Immigration Bill

Public Bill Committee, 10 November 2015.

Schedule 6 - Support for certain categories of migrant

Keir Starmer (Labour, Holborn and St Pancras)

I beg to move amendment 224, , in schedule 6, page 91, line 37, leave out—

“before the end of such period as may be prescribed.”

Peter Bone (Conservative, Wellingborough)

With this it will be convenient to discuss the following:

Amendment 225, in schedule 6, page 92, line 6, leave out from “, or” to end of line 8.

Keir Starmer (Labour, Holborn and St Pancras)

The two amendments are rather technical but none the less important. They deal with the period between a decision being made and support being made available.

The background to amendment 224 is that, under proposed new subsection (2B) under paragraph 3(3) of the schedule, people who have lodged “further qualifying submissions” to the Home Office are defined as asylum seekers and will therefore qualify for full support under section 95 of the Immigration and Asylum Act 1999 in the same way as those making an initial claim for asylum. That enables support to be provided to that group of people, who at the moment are accommodated under section 4 of the 1999 Act. That section is being repealed.

The drafting of proposed new subsection (2B)(b) and (2B)(c)(ii) enables the Secretary of State to prescribe in regulation a period during which he may consider the further qualifying submissions without being under a duty to provide support. During that period, the individual would remain destitute. Such a situation was subject to litigation in the case of MK and AH, with Refugee Action, which was reported in 2012. The Home Office policy of delaying 15 working days before making a decision on section 4 applications was found to be unlawful. The case led to a policy change, so that decisions under section 4 now have to be made within two days for individuals in vulnerable categories and five days for other people. The amendment would ensure that the principles in the MK case are upheld and that the resulting policy remains broadly in place.

Amendment 226 is also technical and is intended to prevent section 95 support from terminating immediately upon notification of a decision on—

Peter Bone (Conservative, Wellingborough)

Order. Sorry to interrupt the shadow Minister, but I think he might have said amendment 226 just then, but that is in the next group. We are discussing amendments 224 and 225 at this stage.

Keir Starmer (Labour, Holborn and St Pancras)

Sorry. We are discussing amendment 225—

Peter Bone (Conservative, Wellingborough)

Yes, but I think you said 226.

Keir Starmer (Labour, Holborn and St Pancras)

Maybe I did. I apologise.

Amendment 225 is intended to prevent individuals and families from being made immediately homeless and destitute on receipt of a decision from the Home Office on their further qualifying submissions. The existing policy allows for 14 days of support if further qualifying submissions are rejected and 21 days if they are accepted. Under proposed new subsection (3A)(b) in paragraph 3(5) of the schedule, however, if no regulations are brought in prescribing the period after which support is terminated, or the individual is not covered by the scenario envisaged in the regulations, support can be terminated immediately.

Essentially, there are three scenarios that are a cause of concern. The first is applicants whose further submissions are accepted and who are granted leave. They would have no time to obtain the documentation they need to apply for mainstream benefits and/or work. Lest anyone thinks that that is a theoretical example, there was the tragic case that a number of Committee members will know of—the case of EG—where support was withdrawn and there was a serious case review, which touched upon the transitional periods when support was not provided under the existing regime. To be fair, I do not think that that was the sole cause of the issue, but it was certainly one of the issues that was flagged up in the serious case review, and obviously everyone wants to ensure that everything is done to ensure that that type of thing does not happen again. EG was a little boy who starved to death in that period. So that is applicants whose further submissions are accepted and are granted leave.

The second group is applicants whose further submissions are treated as a fresh protection claim with a right of appeal. As I understand it, they would have to reapply for support on receiving a decision about their further qualifying submissions, because the Bill provides for the support they were receiving to terminate on the day that the decision is taken. So, as far as they are concerned, there is an interim period.

The third group is applicants whose further submissions are rejected. Until now, they would have had 14 days of support. There is a provision in the Bill—new subsection (3D) under paragraph 3(5) of schedule 6—that provides for support to be continued when

“permission to apply for judicial review is granted”.

Clearly, however, there will be a gap between the decision and any application being made for judicial review, and any permission being granted.

As I say, to some extent, these are technical amendments, but they are important because they deal with periods that until now have been dealt with under policy and guidance, whereby support is not removed during the possible gap period. However, it may be that the Minister can give some assurances that will remove the need for the amendment.

Anne McLaughlin (Scottish National Party, Glasgow North East)

The amendment is a common-sense proposal that will limit a policy that has been shown to be ineffective, costly and inhumane. Personally, I find it extremely frustrating that the Home Office’s own evaluation of the evidence highlights the problems with these proposals—primarily, that they do not work—yet we see the proposals being driven through by the Government regardless. I have to question why the Government are not listening to themselves.

We have heard from local authorities that what these policies end up doing is displacing the cost of support, in some cases from central Government to local government. In other cases, the costs are borne by charities and individuals who give their own income to support asylum seekers.

We have heard once or twice—or 45 times—in the course of our deliberations on the Bill that we have a system that has been shown to be very problematic at the least, and where the accuracy of decision making is at least in question. Given the fluctuating security situation in many countries around the world, the rapid mechanised movements of Daesh being an example, further qualifying submissions could rightly highlight the dangers of returning a citizen to their home country. So it is only right, under our international and moral obligations, that we have scope for further qualifying submissions. We should not be driving people into destitution as punishment for using those, no matter how short the length of time.

If any of us in this room were destitute for one day, we would probably be severely damaged by it. There is a saying that my mother still uses all the time. I do not know if it is a McLaughlin saying, a west of Scotland saying, or just a saying, but it is true that we do not know we are born. I am not seeing many nodding heads—it is not a McLaughlin saying. We do not appreciate what we have got and how it would be so difficult for any of us to go through what we are proposing to put other people through.

If an asylum seeker’s initial case has been decided upon, given the restricted support on offer throughout the case, combined with the length of time for that decision, the risk of grave consequences, including destitution, for those who are not supported for a period after lodging further submissions could be quite catastrophic for that individual and, in my opinion, shameful for these islands. I want no part in that.

That takes me on to amendment 225, which seeks to ensure that those who have received a decision on a claim based on further submissions are not cast into destitution on receipt of their decision. Studies from the Red Cross, the Refugee Council and Freedom from Torture have all found that the existing 28 days for successful claimants is insufficient. The amendment should be treated as a measure to streamline the system. If a claimant is ultimately successful, the grace period will support the obtaining of documentation to begin work. If the claimant is unsuccessful, the proposed grace period will allow the individual to make arrangements to leave the UK and reduce the likelihood of the expense and trauma caused by detention. If compassion is not a motivation, amendment 225 proposes what would be implemented in a system based on best practice and common sense.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We have already had a wide-ranging debate on schedule 6, so I do not intend to return to some of the “in principle” issues of which we have had significant discussion. The two amendments in the group, however, touch on the narrow issue of further submissions and concern how we propose to deal with failed asylum seekers who submit further submissions such that their removal would breach the UK’s obligations under the convention on refugees or under article 3 of the European convention on human rights.

A procedure is set out in paragraph 353 of the immigration rules for dealing with such cases, which broadly results in three possible outcomes for the submissions: outright rejection; rejection, but there is a fresh right of appeal against the decision; or acceptance, and the person is granted leave to remain in the UK. Only about 15% of cases are granted leave to remain. Most are found to be without merit and often merely repeat matters already considered and rejected by the immigration judge who dealt with the asylum appeal.

Under existing arrangements, section 4(2) of the Immigration and Asylum Act 1999 is used to support persons who have made further submissions and who require support if they would otherwise be destitute while the submissions are under consideration. Section 4 is to be repealed by the Bill, but we consider it appropriate to retain a mechanism to support those who have lodged submissions, and the Bill does so by amending section 95 of the 1999 Act in order to provide an avenue of support under that measure, subject to the conditions that I will describe.

The system would be wholly unmanageable if a failed asylum seeker were immediately able to access support solely by lodging further submissions and, if the submissions were to be rejected, to continue to receive that support for a “grace period”—21 days for a single person—before that support is stopped. That would be the impact of the amendments.

To illustrate my point, on day one, the failed asylum seeker might lodge the further submissions and be eligible for support. Then, even if the submissions were rejected on day two, they would be entitled to support for at least another 21 days—longer if children were in the household, up to 28 days—during which time they would be able to lodge fresh submissions and so continue the cycle. Therefore, under schedule 6 to the Bill, the arrangements will not work in that way.

Instead, the person will be eligible for support only if the submissions have remained outstanding for a period set out in regulations. We have not made a final decision on how long that period will be, but we expect it to be five working days in most cases, although there may be issues of vulnerability. The shadow Minister, the hon. and learned Member for Holborn and St Pancras, has set out some of the policy framework that will inform that. In effect, the position will remain largely unchanged from current arrangements.

Once submissions are lodged, the person may seek support under section 4(2) of the 1999 Act, but that is normally provided only if a decision on the further submissions and accompanying support application is not made within five working days. Special consideration will continue to be given to cases in which the person is clearly in a vulnerable position, for example because of a disability or in the case of a pregnant woman. In such cases, support is usually granted if a decision on the further submissions is not made within two working days. We expect to continue those special provisions under the new arrangements and will reflect them in the regulations.

A further issue to do with section 95 was raised, and I hope that what I say will be helpful. It does not make sense to place a person on one form of support under section 95 in order to facilitate access to another form of support, for example normal welfare benefits. We work closely with the Department for Work and Pensions to ensure that the process of connecting a person granted refugee leave with access to mainstream welfare benefits works as smoothly as possible. We also ensure that the person is assigned a national insurance number at that point, which speeds up the process of applying for DWP benefits.

It is also important that people on section 95 support have time to secure DWP benefits if they are granted refugee status. In those cases, people receive a grace period of 28 days of further support to enable them to obtain mainstream benefits, and we have been working with the DWP to ensure that that process works as smoothly as possible, for example by updating the documentation a person receives when they are given notice that the grace period has started. We also ensure that the person is assigned a national insurance number, as I have described, and therefore it is an ongoing process. I hope that with that reassurance, the hon. and learned Gentleman will withdraw the amendment.

Keir Starmer (Labour, Holborn and St Pancras)

The Minister has dealt in some detail with the situation if the claim is rejected. As I understand it, if it is accepted, the grace period of 28 days will apply, which covers the first category of people. If that is what the Minister is saying, I am reassured by that and will not push the amendment to a vote. I beg to ask leave to withdraw the amendment.

Keir Starmer (Labour, Holborn and St Pancras)

I beg to move amendment 226, in schedule 6, page 93, line 37, leave out sub-paragraph (5),

Peter Bone (Conservative, Wellingborough)

With this it will be convenient to discuss amendment 227, in schedule 6, page 93, line 38, leave out from “provided)” to end of line 39, and insert—

‘(a) the heading becomes “Support for asylum-seekers, etc”, and

(b) insert after subsection (8)—

“(8A) The weekly cash payment set out in Regulation 2(2) of the Asylum Support (Amendment No.3) Regulations 2015 No. 1501 for each individual is increased to no less than 60% of the rate of Income Support payable to single adults aged 25 or over.”’

Keir Starmer (Labour, Holborn and St Pancras)

In earlier debates on clause 34 and schedule 6, we have touched at great length on the subject of amendment 226, which is intended to reverse the removal of support altogether. A number of Committee Members quoted from the available evidence. In those circumstances, I do not propose to dwell heavily on amendment 226, but amendment 227 has not been dealt with.

The rates for asylum seekers supported under section 95 of the 1999 Act were originally set at 70% of income support, on the basis that their accommodation and utility bills would be paid for separately. As of August this year, asylum seekers, including children, on section 95 support who would otherwise be destitute now receive the same flat rate of support, as opposed to varying amounts for single adults, lone parents, families with children and so on. That rate set at just £36.95 a week, or just over £5 a day. A number of groups have looked at that rate of support, which is manifestly very low. In 2013, a cross-party parliamentary inquiry into asylum support for children and young people, which took evidence from 150 local authorities, found that

“the levels of support for asylum seeking families are meeting neither children’s essential living needs, nor their wider need to learn and develop. The levels are too low and given that they were not increased in 2012 they should be raised as a matter of urgency and increased annually at the very least in line with income support.”

The inquiry further recommended:

“The rates of support should never fall below 70% of income support.”

The Home Affairs Committee picked up the theme in October 2013, highlighting

“concerns about the level of support available to those who seek asylum in the UK.”

It concluded:

“This relative poverty of those on section 95 support is compounded by the fact that the vast majority of asylum applicants have not legally been allowed to work since 2002.”

We will come to that issue later. Amendment 227 would ensure that any asylum seeker who would otherwise be destitute received no less than 60% of income support, which is currently equal to £43.86 a week.

Sarah Champion (Labour, Rotherham)

I am going to speak to amendments 226 and 227, because they are both fundamental and speak to the humanity that I believe we have in this country.

I shall speak to amendment 226 first. Our immigration system has long recognised the need to afford special protection to families with children. It is heartening to hear the Minister reaffirm that position. However, the Bill will remove those protections by withdrawing support for refused asylum-seeking families with children. Irrespective of whether families should or should not return to their country of origin, it is incumbent upon us to ensure that the wellbeing of children is at the forefront of our asylum policy. The Government, by contrast, are seeking to withdraw all support for children when their parent’s application is refused, and to prevent statutory services from assisting children who become destitute.

The consequences of the complete withdrawal of support are severe. We have heard from witnesses that when refused asylum seekers have their support cut off, it both causes illness and complicates existing health problems. Those effects are even more pronounced given that asylum seekers will have been living below the poverty line, on just over £5 a day, for many months or even years while awaiting a decision. The pilot of section 9 of the Immigration Act 2004, which introduced similar measures, clearly demonstrated their negative impact on the health and wellbeing of refused asylum seekers. Refugee Action and the Refugee Council’s study of the pilot revealed that the majority of families with whom they worked had mental or physical health problems that were exacerbated by section 9. Some 80% of parents were found to have mental health problems and some 36% had significant physical health problems.

The risks to children are worsened still further by the potential to force families into exploitative situations in order to survive. Provisions in the Bill would see the criminalisation of illegal workers, the loss of the right to rent, the closure of bank accounts and the freezing of assets. In such an environment I am gravely concerned that exploitation will increase dramatically and that many of the positive steps made by the Modern Slavery Act 2015 may be fatally undermined.

The Bill will inevitably mean the cost of supporting families being passed to local authorities. The costs will be huge. As asylum seekers are overwhelmingly located in deprived areas, those with the least ability to absorb those costs will be faced with the highest bill. The north of England, for example, has about a third of the UK’s population, but Migration Yorkshire estimates that it will face half the cost. It has also highlighted that the societal impacts of such deprivation will be disproportionately felt in the north of England.

The Government’s view is that the changes are necessary to encourage refused migrants to leave, but a huge weight of evidence, including from the Home Office itself, suggests that that will simply not work. Indeed, the Bill is likely to make effective immigration control still harder. When parents think that their children’s life may be at risk if they return home, whether that fear is justified or not, they will generally opt for destitution in the UK as the lesser of two evils. The impact of the removal of support will be the removal of any incentive for failed migrants to maintain contact with the Home Office. The Bill will not only force migrants from the address at which they were known to the Home Office but ensure that migrants do not contact the Home Office again. How is immigration control to operate under those conditions? How is the Home Office expected to track and ultimately remove migrants with whom it has no contact and for whom it has no address? The Bill fails to address those serious questions.

The findings of the section 9 pilot clearly demonstrate the effect on immigration control of removing support. The Home Office’s own report stated that 39% of migrants from whom support was withdrawn absconded, compared with 21% of those who remained supported. Only one family was successfully removed, compared with nine in the control group, and there was no significant increase in voluntary returns. Section 9 almost doubled the rate of absconding, greatly decreased the chances of successful removal and had no impact whatever on families choosing to leave the UK. How can that possibly achieve the Government’s objectives?

We are facing, then, changes that will place families in poverty, cost local authorities and have a disproportionate impact on poor areas. The changes will make it more difficult to remove failed asylum seekers and will do nothing to encourage them to return of their own accord. The Government should reconsider this ill thought out step and support amendment 226.

In the Bill the Government have sought to withdraw the pitifully low level of support currently provided to asylum seekers. The question of if and when the support should be withdrawn has been widely discussed in Committee. Amendment 227 would instead address the support itself, to ensure that it provides the most basic needs for asylum seekers. As currently calculated, section 95 support unquestionably does not do so. Over recent years, Government cuts and a four-year freeze in the rate of the support have seen its value fall well below the level of 75% of income support at which it was originally set. That level in itself was determined as the absolute bare minimum necessary to stave off poverty.

Section 95 support is currently £36.95 a week, or a little over £5 a day. With that money, asylum seekers must pay for food, clothing, toiletries, transport and all necessities. Asylum seekers’ situation is made even more precarious by the fact that they often arrive in Britain with nothing at all and in many cases are already malnourished and in poor health.

Repeated studies have found that section 95 support fails to meet basic needs. Research in 2013 by Refugee Action found that 70% of those surveyed were unable to buy either enough food to feed themselves, or fresh fruit and vegetables, or food that met their religious or cultural needs. Similarly, all respondents to a research survey by Freedom from Torture stated that their income was insufficient to meet their basic needs. Both surveys indicated that asylum seekers usually had to sacrifice one essential need to meet another.

A 2013 cross-party inquiry found that support was not meeting children’s basic needs. Children seeking refugee protection are some of the hardest hit by the lowest levels of support. Children under 19 recently saw their weekly payment under section 95 slashed from £52.96 a week to £36.95. That will leave a single parent with one child struggling to survive on an amount that is less than 50% of income support, despite the fact that children require extra support, especially to fully meet their social, educational and health needs. Even prior to the cuts, all lone parent respondents to Refugee Action’s research survey reported that they could not buy items for their children’s education and wellbeing, such as toys, books or stationery. No children should be forced to live in poverty as a result of Government policy, especially not those seeking protection from persecution.

One of the stated justifications for keeping asylum support rates low was that both section 95 support and section 4 support were only temporary. However, in the second quarter of this year, roughly 60% of the 29,586 pending asylum cases had either been waiting over six months for an initial decision or were awaiting further review. The Home Affairs Committee has already raised concerns about the impact of living off asylum support for extended periods of time.

In complying with a 2014 High Court judgment, the Government calculated the level of support necessary to meet asylum seekers’ most basic needs, based upon expenditure data from the Office for National Statistics for the lowest 10% income group in the UK. However, the Home Office saw fit to revise those figures downwards. In doing so, it introduced a subjective element to the calculation and ensured that support levels are vulnerable to political or budgetary pressures. Amendment 227 would introduce a level of support based on ONS data for the current financial year and ensure that it was adjusted according to the consumer prices index each year. Without those adjustments, support will continue to be eroded and asylum seekers will be pushed deeper into poverty.

Uprating asylum support levels would ensure that those seeking protection were able to meet their most basic needs. The level proposed in amendment 227 can hardly be described as profligate, amounting to only the absolute minimum necessary to stave off poverty. It is vital that we act now to address what amounts to state-enforced poverty. Failure to do so will inevitably lead to more and more vulnerable people being driven into increasingly desperate circumstances.

Anne McLaughlin (Scottish National Party, Glasgow North East)

I always find—I am sure everyone will agree—that when looking at legislation it is important to remember who we are talking about and think through who will be affected by legislative changes. I will focus on one reason why amendment 226 is so important. I want to share with the Committee the story of Zara, whom I came to know extremely well, though not as well as my sister came to know her.

It took a long time for the trust to build up with Zara. She was extremely religious, came from a middle eastern country as an asylum seeker and had been refused asylum. She was therefore destitute. She came to trust my sister and, in her broken English, eventually managed to tell her what she needed. I do not want to say the words I am going to say, but I am going to say them anyway. What she needed was sanitary towels. She shared two stories—this came later, after more trust was built up—of cringe-worthy, humiliating experiences that she had gone through because she was destitute and had no support.

Once, when Zara was coming off the bus—and before anyone complains that if she had money for bus fares she had money for hygiene products, those bus tickets were given by a Glasgow charity that helps people with getting about—she heard a little boy saying something to his mum. She could not quite make out what he was saying, but he was pointing at her, and she realised was bleeding. Any woman would feel the horror and humiliation of that, but she was extremely religious and that was just the end for her.

Another experience came when a charity had made it possible for Zara to have three nights’ accommodation in the home of a very kind person. The Committee will be able to imagine what I will say. She bled through the night—because of her erratic lifestyle she had no idea that her period was about to come—and she was horrified when she woke up in the morning, went to clean the sheets and discovered the blood had seeped through to the mattress. There was no way of hiding from that very kind person, to whom she was extremely grateful, what had happened.

Sarah Champion (Labour, Rotherham)

As I listen to the story, my heart is being ripped out, but I think what disturbs me most is having to justify someone going on a bus, as if that is an extravagant luxury. Is that what we have come to?

Anne McLaughlin (Scottish National Party, Glasgow North East)

The hon. Lady raises an important point, and I gave the justification I did because in this Committee I think I am getting to the stage when I can read the minds of some of the Conservative Members. As they did not intervene I explained how Zara managed to get on a bus.

I want to make it clear that I appreciate how uncomfortable people in this room might feel at hearing me talk about bleeding and sanitary towels. I would not normally do that; I am normally discreet, easily embarrassed and notoriously squeamish. I feel extremely uncomfortable standing here forcing myself to talk about periods, bleeding and sanitary towels, and repeating myself again and again. I am doing it because I want everyone to feel uncomfortable; I want us all to feel that discomfort, because we need to realise that whatever we feel now is a minuscule fraction of what the women I am talking about experience.

To continue reading minds, some Members might think that there are charities and good Samaritans, and ask whether help could not be got from them; but it was so painful for Zara to ask for that help. There are charities that go out to offer help, but they are primarily focused on putting a roof over someone’s head, and, if they cannot do that, on feeding them, because food is essential and hygiene products are not. They are essential only to someone’s mental wellbeing, and the charities obviously must concentrate on keeping people alive.

Again, to use telepathy—it is working well—Conservative Members may be thinking that the simple solution would be just to go home. That is all very well, but as we have heard so many times, a significant proportion of the decisions made about people are wrong. It may therefore be assumed that a significant proportion of the people who some Members may think choose to stay here and humiliate themselves with having to ask for sanitary products have no choice.

I cringe when I talk and think about Zara. I do not imagine that anyone in the room is not cringing, and I understand that, but we can do something about it. In this amendment, we are not asking for money for fripperies; we are asking for money for absolute essentials, so that people can, first, stay alive; and secondly, and just as important, are allowed their dignity. Anyone who votes against this amendment today must be honest with themselves and know that they are consciously and deliberately denying that dignity to these women and to many others. I appeal to the Minister and to Government Members to defy their Whip and vote aye—vote in favour of dignity for everyone.

Emma Lewell-Buck (Labour, South Shields)

It is a pleasure to serve under your chairmanship, Mr Bone.

I apologise to the Committee if I repeat some of the comments that have already been made by my hon. Friends, but I feel we can never hammer home enough the points that we are trying to make today.

I will mainly speak to amendments 226 and 227. Amendment 226 would provide a very basic level of support—just over £5 a day—for destitute families who have been refused asylum. These amendments have three aims: to make sure that vulnerable children are not left destitute; to ensure that families continue to engage with the Home Office; and to head off the danger that the removal of asylum support will in practice see a massive transfer of responsibilities and duties of care from central to local government.

The first point is the most simple and in some ways the most powerful. To be entirely blunt, cutting support will mean that innocent families and their children will go without food or shelter. The Minister noted last week the importance of considering the best interests of children. As a civilised and compassionate nation, we cannot ignore the impact that withdrawing support would have on children’s welfare, health and wellbeing, or the very real dangers that they could be exposed to as a result of their family’s destitution. Without a safety net, families will resort to extreme measures, often turning to illegal work that drives them into the embrace of criminal gangs.

Removing support is also entirely counterproductive, in that it does not have the desired effect of encouraging families to leave the UK. Witnesses at the Committee’s evidence sessions told us the same thing time and time again—you do not get people to leave the country by cutting off their only means of support. All it does is give them every incentive to disappear and to stop engaging with the Home Office. Families will do that because given a choice between destitution in the UK or returning to a homeland where they believe they may be killed or tortured, they will choose the former as the least worst option. When we consider some of the absolutely desperate steps that people have taken to reach the UK to begin with, and that they have risked their lives to make the journey to Britain, we should not underestimate what they will do to stay here.

Removing support forces these families to find other ways to survive, and makes them easy prey for criminal gangs who will ruthlessly exploit their vulnerability for profit. One of the aims of the Bill is to tackle illegal employment, and the very welcome Modern Slavery Act in the last Parliament was intended to help to fight terrible crimes such as human trafficking. By removing support for failed asylum seekers, the Government may undermine both those aims, by gifting the criminals who prey on desperation a new group of people to target and exploit.

The Government seem to think that by encouraging people to leave the UK they can make savings, but their approach just will not have the effect that they intend. If they want to save money, they will do it by engaging people in the process of return. Some 40% of returns are voluntary, and even those that are not voluntary are made much easier when we have records on people and consequently know where to find them. Keeping people on the books costs money, but nothing compared to the alternative. The best way to save money is to conclude cases as quickly as possible, and encouraging people to drop off the radar by removing their support does the exact opposite.

Last week, the Solicitor General stated that he would write to me with full details of how judicial reviews would be funded. Obviously, I am yet to receive such details and I wonder if he could provide them today or before the end of the week.

Robert Buckland (Conservative, South Swindon)

I will write to the hon. Lady this week.

Emma Lewell-Buck (Labour, South Shields)

I thank the Solicitor General for that.

There is a further cost issue to consider, which is the impact the proposed change would have on local authorities. Last week, the Minister and I had a long discussion about the ongoing dialogue with local authorities. I stand by what I said last week. I am not convinced that discussing with local authorities the impact of these burdens that will be placed on them once the Bill is already in place is the right way to do things.

Asylum seekers who find themselves destitute will be scooped up by local authority services—statutory homelessness services, child protection services under the Children Act 1989, mental health services, adult social care services and so on.

Chloe Smith (Conservative, Norwich North)

I wonder whether it would be helpful if we were clear about our language. The hon. Lady used the phrase “asylum seekers”, and said that they will be forced to turn to the services she listed, but we are talking about failed asylum seekers—people who have exhausted their appeal rights. By that process, they have been deemed not to be refugees. The United Nations High Commissioner for Refugees said:

“National asylum systems are there to decide which asylum-seekers actually qualify for international protection.”

We have a system for a reason, and the hon. Lady’s use of the phrase “asylum seekers” in that sentence is not accurate.

Emma Lewell-Buck (Labour, South Shields)

I thank the hon. Lady for that intervention. I made that error last week, too. I apologise again; I should have said “failed asylum seekers”, but what I am saying still stands.

Can the Minister clarify something? We had a long discussion last week, but I am still not entirely sure—this may be my fault, and I may be missing something—how the Bill fits with the ethos of other legislation in this country, which protects vulnerable people. I hope that the Minister can explain for my benefit—I am quite a simple character, and I like things in straightforward terms—how the Bill fits with the ethos of other legislation.

I feel strongly that this measure will potentially be a disaster for local authorities, which are already overwhelmed by funding pressures and will soon have a duty of care for other people as well. Asylum seekers are generally more concentrated in urban areas and areas of higher deprivation—the places where local authority budgets have been most dramatically cut in recent years. I do not need to remind the Committee that in the top 10 most deprived areas, the cost is 18 times higher per resident than in the 10 least deprived. If the Bill is passed, those local authorities will face a big surge in demand for such services. How will they pay for that? Will the Minister let us know whether he is going to offer them any funds?

Section 95 support cost the Home Office £45 million in 2014-15. Given that councils will have to process failed asylum seekers, assess their needs and so on, the process is likely to become much more expensive. The people concerned are spread across dozens of local authorities, which will entail duplication of work. What options do local authorities have? Should they cut services elsewhere, put up council tax or abandon their legal duties? The Bill’s lasting legacy may be to effect a massive transfer of responsibilities from the Home Office to local authorities, with no accompanying transfer of services or resources. On top of all the challenges that councils face, they will now be asked to do the Home Office’s job. The Government are washing their hands of failed asylum seekers and passing the buck to somebody else.

We must think of the human cost of causing families to live in the most dreadful poverty and separating children from their parents. When a family cannot feed their children, it is considered neglect. Children’s services will have to step in and take those children into care. I do not know what will happen when the time comes for the family to return. Will the child or children get returned to their family’s care? I have worked in child protection with a large number of families who have fled war and persecution, and I cannot stress enough the long-term damage that the separation of a child or children from their family can do to their and their parents’ mental health and emotional wellbeing. At the end of the day, it is the migrants who will suffer, and our constituents will too, with public services pushed beyond breaking point as their local authority is forced to clean up the Home Office’s mess.

The Home Office must know that that is about to happen. When the section 9 pilots were trialled a decade ago, the Home Office said that they placed “significant demands” on local authority resources. I believe strongly that the Government are on the brink of making a terrible mistake that will simultaneously undermine efforts to process asylum seekers quickly and heap unmanageable new duties on some of our country’s most deprived local authorities. I urge Government Members to accept our amendments to avoid this disaster.

Gavin Newlands (Scottish National Party, Paisley and Renfrewshire North)

The amendments would allow destitute refused asylum seekers to continue to receive the basic level of support.

On amendment 226, I should point out that what we mean by the basic level of support equates to only £5 in change a day and to housing being provided for those who have nowhere to live. I have to ask whether any of us could afford to live, to eat and to raise a family on that minimum level of support. I would think not. Amendment 227 aims to expand on that by ensuring that asylum seekers have the support they need to exist, although, again, providing only very basic support.

The oft-quoted 2005 Home Office pilot study concluded that the removal of, or reduction in, support provided to asylum-seeking families had no significant influence on removing people from the UK. In fact, the year-long pilot reported that the power to remove support from families

“did not significantly influence behaviour in favour of co-operating with removal…This suggests that the section 9 provision should not be seen as a universal tool to encourage departure”.

Therefore, even though the Bill in general has a poor evidence base, I would direct Members to the evidence that does already exist, which proves that removing all support from a family will have no impact on removing them any sooner from the country.

We have to ask why we are willing to leave people, including children, in such a perilous position. The Still Human Still Here coalition suggests that removing all support could have the opposite effect from the one intended, making it harder for people to be removed from the UK. Receiving continued support will encourage families to continue to stay in touch with the appropriate authorities. That point was expanded on during our evidence sessions by Judith Dennis, from the Refugee Council, who said:

“We think that the Bill is incompatible with the processes for families to engage with the Home Office if they want to return or have come to the end of the asylum process—these measures would not be compatible with that. The Bill will shift responsibility to local authority children’s services, which have a duty to support children in need. We do not think that it will achieve the desired outcome, partly because families will inevitably lose touch with the Home Office—there will be no incentive for them to keep engaging with the Home Office to try to resolve their situation.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 5, Q1.]

The amendments aim to correct that by proposing that people be given basic support—and let us be clear that amendment 227 would only increase support from just over £5 a day to just over £6 a day. However, it does set a baseline of 60% of income support, which will, we hope, ensure that families receive the necessary support, but also that they continue to engage with the Home Office.

As a father, I do all I can to ensure that my kids have whatever they need, and I am sure all parents in the room and beyond feel the same. We would not accept our kids losing support, so why should we be content for the children of failed asylum seekers not to receive, at the very least, the basic level of support that we would want and demand? When it comes to children, we should not care where they are from or what their immigration status is—we should just help them when they need our help.

Paul Blomfield (Labour, Sheffield Central)

Does the hon. Gentleman agree that the evidence we received was unanimous on this issue? That was the case right through to the supplementary evidence we received from Lord Green, of Migration Watch UK, who said:

“As regards to the treatment of failed asylum seekers with children, we are clear that they have no right to remain in the UK and should leave but, where children are involved, we believe that the process should take this into account.”

Unless the amendments are accepted, we will not be taking them into account.

Gavin Newlands (Scottish National Party, Paisley and Renfrewshire North)

Absolutely. I agree with the hon. Gentleman. I think I referenced Lord Green’s evidence on children in an earlier sitting.

If the clause is left unamended, it will see us punishing children for their parents’ actions. If pursuing the goal of removing all forms of support is intended to cut the costs to the Government, the clause also fails on that account. We have received countless pieces of evidence suggesting that removing all support will see us simply pass the costs from central to local government. That was articulated during an evidence session by Stephen Gabriel, who said:

“if the Home Office stops supporting those families, that will potentially have a negative impact on the local authority. That could be a challenge for the local authority.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 71, Q162.]

Liberty has further made the point that, despite assurances from the Government, it seems inevitable that

“some costs will be transferred to local authorities because the…removal of accommodation and support, from children in particular, risks violations of the Article 3 prohibition on inhuman and degrading treatment.”

Given all that, and given the strength of feeling evidenced in a number of contributions to the debate, I hope Government Members will give the amendment serious consideration.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We have obviously had a wide-ranging debate on the amendments. In many respects, it has repeated some of the in-principle issues Opposition Members highlighted in respect of schedule 6. I therefore do not intend to spend a huge amount of time repeating the arguments we debated last week.

Amendment 226 seeks, in essence, to maintain the pre-existing arrangements. Under the current provisions in the Immigration and Asylum Act 1999, failed asylum seeker families continue to receive Home Office support as though their asylum claim and any appeal had not failed, with the onus on the Home Office to demonstrate non-compliance with return arrangements before support can be ceased. The amendment would maintain that position. We believe that is wrong in principle and would send entirely the wrong message to those who do not require our protection. It would also continue to undermine public confidence in the asylum system.

The current position needs to change. Failed asylum seekers are illegal migrants. Our focus should be on supporting those who have not yet had a decision on their asylum claim and who may need our protection, rather than on those who the courts have agreed do not need our protection and should leave the UK. Instead of indefinitely supporting failed asylum seekers because they have children, we need a better basis of incentives and possible sanctions. We, together with local authorities, can then work with these families in a process that secures their departure from the UK, and schedule 6 to the Bill will deliver that.

Home Office support will, of course, remain available if there is a genuine obstacle to the family leaving the UK. Opposition Members sought again to highlight the 2005 pilot, but I have already indicated the differences between these arrangements and the pre-existing arrangements. We have reflected carefully on those experiences and taken account of them, in order to provide a different approach. If failed asylum seekers decide to remain here unlawfully rather than leaving voluntarily, they should not automatically continue to receive Home Office support simply because they have made a failed asylum claim. We need a better basis of incentives, and we believe the Bill will deliver that.

Paul Blomfield (Labour, Sheffield Central)

I am listening carefully to the Minister’s response to points made by Opposition Members. Does he accept there is a real risk that this measure will leave some families in destitution and therefore open to the sort of exploitation that part 1 of the Bill seeks to avoid?

James Brokenshire (Conservative, Old Bexley and Sidcup)

That is why the arrangements have been framed as part of a continuing process in respect of those whose asylum claims have not been upheld by the courts, in terms of the notification periods and further safeguards that exist.

The hon. Member for South Shields has highlighted on a number of occasions the position of local authorities and whether this measure will transfer costs and obligations to them. I have responded to that previously. We propose that Home Office support will continue to be available to a failed asylum seeker with a dependent child or children while there remains a legal obstacle to their departure from the UK—for example, outstanding further submissions, documentation not being available or practical obstacles such as medical reasons. Human rights issues should not be engaged by the cessation of Home Office support, as any risk of destitution could be avoided by the family’s departure from the UK with assistance with the required travel costs or by their compliance with the conditions of Home Office support—for example, in applying for any travel documents required to facilitate their departure. The package of measures will be subject to the new burdens assessment process in the usual way. I say to the hon. Lady that a system has been put in place to ensure that issues related to the transfer of burdens are properly factored in and addressed.

Schedule 3 to the Nationality, Immigration and Asylum Act 2002 provides for a process whereby local authorities assess human rights-related issues such as destitution. That will continue to apply. Equally, our duties in respect of children under section 55 of the Borders, Citizenship and Immigration Act 2009 will still apply. We are discussing with local authorities the practical implementation of streamlining some of the processes in schedule 6 to those in schedule 3 to the 2002 Act, to ensure that they operate efficiently and effectively. That feeds into the concept of family returns, which I spoke about previously, and the considered fashion in which we are approaching this. This is not come automatic cliff-edge point, as the provisions will apply to those who have a negative asylum decision subsequent to the Bill being in place. Therefore, it forms part of the overall removal strategy that I have previously explained.

Anne McLaughlin (Scottish National Party, Glasgow North East)

I cannot remember his exact words, but the Minister seemed to say that families are choosing, and refusing, to go back to where they came from, and therefore they cannot get support. Without going into the arguments of whether they can go back, do the children of those parents have any choice? Can the children choose to go back to where their parents came from, or are they at the mercy of decisions made by the adults around them? If the answer is that they are at the mercy of those adult decisions, do we owe them anything?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I understand how the hon. Lady seeks to argue her points and I know how strongly she feels on these issues. If one follows the line of what she has just said, it would be impossible to deport any families who are here illegally. She indicated that because someone had a child, it is not the child’s fault that the family are about to be deported; therefore the family cannot be deported. I respect her position in articulating that, but I cannot agree with it.

Anne McLaughlin (Scottish National Party, Glasgow North East)

On a point of clarification, I was not saying anything of the sort. I said that while they are here and those children have no input into the decision making, should we support them or punish them as well, because of the decisions of their parents?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Lady says that if parents who are deliberately trying to frustrate the system have children, the state should automatically continue to support them. The point of the measures is that, on the basis of remaining obstacles, support will continue for all of the family in that situation.

That is why we have the family returns process. We have assisted return, where families are actively encouraged and assisted to leave while we put the family returns process in place, which has the humane nature of supporting people to see that they return. Obviously, where there are barriers to removal, support will remain, as I have already indicated.

Simon Hoare (Conservative, North Dorset)

We have heard the hon. Member for Glasgow North East, but she has a topsy-turvy way of looking at the issue. Surely, parents have the primary duty of care for their children. The hon. Lady and the amendment seem to suggest that parents can abdicate that responsibility but expect the state to step in to have a greater level of care and concern for their children. That is loco parentis gone bonkers.

James Brokenshire (Conservative, Old Bexley and Sidcup)

My hon. Friend makes a clear point on where support should be provided. We do have duties in respect of section 55 of the Borders, Citizenship and Immigration Act 2009. Under section 55, child welfare does not require—if a failed asylum-seeker family decides to remain here unlawfully when they could and should leave the UK—that they should automatically and indefinitely continue to receive support simply because they have made a failed asylum claim. That is the nub of the argument. I appreciate that there is a fundamental difference in the Committee. I note that hon. Members are seeking to catch my eye to give way. That is the nub of the argument and it seems there is a difference on that principle.

Anne McLaughlin (Scottish National Party, Glasgow North East)

The Minister is talking about people who have barriers to returning being exception, but regardless of the arguments about whether the adult is able to make that decision, the barrier to the child returning may be the parent’s decision. In that case the child will have barriers, but will not be an exception because the parents are not seen to have barriers.

On abdicating responsibility, I thought that if a parent was deemed to do that—I am not arguing that asylum-seeking parents are doing that—the state was supposed to take over. I thought that was what the legislation that the hon. Member for South Shields mentioned was about. Is there a duty on the state to take over if responsibility has been abdicated?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I think the hon. Lady is confusing certain issues. As I have already indicated, certain obligations exist under schedule 3 and also under section 17 of the Children Act 1989. We are discussing in detail with local authorities the interrelationship between such backstop support powers and how the different regimes fit together. That needs to be done in the joined-up fashion of understanding that if families are here unlawfully, they could and should leave and there needs to be encouragement through the returns process to ensure that they do. It is in that considered way that we propose the provisions, although hon. Members may disagree with our approach. That is, however, the stance that we seek to take, given the factors I identified and the interrelationship with local authorities I indicated.

Let me turn to amendment 227, which seeks to set the level of the cash allowances given to asylum seekers at 60% of the income support rate for people aged over 25. That would raise the amount provided from £36.95 to £43.86 a week.

The cash allowance is only one element of the support package provided to ensure that asylum seekers are not left destitute. That package needs to be seen as a whole. Accommodation is provided free and comes fully furnished and equipped with bed linen, towels and kitchen utensils. Utilities such as gas, electricity and water are also provided free. Recipients receive free healthcare and schooling for their children. The cost of travel to appointments to pursue an asylum claim—to attend asylum interviews, appeal hearings and meet legal advisers, for example—is also provided separately.

Keir Starmer (Labour, Holborn and St Pancras)

Will the Minister confirm to members of the Committee who seek comfort from the fact that we have just discussed provisions that apply to asylum seekers who have exhausted their process, that we are now discussing something that applies to all asylum seekers, including, for example, a Syrian who has got to this country in the last few months by whatever means? I take into account what he said about accommodation, but in relation to the comments of the hon. Member for Glasgow North East, the rates in the package are £1.23 a week for toiletries and 69p for healthcare. Given the particular examples that she gave, which made people feel uncomfortable, perhaps Members would like to go to Boots this afternoon and see what they could get for that.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. and learned Gentleman wrapped up two points. He said that the package would apply to Syrians applying for resettlement here, but that is a separate regime. [Interruption.] He used the pejorative term of Syrians, so it is important to understand the support provided through resettlement when refugee status is accepted, because then there would be entitlement to mainstream benefits. We are talking about the mechanism for those of all nationalities who have claimed asylum in the country but whose claims have not yet been determined.

Keir Starmer (Labour, Holborn and St Pancras)

The Minister will know that I deliberately did not give that example. I said a Syrian who had arrived in this country from Europe or somewhere—not on the package. Any Syrian who is now in Europe and arrives in this country not under the resettlement regime will come on to this regime. That is the example I was giving.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am grateful to the hon. and learned Gentleman for that clarification, because he had not given that clarity initially and it is important to understand the different regimes that operate for those with refugee status and for someone who has come here and claimed asylum. It is helpful that he explained his intent. That is why I said what I did about how asylum support rates are intended to operate for all nationalities of people claiming asylum in this country.

I come on to the second point about the amount of cash, having already indicated to the Committee all the other support mechanisms provided to those seeking asylum fairly and appropriately. The cash amount is provided with reference to a specific legal test set out in section 95 of the Immigration and Asylum Act 1999. The allowance is there to cover what is described as “essential living needs”.

The Home Office reviews the level of the cash allowance each year but the way that review is conducted changed in 2014. Following a judicial review, the Home Office put in place a new assessment methodology designed to give full effect to the findings of and the valuable guidance given by the court. It is important to understand how the rates are set in the context of what the court said and the guidance that it provided. First, a careful assessment is made to identify all needs that are essential and not covered through some other part of the package.

The needs identified in this way are: sufficient food to eat healthily, adequate clothing, provision to cover toiletries, household cleaning items and non-prescription medicines, sufficient provision for travel and communications for everyday purposes and to maintain interpersonal relationships and a minimum level of participation in social, cultural and interpersonal relationships. That is a term of art and an essential need identified by the court. Having identified all these particular needs, an assessment is made of how much money is required to meet each of them. This is done through a mixture of market research into the cost of the particular items and analysis of Office for National Statistics data about expenditure on the items by people in the lowest 10% income group of the UK population. This approach resulted in the allowance for a single asylum seeker being set at £36.62 per week in 2014, rising to £36.95 per week from April 2015. In 2015 we also decided that providing £36.95 for every person in the household—in other words for the asylum seeker and each dependant—would be sufficient to cover the essential living needs of all family groups. This is because of the economies of scale available to large households and is an approach taken by other European countries as well.

I recognise that many organisations representing asylum seekers and children disagree with the changes, but none of these groups has provided detailed evidence to show that the findings of the review are wrong.

Paul Blomfield (Labour, Sheffield Central)

The Minister referred to ONS data in his justification for the formula that the Home Office uses. He will acknowledge that the Home Office deliberately reduces the sum calculated as essential by the ONS in several key respects, for example for clothing. How does he justify that?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am looking at a letter sent out in July at the time of the consideration of the review and there are some adjustments. I am looking at an adjustment in relation to food and non-alcoholic drinks which was set under ONS expenditure data in 2013 but was increased after reasonable adjustment. So there is no mindset of trying to adjust down, but of seeking a fair and appropriate approach in respect of the attributable costs.

Paul Blomfield (Labour, Sheffield Central)

The Minister’s point about food is of course right. Clothing goes in the other direction. If we look at all the essential living needs, the ONS data would suggest that a level of £40.47 was appropriate, which the Home Office has downgraded to £36.95. Is that not the case?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman was seeking to impute that there was a preordained mindset to adjust everything down. I have already given him an example where there has been an adjustment up. It is that fair assessment, subject to reasonable adjustment, based on the twin tests of ONS data and market research data on costs, which produces the figure. I say to him again that concerns have been expressed by various groups representing asylum seekers and children, but none has provided detailed evidence to show that the findings of the review are wrong. We will continue to assess, we will hold a further review of the allowance levels for 2016 and we would welcome detailed evidence and submissions about the level of the allowance. That is the right forum to address any perception that the allowances are not adequate.

We also do not consider that seeking to apply this to a level under income support is appropriate. It is not referencing the essential living needs test. This was debated by the other place on 27 October, when a motion to annul the regulations that implemented the findings of the most recent review was rejected. I recognise that there are differences of view on this but, on this detailed analysis, on some of these specific items, I would welcome further submissions to show whether the evidence that has been presented to us needs further reflection. Obviously we would consider that in setting the levels for 2016, but I urge that the amendment be withdrawn.

Keir Starmer (Labour, Holborn and St Pancras)

The two amendments go to the heart of one of the most important provisions. On the withdrawal of support from certain categories, I will not rehearse the powerful argument showing that all the evidence says that this will not achieve the desired objective and in all likelihood will push people into destitution and exploitation. That is why it is such a fundamental issue.

A lot has been said already about the daily rates. It is true that the food and non-alcoholic drink rate is up from the ONS data to £24.96. That is just over £3.50 per day for the very many weeks and months that it takes for a decision to be made about someone who is seeking asylum and may have come from any number of countries, fleeing persecution. All the other rates that have been adjusted, have been adjusted down.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Not true.

Keir Starmer (Labour, Holborn and St Pancras)

All the others that have been adjusted have been adjusted down. Some have not been adjusted. I will happily take an intervention if I am wrong about that. Clothing and footwear has gone down from £4.62 to £2.51, and travel from £3.62 to £3. That is 45p or so a day for travel. I do not know in which city people are expected to live for these weeks or months, but travelling for 45p a day is not an easy task. There are not many bus fares that can be bought for that even in one direction. On those adjustments down, the question that my hon. Friend the Member for Sheffield Central put was not whether this was a preordained decision but whether that downward trend could be justified. That question was not answered.

The amendments go to the heart of this part of the Bill and I will press them to a vote.

Keir Starmer (Labour, Holborn and St Pancras)

I beg to move amendment 228, in schedule 6, page 100, line 16, at end insert—

‘(43A) The Immigration Act 1971 is amended as follows.

(43B) After section 3(9) (general provisions for regulation and control) insert—

“(10) In making rules under subsection (2), the Secretary of State must have regard to the following.

(11) Rules must provide for persons seeking asylum, within the meaning of the rules, to apply to the Secretary of State for permission to take up employment and that permission must be granted if—

(a) a decision has not been taken on the applicant’s asylum application within six months of the date on which it was recorded, or

(b) an individual makes further submissions which raise asylum grounds and a decision on that fresh claim or to refuse to treat such further submissions as a fresh claim has not been taken within six months of the date on which they were recorded.

(12) Permission for a person seeking asylum to take up employment shall be on terms no less favourable than those upon which permission is granted to a person recognised as a refugee to take up employment.””

Sarah Champion (Labour, Rotherham)

I would like to build on my hon. and learned Friend’s well made argument. I thank the Regional Asylum Activism Project for Yorkshire and Humberside for their help.

Despite often arriving in the UK with a host of skills and experiences gained in their country of origin, hardly any asylum seekers are allowed to work while their claim is being assessed by the Home Office. Only asylum seekers who have waited over 12 months for an initial decision on their case are eligible to apply for permission to work, but even those granted permission to work are not allowed to work in a self-employed capacity, set up a business, or take up a job that is not included on the highly specialised shortage occupation list. The current restrictions on accessing employment for people seeking refugee protection stops many highly skilled, experienced and educated individuals from contributing to the UK’s economy and society. For example, refugees started Marks & Spencer and brought us fish and chips and the Mini. People seeking refugee protection today will include, among many others, entrepreneurs, doctors, nurses, engineers, teachers, scientists and solicitors. Fundamentally, allowing asylum seekers to work will make economic, social and political sense.

First, on economics, if asylum seekers were granted permission to work, they would be able to contribute to the UK economy immediately through income tax, adding directly to the UK’s coffers. Equally, amounts spent on asylum support would decline, resulting in a net benefit to the economy. That has been recognised by the European Commission, which states:

“Mandatory unemployment… imposes costs on the State through the payment of additional social welfare payments.”

Government research has also recognised that delayed entry to the labour market, loss of skills and confidence, and difficulty getting qualifications recognised in this country can cause problems even when status is granted, leading to high levels of unemployment and underemployment. Allowing people to work while waiting for their asylum claim decision will not only allow them to start rebuilding their lives free from persecution, but allow them to start the journey towards meaningful employment as soon as possible.

Secondly, the indirect costs of enforced poverty are significant. Without the right to work, people in the asylum system are forced to rely on Government support to survive, but with asylum support rates set at £5.28 a day—barely 50% of the income support equivalent—many in the asylum system are forced into institutionalised poverty. As I and other hon. Members have said, extended periods living in poverty have huge impacts on physical and mental health and self-esteem. For some, a reliance on Government support is considered shameful, as they are unable to support themselves and their families; that concern has been raised by the cross-party parliamentary inquiry into asylum support for children and young people. Research from the University of Leeds and the University of Salford found that the experience of poverty was a key factor in pushing many individuals in the asylum process into exploitative and precarious working conditions. I suggest that providing those in the asylum process with the legal permission to work is in line with the Government’s commitment to ending modern day slavery.

Thirdly, the rationale for the current policy does not hold up. The reasons for restricting permission to work for asylum seekers hinge on the idea that it will act as pull factor, but it is important to remember the conclusions of research the Home Office commissioned in 2002:

“There was very little evidence that the sample respondents had a detailed knowledge of: UK immigration or asylum procedures; entitlements to benefits in the UK; or the availability of work in the UK.”

That was confirmed by a review of the 19 main recipient countries for asylum applications in the OECD in 2011, which concluded that policies that relate to the welfare of asylum seekers did not impact on the number of applications made in destination countries. All but one of the countries that granted permission to work to people seeking asylum received fewer asylum applications than the UK in 2012 and 2013.

A change of policy to allow asylum seekers the permission to work is long overdue. In 2007, the Joint Committee on Human Rights described the denial of the right to work for asylum seekers as part of a “deliberate policy of destitution”, which was breaching human rights. In 2013, the cross-party parliamentary inquiry into asylum support for children and young people called for parents and young people to be given permission to work while their claims were being decided. Thirteen local authorities have passed motions condemning the destitution of people seeking asylum. To date, 71 current Members of this House, of all political persuasions, have signed Still Human Still Here’s declaration on permission to work. They join the Trades Union Congress and a broad coalition of organisations, from Refugee Council to Crisis, Doctors of the World to The Children’s Society, in their call for people seeking refugee protection to be allowed to live in dignity, not destitution.

Allowing asylum seekers permission to work will enable many to support themselves through the asylum process. We should grant permission to work to all asylum seekers if they have been waiting more than six months for an initial decision, up until their protection needs are recognised or a safe route back to their country of origin has been negotiated. For this reason, I urge the Minister to support the amendment.

James Brokenshire (Conservative, Old Bexley and Sidcup)

This is clearly a debate that has been going on for some time. I know there are differences of opinion on the time period that should or should not operate for those who have claimed asylum in this country. The amendment would radically change existing permission to work arrangements for asylum seekers, allowing permission to work where an asylum claim is still outstanding after six months instead of 12 months, removing the caveat that any delay must not be of the asylum seeker’s own making and lifting all restrictions on the type of employment available. Those are the three elements that have been advanced by Opposition Members.

The amendment would enable persons to take any employment of their choice, rather than be restricted to those on the shortage occupation list published by the Home office. The arguments made were initially about compliance with some of our EU obligations and what other EU partners are doing—I will come on to that—and then, separately, what those who are working could contribute. Also, some evidence was adduced on whether permission to work is a pull factor. Let me deal with each in turn.

On the issue of the EU, our current position is consistent with our obligations under the EU reception conditions directive, which sets out the minimum benefits and entitlements afforded to asylum seekers while they await a decision on their claim. That is reflected in part 11B of the immigration rules, but we decided not to opt in to the recast reception conditions directive requiring member states to grant automatic access to the labour market for asylum seekers after nine months, regardless of a decision at first instance being taken, because we considered the Commission’s proposal could undermine our asylum system by encouraging unfounded claims from those seeking to use the asylum system as a cover for economic migration.

It is important to understand that asylum claims cover a range of different circumstances and scenarios. Someone might have claimed asylum at their point of arrival, or been smuggled into this country and then claimed asylum. Someone may already be in the UK, having come via a lawful route, and circumstances change in their home country, so they might claim asylum, or they simply seek to stay here and they use an asylum claim as a means of extending their stay in this country. Sadly, that is the reality of some of the asylum claims that we seek to respond to within the system.

The amendment poses a challenge. Should we be taking steps that are more consistent with our EU partners? I think that in the UK it is right that we should form our own decisions, based on our assessment of our asylum system and what we judge is in the best interests of this country, while supporting the processing and the proud tradition that we have had in this country of granting asylum in this country.

On the labour market issues, an argument was advanced in the context of the asylum support budget, but that argument does not take into account the potential to open up the resident labour market in a way that could blur the distinction between economic migration and asylum. I genuinely worry about measures that blur that distinction. People could apply for asylum but not engage with the process, with the deliberate intent of delaying the process so that they can then be granted the benefit of being able to work after the end of the six-month period. We are concerned that this may lead to an increase in asylum applications that would divert valuable resources away from ensuring that those genuinely in need of protection are recognised quickly, enabling them to integrate and begin rebuilding their lives. That is the approach that we have taken in seeking to ensure that the processing of asylum claims is much better than it was when this Government came in.

A great deal of attention has been given to the administration of asylum claims, to the extent that the Government made a public commitment to decide all straightforward asylum claims lodged before 2014 by 31 March 2015, and all straightforward claims lodged after 1 April 2014 within six months. We have met that commitment. We have changed the approach. We are actually dealing with straightforward asylum claims in a more efficient manner, so that they are not languishing and being extended, and about 85% of cases are straightforward.

Paul Blomfield (Labour, Sheffield Central)

If that is the case, presumably the amendment presents no risk or significant worry to the Government. Does the Minister accept that the longer somebody is out of the labour market, the more difficult it is for them to integrate—to get back into the labour market, to contribute to society and so on? Is there not an assumption of failure or refusal underlying the Government’s position, when in fact a very large number of asylum applicants are successful and we all share the objective of seeing them successfully integrate into the labour market?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman makes the point that I was underlining about the need to see that asylum claims are processed as efficiently and effectively as possible. However, I do think that the amendment would blur the lines and might well lead to spurious or inappropriate asylum claims being made, perhaps by people already in this country coming to the end of their stay, whether they came as visitors, students or via other routes. That is a real challenge. The amendment would undermine the integrity of what we all believe in: providing protection to those who are fleeing persecution, ensuring that we have a system that is efficient, effective and focused on making those decisions and seeing that people receive support as recognised refugees at the earliest opportunity. It risks more claims, of whatever character, being made.

We also have to bear in mind the resident labour market. It is argued that if you give an asylum seeker the right to work, you are, in essence, denying a job to someone who is already living in this country lawfully. Because of the implications of that we judge that it is right to have a system that recognises that if there is delay—we judge that 12 months is the right period—people can work, but they should not be seeking to frustrate or delay the system; that test has to be captured as well. It is about shortage skills, those that are needed. That is why the focus is there, otherwise we get into a blurring of issues in relation to economic migration. We must do our utmost to ensure that people in this country who have the skills and the ability are able to access the job market.

Sarah Champion (Labour, Rotherham)

I hear the Minister’s argument. Does he know—if he does not, perhaps he will write to us—the average length of time that an asylum claim takes? From the casework that I get, it seems to be considerably more than 12 months normally, so does his argument stack up? What is the difference between six months and 12 months if the average is 18 months?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I can tell the hon. Lady that 85% of cases are straightforward and we have a service standard of dealing with those within six months. We dealt with a big backlog earlier this year—that is why I make the point about the effort that has gone in. Many people in the asylum processing system will say that asylum processing is probably in as good a place now as it has been in for many years, but of course I look for further improvements; we do not sit back. Equally, it depends on some of the pressures in terms of changes or increases in the numbers of those who are claiming asylum. We are very vigilant in monitoring how we are dealing with this. I can say to the hon. Lady that 85% of cases are straightforward and that our service standard is to deal with those within six months. Obviously, it is difficult to know what proportion of the people in her constituency may be in the situation she describes; it is difficult to draw that parallel. However, I hope that it is helpful at least to set out the approach that we are taking and that balance in terms of how asylum claims are dealt with.

We judge that the current policy strikes the right balance. Asylum seekers are provided with support and accommodation, but if their asylum claims are undetermined for 12 months for reasons outside their control, they can apply for permission to work. We believe that that is a fair and reasonable policy that we should keep. For the reasons that I have outlined, we ask that the amendment be withdrawn.

Keir Starmer (Labour, Holborn and St Pancras)

The Minister puts forward a number of good reasons for the decisions to be made within six months and prays in aid the service standard, which is to be supported, but the real question is: how many cases are actually decided within the service standard? We all have examples of where they are not. We know that the number is roughly 3,600. I am sure that the Minister did not welcome the ombudsman’s report published this morning, or at least reported on this morning, about the very high level of complaints upheld by the ombudsman, particularly in relation to immigration decision making. That does not mean that things are not moving in the right direction, but it does mean that very many cases are not decided within the six-month period.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The point that I was making about the service standard for dealing with the 85% of cases that are straightforward was that that has been met. I do not know whether that is helpful to the hon. and learned Gentleman in relation to his point.

Keir Starmer (Labour, Holborn and St Pancras)

I am grateful to the Minister for that, but it still leaves outstanding the 3,600 cases in which people have not had their decision made within the six-month period. The Minister says that there is a concern that if there is a change in the current regime to a six-month regime, that may lead to adverse consequences, but as I understand it, that is simply unevidenced. Whatever research has been carried out in this area, it is unevidenced. It is a fear, but it is an unevidenced fear. The reason why I cited the EU provisions was not so much to argue that we should necessarily align ourselves with the EU position and should not take our own position as it was to say that it is much more difficult to make the argument that a six-month regime would operate as a pull factor if other countries are operating that regime at the moment.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Will the hon. and learned Gentleman accept that the evidence that has been cited is from prior to the current migration crisis and that many EU countries are reflecting on their support and other mechanisms for providing asylum, precisely because of a number of these factors?

Keir Starmer (Labour, Holborn and St Pancras)

I do accept that, although I think that anyone in this Committee would be hard-pressed to say that the migration crisis of this summer was linked in any way, shape or form to whether someone could work after six months or after 12 months.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The reason why I intervened on the hon. and learned Gentleman was that his hon. Friend the Member for Rotherham, I think, had alluded to the timing of the reports. The point that I was trying to get across—I will make it briefly in this intervention—was that, sadly, we do see people traffickers, through social media and other means, seeking to set out the position of certain member states and what people are entitled to and, in a very deliberate way, encouraging people to try to come to other European countries.

Anne McLaughlin (Scottish National Party, Glasgow North East)

Will the Minister take an intervention?

Keir Starmer (Labour, Holborn and St Pancras)

The Minister was intervening on me. I take that intervention; I have no quarrel with it in any way, shape or form. This is an important point, because there is a real fairness and justice in allowing people to work if they want to work, rather than surviving on £5 a day. Most people would agree on that. The concern expressed by the Minister is that if the period is too short, it can have adverse consequences, which is a serious point that needs to be debated.

Paul Blomfield (Labour, Sheffield Central)

My hon. and learned Friend will note the enthusiasm with which the Minister is intervening on him. Does he share my hope that the Minister might intervene to provide some more evidence regarding the pull factor? In his earlier comments, the Minister said he would outline exactly why the Government thought that was not the case, but he has conspicuously failed to do so. Now would be a good opportunity for him to do that.

Keir Starmer (Labour, Holborn and St Pancras)

In fairness, knowing the Minister, I think that if there was a sound evidence base, he would have referred to it already and the fact that he has not speaks volumes. There has obviously been a discussion about the migration crisis this summer and the impact—

Peter Bone (Conservative, Wellingborough)

Order. I am sorry to interrupt, but I thought it might be useful to the Committee—I did say this right at the beginning—and particularly for new Members to say that Members are not restricted to one speech. As this debate has developed, if more Members want to catch my eye, that is quite appropriate.

Keir Starmer (Labour, Holborn and St Pancras)

Thank you, Mr Bone.

Clearly, as a result of what has happened this summer, there will be discussions about all aspects of the framework across the EU in relation to migration, but at this point, I was only praying in aid the EU provisions to counter any suggestion that the change proposed in the amendment would act as a pull factor when so many other countries in Europe have operated a different system for some time. In the crisis this summer, although there may be individual examples of traffickers exploiting pretty well every provision that they are capable of exploiting, I would have thought that the vast majority of cases had absolutely nothing to do with whether people can work after six or 12 months.

Peter Bone (Conservative, Wellingborough)

I am not entirely sure whether the shadow Minister is pressing the amendment to a Division.

Keir Starmer (Labour, Holborn and St Pancras)

I do apologise, Mr Bone. That is because I did not say one way or another, but I will press the amendment. I am grateful for the steer.

Schedule 8 - Maritime enforcement

James Brokenshire (Conservative, Old Bexley and Sidcup)

I beg to move amendment 105, in schedule 8, page 107, line 34, leave out sub-paragraphs (ii) and (iii).

Peter Bone (Conservative, Wellingborough)

With this it will be convenient to discuss Government amendments 106 to 112.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Amendments 105 to 112 are technical corrections to the drafting of the Bill. I will provide a brief explanation.

The lead amendment makes minor drafting changes by omitting the unnecessary alterations to the conjunctions in section 25B(3) of the Immigration Act 1971. Amendment 106 makes a minor amendment to correct the reference to which paragraph requires amending. Amendment 107 ensures that immigration officers must seek authorisation from the Secretary of State before exercising the maritime powers in relation to a foreign ship, or a ship registered under the law of a relevant territory, within UK territorial waters adjacent to Northern Ireland. That aligns the provision with the equivalent provisions applicable to UK territorial waters adjacent to England, Wales and Scotland. Amendment 108 removes the superfluous definition of “home state” and has no substantive effect. Amendments 109, 110, 111 and 112 are all minor drafting changes to ensure consistency of language throughout the schedule.

Keir Starmer (Labour, Holborn and St Pancras)

I beg to move amendment 229, page 109, line 35, in schedule 8, at beginning insert—

‘( ) Hot pursuit can only be commenced when a ship is in United Kingdom waters.”

James Brokenshire (Conservative, Old Bexley and Sidcup)

The right of hot pursuit from territorial waters into international waters has long formed part of UK common law and reflects the provisions in article 111 of the UN convention. The Bill preserves the common law position by virtue of new section 28P(10) of the Immigration Act 1971, inserted by schedule 8. I can therefore confirm that under the maritime powers in the Bill, hot pursuit will commence only when a ship is in territorial or internal waters, as permitted by article 111 of the UN convention. In the light of that assurance, I hope the hon. and learned Gentleman is minded to withdraw the amendment.

Keir Starmer (Labour, Holborn and St Pancras)

I am, and beg to ask leave to withdraw the amendment.

Keir Starmer (Labour, Holborn and St Pancras)

I beg to move amendment 236, in schedule 8, page 113, line 29, at end insert—

“(3A) If in the course of questioning or otherwise a person expresses to or in the presence of an immigration officer, a fear of return that may be a claim for asylum then the person shall be taken to the UK for that case to be considered.”

Peter Bone (Conservative, Wellingborough)

With this it will be convenient to discuss the following:

Amendment 237, in schedule 8, page 118, line 7, at end insert—

“(3A) If in the course of questioning or otherwise a person expresses to or in the presence of an immigration officer, a fear of return that may be a claim for asylum then the person shall be taken to the UK for that case to be considered.”

Keir Starmer (Labour, Holborn and St Pancras)

I will deal with the amendments in the group together, as amendments 237 and 238 would simply apply the provisions of amendment 236 to Scotland and to Northern Ireland. Again, it may be that the Minister’s remarks mean that there is no need to press the amendment.

Our concern is that the powers in the schedule for immigration officers to detain or search those found on boats in UK territorial waters should not be used to push back asylum seekers arriving by boat. As things stand, claims for asylum can be made in UK territorial waters, and if made are dealt with in accordance with the appropriate procedures. There is a wealth of support for that remaining the position. The amendment is probing, and if the Committee is given an assurance on the issue I have raised, I may not need to cite that great wealth of support.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I will give a brief response to the hon. and learned Gentleman’s probing amendment. The powers in the Bill do not permit officers to turn vessels back. Under the power, vessels may be diverted only to a port in the UK. Upon arrival in the UK an individual wishing to claim asylum may do so and will be processed in the ordinary way. As is the case for all persons arriving in the UK, they will be subject to an immigration examination under the Immigration Act once they have arrived on land, and may also be detained under relevant provisions pending an immigration decision. If they are assessed as being an illegal entrant or attempted illegal entrant, they will be processed under paragraph 9 of schedule 2 to the 1971 Act, and removed accordingly.

Keir Starmer (Labour, Holborn and St Pancras)

I am grateful to the Minister for that assurance. What he has just said will appear on the record of the proceedings in Committee. In those circumstances, I beg to ask leave to withdraw the amendment.

Schedule 8 - Maritime Enforcement

Keir Starmer (Labour, Holborn and St Pancras)

I beg to move amendment 230, in schedule 8, page 114, line 9, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

Albert Owen (Labour, Ynys Môn)

With this it will be convenient to discuss the following:

Amendment 233, in schedule 8, page 114, line 22, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

Robert Buckland (Conservative, South Swindon)

On a point of order, Mr Owen. This morning I assured the hon. Member for South Shields that a letter would be written. It has indeed now been sent to you and Mr Bone. I hope that that will answer some of the queries that she raised in debate some sittings ago.

Albert Owen (Labour, Ynys Môn)

I am grateful to the Minister.

Keir Starmer (Labour, Holborn and St Pancras)

This is a daunting number of amendments, but most relate to extensions with respect to Scotland, Northern Ireland and Wales.

There are three substantive points. First, as the background to amendment 230, schedule 8 inserts new schedule 4A into the Immigration Act 1971. It covers enforcement powers

“exercisable by immigration officers, English and Welsh constables and enforcement officers”

in relation to ships. We spoke this morning about the power to stop, board, divert and detain a ship, and about the power to search and obtain information under new paragraph 3. Under new paragraph 3(2) the “relevant officer” may search

“the ship; anyone on the ship; and anything on the ship”.

The provision to which amendment 230 relates is new paragraph 3(8), which states:

“A power conferred by this paragraph may be exercised on the ship or elsewhere.”

“Elsewhere” is obviously widely defined. There is a power to search the ship and anyone or anything on it, which suggests that it is ship-focused, but sub-paragraph (8) is open-ended and provides for a power to search on the ship or anywhere. To some extent the amendment may have a probing function to enable us to understand the reasoning behind the provision, but our concern is that the power is very broad and we seek assurance that it is not intended that the power under the schedule could be exercised literally anywhere, at any time.

Secondly, to give the context to amendment 239, new paragraph 4 deals with the power of arrest and seizure; new paragraph 5 is on protective searches of persons—searches that can be made of individuals to seize and retain items; and new paragraph 6 deals with searches for nationality documents.

Then comes new paragraph 7, which is odd. The “relevant officer” appears pretty well through the Bill and is the officer with the relevant powers, training, duties and so on. New paragraph 7(1) provides for assistants:

“A relevant officer may…be accompanied by other persons”.

Then sub-paragraph (2) creates a very broad power:

“A person accompanying a relevant officer under sub-paragraph (1) may perform any of the officer’s functions under this Part of this Schedule, but only under the officer’s supervision.”

If that means what it says, anybody can exercise powers of search, including searches of people, and other powers without the need for any of the normal training and safeguards around the exercise of that power. On the face of it, simply anybody with the officer who is deemed to be an assistant can carry out all of these functions. That is an extraordinarily wide power. I do not think that exists in other areas of the law. Designating someone as an assistant in that way certainly does not exist in relation to police officers or other enforcement officers. That is a very broad power.

Thirdly, on amendment 242, we turn again to page 116 and the same set of provisions:

“A relevant officer is not liable in any criminal or civil proceedings for anything done in the purported performance of functions under this Part of this Schedule if the court is satisfied that—

(a) the act was done in good faith, and

(b) there were reasonable grounds for doing it.”

That is a very wide-ranging immunity which is as broad as anything I have ever seen. If, heaven forbid, there were a fatality when someone was being held or searched or force was used—as has tragically happened in immigration cases—this would exempt from any criminal or civil proceedings anyone acting in good faith with reasonable grounds, notwithstanding the other common law and statutory defences that would be available. On the face of it, that would prevent a court looking into the exercise of these powers. That is obviously a deep cause for concern. Although there are many amendments, those are the three core issues that run through the set.

Gavin Newlands (Scottish National Party, Paisley and Renfrewshire North)

We can all agree that we do not want to see anyone attempt to gain illegal entry into the UK by means of being smuggled in an overcrowded boat or vessel. Ensuring that immigration officials have the proper power to carry out their important duties is important not only in terms of enforcing our immigration control but with regards to increasing safety at sea.

That said, part 6 and, in particular, schedule 8 introduce a raft of new powers for immigration and maritime officers. It is only right and proper that we scrutinise those powers appropriately to ensure that the proper powers are being introduced to the correct officers and that they balance appropriately with the liberties that people are entitled to. I am not convinced that these provisions in their current form meet that aim and balance the equipping of immigration officers with the power that they need with ensuring that they treat international citizens with the respect that they deserve. Therefore, the aim of the amendments is to strike that balance between protecting an individual’s liberty and human rights and giving Home Office officers sufficient, important powers to carry out their duties. I accept that this is a difficult balance for the Home Office to strike.

We should be concerned about the regular use of the word “elsewhere” throughout this section of the Bill and what that implies. This in particular relates to the searches that will be conducted into the personal lives of individuals. In earlier sittings of the Committee, we have spoken about the dangers of speculative searches and the Home Office’s poor track record on completing them. I will not repeat the arguments already made but I will stress that these searches could have a significant and deteriorating impact on community relations and social cohesion.

Amendments 239, 240 and 241 make the point that, regardless of what happens with the Bill and the form it ends up taking, regardless of what law is finally passed, we all need to be sure that we have fully trained, capable and appropriate individuals carrying out the checks and enforcement that the law will demand. They will have powers of arrest without warrant, search, arrest and seizure. The Bill proposes that persons wholly unspecified may be able to carry out all these powers without limitation, under supervision of an immigration officer. Any powers under these provisions should be exercised by immigration officers alone. The amendments will ensure that the Home Office has the appropriate immigration officers carrying out the proper checks. The power and functions relating to this section of the Bill are wide and varied, including arresting without warrant, seizing property and conducting searches. The implications for the individuals concerned are so severe that these functions must be exercised by fully trained immigration officers. There is no excuse for them not to be.

The responsibilities of immigration officers who are operating at sea are arguably more demanding than those who are operating on land. Not only do they have to be qualified in immigration law, but they have to be experienced at dealing with ships at sea. This is an extremely important point. Safety concerns are at stake and I again make the point that we cannot make a half-hearted attempt on who we delegate these powers to. Schedule 8 may not have been one of the most widely discussed provisions in the Bill, but that should not distract our attention from it. Events over the summer have highlighted the danger that exists in trying to gain asylum through a vessel of some sort. Schedule 8 grants officers the

“Power to stop, board, divert and detain”

ships for immigration offences. Safety concerns arise in that regard and therefore careful consideration should be given to the schedule and the amendments that have subsequently been proposed.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I hope that, with our clarifications and assurances, hon. Members will realise our purpose and intentions. We are taking the power because of a gap in the law. Until now, there has been a small number of relatively isolated incidents involving suspected facilitation in UK territorial waters. However, those incidents illustrate a gap in the legislation. Border Force officers currently have no powers to act unless the vessel is also of customs interest. In those circumstances, they have to pass the information to immigration officers on land and monitor the vessel’s movements while it remains at sea.

We judge that that gap in the law needs to be addressed to reflect the difference between powers that could be exercised for customs purposes and powers that could be exercised for immigration purposes. It is an issue if the powers cannot be exercised in the context of a vessel that is considered to be smuggling people rather than contraband, given the risk that organised crime groups, as we are seeing elsewhere, may over time seek to smuggle in a different way. The purpose of the schedule is to be prepared and to have the right legislative framework in place to be able to respond to any such risk in UK territorial waters.

Amendments 230 to 235 seek

“To limit the maritime search powers under the Bill to the ship, the port and as conveniently as possible thereafter”.

The amendments raise concerns, as the hon. and learned Gentleman, the shadow Minister, and the hon. Member for Paisley and Renfrewshire North have highlighted, about whether the powers could be exercised anywhere on land. For ease, I will simply refer to the part of the schedule that deals with England and Wales, but I assure hon. Members that the same provisions equally apply, in certain other aspects of the schedule, in respect of waters adjacent to the coasts of Scotland and Northern Ireland.

The power to search in paragraph 3 of new schedule 4A only applies to a search of the ship, anyone on the ship and anything on the ship, as the hon. and learned Gentleman highlighted. The Bill does not limit where the power may be exercised in order to ensure that there are no gaps in the power. He was rightly probing and testing as to the intent of the term “elsewhere”. In part, it ensures that there is provision to arrest a person should they jump overboard to evade enforcement officers. Given the nature of the powers that we are seeking to provide, that could be entirely possible, whether they jump into the water or, if the vessel is in more inland waters, on to land. We need to be able to ensure that the provisions are operable in those circumstances. That will not be possible if the provision is limited to a ship or a port. I reassure the Committee that the test in paragraph 3(1) of new schedule 4A to the Immigration Act 1971 connects the exercise of the powers with suspicion regarding the ship. I hope that that connection may be helpful in giving an understanding of what we are trying to get at here.

Keir Starmer (Labour, Holborn and St Pancras)

This is in the nature of a probing intervention to ensure that I understand the Minister. The search is constrained by new paragraph 3(2) and I understand the reasoning, but there is no power of arrest in the paragraph; there is only a power of search. So sub-paragraph (8) would not help in the circumstance where someone jumps overboard and needs to be arrested. If someone jumped overboard, they could only be searched. I am probing because I do not quite understand the logic, but it may be that I am not quick enough.

James Brokenshire (Conservative, Old Bexley and Sidcup)

That is connected to sub-paragraph (3), which states:

“The relevant officer may require the master of the ship, or any member of its crew, to take such action as is necessary for the purposes of sub-paragraph (2)(c).”

Obviously, the officer would require the ship to be taken to a port. That is connected to the ability to search, as the hon. and learned Gentleman has highlighted. There may be circumstances, for example, in which someone jumps off a ship and is rescued by officers where a search may be appropriate under the exercise of that power. We are trying to cover such circumstances. I recognise that he is fairly seeking to probe on that, and I hope my answer is helpful.

Amendments 239 to 244 would ensure that only the officers specified in the Bill can use the powers, and would remove the protection of officers from personal, criminal and civil liability. I will address those two points separately. The provision permitting powers to be exercised by accompanying officers reflects existing powers under other legislation—most notably, the powers recently considered by the House in the Modern Slavery Act 2015. The extension of powers to assistants also exists in general for those working alongside customs officers under section 8 of the Customs and Excise Management Act 1979.

In my opening comments I sought to explain the arrangement that Border Force officers have responsibility for revenue protection, as well as for the border, and they utilise those powers when they are on board cutters. We have therefore sought to ensure that there is no mismatch between customs powers and immigration powers. Other examples in the maritime context include paragraph 5 of schedule 3 to the Criminal Justice (International Co-operation) Act 1990, concerning powers to combat drug smuggling.

The reason why such powers may be given to assistants is not to permit untrained individuals to exercise those powers, but to ensure effective joint working with partner agencies that have at least a basic level of law enforcement training. The measure permits officers from partner organisations who may be working alongside enforcement officers, such as fisheries inspection officers, to assist immigration officers. It is important to emphasise the requirement that such persons must still be supervised.

On the protection of officers against civil and criminal liability, the measure extends only to personal liability; it does not prevent a claim for which an employer may be vicariously liable. When a court considers that officers have acted in good faith and that there were reasonable grounds for their actions, we think it is right from a public policy perspective that they are not held personally liable for carrying out their duties and acting in good faith. There are many other examples of where law enforcement officers are given equivalent protection. I understand that the principle has long been part of English law—prior to this sitting, the Solicitor General and I were discussing that it can be traced back to section 6 of the Constables Protection Act 1750, which I am assured remains in force today. Members may not have anticipated that they would be referring back to certain legislation in Committee, but the Solicitor General has come across the 1750 Act, which I underline.

With those reassurances, I hope that the hon. and learned Member for Holborn and St Pancras will recognise that the measure is not an extension of the law but builds on existing legislative practices and principles. I therefore ask him to reflect on what he fairly said are probing amendments to gain a better sense of our intent and the purpose and nature of schedule 8. I hope that he is minded to withdraw his amendment.

Keir Starmer (Labour, Holborn and St Pancras)

I am grateful to the Minister for those assurances. I wonder aloud how long that immunity provision, however long-standing it is, can survive. The idea that people are immune from criminal law in that way is hard to reconcile with later legislation, but that is a much bigger argument than the one we are having now. I beg to ask leave to withdraw the amendment.

Clause 38 - English language requirements for public sector workers

Robert Buckland (Conservative, South Swindon)

Clauses 38 to 45 deal with the question of English language requirements for public sector workers.

I will deal with the subsections of clause 38 in turn. Subsection (1) sets out the requirement for public authorities to ensure that each of their workers in customer-facing roles speak fluent English. I know you will have an interest in this, Mr Owen: clause 43 provides specifically that where there are statutory duties in Wales, the requirement includes fluency in English and in the language of heaven. All members of the public who access public services need to be able to understand the information provided and be confident that their needs are thoroughly understood. Ensuring that that is the case will not only create better and more efficient services for taxpayers but will contribute to meeting our manifesto commitments to promote British values, in a positive and appropriate way.

Subsection (2) will require all public authorities to have regard to a code of practice when deciding how to comply with the duty set out in subsection (1). Of course, public authorities will have an opportunity to help shape that code of practice by responding to the open consultation that has been live since 13 October and will run until early December. Copies of the consultation documents have been placed in the Library of the House.

Subsections (3) and (4) will require each public authority to operate a complaints procedure. Citizens must, of course, be able to report their experience of a customer-facing worker not speaking fluent English. Public bodies must consider and respond to those complaints.

Subsections (5), (6) and (7) explain that a worker in the scope of the duty will be someone working under a contract of employment or of apprenticeship with a public authority, as a contractor to do work personally for a public authority, as an agency worker or as a police officer, civil servant or member of the armed forces. Speaking with members of the public must be a “regular and intrinsic part” of their role.

Keir Starmer (Labour, Holborn and St Pancras)

There is some concern that such a clause could operate in a discriminatory manner, with complaints and assumptions being made about what is fluent English and who is able to speak fluent English. Will the Solicitor General give an assurance that effective measures will be put in the code or elsewhere to ensure that any potential discriminatory effects and consequences are mitigated or eliminated?

Robert Buckland (Conservative, South Swindon)

I can give the hon. and learned Gentleman several assurances. First, in assessing the potential discriminatory impact of the clause, the consultation process is an important part of allowing Government to understand precisely what the pressures might be. I also assure him that the standards of fluency will be assessed by the employer. The draft code of practice already contains welcome indicative standards for what various qualifications mean in terms of English fluency. Therefore, within the interview and selection process, there will be systems in place that can be deployed to deflect some of the more specious complaints that might be made. There will be an objective standard rather than a somewhat fluid situation, which I am sure he agrees would be wholly unsatisfactory.

I was going to deal with the basic definition of fluency that will underpin the code of practice. Subsection (8) explains that for the purposes of the Bill,

“a person speaks fluent English if the person has a command of spoken English which is sufficient to enable the effective performance of the person’s role.”

Therefore, it follows that employers will have to satisfy themselves of that criterion among the others that they might deploy in seeking persons to fill vacancies for customer-facing jobs. Subsection (9) clarifies that the requirement to speak fluent English applies to existing workers and new members of staff. Finally, subsection (10) provides that the clause does not apply to those who work for public authorities where work is carried out mainly or wholly outside the United Kingdom.

The code of practice will be an important part of fulfilling our commitment, and it will assist public authorities to comply with every aspect of the new duty. I commend the clause to the Committee.

Anne McLaughlin (Scottish National Party, Glasgow North East)

Part 7 of the Bill, which comprises clauses 38 to 45, is completely unnecessary and unworkable. It will have negative consequences, whether intended or not; I have some difficulty coming to a conclusion on that one. Perhaps when the Minister speaks later, it will be easier for me to do so. It goes against the wider measures advocated by the Government in the Bill. I will argue those points in turn, but I hope that the Committee will allow common sense to prevail and scrap this part of the Bill.

It is clear that the clauses are unnecessary from the overwhelming lack of evidence from the Government or anyone else that legislation is required. Page 25 of the explanatory notes state that clause 38 is being introduced in order

“to improve the quality of service provided by public authorities, such as the NHS and the police”.

The question is surely why those professionals have not demanded such legislation themselves. I note the submission from the British Medical Association stating that doctors must already pass the international English language testing system to a level set by the General Medical Council or provide evidence to the equivalent. If the Committee does not agree to scrap part 7 of the Bill, will the Minister provide assurances that it will not result in duplication?

The fact is that part 7 in its entirety is merely a duplication of what any employer asks of an applicant: do they have the skills for the role? I challenge any Member here to tell me whether they know of any firefighters turning up to save our lives who have to bring an interpreter with them, or whether any of them have visited a GP and had to explain their symptoms in mime because the GP does not speak English. It simply does not happen. Many of my constituents have terrible problems with the Department for Work and Pensions. I was of the view that that was due in the main to unfair policies, but I had not considered that it is perhaps because the Government employ people who do not speak the language of this country. I have never heard of that, and have never experienced it.

That point is made eloquently by the Royal College of Nursing, which argues against duplicating and undermining the standards being developed by the Nursing and Midwifery Council. That is what it is: an undermining of professional bodies. The fact remains that it is professionals, not Ministers, who have a sophisticated understanding of the level of English required for professional roles. The RCN states:

“We question whether it would be appropriate for ministers to set out standards rather than professional regulators, such as the NMC, as is currently the case.”

Far be it from me to argue for lighter-touch regulation to a Tory Government, but the professionals themselves are safeguarding public services, so it is difficult to envisage a Minister, of whatever party, devising a more sophisticated practice-led assessment of language skills than the professional bodies representing the public sector. The Government are fond of saying that they are fixing the roof while the sun is shining, but here they are putting a leaky tin roof in place of one that functions. Like much of the Bill, regardless of our respective opinions on the rights and wrongs, these provisions simply do not make sense.

The TUC rightly asked the Government for evidence of a lack of language ability in public-facing public sector roles at the moment. It is simply not an issue, as the TUC has said:

“In fact, evidence from unions shows adequate English language skills are already a requirement”—

funnily enough—

“to be employed in customer facing roles in the public sector.”

No one who has worked in the public sector or employed anyone in a public-facing role in the private sector can have any doubt that that is already very much the case, making this part of the Bill completely redundant.

I ask again: who among us has teachers in our constituency who cannot speak English? Their role is to teach English-speaking children. It therefore goes without saying that they must speak English. Language support workers in schools, who interpret for children with no or little English, will have to be able to speak English to be able to interpret. Who among us knows of anyone employed to interpret from English who does not speak English?

I have suggested that part 7 of the Bill will be unworkable, and that is self-evident from a glance at the draft code of practice. It will quite rightly not be permitted to investigate a complaint based on an accent or dialect, which are two of the most noticeable features of someone’s use of language. But frequently, people mistake an accent they are not used to or attuned to for an inability to speak English, when that is not the case.

Miscommunication is a fact of life, as Members will testify. But given that we speak English that, if not quite the Queen’s English, is at least identifiably British, a few slips of grammar in a conversation will generally go unremarked upon. Let us consider the case of an individual who has fluent English to the standard required to fulfil their role but who, due to tiredness or whatever other cause, makes a significant grammatical mistake that then leads to a complaint. If I made such a mistake speaking with my Glaswegian accent, it would probably not lead to a complaint—although you never know—but a recent migrant with, say, a Nigerian accent who made the same mistake for the same reason could find that they were required to have additional training or were being investigated. That would be a colossal waste of public sector time and resources.

I appeal to the Government: if they believe in public sector efficiency, surely it is inconceivable that wasting staff and management time investigating misspoken English is in anyone’s best interests. Part 7 of the Bill puts that millstone around their neck. It also gives the lie to any idea that the Government favour integrating people into British society. If a migrant has made the effort successfully to secure a job in the public sector, working in a public-facing role, the Government should be commending that individual for finding work in a new country, possibly with a new language, and definitely for paying taxes to support our public sector. Neither those individuals nor managers in our public sector should be made to endure the spurious complaints and box-ticking training courses—taking them away from the job that they should be doing—that will follow this unnecessary legislation.

In essence, that is one of the main problems with this part of the Bill—it is unnecessary. It serves no discernible public good not already covered by proper recruitment policies. I fear that the Government are adding red tape to please the red tops and have already wasted countless hours of public sector work putting the requirements into the Bill. I appeal to the Conservative Members who believe in small government, cutting bureaucracy and letting the public sector get on with providing front-line services not to burden it with unnecessary legislation.

Let me tell the Committee what my big fear is. I am desperately worried that the measure will play into the hands of racists and of those who are not instinctively racist, but who are susceptible to racist arguments and fear-mongering. I wonder whether the Government realise the influence that they have over the thoughts of ordinary people. I hear Members tell us repeatedly that immigration is the No. 1 issue on the doorsteps. I also hear Members preface that with “We all know”, but no, we do not all know. I can tell the Committee that in constituencies throughout Scotland it rarely features even in the top 10 issues.

I represent a constituency that is probably the most diverse in Scotland. Poor, working-class communities such as those in Sighthill in my constituency welcomed asylum seekers with open arms—and I mean open arms. I do not just mean community groups, church groups and statutory organisations; I mean ordinary people who opened their hearts to those who needed our help. I am not saying that nobody ever mentions immigration, but I recall only one woman mentioning it during the last election campaign, and I was a very active campaigner. If the constituency with the highest levels of deprivation in Scotland and probably the highest proportion of immigrants, including asylum seekers, does not see it as a problem, we have to ask ourselves why.

Incidentally, I do not believe for a minute that Scottish people are naturally any kinder or more welcoming than English people. People are just people, wherever we go in the world, but the one dramatic difference I notice in Scotland is the rhetoric coming from the leadership. The Scottish Government have been overtly welcoming to immigrants and publicly conscious of their duty to help people who require it. They have done everything they can in words and actions to welcome people who are new to the country. Again, that is not a Scottish National party thing. The previous Labour-Lib Dem Administration was much the same.

Our newspapers are also more migrant-friendly than the newspapers down south. Immigration is a big problem in the country where political leaders and the media are largely hostile to migrants, and it is barely mentioned in the country where the opposite is true. Members do not need to take my word for it; they can watch the BBC programme “Question Time”, because it is notable that almost every episode held down south has a question about immigration, but we rarely get that when it is held in Scotland. There is clearly a correlation between the attitudes of political leaders and the media and public opinion.

I will wait to hear from the Solicitor General before deciding if the negative consequences of this part of the Bill were, to my mind, intended or not. What I will do, however, is tell the Committee how it looks to me right now. It looks like the Government are pandering to the right-wing press that dishes out anti-immigrant propaganda, and it looks like the reason for doing that is to further entrench opinion against immigrants. In other words, this looks like ideologically-driven, prejudicial and inflammatory nonsense. As I said, I live in hope that the Solicitor General will disabuse me of that view, and I will keep an open mind when hearing what he has to say. We know that discrimination has increased following the trial of the right-to-rent provisions—[Interruption.]

Albert Owen (Labour, Ynys Môn)

Order. May I say to Members on the Back Benches that the microphones are very sensitive and are picking up every conversation? I wish to hear only one voice: that of the person speaking.

Anne McLaughlin (Scottish National Party, Glasgow North East)

Thank you, Mr Owen. Discrimination has increased following the trial of the right-to-rent provisions, which has led to people being judged not to look or sound British and to their having increased difficulty finding accommodation. The exact same prejudice will now face those working in the public sector, with people who sound as if they are not from Britain at risk of spurious complaints and victimisation.

Our public sector workers are doing increasingly difficult work, thanks to the Government’s cuts agenda. They are often working with fewer resources and taking on more responsibilities. It does not take a genius to see that this will be stressful for the worker and for those using the service, nor does it take a particularly high IQ to imagine that a disgruntled and stressed-out member of the public may take out their frustration with their situation on a member of staff. If that person is obviously an immigrant, there is a risk that complaints will be brought against them on the grounds of language ability—a complaint that would then have to be investigated. All that does is waste time and money, and increase the stress levels of everyone involved.

I have seen it myself. I have been in a GP surgery where I heard people muttering about the African receptionist—“Could they not get somebody who can speak English?”—when she was speaking perfectly good English, since it was her first language, as it is for many people coming to this country. All that was different about her was the colour of her skin and her accent. Now those racist mutterings can be turned into formal complaints—[Interruption.] Yes, they can. The Government are legitimising that racism instead of tackling it head on. If I am wrong about the intentions, will the Minister tell us if and how he will assess the implementation of this part of the Bill? If he does not intend this part of the Bill to have such consequences, and if he does in fact care but does not believe that my fears are founded, will he at least consider the possibility that I might be right, assess this at a later stage and be willing to review it if necessary?

Part 7 makes it much more difficult for genuine migrants to integrate. It places a ludicrous burden on public agencies at a time when the Government are asking them to tighten their belts. It punishes those who have come here legally and are trying to get on and contribute to this society. Part 7 legitimises the rantings of racists, who will say, “Well, there is obviously a problem or the Government wouldn’t have to have a law to stop it.” In fact, it goes against much of what people believe the Tory party stands for—not me, incidentally, but some people. Part 7 certainly goes against the principles of the Scottish National party, and I urge all Members to reject clauses 38 to 45.

Robert Buckland (Conservative, South Swindon)

I would like to say that this debate has created more light than heat, but I am afraid that I cannot do so. With the greatest of respect to the hon. Lady, people such as the receptionist she mentioned will be protected by these provisions, safe in the knowledge that they have fulfilled the criteria set out in the code of practice. They have nothing to fear from people who, through racism or prejudice, may wish to make specious claims. I wholly reject her prospectus.

Anne McLaughlin (Scottish National Party, Glasgow North East)

If the Minister is saying that that receptionist will be protected against spurious complaints, does he mean that nobody is allowed to make a spurious complaint? If so, will it be decided that a complaint is spurious before the receptionist is informed? The stress levels suffered by someone who has had an unlawful complaint made against them are just as bad as they would be if the complaint were founded.

Robert Buckland (Conservative, South Swindon)

I am sorry, but the hon. Lady acknowledged that several parts of the public sector have basic proficiency requirements in place. I am afraid that all of us in a public sector role, including everyone in this building and elsewhere, will be the subject of complaints from time to time. Some of those complaints might be wholly justified; others will not be justified. I do not accept for one minute that these provisions will increase the culture of fear that she has colourfully, but wholly erroneously, painted. She is right to say that some parts of the public sector have minimum standards of English for their staff. The provision underpins and widens that duty so that the rest of the public sector is brought into line with those who are leading the way and being proactive.

Anne McLaughlin (Scottish National Party, Glasgow North East)

I thank the Minister for giving way—I appreciate it. Which parts of the public sector employ people who do not speak English in a public-facing role? I have listed all the possibilities, but I have never experienced it, and I have seen no evidence that anyone here has experienced it.

Robert Buckland (Conservative, South Swindon)

I am grateful to the hon. Lady for sharing her anecdotal experiences, but the Home Office has done pre-consultation modelling, based on the proportion of over-16s in employment in the public administration, education and healthcare sectors according to 2011 census data—those are important, objective, statutory data obtained from the British population. According to that modelling, about 3.6 million employees are within the scope of the proposed duty and about 1.5 million employees in Great Britain, excluding Northern Ireland, are subject to English language standards, so an extra 2.1 million employees will be newly affected by the duty. We anticipate that between a low of 8,500 workers and a high of 25,000 workers may not have the required standards of English fluency. There is objective evidence upon which we can base this policy.

The policy is not designed suddenly to change the game or somehow create a wholly new structure that will alter the balance and change societal attitudes towards people who have a heavy accent. I include myself in that—I know the hon. Lady is as proud of her accent as I am proud of mine. We are seeking to standardise and enhance the position of people who have come to this country to work and who might have a different ethnicity or background. They will be employed under the same objective criteria that will be applied to everybody else in the public sector.

Keir Starmer (Labour, Holborn and St Pancras)

Will the Minister give way?

Robert Buckland (Conservative, South Swindon)

I will give way in a moment, but first I want to read a highlighted extract from the draft code of practice consultation relating to complaints. I hope that it will help the hon. Lady. Paragraph 4.5 says:

“Public authorities are not obliged by this Code of Practice to respond to complaints that are vexatious, oppressive, threatening or abusive. These should be given their usual dictionary meaning and could be defined as those complaints that are without foundation and/or which are intended to result in harsh or wrongful treatment of the person referred to in the complaint. In these types of circumstances a complaint should not be allowed to continue.”

I commend that paragraph to the House.

Keir Starmer (Labour, Holborn and St Pancras)

In so far as the measures extend the existing duties on public authorities to consider the requirement in the first place, they do not go much further than the existing position, but I think that the hon. Lady is pointing at the complaints procedure, which the Minister just touched on. Will he assure the Committee that the only complaints that the provision is intended to open up are complaints against the public authority for failing to carry out its duties, and not complaints made about an individual? That would give a considerable degree of assurance that there is no intention for the measures to allow anyone to say, “I am complaining about X,” when what they are really complaining about is public authority Y, which has not done its job properly. There is a big difference in terms of how the complaints procedure would then be used.

Robert Buckland (Conservative, South Swindon)

I can confirm that paragraph 4.1 of the draft code says:

“This section of the Code is about the procedure a public authority should take should there be a complaint regarding a breach of the fluency duty.”

That means a complaint against the public authority for having breached that duty. There are no sanctions in part 7 that could be applied directly to staff. As I said, it is a duty for the public authority.

Keir Starmer (Labour, Holborn and St Pancras)

This is an important point. Can the Minister write to us on that specific issue? It also arises from clause 41(2)(c), according to my reading; I think that he would provide assurance if he wrote to the Committee—to me and other hon. Members—to say that that is the intention of the complaints procedure. One can see the scope otherwise for concern about complaints.

Robert Buckland (Conservative, South Swindon)

I understand entirely, and I am happy to do so. I assure the hon. and learned Gentleman and any Committee members concerned about consequences for staff that dismissal would be a matter extremely far down the line in these procedures. We are talking about improving systems. That does not entail an ad hominem attack on individuals; it is about the public authority and any perceived failure on its part.

Keir Starmer (Labour, Holborn and St Pancras)

I am grateful for the assurance about frivolous and other vexatious complaints. I know from having 9,000 staff of my own that what causes great anxiety is the fact that a complaint has been made to the individual, even if some weeks or months down the line it might be ruled out. If a number of complaints are made about a particular member of staff, that will increase anxiety hugely. The greater the clarity that the Minister can give here, the better. For a member of staff, simply knowing that a complaint might be knocked out in three months does not affect the anxiety that they feel when doing in their job.

Robert Buckland (Conservative, South Swindon)

I take point made by the hon. and learned Gentleman, and that made by the hon. Member for Glasgow North East. I will write to the Committee, as I have indicated.

On the question of bureaucracy, the measures take a minimalist approach. The code of practice will guide public authorities to align their actions regarding the new duty with existing practice. We expect a minimal expansion to existing procedures to suffice. Our open consultation will allow any concerns about bureaucracy to be raised and taken into account.

Anne McLaughlin (Scottish National Party, Glasgow North East)

Does that mean that the British Medical Association, for instance, will be allowed to make its own assessment?

Robert Buckland (Conservative, South Swindon)

The hon. Lady has mentioned a body that operates its own minimum standards. I envisage that where organisations are already doing that work, it will be a fairly easy task for them to satisfy a code of practice, but again, I would be interested to hear what they have to say as part of the consultation. I am sure that the intention is for dovetailing in any expansion of the duty, so that we standardise it across the whole public sector, thanking those particular outliers for being proactive in the area.

Keir Starmer (Labour, Holborn and St Pancras)

Again, this is by way of seeking assurance. This discussion is in the context of an Immigration Bill, but the measures will cover all individuals. Can the Minister give an assurance that careful consideration will be given to how the measures apply to individuals with any kind of learning or speech difficulty, regardless of background, ethnicity and so on? There is the potential for impact on people who fall into those categories. I know that that is not the intention, but we would gratefully receive a high level of assurance.

Robert Buckland (Conservative, South Swindon)

I am happy to give that. From my own understanding and experience of such issues, I am extremely keen to ensure that people who are fluent but who might, due to disability, express themselves slightly differently, are not discriminated against in any way.

On the question of setting a single standard, again, to enlarge the point that I was making, because the public sector has such a broad range of customer-facing roles, whether they be heart surgeons or parking enforcement officers, different particular standards will be appropriate. Therefore, the code will guide public authorities to set a standard that is proportionate to the nature of the spoken interaction that is an integral part of each role. To reinforce the point that I just made to the hon. and learned Gentleman about discrimination, public authorities, like all employers, are prohibited from discriminating against members of staff and job applicants by the terms of the Equality Act 2010, under which disability is a protected characteristic. Of course that will be relevant to individuals with a speech impediment.

Anne McLaughlin (Scottish National Party, Glasgow North East)

I appreciate the Minister letting me butt in so often. He has said that there is a public duty under equalities legislation not to discriminate against a potential employee, but discrimination happens and we know that it happens. It is far harder for someone to find a job if they are black; basically, it is much more difficult. The Committee has heard most of my fears, but my fear on this is that is that, just as landlords feel that they will discriminate whether they really want to or not, these measures will make employers more fearful of employing somebody who might get complaints against them because of language—not because they cannot speak the language fluently, but because they sound and look different. It will make it even harder for people to find employment. All the equalities legislation in the world is only useful if people know how to use it and have the resources to use it.

Robert Buckland (Conservative, South Swindon)

I hear the hon. Lady, but I must remind her that we are talking about public authorities, which have had to, quite rightly, adapt their practices to take into account legislation such as the Equality Act 2010, which consolidated and enhanced a number of other statutes passed over a generation or more, which in turn dealt with racism, disability discrimination and so on. They were Acts of Parliament passed by all parties in this House. I would be as distressed as she if a public authority misused in any way what I would submit are the benign duties in the clause to reverse the progress that we have made. It is not about whether somebody looks or sounds different; it is about basic standards of proficiency and fluency that will improve public services.

Keir Starmer (Labour, Holborn and St Pancras)

I apologise for adding to the shopping list of assurances, but it is done, I hope, in the right spirit and with concern that is shared across the House. This problem might have been addressed, but there must be some public authorities that use sign language for some of those deemed to be customers or service users. Those fluent in sign language may not in fact be able to speak fluent English. Perhaps there is an obvious answer to this—if there is, I apologise—but the words “speaks fluent English” in clause 38(8) cause me some concern. There may be an easy reassurance. If there is, I will be assured.

Robert Buckland (Conservative, South Swindon)

I am grateful to the hon. and learned Gentleman for raising an issue in which I take a personal interest—the use of British sign language and other means for deaf people to participate in all aspects of our mainstream life. To parenthesise for a moment, I am sure that he would be interested in the work that I am doing to explore why deaf people cannot serve on juries, for example. It seems to me wholly ridiculous, but that is the position at the moment. Perhaps we can talk about that offline.

A British sign language interpreter is of course arguably a reasonable adjustment that is provided under an employer’s duty towards staff with a disability under the Equality Act 2010. That would be part and parcel of a person’s work; so to use it as a basis for suggesting lack of fluency would be wholly wrong and self-defeating. It is important to remember that people with disabilities, with reasonable adjustments, increasingly form part of the mainstream workforce. The provision is not designed to cut across that.

I think we all benefit from the fact that people with different ethnic origins work in our public services. Whatever they sound like and wherever they are from we welcome them all; but it is important—and they would agree—that we make sure there is a basic standard, to ensure that all sections of society have the fullest confidence in our public services. The measure goes a long way to protect our public servants.

Paul Blomfield (Labour, Sheffield Central)

I concur with the point that the Solicitor General makes, but I did not necessarily recognise the figures he gave earlier as a description of the problem. They were census data, which did not necessarily relate to the issue. However, let us assume that there is a problem. Is the Minister not concerned that what he wants to do will be undermined by the cuts of the order of 30% in the adult skills budget since 2010, which have had a direct impact on the courses in English for speakers of other languages that give people precisely the skills he is looking for? In the spirit of his proposals will he make representations to his colleagues in the Department for Business, Innovation and Skills to increase that budget?

Robert Buckland (Conservative, South Swindon)

At this stage what I will say is that those points need to be fed into the consultation, so that in the code of practice we get objective standards for fluency absolutely right. I note from the code of practice that there is a helpful table in the draft suggesting the stages of proficiency that can be equated with various qualifications, such as GCSEs, GCE A-levels or NQFs.

The hon. Gentleman makes an interesting point, which I would argue needs further discussion. I hope that if, when the code of practice is finalised, the issue he raises is causing problems, that will be reflected in a system that, while still objective, will include an understanding that fluency can sometimes be measured in a non-academic way, which would therefore need to be built into any assessment such as a written test or other proficiency test conducted by the employer or prospective employer when interviewing candidates for a job. That could be an objective standard.

Anne McLaughlin (Scottish National Party, Glasgow North East)

Is not that the same as allowing the employers to follow their current recruitment processes and make the judgment themselves? If things are going to be that vague, why do not we just continue to allow employers to make the assessment themselves?

Robert Buckland (Conservative, South Swindon)

What we are doing is making sure that the practice spreads. Indeed, some employers do it already; but we think that the duty would spread it throughout the public service. The hon. Lady may well be right; normal assessment processes may be perfectly sufficient. Examples might be a spoken interview or the choice to require an applicant to answer a detailed interview question in English or Welsh, or to possess a relevant qualification, or pass a specifically tailored competency test. It is not a matter of heavy prescription.

The Opposition cannot have it both ways. On one level, they are telling us that they are concerned that the proposals will be too bureaucratic, and on another, when I suggest that this is in fact, more flexible, they ask what the point is. There is a point: it is all about spreading best practice through all levels of public service.

To respond to the point made by the hon. Member for Sheffield Central about ESOL, ESOL courses are more than just about fluency in English. They go beyond that, so the requirement to have an ESOL qualification will often not be necessary in the context of applications for jobs in the public sector. Although he makes an interesting and proper point, it is not quite on all fours with the particular requirements that this code of practice and statutory duty will involve.

For all the reasons that I have outlined, I commend the clause to the Committee.

Clause 39

Albert Owen (Labour, Ynys Môn)

With this it will be convenient to discuss Government amendments 37 to 39.

Robert Buckland (Conservative, South Swindon)

The clause sets out which public authorities must ensure that each of their workers in customer-facing roles speak fluent English or, in Wales, fluent English or Welsh. Hon. Members will understand that it is important to define the scope of the duty as broadly as possible so that we make sure that all members of the public receive advice, help and support in fluent English or Welsh, regardless of the nature of the public service.

Subsection (1) defines public authorities as any organisation that carries out functions of a public nature. Subsection (2) clarifies that that does not include other bodies that carry out functions on behalf of a public authority. For example, it excludes a private company that appears to the customer to be part of the local council’s services even though the service is actually provided by an independent organisation through a contract with the local authority. Subsections (3) and (4) clarify that this duty will apply in Scotland only if a public authority exercises functions which relate to a reserved matter.

Subsection (5) limits the scope of the bodies included in this duty very slightly to exclude the security services, the Secret Intelligence Service and the Government Communications Headquarters. Subsection (6) provides that a relevant Minister may add, modify or remove the name of a body in relation to this list. The term “a relevant Minister” is defined in clause 44 to include either the Secretary of State or the Chancellor of the Duchy of Lancaster. The regulation-making power to amend the list of public authorities must be done in accordance with the provisions that relate to regulations in clause 53.

That brings me to Government amendments 37 to 39. These technical amendments ensure that clause 53 applies to regulations made by either the Secretary of State or the Chancellor of the Duchy of Lancaster under part 7.

Clause 40 - Power to expand meaning of person working for public authority

Robert Buckland (Conservative, South Swindon)

Clause 40 provides a power to make regulations to expand the meaning of a person in respect of whom this duty applies. Should the relevant Minister—the Minister of the Cabinet Office or the Chancellor of the Duchy of Lancaster—choose to make such regulations, the duty would apply to customer-facing staff of contractors and subcontractors delivering a public service through an arrangement with a public authority. To comply with the statutory duty in clause 38, public authorities need to have regard to the code of practice to ensure that the customer-facing staff of these organisations, as well as their own directly engaged staff, meet the language standard.

Public authorities need to make sure, first, that the standard of fluency applied is proportionate to the nature of each customer-facing role; and secondly that their complaints process allows citizens to report their experience of a customer-facing worker employed by such organisations who is not speaking fluent English. Hon. Members will be aware from our previous debate about the consultation that is now live that respondents are asked explicitly for their views on the impact of expanding the scope of the duty to the staff of private and third-sector suppliers. We will publish those views as part of the Government response to the consultation. However, any expansion of this duty to apply to the staff of private and third-sector providers of services will involve separate consultation before any regulations are made.

Clause 43 - Application of Part to Wales

Anne McLaughlin (Scottish National Party, Glasgow North East)

I beg to move amendment 246, in clause 43, page 39, line 23, at end insert—

‘(4) This Part does not apply to Scotland.”

I have set out why I do not want this measure to be part of United Kingdom legislation, so this is really just to make the argument that if the rest of the United Kingdom does, indeed, want it—I have set out the different experiences of Members in the different countries—then it should not stand in Scotland.

Robert Buckland (Conservative, South Swindon)

I gently remind the hon. Lady that the title of clause 43 is “Application of Part to Wales”. I see the point she is making, so I do not want to make too lawyerly a point, but the provision relates to Wales rather than Scotland.

The purpose of the hon. Lady’s amendment is to exclude Scotland from the whole of part 7. Subsections (3) and (4) of clause 39—the governing clause of this part of the Bill—provide that the requirement for customer-facing public sector workers to speak fluent English applies in Scotland only to the extent that a public authority exercises functions related to a reserved matter.

Hon. Members may not be aware of a letter sent on 3 November from the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights in the Scottish Government, Mr Alex Neil, to my right hon. Friend the Minister for the Cabinet Office and Paymaster General. In that letter, Mr Neil acknowledges that this part of the Bill will only apply to reserved matters, and we agree that any further extension into devolved matters would require a legislative consent motion.

I am grateful to Mr Neil and his team for the work that has been done with members of the British Government and the discussions with Scottish Government officials that have resulted in this proposal. I am also grateful to him for instructing his officials to ensure that the Cabinet Office received every support in understanding the landscape of the reserve public sector in Scotland. Such lines of contact have been established, and indeed the consultation continues. For all those reasons, I very much hope that the hon. Member for Glasgow North East will withdraw the amendment.

Anne McLaughlin (Scottish National Party, Glasgow North East)

On a point of clarification, Mr Owen. Being a new MP and a new member of the Committee, I am a bit confused by the gentle reminder that the Minister gave me. Amendment 246 says:

“This Part does not apply to Scotland.”

I am not entirely sure what the Minister was referring to when he mentioned Wales—I am just looking for a bit of guidance on that. Do we have different pieces of paper?

Albert Owen (Labour, Ynys Môn)

I will try to help the hon. Lady. The title of clause 43 is:

“Application of Part to Wales”.

It is not possible to amend the title of a clause; I think the Minister was explaining that. Does the hon. Lady wish to withdraw the amendment?

Anne McLaughlin (Scottish National Party, Glasgow North East)

Not really.

Robert Buckland (Conservative, South Swindon)

As alluded to in the previous debate, clause 43 sets out how part 7 will apply to public authorities exercising functions of a public nature in Wales. I am grateful to the Clerk to the Committee for confirming my understanding that the clause title is not an amendable part of the Bill but an indicative description of the clause.

The arrangements relating to Wales are subject to a legislative consent motion in the National Assembly for Wales. Subsection (1) makes it clear that a public authority would be in the scope of the duty whether it carries out functions in Wales only or, if in Wales and England, to the extent that it carries out functions in Wales. The duty will apply to all public authorities, whether they carry out services relevant to a devolved or to a reserved matter, hence the need for the legislative consent motion.

Subsections (2) and (3) make it explicit that in respect of such public authorities any reference to spoken English in that part of the legislation should be read as references to spoken Welsh or English. Subject to the approval of the National Assembly, officials would work closely with the Welsh Language Commissioner to ensure that the requirements of the duty are in line with existing standards in Welsh, set out in the Welsh Language (Wales) Measure 2011.

Clause 46 - Immigration skills charge

James Brokenshire (Conservative, Old Bexley and Sidcup)

The clause inserts a new section in the Immigration Act 2014 to provide a power to impose a charge on employers sponsoring non-European economic area skilled migrants. In addition, it contains provision for regulations to be made regarding the charge. The immigration skills charge will help to address current and projected skills needs in the UK economy and contribute to reducing net migration. The intention behind the charge is to encourage employers to think differently about their recruitment so that, where possible, they recruit and train up resident workers.

Paul Blomfield (Labour, Sheffield Central)

I do not disagree with the principle, which is right, but I wish to explore some of the detail.

I represent the University of Sheffield, which is involved in apprenticeship training. As I understand the proposals, the money raised from the charge will go to the Consolidated Fund to assist in addressing the skills gap in the UK. The university’s Advanced Manufacturing Research Centre, which has been held up as a model by the Government, is involved in higher apprenticeship training, much of which is undertaken by academics who are recruited through the tier 2 route. It appears nonsensical to make a levy on the University of Sheffield and other universities and educational institutions for recruiting tier 2 workers who are actively involved in filling the skills gap. What does the Minister think about that issue?

Similarly, we have received representations from the British Medical Association and the Royal College of Nursing about the position in the health service where, because of skills shortages, the Government and the NHS are actively recruiting from abroad. Given the financial pressures on the NHS, does it make sense to levy a skills charge on it? Perhaps that is not the Government’s intent and I have misunderstood the provisions of the Bill, in which case I will be grateful if the Minister can clarify the position on both those points.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Perhaps I should underline that employers over time should reduce their demand for migrant labour. We recognise that many employers invest in training, but throughout the economy investment in training has been declining over 20 years and use of tier 2 visas is up by 30% if we compare 2010 with 2014. We want to encourage employers to invest in upskilling our resident work force and reduce reliance on migrant labour. The immigration skills charge will fund training of the resident work force, including apprenticeships.

The hon. Gentleman’s argument is whether in principle there should be some exemptions. That is a question that we have asked the Migration Advisory Committee, which has been asked to advise on the charge’s impact on different employers. The Government will consider the MAC’s advice in due course; we expect to receive its full advice next month. The MAC will make recommendations, including on the scope and level of the charge. We are setting out the principle. We have asked the MAC to consider some of these details, and we will reflect on its recommendations and implementation.

Clause 47 - Power to make passport fees regulations

James Brokenshire (Conservative, Old Bexley and Sidcup)

Clause 47 provides new powers to make regulations to charge fees in respect of passport and travel document functions. The measures in the clause focus on increasing the transparency of how passport fees are set.

New Clause 14 - Private hire vehicles etc

James Brokenshire (Conservative, Old Bexley and Sidcup)

I beg to move, That the clause be read a Second time.

Albert Owen (Labour, Ynys Môn)

With this it will be convenient to discuss the following: Government new schedule 1—Private hire vehicles etc.

Government amendment 245.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We move to new clauses, having considered the main substantive provisions of the Bill. New clause 14 requires immigration checks and continuing compliance with immigration laws as part of the existing licensing regime for taxis and private hire vehicles. It does so by adapting existing provisions for private hire vehicles in London in the Private Hire Vehicles (London) Act 1998 and for taxis and private hire vehicles in the rest of England and Wales in the Local Government (Miscellaneous Provisions) Act 1976.

The new clause seeks to prevent illegal migrants and migrants whose status does not permit them to work from holding taxi and private hire driver and operator licences. It is important to note that, because the majority of drivers are self-employed, they are not subject to existing right to work checks. In our judgment, that leaves scope for the sector to be exploited by illegal workers.

Licensing authorities already conduct checks to determine whether someone is a fit and proper person to hold a driver or operator licence. However, a licensing authority has discretion as to many of the checks that it undertakes to satisfy itself that someone passes the fit and proper person test. Many licensing authorities make immigration checks, but they are advisory at present. The new clause will make immigration checks mandatory and embed immigration safeguards in the existing licensing regime.

New clause 14 gives effect to new schedule 1, which amends the Private Hire Vehicles (London) Act 1998 for private hire vehicles in London and the Local Government (Miscellaneous Provisions) Act 1976 in respect of taxis and private hire vehicles in the rest of England and Wales. The new provisions also make relevant changes so that the same measures can be implemented in London, where the taxi licensing regime is slightly different, by amending the Metropolitan Public Carriage Act 1869.

We are in the process of consulting with the Northern Ireland Executive and the Scottish Government with a view to making similar changes to the licensing legislation in Scotland and Northern Ireland in the Bill or, if that is not possible, by regulations, for which provision is made in the new clause.

I will now comment in more depth on new schedule 1, the main meat of the provisions. On the changes to the Metropolitan Public Carriage Act 1869 for London, first, the provision ensures that where someone’s immigration leave is time-limited to less than the statutory length for a driver or operator licence, the licence will be issued for a duration that does not exceed the applicant’s period of leave. If someone has so-called section 3C leave under the Immigration Act 1971, because they have, for example, made a valid application to the Home Office to extend their leave, any licence granted will be limited to a period not exceeding six months.

Secondly, if someone is disqualified from continuing to hold a driver or operator licence for immigration reasons, they must return their licence, any copy and their driver’s badge to the licensing authority. Someone who fails to return their licence within seven days without reasonable cause will be committing an offence and, on summary conviction, liable to a fine not exceeding level 3 on the standard scale and, in the case of a continuing offence, a daily fine for each day they fail to return the documents after conviction. Thirdly, the grounds for disqualification—this is for someone who already holds a licence—will include that someone has no lawful status in the UK, or has no right to undertake the work in question.

The Local Government (Miscellaneous Provisions) Act 1976 and the Private Hire Vehicles (London) Act 1998 are similarly amended for operator and driver licences. In addition, the new schedule provides that a licence must not be granted under those Acts to someone who is disqualified by their immigration status. The licensing authority must have regard to any guidance issued by the Secretary of State in making a decision about someone’s immigration status. Importantly, the new schedule also specifies that the conviction of immigration offences and the requirement to pay penalties since the licence was issued are grounds to revoke a driver or operator licence. That is our approach, which intends to catch operators who may seek to engage people who are in the country unlawfully.

Sarah Champion (Labour, Rotherham)

I would like further clarification from the Minister; I did not want to intervene in case he was coming on to this. Will he talk us through the logistics of how the legislation will be enforced?

I welcome the recommendations. I have not gone through the details of them, but it seems that currently different local authorities have different legislation and rules, so there can be confusion about who is responsible for enforcement of the local authority recommendations when people cross the border. Will the Minister talk a little more about how the legislation will be enforced and who will be responsible? He mentioned a seven-day period and said that the local authority would then have to enforce this. How does the local authority find out about that? What will happen with on-the-ground resources to enable the local authority to act? What happens if someone is in violation—will the Home Office or the local authority be responsible for that? I ask for practical ways in which the legislation will work.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am grateful to the hon. Lady for her probing questions about enforcement. It is worth underlining that some licensing authorities are already doing basic right to work checks. That is what we are seeking to embed within the overall licensing regime.

Licensing authorities, under the provisions, will not be able to issue a licence to someone who has no lawful status and no right to work. That means they must be satisfied that an applicant has the right to live and work in the UK before granting someone a licence—that is to say, a basic right to work check. At the moment, authorities seeking to assess licences, whether for an operator or driver, will ask for documents to be provided so that they can appropriately carry out the fit and proper purpose test. We are seeking to embed the basic right to work check that an employer might do. Again, the provisions do not seek to provide sophistication in any grand sense. We will provide guidance to licensing authorities on how to apply the measures and embed the good practice that is, in many ways, already being followed.

Where someone’s permission to remain in the UK is time-limited, authorities will know that because it will be clear from the applicant’s immigration status document. Authorities should not issue a licence for any period exceeding that duration. Furthermore, if the licensing authority is provided with information about other immigration law breaches by the applicant, it should consider those as part of the application process and, as the hon. Lady will understand, the fit and proper purpose test that authorities are already applying.

Licensing authorities may receive information from many sources that lead them to review someone’s eligibility to hold a licence, including immigration enforcement. The new clause makes it clear that if the licensing authority is informed that the holder of a driver or operator licence has breached immigration laws, those are grounds to revoke a licence. If information comes to immigration enforcement, they may then notify a local authority that evidence has been presented that may trigger revocation.

The hon. Lady is right to highlight the issue of who has responsibility. In England and Wales, district and unitary councils—referred to as the licensing authorities—have responsibility for ensuring that the public travel in safe and well maintained vehicles driven by competent drivers, as well as providing a fair and reasonable service for the taxi and private hire vehicle trade. Through that mechanism, these provisions will be effectively embedded within the existing structure. That is an important point.

As the hon. Lady may know, provisions in the Deregulation Act 2015 set a standard length for all taxi and private hire vehicle driver licences. The guidance and the provisions of the new clause will ensure that a consistent approach is taken by all licensing authorities to the checks undertaken. That assessment will effectively prevent abuse within the taxi or private hire licensed arena.

We have concerns—indeed, immigration enforcement will be conducting some targeted enforcement around this activity, to further develop our understanding of the challenges—that the self-employed nature of most drivers means they are potentially not subject to existing right to work checks, leaving scope for the sector to be exploited by people intending to work illegally. That is an issue not simply of ensuring the immigration provisions are applied appropriately and firmly, but of how the fit and proper purpose test applies. If someone is not in this country lawfully, does that imply there may be other breaches or issues? Indeed, does that call into question someone’s insurance and any conditions that apply to it? It is about a culture of ensuring high standards within the sector.

It is appropriate for me to underline that the requirements also apply to app-based operators and drivers. They are required to hold the same licences and, accordingly, the changes will apply to them. It is about consistency, while recognising that different local authorities will be applying the rules. For the purposes of preventing exploitation of the arrangements, it is appropriate to put these measures in place.

In developing the proposals we consulted licensing authorities in England and Wales that between them account for about 60% of all licences issues. Many respondents—62%—reported abuse of the licensing regime. The most commonly cited concern was document fraud, including identity documents and MOT and other certificates from overseas. Immigration enforcement agencies also report illegal working in the sector. They work closely with Transport for London to identify and apprehend illegal workers. Regular enforcement activity is undertaken in Scotland, and in Edinburgh, for example, immigration offenders working as drivers are apprehended in operations every month.

This is a genuine issue. We are not trying to use a great big sledgehammer, but to put some in place basic requirements for right to work checks, as is proportionate. When people have been convicted of immigration offences, that fact should be equally relevant in the context of, for example, whether they hold an operator licence, to make sure that the standards on who is a fit and proper person are properly applied. That is the intention behind the measures.

Sarah Champion (Labour, Rotherham)

I would like just a little more information. At the moment, if someone fails the fit and proper person test they can appeal through a magistrates court. Is it correct that under these measures that right would go and it would become a straight immigration issue?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Let us look at the provisions. Paragraph 12 of the new schedule amends the Local Government (Miscellaneous Provisions) Act 1976 as follows:

“In section 62(1) (suspension and revocation of operators’ licences) before the “or”…insert…“…that the operator has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty”.

The point is that that will be a matter of established fact. The terms are further defined in proposed new section 79B of the 1976 Act, which is inserted by the new schedule, and defines immigration offences and immigration penalties. The measures will be embedded within the overall framework of the licensing arrangements. If the relevant local authority were, for example, to seek to revoke or suspend a licence, a legal process would no doubt be followed. The point is that it would be made clear whether an operator had been subject to these specific measures, because of the nature of the definitions.

The fit and proper person test is built in. It takes place when someone is applying for a licence. Immigration offences are a clear factor that will have to be weighed in any determination of whether someone is a fit and proper person. If someone does not have the right to be here, the new provisions make it clear that they should not be considered a fit and proper person. That is how we are embedding the measures within the existing process. We believe their operation can be effected smoothly. We will issue guidance, as I have already indicated, to assist local authorities in the implementation of the provisions.

This is a question of raising standards, to ensure that abuse does not take place within the sector. These are positive and important new provisions, which will see immigration enforcement agencies working with local authorities—something that, as I have indicated during our discussions, I strongly support. If we can get our activities embedded well, in places where immigration enforcement officers may come across intelligence and information, we can work smartly with other agencies such as local authorities to raise standards more broadly and root out abuse and rogue operators. The measures are important and distinct, and will, we hope, not only deal with immigration offending and people who are in the country unlawfully and engaging in employment or contracts for services, but raise standards in the sector more generally.

New Clause 15 - Supply of information to Secretary of State

Robert Buckland (Conservative, South Swindon)

I beg to move, That the clause be read a Second time.

Albert Owen (Labour, Ynys Môn)

With this it will be convenient to discuss Government new schedule 2—Duty to supply nationality documents to Secretary of State: persons to whom duty applies.

Robert Buckland (Conservative, South Swindon)

The new clause expands the existing information gateway in section 20 of the Immigration and Asylum Act 1999 for the voluntary supply of information to the Secretary of State for immigration purposes. It also places a duty on the authorities listed in new schedule 2 to supply nationality documents to the Secretary of State where directed to do so.

At the moment, in addition to common-law data-sharing powers, section 20 of the 1999 Act allows for information and articles from specified public authorities, such as the police and the National Crime Agency, to be supplied to the Secretary of State for immigration purposes. We would like to ensure that other public authorities that may find themselves in possession of information or documents that may be used for immigration purposes have clear statutory authority to pass those to the Home Office. The new clause will ensure that any public authority, other than those expressly excluded, may provide information and documents to the Secretary of State for immigration purposes, should it wish to do so.

We also want the Secretary of State to be able to require the provision of nationality documents that are lawfully in the possession of specified public authorities. That power would be exercisable where the Secretary of State suspects that a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts and that the document may facilitate the removal.

I want to make it abundantly clear that the new clause does not require the listed bodies to collect data or information on behalf of the Secretary of State or to seize documents from people, as it applies only where the Secretary of State has reasonable grounds for believing that a document is already lawfully in a body’s possession—that is to say, that it holds the document for the purposes of its functions.

To give an example, a person may be arrested for overstaying his visa in the UK. Immigration officers search his home for a passport or other documentation that will help with obtaining an emergency travel document from his embassy. They do not find it, but they do discover a letter to him from his local council. An immigration officer can then contact the council and ask whether it has taken a copy of that person’s passport or ID card, or a record of the number. Under the new powers, if the council has such a document, the immigration officer may direct that it is sent to the relevant immigration team. If the council confirms that it does not have such a document, there is no further action for it to take.

In a nutshell, we believe that it is important that the public sector works together to achieve effective immigration control. For those reasons, I ask that new clause 15 and new schedule 2 stand part of the Bill.

New Clause 16 - Detention etc. by immigration officers in Scotland

Robert Buckland (Conservative, South Swindon)

I beg to move, That the clause be read a Second time.

The aim of new clause 16 is to ensure that there is consistency in the immigration-related criminal investigation powers of immigration officers across the United Kingdom. As I have mentioned in this Committee, we have been involved in a dialogue with the Scottish Government to ensure that this clause, as with others in the Bill, will enable immigration officers to work effectively within the Scottish criminal justice system.

In England, Wales and Northern Ireland, a person may be arrested and interviewed in accordance with the Police and Criminal Evidence Act 1984 or the Police and Criminal Evidence (Northern Ireland) Order 1989 until a decision is made on whether they should be charged with the offence. In Scotland, that differs to the extent that in most circumstances, a suspect can currently only be questioned if they are detained but not yet arrested. Once the suspect is arrested, the general rule is that they cannot be questioned. That means that immigration officers in Scotland cannot properly investigate immigration-related offences for which they have a power of arrest under the Immigration Acts, but do not have the power to detain pending arrest.

The power of detention under section 24 and the power of arrest that immigration officers have under section 26A of the Criminal Law (Consolidation) (Scotland) Act 1995 are also limited by restrictive definitions of immigration and immigration enforcement offences, further limiting the use that immigration officers can make of their Scottish criminal investigation powers. We therefore believe that immigration officers working in Scotland should be able to rely on their Scottish powers, so that the criminal cases they investigate can be properly progressed towards trial and conviction under the Scottish criminal justice system. Our intention with the new clause is to amend the current power of detention under section 24 of the 1995 Act so that it applies to all immigration enforcement offences contained in, or for which an immigration officer has a power of arrest under, the Immigration Acts.

Although this means amending Scottish legislation, we note that the Scottish Parliament could not be asked to address this issue as varying the powers of immigration officers would not be within their competence. For those reasons, I beg to move that new clause 16 stand part of the Bill.

New Clause 1 - Detention of persons – exempted persons

Albert Owen (Labour, Ynys Môn)

With this it will be convenient to discuss the following:

New clause 3—Time limit on detention—

In paragraph 16 of Schedule 2 to the Immigration Act 1971 after subsection (4) insert—

“(5) ubject to regulations under subsection (6), a person detained under this paragraph must be released on bail in accordance with Schedule 5 to the Immigration Act 2016 after no later than the twenty-eighth day following that on which the person was detained.

(6) The Secretary of State may by regulations make provision to vary by category of person the time limit under subsection (5).”

Paul Blomfield (Labour, Sheffield Central)

I beg to move, That the clause be read a Second time.

I am very pleased to be speaking to new clauses 1 and 3, were tabled by the hon. Member for Bedford (Richard Fuller), a Conservative. I was delighted to have the opportunity to add my name to them so that they can be debated by the Committee. I think we are moving into new territory here, and I hope that the cross-party consensus that is reflected in my decision to support the clauses will be reflected in our deliberations.

In the previous Parliament I was pleased to serve as vice-chair of an inquiry into immigration detention on a panel that included the hon. Member for Bedford, along with other colleagues from the Government Benches, including the hon. Member for Enfield, Southgate (Mr Burrowes) and a former Conservative Cabinet Member, the right hon. Member for Meriden (Mrs Spelman). Opposition Members were in a minority on the inquiry panel, which drew parliamentarians from both Houses, including many with huge experience such as a retired Law Lord and a former chief inspector of prisons.

The inquiry was brought together by the all-party group on migration and the all-party group on refugees. Our recommendations, which were prepared after eight months of deliberation, included the limits on detention contained in new clauses 1 and 3. The recommendations were endorsed by the House of Commons on 10 September. The new clauses therefore build on the work of the inquiry and provide expression for the will of the House by introducing limits on indefinite immigration detention. This is not a particularly controversial proposal: we are unusual in this country in having no limit on administrative detention for immigration purposes.

Sadly, we have become increasingly dependent on detention, and that has been the case under successive Governments. This is not a party political point. Detention takes place in immigration removal centres, and the clue for their purpose should be in the name. They are intended for short-term stays, but we have become increasingly reliant on them, and as the use of detention has expanded rapidly over the last two decades, so has the size of the estate. In 1993, there were 250 detention places available in the UK; by 2009 the number had risen to 2,665, and by the beginning of this year it had risen to 3,915. The number of people entering detention in the year to June 2015 was just over 32,000—up 10% on the previous year. In contrast, Sweden, a country that in most years receives something like three times the number of asylum applications—I accept that immigration detention does not simply relate to asylum; nevertheless, there are much larger demands on that much smaller country—has 2,893 places, while Germany has just over 4,300.

Home Office policy, which is a good starting point, states that

“detention must be used sparingly”.

The reality is clearly different. Members will be aware of a number of high-profile incidents in immigration removal centres, including deaths and allegations of sexual assault. That was reflected in the evidence heard by our inquiry. In our first oral evidence session, we heard from non-governmental organisations and medical experts. Most powerfully, we heard from people who were at that time in detention centres via a phone link to immigration removal centres.

One young man from a disputed territory on the Cameroon-Nigeria border told us his story. He said that he had been trafficked to Hungary as a 16-year-old, where he was beaten, raped and tortured. He managed to escape and eventually made his way to Heathrow using a false passport, which was discovered on his arrival. He was then detained. We asked him how long he had been detained for. He told us that he had been detained for three years in the immigration removal centre. His detention conflicts with three stated aims of the Home Office: first, that those who have been trafficked should not be detained; secondly, that those who have been tortured should not be detained; and, thirdly, that detention should be for the shortest possible period.

New clause 1 seeks to put those Government aims on torture and trafficking in the Bill, and to add victims of sexual violence and pregnant women to the category of people not to be detained. Her Majesty’s chief inspector of prisons, Nick Hardwick, following an unannounced inspection of Yarl’s Wood immigration removal centre earlier this year, said to the Government:

“Procedures to ensure the most vulnerable women are never detained should be strengthened and managers held accountable for ensuring they are applied consistently.”

Following a case that was reported on 6 October, I understand that the Home Office is reviewing its policy on the detention of pregnant asylum seekers. I would welcome the Minister’s clarification on where that review stands.

New clause 3 seeks to deal with the wider issue of indefinite detention, the impact of which was a constant theme of our inquiry, and about which we received some striking testimony. Time and again we were told that detention was worse than prison. Initially, a number of us were puzzled by that, because we were not talking about the criminal justice system—many of those people demonstrate in due course that they have the right to be here—but those who were detained said that people in prison at least know when they will get out. As one former detainee told us:

“The uncertainty is hard to bear. Your life is in limbo. No one tells you anything about how long you will stay or if you are going to get deported.”

Medical experts told us that the sense of being in limbo and the hopelessness and despair leads to deteriorating mental health. One told us that those who are detained for more than 30 days have significantly higher mental health problems.

However, it is not just the impact on those who are detained. A team leader at the prisons inspectorate told us that the lack of a time limit encourages poor caseworking and lazy procedures in the Home Office. He told us that one quarter of the cases of prolonged detention that the prisons inspectorate had considered were the result of inefficient casework. That is not because it was inappropriate for people to be released. Despite being called immigration removal workers, we found—this is an important point—that most people who leave detention do so for reasons other than being removed from the UK. According to the latest statistics produced by the Government, more than half the detainees are released back into the UK. The system is therefore not only bad for those involved, but expensive and a waste of public resources, at a time when the Chancellor is looking for savings. Detaining someone costs £36,000 per year. Alternatives to detention, proved to be more effective in other countries, are significantly cheaper; so alternatives driven by imposing such a limit would save taxpayers’ money.

The recommendation to set a maximum time limit in statute, which new clause 3 would introduce, would not simply right the wrong of indefinite detention, but change the culture endemic in the system. By doing so, it would meet the aims of the Home Office’s own guidance, which is about detention being used more sparingly and only as a genuine last resort to effect removal. The proposed limit of 28 days reflects best practice in other countries and is workable for the Home Office, given that in the first three quarters of 2014 only 37% were detained for longer. It also reflects evidence about the mental health impact on those detained for more than a month.

Deprivation of liberty should never be a decision taken lightly or arbitrarily. Decisions are taken by relatively junior officials, with no automatic judicial oversight. With no time limit in place, it has become too easy for people to be detained for months on end, with no meaningful way to challenge their continued detention. The introduction of a time limit and the reduction in reliance on detention represents a significant change—it is in line with what happens in other countries, but it is a significant change for us. Therefore, in order to detain fewer people for shorter periods of time, the Government will need to introduce a much wider range of community-based alternatives.

In the report of the inquiry panel that I mentioned earlier, we gave a number of examples of such alternatives from other places, including the United States—we are not talking about countries that might be perceived as a soft touch. Indeed, Australia, a country whose immigration system is often held up as an example of toughness, has also developed constructive, effective and much cheaper alternatives to detention. Those alternatives allow people to remain in communities while their cases are being resolved, including when making arrangements to leave the country. Not only are the alternatives better; as I have said, they also cost less and are more successful, because they have higher compliance rates in terms of people’s willingness to return.

There is a recent UK precedent. When the coalition Government committed to reduce the number of children detained, they introduced the family returns process. The House of Commons Library described its design as

“to encourage refused families to comply with instructions to depart from the UK at an earlier stage, such as by giving them more control over the circumstances of their departure”—

and it worked. There has been a dramatic fall in the number of children detained, and the Home Office’s own evaluation of the scheme found most families compliant with the process, with no increase in absconding.

I know that the Government share many of the concerns about immigration detention. I guess that is why in February they commissioned Stephen Shaw, the former prisons and probation ombudsman, to conduct

“an independent review of policies and procedures affecting the welfare of those held in immigration removal centres”.

I understand that the Government received the Shaw report some time ago. I hope that the Minister can tell us when he intends to publish it and the Government’s response to it. However, that report will not cover the central issue of a statutory limit on detention, unless thinking is already moving on and he can tell us otherwise.

The importance of the issue was also made clear by Nick Hardwick, the chief inspector of prisons, following the unexpected inspection of Yarl’s Wood that I mentioned earlier. He said:

“Other well respected bodies have recently called for time limits on administrative detention. In my view, the rigorously evidenced concerns we have identified in this inspection provide strong support for these calls, and a strict time limit must now be introduced on the length of time that anyone can be administratively detained.”

In his words, a time limit “must be introduced”.

We are proposing an end to indefinite detention not simply because it would be more just and humane but because it would be less expensive and more effective in securing compliance, which Members on both sides of the House wish to see. Therefore, I hope the Government can accept the new clauses.

Gavin Newlands (Scottish National Party, Paisley and Renfrewshire North)

They say that a country should be judged based on how it treats the most vulnerable, but the way that we have treated people who are attempting to gain asylum into the UK has been, at times, shocking.

The UK is the only country in Europe that uses detention with no official end date and that should shame us all. I am sure that I am not the only one who has been appalled at some of the detention stories that we have read about or seen on television. In particular, “The Glasgow Girls” served as a harrowing reminder of the cruelty that the UK’s detention policy brings about. Even though the policy of detaining children was ended in 2010, the Scottish Refugee Council has highlighted that children are wrongly assessed as being of adult age and therefore are still being detained. The council says:

“A small number of children are still detained at the end of the asylum process, after their case is heard by an independent panel, in Cedar’s Pre-Departure Accommodation. It is run by private companies…with welfare services provided by Children’s Charity Barnardo’s. This ‘open’ facility is designed as a last resort, before families are removed to their countries of origin. But there are still concerns about the affect its use has on children—many of whom are sent from Scotland on their way to their countries of origin.

In addition, some children who have been wrongly age assessed as adults find themselves detained, often for long periods of time.”

I hope that the new clause serves as a catalyst for further investigation, so that these young people/children are treated with dignity and respect, and are not detained full-stop. Westminster might still favour the policy of detention, but I think that we all agree that detaining young people is cruel and inhumane, and I ask the Immigration Minister to look further at this issue.

The case of Souleymane, who was detained for three and a half years, was highlighted in the detention inquiry report, and it serves as another cruel reminder of the policy of detention. There is no excuse for such a long period of detention. The case highlighted that detainees were being transported from one detention centre to another. The length of time that Souleymane spent in detention had an obvious and significant impact on his mental health, and I must ask, is that something that we are proud of?

New clause 3 does not go far enough, in that it has a caveat that I do not agree with. Nevertheless, it is a massive step in the right direction. Again, I want to see the ending of the policy of detention, as it is not a sign of the caring and compassionate country that I recognise the UK to be. The new clause will leave the provision for the Home Secretary to detain someone beyond 28 days by varying the time limit by category of person. In and of itself, it does not prevent cases such as that of Souleymane from happening again, as it hands the Home Secretary a wide discretionary power to overcome the 28-day obstacle.

Also, the parliamentary inquiry report suggested that the longer an individual is detained, the less likely it is that they will be removed from the UK. For example, the report found that, of the 178 people who have been detained for 12 months or more, 57% of them were ultimately released.

In talking about detention, I must use this opportunity to praise the work of the Scottish Refugee Council and other community-based organisations and groups that support asylum seekers on the frontline. Regardless of our political views, we should extend a debt of gratitude to those groups for the fantastic and at times difficult work that they do. The Bill and this provision in particular will have a significant impact on their work, and it is important that we support them when the Bill becomes law. Therefore, I ask the Immigration Minister to take time to meet groups such as the Scottish Refugee Council to learn more about the issues that they face, and to find out what support they need to perform their important jobs.

Detaining someone for any period of time is not something that we should be proud of. These detention centres are a symbol of the cruel approach that successive UK Governments have adopted with regard to asylum seekers. That is why we in the SNP do not think that the new clause goes far enough. The SNP policy on asylum seekers is more progressive. We want asylum seekers to have the chance to work, earn a living, pay tax and contribute to the community while they are waiting for a decision to be made on their application. Economically that makes sense but, more importantly, it is the right and moral thing to do.

Keir Starmer (Labour, Holborn and St Pancras)

I support my hon. Friend the Member for Sheffield Central’s new clause and I pay tribute to the part he played in the report to which he referred. As he said, the report was powerful and strong recommendations were made. The key recommendations from the report were, first, that there should a limit of 28 days on the length of time anyone can held in immigration detention. Secondly, detention is currently used disproportionately frequently, resulting in too many instances of detention. The presumption, in theory and practice, should be in favour of community-based resolutions and against detention. Thirdly, decisions to detain should be very rare and detention should be for the shortest possible time and only to effect removal. Fourthly, the Government should learn from international best practice and introduce a much wider range of alternatives to detention than are currently used in the UK.

This is a real concern, a growing concern and a cross-party concern. I know that the Stephen Shaw work has been done and there is a report. I think that that mainly touches on welfare, but I will be corrected by the Minister if I am wrong. The new clause is important because it goes well beyond welfare issues; it is a point of real principle. In that spirit I support it.

Anne McLaughlin (Scottish National Party, Glasgow North East)

In the immigration debate that took place in the Chamber, I spoke about a child who had been in detention. I know that the policy, notwithstanding what my hon. Friend the Member for Paisley and Renfrewshire North said, is no longer to detain children, but I want to repeat what I said about that child, and I will explain why.

I talked about a 10-year-old boy who was detained with his mother in Dungavel in Scotland and was then moved to Yarl’s Wood. He lost 10 lb in three weeks and lost so much hope that he turned to his mother one day and whispered, “It would be easier if we died. Mummy, please can we die?” I appreciate that there is not a person in this room—I have absolutely no doubt—who, if that child were standing in front of them, would not do whatever they could to help that child. This was somebody I knew pretty well.

Okay, so we only detain adults now, but I am not willing to believe that there is any Member here who, if they had a woman standing in front of them who had been through so much trouble to get here, who was a victim of sexual violence, and they could make the decision about that one person standing there, having heard her story, would not help her. I do not believe that any of us would not use the key that we have to free her from detention if we were able to do it. They are not standing in front of us now, but we are the ones who hold the key to whether those people suffer in the way that many hon. Members have described. That mother wanted to comfort her child. She wanted to reassure her child that it would be over soon, that “this will be happening” in two weeks or one week, three days or three months or whatever, but she could not. She could not reassure herself because she had no idea how long they were going to be there.

I think that the worst thing for people is not having a clue when or where it is going to end. I visited a family in Dungavel a number of years ago, as an elected Member of the Scottish Parliament and I felt intimidated. I felt intimidated by the surroundings and the uniforms, by the big jangle of the keys, by the prison-like atmosphere and the fact that I was fingerprinted. I was a Member of the Scottish Parliament and they fingerprinted me as I went in. If I felt intimidated, what must it feel like to somebody who has absolutely no control over their life, and has not had any for a long time because they have had to flee their country and ask for help in a foreign country? I cannot imagine it.

I pay tribute, as my hon. Friend the Member for Paisley and Renfrewshire North has done, to the organisations that support people in detention. I particularly encourage the organisations that demonstrate outside such facilities to continue to do so, because it makes a big difference to the people inside. There was a demonstration at Dungavel a couple of weeks ago. I know people who went, although I was unable to attend.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Lady is making her case and has indicated that she thinks that the measures do not go far enough. Just so that I understand, does she believe that there is a role at all for detention in immigration removal?

Anne McLaughlin (Scottish National Party, Glasgow North East)

As a last resort. I have never said that we should never detain anybody, but detention is to be used as a last resort. In fact, I think the Minister himself said that the power to detain should be exercised only sparingly and for the shortest possible time. I do not know whether that is the case, but it should be the case.

If it is for the shortest possible time, that is a good argument for having a time limit in statute. I agree with the hon. Member for Sheffield Central, who said—I think the report of the inquiry into the use of immigration detention in the UK also made the point—that, without a time limit, the casework will suffer. We are all human beings. I am a deadlines kind of person; I do things at the deadline. I would love to be the kind of person who does things in preparation for a deadline, and I am always telling myself that I will be that kind of person, but we are all human and we all work to deadlines. If there is no deadline, of course things take a lot longer.

I also wanted to say something about the categories of people who could not be detained if the new clause were accepted. They would include people who have been trafficked. In an earlier sitting, several Conservative Members and I had a debate about people allowing themselves to be trafficked. I was pretty upset at the time, as were a lot of people, but I realise now how that misunderstanding came about: it is because there is an awful lot of talk in the media about people trafficking when it is actually people smuggling. I accept that is not the fault of the people who pick up the term, but the language that we use is extremely important. If we all accept that trafficking involves coercion and is done against the person’s will and that those people have effectively been kidnapped, I hope that we can accept that detention is an absolutely dreadful experience for them and affects them even more severely. I certainly support not detaining that group of people.

On the assisted returns project, I reassure the Minister, as I have said, that I understand that sometimes people must be detained. I also understand that sometimes they must be deported—removed from this country—because not everyone is entitled to live here. If that is done, it is far better to continue with schemes such as the family returns project. I have constituents and friends who do not want to return because their memories are of the country that they came from as it was when they left. All they need is reassurance from somebody that they trust that it is not the way it was, that it is safe for them and that there will be provisions and protections for them.

Most people who come to live in this country do so in such circumstances. They do not come here because they desperately want to live here. Most people would rather live in the country that they have come from. In leaving, they are leaving their family, their friends, their neighbourhood and the school that they went to. Most people do not want to give that up. Sometimes they need reassurance that they will be protected and that life is very different in the country that we are returning them to. That is why the approach must not be to criminalise them, lock them up or refuse to tell them when or if they will be leaving. The approach should be more humane than that, and should be about working with them rather than against them.

Sarah Champion (Labour, Rotherham)

I will speak very briefly to the new clauses, because they seem logical and non-contentious. I am particularly pleased that they have been tabled in a cross-party manner and that they were developed from a cross-party inquiry by the all-party groups on refugees and on migration. They build on existing legislation, such the Modern Slavery Act 2015; that is particularly true of new clause 1.

We whizzed through all the new clauses and amendments, so I want to read the explanatory statement to new clause 1, which

“would provide that pregnant women, victims of trafficking, torture and sexual violence, and any other group prescribed by the Secretary of State, may not be detained pending an examination or decision by an immigration officer.”

I hope that the groups prescribed by the Secretary of State would include vulnerable adults, particularly those with a learning age that is deemed to be under 18.

I want to focus on women, pre-empting some of the arguments that Ministers might make against the measures, particularly new clause 1. The organisation Women For Refugee Women has said that 72% of asylum seekers have been raped as part of the persecution that they are fleeing, and almost all have been victims of gender-related persecution. I ask the Minister to consider that. The United Nations High Commissioner for Refugees detention guidelines state:

“Victims of torture and other serious physical, psychological or sexual violence also need special attention and should generally not be detained.”

I would also like to draw to the Committee’s attention the work of the Foreign and Commonwealth Office, which is working hard to end sexual violence in conflict by protecting survivors and actively prosecuting perpetrators. It seems to me irrational that while the FCO is working so hard and courageously, and receiving great commendation internationally for doing so, the Bill will effectively re-traumatise victims who have crossed borders to find safety in this country. It is also my understanding that the Home Office’s policy is to detain pregnant women only in exceptional circumstances. I therefore ask Ministers to give serious consideration to new clauses 1 and 3.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We have had a wide-ranging debate on an area of policy that is challenging and difficult. I say that because a significant proportion of those in immigration removal centres will be foreign national offenders. There has been a lot of discussion about asylum claimants, but if someone has made a claim for asylum, they should be receiving humanitarian protection. Hon. Members will equally know, for example, that we have suspended the detained fast track—a decision I took—to ensure that appropriate issues about vulnerability can be properly reflected in the arrangements.

There is a real challenge, about which I caution hon. Members, because if the official Opposition vote for new clause 3, they will be voting for a change of their policy. I note that exclusions were previously advanced for foreign national offenders and other groups, in recognition of some of the complexities and other challenges in this matter. People will seek to frustrate their removal at all costs. That is why, regrettably, there will always be a need for some level of immigration detention for when individuals fail to comply with requirements to leave the UK, seek to frustrate their removal or seek at times to use time limits as a means to string things out, because they know that they may gain advantage. Having said all of that, we are clear that detention should be used sparingly and only as a last resort.

We take our duty of care to those who are in detention seriously, for example, through healthcare and other provision. I recognise the reports on the issue of vulnerability to which I will come on, but there are many people working in immigration removal centres day in, day out, doing a tough and challenging job. In commenting on a number of the points made today, I put on the record my appreciation for those who are doing that tough job that supports our immigration centres and seeks to ensure that detainees are treated in a just, fair, appropriate and dignified way.

I underline that alternatives to detention should be used where possible, and I recognise that more can be done. The Bill and its new powers are part of the wider work to ensure that the Home Office has the right measures to manage individuals who are not detained and to ensure that they leave the UK when they no longer have any rights to be here. I continue to give great thought to ensuring that we provide an effective system that delivers value for money and seeks the departure or removal of increasing numbers of people who have no right to be here. There is the balance between enforced removal and encouraged or facilitated departure and we have already debated that broadly in respect of family groups.

New clause 1 would introduce a statutory prohibition on the detention of pregnant women and victims of torture, trafficking and sexual abuse. I note the generous way in which the hon. Member for Sheffield Central sought to recognise that it was my hon. Friend the Member for Bedford (Richard Fuller) who, on Second Reading, tabled an amendment on this issue. Along with many other Members of the House, he is tireless in his work on issues of immigration and detention and takes such matters seriously. I pay tribute to the former Member, Sarah Teather, who chaired the all-party group on refugees. While we did not always see eye to eye, I never doubted her focus and determination to ensure that the issues were considered by the House. I know that the hon. Member for Sheffield Central was part of that all-party group and continues that work.

I can tell the Committee that we take such issues extraordinarily seriously and they weigh heavily on Ministers when we seek to deprive people of their liberty. Therefore, in our approach we seek to ensure that detention is part of a removals process, which at times has to take into account issues of public protection as well. The issues of safeguarding and vulnerability are very much in our minds and that is why my right hon. Friend the Home Secretary commissioned Stephen Shaw, the former prisons and probation ombudsman, to undertake an in-depth review of how the Home Office treats vulnerable people who are detained. As I indicated, that is why I suspended the detained fast track, because I could not be satisfied that safeguards were operating effectively.

The Committee will be aware that we have received Mr Shaw’s report and are considering our response to that important issue. We are actively considering the report’s recommendations and we will come back to the House in due course to report on that.

I think that the hon. Member for Sheffield Central was seeking a timeframe from me. We are not seeking to delay; we are considering those issues carefully, but I want to get it right and come back to the House with an appropriate response that recognises the thorough work that Mr Shaw has undertaken.

Paul Blomfield (Labour, Sheffield Central)

I thank the Minister for his comments on that specific issue. Will he come back to the House with a response to that review before the Bill has completed its journey through both Houses?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I can certainly tell the hon. Gentleman that I wish to ensure that we publish the report and the Government’s response before the Bill completes its passage through Parliament. Equally, I want to ensure that we come back when we can. It is important that we reflect properly on the report and the recommendations, which we are actively doing.

During our debate on bail, I made it clear that vulnerable people should not normally be detained under immigration powers. I reiterate that point now. This approach is our published policy. We have a clear list of individuals who are not normally suitable for detention unless there are exceptional circumstances in play. The list includes pregnant women, the elderly, and those who have been identified by the competent authority under the national referral mechanism as victims of trafficking and torture. It is unlawful to act in a way that is contrary to our published policy.

The hon. and learned Member for Holborn and St Pancras raised the issue of mental health and release from detention. He asked whether there would ever be circumstances where a high-risk individual may need to be released from immigration detention because of their poor mental health. I can confirm that there will be some cases involving mental health issues where an individual should not be detained under immigration powers, no matter how high the risk and no matter how imminent the removal. In those cases, the right course of action will normally be to transfer to the appropriate authorities.

The new clause lacks definitions of the relevant exclusions and, as such, would be open to broad interpretation, so it contains weaknesses. Such an approach could leave the Home Office open to damages. For example, if a woman was pregnant at the point of detention but not aware of the fact or chose not to disclose her pregnancy, the Home Office could be sued for damages after the fact. It is an unfortunate reality that, in some cases, individuals will not comply with the requirement to leave the UK and their removal must be enforced, which often requires a short period of detention.

Anne McLaughlin (Scottish National Party, Glasgow North East)

I appreciate what the Minister is saying but could he not just write safeguards into the legislation?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am making a technical point on the drafting of the new clause. There are issues of principle, but we believe that even if the principle were accepted, there are technical deficiencies in the drafting that Members might wish to reflect on, given that no amendments have been tabled.

Sarah Champion (Labour, Rotherham)

I appreciate the open and generous way in which the Minister has approached the matter. I would like to build on what the hon. Member for Glasgow North East said. If the Committee supported the intention of the new clause, we would be very keen to work with the Minister to try to get the wording in such a state that the Home Office felt comfortable in taking it forward.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I do not support the new clause. I am certain that the intention behind it is not to undermine immigration control or to reward those who make spurious claims about being a victim of hideous events to avoid enforced removal when they refuse to leave the UK voluntarily. Sadly, those cases exist, which is why this is difficult territory and regrettably, that may be the practical effect of the new clause. However, I recognise that the issue of vulnerable people in detention is a major concern to MPs and to many people outside the House. I therefore ask that the Government are given time fully to consider Stephen Shaw’s review before the House legislates on a very complex issue.

New clause 3 would introduce a statutory time limit on detention unless the individual was listed in the regulations as being exempt from the time limit. There is a common misconception that detention under immigration powers is indefinite. I want to make it clear to the Committee that that is not the case. Although there is no fixed statutory time limit on the duration of detention under immigration powers, it is not the case that there is no time limit. It is limited by statutory measures, the European convention on human rights, the common law, including principles set out in domestic case law, and the legal obligations arising from the Home Office’s published policy, which states:

“Detention must be used sparingly, and for the shortest period necessary.”

I will highlight something, because some have suggested that there is a desire to extend detention and the process is in essence an aid to that. Published statistics show that the majority of individuals leave detention after 28 days or less, with more than 90% of them leaving detention within four months. Therefore, the facts do not bear out the contention that immigration detention is indefinite.

I ask the Committee to reflect on the fact that if all individuals complied with the notice that they should leave the UK, there would be little need for immigration detention—certainly limited need for detention beyond a short period. However, some individuals choose not to comply with the law and do not leave the UK when they should. For that reason, the time limit on detention is not fixed at a specified value, but is measured by reasonableness and all the circumstances of the individual case. It has been administered by judges case by case, and they will order an individual’s release if the time limit is reached or exceeded.

There is also a practical disadvantage in an arbitrary time limit. People in a non-compliant removal case could simply disrupt their removal for 28 days in the knowledge that they would be released from detention. Sadly, there are people who play the system in that way.

Keir Starmer (Labour, Holborn and St Pancras)

On the question of “indefinite”, surely the detention is indefinite in the sense that there is no definite limit to it. The detention might not be unending, but it is indefinite in the way that we all understand “indefinite”.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Indefinite detention implies detention that cannot be brought to an end. For reasons of bail and the relevant principles in common law, the detention has to be linked to the ability to remove.

If we look at the cohort likely to be in detention for longer, the vast majority are foreign national offenders. That is the reality we are dealing with. There might be challenges that we are working through on identification, so that they may get the relevant travel documentation, or they might take other measures to prevent their removal. There are a number of challenging policy issues in this area, but I underline the policy principles that exist in respect of why detention is there and why it is linked to removal. Equally, I underline the relevant safeguards.

Hon. Members might say that non-compliant cases could be added to the regulation that sets out cases where the 28-day limit does not apply, but the use of the detention power is increasingly focused on non-compliant individuals to ensure their removal. In reality, even if the clause was founded in that way, there would be little impact if non-compliant cases were added to the list.

I recognise what hon. Members have said about ending the detention of children for immigration purposes. I am proud that the Government have introduced measures to ensure that the routine detention of children under immigration powers is used only in very, very limited circumstances. Equally, we do not detain individuals for age-assessment purposes. In cases in which an individual is held in an immigration removal centre and doubts arise as to whether they are an adult, we aim to release them immediately into local authority care, pending an age assessment.

I recognise that we are discussing a controversial policy area, but I underline the fact that we are dealing with the details. There are a range of public policy views and objectives that need to be advanced, but ultimately there are clear safeguards in the system. We will continue to reflect carefully on the issues of vulnerability, but I hope that, given those assurances, the hon. Member for Sheffield Central is minded to withdraw the new clause.

Albert Owen (Labour, Ynys Môn)

I remind the hon. Member for Sheffield Central that he may withdraw new clause 1, or press both new clauses to a vote—that is a matter for him—but he will be winding up the debate on new clauses 1 and 3.

Paul Blomfield (Labour, Sheffield Central)

I am mindful there might be a vote in the Chamber in a few minutes, so I will try to be brief. I accept the Minister’s point that this is a complex and difficult area of policy, but evidence from other countries demonstrates that statutory limits on administrative intervention can and do work effectively. There is a case to be made for the limit suggested in new clause 3 and the specific exclusions suggested in new clause 1.

I underline the breadth of support across the House on this issue. That was evident in the inquiry and in our debate on 10 September, when 25 Members from all parties represented on this Committee—and more besides—spoke. The House, as a result of that debate, endorsed the recommendations.

On the Minister’s point about foreign national offenders and the wider caveats in new clause 3, not all foreign national offenders are necessarily a risk to public safety, and issues around that need to be addressed. I accept his point that there may be a lack of precision in how the new clause is drafted. For that reason, I agree not to press new clauses 1 and 3 on the understanding that he will, as he indicated, actively come back to us with the results of his consideration of the Shaw review. We will then have an opportunity to come back to the issue while the Bill proceeds in a way that achieves the objectives of the new clause, but perhaps in a better crafted way. I beg to ask leave to withdraw the clause.

Albert Owen (Labour, Ynys Môn)

Before we adjourn, I add that I may not be with you again if business finishes on Tuesday morning next week. I thank the Clerks, Members on both sides of the Committee, including those on the Front and Back Benches, and everyone for their co-operation during proceedings.

James Brokenshire (Conservative, Old Bexley and Sidcup)

On a point of order, Mr Owen. As this may be our last opportunity as a Committee to recognise your contribution to the Bill in ensuring that our consideration is in order and in adding to the good-natured spirit of our proceedings, may I, on behalf of the Committee, thank you for your chairmanship? We have very much appreciated your guidance and assistance, which has added to our consideration of the Bill.

Keir Starmer (Labour, Holborn and St Pancras)

On a point of order, Mr Owen. I endorse that point of order. Not only for the group the Minister spoke of but for those of us who have gone round this track for the first time, your help and assistance and that of the Clerks has been invaluable to each and all of us.

Gavin Newlands (Scottish National Party, Paisley and Renfrewshire North)

Further to that point of order, Mr Owen. May I point out that I was in room 16 when the doors were locked for the last vote?

Albert Owen (Labour, Ynys Môn)

The point has been made.