Amendment proposed [this day]: No. 128, in clause 16, page 9, line 15, leave out from ‘State’ to end of line 16 and insert
‘where it appears that there is evidence that establishes that he is likely to abscond and that such a condition is justified as being necessary in the interests of public order, public safety, national security or for the prevention of crime; and
(v) a condition requiring him to reside at a specified address where it appears that there is evidence that establishes that he is likely to abscond and that such a condition is justified as being necessary in the interests of public order, public safety, national security or for the prevention of crime, provided that such conditions are consistent with the Human Rights Act 1998, the European Convention on Human Rights and the obligations of the United Kingdom under the International Convenant on Civil and Political Rights 1966.’.—[Paul Rowen.]
I remind the Committee that with this we are discussing the following amendments:No. 25, in clause 16, page 9, line 16, at end add—
‘(2) For the purposes of section 3(1)(c)(v) of the 1971 Act any condition imposed upon residence must be reasonable in all circumstances.’.
No. 85, in clause 16, page 9, line 16, at end add—
‘(2) A condition about residence shall not apply if—
(a) the residence is more than 25 miles from the nearest reporting centre; or
(b) for employment purposes, a different location is more suitable.’.
No. 86, in clause 16, page 9, line 16, at end add—
‘(2) The Secretary of State shall lay before Parliament, not more than 12 months after the commencement of the provisions under this section, a report on the operation of these conditions.’.
No. 129, in clause 16, page 9, line 16, at end add—
‘(2) After section 3(1)(c) of that Act insert—
“(d) A condition about reporting or residence under paragraph (c) above shall not apply if the person is under the age of 18.”’.
Welcome to our proceedings, Mr. Amess. It is my pleasure to serve under your chairmanship. I was concluding the first part of my remarks on unaccompanied asylum-seeking children, and the hon. Member for Rochdale was seeking to intervene. Does he still wish to avail himself of that opportunity?
I am glad that you have joined us for our deliberations, Mr. Amess. Does the Minister not accept that far better arrangements could be made than using immigration and nationality directorate officers? She talked about the current consultation. If there is a requirement to deal with unaccompanied asylum-seeking children, would it not be better to deal with them through social services or local authorities, which have expertise in dealing with young people?
It is important to bear in mind that we are not talking simply about children or children in care. We are talking about children with limited leave, who therefore have a relationship with the immigration service and the IND. I have made the point that immigration officers and IND officials who deal with such children are specially trained. I take the hon. Gentleman’s point on board. It is important that the IND is involved in such situations for the reasons that I have given, but it is equally important that the officers are specially trained.
Current reporting arrangements for asylum seekers do not generally expect individuals to travel further than 25 miles to report. The amendment tabled by the hon. Member for Ashford dealt with that distance. If there is no reporting centre within 25 miles, we will find alternative arrangements—we could, for example, require the person to report to a local police station or other identified location. We anticipate that similar policy currently applying to asylum seekers would apply to those with limited leave who are required to report.
I am grateful to the Minister for giving way, and for her clarification of what she expects to happen to those who live far from a reporting centre. Can she give us a rough idea of how many people would be affected by such a policy? How many people does she expect will find themselves reporting regularly?
That point came up in the evidence sessions. I said that we expect the numbers for foreign national prisoners to be small—possibly tens rather than hundreds. I cannot give an exact figure for unaccompanied asylum-seeking children, because we are not suggesting that every unaccompanied asylum-seeking child will be subject to the conditions, but around 1,960 grants of discretionary leave at initial decision were made for that category in 2005, so the number would be somewhat less than that. I hope that that acts as a guide to the hon. Gentleman.
In terms of reporting residency, it is clearly not in our interests to force individuals to live in an area where they could not report to the IND or where it would be impossible for them to find work. If an individual wanted to find work in another location, the residency condition would ensure that they kept us informed of where they were moving and, in some cases, our approval of the new address would be required. Once they had moved, reporting conditions would be modified accordingly, so that they could report to a reporting centre nearer to their new home.
As to the terms of residency—I am dealing with amendment No. 129 now—we will grant leave with residency conditions only where that is justified by a need for close monitoring of an individual. We have no intention of applying residency conditions to refugees, students or work permit holders, as some non-governmental organisations have alleged. We have already discussed that in relation to students. In the first instance we may apply the residency conditions, as I said, to certain asylum-seeking children, with a view to improving child protection, as well as facilitating their removal at the age of 18.
There is evidence that children go missing from care, and we want not to take on but to complement the valuable work done by social services. Granting leave with reporting and, where needed, residency conditions, should mean that a child’s absence is noted at an early stage. I think that what I have said covers some points that the hon. Member for Hertsmere made about unaccompanied asylum-seeking children. We should be able to notice an absence early, and establish the reason for it, in which case all reasonable steps to locate the child could be taken.
The hon. Member for Ashford has mentioned the distance of 25 miles, but I want to suggest the practical example of an unaccompanied child asylum seeker in Rochdale being required to travel to Salford, where the centre is. I should feel much happier about the amount of disruption to the child’s routine if the immigration officer would come to a centre in Rochdale, rather than have the child travel across the conurbation, with disruption to their education, among other things. Would the Minister consider something like that as an acceptable reporting arrangement?
I cannot give the hon. Gentleman a yes or no answer for every possible circumstance, but I can, I think, give an assurance that we intend to be, as the law indeed requires, reasonable. We intend to be flexible and we do not intend to create huge disruption and difficulty in the life of a child in the circumstances in question. We would seek to work closely with a social worker and with social services and the local authority, to ensure that we could achieve as smoothly as possible, with the minimum possible disruption and maximum possible protection for the child, our aims of protecting the child and subsequently preparing them for removal, on their becoming an adult. I hope that that reassures the hon. Gentleman. As to the notion of 25 miles, although I understand that the amendment is probably a probing one, we would never put something so precise in the Bill, as I am sure hon. Members realise.
We believe that it is right to maintain closer contact with older children whose leave is about to expire. That will allow us to ensure that appropriate arrangements are made for their removal from the UK, or for further applications for leave. We make no apology for seeking to return young people who no longer qualify for leave when they reach the age of 18. Sending children without genuine asylum claims to the United Kingdom in the hope that they will establish a footing for the rest of the family in this country is an abuse of the asylum system, and is exploitative of the child. Returning those who have been sent in that way, when they reach adulthood, will discourage that unacceptable practice.
We also intend to apply the new powers to foreign criminals, of whom we have said less in debating this clause. They are an important category. I think that monitoring foreign criminals who cannot be removed at present because of legal barriers, with a view to their eventual removal, is clearly in the national interest.
Presumably those people will be of some interest to the police, having been recently released from prison. The Government already have powers to require them to report to the police. Would it not be more appropriate for them to do that, and for the police then to inform the immigration and nationality directorate of their whereabouts, so that the police would know where those convicted criminals were?
The hon. Gentleman makes an important point, and we would indeed always encourage our agencies to work together in co-operation for the best outcomes. It is important that we apply the measures to the group in question sothat we can effect removal as soon as possible. That condition is also important because this period should not count towards settlement—a point that has been little discussed but which is important to the clause and those categories.
I am with the hon. Lady on that latter point. They should not count towards settlement for the purpose of staying four or five years in this country. With reference to the case just mentioned by the Minister, of foreign criminals and the desirability of having a condition of residence for them, would she tell us what the sanction is for breach of that condition?
If my memory serves me correctly, the sanctions are a fine of up to £5,000 and a prison sentence. They will operate as an effective deterrent to anyone who seeks to avoid meeting the conditions on their leave.
I know that Liberty has said that residency conditions could breach article 8, “Right to respect for private and family life”, and article 11, “Freedom of assembly and association”, of the European convention on human rights. The hon. Member for Ashford was seeking reassurance on those concerns. I can assure him that that is not the case. Some interference with articles 8 and 11 is permitted when it is in accordance with the law in the interests of the permissible aim of the state and when it is proportionate to that aim. Case law has established that the maintenance of effective immigration control and public safety are permissible aims and that decisions taken pursuant to those aims should be proportionate in all but a minority of exceptional cases.
In response to amendment No. 86, tabled by the hon. Member for Ashford, and the question of reporting to Parliament on the operation of clause 16, I have some sympathy with what he said about the need to report to Parliament on these matters. We intend to be open about the operation of this clause and about the work of the new border and immigration agency as a whole. In this instance, I do not think that effective post-legislative scrutiny would be best achieved by the requirement of an individual report, which, from the wording of amendment No. 86, would be a one-off.
I understand that these amendments were probably written before our new clauses on the independent inspectorate were tabled. The introduction of that inspectorate will ensure that Parliament can scrutinise the work of the new agency. The remit of the independent inspectorate will include a number of key themes relevant to the operation of the border and immigration agency, including practice and procedure in making decisions, consistency of approach, the information it provides and the treatment of those that use its services. The inspectorate will report annually to the Secretary of State, who will have to lay that report before Parliament. Therefore the terms of the independent inspectorate’s remit meet the objectives of the amendment and I hope that, following that reassurance, it will be withdrawn.
I am grateful for the Minister’s reassurance on some of the amendments that we have tabled today. However, it is a pity that the consultation is, as she said, still ongoing yet here we are dealing with the Bill. It would have helped our deliberations on child asylum seekers if the consultation had been concluded before we considered the provisions.
If we are not to have a clause stand part debate, I wish to respond to the Minister’s remarks about my amendments. In a sense, there is a reflection of the problem with our debate on this clause: it is almost happening on twin tracks that do not meet each other. The Minister is dealing with the current Government intention of the clause, which is to deal with foreign prisoners or former prisoners and unaccompanied children, but that is not what the Bill says; as the Minister has honestly admitted, the Bill could be used for different and much wider groups of people—indeed, it could be used for any group of people.
The amendments tabled by the hon. Member for Rochdale and I sought in part to pin down this or future Governments on what this clause could achieve. It is worth pausing to think about that, because the Minister has acknowledged that the provision could be applied to anyone. It has already been stretched; in the original regulatory impact assessment it was supposed to apply only to foreign prisoners, but Ministers then briefed the various interested bodies that it would also apply to unaccompanied asylum-seeking children. So, even before the Bill was discussed the purpose of the clause was being expanded. Who can tell how it will be expanded in the future?
The breadth of the clause means that the use of the powers could not simply be confined to the two particular groups that I mentioned. In their present form, the provisions could be used to impose a curfew requirement on anyone, including someone who is here as a refugee and who has been a model citizen.
In fact, it is not possible to impose a curfew or, as has been suggested in other places, electronic tagging, because those measures can apply only where we have the right to detain. We do not have the right to detain those granted limited leave. I hope that that helps the hon. Gentleman.
I am grateful for that response. I am not sure that “a condition about residence”, which is what paragraph (v) provides for, cannot be interpreted as, “To be at that place of residence at a particular time of day, every day”. I accept the Minister’s assurance, but the Bill does not make that point obvious.
I also wish to consider the practicalities. I do not agree with all the arguments about the clause that the Refugee Council has advanced, but some are powerful, specifically those relating to unaccompanied minors. It makes the valid point that there is no evidence to suggest that minors are more likely to abscond than any other category of non-nationals; on the contrary, it is in their interests not to abscond, as they are overwhelmingly likely to be dependent on support from social services for their daily bread.
Secondly, if, as a result of the review process, a negative decision is made, it would clearly be in the individual’s interests not to abscond in order for them to pursue their appeal. It is difficult to see what additional benefit is gained by the measure we are discussing or how it would significantly expedite removal when the unaccompanied minor turns 18. At best, it may well have no impact on unaccompanied asylum-seeking children and at worst it will harm them.
The Minister will be aware that the Refugee Council argues that if any extension of such powers is necessary, they should accurately reflect their intended targets and the international human rights standards by which the UK is bound. She has assured us that certain articles of the various human rights conventions are not breached by the clause, but she will also be aware that that is a controversial view. It is a general principle of human rights law that where individuals are lawfully within a state, they should enjoy freedom of movement and residence in that state. That principle is contained in article 2 of the fourth protocol of the European convention on human rights and in article 12 of the international covenant on civil and political rights of 1966, which the UK signed and ratified. It is arguable that parts of the clause could stretch those particular protocols if not breach them altogether. The Minister spoke about article 8 of the ECHR, which relates to the right to respect for private family life and home. She has clearly had advice that the provisions do not breach it; I hope that she is right about that, not least for the taxpayer’s sake if we have to fight cases on it.
Finally, I return to the practical point. As long as the intended targets of the measures are not reflected in the clause, we are in danger of allowing through legislation that is wide open to function creep, that unpleasant phenomenon that we have mentioned in several debates. We have seen it happen: section 44 of the Terrorism Act 2000 was infamously used against Mr. Wolfgang, the 82-year-old heckler at a Labour party conference. I am sure that when Ministers passed that legislation, they did not intend to use it against hecklers at Labour party conference or people who shout, “Nonsense!” at Ministers.
I am feeling particularly generous this afternoon. I suspect that if they had wanted to, they would have found other means of imposing their will on such people. Indeed, with the vote coming up tomorrow, I suspect that they would end up using those means against their own colleagues.
There is a serious point here. We have seen a notorious example in recent times of function creep in some serious legislation. It is worth the Committee pausing to consider whether we are giving too much power to Governments and laying ourselves wide open to the possibility of the legislation being used against people in ways that Ministers explicitly tell us that they do not intend now. We can see that happening and we should not allow it to happen. We should pass properly defined legislation that aims at specific targets, does what it is intended to do and does not allow these Ministers or any future group of Ministers to do things that the Committee cannot possibly anticipate. On those grounds, I regret that the Minister has found herself unable to accept any of this group of amendments. I know that you feel that we have discussed the issues sufficiently fully not to have a debate on clause stand part, Mr. Amess, but I urge my hon. Friends to vote against the clause.
‘(2) Any person granted limited leave to remain shall be allowed to seek employment from two months after an appeal has been lodged.
(3) Any benefits received by a person granted limited leave to remain shall take account of earned income.’.
So far we have been talking about increasing the restrictions that are placed on people who are granted limited leave to remain. The amendment seeks to improve the situation of asylum seekers who have limited leave to remain. At the moment, an asylum seeker who is granted leave to remain while their appeal is considered is prevented from seeking employment and must rely totally on benefits. It is an important principle that people should have the dignity of being able to support themselves. Engaging them in gainful employment would also offset some of the cost of keeping them.
The amendment would have a number of benefits. We discussed underground employment and people being exploited by unscrupulous employers. That would not happen were asylum seekers able to work legally. Furthermore, it will be much easier to keep tabs on such people if they were in employment—their biometric visas would ensure that details of that employment and other information was recorded properly on the system. That would be far better than having them work unofficially for unscrupulous employers and subject to no control, or not working at all and burdening the state.
We are seeking to ensure that a person could seek employment within two months of their asylum appeal being lodged. That would be welcomed by taxpayers who support them at the moment and by asylum seekers themselves.
I am grateful to the hon. Gentleman. Of course, I was referring to the initial application for asylum. Within two months of the date on which the process is started—when the asylum application has been made and the case is being heard—they could seek employment. Those employment rights would continue until the person was removed.
I accept that the hon. Member for Rochdale is of the view, policy-wise, that asylum seekers should be allowed to work. However, his amendment refers to persons granted limited leave and so would not apply to asylum seekers. I understand what he is getting at, but this would be the wrong place to make such provision.
It would help the Committee if the Minister explained such granting of limited leave to remain. Clause 16 is aimed at people to whom the Government would not want to grant leave to remain, and whom they are in fact attempting to remove—foreign prisoners whom the Government are attempting to deport. Where does their formal leave to remain in the United Kingdom come from and who grants it? Will the Minister explain the legal position so that we can form a view of the merits of allowing such people to work?
I am happy to provide that clarification, although we have been discussing the matter for a considerable time so I am slightly concerned that Members still are not clear. As we said, one group to whom the limited leave applies consists of foreign national prisoners whom we want to remove—the hon. Gentleman is absolutely right about that—but cannot, owing to legal barriers, usually in relation to the situation in their country of origin. As he said, another group consists of unaccompanied asylum-seeking children, who, for the most part, we cannot return to their country of origin because we cannot establish good reception arrangements. We must put their care and safety first.
Students and a number of other groups also have leave, but not asylum seekers—because they are asylum seekers! Those granted limited leave might well have gone through the asylum process and been rejected or found not to have a founded application. However, for whatever reason, we might not be able to remove them, but must grant them limited leave according to their human rights, and under the convention and other such legislation. However, we want to place restrictions on that leave; and we want to ensure that that limited leave does not count towards settlement. For instance, national prisoners will get six months limited leave if they make a claim under the European convention on human rights. On that basis, they would achieve limited leave, although others would need to satisfy or challenge a number of other legal conditions in order to achieve it.
When moving the amendment, the hon. Member for Rochdale referred only to asylum seekers. As a matter of policy, the Government do not consider that asylum seekers should normally have a right to work. We believe that it is important to maintain a distinction between legal migration for employment, and asylum—the latter being for people who seek protection.
I have already said how the amendment would apply if we were to allow people granted limited leave to remain to seek employment after two months. First, two months seems a rather arbitrary time. I am not sure why it was selected. However, it would undermine immigration control by narrowing the circumstances in which limited leave to remain could be granted, subject to employment conditions. The hon. Gentleman mentioned benefit entitlement. Suffice it to say that that, too, is not really a matter for us but for the Department for Work and Pensions.
I have some sympathy with the amendment, because some asylum seekers have talents that could be used to the advantage of the country. However, as we were warned this morning by Migrationwatch UK, we need to keep in mind the firm distinction between economic migration and claims for asylum. Is not the real solution to speed up the asylum process as much as possible and then to use the talents of those who have been recognised as having a genuine asylum claim? Is it not regrettable that, for many years now, the process has been so very slow?
Indeed; and speeding up the asylum system is the key to our approach. In fact, we are having some success. The hon. Gentleman will know that, with the national asylum model, the end-to-end process is much more effective than previously. It has made a substantial difference in the time that it takes for cases to go from initial claim to completion.
May I say to the hon. Member for Rochdale that clause 16 does not introduce any new restrictions on the employment of persons granted limited leave to remain? As I said, the amendment would narrow the circumstances in which leave could be granted, subject to employment restrictions. It could achieve the opposite of what he seeks, although I understand the point that he is making.
I should like to put a couple of scenarios to the Minister to explain when the amendment might apply. At the moment, we have a number of people from Zimbabwe and Iran who, for various reasons, are not able to go back to their own country, but they have not been granted asylum; in the case of Zimbabwe, the process has been frozen. If a nurse or a doctor from Zimbabwe who was perfectly well qualified was in that situation, would it not make sense for them to be able to work and thus be of benefit to this country?
We do return people to Zimbabwe, and voluntary return is entirely available. However, the hon. Gentleman will know that some key decisions by the courts have been in favour of the Government returning people to Zimbabwe; and we await the outcome of the latest hearing.
On a similar point, there are a large number of people from Somalia in my constituency. We have a situation in which many of those people are failed asylum seekers, but there are few forced deportations to Somalia—about half a dozen over the past few years. The political situation in Somalia gives cause for optimism for a few weeks and then suddenly everything goes drastically wrong again. As the hon. Member for Rochdale said, people who are highly skilled and can make a real contribution are, at the moment, making no contribution at all and are in limbo. In some cases, they have been in limbo for many years. Will the Minister explain what we should do with people in that situation?
I take the point that my hon. Friend makes, but those with limited leave may or may not be subjected to employment restrictions. As I said, the clause will not in any way introduce new restrictions. There are people who have limited leave who do have the ability to work.
I believe that the amendment would potentially undermine the effective operation of immigration control. Therefore, I say to the hon. Member for Rochdale that I cannot accept it.
I have a certain amount of sympathy with the Minister because she always gets what could be called the hospital passes in the Home Office and the most difficult briefs. I would like to think that she is among friends this afternoon, although not necessarily in the Chamber—as they say, “kind words butter no parsnips”. Obviously, she has comprehensively answered the point made by the hon. Member for Rochdale and has made the point about asylum seekers and unaccompanied children. I would like to press her on the issue of foreign national prisoners with limited leave to remain. What is her understanding of the ability of that group of people to access benefits? I am not clear about what their situation is in terms of benefits.
The hon. Gentleman raises an important point and I see that the hon. Members for Reigate and for Ashford are smiling. There is a possibility that those with limited leave can access benefits, but, as I said to the hon. Member for Rochdale, that is a matter for the Department for Work and Pensions and has no proper place in the Bill. I hope that I have adequately explained my reasons for not accepting the amendment and that he will withdraw it.
Unsurprisingly, I suppose, I rise to support the amendment. A difficulty raised by the Transport and General Workers Union and the trade unions in the evidence sessions is that employers who are in the twilight zone like to stay there. They like to employ undocumented workers who have no right to work because they have no rights and therefore cannot enforce any employment rights. An issue that has been raised and needs to be addressed is the complex situation that exists in terms of immigration and employment law and the lack of a one-to-one relationship between the two. If we are aiming to introduce legislation on the basis of evidence rather than mere assertion, there is a merit in considering that issue in relation to the people who have a right to be here and work. It is clear that some people have a right to be here to study. Then there are the people about whom we are not quite sure; and then there are the people who should not be here, and obviously if they should not be here, they should not have a right to work. We need to consider this evidence-based question: is it really helpful to tell people, when we do not know whether they have a right to be here or not, that they cannot work? Would it be better to say, “No, let’s not have those people as a burden on the state. Let’s not have the taxpayer look after them. Let’s say, if they can look after—”
Before the hon. Gentleman moves off the apparently exhaustive list of those who are here, he missed out one group, which relates to the point made by the hon. Member for Bristol, East: people who have no right to be here, but whom the Government cannot remove from this country. They may well not be entitled to benefits and cannot work and are therefore left to destitution or criminality. I am reinforcing the point being made by the hon. Member for Birmingham, Yardley: the situation is even more difficult than he is making out.
I accept that point. If the Government are going to argue the thesis that people whom we know we cannot remove but whose status is uncertain must depend on the state or be destitute, what evidence do the Government have that the proposal would undermine immigration law?
I have listened carefully to the Minister and I understand her point about the drafting of the amendment. However, I believe that important issues are at stake, although perhaps my amendment does not address them properly. The situation of people who perhaps have no permanent right to be here but who cannot be removed is intolerable. I would like us to be able to grant them employment rights, for the very good reason that, as my hon. Friend the Member for Birmingham, Yardley said, they would then be in the open and not in the twilight zone, where they can be exploited.
We have only to consider the case of the cockle pickers up in Morecambe to see what happens when people whose status is not adequately known are used by shadowy employers. There are no proper controls and they end up losing their lives as a result. I want us to have a system that is regulated.
I accept the Minister’s point about the drafting of my amendment and I will seek leave to withdraw it, although I give her notice that when we return to the Bill at a later stage, I would like to have an amendment that addresses those points, because I believe that there is support for such an amendment. I was a little disappointed that the Minister did not make an offer to the effect that the Government would examine that. I give her notice that we want to return to the issue, because we think, certainly given what the TGWU said to us in the evidence session, that the issue is important and needs to be satisfactorily resolved. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman , being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—