation than ours. Belgium does not mention immigration in its "interpretative declarations", but has a reservation only to the non-discrimination provision in Article 2 such that, where justified, aliens may be treated differently from citizens. The Netherlands made a declaration allowing it to impose conditions for admissibility of asylum applications and to refer applications to another country with the primary responsibility for the application. Presumably that is a reference to the Dublin convention to which all European countries are party. Therefore, it would not be necessary to make specific reference to the Dublin convention, because it does not bring us into conflict with the convention any more than is the case in any other European country.

We hope that the Minister will take these matters seriously and will reply in terms that will satisfy not only your Lordships this evening, but the UN committee to which the Government are ultimately responsible for the performance of their international obligations on the rights of the child. I beg to move

Photo of Lord Roberts of Llandudno Lord Roberts of Llandudno Spokesperson in the Lords, International Development, Spokesperson in the Lords, Welsh Affairs, Whip

My Lords, I am told that Sylvia Peters was the last TV presenter before the 1939-45 war started. She presented a programme in 1939—then TVs went black—and after the war she resumed. She said: "Before I was interrupted—". I should have dealt with this matter here.

The amendment states:

"In the exercise of their powers under subsection (1) it is unlawful for immigration officers or the Secretary of State to act in a way that is incompatible with the United Nations Convention on the Rights of the Child".

Perhaps I may briefly mention where our actions in Clause 9 are in breach of three articles of the convention. Article 24 states:

"States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services".

Yet Clause 9 does just that: it denies families of failed asylum seekers that access to health services.

Article 26 states that every child has,

"the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law".

This is denied to families of failed asylum seekers. Article 28 states:

"States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall" do certain things regarding primary education and so on. At the moment, the Government want to keep Section 9 on the statute book, although I hope that they will change their mind by Thursday. Therefore, in these three areas alone, we have a denial of the rights that are in the United Nations Convention on the Rights of the Child.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I am grateful to both noble Lords for their contributions. It is getting late and I shall try to keep my comments on the amendment and its purpose brief and to the point.

It was regrettable that the noble Lord, Lord Avebury, and I were unable to have the discussion that we had anticipated in Grand Committee. I was certainly available and had made that very clear to officials, and I suspect that it was an unfortunate matter relating to diaries.

I am sure that we can continue to discuss these issues in, around and outside our debates and deliberations on the Bill. Equally, I am sure that the noble Lord seeks to be constructive in his amendment by endeavouring to create a means through which the UK can withdraw its reservation to the UN Convention on the Rights of the Child and still remove children who have no legal basis on which to stay in the United Kingdom.

The amendment would incorporate the UNCRC into domestic law for the purposes of exercising powers under Section 4(1) of the Immigration Act 1971. It may help if I remind noble Lords that this section deals with decisions to grant reviews or vary leave to remain in the United Kingdom. Under the proposed new clause, immigration officials would be obliged to act in conformity with the UNCRC when making such decisions. The convention is drafted in very general terms—for example, the requirement to make the best interests of the child a primary consideration—and it would be very difficult to establish what that might mean in an immigration context and in the circumstances of a particular child or particular children.

A further consequence of the amendment would be to make decisions made under Section 4(1) of the Immigration Act 1971 reviewable in the UK courts on the basis of non-compliance with the terms of the convention. However, these decisions are, in any event, already reviewable under our current laws, so we would simply create a further avenue of review but under much more generalised terms than at present. There is no doubt that that would lead to extra litigation, but we must ask ourselves whether that extra litigation would be likely to lead to anything that cannot be provided for by the laws that we already have in terms of protection and support for children. Our contention is that it would not.

This is not how the convention is meant to be applied. It was designed to impose obligations on states to bring children's rights into national law where they did not exist before. We must also bear in mind that the convention was not drafted in order to have a direct effect on individual cases but to inform states about how they might structure their laws so as to bring children's legislation and interests into national law.

There are still many countries where children do not experience the protection and care that we provide under our own domestic legislation. That is why we signed the convention and why, to this day, we support it. The following countries have entered reservations or declarations in respect of immigration and nationality issues: Andorra, Belgium, Germany, Lichtenstein, Monaco, the Netherlands and Switzerland. I shall not suggest this evening the precise reasons or the effect of the reservation on matters such as removing children from those countries. These details do not allow for a direct comparison because of the way that the different review mechanisms work in each jurisdiction. However, neither the United Kingdom nor those countries are regarded as having contravened the convention or having been in breach of it. We have ratified the convention and have made a legitimate and understandable qualification to it—not unlike other nation states—yet we are committed to keeping our reservation under review. That does not mean that we are not responding to concerns expressed, including the concerns that the functions of the Immigration Service do not carry with them the same obligations to take account of children's needs as other agencies' functions do. For that reason, we have introduced a new duty for the Border and Immigration Agency to have regard to a code of practice to keep children safe from harm while they reside in the United Kingdom.

I understand the passion expressed from the Liberal Democrat Benches. It is a passion that in a sense we share because we are clearly seeking to perform our duties and obligations consistent with the convention and the obligations in general terms that it bestows on signatories to it. But it would not be appropriate in the context of this legislation or in our immigration laws to incorporate that in the way that noble Lords from the Liberal Democrat Benches have suggested. I hope that, having heard those arguments, in particular those about reservations, the noble Lord will feel able to withdraw his amendment.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs 10:00 pm, 9th October 2007

My Lords, the most important thing that the Minister said was that the convention allows us to have restrictions on immigration in accordance with the law. I suggest that the best way forward now would be for the Government to take up with the committee, when the opportunity arises, as it will do shortly, the general question of whether the restrictions are of the type imposed by every European country. The noble Lord's list included Andorra and Monaco, but that list may be considered slightly less impressive than the one that I gave, which includes a large number of countries in Europe or countries from which European immigrants have formed the majority in the past, such as Australia and Canada. Those countries, many of which have large numbers of immigrants, have no difficulty in managing their immigration systems without the reservation that we insert. That may be because they are satisfied that the laws that they have enacted do not contravene any of the provisions of the convention. There is perhaps a general subject for discussion between these states and the Committee on the Rights of the Child to define in what way states may legitimately protect their borders through the sort of legislation that we have here without violating their obligations under the convention. If there were a declaratory statement by the committee permitting certain kinds of legislation, we would be able to withdraw the reservation.

I come back to the point with which I started. We are not objecting to the Government having controls on legislation. We are saying that the Convention on the Rights of the Child should apply to the treatment of children within the immigration system. I refer particularly to detention centres, where clearly there have been regular breaches of the convention.

Unfortunately we do not have time to pursue this further tonight; I am sorry that it came up last thing in our debate when not many noble Lords were here to take part in the discussion. I hope that the Government will consider carefully what I said about discussions with the Committee on the Rights of the Child, which may be the best way of pursuing the issue offline. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Crawley Baroness Crawley Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, I beg to move that consideration on Report be now adjourned.

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

House adjourned at 10.04 pm.