My Lords, as we now embark on Part 5, which deals with levels of support and the treatment of migrants, it might be helpful if I put some general points on the record. First, I readily accept that we are talking about a vulnerable group of people. Irrespective of whether their asylum claims are upheld, they have travelled from another country and find themselves in a country where they often have difficulties with the language. One does not minimise in any way that they are a vulnerable group.
Secondly, when the Immigration and Asylum Act was passed by the previous Labour Government in 1999, the provision under Section 95(5) for people in need was a recognition of our international obligations to provide a basic standard of care for people who had applied for asylum in our country and for our protection while their case was being considered. I do not think that it was ever the intention of the Government at that time, as evidenced by their attempt to reform Schedule 3 to the Nationality, Immigration and Asylum Act 2002, that this would be an open-ended commitment, irrespective of whether the person was within the asylum process or had gone through that process and found that their claim was not upheld. It was not intended for that support to continue ad infinitum.
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The next point is that we have not embarked upon this approach lightly. We have had a period of consultation on this, and that consultation received many representations from the groups that have already been referred to. The consultation was responded to by the Government. We then set out, in my letter to the noble Lord, Lord Rosser, on 21 January, significant supporting materials setting out what the changes would be, with the purpose that noble Lords would have greater detail than perhaps is normally the case in considering what the reform of support for failed asylum seekers and other illegal migrants is going to be, and the information contained in Schedules 8 and 9.
Because of the above, we are aware that we are dealing with very sensitive situations and that we have a duty of care, particularly to vulnerable people, so we want to be absolutely sure that we are getting this right. That is the reason why so far we have introduced some 26 different government amendments, including three in this group, which we will be coming to in the next seven or eight groups, to deal with some of the gaps that have been identified—for example, in relation to human trafficking. The reports that have been
received from the Red Cross have been considered very carefully, and the Asylum Support Appeals Project does valuable work, particularly with those who go through that route of applying for asylum support.
The broad principle that I am trying to set out is in many ways a response to the comments of the right reverend Prelate the Bishop of Norwich about the importance of having a fair and humane process. I want to set out that when we talk the about the cash elements that are available, we have to remember that they are in addition to safe and secure accommodation with all utility bills paid for. All that we are talking about here, when it comes into force—“when” being an issue that we will return to—would apply only to new applicants.
In recognising the original purpose of Section 95(5) of the Immigration and Asylum Act 1999, I note that some cases in the asylum applications that we receive, coming to this country each year, raise some question marks. The fact that we receive 80% of 16 and 17 year- old asylum applicants in Europe from Albania is something that we need to factor into these considerations; it is not that there is not a problem. As we want increasingly to extend our hand of help, support and protection to the most vulnerable in our society, particularly those from Syria and Iraq, it behoves us also to ensure that we use the resources available where they are particularly needed, and not perhaps for people who have come to apply to this system who may not be the most in need.
Clause 37 and Schedule 8 reform the support arrangements for failed asylum seekers who the courts have agreed do not need our protection. They do not alter the support for asylum seekers who would otherwise be destitute while their claim is determined and any appeal is heard. Schedule 8 makes two key changes. First, failed asylum-seeking families will no longer be treated as though they were still asylum seekers. They will cease to be eligible for support under Section 95 of the Immigration and Asylum Act 1999, and Section 4 of that Act will be repealed. Support will be available only to destitute failed asylum seekers and any dependent children if there is a “genuine obstacle”—we will return to that phrase and I will expand upon its meaning—that prevents their departure when their appeal rights are exhausted.
In speaking to Amendments 229ZA, 229ZC and 230C, which I will move when we reach them on the Marshalled List, I shall also address some of the amendments in the names of other noble Lords. Amendments 229A, 230A and 230B in the name of the noble Lord, Lord Roberts, would amend the new support provisions for failed asylum seekers so that the Secretary of State “must” rather than “may” provide support if the conditions set out in the regulations are met. We believe that these changes are not necessary because I can confirm that it is our intention to provide support in accordance with the regulations.
Amendment 230 would create a right of appeal for failed asylum seekers against a refusal of support under the new Section 95A of the 1999 Act. It will have been decided that there is no genuine obstacle to them now leaving the UK. These are failed asylum seekers who the courts have agreed do not need our
protection and have no lawful basis to remain here. Let us also remember that they have initially made a claim to the Home Office, and a case worker has examined the facts and reached a decision. At the moment, 41% of those who arrive in the UK are granted leave to remain or humanitarian protection. If they then disagree with that finding, they can appeal to the lower Asylum and Immigration Tribunal. If that appeal is unsuccessful, they can appeal to the Upper Tribunal. So we are talking about people who have gone through some system that entitles them to receive legal aid and advice where they meet the merits tests. There are also organisations such as Migrant Help that are there to offer advice through the system.
Home Office support for families will not end until 90 days. It also has to be remembered that in that initial consultation the recommendation was 28 days; I think it was 21 days for single people and 28 for families. But we have already said—again, I use this to underscore the fact that the Government recognise we are dealing with areas of great sensitivity; we are not setting our face against any change now or in the future in response to evidence we receive—the grace period went up from 28 days to 90 days. I appreciate that it has now been questioned whether 90 days is enough, and we are examining that.
What we mean by “genuine obstacle” will be set out in the regulations, which will be subject to parliamentary approval. It will be, for example, where medical evidence shows that the person is unfit to travel—in the case of the pregnant lady who was referred to by the noble Lord, Lord Rosser, it would be if it was within six weeks of her due date—or where they have applied for but not yet been issued with a travel document. This will involve a straightforward assessment of the facts, so we do not consider that another right of appeal on the end of the process that we have outlined is necessary.
I pay tribute to the excellent work done by the Asylum Support Appeals Project, but we say that its briefing for this debate supports this conclusion. Some 41% of appeals against refusal of support are allowed and others are admitted back to the Home Office for reconsideration, but in many cases this is because the evidence required to show that support was needed was supplied only at the appeal stage. This is evidenced by the cases sampled in the briefing paper. Few appeals currently hinge on whether there is a genuine obstacle preventing their departure from the UK. This is because the Home Office receives few applications for support on this basis. The allowed appeals relied upon usually involve a completely different matter: for example, whether the person is destitute or whether support is necessary to avoid a breach of their human rights.
Most asylum support appeals are against the refusal of Section 4 support to a failed asylum seeker who has lodged further submissions or intends to do so. The Bill will repeal Section 4 and provide Section 95 support for those with outstanding further submissions on protection grounds. A right of appeal against a decision that a person does not qualify for Section 95 support will remain.
Amendment 229ZD, in the name of the noble Baroness, Lady Hamwee, would remove an important provision that defines those seeking Section 95 support on the basis that they have made “further qualifying
submissions” by reference to the Immigration Rules. This cross-reference to the rules is necessary to provide clarity as to what is meant by “further qualifying submissions” and how they fall to be considered after they are lodged. The rules set out the proper procedure to distinguish cases where the person is simply repeating matters that have been already been considered and rejected from those with genuine new grounds to lodge a fresh protection claim. The latter will be granted protection and will therefore be able to apply for mainstream benefits, or will be given a fresh opportunity to appeal against the refusal of their claim and be supported under Section 95 support.
Amendment 229ZE would remove the provision in Section 94 of the 1999 Act that enables a grace period to be provided before a person ceases to be eligible for Section 95 support. The grace period starts when the person is notified of the decision on their protection claim or when any appeal is finally disposed of. Regulations prescribe how long the grace period will last but cannot alter the actual day on which the protection claim or appeal is determined.
Amendment 230ZB would mean that failed asylum seekers supported under new Section 95A of the 1999 Act could be supported only in the form of cash rather than cash or vouchers, as well as with accommodation. The legislation needs to be flexible enough to provide support in different ways to deal with particular circumstances. Section 95 already allows support to be provided through cash or vouchers and it is appropriate that new Section 95A should do the same. We expect that failed asylum seekers who move on to new Section 95A will continue to be supported as they were under Section 95. This will generally be by way of accommodation and cash.