Motion D1 (as an amendment to Motion D)

Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Commons Reasons – in the House of Lords at 4:15 pm on 21st October 2020.

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Lord Dubs:

Moved by Lord Dubs

At end insert “but do propose Amendment 4B in lieu—

4B: Insert the following new Clause—“Leave to enter: family unity and claims for asylum(1) For at least such time as a relevant agreement has not been concluded and implemented, a person to whom this section applies must be granted leave to enter the United Kingdom for the purpose of making a claim for asylum.(2) This section applies to a person who—(a) is on the territory of any relevant Member State;(b) makes an application for leave to enter for the purpose of making a claim for asylum; and(c) would, had that person made an application for international protection in that Member State, have been eligible for transfer to the United Kingdom under Regulation (EU) No. 604/2013 by reason of a relevant provision if the United Kingdom remained a party to that Regulation.(3) The Secretary of State shall make arrangements to ensure that applicants receive a decision regarding their application under subsection (2)(b) no later than two months from the date of submission of the application.(4) A claim for asylum made under subsection (2)(b) must remain pending throughout such time as no decision has been made on it or during which an appeal could be brought within such time as may be prescribed for the bringing of any appeal against a decision made on a claim or during which any such appeal remains pending for the purposes of section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeal); and a claim for asylum remains one on which no decision has been made during such time as the claim has been made to the Secretary of State and has not been granted, refused, abandoned or withdrawn.(5) The Secretary of State must, within six months of the day on which this Act is passed, lay before both Houses of Parliament a strategy for ensuring that unaccompanied children on the territory of a relevant Member State continue to be relocated to the United Kingdom, if it is in the child’s best interests.(6) For the purposes of this section—“applicant” means a person who makes an application for leave to enter under this section;“claim for asylum” means a claim for leave to enter or remain as a refugee or as a person eligible for a grant of humanitarian protection;“Regulation (EU) No. 604/2013” means Regulation (EU) No. 604/2013 of the European Parliament and of the Council including the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast);“relevant agreement” means an agreement negotiated by a Minister of the Crown, on behalf of the United Kingdom, with the European Union in accordance with which there is provision for the transfer of a person who has made an application for asylum in a Member State of the European Union to the United Kingdom which is no less extensive than Regulation (EU) No. 604/2013 insofar as that regulation operated to enable the transfer of a person to join a child, sibling, parent or other family member or relative in the United Kingdom before exit day;“relevant Member State” means a Member State for the purposes of Regulation (EU) No. 604/2013;“relevant provision” means any of the following articles of Regulation (EU) No. 604/2013—(a) Article 8;(b) Article 9;(c) Article 10;(d) Article 16;(e) Article 17.””

Photo of Lord Dubs Lord Dubs Labour

My Lords, in moving the amendment in my name, I shall comment on the Commons reason for rejecting an amendment from this House, which states:

“Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.”

Given the time we spent on the issue and its importance, to say that the technicality of financial privilege is sufficient to dispose of it in the eyes of the Commons, I think falls short of being humanitarian and falls short of respecting the opinions of this House.

When I was in the Commons, there were some colleagues who made themselves experts on parliamentary procedure and were virtually walking Erskine Mays. I have no wish to follow them down that path, but I note the issue of financial privilege seems to occur only when the Government do not like something to do with child refugees. If I can take the House back to 2016, we passed an amendment to the then Immigration Bill; when it got to the Commons the Government used financial privilege as a technical reason, so when it came back to this House we changed the wording and eventually it passed again and the Government accepted it.

Financial privilege, as defined in relation to this amendment, is merely a footnote to Erskine May. Still, it may be important to the Government. However, normally when an amendment involves some financial expenditure, a charge on public funds, the Government waive the issue of financial privilege. But they did not do so for this amendment or the one in 2016. I would contend that the majority of amendments passed by this House are inevitably bound to involve some charge on public funds. As I said, the Government normally waive this argument, but have not done so in this case.

However, with colleagues from Safe Passage and other NGOs who have been helping me with this, we looked at the amendment that the Government took exception to on the grounds of charge to public funds and removed from it the reference that there should be no fee for the making of a particular application. That has been removed, so there will be a fee.

Furthermore, the Government have said that they put forward a proposal—which we considered very weak and would exclude most of the children who ought to be eligible—which would itself involve some recourse to public funds. The Government must have been prepared for this. Frankly, I am not persuaded by this argument. The merits of the case are much too important to be sidelined on what I regard as a bit of a technicality.

I turn very briefly to the substance of the amendment, as a lot of the arguments have already been well rehearsed in this House in Committee and on Report. The Government are keen to say that the Immigration Rules might be sufficient. I contend that that will not do. The Immigration Rules are a blunt instrument; they are not susceptible to amendment by this House, and when changes are put forward again, they are on a “take it or leave it” basis. The Immigration Rules are not a sufficient excuse for saying this amendment is unnecessary.

It is also possible to apply for family reunion outside the Immigration Rules. This is a highly exceptional procedure that does not often happen. It is not a reason for rejecting the rights of a number of children who are desperate for safety.

We have only 10 weeks to go before the end of the transition period, and it does not look as if there will be any agreement on child refugees, even on the basis of the Government’s rather weak proposals, which I understand are not under discussion. The last chance we have before 1 January next year is to pass this amendment. We have seen and know of the difficulties facing young people who are sleeping rough under the trees in Calais or in the camps on the Greek islands. We have seen the terrible tragedy that befell the Moria camp when it was burned down. What will happen to the children and other people there? It seems to me that when other EU countries are willing to offer safety to some of the children in the camps on the Greek islands, the least we can do is to do likewise.

We are talking about a small number of young people, many of whom in the end make their way here across the dangers of the channel, either on the back of a lorry or in rubber dinghies. For some, there are tragic consequences—maybe they drown in the channel—but others manage to make it here. If we keep safe and legal routes open, there is at least a chance of having an orderly process which is fair to the young people involved—and to this country as well, because it means the process can be managed and they do not all arrive in Kent, putting a lot of pressure on the local authority there.

This is a really important issue. How we deal with family reunion for unaccompanied child refugees is crucial to whether we are a humanitarian country or not. I believe we are. I also believe, although not all people in this country will agree, that if the argument is put the majority will still say, “Yes, we should do the right thing by unaccompanied child refugees.” If passed, this amendment will give hope to a small number of very vulnerable children. I beg to move, and will wish to test the opinion of the House unless the Government agree to the amendment.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords) 4:30 pm, 21st October 2020

My Lords, I have not received any indication that any Member wishes to speak who is not listed. Does any noble Lord in the Chamber wish to speak at this point before I move on? In that case, I call the next speaker, the noble Baroness, Lady Meacher.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, I support most strongly the amendment of the noble Lord, Lord Dubs, which provides for refugee children to come to the UK from EU countries if they have family here with whom they can reunite.

The Government say they have proposals to deal with family reunion, but as the noble Lord has pointed out—I will not repeat his explanation—those proposals would not provide a secure route for child refugees to join their families here in the UK. Why is this country so much less willing than our neighbours in Europe to accept these vulnerable children? Germany stands out as the most generous and morally correct European country on this issue, having taken 71,000 children in 2019, but we do not even measure up to France, Greece or Spain—and two of those countries are a great deal less well off than we are.

It is important to note that local authorities, if adequately funded, are willing to welcome refugee children from Europe and, as my noble friend Lord Kerr pointed out on Report, the Government will have public support if they accept the amendment of the noble Lord, Lord Dubs. Surely the Government want some public support, do they not? They have enough problems on other issues at the moment. The British public understand the importance of refugee children being able to join their families, whatever the reason they became separated in the first place.

In her introductory remarks, the Minister referred to the costs of housing asylum seekers. Will she clarify that the Government would not have to fund the housing of unaccompanied children who come over here to live with their relatives? It is quite important that there is not that financial hit for the Government.

If the Government reject this amendment and children are not able to join their families under the Government’s proposals, many will inevitably resort to the traffickers and the rubber dinghies, with inevitable loss of life. Surely, it is only a matter of time before the Government are challenged under the Human Rights Act, in particular Article 8, on the right to respect for your family life. I would be grateful if the Minister responded to that point.

As the Minister will recognise, this amendment has huge cross-party support and public support across the country. I hope she can persuade her colleagues to accept it.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, at every stage, tributes have been paid to the noble Lord, Lord Dubs—rightly so, but I imagine he must sometimes be shouting at his screen, while on mute, “Forget the tributes, just accept the amendment.”

The Commons reason is that leave to enter to make an asylum claim, and a strategy to ensure that an unaccompanied child can be relocated in the UK if it is in the child’s best interests, would be, in their words, as the noble Lord said, a “charge on public funds”. Like him, I appreciate that this is a standard response, but it in no way reflects the debate. They trust that we will regard it as sufficient; it is not a sufficient reason.

We were told that it would not be right to undermine negotiations with the EU, with which, it must be said, agreement on this issue shows no sign of life at all. Domestic legislation must be the least threat in this context. It is still not too late to do the right thing.

Our Immigration Rules are inadequate, and applications outside them rarely successful. The Government have announced that they are looking at safe and legal routes for those seeking sanctuary next year. We on these Benches will not subscribe to the notion that this is an issue for next year. The routes are unsafe now, and we could make them considerably safer. We support the amendment.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

Currently, the only legal way to reach this country from the EU in order to claim asylum, including for unaccompanied children, is through the Dublin III regulation on family reunion. That route, as we know, will cease to be available at the end of the transition period in a few weeks’ time. The Government have no comparable proposals to replace Dublin III, since their alternative removes the mandatory requirement to facilitate family reunion, removes a child’s right to appeal against refusal and further narrows the definition of “family”, since a child or teenager would no longer be able to join, for example, an aunt, an older sister or someone who could look after them when they have been separated from their parents

Safe Passage, to which reference has already been made, which supports child refugees, has said, I believe, that more than 90% of the young people and children it has supported through the Dublin III legal pathway would be unlikely to qualify under the Government’s alternative system. The numbers involved are not large and are very small indeed compared with the numbers of those from outside the EU whom the Government, by choice, each year, have enabled to come to this country. Before the mandatory Dublin III provisions came into effect, about 10 or 11 children per year came to this country under the scheme. Since 2016, when it became mandatory, the average number of children per year has been just over 500.

We support the amendment in lieu, Amendment D1, moved by my indefatigable noble friend Lord Dubs, which represents the guaranteed continuation of a decent and humane approach, particularly to children and young people in real need, including in real need of a safe and legal route to safety.

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

My Lords, I thank all noble Lords who have spoken in this debate and particularly the noble Lord, Lord Dubs, who makes this plea so genuinely and passionately. I hope, at this late stage, he might consider withdrawing his amendment to the Motion when he hears what I am going to say. First of all, we do not just use financial privilege for child refugees. That is not the case at all, but I think he knows that. The wording—

“trusting that this Reason may be deemed sufficient”— is standard parlance.

I say to the noble Baroness, Lady Meacher, in response to her question, that it is true that the state does not have to fund children who are living with relatives, although, of course, it is different for children who are living in local authority care. I go back to the point I made earlier, which is that the Home Secretary made it absolutely clear in her speech at the Conservative Party Conference that safe and legal routes are a core part of our proposed reforms to the asylum system to ensure it is both firm and fair. In fact, the noble Lord, Lord Dubs, said that very thing today in his speech. I can confirm that, as an integral part of that work, the Government will conduct a review of safe and legal routes to the UK for asylum seekers, refugees and their families, which will include reviewing routes for unaccompanied asylum-seeking children to reunite with their family members in the UK. As noble Lords will recollect, we intend to bring legislation next year that will deliver those reforms.

Both the noble Lord, Lord Dubs, and the noble Baroness, Lady Hamwee, talked about bilateral negotiations. I understand noble Lords’ concerns about the risk of a non-negotiated outcome on asylum and illegal migration, and I can, today, make a commitment to the House that in the event of a non-negotiated outcome, this Government will pursue bilateral negotiations on post-transition migration issues with key countries with which we share a mutual interest. This will include new arrangements for the family reunion of unaccompanied asylum-seeking children. I hope noble Lords listened carefully to what I have just said.

As I was leaving the Home Office today, the Greek Minister for Immigration and Asylum was in the Home Secretary’s office, and I hope that is a clear demonstration of our commitment to these issues. I will also commit, on the back of that, to report back to the House in good time regarding our intentions to make progress in this area. I hope the noble Lord, Lord Dubs, and other noble Lords who have heard my words just now will feel that, at this point, he can withdraw his amendment.

Photo of Lord Dubs Lord Dubs Labour 4:45 pm, 21st October 2020

My Lords, I am grateful to the Minister for her explanation and to other noble Lords who supported the amendment.

The Minister referred to the Home Secretary’s commitment that she wants safe and legal routes for family reunion of children. Of course, that is an aspiration, but it has to be made effective, and I am not convinced that anything the Government are doing will actually give effect to the Home Secretary’s commitment. The Minister also said that even after 31 December, the Government will continue to talk to achieve bilateral arrangements. That is well and good, but that is a long way ahead, and the Government have, in the past, given undertakings, and, frankly, nothing much has come of them.

This issue tests our humanity; it tests whether we are willing to do something now, not at some point in the future. It is a test of whether we are a decent, humanitarian country. We are talking about a small number of highly vulnerable people, the majority of whom are children who want to join family here. What could be more humanitarian or more in our traditions than allowing young people to join members of their family who are here and find safety down that path. I beg to test the opinion of the House.

Ayes 320, Noes 242.

Division number 2 Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Commons Reasons — Motion D1 (as an amendment to Motion D)

Aye: 320 Members of the House of Lords

No: 242 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Division conducted remotedly on Motion D1

Motion D1 agreed.