Motion C

Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Commons Reasons – in the House of Lords at 4:07 pm on 21 October 2020.

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Baroness Williams of Trafford:

Moved by Baroness Williams of Trafford

That this House do not insist on its Amendment 3, to which the Commons have disagreed for their Reason 3A.

3A: Because local authorities are supporting children in care and those entitled to care leaving support to obtain UK immigration status under the EU Settlement Scheme.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I ask that this House do not insist on its Amendments 3, 6, 7, 8 and 10, as set out in Motions C, F, G, H and K respectively, to which the Commons have disagreed for their Reasons 3A, 6A, 7A, 8A and 10A.

I will speak to Motion C on Lords Amendment 3, which provides for children in care and care leavers who lose their free movement rights under the Bill to obtain indefinite leave to remain—or settled status—under the EU settlement scheme where they apply to the scheme or a local authority does so on their behalf. This would be regardless of how long the child or young person had been in the UK. I will also address Motions F, G, H and K, covering Lords Amendments 6, 7, 8 and 10, which cover a time limit on detention.

I know that the noble Lord, Lord Dubs, will be disappointed with me on the position taken by the other place on Lords Amendment 3, but I reassure him that the Government agree as to the importance of protecting the rights of children in care and care leavers and other vulnerable groups as we end free movement. The Home Office continues to provide extensive support to local authorities, which have relevant statutory responsibilities for this cohort, to ensure that these children and young people, like other vulnerable groups, get UK immigration status under the EU settlement scheme. This includes the Settlement Resolution Centre, which is open seven days a week to assist local authorities with this work. It also includes grant funding over last year and this year of up to £17 million to organisations across the UK to support vulnerable groups in applying to the scheme. The number of organisations funded for this work has now been increased from 57 to 72.

A recent survey of local authorities by the Home Office has so far identified fewer than 4,000 children in care and care leavers eligible for the EU settlement scheme, with over 40% of these having already applied for status under the scheme. Most of those who have applied have already received an outcome of settled status. Local authorities are making good progress to identify and support relevant cases.

The Government have made it clear that, in line with the withdrawal agreements, where a person eligible for status under the EU settlement scheme has reasonable grounds for missing the 30 June 2021 deadline, they will be given a further opportunity to apply. We have also made it clear that those reasonable grounds will include where a parent, guardian or local authority does not apply on behalf of a child. Therefore, if a child in care or a care leaver misses the deadline, they will still be able to obtain lawful status in the UK.

The Government are not therefore persuaded of the need for this amendment, which also presents some technical problems that the Government cannot accept. It effectively exempts this cohort from the suitability requirements of the scheme when there is absolutely no reason to do so. It also seeks to backdate the settled status granted following an application made after the 30 June 2021 deadline. This runs completely counter to the general operation of the Immigration Rules made under the Immigration Act 1971, under which status has effect from the date on which it is granted.

I hope noble Lords will agree that, while understanding and supporting the motivation behind this amendment, the House should not insist on this amendment.

I shall now address Motions F, G, H and K on Lords Amendments 6, 7, 8 and 10, which relate to introducing a detention time limit on EEA and Swiss citizens. Detention is a very important issue that merits debate, but it is not directly relevant to the purpose of this Bill, which is to end free movement. The central point of the Bill is a commitment to a global immigration system, and equal treatment of immigrants from all nationalities as we exit the transition period. These amendments seek to impose a time limit on detention only for EEA and Swiss citizens, which would lead to a discriminatory position for those who are not. It is important to acknowledge that the other place disagreed to the amendment for these reasons.

On the substance of the amendment, to impose a 28-day time limit on detention is not practical and would encourage and reward abuse. No European country has adopted anything close to a time limit as short as that which is proposed in these amendments, and countries such as Australia and Canada have not gone down this route at all. We need an immigration system which encourages compliance but, where people refuse to leave voluntarily, we must have the ability to enforce that removal. We do not detain indefinitely; there must always be a realistic prospect of removal within a reasonable timescale, and this is a complex process that requires a case-specific assessment to be made for every single person for whom detention is considered.

A time limit would allow those who wish to frustrate the removal process to deliberately run down the clock until the time limit is reached and release is guaranteed. Under these amendments, any person in scope who is detained for 28 days will automatically be released, regardless of the facts of their case, including some foreign national offenders who present a genuine threat to public safety.

The Home Office operates a number of safeguards to review detention and prevent anyone entering detention who would otherwise comply with a removal from the community. Some 95% of people who are liable for removal from the UK are managed in the community while their cases are progressed. The detention gatekeeper and case progression panels are key operational safeguards. Where detention is deemed necessary, there is judicial oversight through bail applications to the tribunal, and the continuing detention of any individual remains under regular review by the Home Office.

Everyone in immigration detention is protected by these safeguards, which entitle them to apply for bail hearings at any point, to appeal against any refusal of asylum and to have access to legal representation. If we accept a 28-day time limit, it will enable these people to exploit the immigration system, making unmeritorious claims to avoid their removal. In the current immigration system, it is only in the most complex cases that detention exceeds 29 days. A time limit would cripple the function of the detention system, exposing it to abuse, undermining our capacity to enforce removals and potentially endangering public safety. I hope that noble Lords will agree that this amendment is not only unconnected with the main purpose of this Bill but unsupportable, and I urge them not to insist on this amendment, which would lead to unfair treatment between EEA and non-EEA citizens. I beg to move.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 4:15, 21 October 2020

My Lords, I very much regret the rejection of the clause to which your Lordships had agreed regarding children in care. The Minister said on a previous occasion that we were united on children in local authority care needing a secure status. But insisting on this being achieved for this cohort—and we all understand the difficulties—through the EU settled status scheme rather than on a declaratory basis seems to indicate that the Government are more concerned not to acknowledge that the scheme cannot perfectly deal with every situation rather than to acknowledge the special situation of these children and young people.

The Commons formal reason is that local authorities are supporting this cohort, and the Government are funding support. Well, good—but what do the Government have to lose? The Minister in the Commons said that the idea of applying such a provision retrospectively runs counter to the general operation of the Immigration Rules. But when it is not a tightening of the rules, I do not understand the comment—but there it is.

I also of course regret the rejection of applying a time limit to the detention of asylum seekers and others. The suite of amendments applies clear criteria for detention, and national security would disqualify a detainee from the time-limit provisions. I do not think that it is right to use the position of foreign national offenders as if all detainees were offenders. The amendments would also prevent cat-and-mouse redetention.

The great majority of detainees are released eventually into the community, but they do not know when this will be. Again, the Commons Minister said that it was not possible just to detain someone indefinitely “as such”. That misses the point that there is no time limit, and that means a loss of hope. For months, people in the UK whose lives are restricted to some extent have been saying that they need to know when all this will end, which is understandable—and there is something of a read-across.

The Commons formal reason is that there are already procedural safeguards to ensure the lawfulness of the period of detention. They work so well that, as my right honourable friend Alistair Carmichael observed, £7 million in compensation was paid out last year for 272 cases of wrongful detention.

But I can at least use this opportunity to say how much we welcome the Court of Appeal’s judgment today quashing the judicial review and injunctions policy on the application of medical justice, with the intervention of the Equality and Human Rights Commission and the good work of the Public Law Project—not, if I have the Minister’s word correctly, an “unmeritorious” application.

We shall not pursue this matter today, but we will be back soon on the issue, because it is a matter of fairness and humanity.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

My Lords, the decisions taken by the other place on all these issues are most disappointing. I thought my noble friend Lord Dubs made a convincing case, but sadly it was not listened to in the other place, as is so often the case now. I hope the Government will take a constructive attitude in working with local authorities to protect vulnerable children. Many local authorities have considerable pressures on them in terms of looking after children in care, and I hope the noble Baroness will confirm that there is a positive attitude from the Government to address these concerns, even if they are not prepared to accept my noble friend’s amendment today.

I note the comment—the noble Baroness, Lady Hamwee, also made the point—that the other Motions in this group make reference to all these dangerous criminals who would potentially be released into the public. I think we have to accept that the people we are talking about here are vulnerable people, and that if there are people who are dangerous criminals, there are other procedures to deal with them. We should not be wrapping people up like that: these are vulnerable people who need our help and support. There is an issue about people being locked up in detention when they have done nothing wrong and not knowing when they will get their release date.

The noble Baroness may well say that they are normally released into the community. That is obviously really good news, but if you are locked up in a cell or in a detention centre and you do not know when you will be released, the fact that you will be released at some point in the future may not be a huge comfort to you. Again, we are not going to pursue these issues any further today, but the fact that the Government rely on those arguments underlines the weakness of their case in this respect. The noble Baroness, Lady Hamwee, said that we will return to these issues at a later date, but we will not be pressing any of them today.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I thank noble Lords for their comments. The noble Baroness, Lady Hamwee, initially challenged me on what the Government have to lose. It is not really about what the Government have to lose; it is a demonstration that, throughout this process, we have constantly articulated just what the Government are doing to ensure that children in care, or other vulnerable people, are able to register for the EU settlement scheme. We have put in quite a lot of resource to ensure that that happens. We have increased the number of organisations helping in this regard from 57 to 72 and we will put significant funding in place to ensure that people eligible to apply do so.

The noble Baroness, Lady Hamwee, said that we are acting as though all detainees are offenders, and the noble Lord, Lord Kennedy, talked about the number of people detained who are vulnerable. In fact, a snapshot of offenders from the EU detained at the end of March 2020 found that if a 28-day time limit were in place, we would have been required to release into the community 166 foreign national offenders being held under immigration powers to effect their deportation. Of these offenders, 35 had committed very serious crimes, including murder, rape, offences against children and other serious sexual or violent offences. There is no indefinite detention, but it is necessary sometimes to keep people detained, particularly serious offenders and those frustrating their removal.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I have received no requests to speak after the Minister, so I shall put the question.

Motion C agreed.