UK Borders Bill

My Lords, I was not going to mention this, but it was the noble Baroness who gave me and my noble friend Lord Dholakia the information, and that was the first that we heard about it. We did not know anything about it, and our Whips told us that they did not get the information in time to notify us before our meeting with the noble Baroness. My objection is not primarily the way in which the decision was notified, but the fact that we are going to have to take the Bill in Grand Committee. The number of asylum applicants has fallen, the rate of initial decisions has improved and the number of appeals determined has increased. The tabloid scare over the number of Romanians and Bulgarians flooding into Britain to steal jobs and undermine wages was a false alarm, and many of the people who came from the A8 accession countries in 2004 have now gone home. The Immigration Service—or the BIA, as we must learn to call it in line with new Labour’s mania for regularly rebranding public agencies to keep printers and designers in work—has not been so successful in removing failed asylum seekers primarily because of the panic over foreign national prisoners, to which I shall come in a few minutes. The Bill creates a number of new immigration offences and encourages the courts to impose sentences of at least a year on persons convicted of a range of non-immigration offences specified under Section 72 of the 2002 Act, so that the offenders can be deported automatically without a hearing. The new offence of assaulting an immigration officer is duplicated in Clauses 3 and 21, according to whether he is exercising the power to detain, and in both clauses it is punishable by imprisonment of up to 51 weeks, except in Northern Ireland where it remains six months, the maximum under existing law for common assault or for assault on a constable in the execution of his duty. Why do that when the prisons are full to bursting point? The Government say that they have no plans to bring into effect either Section 281 of the Criminal Justice Act, which raises the maximum sentence of imprisonment imposable by a magistrates’ court from six months to 51 weeks, or Schedule 26 to that Act, which increases the penalty to 51 weeks for a whole range of offences now punishable by maxima ranging from one month to six months. Let us avoid sentence creep in this Bill and keep all sentences down at six months, which has always proved adequate to deal with this and similar offences. Immigration officers are being given new powers of detention, and their existing powers of arrest, entry, search and seizure are extended. When they take over the functions that had been exclusively exercised by the police, we shall want to know whether they are to be governed by a code of conduct identical to PACE and whether the UN Convention on the Rights of the Child is to be disapplied to those functions. We disagree strongly with the reservation of the CRC, as the noble Baroness is aware. It allows the BIA to ignore or at best to have inadequate regard to the effect that their practices may have on children. In report after report of the chief inspector on IRCs, and in the horror stories that one hears of individual cases, the treatment of children in ways that are contrary to their best interests is being exposed all the time. For example, on 9 May, after Ms J.M. had been taken into custody by the police in Crawley, her two babies, Collin, aged three weeks, and Chantelle, aged one year, were removed and placed in foster care while Ms J.M. was detained in Yarl’s Wood. At the time, the younger child was breastfeeding. On 23 October last year, the Minister gave an assurance that an infant would be separated from the mother only in the most exceptional circumstances. In this case, it was three weeks before the combined weight of several women’s organisations got the two babies restored to their mother’s care. It is this case and others of a similar nature that leads us to the conclusion that the reservations of the CRC should be reviewed; and we will provide an opportunity of doing that in Committee. So much for the Minister’s assurance that the BIA takes seriously its responsibilities to children; there are enough cases of this kind to indicate that it does not. In addition, as the Minister predicted, we shall seek to extend the application of Section 11 of the Children Act 2004 to the Immigration Service to ensure that it has regard to the need to safeguard and promote the welfare of children. This would cover immigration officers carrying out arrests, detentions and searches under Clause 2, which until now have been the duty of police officers, to whom Section 11 does apply. We welcome the comment of the Minister, Liam Byrne, at Commons Report stage. He said: "““We need to go further in ensuring that the Border and Immigration Agency has a stronger safeguarding obligation … I remain open to the argument that a legal requirement should be put on the BIA, and a specific safeguarding element should be written into the law””.—[Official Report, Commons, 9/5/07; col. 235.]" In the spirit of that assurance, we hope that the opportunity will be taken at last to repeal Section 9 of the treatment of claimants Act, which allows families with children to be made destitute if they do not leave promptly after their rights of appeal have been exhausted. The noble Baroness, Lady Ashton, agreed to our suggestion that power to repeal that inhumane provision by order should be inserted in the 2006 Act. We thought that there was an understanding that the report on the pilots, which were then being evaluated, would be published and, depending on the results, the repeal power in Section 44 of the 2006 Act would be exercised. We already knew that making families destitute was both cruel and ineffective as a way of encouraging voluntary departure, but after 18 months the report on the pilots has not appeared, and the Section 9 sword of Damocles hangs over an increasing number of families. Another matter not dealt with directly in the Bill is the increasing frequency of age disputes concerning UASC, on which a Home Office consultation has just ended. The Children’s Commissioner, Sir Al Aynsley-Green, has urged the Government not to roll out proposals for change until the findings of the Crawley report, When is a Child not a Child?, have been fully debated. I hope that we can have an assurance on that. Sir Al says that there are serious ethical concerns about subjecting children to ionising radiation that is of no therapeutic benefit, when the validity of their consent is doubtful and the process cannot determine a child’s chronological age. I have a particular interest in this, because it was as a result of a report published by my office in 1981 that the use of X-rays as a means of age determination was brought to an end in February 1982 by the then Home Secretary, William Whitelaw. We have concerns that the Government have already jumped the gun on one particular issue by giving the Secretary of State carte blanche under Clause 16 to impose whatever reporting conditions he sees fit on persons with limited leave to remain. We know that this is aimed at unaccompanied children, because the Minister said so. But the social services departments of local authorities already have a duty to know where ““their”” children are, and if there are concerns that some are not keeping proper track of them, it would be simpler to place the responsibility for additional checks on the local authorities, rather than create an additional bureaucracy to duplicate what most local authorities are doing already. The total number of such children in the whole country is only about 6,000, so it should not be too difficult. But the use of Clause 16 may well heighten the risk of absconding by children approaching the age of 18, who are bound to fear that reporting requirements are the prelude to detention and removal. Those requirements will be disruptive to a child’s education if she has to report during a school term, and they could be a severe burden on the child’s limited resources. As for the automatic deportation of a foreign criminal, we believe that to take away entirely the court’s discretion over recommendations for deportation is wrong in principle, as we argued in another place. Mandatory sentences are not often approved by Parliament, for the simple reason that it is impossible to foresee every set of circumstances that might arise in relation to a particular charge. One way to maintain an element of judicial discretion while achieving the object that foreign criminals who commit serious offences are generally deported, would be to incorporate into the sentencing guidelines the tests in Clause 31 while still requiring the Secretary of State to make a deportation order when the court recommends that. We are also concerned that a person is liable to automatic deportation if he has been sentenced to prison for at least a year, whereas a ““serious criminal”” loses the protection of Article 33(2) of the refugee convention, by virtue of Section 72 of the NIA Act 2002, only if he was sentenced to at least two years. We objected to that provision as being contrary to the spirit of the convention, which requires every applicant's case to be considered on its own merits, and we agree with the UNHCR, which says that this provision further erodes the principle of non-refoulement. The requirement to apply for a biometric immigration document—it is wrongly described in the cross-head as ““registration regulations””, when there is no reference to registration in the text—excited a great deal of interest in another place and I am sure will do so here as well. It covers all non-EEA nationals in the UK, including those with indefinite leave to remain. Asylum seekers are already fingerprinted, and visa applicants will be fingerprinted everywhere by 2008. The Eurodac computer system enables the UK to identify asylum applicants who have already applied in another EU country and to send them back there under the Dublin convention. The UK will also participate in the law enforcement aspects of the SIS II database, but not the immigration alerts, because we are not part of Schengen. But we will have access to the information relating to persons wanted for extradition and persons wanted either as witnesses or for prosecution or enforcement of sentences, including biometric data, when we join SIS II in 2009 or 2010. The arrangements for the management of SIS II, the rights of access to it and the data protection arrangements that will apply to it were all examined by your Lordships’ European Union Committee in a report published three months ago. I mention that project because we need the same degree of transparency and precision in the way that the information in Clauses 5 to 15 will be managed and used. Everything is left to the regulations that are to be made under Clause 5(2)—a pattern which is familiar from previous immigration legislation. It is an unsatisfactory process because when Parliament finally sees the regulations, we have practically no option but to accept them, however objectionable we may find some details. Universities UK, for instance, has asked a number of questions about how this scheme will affect tens of thousands of foreign students and the one in six foreign academic staff; it is also worried about the reporting and residence restrictions in Clause 16 and about the removal of appeal rights in Clause 19, even before there is a clear understanding of how the points system introduced by the NIA Act just over a year ago will operate. The mass of primary legislation, statutory instruments, rules and forms takes up over 1,200 pages in the latest edition of the Immigration Law Handbook, and is so difficult to understand that the Government frequently get things wrong. We have been saying for the past five years that consolidation is desperately needed. It is disappointing that despite the assurance by the noble Baroness, Lady Ashton, that she would take up the matter in the ministerial group on the Law Commission, which she chairs, a year and a half later we have got only to the simplification consultation which has just been announced. The new primary legislation promised for 2008 is not going to be limited to consolidation, as we understand it, but will contain new order-making powers which are ““capable of quick adjustment””—that sounds like a threat to bypass Parliament. This will hit us before we have digested the points system and the substantial changes before us in this Bill. We will look to see how flexible the Government are on this Bill as an indication of whether their simplification is a disguised attempt to whittle down the legitimate rights of legal migrants still further.