Immigration and Nationality (Fees) Regulations 2011

Lord Avebury Excerpts

Tuesday 29th March 2011 Grand Committee

[Earl Attlee]

My Lords, I beg to move that the Committee has considered the draft Immigration and Nationality (Fees) Regulations 2011.

As your Lordships will recall, I came to the Committee on 7 February and subsequently obtained approval to charge for visa, immigration and nationality services under the Immigration and Nationality (Fees) Order 2011. At that time I said that specific fee levels would be set in separate legislation using the affirmative procedure. That is the purpose of today’s debate.

The fees paid by those making visa, nationality and immigration applications are set out in regulations made under Section 51 of the Immigration, Asylum and Nationality Act 2006 and in accordance with the powers granted in Section 42 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 as amended by Section 20 of the UK Borders Act 2007. Under Section 42, the Secretary of State can set a fee for an application that exceeds the administrative cost of determining the application. The way our legal powers are defined means that we must also specify fees in separate regulations under the powers in Section 51 of the Immigration, Asylum and Nationality Act 2006.

These regulations are to set the fee for applications, processes and services that are provided at or below the administrative cost of determining the application. These regulations were laid before Parliament on 16 March 2011, are subject to the negative procedure and are not debated at all in this House. I recognise that having fees in two sets of regulations makes things a little complicated, but I am happy to take points on any of the fees proposals here today.

In general, we are proposing to limit the majority of increases to less than 10 per cent. For example, we propose to increase the sponsorship application fees by 3 per cent and will maintain our concessions for small businesses and charities who want to sponsor migrants. The increases in these fees will be the first since the points-based system was introduced in 2008.

Increases to fees that do not follow this approach are fees for dependants applying to extend their leave in the UK at the same time as the main applicant. Currently these fees are set between one-quarter and one-third of the corresponding main applicant’s fees. We propose increasing this ratio to half of the main applicant fee. This continues our agreed policy to better align our fees in and out of the UK, where all dependants already pay the full fee. This will better reflect the processing cost to us for each individual within any given application, as well as sometimes an independent set of entitlements.

Also, the fees paid overseas for those seeking entry through tier one post-study work will increase by more than 30 per cent. This will bring the fee paid by migrants overseas closer to that paid by those who applied for this route in the UK. The vast majority of applications made under the post-study work route are made in the UK.

Also, there will be further increases to fees for visa applications under tiers four and five of the points-based system; these routes continue to be charged below the administrative costs of processing the applications.

New fees being introduced include fees for amending a previously issued nationality certificate, other than when this amendment is being made to correct an error made by the UKBA, for providing certain stateless persons with the ability to acquire the status of a British protected person, and for the registration as a British citizen for the children of foreign national soldiers serving in the UK armed forces. This would align our fees legislation to reflect the rule changes that have simplified such registrations.

New fees are also being introduced for tier two intra-company transfers coming to the UK for less than 12 months, where the applicants pay a lower fee than those coming for more than 12 months.

We welcome the economic, cultural and social contribution made by legal migrants to the UK. We continue to ensure that the fees for immigration and nationality demonstrate that the UK is open for business and retains its position as an attractive destination. We also continue to monitor the economic, equality and diversity impacts of our changes and to ensure that our fees continue to be priced at levels which make them competitive when compared with those in other key countries.

I believe these regulations provide a basis for a sustainable immigration system, which all noble Lords will want. I commend them to the House.

[Lord Avebury]

My Lords, I am most grateful to the noble Earl, Lord Attlee, for his careful explanation of the order that is in front of us.

This order is drawn to the special attention of the House by the Merits Committee, but it does not say what is unusual about the order or what distinguishes it from other orders covered by the same report; particularly the three orders dealing with amendments of fees for other services. According to its terms of reference, there are four grounds on which the Merits Committee may draw the attention of the House to an instrument, draft or proposal, and in this case your Lordships may think that the only ones that might apply—or should apply—are,

“that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House”.

Assuming that is the case, the only matters of substance raised in the delegated legislation Committee of another place were the effect of the order on Bangladeshi and Chinese restaurants, and the question of whether UKBA would be able to cope with the workload of dealing with applications.

Since the Government have taken steps to reduce the number of immigrants the burden will be eased, but the 5,200 cut in UKBA staff is more than proportional to the reduction in the number of cases that they are expected to process.

The predicted effect of the fee increases on applications varies between zero and 2.5 per cent in the case of an application by a tier four student to change his course, which has been free in the past but is now to cost £386. On top of that, the requirements for tier four applicants have been tightened up further. Applicants from outside a university, for example, will have to present a test certificate from an independent test provider of their competence in English to level B2. It would be surprising if these new requirements did not have a larger deterrent effect, and I would be grateful if my noble friend could give us his estimate of the drop in the number of tier four applicants expected from the Home Secretary’s announcement last month. We need this to be able to assess the expected increase in the average productivity of immigration officers dealing with tier 4 cases, and hence to get a feeling of whether the reduction in UKBA staff numbers can be managed without damaging the quality of their decisions.

The rationale of the order is that fees should be set at the correct level to ensure that the income generated contributes adequately towards the costs of running the immigration system. The impact assessment estimates that UKBA income will rise by £65 million as a result of the fee changes proposed, but what will the total income be, and how close will the UKBA be to balancing income with expenditure after the cuts have taken place? I apologise to my noble friend for not having given notice of the questions that I am asking as I would normally do; I just did not have the time.

I understand that the Government have decided to defer implementing the proposed cuts in the UKBA until they have disposed of the remaining legacy cases. Will my noble friend confirm that? How many of those cases were still on the books at the latest convenient date, and what has been the average rate of completion of those cases since the start of 2011? They have always been pretty vague about when the legacy cases are going to be completed. I should have thought, as we were approaching the end of the process, that it ought to be possible to be a bit more precise now.

Under what conditions may the fees themselves be waived? For example, the fees for the registration of a minor as a British citizen are rising significantly. This is money that is intended not just to cover the administrative cost of the application but to make a profit for the UK Border Agency. If a child is prevented from registering as a British citizen for no other reason than a fee, designed to make profits for the UKBA, how does that meet the “child’s best interests” principle under the convention on the rights of the child, to which the Government are a signatory?

I have had a letter just now from Cambridge Assessment, which I think is a firm that is well known to the UKBA for supplying services in English-language skills. It expresses concern that those who cannot pay fees may not be able to learn crucial skills that they need to find work and play a positive role in their communities, as we would all wish. I have not had a chance to discuss this in detail with Cambridge Assessment, but the firm has asked me for a discussion and I am intending to meet it and go into these points in more detail. Has the Minister considered the effects on people who do not contribute to society because they are unable to find the fee for the English-language test?

Another important question relates to the ministerial authorisation on race discrimination, which was covered by a letter on 21 March from the Immigration Law Practitioners Association to the Minister, Damian Green, of which I have seen a copy. This permits the refusal of applications on grounds of specified nationality and the making of additional requirements or examinations that would not be required of another nationality and that may lead to refusal. The applicant will not know, because the specified nationalities will not be made public. He or she will have paid the fee —which is much higher than in previous years and is increasing again—but may be refused by reason of his or her nationality and not on the strength of his or her application. Perhaps the noble Earl would comment on that.

The ILPA letter also makes the general point that if the UKBA is to make a profit from charging fees, it should deliver a commensurate service. For instance, its service standards include timeframes within which applications should be dealt with, but it constantly fails to meet them. There is also the grossly unfair practice of refusing an application that would have been approved under the rules in operation at the time it was made because the rules changed some time later. The least that should happen in those circumstances is that the fee should be refunded.

[Lord Hunt of Kings Heath]

My Lords, I, too, am grateful to the noble Earl for his introduction and detailed and helpful explanation, and for agreeing to answer questions not necessarily confined to this order. As he said, the fees contained in the order are set in the context of the Immigration and Nationality (Fees) Order 2011, which we debated some weeks ago.

I was interested by the remarks of the noble Lord, Lord Avebury. I have not taken it that this has been drawn to the special attention of the House. There are three categories in the report: instruments drawn to the special attention of the House, other instruments of interest and instruments that are not drawn to the special attention of the House and which presumably are not thought to be of interest either. That probably explains why the Merits Committee has not given any further explanation of its consideration of this. I suspect that it has an intrinsic interest in the fees structure arising from the decision of the Government to move to a flexible charging model aimed at allowing the UKBA to generate sufficient revenue.

The noble Lord raised very apposite questions. The noble Earl, Lord Attlee, will not be surprised if I mention the context in which we debate this, and the responsibilities of the UKBA. The agency is expecting a reduction of 5,000 staff. Almost every day, Ministers talk about the new responsibilities of the UKBA. I have raised this matter on a number of occasions but have yet to receive a response to my concern about whether the UKBA is in a position to take a massive reduction in the number of its staff when it is having new responsibilities constantly placed on it. Perhaps the noble Earl will comment on that.

We have already discussed the principle of the fees increase. This is our opportunity to look at some of the detail, and I will ask the noble Earl a few questions. Annexe 5 contains an interesting estimate of the decrease in annual applications. The estimate appears to be related in part to elasticity assumptions contained in Annexe 4. I note that on page 12 of the impact assessment there is some discussion of the methodology of estimating the decrease in applications. I will not tempt fate or put the noble Earl through agony by asking for an explanation of the methodology, but perhaps he would comment on how robust the methodology is, and how accurate are the estimates in Annexe 5. As the noble Lord, Lord Avebury, suggested, they will have a knock-on impact on the resources that will be made available to the UKBA.

I also refer the noble Earl to page 13 of the impact assessment, where the consequence of the fees increase is expected to cost the UK economy £24.4 million in 2011-12, and £89.4 million over the next four years. My reckoning from the tables contained there is that the net result, taking account of the extra income through the fee charges, is a very small benefit of around £4 million per year. Can the noble Earl confirm that? To me, this means that the benefits are therefore extremely marginal. They might be advantageous in relation to Home Office funding and the funding of the UKBA, but because of the consequences to the UK economy, the overall profit and loss account seems to come out even. On that basis, can the noble Earl comment on whether this is really an appropriate way forward?

Immigration: Asylum Seekers

Lord Avebury Excerpts

Monday 7th March 2011 Lords Chamber

Asked By

[Lord Avebury]

To ask Her Majesty’s Government whether they will exercise the power in Section 94(5) of the Nationality, Immigration and Asylum Act 2002 so as to restore the right of appeal against refusal of asylum to lesbian, gay, bisexual and transsexual people from Jamaica, Nigeria and Ghana.

[Earl Attlee]

My Lords, unsuccessful asylum claimants have a right of appeal to the UK courts. Designation under Section 94(5) does not deny a right of appeal to lesbian, gay, bisexual and transsexual applicants from designated countries including Jamaica, Nigeria and Ghana. However, claims from nationals of non-suspensive appeal designated countries that are clearly unfounded must be certified as such and can be appealed only from outside the UK. There are no plans to change this.

[Lord Avebury]

My Lords, the UKBA has collected figures on LGBT asylum seekers since last July, immediately after the Supreme Court ruling that the wrong test was being applied to them. How many cases have been recorded for each of these countries since then? If the overwhelming majority of them were either granted asylum on their application or allowed an appeal notwithstanding the provisions of the Act, does my noble friend agree that the law should correspond with the practice, as it already does for women?

Asylum Seekers: Medical Treatment

Lord Avebury Excerpts

Monday 14th February 2011 Lords Chamber

[Earl Attlee]

No, my Lords, it is a question of prioritising resources, and I am confident that the UK Border Agency will be able to carry out its statutory duties.

[Lord Avebury]

My Lords, is the noble Earl aware that the UKBA appears to have no recent policy on HIV-positive detainees, but that there is anecdotal evidence that some of them are being denied medication while in detention and that they are being given only one month’s supply of ARVs when they are removed? Will the Government consult the British HIV Association with a view to adopting the guidelines which it published two years ago, including provision of a three-month supply of medication to those who are deported, which would give patients at least some chance of finding an alternative source of treatment?

[Earl Attlee]

My Lords, while asylum seekers are in the UK and have not exhausted their appeal rights, they are entitled to the full range of NHS services. Asylum seekers who are returned should be supplied with sufficient drugs to meet their needs and tide them over until they can access drugs in their country of return. However, I will look further into the issue raised by the noble Lord and come back to him.

Roads: Drink-drive Limit

Lord Avebury Excerpts

Thursday 4th November 2010 Lords Chamber

[Earl Attlee]

My Lords, first, I have had no blandishments from the drinks industry and am actually quite surprised by how little effort it is putting into lobbying the Government. Clearly, it is lobbying, but not as much as it could.

Going back to my point about regulated and unregulated drinkers, I think that it is not clear how lowering the BAC, which would have a significant impact on regulated drinkers, would have any beneficial effect on unregulated drinkers who have no intention whatever of meeting their moral or legal obligations.

[Lord Avebury]

My Lords, in 2009, drink-drivers caused 390 deaths and almost 23,000 serious injuries at a cost to the taxpayer of £15.6 billion. How many of these casualties could have been avoided and how much of this expenditure could have been saved if we had reduced the legal limit to 20 milligrams, as is the case in Sweden? What other measures in the report that has been referred to, such as making persistent offenders pass a test before they can resume driving after a ban, are now being considered?

[Earl Attlee]

My Lords, we need to consider carefully the effect of lowering the blood alcohol limit. Suppose that we lowered the BAC to 50 milligrams and a traffic patrol detected a motorist driving with a BAC of 65 milligrams. It would take the patrol at least an hour to process the suspect, during which time it would be unable to detect the unregulated drinker to whom I referred, who might be driving with a BAC far in excess of the current limits.