Statement of Changes in Immigration Rules

Lord Avebury Excerpts

Tuesday 23rd October 2012 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Browning. She has raised some very pertinent questions. While I want to focus on the income thresholds, I want also to draw attention to the concerns raised by BID, Bail for Immigration Detainees, about the implications for children of measures to ensure the deportation of foreign criminals.

BID’s experience is that wide powers already exist to deport foreign national ex-offenders, and in the very few appeals against this which are successful it is often because the courts have found that grave harm would be caused to a child by deporting the parents. It says that the Government are now seeking to prevent the courts from upholding the law to protect these families. In the view of BID, the measures do not allow for adequate consideration of the child’s best interests. For example, it does not follow that it is in a child’s best interests, if there is another relative that they can live with in the country, to live with that relative and to be permanently parted from their parents; or, say, if the parents have been in prison and the child has been living in foster care, for them to be deported with their parent to a country that they have never visited before.

Liberty, too, raises concerns about the implications of the changes for children and concludes:

“It is clear from the Government’s proposals that it is paying little more than lip service to the importance of UK children’s interests in immigration decisions … Far from placing children at the heart of immigration decisions, the proposed changes seek to relieve officials of the responsibility for weighing up the interests of a child in any but the most clear cut cases”.

I would welcome the Minister’s response to that and his explanation of how children’s interests will be safeguarded.

As we have heard, the Home Office’s human rights statement and the Home Secretary have emphasised that Article 8 of the European Convention on Human Rights, on the right to respect for privacy and family life, is a qualified right. As my noble friend Lady Smith has already said, we accept that. However, as Liberty argues, there is,

“a delicate balancing exercise to be struck between the rights of the individual and wider social interests in, for example, the reduction of crime and disorder and the protection of the economic interests of the UK”.

Liberty and I do not accept that the proposed changes,

“properly accommodate the fact-sensitive balancing exercise that the right demands”.

Liberty argues that instead they,

“represent a one-size-fits-all approach to complex immigration decisions. … Far from better reflecting the proportionality required under Article 8, the proposed changes seek to circumvent the crucial fact sensitive consideration of decisions involving fundamental rights”.

The Government argue that the income threshold is proportionate in meeting their legitimate aims of safeguarding the economic well-being of the UK. It is a sad day when the economic well-being of the UK depends on keeping apart a few thousand poor families each year without adequate attention being given to safeguarding the well-being of children and their families.

The Migrant Rights Network points out that, because of differences in earnings across different social groups, the new income requirement will disadvantage women, who we know are still on average paid less than men, some minority ethnic groups and people living outside the south-east. My noble friend gave an example that illustrated the unfairness of that fairly arbitrary or one-size-fits-all limit.

The Home Office human rights statement acknowledges that the income threshold may be challenged under Article 14 of the European Convention of Human Rights in terms of its equalities impact, particularly with regard to whether this constitutes unjustified indirect discrimination against these groups—for example, women and those nationalities who the evidence shows are likely to have lower earnings. Having raised this possibility, the Home Office’s only answer was that this will be mitigated in some cases by the exemption from the income threshold of those in receipt of carer’s allowance, and that certain contributory benefits such as maternity allowance will be allowed to count towards the income threshold. That is welcome as far as it goes, but it does not go very far. Otherwise, the Home Office considers that any indirect discrimination is proportionate to public policy objectives. We will see, but I imagine that this will be tested in the courts.

I find it repugnant that we are going to means test family life. Means-testing generally purports to target help on the needy and exclude the better off. This is a reverse means test that excludes the needy, as if people on low incomes have nothing to contribute to this country. The existing “recourse to public funds” rule is already designed to prevent the supposed burden on the taxpayer that we hear so much about. According to Liberty, and as my noble friend has already said, it is being replaced by a far blunter instrument.

The impact statement makes a virtue of the shift from a more discretionary approach, which it says is complicated for caseworkers to operate, yet in other areas of policy the Government favour more discretionary approaches and say that we have to get away from a one-size-fits-all approach. Indeed, as Liberty argues, the proposed changes as a whole contain an armoury of blunt instruments which, far from better reflecting Article 8 and the Immigration Rules, may well leave the rules in breach of it.

The changes reflect badly on a Government who claim to be the most family-friendly Government ever and who are supposed to be applying a family test to all their domestic policy decisions, as they suggest that some families are considered not to matter because of their immigration status and their poverty.

[Lord Avebury]

My Lords, this is a very important debate, focusing as it does on family and children’s rights. We have all heard from organisations such as the ones that have been mentioned, including by the noble Baroness, Lady Lister—Liberty, Bail for Immigration Detainees, and so on—and I shall rely on the evidence that has been given to them in my later remarks.

Since these changes were published, a further three sets of changes have appeared: HC 514 of eight pages, HC 565 comprising 56 pages and Cm 8423 with 276 pages. These latter two statements spell out in detail how decisions on leave to enter or remain are to be made, following the rulings of the Supreme Court in Alvi. To summarise, at the risk of oversimplification, Alvi said that statements in guidance and elsewhere that were not in the Immigration Rules, such as particular types of evidence that have to be submitted with an application, were unlawful because they had not been laid before Parliament as required by the parent Act. I realise that we are not talking about these subsequent statements of changes this evening, but obviously the legal advisers and their clients who are considering the effects of HC 194 will have to look at these other instruments as well. It would be astonishing if, given the length and complexity of all the changes taken together, there were not a steep rise in the number of applications rejected because of some minor omission or mistake.

My first example is from the organisation BritCits, which defends the interests of families who are affected by this set of changes. Rob is a British professional musician with a first-class degree in music. He has taught music and performed at concerts, has an eight year-old son and lives in a detached house in Huddersfield. He fell in love with and married an Indonesian woman and his wife applied for a spouse visa on 26 June. As a self-employed worker, he submitted three years of bank statements—originals and copies—and everything as requested, leaving no stone unturned. For over two months the message was that the application was under process at the British embassy, until early September when an e-mail arrived asking for the spouse to take an SELT English test. The e-mail indicated that if she did not submit this within seven days, the application would be rejected. Despite the short notice, the wife took the test and submitted it on time. A month later, they received a message saying that the application was refused because of the English test. Rob was amazed because his wife’s English was extremely good. On inquiry, they found that she had passed the reading, writing and listening requirements but had inadvertently omitted the speaking part. A lawyer advised them that the only remedy was to lodge a fresh application, at a cost of £900. The same thing happened to a friend of mine. It is not an uncommon experience for people to make a minor error and find that the whole application has been rejected. The UKBA does not give applicants a chance of remedying minor omissions of this sort.

The Motion says that the Government have not demonstrated that the specific minimum financial requirement is the most effective way to deliver fairness. That stricture can also be extended to the provisions dealing with savings. This may answer part of the question put by the noble Baroness, Lady Browning: I quote the example of a woman with three children applying to join her husband who would have to show evidence of savings of £62,500, which is well beyond the resources of most young families.

A four-page guide produced by UKBA tells applicants that they need to read Appendix FM-SE, another 26 pages of dense prose, which was added to the rules on 20 July, specifying what supporting documents may or not be supplied as evidence of compliance with particular financial requirements. The sums involved are undoubtedly substantial and they mean that many spouses and children who would have been able to satisfy the previous requirement—that they could be supported and accommodated without reliance on public funds—will now be denied entry. That is, indeed, the letter of government policy. The Migration Advisory Committee estimates that if the financial requirement in this set of rules had been in force in 2011, it would have excluded 45% of successful applicants, even though all those spouses and children were assessed as not needing access to public funds.

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The Government consider this to be a fair and adequate basis for family migration that is right for migrants, local communities and the country as a whole. My noble friend Lady Browning rightly got to the nub of this issue when she asked why the income is set at £18,600. It is set at this level because people earning this amount will have skills to contribute to the UK economy, and it is the level of income at which the Migration Advisory Committee advised that a couple once settled generally cease to be able to access income-related benefits.

[Lord Avebury]

My Lords, if that is the case, why have the Government refused to take into account the income provided by the spouse? Surely, if the £18,600 figure is sufficient to ensure that recourse to public funds is not on the cards, then that £18,600 should apply to the joint incomes, not to the income of the sponsor.

[Lord Taylor of Holbeach]

That is the decision that was made. The Migration Advisory Committee was asked to look at the amount of money that a couple would require on the single income—the sponsor’s income. Indeed, it is the sponsor’s income that is vital to understanding this case.

My noble friend also asked how the capital should be dealt with. As pointed out by my noble friend Lady Hamwee, the multiplier is two and a half times the shortfall in income, and that, too, I believe, came from the same recommendation from the Migration Advisory Committee.