Immigration and Nationality (Fees) (Amendment) (No. 2) Regulations 2023

Monday 4th December 2023 Lords Chamber

Motion to Regret

15:55

Moved by

[Baroness Lister of Burtersett]

That this House regrets that the Immigration and Nationality (Fees) (Amendment) (No. 2) Regulations 2023, which increase fees by above inflation for a range of immigration and nationality applications, will (1) increase financial barriers to children securing their rights to British citizenship, (2) cause other individuals to fall out of lawful immigration status and face significant debt and precarity, (3) increase the operational burden on the Home Office, and (4) damage the United Kingdom’s economy; and calls on His Majesty’s Government to consider and develop policies to support individuals, families, and businesses adversely affected by these changes.

Relevant document: 55th Report from the Secondary Legislation Scrutiny Committee, Session 2022-23.

[Baroness Lister of Burtersett (Lab)]

My Lords, this is only the third regret Motion I have brought in my 12 years in your Lordships’ House, and, like the other two, it concerns the crippling level of fees. I declare my position as a RAMP associate.

I will focus mainly on the 20% increase in the route to settlement, entry clearance and indefinite leave to remain fees for those on a five or 10-year route to settlement, and on the same increase in children’s citizenship fees, which is the subject of the previous regret Motions and a matter of great concern to a group of us who have come to be known as “the terriers”, as we never give up. Unfortunately, however, a number of the terriers who wanted to support the Motion could not be here today.

I will start with some general points. The first raises the procedural criticism voiced by the Secondary Legislation Scrutiny Committee:

“Regrettably, this is the third instrument from the Home Office in just over a month that has breached the convention that at least 21 days should be allowed between laying an instrument and bringing it into effect. In none of the cases has it been clear that urgent action is essential, and in this case the breach seems clear-cut as it resulted from the Home Office’s failure to organise its paperwork in time”.


The committee has written to the Minister concerned to seek assurances that there will be no further unjustified breaches that restrict parliamentary scrutiny in this way, and I hope the Minister can give us that assurance today.

The committee was critical of the failure to publish the impact assessment and equalities impact assessment until after the regulations were laid. Praxis, in its briefing on behalf of a group of 15 organisations working on migration issues—I am grateful to Praxis for its help—argues that the EIA fails to consider properly the impact the fee increases will have on those with protected characteristics, especially where there is no fee waiver. It states:

“Given what we know of the different impact of these fees particularly on women”


and “racialised communities”, and their likely “detrimental and discriminatory impact”, the EIA merely “pays lip service” to the assessment of this impact.

The Home Office has dismissed claims that the visa fees increase will harm business competitiveness, even though the Explanatory Memorandum acknowledges that the impact on business, charities and voluntary bodies is likely to be “significant”. Indeed, the FT ran a story in the summer on how business groups are urging a rethink on the grounds that the increase will damage the UK’s competitiveness. However, it quoted an “ally” of the Chancellor as saying:

“We need this to fund the public sector pay awards”,


which was a reason given for the increase when it was announced.

This brings me to the justification made for these big increases in fees. As funding public sector pay awards is not a permitted reason for raising them, the rationale offered in the Explanatory Memorandum is

“to significantly increase the income generated through … fees for the purpose of meeting costs within the wider migration and borders system … This will in turn allow taxpayer funding that would have otherwise been required to meet those costs, to instead be prioritised elsewhere”.

Later, there is an oblique reference to public sector pay. I am certainly in favour of decent public sector pay awards, but I fail to see why they should be financed by above-inflation increases in the fees charged to groups who are often in vulnerable circumstances, given that the existing fees were already well above the costs of their processing—a point I will return to.

Furthermore, the justification of helping to meet the costs of the migration and border system is totally inappropriate in the case of children’s citizenship fees—a point that the terriers have made over and again. As the Project for the Registration of Children as British Citizens, of which I am patron, points out in its briefing with Amnesty and other organisations, for which I am grateful,

“rights to British citizenship by registration are plainly not concerned with migration. Rather these rights are concerned with ensuring that all people whom Parliament identified as having particular connection to the UK when it passed the British Nationality Act 1981 can be fully and equally recognised as citizens of this country.”

Given this, can the Minister please explain the rationale for raising the registration fees of those whom our nationality laws identify as British?

16:00

In the Explanatory Memorandum, the Home Office describes the increases in the various fees as “proportionate”, given that most of them have not been subject to significant increases since 2018. This argument might carry more weight were the fees not already so high—according to one of the submissions to the SLSC, seven to 10 times the cost of processing them. The House of Commons Library points to how, over the last couple of decades, fees have increased significantly and, while the comparisons are not exact, suggests that overall,

“UK immigration costs are much higher than those in many other countries.”

As for child citizenship fees, a former Conservative Home Secretary described them as

“a huge amount of money”.

At £1,214, they are now just over £700 more than it costs to process them. For adults, the excess is now almost £850. How can such sums possibly be justified?

The SLSC did not feel able to adjudicate on the question of fee levels and acknowledged the Home Office’s point that the increases since 2018 have been limited. “Nevertheless”, it stated,

“we understand the potential impact of these large increases in fees on those required to pay them”,

and I will turn to this vital point.

But first, for those on the leave to remain five or 10-year routes, it has to be remembered that in addition to the fee increases in these regulations, already in operation, they face other costs: the immigration health surcharge and repeated extension applications, the costs of both of which are also due to increase. When all these fees are raised, as anticipated, someone on the 10-year route could be paying as much as nearly £19,000 in total for just one adult, never mind children, and excluding the cost of registering biometrics, which must be done at every application. Can the Minister tell us when the repeated extension application fees will be raised; or, better still, can he reassure us that they will not be, given the extra burden they will create?

According to the Joseph Rowntree Foundation, people on the 10-year route to settlement are disproportionately likely to be on a low income, and its recent destitution study found migrants to be overrepresented. Not surprisingly, even prior to the fees increase, recent research by the Institute for Public Policy Research and the Greater Manchester Immigration Aid Unit found that visa applications are forcing many of them into debts of tens of thousands of pounds. This has left many migrants unable to cover their most basic needs, and vulnerable to exploitation and trafficking. For those who cannot pay, the result can be a loss of lawful immigration status and, with it, the right to work, rent a home or access healthcare safely. Research by the Joint Council for the Welfare of Immigrants has shown that the inability to meet the cost of these is already a key factor in the loss of legal immigration status. Other research with young migrants has documented the profound impact on mental health and well-being.

For the children required to pay the citizenship registration fee, the consequences of not being able to do so can be profound. The High Court found, on the basis of a mass of evidence, that children so excluded were made to feel alienated. It can affect their right to enter higher education and, in adulthood, makes them vulnerable to the hostile/compliant environment policy, with echoes of the Windrush scandal. In the words of the PRCBC, they enter adulthood “facing significant disadvantages”, even when they were born in the UK. This has particular implications for those in poverty or living with disabilities.

One example is Harriet, who was born in and has always lived in the UK. She has always lived with significant disabilities. Her lone mother could not afford the fee when she was a child, when there was no waiver. Now that she is an adult, without the possibility of a waiver, she is unlikely ever to be able to afford the increased fee and to secure the citizenship to which she has been entitled since the age of 10. Can the Minister tell us what steps were taken to assess whether the children’s fee increase was in the best interests of the child, as is required by law? On the face of it, it is difficult to see how a 20% increase in a fee that had already been described as “huge” by a former Home Secretary could be in a child’s best interests.

The Home Office’s answer to many of the concerns raised is that fee waivers are available in specific circumstances. However, as the SLSC noted, many people are unaware of them or of their potential eligibility. The committee therefore encouraged the Home Office to consider whether they were publicised well enough. Can the Minister tell us what steps the Home Office has taken in response and whether it plans to improve the publicity of such waivers for potential applicants?

Other concerns relate to the narrow scope of fee waivers and the difficulties associated with claiming. Praxis points out that migrant fee waivers are available only to the minority making specified human rights applications for a waiver and cannot be claimed by many of those applying for indefinite leave to remain, leaving them in a prolonged state of precarity and vulnerability to loss of status if they cannot afford the fees. As evidence from the Work and Pensions Committee’s inquiry noted, those who are able to claim face a complex process that is difficult to navigate without expert legal advice, yet, in most cases, such an application will be out of scope of legal aid in England and Wales. That submission also suggested that an historically high refusal rate can itself act as a deterrent to applying.

Just how restrictive the criteria can be is illustrated by the example of someone whose fee waiver request was turned down because he was sleeping on a friend’s sofa. This was deemed to constitute a source of support that meant he supposedly was not destitute. Praxis concludes that

“for all practical purposes, fee waivers are out of reach even for those who are eligible”.

In the face of a big increase in fees, will the Government now review the scope and accessibility of waivers?

Fee waivers were introduced only for children’s citizenship fees, not adults’, last year in response to litigation, together with the welcome automatic exemption of children looked after by a local authority. Although the introduction of a waiver was a positive step, the PRCBC warns that

“the waiver process has itself introduced considerable complexity, bureaucracy, and evidential demands to satisfy the Home Office that the fee is unaffordable and so to be waived. Many British children, therefore, remain excluded. This is because although they cannot afford the fee, they and/or their parents are either defeated by the waiver process”

or are not poor enough to qualify for a waiver even though they are too poor to pay the fee and are, in many cases, poor enough to qualify for means-tested benefits. Would it not make sense at least to waive the fee for those in receipt of means-tested benefits?

This takes us back to a debate that we had last year, when there was considerable criticism of the guidance for the administration of these waivers. The noble Baroness, Lady Williams of Trafford, who was the Minister at the time, told noble Lords that the Home Office was “open to feedback” on the guidance and assured us:

“Where it is clear that applicants face issues of affordability—for example, where the individual might face destitution … there will not be an onerous focus on the evidence required”.—[Official Report, 6/7/22; col. 1068.]

Can the Minister tell us—either now or, if necessary, in writing—what changes have been made to the guidance in response to the feedback provided during the debate and any other feedback received?

In response to questioning, she confirmed that there would be ongoing monitoring of the take-up of the waiver. Can the Minister therefore tell us what the current fee waiver grant rate is? The impact assessment assumed 63%. Although there were

“no specific plans to report to Parliament”

on the monitoring, she said that

“we are open to providing further updates and will consider the best mechanism for doing this”.—[Official Report, 6/7/22; col. 1068.]

That was well over a year ago, so I would be grateful if the Minister could tell us what the mechanism is, as the terriers certainly have not been updated.

More generally, given their “controversial nature”, the SLSC encourages the Home Office

“to review the effects of the changes following their implementation”.

Again, will the Minister give us an assurance that this will happen, that the results will be reported to Parliament and that, if the effects are as feared, the Government will act to mitigate them?

The fee and visa increases implemented as a result of these regulations have caused considerable concern. Do we really want to push people who are trying to make a life for themselves in our country into undocumented penury and ill health, and make it even harder for children to make good their citizenship rights? I beg to move.

[Baroness D'Souza (CB)]

I will briefly underline some of the concerns expressed by the noble Baroness, Lady Lister, and also, once again, point to the technical anomalies in the laying of this instrument, which we should not ride roughshod over. These unprecedented increases in fees introduced on 4 October put, for example, fees for a skilled worker’s three-year permit 540% above other leading science nations. This has enormous economic implications for any would-be immigrant skilled worker, as well as for employers. It seems to me that at the very least the Home Office must introduce policies to minimise the regulatory and economic burdens on businesses, especially SMEs. We all recognise that this is a difficult area, but, if we are to increase UK productivity, we need more skilled workers, who are currently threatened with impoverishment or indeed so demotivated that they do not attempt to come to this country at all.

As, again, the noble Baroness has said, the real hardship and heartache disproportionately affect children. Quite simply, the new fees now demanded for children to have indefinite leave to remain have become extortionate. The fee waivers scheme for parents is so impenetrable and expensive that we risk exposing a whole generation of entirely blameless and extremely vulnerable children to an insecure and uncertain future. Is this really what the Government want to do?

[Lord Moylan (Con)]

My Lords, I rise briefly to speak in support of at least one of the points made by the noble Baroness, Lady Lister of Burtersett. It is a point I have made before.

Nobody is entitled under any form of international law to succeed in an application for naturalisation as a British subject. In fact, we as a country are not obliged to grant naturalisation, but Parliament chooses that we should do so. In doing so, it understandably sets conditions; these conditions might relate to good character, how long one has lived here and things like that. Of course, part of those conditions will include the setting of the fee that needs to be paid. There are other immigration processes that people who are not British subjects may wish to apply for, which again may rightly and properly involve a fee. Nobody disputes that; the noble Baroness does not dispute that as a matter of principle at all. There are practical considerations, some of which the noble Baroness has explored in quite considerable detail in her remarks, about what the effects of those fees might be, and the noble Baroness, Lady D’Souza, raised the question of the effects, particularly in relation to people coming here with scientific qualifications and in the scope of education. All of those are matters which are very properly the subject of public policy.

16:15

I tend to think that it is true that the Home Office is playing sleight of hand here to some extent, raising the fees higher than they need to be raised, or at least higher than can be justified by the work involved, as a means of trying to extract money from people who need to go through those processes, but it is ultimately a matter of policy. However, there is a bigger sleight of hand going on, which is the point that concerns me. It is the obfuscation we constantly see from the Home Office about the distinction between applications for naturalisation or other immigration processes, to which I have been referring so far, and applications for registration as a British national.

The application for registration is not an application made by a foreign person for the right to be naturalised as British; the application for registration is an application by somebody who is already British to be recognised as such by the Government and the state. That status of being qualified for registration arose—I think it was legislated for at the end of the Second World War—because of the messiness and complexity of nationality and different national statuses that were left behind as empire began to dissolve. It was recognised by government and Parliament that you could not possibly make a list of all the different categories that might arise—you would miss people—and so there would be this safeguard for people who were entitled to be recognised as, at the time, British subjects, who would apply and demonstrate it on the evidence. That does not seem to me the same thing at all; that seems to me the recognition of a right that already exists.

We who do not have to demonstrate that right, or who can demonstrate it routinely, are perfectly willing to accept that some fee might be involved in that. We all pay a fee when we apply for a passport. We begrudge paying fees, but we do not think it is a wicked thing to do, so some fee might well be involved in registration. However, a fee that is so high that it prevents people exercising what are in fact their natural rights—rights that have recognised by Parliament—seems wholly odious. The constant obfuscation of the Home Office in trying to merge these two and pretend that they are really the same is almost bordering on insulting to a Parliament that created that distinction in the first place.

I see some modestly approving nods on the Labour Front Bench. However, it is the case that, in the past, I have noticed that although the Labour Party might have some sympathy for this argument, it never actually swings in behind it with the undoubted weight that it can bring if things were forced to the Lobbies. I think that is a pity, because I believe that this category was introduced in the immediate post-war era by none other than the Attlee Government. It is a Labour invention, so I would have thought that the Labour Party would be willing on some occasion, if not today, to put itself on the front line on that. We will find out.

In the meantime, I urge my noble friend on the Front Bench to be honest and clear about these two wholly different categories, and recognise that, even though fees are appropriate for both, they are absolutely distinct and the Home Office should stop trying to muddle us about them.

[Baroness Blower (Lab)]

My Lords, it is, for the most part, a pleasure to follow the noble Lord, Lord Moylan, in what he had to say. We can understand why some people might find this rather difficult to follow. It was beautifully explained by the noble Lord but, none the less, has a measure of complexity.

I have little to add to the extremely competent, wide-ranging and interesting speech made by my noble friend Lady Lister. However, by way of support and amplification, I add that, when I was working with the National Union of Teachers, I came across cases—I would not say many but certainly more than several—of young people who genuinely believed themselves to be British and were astounded to find that their way to higher education was barred by the fact that their parents had not taken steps to secure their position. Frankly, it was devastating for these young people, as it was for their teachers and for those of us who attempted to work with them. In the briefings—for which I am extremely grateful—there is the case of one such young person, Arthur, whose parents equally had made no steps in the direction of securing his position. He then became an adult and simply does not have the resources to be able to secure his own position.

I conclude by saying that the 20% increase, so far above the cost of processing, looks a lot like what we might in other circumstances call profiteering. Last week, we all heard with horror—certainly, I did—that the increases in retail prices of baby formula, way above the costs incurred, were genuinely felt to be completely unacceptable. This seems to be a somewhat parallel case. As my noble friend said, making the poor poorer in respect of things to which they are entitled, possibly sending them into destitution, seems a wholly unacceptable thing for the Government of this country to do. Is it possible to reconsider this position so that the proposed changes are instead limited to only the actual processing costs? Will the Home Office consider developing policies to minimise the regulatory and economic burden of fees on businesses, as explained by my noble friend Lady Lister?

[The Lord Bishop of Chichester]

My Lords, I am enormously grateful to the noble Baroness, Lady Lister, for bringing this debate to us. I underline my great support for everything that she said, as well as what has been said in other contributions.

I want to point to just one area: where do we see most obviously the impact on children of the slide into child poverty—the misery, fear and confusion—in part as a result of these fees? The answer, of course, is in our schools. Looking at the waiver application process, I doubt there will be much movement in extending it widely, but would it not be possible for the Government to simplify it? Could they liaise with schools, which are often at the sharp end of trying to meet the needs of those who find themselves most vulnerable? I know from my own experience in our church schools across the coastal towns of Sussex that this is where child poverty and its multiple causes are most keenly felt. Alongside working with schools, it would be helpful to work with organisations in the voluntary sector, which again are often responsible for picking up the consequences of families sliding into child poverty. Some attention on ensuring that waiver application processes are well-known and publicised in those two areas—education and the voluntary sector—could be of some practical help.

[Baroness Primarolo (Lab)]

My Lords, I congratulate the noble Baroness, Lady Lister, on her comprehensive introduction to these regulations. I will make a short contribution to this debate, specifically on the question of citizenship and the charges that are being imposed. The Government’s impact assessment and their justification for these huge increases in immigration fees are based on their broader immigration policies and associated with managing the migration process.

Paragraph 1 of the impact assessment sets out three specific strategic objectives. The first is to ensure

“the legitimate movement of people and goods to support economic prosperity”,

but the noble Baroness, Lady D’Souza, dealt clearly with the point about how these regulations could be counter to that objective. The second objective is

“the sustainable funding of the borders and migration system”,

while the third is

“reducing reliance on the UK taxpayer”

to fund migration processes.

However, as a number of noble Lords have pointed out in this debate, citizenship rights, particularly for those born in the UK, are distinct and separate from immigration. Those citizenship rights are determined by Parliament and clearly given in the British Nationality Act 1981. Citizenship is not a service or a privilege that can be equated with immigration-related procedures. Citizenship—at least in my view, though perhaps not the Government’s—is a fundamental right, particularly for those born in the UK. It represents a legal status intrinsic to their identity.

Unlike immigration services, which may involve immigration processes related to border control and residency, citizenship is about affirming an individual’s connection to the UK. The noble Lord, Lord Moylan, referred to it as a registration of their Britishness—their entitlement to be British. They were born here, grew up here and contribute to our society. Rightly, they see themselves as British citizens, just like we do, so why do they have to face these exorbitant, extortionate fees in order to claim their right?

The Government need to clearly explain today why they continue to fail to distinguish between migration-related processes and citizens’ rights, and what that means for questions about the equitable treatment of our own citizens now. In justifying the regulations, the Minister has to give this House a clear explanation of why the Government do not feel they have to make that distinction.

I would be grateful if the Minister explained why the Government believe that British citizens should face these huge fees, where there is not an administrative cost associated with them, to affirm something that is already their right. That has implications for justice, equality and respect for the rule of law. This Government are running counter—maybe not deliberately; I will be generous on this occasion—to the principle of what it means to be a British citizen.

The Government need to explain why they are not prepared to acknowledge the uniqueness of citizenship as a right. If the Government accepted that uniqueness and addressed it today, they could demonstrate clearly the principles of upholding fairness and justice, and ensuring that financial barriers do not impede individuals from registering their right.

16:30

I have confined my remarks to this small area because the contributions on this Motion have been extensive, but I want to return finally to the point that a number of noble Lords have made on the question of the waiver scheme. The Government introduced, perhaps kicking and screaming after some challenges in law, a waiver scheme for children. As the noble Baroness, Lady Lister, said, this House is entitled now to receive the information—and was given undertakings on this—about how this scheme is operating, to summarise its accessibility, its success and how it is ensuring that children and young people are supported in registering their rights as British citizens.

This is an incredibly complicated debate, but to alienate young British citizens by telling them that they are not really British, despite being born and having grown up here—despite having lived all their lives here and trying to make a contribution to our society—and that they are not the same as you or me, simply because they cannot afford a huge fee, cannot be right. The Government need now to give an undertaking to this House to revisit the question of citizens’ rights—I hope that the Minister will feel able to do that—and whether they can separate that registration of a right from their general immigration policies. I might have views on those policies, but I will not touch on that today because I want to concentrate only on how importantly I value my citizenship. I think it means that people identify and contribute. At our peril, we tell people who are really British that they are not. That is what these regulations are in danger of doing.

[Baroness Altmann (Con)]

My Lords, I too congratulate the noble Baroness, Lady Lister, on her persistence, her perseverance and her dedication to this issue. She has raised it time and again, and I hope that my noble friend on the Front Bench will listen carefully, particularly to the contributions that we have just heard from my noble friend Lord Moylan and the noble Baroness, Lady Primarolo, on the specific matter of citizenship and charging citizens a fee at such a high level for a right that they already have.

But I agree that being British is a hugely valuable commodity, and the Government are right to say that those who can afford to pay for that privilege should be asked to do so. Of course, one would ideally like to cover only the cost and not to have some excess revenue from this source. But if there is an opportunity for some people who can afford it to be asked to pay, and contribute to the general well-being of the Exchequer, in such circumstances where they will receive this valuable right, I believe that is okay.

I am also delighted that there is a fee waiver scheme. I congratulate the Government; I think they recognised the need for this. The problem, as we have heard, is that many people either are unaware of their entitlement or find the process extremely complex. It is also somewhat narrow in scope. The right reverend Prelate the Bishop of Chichester and the noble Baroness, Lady D’Souza, pointed out the ways in which we might identify children who will be severely disadvantaged by the extraordinary level of fees that someone who cannot afford this kind of money is expected to pay.

The problem is that there is such a huge disparity between the cost of the current proposals and the fee waiver scheme, which potentially has zero cost. Covering the cost is important. Could my noble friend tell me if the Government would consider some kind of in-between category at a reduced fee rate, which covers the cost without the excess, in certain circumstances? It would not be the full fee or full waiver for certain groups, especially for some of the children who might manage a lower amount.

I would be grateful if my noble friend could give us updated estimates of the excess revenue the Government expect to bring in, in excess of the cost of administration, from this scheme. What is the Government’s latest estimate of the potential damage to business from the current proposed level of fees? I agree that we need to make reasonable charges for applications to grant citizenship and migration and nationality rights, but I hope my noble friend takes on board the strength of feeling expressed around the House about the possibility of some off-setting or mitigating measures.

[Lord German (LD)]

My Lords, these Benches are grateful to the noble Baroness, Lady Lister, for bringing these issues to us and discussing them. Particularly important is the impact on younger people and those who have no way of making that payment, and the poverty into which some of these people will fall.

I will give noble Lords some indication of the size of this SI and what its impact will be. The Government have been very honest about it; it is in paragraph 12.2 of the Explanatory Memorandum. I quote:

“The impact on the public sector is also likely to be significant—a net benefit to the public sector in the order of hundreds of millions of pounds per year, predominantly due to increased revenue being generated”.


We are talking about a huge amount of money, which is being generated not just to fulfil the costs of the scheme, but to add to the Exchequer and the volume of money coming in.

One of the people who objected to this and who wrote to the SLSC posited that these fees were some of the highest in the world. In reply, the Government said that it is very difficult to make judgments but

“we believe that UK visa fees are broadly competitive when compared with comparable countries globally”.

That is an assertion, as was the statement by the other group in the other direction. However, for the Government to say this, they must have some working out. When you do a maths sum of that sort, there must be some working out. Will the Minister provide for the House some of the indications that give the Home Office the right to believe that the fees are broadly competitive so that we can understand them? There are two factors here: a huge increase, worth hundreds of millions of pounds to the public sector, and an assertion that they are high compared with everywhere else.

I reiterate and amplify the points about this House’s 21-day rule made by the noble Baroness, Lady Lister, at the beginning. It is a discourtesy to this House that the rules we apply to the Government have not been followed—not just once or twice but three times in the last month. It strikes me that the SLSC’s polite language is really saying that the Home Office’s procedures are rubbish, because it is discounting this Parliament’s view in observing and looking over the legislation before us. That stands in direct opposition to the Minister’s Statement to this House two weeks ago, on the treaty that the Government were negotiating with Rwanda, which said that the full details of the treaty and the full time that this House requires to examine it would be allowed and provided for. I am grateful for that assertion, because that means that the rules will be followed, but I think that we in this House would like to know whether the Home Office will in future follow all the rules that this House lays upon it.

On the waiver scheme, I note the points raised by the noble Lord, Lord Moylan, and the noble Baroness, Lady Primarolo. I will look particularly at fee waivers for applications for limited leave to remain. There may be questions about their effectiveness, but I raise with the Minister the fact that fee waivers for applications for indefinite leave to remain for young people on the five-year route to settlement are not satisfactory. This is a cohort of people who either are under the age of 18 and have lived in the United Kingdom for at least seven years or are aged between 18 and 24 years old and have spent half of their lives in the United Kingdom.

The Government have already recognised their specific position and offered them a more affordable five-year route to settlement, but this offer cannot be accessed by many—I note the age of this cohort—as they are unable to afford the indefinite leave to remain application fee. These are not incoming migrants; they have been accepted as having a right to settlement, and we need to give young people every opportunity to be and feel part of our communities, rather than putting barriers in their way. With the 20% increase in the indefinite leave to remain application fees, will the department give this matter further consideration?

Of course, if more people are unable to afford the indefinite leave to remain application, people will attempt to put in a waiver. Waiver schemes are available, but some people posit that, because they are so complicated, it is necessary to employ a lawyer to work your way through them. Of course, people cannot afford a lawyer, so they do not apply for a scheme and do not apply at all.

The Minister projects—and we heard the figures—that more people will be acceptable for waiver applications, so what is the projected cost of that additional workload for the Home Office from those who have waivers? We need to measure that against the hundreds of millions of pounds a year being sought and brought about by extra revenue.

On the cost to business in this country, the Government have again been honest, saying that, for the changes to the fees mentioned,

“the impact on business, charities or voluntary bodies is likely to be significant—we believe there will be a cost to business in the order of tens of millions of pounds per year”.

That is tens of millions of pounds that business will be asked to find. I thought that this Government were not in favour of increasing the taxes on business but, clearly, I have got it wrong. Could the Minister tell me whether that fact that they have placed in their document—that there will be tens of billions of pounds extra that businesses will have to pay the Government—is essentially another tax? The rate that they are asking is far beyond the increase we would expect to see with simply just the cost of living added to it. Any increase in costs, especially at a time when recruitment in specialised roles is already so difficult for many, will have the inevitable outcome, maybe, of driving companies as far as falling out of business. How will the Treasury reconcile lost revenue from small and medium-sized enterprises that are no longer able to afford the fees and recompense them so that they are able to sustain their business?

These are very complex regulations. We are grateful for the opportunity to have this debate, but we are in a position where significant amounts of money are being made from people who can ill afford it and businesses are being asked to fund part of this scheme in a way that will certainly not help the development of our economy.

16:45

[Lord Coaker (Lab)]

My Lords, I thank my noble friend Lady Lister for her regret Motion, the moving and articulate way in which she put her case and the very serious questions that she raised and points that she made. We owe her a debt of gratitude for bringing it forward.

As many noble Lords have pointed out, we have before us a very important SI of many pages, which raises many significant issues for us to think about and discuss. It is only with a regret Motion that this Chamber gets this opportunity to do that—and there is a wider question for us about how secondary legislation has huge impacts on our country and the people in it.

Many noble Lords have made significant and important points. The noble Lord, Lord Moylan, logically and methodically pointed out the distinction between the naturalisation process and the process of citizenship. I know that the Labour Government to whom he referred tried to address that in the British Nationality Act 1948, which became law in 1949. It was in reference to that that I was nodding. He made the important point that the Minister will have to look at how the Government are distinguishing between those two things—or are they just ignoring it?

My noble friend Lady Primarolo logically and movingly put the case for what citizenship means, the rights of someone born here, and how that generates citizenship rights that we should respect. She talked about the difference between that and somebody going through the other process, which the noble Lord, Lord Moylan, mentioned. That is a very important matter, which we look forward to the Minister explaining to us. I congratulate my noble friend on that—and, to be fair, the noble Lord, Lord Moylan, who brought it up as well.

As has been pointed out, this policy of immigration fees has been used for many years, but that does not mean that the proportionality and fairness of, or the rationale for, these significant rises in fees payable for most immigration services cannot be questioned or debated. The fee increases that we are looking at have been very significant, with a 15% or 20% increase for most fees and many facing a much bigger increase. For example, there is a 35% increase for student visa fees, for applications made outside the UK. There are also arrangements for a new electronic travel authorisation for all non-British or Irish passengers visiting or transiting through the UK who do not need a visa, who have to obtain permission first and pay a fee of £10. It is important for the Government to say whether they will assess the impact of that new ETA arrangement. Although the immigration health charge increase of 66% is not included in this instrument, can the Minister update us on any progress with it?

The Home Office tells us that the rationale for changes is to

“significantly increase the income generated through immigration and nationality fees for the purpose of meeting costs within the wider migration and borders system”.

Can the Minister explain that in more detail? Can he also say why the overall increase is well above the rate of inflation? The Home Office justification is to say “Well, we haven’t raised them significantly since 2018”. Why have a policy of small increases for a number of years followed by a huge increase in another year? Why not increase them proportionately, rather than have the massive increase that we see this year?

What assessment have the Government made of the various groups affected by these changes? A number of noble Lords made that point. In other words, what is the human cost of the changes that the Government are bringing forward? Can the Minister clarify, for the avoidance of doubt, another question that has been asked: how much do fees currently raise? What is the unit cost for the processing of an individual application compared with the fee charged? How much additional income will the rise in fees actually raise? What is the total cost of the system this year and the predicted cost next year? It is very difficult to find, in any of the information I have looked at, the exact figures the Government are using to justify the fees and the overall cost of the system.

Given the impact of fees on various migrants, how many applicants are currently covered by the fee waiver scheme and what numbers are predicted in future? This was another point made by a number of noble Lords.

As the noble Lord, Lord German, and others pointed out, the Secondary Legislation Scrutiny Committee makes considerable criticism of the Home Office for breaking the 21-day rule by bringing the SI into force on 4 October—19 days after the laying of the instrument rather than 21 days. I think your Lordships can understand why a proper process is so important, given the interest in this debate. I point out to the Minister that 21 days is not a maximum but a minimum, so that noble Lords can discuss this. Can he explain why this happened, given that it is, I think, the third time it has happened? Which Minister signed it off, and have they been told that it is unacceptable? The Minister will get up and say, “We’re very sorry and we need to do something about it”, but it is a process that seems to be happening time and again. It is simply not good enough.

Alongside that, can the Minister explain why the Explanatory Memorandum and the equalities impact assessment were not published in time to go alongside this SI? They have now been published but they were not published at the appropriate times. These failings of process are happening time and again. I think the Minister will agree, because I know he understands the importance of process and frankly, to be fair to him, does his best to ensure that the proper process is followed, that this is extremely important given the various points made in this debate.

As we discuss this important SI, there has been yet another statement on migration. Are the Government sure that their assessment of the impacts on vulnerable migrants is accurate? Are they sure that these fee changes will not have an adverse impact on skills shortages for UK businesses, including in the NHS and in care sectors, for example? As I said, fees have long played a part in the overall immigration systems, but they need to do so in a fair, principled and proportionate way, which means that many of today’s questions need full and frank answers from the Government.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I thank all noble Lords who have spoken, particularly the noble Baroness, Lady Lister of Burtersett, who tabled this debate and has given us the opportunity to discuss these important issues. Before I address the points raised, I will summarise how fees are set and the role of Parliament in setting fees for immigration and nationality applications.

It is important to emphasise that the Home Office cannot set or amend fee levels without obtaining the approval of Parliament. This ensures that there are checks and balances in place and full parliamentary oversight of the fees regime. Immigration and nationality fees can be set only within the limits specified by the Immigration and Nationality (Fees) Order, which include the maximum fee levels that can be charged on each application type or service. This is laid in Parliament and subject to the affirmative resolution procedure.

Individual fee levels are calculated in line with Managing Public Money principles and the powers provided by the Immigration Act 2014. Specific fees are set out in regulations, which are then presented to Parliament and subject to the negative procedure. The regulations laid by the Government in September increased fees across a number of immigration and nationality routes, including those for people seeking to visit the UK as a visitor and the majority of fees for entry clearance and for certain applications for leave to remain in the UK, including those for work and study.

Noble Lords are aware of the Government’s intention that those who use and benefit from the migration and borders system should contribute to its funding. In that, I agree with my noble friend Lady Altmann. The burden of operating the system should not unduly fall on the UK taxpayer. To answer directly the noble Baroness, Lady Blower, that is not profiteering—it is protecting the interests of the British taxpayer.

The increases that came into effect in October were, in the majority of cases, the first substantial increases made since 2018. They are proportionate when considered against wider price trends in the intervening period, to answer the noble Lord, Lord Coaker. At a time of high inflation and record migration, it is important to ensure that the system is sustainably funded. The recent increases have led to the raising of some concerns in the House around the impact on the UK economy and the potential for people to be deterred from visiting, working in and studying in the UK. As I have already set out, the Government’s policy is that the cost of operating the migration and borders system is to be funded by those who use it. This policy is at the heart of the decision to increase fees.

The Government have published an economic impact assessment—I will come back to this—alongside the regulations, setting out their potential impacts. The Government keep fees under review and will continue to monitor the position, but there is limited evidence to date that fee increases have impacted on the number of people coming to visit, work in and study in the UK. In answer to the noble Baroness, Lady Lister, the best interests of the child were considered in the economic impact assessment.

The noble Baroness, Lady Lister, also raised concerns about the potential for people to fall out of lawful immigration status and face significant debt and precarity. Those who are in the UK on family and human rights routes can be assured that these regulations made no changes to the provision of existing waivers and exceptions from the need to pay application fees in a number of specific circumstances. That includes affordability-based waivers for entry clearance and leave to remain on family and human rights grounds, which ensures that families unable to afford the fee are not prevented from making an application to enter or remain in the UK. Additionally, for children seeking to register as a British citizen, an affordability waiver was introduced in 2022 and has improved access to British citizenship for children who may face issues in paying the application fee. I say to my noble friend Lord Moylan that I will come back to this subject in a second.

These provisions ensure that the Home Office’s immigration and nationality fee structure complies with international obligations and wider government policy. We believe it represents the right balance between protecting the integrity of the department’s funding model and helping to facilitate access to immigration and nationality products and services, including for the most vulnerable. I note the concerns raised about the potential for these fee increases to increase the operational burden on the Home Office. We acknowledge that the recent increase may see more people seeking a fee waiver, but the Home Office has an obligation to ensure that the integrity of the migration and borders system’s funding model is maintained. I hope that provides at least some reassurance that those who cannot afford the fee will not be prevented from making an application to enter or remain in the UK on human and family rights grounds.

As I said earlier, in recent years the Government have taken steps to ensure that the fee for children seeking to register as British citizens is not a barrier to them making an application, through the provision of the waiver on the basis of affordability and the fee exception for children who are looked after by local authorities. Adult registration applications do not have a waiver available, but most of the applications for registration are made by children.

On the breach of the 21-day rule, I say to the noble Lord, Lord German, that—in comparing this with discussions about the treaty—there is a significant difference between primary and secondary legislation. On this particular rule, I regret that it was late. The scheduled date of commencement of fee increases was 4 October, in view of a planned laying date of 13 September, with the commencement date used as the basis for wider communications and delivery planning activity. However, late amendment to the regulations meant that this was not possible. Given that delaying the commencement date would have cost the department an estimated loss of additional revenue of about £2 million—a significant amount, which would have impacted priority functions—and that further changes to updated front-end systems would be needed at some additional cost and delay, it was determined that the original commencement date should be maintained.

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Further consideration has also been given to the prior announcement that was made to Parliament in relation to these increases on 13 July by the Chief Secretary to the Treasury as part of a wider Statement on public sector pay. If the regulations had been laid on the original schedule, the 21 days would have been met. The rule should be broken only when urgent action is necessary but, as noted previously, the department determined that it was necessary to maintain the 4 October commencement date to ensure that the full projected income from the fee increases was realised in 2023-24.

On the Explanatory Memorandum, the impact assessment was prepared for the instrument, but it was published on the website on 18 September 2023—again, it was a little late and I apologise.

The noble Baroness, Lady Lister, asked me directly whether visa fees are paying for public sector pay increases. As well as the cost of processing an application, the Immigration Act 2014 allows the Home Office to have regard to a number of factors when setting the fees for immigration and nationality functions, including the cost of operating other parts of the system, benefits that are likely to accrue to successful applicants and the cost of processing the application. However, income generated from application fees can be used only to fund the migration and borders system. It is the Government’s policy that those who use and benefit most from the immigration system should contribute to the cost of operating the system, reducing the burden on the taxpayer. These increases allow more funding to be prioritised elsewhere in the Home Office, which will include paying for vital services.

On setting higher fees and deterring applications, there is little evidence that fee increases to date have significantly affected demand on work, study or tourism routes. When we make fee changes in legislation we publish impact assessments that evaluate potential behavioural impacts on prospective applicants.

A number of noble Lords, including the noble Baronesses, Lady D’Souza and Lady Lister, and the noble Lord, Lord German, asked how the UK’s visa fees compare with those of key competitors. UK visa fees are broadly competitive when compared with the fees charged by comparative countries globally. However, visa products are difficult to compare because visa offers—which include things such as benefits and entitlements gained, duration of stay and so on—vary significantly between countries. We will continue to keep our visa fees under review. As I have said many times, visa fees help fund the broader migration and borders system.

My noble friend Lady Altmann raised some concerns about the impact that increased fees will have on the economy. There is limited evidence suggesting that fee increases to date have affected volumes on those routes. The impact assessment published alongside the regulations suggests that an increase in fee levels is unlikely to have an impact on demand. On the numbers that the noble Lord, Lord German, was talking about, I do not see the fee increases as particularly burdensome on business. I have not read the precise paragraph to which he referred, but I cannot remember seeing a figure of tens of millions.

On indefinite leave to remain, a subject raised by the noble Baroness, Lady Lister, I am aware of concerns about the fee for indefinite leave to remain. The right to stay indefinitely in the UK is one of the most valuable entitlements of any product offered, which is why it is right that the fee for this product has increased in line with the changes being made to wider immigration and nationality fees.

A grant of indefinite leave to remain is not usually necessary to enable people to remain in the UK on the basis of their Article 8 or other ECHR rights, as these can usually be met through a grant of limited leave to remain. The provision of an affordability-based waiver for limited leave on family and private life routes allows an individual or family to remain here lawfully, and to then apply for settlement and pay the fee when the funds become available.

There was some interest in the statistics behind affordability fee waivers, and I am happy to report that I have some. Some 43,947 fee waiver applications were received in 2022. In the first two quarters of 2023, the number was 23,833—a reduction from the number received during the same period in 2022, when it was significantly higher.

We have not increased fees for limited leave to remain due to the need for further technical arrangements to be put in place to ensure that all applicants can pay the correct level of fee. It has not been possible to include this increase in these regulations, but it is the Government’s intention to increase the fee for limited leave to remain, including applications on family and human rights routes, at the earliest opportunity. Until then, the fee for limited leave to remain will stay the same.

I have talked a little bit about waivers. The right reverend Prelate the Bishop of Chichester made some very good points about publicising those fees, which I will take back. We have always provided for exceptions to the need to pay application fees in a number of specific circumstances, including affordability-based waivers for entry clearance and leave to remain on family and human rights grounds, and applications for child citizenship registration. These provisions ensure that the Home Office’s immigration and nationality fee structure complies with international obligations and wider government policy. We believe this represents the right balance between protecting the integrity of the department’s funding model and helping to facilitate access to immigration and nationality products and services, including for the most vulnerable. I also note my noble friend Lady Altmann’s points about an “in-between” fee, which I am very happy to take back to the office for further discussions.

The noble Lord, Lord Coaker, asked me about the immigration health surcharge. I hope it is appreciated that this is not the right time to discuss the proposed increase in that. The level of the immigration health surcharge is set in separate legislation, an amendment to which has been laid in Parliament and will be subject to debates here and in the other place. I am not sure when it is scheduled, but I think it is relatively imminent.

The noble Lord, Lord Coaker, asked me how much money was generated from visa and immigration income certificate and passport fees in 2022-23, which is a much broader range. It is about £2.8 billion, not including income from the immigration health surcharge. The full operating expenditure cost of the migration and border system was £7.5 billion in 2022-23, including the Migration and Borders Group customer service covering passports, visas, immigration, borders and enforcement.

I think I have answered as many of the questions as I can. I will write to anybody I have missed, and I apologise if I have. I offer thanks again to the noble Baroness, Lady Lister, for securing the debate and to all who have spoken today. It is an important issue and I hope I have been able to provide a degree of clarity on the rationale and detail of the Government’s approach.

[Baroness Lister of Burtersett (Lab)]

I thank the Minister for answering, but quite a lot of questions were not answered. I hope he will circulate answers to everybody who spoke. In the previous regulations, he sounded quite surprised when he said that he thought he had answered all the questions, because he obviously did not expect to—and he certainly has not this time.

I am very grateful to noble Lords from across the House who have spoken, all—more or less—in support of the Motion. I want to pick out a few points, one of which is process. My noble friend Lord Coaker made the point that these are really important issues with great financial implications, as the noble Lord, Lord German, pointed out. We have to think about how we consider these through statutory instruments, because although the Minister said that there is parliamentary oversight, if someone had not brought this regret Motion, we would not have debated these issues—they would have just gone through—so I do not call that oversight. I laid the Motion because an outside organisation asked me to. We should not leave such important issues to the vagaries of whether a regret Motion is brought.

Perhaps not surprisingly, the Minister’s answer on the process of missing the 21-day rule is exactly the answer that was given to the Secondary Legislation Scrutiny Committee. The committee did not take that answer very kindly. It was not impressed with it. I suspect that noble Lords were not impressed with it either. I am not sure that we had the assurance that it would not happen again which I asked for.

A number of noble Lords made points about the impact on those affected, be it businesses or individuals. I am not sure that they were really taken on board by the Minister. We are talking about some people in very vulnerable circumstances. There may not have been an increase in the number of requests for waivers yet, but these were introduced only in October and it takes a bit of time to percolate through.

A number of practical points were made about waivers. Certainly, there were questions that I asked following the debate that we had last year, which I look forward to the Minister answering in writing. There were also practical suggestions about how waivers could be improved, perhaps through using schools—the right reverend Prelate made a very valuable suggestion there. My noble friend Lady Blower talked about higher education, which brings us to the question of citizenship. I do not think that the crucial point made by the noble Lord, Lord Moylan, to whom I am very grateful, and my noble friend Lady Primarolo was addressed at all. They asked, as I did in a broader context, about this fundamental distinction between immigration and citizenship—the citizenship of young people, many of whom were born here and have lived here for most of their lives. The noble Lord, Lord Moylan, called “wholly odious” the way that this distinction is completely ignored by the Home Office. I am afraid that we have seen another example of it here this evening.

I notice that some of my terriers have arrived since we started the debate. I press the Minister to take this back, because we will come back to this question of citizenship time and again. I have not heard a convincing explanation for why we are raising the fee on the basic right of citizenship by this huge amount—what was huge already is now even more huge. The Home Office must look at this and come up with an answer; there was no answer today. I am disappointed that the Minister has not grappled with this fundamental question that was put so strongly from across the House.

I will leave it at that. The regret Motion was tabled partly to get answers to questions. We got answers to some of them but not others. I look forward to receiving the letter from the Minister. I hope that this will act as a shot across the Home Office’s bow in terms of processes and when it thinks again about raising fees. It is a way of saying that the terriers are still here and that we will still be yapping at the Home Office’s heels. However, on this occasion, I will not seek the opinion of the House. I beg leave to withdraw the Motion.

Motion withdrawn.