My Lords, I am conscious of the time and that there has been some shuffling around and stern looks from the usual channels, who are looking to make progress. I hope your Lordships will bear with
me when I say that it just happens that the way in which the scheduling has gone, we arrived at what is probably the most important group of amendments just before 7 pm. There are a huge number of people outside as well as inside this Chamber who need to understand what the 26 amendments that the Government have in this group, and of course the other amendments in it, would do. I need to put that on the record—that is a kind of clue to those people who are hovering that it may well be 15 minutes before I have done that. I hope that the House will bear with me and understand that we are talking about a very important group. I want to get those comments and explanations on the record so that they can be examined ahead of Report and our meeting.
To shorten somewhat what I will go through, I again refer noble Lords to my letter of 21 January and to the response explaining Schedules 8 and 9. I particularly draw the Committee’s attention to paragraphs 64 through to 76, and to appendix B. I have struck out some remarks of explanation in the areas covered in that document, which has been circulated and is in the public domain. I have also given an undertaking to the noble Earl, Lord Listowel, and the noble Baroness, Lady Lister, that we will have a meeting on this—an opportunity to exchange views and take a little more time to look at the evidence in the period between Committee and Report.
Clause 38 and Schedule 9 make changes to local authority support in England for migrants without immigration status, under Schedule 3 to the Nationality, Immigration and Asylum Act 2002, while they establish a lawful basis to remain here or prior to their departure from the UK. Our public consultation on asylum support highlighted concerns that the framework provided by Schedule 3 and associated case law was complex and burdensome for local authorities to administer, and involved complicated assessments and continued litigation to establish what support should be provided and in what circumstances. The Public Bill Committee of the Commons heard similar concerns from local authority colleagues.
We are clear that we want to encourage and enable more migrants without any lawful basis to remain here to leave the UK in circumstances where they can do so, while retaining appropriate safeguards. We have also listened carefully to what local authorities have told us about the scope for simplifying and strengthening the current framework. In that context, we have also had engagement with the Office of the Children’s Commissioner and I will ensure that we get a readout from those discussions for our meeting.
Schedule 9 therefore makes two key changes to Schedule 3 to the 2002 Act. First, it simplifies the way in which local authorities assess and provide accommodation and subsistence for destitute families without immigration status. It enables local authorities to continue to provide, under Section 17 of the Children Act 1989, for any other needs of a child or their family in order to safeguard and promote the child’s welfare. Secondly, it prevents adult care leavers who have exhausted their appeal rights and have established no lawful basis to remain here from accessing local authority support under the 1989 Act. It makes alternative provision for their accommodation, subsistence and other support
before they leave the UK. It ensures that local authorities can still provide these care leavers with any social care support which they consider that the young adult needs during this period.
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Schedule 9 includes powers for similar changes to the UK-wide framework in Schedule 3 to the 2002 Act to be made in other parts of the UK by secondary legislation, subject to the affirmative procedure. We are continuing to discuss with the devolved Administrations how that will work in practice in their jurisdictions. As I have said, I wrote to noble Lords on 21 January setting out the details.
In proposing that Clause 38 and Schedule 9 should stand part of the Bill, I will also move a number of government amendments which make important improvements to these provisions. These reflect our discussions with local authorities and other partners and the advice that we have received about particular cases and scenarios. We have listened carefully to the views of noble Lords who spoke at Second Reading. In particular, I thank the noble Lord, Lord Alton, for bringing together experts from a number of voluntary organisations working in this field to discuss the issues raised by these measures. The government amendments that I am moving today respond to several important issues which have been put to us.
In particular, I would highlight Amendments 234G and 236ZB to 236ZD. These amendments retain Children Act support for those adult care leavers with an outstanding first application or appeal to regularise their immigration status. This will provide an important safeguard, for example, for those who have been looked after by a local authority as a victim of trafficking or because of problems within their own family here.
Amendments 234Y and 235M will enable local authorities to prevent destitution by providing temporary support to families and care leavers under new paragraphs 10A and 10B of Schedule 3 to the 2002 Act, pending their decision on eligibility. This will ensure that there is no gap in the support that can be provided. Amendments 235D and 235F will enable local authorities to provide under paragraphs 10B and 11 of Schedule 3 for any other social care support that they consider is required by an adult care leaver whose accommodation and subsistence needs are being met by the Home Office. The same safeguard will apply to any adult care leaver who the local authority is supporting under paragraph 10B.
We have listened and acted to ensure that young adults do not fall between the cracks. We will continue to listen and to reflect on today’s debate. I would welcome the opportunity to discuss these matters further. In providing a better basis for local authority support in this area, we are continuing to work very closely with the Local Government Association and other professionals working in the interests of looked-after children and young adults. We shall want the benefit of their advice on the implementation plans and, crucially, the transitional arrangements as well as on the substance of the measures. We are clear that these changes should not adversely affect any young person currently cared for by a local authority. Processes, systems and safeguards must interlock. Working with
local authorities and the Department for Education, we shall ensure that the right planning is done for this to be so.
Amendment 230D, in the name of the noble Lord, Lord Alton, would disapply the changes made for adult care leavers by Clause 38 and Schedule 9 where the local authority has not ensured that they have received the advice and assistance necessary to make an application for immigration status. I agree with much of the sentiment behind the noble Lord’s amendment but not with its terms. Schedule 9 will not affect the support that must be provided to unaccompanied migrant children in the care of a local authority. They will remain supported under the Children Act 1989, like any other looked-after child. This will include the provision of a personal adviser and pathway plan to assist in their transition, as the noble Earl, Lord Listowel, mentioned. I will write to noble Lords on the specific numbers of people affected, as well as covering a number of the points that I will not be able to reach in answer to the questions raised in the course of the debate.
The Department for Education’s statutory guidance for this group is clear that social workers need to support these children to engage with the immigration authorities to resolve their immigration status. This work should be done as an integral part of their pathway plan, which must address the support they will need if they are granted leave to remain in the UK and their long-term future is here. It also needs to address the support they will need before they leave the UK if the Home Office and the courts decide that they have no lawful basis on which to remain here. We are making no change to the Children Act framework in this respect. It will continue to apply, as now, to adult care leavers pending the outcome of an outstanding asylum claim or first immigration application or appeal and to those who, before the age of 18, are granted leave to remain.
In that context, I turn to Amendments 234B, 234M, 234N and 235A in the name of the noble Earl, Lord Listowel, which would remove the changes made by Schedule 9 to local authority support for adult care leavers. They would maintain, in all cases, the local authority duties under the Children Act 1989 to support them and require those to be adequately funded. I acknowledge the noble Earl’s deep knowledge and expertise in these areas and his concern for the care of young people. I have listened carefully to him and other noble Lords and will continue to do so, particularly at the meeting.
To be clear, the changes in Schedule 9 will affect only those adults leaving local authority care who have not established a lawful basis on which to remain in the UK. I do not agree in principle that this particular group should attract local authority duties to provide support which are designed for the needs and development of those care leavers whose long-term future is in the UK. The Children Act 1989 was not intended to be, and is not appropriate as, a vehicle for meeting the support needs, pending departure from the UK, of adults who the courts have agreed have no right to remain here. We need instead to provide the right basis for ensuring that their individual needs are met prior to their departure from the UK.
Under Schedule 9, local authority support will be available, through new paragraph 10B of Schedule 3 to the 2002 Act, to those who have exhausted their appeal rights and do not face a genuine obstacle to their departure from the UK but who the local authority is satisfied need support. This will enable the local authority to ensure that support does not end abruptly, so that there can be a managed process of encouraging and enabling departure from the UK. The local authority will be able to provide accommodation, subsistence and, by virtue of paragraph 11 of Schedule 3, such other social care support as it considers necessary in individual circumstances. This might, for example, include social worker support in coming to terms with the requirement to leave the UK and making arrangements for that. Where appropriate, it might involve remaining in a foster placement for that period.
Home Office support will be available to those adult care leavers whose asylum claim has failed but who would otherwise be destitute and who face a genuine obstacle to their departure from the UK. Again, the local authority will be able to provide such other social care support as it considers necessary in individual circumstances.
I recognise the important issues of principle raised in this debate. I also recognise the context for it. It is not appropriate that we create such obvious incentives for more unaccompanied children to seek to come to the UK to claim asylum for the wrong reasons, often by using dangerous travel routes controlled by people smugglers and traffickers, and for more young asylum seekers to claim, falsely, to be under 18.
Amendments 234H and 234L, in the name of the noble Baroness, Lady Hamwee, would amend government Amendment 234G. That amendment provides for regulations, subject to the affirmative procedure, to specify the kind of outstanding first immigration application which, pending its outcome, will mean that the adult care leaver remains subject to the Children Act framework. The noble Baroness would instead specify the circumstances which could give rise to such an application. I am not persuaded at this stage that this would be a more effective definition. Instead, it would be less precise and more open to debate, and therefore offer less of a safeguard to the young adults concerned.
Amendments 235G and 235H, also in the name of the noble Baroness, Lady Hamwee, would similarly amend the scope for local authority support under new paragraph 10B of Schedule 3 to the 2002 Act for other adult care leavers with an outstanding application for leave. For similar reasons, I am not persuaded that the amendments would make better provision for this group. Her Amendments 234Q and 235B would require the Secretary of State to make regulations providing for support under new paragraph 10A or 10B of Schedule 3 for families and care leavers without immigration status. This is unnecessary, as the changes in local authority support for those groups made by Schedule 9 depend on those regulations being in place.
Amendment 234X, also in the name of the noble Baroness, Lady Hamwee, would prevent the regulations for local authority support under new paragraph 10A of Schedule 3 for families without immigration status specifying factors which the local authority must take
into account in determining whether the provision of support is necessary to safeguard and promote the welfare of a child. This would weaken the framework for consistent decision-making that we intend, working with the Department for Education, the regulations will provide. To be clear, the decision whether support needs to be provided will remain one for the local authority to determine in light of all the circumstances of the case.
Amendments 235 and 236, in the name of the noble Lord, Lord Rosser, which the noble Lord, Lord Kennedy spoke to, would require the regulations providing for support under new paragraph 10A or 10B of Schedule 3 to the 2002 Act for families and care leavers without immigration status to be subject to the affirmative procedure. The Delegated Powers and Regulatory Reform Committee has recommended this and we are giving due consideration to it.
Amendment 239B, in the name of the noble Baroness, Lady Kennedy, would allow care leavers granted limited leave immediate access to a student loan to meet home student tuition fees for higher education and require local authorities to pay those fees while the immigration application was determined. I take the additional point she made by way of explanation that children in care are judged to be international students for the purposes of the fees and that therefore the fees will be substantially greater, perhaps between £11,000 and £15,000. I will write to her on that—we will look at it and engage in consultation. I listened carefully to the noble Baroness’s suggestion, but we see some difficulties with it. It will require further discussion, which will continue ahead of Report.
It is reasonable to expect those wishing to access student support to demonstrate a fundamental connection to the UK which would suggest that they are likely to remain here to make a long-term contribution to our economy or society. In nearly all other cases, including those of other migrants and British citizens, individuals are required to demonstrate at least three years of ordinary lawful residence here, and the courts have upheld this approach. It is also reasonable to expect migrants with limited leave to meet a long residence requirement before benefiting from state support in this way. It is also right, as Schedule 9 provides, that the costs do not fall on local authorities. I will look again at the specific point about the difference between domestic and international fees and come back with comments.
Other specific points were raised by, for example, the noble Lord, Lord Hylton. I have a pile of responses to those questions. If the noble Lord and other noble Lords will bear with me, I will put those in writing. They will be circulated to all Members of the Committee and placed on the public record in the Library of the House.