Statement of Changes in Immigration Rules (Cm 7944)

Lord Avebury Excerpts

Monday 25th October 2010 Lords Chamber

Moved By

[Lord Avebury]

That the Statement, laid before the House on 1 October, be disapproved.

[Lord Avebury]

My Lords, the statement reverses the judgment of the Supreme Court in the case of ZN (Afghanistan) concerning the Immigration Rules that apply to dependants of former refugees who have been naturalised as British citizens, and imposes a new English language requirement on persons applying to join their spouses or civil partners already settled in the UK.

Up to now, the rules have allowed British citizens and non-EEA nationals who are settled in the UK or who are being admitted to the UK for settlement to bring with them their spouse, fiancé or civil partner subject to certain conditions which do not normally include a pre-entry language requirement, the only exception being where the applicant is asking for indefinite leave to enter as a partner or spouse. In those cases, where the applicant satisfies all the other requirements but not the English language test or the test of knowledge of life in the UK, she or he is normally admitted for a period of 27 months, which generally gives them time to do the homework and pass both tests.

The justification for extending pre-entry testing, given in paragraph 7.13 of the memorandum accompanying the statement, is that it will help spouses and civil partners to integrate into British society. The Government say that it will help promote the economic well-being of the UK by encouraging integration and protecting public services. They claim that it will help ensure that spouses and civil partners are equipped to play a full part in British life from the outset.

But the Immigration Minister, the honourable Member for Ashford, has included these rule changes in a list of initiatives designed to reduce numbers. The honourable Member for Romford reinforced the point when he appeared on the BBC’s “Politics Show” on 9 June. I understand that the Government estimate that the tests will produce a 10 per cent reduction in applications from spouses and civil partners—perhaps my noble friend the Minister will confirm that figure. It would mean that we are talking not merely about a delay affecting the failed applicants but about their permanent exclusion. If the number of applications is the same in every year and the failures are successful 12 months later, the 10 per cent reduction will happen only in year 1 and will be made up by those who defer taking the examination until the second year. Will the Minister confirm that it is assumed that none of the 10 per cent will get through the tests after some delay? If not, what is the Government's estimate of the proportion of applicants who drop their attempts permanently?

There was no consultation on the imposition of the language test on the grounds that the changes proposed were said to be minor and to reinforce rather than change existing policy. There was a consultation on the UKBA’s original proposal on marriage visas generally in December 2007, and, the following July, it reported that 68 out of 101 respondents were against pre-entry language tests. Respondents pointed out the difficulty of accessing good-quality tuition in many countries and said that English was best learned in the UK, where facilities are available and the newcomer is already immersed in British life.

Liberty, the civil liberties organisation, reminds us that, because of the problems uncovered by that consultation, the previous Government decided on a phased implementation. In July 2008, they announced their intention to establish a cross-government departmental group to identify benchmarks that would trigger implementation of universal pre-entry language testing, to develop monitoring and reporting arrangements and to improve English services in priority areas from which most spouses apply. In the Home Office’s equality impact assessment of 1 October this year, we read that the FCO, BIS, DfID and the British Council indeed formed such a group, but, as far as I know, any advice that they gave has not been published. It would be interesting to know what they said about the time that it would take to implement marriage visa reform. I hope that the Minister will agree to place copies of their reports in the Library of the House.

Without knowing even approximately how many spouses may be affected, one can see already from the adverse effects on family unity of ordinary migrants that, for some of those who must take the tests, these are not minor changes by any means. My correspondent, Mr R, originally from Kuwait but now a British citizen, wishes to bring his wife and one year-old child to live with him in the UK. He lost his well paid job here during the recession and has since been in Kuwait looking after his wife and little girl. As Mrs R is a Bidoon, it took some time and a lot of correspondence to register the little girl as a British citizen. Mr R is now facing the dilemma that the accommodation and maintenance tests can be passed only by returning to the UK and trying to get work in a hostile economic environment, leaving his wife and daughter to fend for themselves in a society where Mrs R is a non-person. It may take several years before Mr R can get the resources needed. Meanwhile, his wife must learn English without having the money to pay for lessons.

On the basis of a legal opinion from Matrix Chambers, the director of Liberty, Shami Chakrabarti, says that pre-entry English tests are discriminatory and unlawful, and that Liberty will challenge the policy in the courts. The memorandum gives the Secretary of State the power to let the applicant off taking the test where there are exceptional compassionate circumstances that would prevent them meeting the requirement. It would be helpful if my noble friend explained how that expression is to be construed. Will there be guidance on its interpretation and when can it be expected?

The equality impact assessment published on 1 October acknowledges the possibility of an Article 8 case if a family is separated because a spouse such as Mrs R is unable to meet the requirement either because she cannot access English lessons in the country of origin or because she is destitute, or both. The EIA also admits that cases might be brought under Article 14 of the ECHR on discrimination on grounds of nationality, taken together with Article 8 on the right to family life, because spouses from countries where English is the majority language are exempted from taking the tests.

Rabinda Singh and Aileen McColgan of Matrix Chambers advised Liberty that there are,

“serious grounds for concern as to whether the imposition of pre-entry language requirements … is consistent with the UK’s obligations under Articles 8 and 14 of the ECHR, and also with the positive obligations imposed on public authorities (specifically here the UKBA) by the Race Relations Act 1976”.

Can my noble friend say how the Government reached the conclusion that making it harder for refugees’ spouses to join them, and thus damaging family unity, is compatible with the Convention relating to the Status of Refugees? Will she address this question in the light of the judgment by the Supreme Court in the case of ZN, where the noble and learned Lord, Lord Clarke, said in paragraph 35 that there were,

“coherent policy reasons for applying the same principles to applications to join or remain with a spouse or parent who has been granted asylum both before and after such a sponsor has become a British citizen”.

--- Later in debate ---

I hope that I have dealt with the majority of points raised by Members and that I have explained the reasoning behind our changes to both noble Lords, who I hope will feel able not to press their Motions.

[Lord Avebury]

My Lords, I would trespass on the patience of the House if I were to make a reply to this debate in anything like that depth. But I am not criticising the Minister because she was very helpful and has answered a lot of the questions put by the noble Lord, Lord Hunt, and by these Benches. I urge her to address the remaining questions, including the important ones in the letter written to the Government by ILPA and JCWI setting out their concerns. We should like to have detailed answers to all those questions and I do not think that she needs to apologise for her half-hour speech, which did not allow her to deal with them.

As to the substance of these debates, on the Motion of the noble Lord, Lord Hunt, although I feel that I have some temerity in purporting to reply on his behalf, there are still obviously some gaps in the need to deal with the consultations on the effects on the universities and research institutions. I notice that the noble Baroness said several times that the Government were in detailed consultations with businesses, but I did not hear her make the same remark about either the universities or the research institutions, which are seriously affected by the changes in those two Motions. I beg the noble Baroness to let us have further information about how these consultations are being conducted, so that we can see that it is not only the businesses but also the universities and the research institutions which are being consulted in detail.

I am sure that that will be quite enough from me. I beg leave to withdraw the Motion.

Motion withdrawn.