We have the clause stand part debate on Clause 37 and an amendment in this group.
On 4 August, the Government initiated a consultation on proposals for changes in the support available to refused asylum seekers. The consultation ended just over a month later on 9 September and the Immigration Bill was published six days after the consultation ended. One can only comment that that was remarkably quickly after the end of a consultation exercise on part of the provisions of the Immigration Bill.
At present, there are two forms of support for asylum seekers under the Immigration and Asylum Act 1999—they are usually referred to as Section 95 support and Section 4 support. While waiting for a decision on the application, asylum seekers are not eligible for mainstream benefits. If they would otherwise be destitute, they can apply to the Government for accommodation or financial support or both under Section 95 of the 1999 Act. Since August of last year, the financial support available has been £36.95 per week per adult or child. That is, by the way, one-eighth of the daily allowance applicable in this place, which I believe one noble Lord recently declared was “inadequate”.
Asylum seekers whose application for asylum is unsuccessful and whose appeal rights are exhausted cease to be eligible for Section 95 support, which is terminated 21 days after the claim has finally been determined. Under some circumstances, destitute refused asylum seekers can apply for Section 4 support under the 1999 Act. If granted, that is not paid in cash but a payment card is provided, credited with £35.39 per person per week to be used in specified retail outlets to buy food and essential toiletries.
Under the 1999 Act, refused asylum-seeking families with children under the age of 18 who were part of the family before the final decision was made on the asylum application can continue to receive Section 95 support until the youngest child turns 18 or the family leaves the United Kingdom.
Under the Bill, that entitlement for refused asylum-seeking families is taken away. As a result, support under Section 95 for families with children will be stopped once they have been refused and had any appeal rejected, following, in the light of the recent information we had from the Minister, what will now be a 90-day grace period, which I acknowledge is longer than the Government were originally proposing.
After the 90 days, these families may then be eligible for a new form of support under new Section 95A, which replaces Section 4 support. However, to qualify for support under new Section 95A, individuals and families who have had their asylum application refused will need to demonstrate that they are destitute and face a genuine obstacle to leaving the United Kingdom. The details of how this will work will be set out in regulations, but the Government have already stated that the criteria for provision under new Section 95A will be very narrowly drawn and more narrowly defined than under Section 4.
Will the Minister say whether the Section 95 support will be withdrawn after 90 days for families who are fully engaging with the authorities over their departure, or will it continue in these circumstances? If so, who would make that decision for it to continue? Would there be a right of appeal against a negative decision in that regard? I ask that in the context that, as I understand it, the Government’s review of their family return process showed that, in 59% of cases, it took longer than three months to complete the process of leaving. Presumably, the evidence suggests that there will be many cases where support under Section 95 will cease before the family whose asylum claim has failed has been able to make all the necessary arrangements to return home.
The Government have also said that, under the new arrangements, it will not be possible to apply for new Section 95A support outside the prescribed grace period of 90 days under Section 95 support, except where the regulations permit this for reasons outside the person’s control. New Section 95A claims will require the applicant to show that there is a genuine obstacle to leaving the UK. For pregnant women, that is defined as being within six weeks of the due date. What will happen in a claim by a pregnant woman during the 90-day grace period for new Section 95A support who, at the time of the application, is not within the qualifying six weeks of the due date? Will they qualify for Section 95 support?
This clause and its associated schedule are clearly intended to deliver the objectives so bluntly set out in the Explanatory Notes of making it hard for those without the appropriate immigration status to live in this country. In this instance, it is the Government’s stated policy intention to encourage the departure—to put it euphemistically—from the UK of refused asylum seekers.
Will the Minister, when he responds, place on record the Government’s estimate of the reduction in the number of people in this country with no lawful basis to remain that will result from this intended change in the support arrangements, and the basis on which that estimate was determined? I ask that because the Government will be aware that there is far from universal acceptance of their apparent premise that cutting off support after 90 days to asylum-seeking families whose appeal rights have been exhausted will result in their leaving the United Kingdom, because where parents think that their children’s lives will be at risk if they return home they are rather more likely to consider that becoming destitute in the UK is still the better option available to them.
In 2005, the then Labour Government ran a pilot scheme in which families whose appeal rights were exhausted had all their support removed if they failed to take reasonable steps to leave the UK. The Government’s own evaluation of the scheme in respect of Section 9 of the 2004 asylum and immigration Act, which involved 116 families, concluded first that the rate of absconding was 39% for those in the Section 9 pilot, but just 21% in the comparable control group who remained supported. Secondly, it concluded that only one family in the pilot was successfully removed, compared with nine successful removals in the control group. There was no significant increase in the number of voluntary returns of unsuccessful asylum-seeking families. Finally, the earlier evaluation concluded that Section 9 should not be used on a blanket basis.
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The pilot was based on the proposition that withdrawing support—threatening destitution—was likely to encourage people to leave. In the light of the evaluation, the pilot was considered a failure. The reality is that support for families facing removal is the best means of ensuring that they leave. That means financial support, support with documents on obstacles that may arise and support through the giving of advice. Families who are supported are the ones most likely to leave. Withdrawing support for this category of migrants is in reality a threat of destitution as a means of trying to enforce immigration rules.
In Committee in the House of Commons, the Government argued that the measures in the Bill would have a different impact from those that were the subject of the pilot and evaluation in 2005 because the burden would be on the family to show there was,
“a genuine obstacle to their departure”,
in order to qualify for support and because there would be,
“a managed process of engagement with the family”—[Official Report, Commons, Immigration Bill Committee, 5/11/15; col. 408.],
instead of a largely correspondence-based system.
The thinking behind the first point is not clear, since there is no reason to believe that putting the onus on the family to prove a genuine obstacle will make them less likely to go underground if support is withdrawn. On the second point, it is difficult to see how the change referred to will make a difference to the results of the 2005 pilot, since the withdrawal of support will hardly encourage keeping in contact with the authorities. In fact, the evidence suggests that it will have the opposite effect as a result of the hardship, distress and anxiety caused by the withdrawal of support, and will be wholly counterproductive.
Frankly, destitution in the 21st century should not be a means of enforcing immigration rules, yet that is what lies behind these provisions in the Bill, even in the light of the 90-day grace period, because those provisions change the current basis of support. Children should not be adversely affected in this way by the decisions of their parents, yet the Bill will visit those adverse impacts on them.
We also have an amendment in this group which seeks to provide for the right of appeal against Home Office decisions on support for asylum seekers. The Government have indicated that there will remain a right of appeal against a decision to suspend or discontinue Section 95 support before it would otherwise come to an end. I have already asked a question in my contribution about the continuation of Section 95 support in respect of a family who have co-operated with the authorities but whose removal has not been possible within the 90-day period, and what their rights of appeal would be. The Government have provided for no right of appeal for failed asylum seekers against the refusal of support under Section 95A. The Government maintain that they do not consider a right of appeal to be necessary because the assessment of whether there is a practical obstacle to departure from the UK in their view generally involves straightforward matters of fact. That is a somewhat debateable assertion in view of the high success rate of appeals against Home Office decisions on support. I ask the Government to think again on this point.
The Government also say that relatively few existing appeals relate to the issue of whether there was a practical obstacle to departure from the UK, which begs the question: why not provide for a right of appeal in what the Government consider will be very few cases of such claims? The other point to make, though, is that to qualify for Section 95A support the applicant has to show they are destitute. The Government say this will not be an issue since claims under Section 95A have to be made during the 90-day grace period under Section 95 support, and that that support, under Section 95, will have been given only to those who have been able to show they are destitute. However, not every asylum seeker receives Section 95 support. They might have savings or be staying with friends or relatives who are supporting them. However, that position could change so that it becomes necessary for them to apply for Section 95A support because they are claiming they are now destitute and that there is an obstacle to them leaving the country. What happens if their claim that they are now destitute and meet the criteria for Section 95A support is declined?
Are the Government saying that they would have no right of appeal on the issue of destitution and, if so, why?
I hope that the Government will reflect further on the withdrawal of that support after 90 days and on the need and desirability for the proposed changes in support for refused asylum-seeking families with children. I hope that they will also reflect further on the issues of right to appeal which I have raised.