I welcome you back to the Chair, Mr Bone, for our final day of deliberations on the Bill.
The new clause and new schedule 3 make changes to the availability of local authority support in England for certain categories of migrants. The new schedule is in part a companion to schedule 6, which reforms arrangements for the provision by the Home Office of support to failed asylum seekers and other illegal migrants, which the Committee has already considered. As I said during our debates, we continue to consult with local authority colleagues, in particular on the detail of the new support arrangements and how they will sit alongside other provisions. We are clear that we want to encourage and enable more migrants without any lawful basis to remain in the United Kingdom to leave in circumstances when they can do so.
In particular, we have been discussing with local government colleagues whether changes to schedule 3 to the Nationality, Immigration and Asylum Act 2002, which controls access to local authority social care for migrants without immigration status, would be helpful. Our public consultation on asylum support highlighted concerns that the framework provided by schedule 3 to the 2002 Act and associated case law was complex and burdensome for local authorities to administer and involved complicated assessments and continued litigation to establish what support should be provided in what circumstances. The Committee heard similar concerns from local authority colleagues in their oral evidence to us on 22 October.
We have listened carefully to what local authority colleagues in England told us about the scope for simplifying and strengthening some of those provisions. Our response is the amendments made by the new schedule to schedule 3 to the 2002 Act, making two key changes. First, new schedule 3 simplifies the way in which local authorities in England assess and provide accommodation and subsistence for destitute families without immigration status. It enables local authorities to continue to provide under section 17 of the Children Act 1989 for any other needs of a child or their family to safeguard and promote the child’s welfare. Secondly, the new schedule prevents adult migrant care leavers who have exhausted their appeal rights and have established no lawful basis to remain here from accessing local authority support under the 1989 Act. It makes alternative provision for their accommodation, subsistence and other support before they leave the UK.
Immigration is a reserved matter and, as we have debated previously, immigration legislation—through schedule 3 to the 2002 Act—already provides a UK-wide framework for migrants’ access to local authority services. We therefore have it in mind to seek to amend the Bill at a later stage to extend those provisions to the rest of the UK once we have had further dialogue, which is in hand, with the devolved Administrations.
Turning to the main provisions of the new schedule, paragraph 7 of new schedule 3 inserts a new paragraph 7B in schedule 3 to the 2002 Act. It provides a new simplified definition of a person without immigration status who will generally be ineligible for the forms of local authority support listed in paragraph 1(1) of schedule 3 to the Act. It replaces the convoluted immigration status definitions in paragraphs 6 to 7A of schedule 3 to the Act.
Paragraph 8 inserts a new paragraph 10A in schedule 3 to the 2002 Act, under which regulations will be made by the Secretary of State, subject to parliamentary approval, to enable local authorities to provide for the accommodation and subsistence needs of destitute families without immigration status in circumstances in which case law and human rights considerations may well mean that the local authority should provide support.
Such circumstances include where, first, the family has an outstanding specified immigration application or appeal—in a non-asylum case for which Home Office support is not provided. Secondly, the family might have exhausted appeal rights and not failed to co-operate with arrangements to leave the UK. They must also not qualify for the support available from the Home Office under proposed new section 95A of the Immigration and Asylum Act 1999, to be inserted by schedule 6 to the Bill, for failed asylum seekers with a genuine obstacle to departure at the point their appeal rights are exhausted. Thirdly, the provision of accommodation and subsistence support must be necessary to safeguard and promote the welfare of a dependent child. That will enable local authorities to take any action they consider necessary to prevent destitution pending the resolution of the family’s immigration status or their departure from the UK.
Paragraph 4 will insert a new schedule 3A to the 2002 Act, which will mean that accommodation and subsistence support will be provided to a destitute family under the regulations made under new paragraph 10A of schedule 3 rather than under section 17 of the Children Act 1989. As we discussed in respect of schedule 6, there is no general obligation on local authorities to accommodate illegal migrants who intentionally make themselves destitute by refusing to leave the UK when it is clear that they can do so. Schedule 3 to the 2002 Act already provides that a range of local authority social care is unavailable to failed asylum seekers and others who remain in the UK unlawfully except when, following what can be a complex and burdensome assessment process, the local authority decides that the provision of such support is necessary to avoid a breach of human rights or on the basis of other exceptions for which schedule 3 provides.
The new schedule will simplify the complex human rights assessment process, much of which is concerned, in line with case law, with immigration matters that are for the Home Office and the courts to determine, which the local authority has to undertake before it can assess and provide for the family’s social care needs. The provisions embody a sense of simplification.
The main social care needs of families without immigration status who seek local authority support are for accommodation and subsistence to prevent destitution. A June 2015 study by the Centre on Migration, Policy and Society at Oxford University on local authority support for such families—I referred the Committee to this in my letter that notified colleagues of the amendments—found that the welfare needs of the children at the point of referral to the local authority were overwhelmingly for accommodation and subsistence.
The new schedule will also ensure that section 17 of the 1989 Act will remain available to the local authority, together with its other powers and duties under that Act to deal with any other needs of the child or their family that the local authority considers must be met to safeguard and promote the child’s welfare while the family’s immigration status is resolved or, where it is established that they have no lawful basis to remain here, before they leave the UK. The local authority’s duty to provide for the child’s schooling and to address any specific educational needs will also be maintained.
The reforms to schedule 3 to the 2002 Act will simplify the basis on which local authorities deal with destitute families without immigration status and maintain essential safeguards. We are satisfied that they are compatible with our obligations under the UN convention on the rights of the child and article 3 in particular, which requires that children’s best interests are a “primary consideration” in all decisions affecting them. We are also satisfied that they are compatible with section 55 of the Borders, Citizenship and Immigration Act 2009 under which the Secretary of State must have regard to
“the need to safeguard and promote the welfare of children who are in the United Kingdom” when carrying out immigration functions.
Paragraph 2 of the new schedule amends paragraph 1(1) of schedule 3 to the 2002 Act so that adult migrant care leavers who have exhausted their appeal rights and who have established no lawful basis to remain here are prevented from accessing local authority support for care leavers under the 1989 Act. Nearly all of those adult migrants are former asylum-seeking children whose asylum and any other human rights claims have failed. The provisions in the 1989 Act are geared to support the needs and onward development of young adults leaving local authority care whose long-term future is in the UK. Those provisions are not appropriate to the support needs, pending their departure from the UK, of adult migrants who the courts have agreed have no right to remain here.
Paragraph 8 will insert a new paragraph 10B in schedule 3 to the 2002 Act under which regulations will be made by the Secretary of State, subject to parliamentary approval, to enable local authorities to provide for the support of adult migrant care leavers who have exhausted their appeal rights in respect of their asylum claim but have an outstanding specified immigration application or appeal and are destitute; or who have exhausted their appeal rights and do not qualify for Home Office support under the new section 95A of the 1999 Act because there is no genuine obstacle to their departure from the UK, but to whom the local authority is satisfied that support needs to be provided. That will enable the local authority to ensure that support does not end abruptly and that there can be a managed process of encouraging and enabling their departure from the UK.
Paragraph 4 inserts new paragraphs 3B and 3C in schedule 3 to the 2002 Act, which means that support will be provided to the adult migrant care leaver under the regulations made under new paragraph 10B of schedule 3, or under new section 95A of the 1999 Act, rather than under the Children Act 1989. By virtue of paragraph 11 of schedule 3, the new regulations will enable local authorities to provide such other social care support, beyond accommodation and subsistence, as they consider necessary in individual circumstances.
We are confident that the reforms to schedule 3 to the 2002 Act will simplify how local authorities deal with destitute families without immigration status, will make more appropriate provision for support to adult migrant care leavers who have not established a lawful basis to remain in the UK and will maintain essential safeguards. The provisions in the new schedule will, like those in schedule 6 to the Bill, be subject to the new burdens assessment of the final package of changes to which we have committed.
We will continue to work closely with local authority colleagues to look at other ways in which we can improve the framework within which they work with migrants without immigration status. All are clear that we want to work together to encourage and enable more migrants who have no right to remain here and who face no barrier to their departure to leave the UK. The new provisions will help ensure that we have the right platform in place for that work.
Obviously, since the Committee last met we have seen the appalling attacks in Paris. It will not have escaped the Minister’s attention that it is considered possible that one of the attackers entered Europe as a putative refugee. Does the Minister agree with me and many of my constituents that the work we are doing with the new clause and the new schedule, and other parts of the Bill, will simplify, strengthen and prioritise the support we can give to those refugees who need it, rather than those who may be seeking to abuse the system? He surely would agree that that is important work in light of those attacks.
I note my hon. Friend’s comments. She will obviously have heard the Home Secretary’s statement yesterday, and the Prime Minister will make a further statement to the House today. It is important that we do not speculate on what may or may not have happened in the appalling events that we have all seen in the past few days. We stand in solidarity with the French people at this extraordinarily difficult time. We stand against those who would seek to divide us and destroy our very way of life. We all have a common cause in standing with the French people and all those who are against Daesh and those extremist organisations that seek to threaten our very way of life.
In general terms, my hon. Friend has highlighted the issue of any threat that may exist with those seeking to come to Europe through an asylum-based route. We need to analyse the facts carefully as to what has or has not happened, but it is equally important to underline the stringent checks that we carry out in this country on those who are claiming asylum and how we believe it is essential to strengthen the screening and identification of those arriving on the shores of Europe. That is why we support the work of Frontex, the EU external border agency, in its work on debriefing those who are picked up. We also support such things as the Hotspots initiative in Italy, Greece and other countries, which ensures that those who are arriving are processed speedily and effectively.
No doubt my hon. Friend will have heard the Home Secretary’s comments yesterday on the work that is undertaken to ensure that we are appropriately screening those arriving in this country through our vulnerable persons relocation scheme. All the steps we are taking are part of our focus on the security of this country, but equally they are about ensuring that those coming to this country who are fleeing persecution and in need of support are welcomed by us and given the support that they require. We believe that that approach is entirely consistent with the proposals in the Bill and is reflected in the new clause and new schedule.
May I first echo the Minister’s comments by joining him and everybody in the House in abhorring the attacks that took place this weekend in Paris, as well as all the other attacks that have taken place elsewhere. They are attacks on our values, and we must stand together in our response. Those responsible seek to divide us; we must not be divided. As was said in the House yesterday, they are attacks on our values, our principles and our approach to issues such as refugees. It is important, if we mean what we say about our values and about standing together, that we do not diminish our stand on refugees, human rights and the sort of democratic accountability that this Committee brings to how we pass laws in this country.
Those are important principles, and it is right that this Bill should go through such a process to ensure that there is no diminution of protection for asylum seekers and refugees or of human rights for anybody who finds themselves in this jurisdiction, whether they be an adult, a child, a refugee or anybody else. As human beings, they have human rights, and it is our business to ensure that those rights are fully upheld. I make those comments in response to the comments just made, but nothing that happened this weekend should lead any of us to think that weakening in any way our resolve to deal properly with refugees and human rights issues should be any part of the answer to the atrocities, which we are all united in abhorring.
I will take the new clause and schedule in the order that the Minister did. Paragraph 7 of new schedule 3 is intended to provide a new, simplified definition of a person without immigration status who will generally be ineligible for local authority support. Can he assure us that only those currently excluded from support will continue to be excluded—in other words, that this is a simplification of the process, and that paragraph 7 does not broaden the category of individuals ineligible for support listed in schedule 3(1) of the 2002 Act?
Paragraph 8 of new schedule 3 will provide for the accommodation and subsistence needs of destitute families without immigration status in certain circumstances. Our concern about the provision involves those who are seeking judicial review or have judicial review proceedings pending. Again, can the Minister set out the position on such individuals? It will be a change from the current position, and it excludes that group of individuals from protection. If that is not the case, an assurance to that effect would be helpful, and would go on the record.
Paragraph 4 inserts a new paragraph 3A into schedule 3 of the 2002 Act and relates to how we deal with destitute families. Again, there are two issues for the Minister. First, without knowing the meaning of a “genuine obstacle” to return, how can the Committee assess the impact of the provision? We are considering it against a definition that is not before the Committee. Secondly—he might have dealt with this, but perhaps he can assure me if he did not—can he confirm that the needs provided for under the section appear to be narrower than those provided for under the Children Act 1989? In other words, they appear to omit disability or education needs. Given what he just said, I might be wrong about that, and a simple assurance might deal with that point.
If I may intervene to save time, I explained that the provision applies to housing and what are effectively direct support needs, but that the provisions of section 17 of the Children Act 1989, which relate to other needs such as medical or care needs, will still remain in force.
I am grateful. I did think that that was what the Minister had said, and I just wanted that assurance.
Turning in a little more detail to the provisions in paragraph 2 dealing with those leaving care, former looked-after children who require leave to enter or remain when they turn 18, but do not have it or are not asylum seekers, will be excluded from receiving accommodation, financial support, a personal adviser, a pathway plan, funds for education or training and any other assistance under various provisions of the Children Act 1989 and from staying put with foster carers or maintaining contact. The Minister says that that is because the needs of those who have no right to be here are different from those of people who have their future in this country. Such individuals are former looked-after children who have just turned 18, and care leavers in such circumstances include those with no immigration status, those who arrived as children and sought asylum and were granted UASC leave, and those who came to the UK at a young age but were never helped to regularise their status.
Such people can only claim access to accommodation and other assistance in limited circumstances. The first is if they are destitute, have been refused asylum and are eligible for support and there is a genuine obstacle to them leaving the UK. The second is if they are destitute and have a pending non-asylum immigration application or appeal. The third is if their rights are exhausted, and regulations will set out the limited circumstances in which they can receive support.
The concern here is that specific provision was made in the Children Act for all children leaving care in recognition of their additional vulnerabilities and the need for additional support in order for them to have the same chances as other young people entering adulthood. The new clause and new schedule fundamentally change that position. There is a real concern that someone who has just turned 18 and who, as a matter of fact and possibly because of vulnerabilities, has simply not regularised their immigration status will be denied support under this provision, which cuts across the thrust of the 1989 Act.
I want to speak against new clause 17 and new schedule 3. I want to start by asking the Minister whether he has the approval of the Minister for Children and Families, because the provisions seem to challenge much of the core principles for which he has been arguing. The changes have far-reaching impacts on the core definitions and duties of the Children Act, and it is strange that such dramatic changes are being housed within an immigration Bill.
Section 23(4)(c) of the Children Act places a duty on local authorities to give care leavers assistance to the extent that their welfare requires it. While the young person was a looked-after child, the local authority was their corporate parent. That duty recognises the legacy of the parental role and allows the local authority to step in and protect a care leaver in crisis. The Government’s Staying Put initiative explicitly recognises the need for care leavers to have “stable and secure homes” and to
“be given sufficient time to prepare for life after care.”
The Department for Education care leavers’ charter outlines key principles that will
“remain constant through any changes in Legislation, Regulation and Guidance”,
including the provision of advice and practical, financial and emotional support. Such initiatives are entirely undermined by the proposals.
Migrant children in care often face additional difficulties to British children. They are particularly likely to have faced trauma. They may experience language and cultural barriers. They are less likely to have any contact with biological family members. Care leavers often need their personal adviser or advocate to help to identify and even instruct an immigration lawyer. Barnardo’s conducted a child advocacy pilot for the Home Office that by all accounts seemed to be very beneficial. It helped the young person enormously to make informed choices and it helped the state to provide the level of support that was needed, so it seems odd that the new clause will undermine the Government’s pilot.
Not only is it discriminatory to remove support from young people leaving care on the basis of their immigration status, but in order for migrant care leavers to enter adulthood successfully it is vital that they can access a care plan under the 1989 Act. They are very young adults who often have no one else to turn to. The Government’s changes will remove all possible support usually provided to care leavers—including a personal adviser, a pathway plan and funding for education or training—other than, as the Minister confirmed, basic accommodation and financial assistance for certain groups.
It is not clear from the new clause whether it is envisaged that local authorities or the Home Office will be responsible for providing the support set out in proposed new paragraph 10B. Although I oppose the changes as a whole, at the very least local authorities should be responsible for providing support if the Government are not, and that should be stated in the Bill.
We have spoken at length about the complexities of immigration law. In introducing yet another Immigration Bill, the Government had the opportunity to simplify some areas of the law. In areas such as appeals, the Government have, to their shame, done so by removing the right of appeal from the majority and proposing that the few who retain it might have to exercise it from outwith the country.
Some of the strongest arguments in the whole debate have been about the support we give to migrants and refused asylum seekers, particularly the children involved in such situations. The Government’s proposals on support for 18-year-old care leavers and destitute families with children in new clause 17 and new schedule 3 are nothing short of a dog’s breakfast, and are potentially dangerous. Either by accident or design, we could very well see support removed from the most vulnerable groups.
Under the existing system, Home Office support is provided under two relatively—I stress: relatively—broad provisions, namely sections 4 and 95. We will now have heavily caveated and more complicated support available across four provisions, including new paragraphs 10A and 10B of new schedule 3. The new clause and new schedule will sow confusion at a local authority level, and dangerous gaps in support can and will occur.
The changes relating to section 17 of the Children Act 1989 will prevent local authorities from providing accommodation and support where there are
“reasonable grounds for believing that support will be provided”.
That will prevent local authorities from supporting families on the basis that they might receive support in future, even though they are not currently receiving any support. It could prevent a local authority from providing emergency support if a family are destitute and have been unable to access immediate support from the Home Office. It will also prevent local authorities from providing support to families who in principle would be entitled to support under new paragraph 10A but are not receiving it in practice.
I am sure the Minister is well aware of the case of child EG, a one-year-old who died in 2012, followed two days later by his mother, when they were left in limbo between two different types of support. It is people like that who might be affected by the Government’s proposals. On the topic of vulnerability, there cannot be many more vulnerable people than young adults who have just turned 18 and have spent long periods of their childhood in care. Indeed, as has been alluded to, the Minister for Children and Families described them as “highly vulnerable” when calling for more support as part of a leaving care strategy as recently as July this year. It seems that our commitment to providing more care for this vulnerable group depends on where they were born or have come from.
The Minister for Children and Families is not alone. The Joint Committee on Human Rights also stated that unaccompanied migrant children must be properly supported in the transition to adulthood and receive bespoke and comprehensive plans that focus on educational goals, reintegration and rehabilitation. That includes planning for possible return to their country of origin and the provision of support to young people leaving care whose appeal rights are exhausted. The Joint Committee also stated that it would be difficult to reconcile the removal of support from young people leaving care on the basis of their immigration status, rather than on assessment of need, with the non-discrimination provisions of the UN convention on the rights of the child. Article 2 of the convention requires that states respect and ensure the rights of each child in their jurisdiction without discrimination of any kind.
During the evidence sessions, we heard time and again from expert witnesses that the proposals in the Bill run counter to the provisions and principles in the Children Act 1989 and the Children (Scotland) Act 1995. The hon. Member for North Dorset mused that it might be easier just to amend the 1989 Act, much to the dismay of myself and my hon. Friend the Member for Glasgow North-east. The Government may not have gone that far, but they are trying to make changes to the Nationality, Immigration and Asylum Act 2002 that will have a similar effect. Be in no doubt: the Scottish National party will be voting against these retrograde proposals.
I shall respond to the points that have been flagged in the order in which they were made. The hon. and learned Member for Holborn and St Pancras asked a number of questions. I underline that paragraph 7B is principally a matter of clarification. Those failed asylum seekers who claim asylum at port rather than in country are covered by the definition in paragraph 7B; we argue that that provides greater clarity. He made a point about judicial review cases. If someone has been granted permission to seek judicial review in respect of an asylum or article 3 European convention on human rights claim they will now be eligible for section 95 support under schedule 6 to the Bill.
The hon. and learned Gentleman also asked what was meant by a “genuine obstacle to return”. We debated that previously in this Committee and as I previously stated, the principal reasons will be a lack of documentation, including travel documentation, to facilitate return, or medical issues. He commented on the needs of children leaving care—a point further developed by the hon. Member for Rotherham and the hon. Member for Paisley and Renfrewshire North. It is important to underline that the provisions relate to adults rather than children. That is important in the context of the UN convention on the rights of the child, as it defines a child as under the age of 18. Obviously, we are talking about adults who do not have that right to remain in the UK.
It may also be worth highlighting some context here. For example, in 2014 63% of asylum claims made by unaccompanied children were made by young people who arrived aged 16 or 17; therefore they had spent most of their lives outside the UK. When their claims fail and their appeal rights are exhausted, adult migrants are expected to leave this country. Any accommodation, subsistence or other support they require prior to their departure is, in our judgment, better provided under provisions intended for that purpose, not under the Children Act care leaver provisions intended to support the development of young people whose long-term future is in the UK. That is the distinction we draw.
What does the Minister say to the concern that those coming out of care may very well be vulnerable and traumatised, whatever age they went into care? They might not have regularised their status and will need access, for example, to an adviser even to get as far as an immigration lawyer to start the process. I appreciate what he says about age, but these are children who have just turned 18. What does he say to that group?
Obviously, if someone comes to this country as an unaccompanied asylum-seeking child, their case will be considered in that context and whether they become appeal rights exhausted up to the point at which they turn 18. It is not simply about how we approach this when someone gets to 18; for example, when they are 17 and a half they are reminded that they do not have status and that they should be regularising their position if they have not already done so. At that stage, obviously, the provisions that would continue to exist for a child, with the potential for a local authority to provide a personal adviser, will have been put in place.
That answer is inadequate. The Minister makes a distinction between those who are 18 and under 18. What he is saying is that we tell children that they must undertake whatever proceedings they need to regularise their status, and if they do not do so, when they get to 18, when they may still be very vulnerable and in need, they have missed the opportunity, perhaps because, as children, they did not understand what they were supposed to do. How is this supposed to work in practice for that vulnerable group?
As the hon. and learned Gentleman has already highlighted, support is provided to a child within the meaning of the Children Act. The point we are making is that when someone becomes an adult who is appeal rights exhausted, it is appropriate for the state to seek the removal of that adult from the UK in those circumstances. We are making an in-principle point about facilitating the removal of those with no rights to be here. The hon. and learned Gentleman seems to be suggesting that because someone came to this country as an unaccompanied asylum-seeking child, they have an enhanced right to remain in this country. We are saying that that is not correct. We should of course work with the Home Office to see that someone returns in those circumstances and that they are assisted to do so. Fundamentally, the provisions in the Children Act are designed for those who are likely to stay in the UK. Therefore it is our judgment that they should not apply and that is why we are bringing forward these provisions.
To the hon. Member for Rotherham I would add that we have consulted the Department for Education closely in the preparation of these provisions. The schedule therefore reflects a whole of Government view, rather than just a Home Office view.
May I have a brief clarification from the Minister? My understanding is that, if the child or young person is in a care home, the Minister is absolutely right—the age of 18 is the cut-off. If a child or young person is in foster care, I thought we had changed it so that the age at which they stop receiving support is now 21. Would that apply to an unaccompanied asylum seeker, or will they be discriminated against?
The point is that there is no discrimination. As I have already indicated, we are talking about children and the support provided under the Children Act. When someone turns 18, they are an adult and therefore we judge it is appropriate that the new provisions should apply. I think that the hon. Lady was highlighting the staying put duty in respect of foster parents. We are saying that, at the point at which someone becomes an adult, they should be leaving the UK and not staying put within the UK. Obviously, we have a strong desire to work with local authorities and with the young people themselves to support them in their departure from the UK.
I want to address the point about gaps made by the hon. Member for Paisley and Renfrewshire North, which was also made in the briefing from the Immigration Law Practitioners’ Association that I am sure hon. Members have received. We do not agree with the analysis that is given. Indeed, we think that the provisions in the new schedule will assist, because we can see that support is being provided. We are simplifying the basis on which the principal need of families without immigration status can be met by local authorities. That need is for accommodation and subsistence support to prevent destitution, as is clearly shown by the study I have highlighted and previously referred to. In respect of family groups, we are clear that section 17 of the Children Act will remain the basis on which local authorities will meet any other social care needs beyond destitution—that is, what they consider to be necessary to safeguard or promote the welfare of a child pending resolution of a family’s immigration status or their departure from the UK. I intervened on the hon. and learned Member for Holborn and St Pancras on that point.
The individual case that the hon. and learned Gentleman highlighted involved moving to DWP benefits rather than asylum support. As has been flagged previously, there have been delays in respect of some of the provisions. The Immigration Act and schedule 3 provisions we are discussing are about simplifying the process, so that there are not those laborious human rights assessments that replicate a number of other assessments in the system. The intention is to close some of the gaps, rather than extend them. That is why we take a different view from the analysis articulated by the hon. and learned Gentleman and set out in the ILPA briefing notes. We can see a difference of principle in the Committee this morning on the appropriateness of continuing Children Act provisions beyond the age of 18. Our judgment is that at that stage people should be leaving the UK rather than staying, and therefore we are talking about two distinct mechanisms and two distinct means. I hope that the Committee will be minded to incorporate the new clause into the Bill.