We will now hear oral evidence from the Joint Council for the Welfare of Immigrants, Amnesty International, the Equality and Human Rights Commission, and Liberty—I hope. Welcome, everyone. I will ask you to introduce yourselves formally for the record, and I warn you that the Minister is allowed to ask questions at this session, which he enjoys enormously. Thank you, witnesses. Please introduce yourselves formally.
Thank you, panel, for coming to give evidence to us this afternoon. The Bill proposes to make changes to the support that is provided to individuals who have got to the end of the process for their asylum claims. It extends the changes to the appeals process in terms of removal first and appeal afterwards. It introduces an offence of illegal working that applies to employees and expands the enforcement powers of immigration officers. Can the panel tell us what they think the human rights and equalities implications of those major changes are?
Rachel Robinson: In the broadest terms, Liberty is seriously concerned about the societal discriminatory impact of various proposals in the Bill, which bring immigration control in-country or increase in-country immigration control in terms of the rental sector and in terms of the creation of an offence of illegal working and the new offence of driving while an illegal immigrant. We are extremely concerned about the impact of the proposals on race relations and community cohesion. At the same time as these proposals are being introduced, elsewhere in the Bill, we see proposals that strip away access to appeal rights, that shift control over immigration bail from the judiciary to the Executive and that create a hostile environment, with serious implications for the most vulnerable people in our society.
At the same time, we also see the creation of an offence of illegal working, which is liable to push people into exploitative employment situations; the removal of mainstream asylum support from many families; proposals designed to freeze assets; and proposals that involve closure of bank accounts. There are serious human rights implications for the very most vulnerable people in society and discriminatory impacts together with removal of oversight.
Rebecca Hilsenrath: The Equality and Human Rights Commission supports provisions that set out to tackle unlawful working, particularly in relation to the exploitation of those whose status is uncertain, but we do have concerns. We have reviewed the Bill as a whole and we have particular concerns about the proposed reforms in relation to measures to introduce eviction powers and the reform of appeal provisions for support for failed asylum seekers. We can come back in greater detail, but broadly speaking we do not believe that due consideration has been given to obligations under the UN convention on the rights of the child. We have concerns relating to article 6 in both cases and article 8. We also have an overriding concern about the equality impact assessments undertaken in relation to the Bill. We understand that they are still under way, but the failure to provide proper evidence about equality impact at this stage undermines the ability of parliamentarians to properly debate the provisions in the Bill.
Steve Symonds: In brief, for the reasons just outlined and others you have heard in your evidence sessions, I think we would generally say that they increase the likelihood of human rights abuse and they reduce the safeguards accessible to people to try to remedy or safeguard themselves from those abuses.
Saira Grant: I agree with that. I would add that the entire target of the Bill, as of the 2014 Act, is to create a hostile environment, purportedly for unlawful migrants, but, actually, what we are really concerned about and what we have already seen happening is that it targets all migrants: lawful migrants here and, indeed, citizens of this country.
Our concern is that there will be many abuses of human rights. Many people will be unlawfully targeted and discriminated against and the Bill provides no redress. That is completely lacking for those people who are unlawfully targeted by the provisions.
Keith Ashcroft: Just to echo what Rebecca said, we have real concerns about the withdrawal of support for failed asylum seekers with children and also some concerns about the extension of the deport first, appeal later provisions, which, as you know, currently apply almost exclusively to foreign national ex-offenders. We have some questions about whether it is proportionate to extend the provisions to cover those who simply wish to appeal on human rights grounds against a refusal to enter or to remain.
I will ask Mr Hoare to come in in a minute. I should have said at the beginning to the witnesses that we will finish at 4 pm, not 4.30 pm as you may have been told originally. We want to get through as many questions as possible.
The other thing is, when it gets to 4 pm, there will be bells ringing. It is not the fire alarm; we will have to go and vote. You will see us all rush off at that time, so please do not be offended by that.
Rachel Robinson: I am afraid that I have not been there long enough to give you an accurate analysis of that. What I can tell you is that we have seen the same failed approach tried and pushed in many immigration Bills, so inevitably we raise many of the same concerns. What we see in parallel is a failure time and time again to address problems in the Department that are identified time and time again in various reports.
I think we will take that as a no.
Let me ask you another question; it may come out crudely, but it is not intended to be crudely phrased. A phrase you used in your answer to Sir Keir struck me: “members of our society”. That was a phrase that you used once or twice in your opening remarks. We are talking here about those who have failed a process—a fair process. That could be debated, but let us say for argument’s sake that it is a fair process. Therefore, by definition, one can presume that the people for whom permission has been refused have not welcomed that decision, but in point of fact and without being rude about it they are not “members of our society”; they are members of the societies of other countries. Where does our duty end in those circumstances?
Rachel Robinson: Liberty would certainly argue that while people remain in this country, they should be treated with the basics of dignity and respect; they should have the human rights framework applied to them. That does not mean that enforcement action should not be taken against them—this is not an argument about not having a functioning immigration system. This is how we treat people who remain in our country. We would argue that the provisions set out in this Bill will lead to an increase in destitution, including among children, because this Bill specifically targets children and families with young children. In addition to provisions that cut asylum support for families with young children, we now see the removal of mainstream support for those individuals, and that is deeply worrying.
Chair, may I just ask a general question? If all members of the panel wish to answer it, that is entirely up to them. I am certainly taking Ms McLaughlin’s line, which I thought slightly pinched my earlier line of questioning this morning. In the ideal world and you have a blank sheet of paper in front of you, would you prefer to see an amnesty for those who are here today illegally and effectively start from scratch, or would you just prefer to see an open borders process and let the market decide how full the country can and cannot be?
Rachel Robinson: This is entirely outside the remit of Liberty’s work. Liberty comments on human rights and human rights protections, and whether they are available to people in this country. We do not take a view on how immigration works; we do not take a view on immigration more broadly than that.
Rebecca Hilsenrath: Well, I started off by saying that we support the idea of tackling illegal working and particularly protecting those who are exploited because of their status. But to consider, for example, the question of those who have failed in their application for asylum, I do not think that the commission or I would argue for one moment that they should not leave the country. We are simply debating the period between the failure of the application and the exit.
What the Bill says is that in order to be able to claim for support when you have children and are without the right of appeal, you have to be both destitute and able to fulfil a requirement, where the burden of proof is on you, to show that there is a genuine obstacle to your leaving the country. That suggests that being genuinely destitute is not sufficient, but in fact the European convention on human rights says that being destitute ought to be sufficient. The convention on the rights of the child also requires the Government to put the rights of the child at the heart of their policy making. We are looking simply at that window of destitution between failure in the application to remain and exit from the country. We do not debate in the slightest that the failure should implemented by removal.
Steve Symonds: Perhaps I can comment on the first question that you asked. It is important that the Committee understands that it is not just people who have been failed through a process that the Bill will have an impact on. There are children born in this country without any status. There are children who come here when they are very young and remain in this country without any status, many of whom are entitled to British citizenship but do not have access to be able to get it. There are people who have leave quite legitimately and wrongly have their leave curtailed, and who, because of the previous Act, have had their appeal rights withdrawn—no administrative review remedy was set up when those rights were withdrawn. Also, as Saira mentioned, there are British citizens who may be impacted because their children or their spouses are removed from the country, or cannot be reunited with them. There are British citizens who do not have passports and are not able to satisfy a landlord that they are, indeed, entitled to be here and therefore entitled to rent.
There are many aspects of the Bill that have an impact on people who should not be going through any process, those who may be entitled to a process but have had it curtailed or wrongly ended, or those who would be at the start of any process, if it was available for them, at the very time that the Bill will start to impact them adversely, potentially with human rights consequences.
Saira Grant: Steve has given a few examples that I was going to give. That is the important point. You said at the start that these people are not members of our society, they are at the end of the process, they have failed, but as Steve has just outlined to you, there is a real misunderstanding about the people we are talking about. So many are children who have grown up here, who know no other country but who do not have regularised status, through no fault of their own. So many are family members.
The Office of the Children’s Commissioner recently did an in-depth study on the family migration rules and their impact. It discovered that many people without lawful status are the mother of a British child or the wife of a British husband. We are not talking about those in the backs of lorries, who have failed the process and therefore should now be demonised and exploited. Many measures of this Bill are targeting and creating a hostile environment that is unnecessary and will have so many repercussions on regularised black and minority ethnic community members and British citizens, and it will have an impact on our social cohesion.
Can I come back very briefly? I was interested in what you were saying because you made that point in an earlier submission. You are right to be worried about the social cohesion perspective. I suppose I look at it from the other end of the telescope. Do you agree that if everybody in society, irrespective of colour or creed—I put that in inverted commas—had safe knowledge that their neighbours and the people who lived in their communities were all bona fide, were all legitimate, were all citizens, or had right to remain in this country, it would ease the growing tension in many communities? That, in fact, of itself eases what in many communities is a growing tension—a tension between the settled, legal immigrant community and the illegal immigrant community. In my judgment, that is causing quite a lot of tensions in towns and cities across the country.
Saira Grant: You raise a very interesting and valid point, but I do not think that the answer is to create more suspicion and mistrust among members of civil society. It goes back to border control at the start; it is the Home Office’s responsibility, not that of civil society to be policing each other’s immigration status. We need to go back to the beginning. If the Home Office was making correct decisions, issuing correct visas and making it easier for people to lawfully go through the process, we would see a reduction in the numbers of those who are now irregularly here.
Ms Grant, have you or your organisation had time to assess the west midlands pilot on landlords? Are you able to come up with some recommendations of how the pilot could be strengthened or any weaknesses in the Bill?
Saira Grant: Sure. You will be aware—I hope that Members are aware—that our organisation did an independent study of its own as well. We have sent copies of the report around. I have had a chance to go through it, although not in as much detail I would have liked, because it only came out on Tuesday, but looking at the evidence that they provided in the evaluation, it matches and mirrors a lot of the claims we have been making.
The first point to make is that the terms of reference are very different from our evaluation, because the emphasis is not on tenants; it is about landlords and the understanding that landlords have. Discrimination that we found has been alluded to—cases through mystery shoppers of indirect or potential discrimination—but that has not been the focus, and the tenants who are part of the survey are again a very low number, mainly students, so a very different group of people.
Something that really strikes me is to do with whether the reason behind these provisions is to ensure that those who do not have status do not stay in the UK and are encouraged to leave. If enforcement is the aim, look at what the results show: the claim is that 109 people have been “caught”, if you like, as a result of the right to rent checks, but break that down and at best you are looking at 15 people who directly came through the right to rent checks inquiry line and who came to the Home Office’s attention. That in itself is a very interesting statistic, because, of the 109 people, 94 actually had status and the right to remain, but the inquiry was made because landlords could not understand the complexity of immigration status. From the 15, it is really interesting. That is direct, but then we have a breakdown of the 109: 25 people had barriers to removal, 15 were progressing family cases, nine were granted leave by the Home Office and a further four had judicial reviews.
Whichever way you look at it, all of those who have outstanding legal cases need to reside somewhere. Because of the way we have changed our immigration rules, people might not have section 3C leave, which continues their leave, but if they have outstanding legal cases and therefore a barrier to removal, what is supposed to happen to them? Are they now just supposed to be destitute?
Going through their evidence, I would say that there needs to be a longer evaluation period; it needs to be not over the winter period, when no one really moves tenancies; and it needs to look at the impact on tenants, not just landlords. How can we possibly have a roll-out announced on the same day as the publication of this evaluation?
It is not particularly on this point. Within the provision of the Bill, do you think that there is sufficient resource and support for landlords to be able to make the assessment?
Saira Grant: No, quite the opposite; the Bill is now going to criminalise landlords, which will exacerbate the sense of “I don’t want to rent to anyone who looks or appears different.” Landlords have said that the code is hard to understand. I understand that the code is being revised—I see the Minister shaking his head, but I am looking at the evaluation and quoting from it, Minister. So no, there is not any further provision, but what we do have is a situation that will exacerbate discrimination, and that is not being tackled at all in the Bill. And I am not quite certain why the haste. Why are we rushing to strengthen the provisions before the provisions of the 2014 Act have bedded down and we have even looked at the impact properly?
My final question is about immigration officers. Their remit is being extended, so that they will become more police-like in their areas and in their reach. Do you think that there is enough oversight and independent scrutiny of immigration officers in the Bill or existing legislation to ensure that they act responsibly?
Saira Grant: No, I do not and that is a real worry. So many enhanced powers are given—arrest without warrant, especially the driving licence provisions, no warrant needed to enter premises and to search people—and it was interesting that in your earlier evidence session when the police were talking about it. These powers are not just given to the police, but given to immigration officers and to anyone designated by the Secretary of State. There is no regulatory framework for immigration officers that I can see. It is extremely concerning that ever increasing powers are given to immigration officers, with no checks in place to prevent any kind of abuse of those powers.
Steve Symonds: I do. I would add this: I have followed immigration legislation over many years in different capacities, and I cannot think of a Bill over the last 15 to 20 years that has not extended the powers of immigration officers. I cannot think of a time when that has not been questioned in Parliament, and when the answer has not been that there will be better oversight, training and supervision this time. Actually, I cannot think of a time when it has resulted in a more efficient and effective system, let alone fewer concerns about instances of abuse of those powers.
It strikes me as inappropriate to be constantly expanding powers when, as has been referred to in an earlier session—the first session you had this morning—even the inspectorates themselves constantly refer to lack of management records of how the powers are used, inconsistencies in how they are used and inconsistencies about the guidance to officers about how they should be using the powers. We should stop giving more powers and concentrate on the ones that have been given now, at a minimum, and get those right before thinking ahead to expanding the range of powers given to officers and the expectations on those officers, who are much pressed and who no doubt find it difficult, given the range of legislation and guidance pressed on them. Sort out what they have got now before thinking of moving ahead. Oversight is not going to be the answer. I am not criticising oversight, by the way—I am all for it—but it will not provide the answer.
Rachel Robinson: Can I come in on the point about enforcement powers? I echo many of the points made by other speakers, but I add the very serious nature of the problems with the use of enforcement powers identified by the Independent Chief Inspector of Borders and Immigration. A report covering an inspection period ending in 2013 found that in terms of, for example, the power to enter business premises without a search warrant, officers in 59% of cases lacked the required justification to exercise that power. In a further 12% of cases, there was not sufficient information to determine whether justification was there, so in only 29% of cases was the power being used properly. Yet, in the Bill, we see a massive extension in how intelligence is used by immigration officers.
We have had similar concerns from the Independent Chief Inspector of Borders and Immigration about the approach to so-called intelligence. One example given in a recent report involved a raid on a fast food restaurant. The intelligence for that raid was that previous raids on fast food restaurants had uncovered irregular workers. That is not intelligence; that is a generalisation and a stereotype. We have serious concerns about how the powers are being used, and we urge the Government to consider looking again at those powers, how they are being used and whether there are ways to make them more effective, safer and more accurate, rather than giving immigration officers a whole range of new powers.
You might want to reassure our witnesses that we had a housing officer as witness who thought that giving housing officers the responsibility to ask anyone to verify who they were might reduce problems with prejudice and so on. My question to all of you, with your expert knowledge of this area, is what measures you think we should be introducing to encourage people with no right to remain in this country to leave, or ensure that they do so when they refuse. What would be your solutions to that problem, if this is not the answer?
Rachel Robinson: What we see in the Bill is a shifting of responsibility from the Home Office to private citizens, when what we should be seeing is an improvement in processes within the Home Office. I think that the Committee has had ample evidence that the provisions in the Bill are liable to undermine enforcement of the immigration rules by making it more likely that people will abscond. The Committee has heard ample evidence on the provisions on asylum support.
We would say that the solution is not to foist immigration powers on members of the community with no training or expertise and expect them to carry out the functions that the Home Office has failed to carry out effectively itself. The solution is for the Home Office to do its job better.
Rebecca Hilsenrath: We start by wishing that an equality impact assessment had been produced; it might have helped to look through the draft provisions with a closer eye on equality impact. In terms of general proportionality, you could take the same approaches and consider whether, in fact, the same measures could be looked at through the lens of greater compliance with human rights legislation. If we look, for example, at the provisions giving private landlords eviction powers where tenants have been found to be disqualified from renting, we do not really understand why that process cannot involve a review by the court instead of being, as it is at the moment, enforceable as a court order.
Rebecca Hilsenrath: I do not understand why it would make them less likely to leave the country. We do not understand why under clause 14, in mixed tenancies where some tenants are lawful and some unlawful, the court cannot consider transferring the tenancy to the lawful tenant. We do not understand why there is not an obligation on the court to do so where that would be reasonable. You could look again at all these policies through the lens of proportionality. A proper impact assessment would have helped the Government to do that.
But you have not given us any measures that you think would be more successful in getting people who have no right to be in this country to leave. I am looking for your solutions to the problem. You are telling me what you do not like about the legislation, but I would like your solution; what would better help people who have no right to be in this country to leave.
Can I butt in? I am really sorry, but we have got about five Members who want to get in, with less time than we expected. If you have not got a remit to talk about it, perhaps we should move on. I guess that no one else on the panel is going to answer that question, are they? No.
I want to challenge Ms Grant, but first I will declare an interest, as I did on Tuesday. You have said that it is not right that landlords have to deal with the complexities of people’s immigration status. In fact, we had Mr Smith on Tuesday from the Residential Landlords Association, who said that the sector was made up of amateurs and accidental landlords. Let me just ask you what is so complex about taking an ID, which the majority take anyway. Do you not think it might enhance the situation for landlords along the way?
Saira Grant: I did not say that it was not right; I said that it was difficult. I will explain, because that is the second part of your question. Taking an ID is not difficult. If you have a passport, it is very easy. You can show your passport, and we do show passports in many situations, including when getting tenancy agreements. The complexities arise when somebody’s immigration status is not clear cut and they do not have a British passport. I was pointing to the evidence that backs that. In the Home Office’s own evaluation, the landlords’ checking service was contacted 109 times, because landlords said, “We do not understand what we are seeing. We do not understand this document, this biometric card or this historic stamp in this passport.” Out of those 109 inquiries, 94 people had the right to remain. That demonstrates that it is not me—
May I just point out to you that that is no different from anyone else in this country who wants to rent any property? I had the same situation myself only three weeks ago. First, living in Yorkshire, I had to be in London on a particular day, otherwise the property went. Secondly, I had to have all the relevant checks in place. If I did not, the property was given to somebody else. How is that discriminating against somebody, when that situation is already in place?
Saira Grant: That is exactly the point. If you do not have your documents to hand—say you are one of the 17% of British citizens who does not own a British passport, so you cannot show that—what happens is that there will be somebody else ahead of you in that queue, but that is not the discrimination I am talking about. I am talking about the difficulty landlords are having in assessing immigration status, as the evaluation demonstrates. It is not me saying that; it is what the evaluation demonstrates. The discrimination I am talking about and which we found was when landlords said to us—almost a third of landlords who responded to our survey said this—“This is really worrying for us, £3,000 is a hefty civil penalty. We do not really want to rent to anybody who sounds foreign, looks foreign or has a foreign accent. It is just not worth our while.” That is leading to discrimination. That is the problem. The scheme is set up in such a way that you do not need to be a racist landlord; you just need to be a cautious one to say, “If I have a choice, who am I going to rent to? Somebody I am not sure about or somebody who has a British passport.”
I just wanted to pick up the line about entitlement, which is running through the conversation this afternoon—people feeling that they will get to a point at which they are entitled to be here. This question is for Ms Grant: does your organisation explain to people that there may be a point at which they feel they are entitled to be here, but they will not be? Do you go through the process of what could happen to them? We heard from the Red Cross earlier that it does that, but some organisations do not and it is adding complexity to complex cases.
Saira Grant: Absolutely. We run an irregular migrants helpline to give legal advice. The best advice we can often give is to say to somebody, “You have to leave the UK.” We spell out their entitlements, their rights and what the process is, and then we refer them to the voluntary returns scheme, to the Red Cross or to whichever organisation is appropriate. Absolutely, it is in nobody’s interest to have people who should not be here remaining here, and it is not in their interest either. The destitution we see is heartbreaking, but if they have come to the end of the legal process, we have to give them fair advice. We are a legal organisation.
So fairness on all sides. That is very helpful. This question is for Ms Robinson: we have heard this week from some sectors, such as hospitality, that in some areas, exploitation of illegal migrants does happen. Do you think that the Bill unfairly shines a light on exploitation of workers? I am confused about why you do not see that there are some areas where it is easier to exploit people than others.
You were saying that people do a “finger in the air” job and just turn up at restaurants, for example. However, we heard evidence on Tuesday that certain sectors, such as the building trade or hospitality, were more likely, in some cases—with bad employers—to find workers and exploit them. This Bill provides an opportunity to protect people, would you not agree?
Rachel Robinson: Parts of the Bill are a movement in the right direction, such as the new director role, which is not something that we have briefed on, but other parts create cause for concern on this very issue. I am thinking in particular of the offence of illegal working. The Committee has already had lots of evidence, which we agree with, that this measure is likely to drive people underground and could strengthen the hand of rogue employers who have another sanction to hold over the head of employees. It could prevent victims of trafficking and exploitation from coming forward.
Finally, we heard this morning from the director of the Migrants’ Rights Network who said that there were flaws in the system that could be exploited. Are there any provisions in the Bill that you believe are the right ones in terms of not allowing people to be exploited?
Steve Symonds: In general, I would say that the Bill fails on that account. Perhaps it comes back to the earlier question that I was shy to answer, and we then moved on. I think legislation is not the way forward to address the concern about trying to get through to people who have no entitlement to be here, who often find themselves in miserable circumstances, who are at risk of exploitation and who perhaps do need to make that decision and leave. The answer to that is going to be that you have to have a more consistent, efficient system that ensures people feel they have a fair hearing. That includes making sure they have access to proper advice—the sort of advice that Saira has mentioned—and it includes access to legal aid.
I used to provide immigration advice to people. One of the first things you would do would be to talk through their options, and, if they had none, explain that to them. That is how you start to turn this around. That is going to take time, and if we are starting with the illusion that we will ever get to a world where there is nobody here who has no entitlement to be here, and we are always going to be legislating on the idea that somehow we can by law create the environment where there is no one here who should not be here, we will never get to that solution.
So we need to come back to management and supervision of policies that need to be clear, consistent, simple and readily understood by those who exercise them and by those who advise upon them, so that people understand what is their true position, feel that they do go through a fair process and can make a sensible decision at the end of it.
Do you think Amnesty gets that messaging right in terms of explaining to people that there is a fair system, but they may not feel at the end of the process that they get a fair outcome? Are you as a group telling people all the bad stories, the good stories and the realities? In essence, no system will ever get it completely right and you have to highlight when we do get it right. Are you spending your whole time explaining when we get it wrong?
Steve Symonds: I will say two things in relation to that. In relation to individuals, we do not provide any immigration advice at all. We are not regulated to do that, so we are not entitled to do so. We are not saying the sorts of things to individual people that JCWI through its advice work can do. In terms of the generality, we do point out the other side, perhaps not as much as some people would like, but we have to also accept and acknowledge that we see headlines in our newspapers regularly that we would feel are entirely critical and are not themselves balanced, so one of our jobs is clearly to ensure that there is some balance in the discussion. That means we have to more closely point the finger where things have gone wrong, and I think that it is perfectly appropriate and necessary for us to do so, and that is what we will do.
In terms of the view that the welfare group has, Ms Grant, do you think the same? Are you are able to tell the good and bad stories so that if people do come here they have a fair view that the system can be perceived to be kind to some people with a perceived entitlement and less kind to others? That could be down to what we heard earlier—because of the complexity of the cases. If you cannot get your documentation, it may seem that the system is unkind to you, but you may be caught up in a political issue locally rather than this being an unfair system.
Saira Grant: Sure. Yes, we try to be as candid as we can, but it is very hard, when you have legislation, media talk and a political environment that is constantly talking about hostile environments, to say to people, “This is a welcoming country that is very fair.” That makes our job very difficult, especially so when people have made valid, legitimate applications and there are delays in getting those applications processed. They are in limbo in the meantime. The system has delays within it, and then there might be a wrongful decision, a bad decision, as you have heard before.
Saira Grant: No, because the culture really has not changed at the Home Office. I know it is making strides to change, but I can see from the appeal determinations the percentages are pretty much the same. Overall, 40% of appeals are successful. It was 44% two years ago. So there is a slight shift—these are tribunal figures—but overall it has not changed. Decision making is faster, but within the tribunal system delays have increased in terms of appeals being listed. We have appeals being listed a year from today, so there is a long wait for people and that limbo creates a lot of uncertainty and a lot of problems.