My Lords, the immigration debate was recently described as “rancid”, as politics has descended into what the article described as,
“the stinking gutter of xenophobia”.
The author was Ian Birrell, a former speechwriter to David Cameron. The stinking gutter of xenophobia diminishes us all, and that is the context in which this Bill has to be understood, as a number of noble Lords have already eloquently underlined. When publishing the Bill, the Home Secretary said that it was designed to
“create a really hostile environment for illegal migrants”.
The fear of organisations working in the field is that it will indeed create a hostile environment, but for migrants and minority ethnic groups more generally. The UN High Commissioners for Refugees has warned that it will lead to further stigmatisation of, and discrimination against, refugees and asylum seekers.
The Joint Committee on Human Rights, of which I am a member, has likewise cautioned that a disqualification from renting or occupying private sector accommodation on grounds of immigration status will heighten the risk of wider, even if unintentional, racial discrimination in lettings. Moreover, it could give rise to homelessness in the case of people who have no right to remain in the UK but who face genuine barriers to leaving. This potentially risks breaches of the right not to be subject to inhuman or degrading treatment under Article 3 of the European Convention on Human Rights.
I am not reassured by the Government’s response to the committee and I am even less reassured having received the Residential Landlords Association briefing, which argues that the proposal is unworkable and will have unintended, negative consequences. This is reinforced by having listened to the noble Lord, Lord Best, who is such an expert in the area of housing. While I welcome the fact that there will be some form of piloting before national rollout, can the Minister explain how that will work and say what steps will be taken to monitor the impact from an equalities and human rights perspective?
Among other concerns raised in the JCHR’s legislative scrutiny report are the significant limitation of appeal rights, which we believe,
“is not compatible with the common law right of access to a court or tribunal in relation to unlawful immigration decisions, and the right to an effective remedy”.
This is particularly so in the light of the relatively high success rate for such appeals,
“due to the well-documented shortcomings in the quality of decision-making … the importance of appeals as a means of enforcing the children duty in s. 55 of the Borders, Citzenship and Immigration Act 2009; … and … the likely cumulative impact of proposed changes to legal aid and judicial review”.
I hope that the Minister was not implying that the Joint Committee has been peddling myths when he included that in his little list of myths in his speech. In the context of what is happening to judicial review, the Committee was also not satisfied with,
“the Government’s reliance on the continued availability of judicial review to challenge the Secretary of State’s certification that a human rights appeal can be heard out of country”.
Secondly, we expressed our unease about Clause 14, which is,
“a statutory provision which purports to tell courts and tribunals that ‘little weight’ should be given to a particular consideration”,
in any “judicial balancing exercise”, as is proposed with regard to Article 8 claims concerning the right to respect for private and family life. This appeared to us to be,
“a significant legislative trespass into the judicial function”.
Thirdly, we raised the possible implications of the Bill for the duty to safeguard and promote the welfare of children under Section 55 of the Borders, Citizenship and Immigration Act. We welcomed the Government’s clarification that nothing in the Bill changes that duty but warned that it is not clear in practice how the Bill is to be read alongside it. I also welcome the clarification in the Government’s response to our report that the Section 55 duty will apply to children who do not come within the Bill’s definition of a qualifying child.
Nevertheless, I share the concern raised by the Refugee Children’s Consortium and BID that Clause 14 does not explicitly include the best interests of children in the list of public interest considerations to which courts and tribunals should have regard, even though it is accepted by the Government that courts and tribunals must treat the best interests of children as a primary consideration in line with Article 3 of the UNCRC. The consortium has warned that,
“the Bill will have significant detrimental consequences for children”.
That point was raised very eloquently by the right reverend Prelate the Bishop of Leicester.
Fears have also been expressed about some of the Bill’s health provisions and the associated proposals for NHS charging outlined in the Department of Health consultation. While welcoming the retention of free access to GP and nurse appointments, the Refugee Children’s Consortium warns that any treatment needed as a result could now become chargeable. It believes that this,
“will serve to discourage refugee and migrant children and families from accessing healthcare services”,
with a very likely,
“detrimental impact on children's health, well-being and safety as well as on public health”.
Other organisations point to likely damaging consequences for HIV testing.
Doctors of the World raised particular concerns about children not receiving vital immunisations and the risk for their futures if their mothers do not receive any or timely antenatal care. The Royal College of Midwives and Maternity Action also express their fear
that these proposed changes will deter some pregnant women from seeking and accessing maternity care. They point out that the negative impact on the health of these women and their babies could perversely lead to a need for more medical care at a greater cost.
I also want to express my concern about Clause 60. I very much welcome what the noble Lord, Lord Bourne, said about that. As ILPA warns, the removal of the,
“‘right to have rights’ … is a retrograde step indeed”.
I add that it is the more so because it would be retrospective. Liberty condemns it as an archaic punishment rendering the individual completely voiceless and vulnerable to human rights violations. I therefore agree with Sarah Teather MP that,
“making people stateless is simply wrong”—[Official Report, Commons, 30/1/14; col. 1079.]—
regardless of how many people are involved. We have heard from my noble friend Lady Kennedy what that can mean in practice.
I hope that in Committee we might be able to consider some of the issues raised by the JCHR’s inquiry into unaccompanied migrant children and young people and the Children’s Society’s parliamentary inquiry into asylum support for children and young people, of which I was a member. Among the latter’s recommendations were reform of the asylum support system and permission to work for asylum seekers who do not receive a decision on their application within six months, a point which was raised by my noble friend Lord Judd in his marvellous speech and by the noble Lord, Lord Roberts. The inquiry expressed its shock at evidence it received of children left destitute and homeless, entirely without institutional support. The fear is that this Bill could lead to even more widespread destitution and homelessness among these children and others, as well as infringe important human rights.
The more unpopular the group, the greater the responsibility on your Lordships’ House to look dispassionately yet sympathetically at their needs and their rights. Many outside organisations which campaign tirelessly on behalf of migrants, refugees and asylum seekers are now looking to us to speak up on their behalf and to amend the more damaging provisions in this Bill. I hope that we will not let them down.
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