Immigration: Detention of Children at Heathrow

Lord Avebury Excerpts

Wednesday 16th May 2012 Lords Chamber

Asked By

[Lord Avebury]

To ask Her Majesty’s Government what is their response to the Report of the Independent Monitoring Board on the non-residential short term holding facilities at London Heathrow Airport for the year February 2011 to January 2012 on the “degrading and disgraceful” conditions in which children are being detained at Heathrow.

[The Minister of State, Home Office (Lord Henley)]

My Lords, we take very seriously the findings of the Independent Monitoring Board and are working with our partners, including BAA, to address them. We will respond to the report fully in due course.

[Lord Avebury]

My Lords, does my noble kinsman agree that keeping a child in these disgraceful conditions, in one case for 31 hours and 50 minutes, is inconsistent with the coalition’s commitment to end the detention of children and possibly with our obligations under the UN Convention on the Rights of the Child? Will my noble kinsman therefore consider appointing a joint inquiry by the chief inspector of the UKBA and the Children’s Commissioner into the conditions and length of detention at all the United Kingdom ports of entry by sea or by air?

[Lord Henley]

My Lords, I remind my noble kinsman that the holding rooms we are talking about are designed to hold people for relatively short amounts of time—a few hours in the main and up to 24 hours in extreme circumstances. We accept some of the criticisms that we have received from the Independent Monitoring Board and we hope that where it looks as though people, particularly with children, are going to be held for a long time, the relevant staff will make use of other available facilities, such as Tinsley House. However, I think that even my noble kinsman, and most Members of the House, would accept that where we are dealing with people who are going to be returned to another country, they have to be kept somewhere relatively secure, whether or not they have children with them, to make sure that they can be sent back, as appropriate, after their decision has been dealt with.

Piracy

Lord Avebury Excerpts

Monday 26th March 2012 Lords Chamber

[Lord Henley]

My Lords, I thought that my Answer was quite helpful. However, I can give the noble Lord an assurance that he will be told, and the House will be informed, when we have made a decision. As regards whether SARs should be used whenever a ransom has been paid, the paying of ransom, as the noble Lord will be aware, is not illegal as such, although we deplore the practice because we do not think it assists. I can also confirm that, as the noble Lord put it, my right honourable friend the Prime Minister does want further work to be looked at in this area to see whether it should be something for which a SAR should automatically be filed if that is the case.

[Lord Avebury]

My Lords, it has been known for some time that terrorist groups such as AQIM have used kidnap for ransom as a source of income. Why did the Government not mention this in the course of the extended correspondence with the EU Select Committee about piracy off the coast of Somalia?

[Lord Henley]

My Lords, we made it clear that we do not believe that the money going in ransoms to—if I can put it this way—the ordinary Somali pirates is generally going into terrorists’ hands. What is being gathered by AQIM is coming from other kidnapping operations and, as the noble Lord will be aware, there is a very good chance that that is going into terrorism operations, in which case it would be illegal to pay that ransom.

Immigration and Nationality (Fees) Regulations 2012

Lord Avebury Excerpts

Wednesday 21st March 2012 Grand Committee

I do not know how realistic that is. It seems on the face of it likely to prove an obstacle to employers and thus an obstacle to a particular area of economic success. It was not something that I believe was recommended by the Migration Advisory Committee, so why, in the difficult context that we are discussing, have the Government proposed it?

[Lord Avebury]

My Lords, my noble kinsman said that he was going to continue welcoming the brightest and the best, yet some of the announcements that he has made seem to go directly contrary to that, particularly the huge increases in fees for tier 1 general and tier 2 visas for coming to the UK. I suppose that we should give a partial welcome to the graduate entrepreneur scheme. I should like to ask the Minister, in pursuance of the points raised by my noble friend, whether it is aimed at people who have graduated from a UK university. Will they proceed directly from their studies to the graduate entrepreneur route, or will they be required to go back to their own country and make the application from there? Will people who graduate from universities overseas be able to enter the United Kingdom ab initio along this route without having been in a UK institution of higher education previously?

In his Written Ministerial Statement of 9 February, the Immigration Minister, Damian Green, said:

“We have continued with our strategic approach to charging; setting certain fees above cost on the basis of the value of the service”.—[Official Report, Commons, 9/2/12; col. 47WS.]

Both the noble Lord, Lord Hunt, and my noble friend Lady Hamwee have questioned whether there is a proper relationship between these two variables. As I have already said, some of the fees are very high and some were admittedly way above the unit cost estimate. On what basis does the UKBA, or the Home Office, assess the value of the service? What account, if any, do they take of such matters as the appeals success rate and the findings of the chief inspector’s report in determining the quality of the service provided? For example, the chief inspector in his global review of entry clearance made several critical findings. He looked at a sample of the cases decided at all the UKBA’s entry clearance decision-making centres—around 1,500 cases in total—and found that the evidence submitted with the application had not been considered properly in 483 cases, which was 33 per cent of the sample, and that in a further 201 cases, which was 14 per cent of the sample, the lack of evidence held on the UKBA file meant that it was not possible to assess whether the evidence submitted had been considered properly. The chief inspector also found that, in 235 cases—16 per cent of the sample—applications had been refused on the basis that the applicants had failed,

“to provide information which they could not have been aware [was required] at the time of making their applications”.

In 475 cases, there had been a review by an entry clearance manager, and, of those, in 141 cases—30 per cent—the chief inspector found that poor-quality decision-making had not been picked up by the entry clearance manager.

These criticisms indicate that the quality of service being provided is abysmal and that it is sheer exploitation to charge over the cost. In fact, it could be argued that the cost is seriously inflated by the high proportion of wrong decisions, and that the charges should be related only to the costs of decisions properly reached.

A similar view might be taken of the way in which many students have been treated recently when a college’s licence is suspended or revoked, through no fault of their own, but also other migrants whose visas are summarily curtailed. The case of Patel, on the fairness of revoking a sponsor licence, is but one recent example where the Upper Tribunal (Immigration and Asylum Chamber) has needed to issue a reported determination, reminding the UKBA of the general duty of fairness in decision-making, particularly in cases of students whose sponsor’s licence has been revoked and who face, through no fault of their own, losing their immigration application fee and incurring substantial other expenses as a result. The key finding in the Patel case was that, where the applicant was both innocent of any practice that led to the loss of sponsorship status and ignorant of such loss of status, common- law fairness and the principle of treating applicants equally meant that each applicant should have an equal opportunity to vary their application by being afforded a reasonable time in which to find a substitute college on which to base their application for an extension of stay to obtain the relevant qualification. In the curtailment cases, express Home Office policy is to afford 60 days for such an application to be made.

In previous debates on fees orders, I have raised the question of refunds. For example, in March 2010, I said:

“There should be timeframes for deciding 100 per cent of the cases and, if deadlines are missed, there should be refunds to the individuals concerned”.—[Official Report, 4/3/10; col. 1647.]

The then Minister, the noble Lord, Lord West, replied:

“On refunds, we charge for consideration of the application and so do not offer refunds—the consideration is a cost to us as well”.—[Official Report, 4/3/10; col. 1651.]

I should like to ask my noble kinsman the Minister to reconsider that policy. Why should someone who receives an abysmal service nevertheless have to pay for it? The Upper Tribunal (Immigration and Asylum Chamber) has recently issued the following general guidance in a reported decision:

“Fairness requires the Secretary of State to give an applicant an opportunity to address grounds for refusal, of which he did not know and could not have known”.

That indicates that the tribunal is seeing examples of what the chief inspector has found in situations other than the entry clearance cases on which the chief inspector was reporting.

I hope that my noble friend will concede that, in any normal business, a supplier simply would not get away with overcharging for services which are manifestly of such poor quality as this, and that the fees in this order are an abuse of monopoly power.

Immigration (Biometric Registration) (Amendment) Regulations 2012

Lord Avebury Excerpts

Monday 23rd January 2012 Grand Committee

We are satisfied that the biometric residence permit scheme complies with United Kingdom legislation on human rights and discrimination, provides legitimate migrants with convenient evidence of their immigration status and right to work, and facilitates access to services. Research with biometric residence permit holders has indicated that they find them effective and have confidence in them. That is what the regulations seek to achieve and I commend them to the Committee. I beg to move.

[Lord Avebury]

My Lords, I am grateful to my noble kinsman for his careful explanation of the effect of these regulations: namely, that all non-EEA country nationals applying for leave to remain for more than six months under any category of the immigration rules, or outside the rules from 29 February, will have to apply for a biometric immigration document. We do not object to this proposal, but there is a problem with its implementation that needs to be addressed as a matter of urgency, and I hope that we will hear from my noble kinsman what the Government are doing to solve it.

The Public Enquiry Office network, where biometric measurements are taken, is not coping with current levels of demand and the situation is getting worse. At a meeting on 13 December last with officials of the UKBA, including the temporary acting deputy director of the facing teams asylum and business immigration section, and the temporary acting assistant director of the PEO, ILPA expressed grave concern about current processing delays in the PEO, pointing out that it was not meeting its service timelines even though applicants were paying a premium fee. The explanation given for the delays was even more worrying. The UKBA has 22 vacancies and is having difficulty filling the positions even in this era of high unemployment. Perhaps my noble kinsman will say what steps are being taken to ensure that the policies for recruitment, training and promotion within the UKBA will be adjusted to meet staffing needs.

Secondly, I understand that there are severe problems with part of the biometric enrolment IT system, which have led to adverse effects on the appointments system and on processing applications. Will my noble friend place a note in the Library of the House setting out the details of the IT contract for the work of the PEO, including the name of the contractor, the cost of the contract, the target dates, the penalty clauses and any remedial action being taken to deal with the problem? He mentioned the external organisation with which the UK is working to implement the system. It would be useful to have further details on all organisations involved, including the IT system contractor. Surely there ought to be enough experience in the IT industry to make the development of biometric identity systems a matter of routine. I hope that we can have an assurance that it will be fully operational before the extension now being proposed goes live on 29 February, but in a letter dated as recently as 12 January, the UKBA acknowledge that at the main Croydon site,

“the demand for PEO appointments is currently greater than our capacity”.

The letter adds that increased staffing levels are expected in the summer, without explaining why nothing is being done until then.

At some point in the not-specified future, the capacity to capture biometrics is being extended to the Post Office. My noble friend said that that would be some time in the spring but it would be useful if he could give further information about where and when these facilities will be available. Also, what is the earliest date for an appointment at the Croydon PEO for an application submitted today? What does he expect the earliest date to be for an appointment requested for somebody in the group now being required to have a biometric document for the first time on 1 March—or are they being allowed to lodge applications already for some point after 1 March?

On fees, the fee for a married tier 1 general worker and spouse applying together in person for an extension of leave to remain is £2,150. That is £600 more than if the application is made by post. Many people are prepared to pay these enormous sums because they do not want to risk sending in their passports and having them lost. At the moment I am dealing with a case where the holder’s passport was returned by the UKBA to the wrong address. When he made a special journey to that address to try to collect it, he found that the former tenant had moved to an unknown location and the new tenant was not able to help him about the former tenant’s whereabouts. Needless to say, the UKBA disclaimed responsibility for their error in sending the passport to the wrong address. Cases like that make people understandably reluctant to trust the UKBA to look after such an important document.

Finally, is this situation yet another example showing that, as I have pointed out in previous debates, the UKBA is not fit for purpose? It was a prime candidate for the bonfire of the quangos, and the right way to improve its accountability and reduce its overheads would be to subsume its functions in those of its parent department, the Home Office—as I have suggested before without getting an answer. I hope that my noble friend will be able to respond to that suggestion this afternoon but, if not, that he will kindly undertake to write to me about this and the several other points I have raised in the debate this afternoon.

UK Border Agency: Prisoners

Lord Avebury Excerpts

Thursday 1st December 2011 Lords Chamber

Asked By

[Lord Avebury]

To ask Her Majesty’s Government what is their response to the recommendations by the independent Chief Inspector of the UK Border Agency on how the agency manages foreign national prisoners.

[The Minister of State, Home Office (Lord Henley)]

My Lords, this is an important report and the United Kingdom Border Agency has taken its recommendations seriously. Of the eight recommendations, four were accepted in full, three in part and only one was rejected. We have taken steps to implement and reinforce policy and procedures relating to the management of foreign national offenders. I have placed a copy of the full response in the Library.

[Lord Avebury]

My Lords, I thank my noble friend for that response, but does he not agree that the UKBA’s lukewarm response to the Chief Inspector’s recommendation that it should reduce the number of decisions that are overturned on appeal was disappointing? As the UKBA must have a good idea of the likely adverse decisions of the court in most of the one-third of appeals that it loses, is it not both perverse and costly to the public purse to continue acting on the presumption that, where the deportation threshold is met, only in exceptional cases will deportation breach Article 8? Secondly, what is the Government’s strategy for reducing the number of foreign nationals who remain in prison after their sentences have expired, mainly because of non-co-operation by the prisoner or his embassy with the process of obtaining an emergency travel document?

[Lord Henley]

My Lords, I do not accept that our response to that particular recommendation was lukewarm. We accepted it in part and we accept that there is a need to improve the quality of our decision-making. We also accept that it is necessary to increase the number of those whom we manage to deport, as and when their sentences end. The number of those who have not been deported has come down steadily over the past few years.

Statement of Changes in Immigration Rules

Lord Avebury Excerpts

Wednesday 9th November 2011 Grand Committee

[Lord Rosser]

First, I apologise for the absence of my noble friend Lord Hunt of Kings Heath. He is involved in the health bill and does not know how long the issue being discussed in the Chamber will last. It may well be brief, in which case he will be required in the Chamber.

The statement of changes to Immigration Rules has been the subject of consideration by the Merits of Statutory Instruments Committee. The Merits Committee, of which I am a former chairman, drew the changes to the special attention of your Lordships’ House on the grounds that they give rise to issues of public policy likely to be of interest to the House. However, in its conclusion, the Committee also stressed the importance of providing appropriate levels of explanation and visibility for Parliament.

The statement of changes makes a number of amendments to the Immigration Rules, but the most significant is a provision that a person subject to immigration control who has failed to pay NHS charges of £1,000 or more in respect of NHS treatment charges should normally be refused permission to enter or remain in this country, or have their leave cancelled.

The Merits Committee states that the consultation on this issue produced important comments from stakeholders. It noted that the document on the United Kingdom Border Agency website, giving the results of the consultation, provided a relatively full and balanced account of the consultation outcome. However, the Committee went on to say that it was regrettable that this was not matched in the Explanatory Memorandum laid before Parliament, and that furthermore, given the importance of some of the issues raised in the consultation, Parliament could reasonably expect the United Kingdom Border Agency to have used the Explanatory Memorandum to provide greater reassurance that the policy will achieve its objectives.

It would be helpful if the Minister could explain why the Explanatory Memorandum did not match up to the level and standard of information on the consultation outcome provided on the website. Or is it his view that this is not the case and that, as far as Home Office Ministers are concerned, the Merits Committee is being unreasonable? That might well be the view of Home Office Ministers, bearing in mind this is by no means the first time that the Merits Committee has been less than impressed with the quality and completeness of information provided to them by the Home Office, and so far there appears to be an inability by Home Office Ministers to rectify the situation.

The Merits Committee was not alone in expressing its concerns on this point. The committee received a letter from the British Medical Association about the change in respect of outstanding NHS charges, which stated that it had submitted a detailed response to the Department of Health consultation and raised some general points by letter to the United Kingdom Border Agency in response to its parallel consultation.

The British Medical Association said that it had concerns with respect to the way comments relating to the proposed legislation had been represented, particularly in the Explanatory Memorandum accompanying the statement, which it did not think had adequately represented the balance of comments it had submitted. The Explanatory Memorandum states that the British Medical Association supported the proposals in principle and that,

“the introduction of changes to the Immigration Rules to promote payment of NHS debt seems reasonable”.

The letter from the BMA went on to say that it had raised significant concerns, in particular over the detrimental impact such changes could have on the engagement of vulnerable groups with health services, which were not reflected in the Explanatory Memorandum. Significantly, the Merits Committee went on to say that it shared the BMA's concerns about the United Kingdom Border Agency's representation of the BMA's position in the Explanatory Memorandum. Is the Minister, too, concerned about the representation of the BMA's position in the memorandum, or will he go on the record as saying that the memorandum adequately represented the balance of comments submitted by the BMA—contrary to the views of both the BMA and the Merits Committee?

The Merits Committee report makes it clear that in order to get a better understanding of how the consultation fed into the policy development process, the committee had to seek further information from UKBA about concerns raised during the consultation, as well as about any risks and remaining dissatisfaction with the proposed changes. That further inquiry elicited information that was not contained in the Explanatory Memorandum: namely, that concerns have been expressed, including by the BMA, that an unintended consequence of the rule change might be that it would act as a deterrent for migrants to seek necessary medical care, and that three organisations had raised issues of confidentiality and/or of data protection. The issue of confidentiality was most actively highlighted by HIV/AIDS representative groups because in their view HIV/AIDS is a stigmatised condition.

The committee also received a submission from the National Aids Trust saying that the new rules would have a serious impact on public health by dissuading migrants with HIV from accessing testing and treatment. The National Aids Trust was also of the view that the rules might lead to unlawful discrimination against disabled migrants and indicated that it may mount a legal challenge on these grounds. Will the Minister say if the Government considered whether the new rules could be regarded as constituting unlawful discrimination in relation to any groups or categories of individuals?

Since UKBA said that the rule change was drafted so that an NHS debt would not result in a mandatory immigration refusal, and that the new rule would be applied on a case-by-case basis, the Merits Committee also wrote to the Minister seeking a full explanation of how the new rule relating to NHS charges of £1,000 or more being applied on a case-by-case basis would operate. The committee has now reported on the reply from the Minister responsible for immigration. In the light of that reply, its latest report states:

“The Committee notes that the guidance for decision makers seems to suggest that these medical cases will result in an immigration refusal in all but rare and extreme circumstances”.

Will the Minister say whether he considers that to be a fair interpretation by the Merits Committee of the response from the Minister for immigration?

The Merits Committee undertakes valuable work on behalf of your Lordships' House, considering instruments and drawing them to the special attention of the House where necessary, in line with its terms of reference. Its report on the statement of changes to Immigration Rules raises serious issues about the Explanatory Memorandum and also makes it clear that the committee had to pursue further issues in writing because the level of explanation was less than it should have been. I hope that the Home Office and Home Office Ministers take seriously the work of the committee. If future reports contain further critical observations about the quality, accuracy and extent of the information provided by the Home Office, no doubt there will be more debates of the kind we are having today. The Minister has not been in his position for long. I hope that he will be determined to address the concerns raised by the Merits Committee in the report that we are considering, as well as the not dissimilar concerns raised in previous reports. I beg to move that the Committee do consider the statement of changes in Immigration Rules.

[Lord Avebury]

My Lords, before coming to the statement, I will say that as we get material changes to Immigration Rules at such frequent intervals and there is invariably a prayer tabled against each one, they ought to be made subject to the affirmative resolution procedure. I would be grateful if my noble kinsman will let us have his views on that matter.

We are considering this statement against the backdrop of several major crises hitting UKBA at the same time. There is the saga of the passport checks and the suspension of three top officials for the unannounced dropping of our guard against terrorists, money launderers and drug merchants—which now appears to have been the bright idea of the Home Secretary. Then there was the robust criticism by the chief inspector of the management of foreign national prisoners, with 1,600 being detained in January at the end of their sentences for an average length of 190 days, costing the taxpayer as much as if they had stayed in the Savoy hotel. A third of them appealed successfully against their deportation, meaning that if UKBA had made the correct decisions, it would have saved the taxpayer millions of pounds. There was the sudden revelation that the agency had discovered another 124,000 legacy cases to replace the 300,000 cases it was supposed to have dealt with over several years ending in July 2011. It is about time that we had a full-scale debate on all the catastrophes that keep engulfing UKBA, including an examination of whether the agency should be put out of its misery and its functions resumed by the Home Office. At least there would then be no question of where the buck stops.

The next general point I want to make is that this instrument, like others in the past covering changes to the Immigration Rules, is being debated after it has come into effect. Parliament cannot be seen to exercise control over legislation in these circumstances because however valid the criticisms we make, they could be accommodated by the Government only by bringing in a further order, which is unthinkable.

Turning to the statement, as the noble Lord, Lord Rosser, has said, the Merits Committee focuses attention on the proposal to refuse permission to enter or remain in the UK to anyone who has failed to pay NHS charges of £1,000 or more and to cancel any outstanding leave to remain for a patient who has run up that level of indebtedness to the NHS. Although the BMA supported the idea in principle, there are serious concerns over making it mandatory, irrespective of the patient's means or the nature of the illness for which she needed treatment. UKBA told the Merits Committee that it would be applied on a case-by-case basis, as the noble Lord pointed out, but has not yet received an answer to the request that the Minister should provide a full explanation of how discretion is to be exercised. I hope we are going to hear something about that from the Minister this afternoon.

An example that was given in the Merits Committee report, which has already been referred to by the noble Lord, Lord Rosser, is of patients with HIV/AIDS. This was raised by three organisations in the consultation, one of which was the National AIDS Trust, from whom your Lordships have now heard further. It believes that this proposal is immensely discriminatory and will have an immensely harmful impact on public health. It will cost the NHS far more in the long run because HIV-positive migrants will avoid treatment and become ill and HIV will spread within and beyond migrant communities at an estimated lifetime cost of £280,000 for each new patient becoming infected. The National AIDS Trust says the groups most affected will be asylum seekers, visa overstayers and those without papers who have often been living in the UK for years without lawful residence, not visitors who come here with the deliberate intention of getting free medical treatment.

There is nothing in the statement to cover migrants who simply could not afford to pay large medical bills. Let us take as an example a student on an English-language course lasting under six months who is involved in an accident and needs surgery and a week's hospitalisation. She could easily run up a bill of £1,000. Are we saying that her leave to remain should be abruptly terminated and her future career possibly ruined because of this accident?

If the proposal had been confined to certain categories, such as tourist visitors, who should take out medical insurance when they come to the UK, as our tourists do when they go to the US, for example, I could understand it. The impact assessment says that health and other professionals are travelling to the UK specifically to access NHS services and that in many cases they leave without paying. This means that they are identified by the NHS provider as persons who are ineligible for free medical treatment, and they could be asked to pay for it in advance.

There are a lot of other changes, most of which it seems are to correct errors in previous instruments, but some, whether acknowledged or not, are to accommodate judgments of the courts. It has been suggested that the amendments dealing with the evidence that has to be produced by tier 2 migrants and work permit holders was inspired by the case of Pankina. Although that is not stated to be so, perhaps my noble friend will confirm that it is so. There are amendments dealing with spouses and civil partners, among which is one to reinsert a paragraph that was accidentally knocked out in a previous statement that was considered earlier this year. I am sure that that is not the whole story because paragraphs do not get knocked out by accident and it would be useful if my noble friend could probe this further with UKBA to avoid any repetition of that event, at a time when it is so accident- prone.

--- Later in debate ---

[The Minister of State, Home Office (Lord Henley)]

My Lords, I thank the noble Lord, Lord Rosser, for introducing this debate and also my noble kinsman Lord Avebury for his comments. I start with the Merits Committee and its complaints about this. Many years ago, I was a member of what is still, I think, called the Joint Committee on Statutory Instruments, which is a relatively toothless body as regards considering the merits of particular statutory instruments. When I was a member of the Government led in this House by my noble friend the then Lord Cranborne—who is now the noble Marquess, Lord Salisbury—I was very proud that we brought in the Merits Committee precisely so that it could look at the merits of statutory instruments. That was some time in the mid-1990s, and a very good job it has done over the years. Therefore, we are very concerned about complaints relating to orders that we have put forward and we take them very seriously. The complaints on this occasion are largely about the Explanatory Memorandum, whether we think that was adequate and whether it misrepresented the position of various others. I thought that that Explanatory Memorandum was adequate, but if complaints have been made about it by the Merits Committee we will have to take that seriously. We will have to up our game and no doubt make sure that we do better in the future.

I was grateful that the noble Lord, Lord Rosser, referred to the letter from my honourable friend Damian Green, which was sent to the Merits Committee after its 40th and 41st reports on this matter and dealt with many of those complaints. I am grateful that it has now been made available to the House and is published on the Merits Committee’s website. As I have said, we will obviously take these matters seriously and will look at the criticisms that it made.

My noble kinsman Lord Avebury also objected to the fact that the statement of changes was subject to the negative procedure and not to the affirmative procedure. I am afraid that we will have to go back in time to the original legislation that created them as negative resolutions rather than primary. I do not know when that was but if we want to change that, it would obviously be a matter for primary legislation. I do not think that there is any Henry VIII power for me unilaterally to change them. That is why I say to my noble kinsman that one of the reasons why very often one has to debate these matters after they have come into effect is that the order comes into effect on a certain date and there should be time for Members of both Houses either to pray against them or to have a debate of this sort in the Moses Room.

I should now like to turn to the substantive questions on the statement of changes to the Immigration Rules and set out our case because it would be useful for the Committee to know why we are doing what we are doing. As all will be aware, the National Health Service is the national health service and its resources in these straitened times are limited. It is right that it should be shielded against misuse by those who incur and fail to pay charges in compliance with law.

The NHS debtors rule is being introduced for a number of important reasons. First, it will deter overseas visitors from misusing the NHS; that is, to deal with the problem of health tourism. Secondly, it will ensure that overseas visitors understand their need to meet their obligations to pay for the NHS services they use. Thirdly, it will reassure the public that we are determined to operate fair and robust controls on migrants’ access to public benefits and services. Finally, it will enable other patients to benefit indirectly from the recovery of NHS resources. That, again, is an important point and we must always remember that those resources are finite.

The rules must also be seen in the context of the joint UK Border Agency and the Department of Health review of migrant access to health services. Following this review and public consultations by the Department of Health and the border agency last year, the NHS charging regulations for England have been amended. This amendment provides extra protection for potentially vulnerable groups, including failed asylum seekers supported by the United Kingdom Border Agency and children from overseas who are in the care of a local authority. They are no longer liable for NHS charges.

I recognise concerns raised that the new rules may deter migrants from seeking necessary medical care. I must stress that although these rules relate to the entire United Kingdom, those relating to the NHS will vary in the four different parts of the UK. In England, primary care as provided by GPs, treatment in accident and emergency departments, and most treatments carried out on public health grounds are free of charge. Furthermore, urgent or immediately necessary treatment must not be delayed over the question of payment.

The United Kingdom Border Agency also has an important role to play in protecting the economy and publicly funded services and their lawful users from the consequences of inappropriate access. The equality statement that was published with the laying of the rules outlines the Government’s view that the rules are a proportionate measure in pursuance of this legitimate policy objective. Nevertheless, all cases will be considered on their individual merits with decision-makers afforded discretion to take account of exceptional compassionate factors and obliged to apply human rights legislation, as we always do, and equality legislation. Applicants will remain able, as now, to raise any compelling compassionate circumstances which they consider pertinent to their application, and these will be considered, as is current practice.

The noble Lord, Lord Rosser, suggested that these changes were discriminatory and raised the question of treatment for HIV. I have made it clear that the underlying policy objective, that of protecting publicly funded services for those with a lawful claim to them, makes this a proportionate response. Medical information will not be shared between the NHS and the UKBA. However, it will remain open, as now, for applicants to raise any compassionate or medical factors that they consider pertinent to their applications. We will review the question as to whether people living with HIV and not ordinarily resident here should be exempted from their charges for HIV treatment.

I believe that we need robust controls to protect our public services, just as we need robust controls in other aspects of the control of our borders, as was made clear by the responses in another place to the Statement made by my right honourable friend the Home Secretary and in this House when I repeated that Statement earlier this week. Not only do we need to protect public services, it is also right that if someone does not pay the charges they incur for treatment, they should normally be refused any further immigration applications until they have paid their debt.

I hope that that deals with most of the questions that have been raised. I understand the concerns and I go back to the complaints made by the noble Lord, Lord Rosser, quoting from the report of the Merits Committee about our Explanatory Memorandum. As I said, if we got that wrong, we will try to do better in the future. With that assurance, I hope that the noble Lord will accept that this is a satisfactory and proportionate response to these issues.

[Lord Avebury]

As my noble friend is dealing with the question of NHS charges, does he have a reply to my question about whether, under the Olympics rules, GFMs will be exempt from them?

[Lord Henley]

My Lords, if I may, I would prefer to write to my noble kinsman on that point. My understanding from discussions I had earlier with officials is that we are all right under the IOC rules, but if I am wrong on that, I will write to him.

Visas: Domestic Workers

Lord Avebury Excerpts

Tuesday 18th October 2011 Lords Chamber

[Lord Henley]

My Lords, I cannot say that at this stage because that is the point behind the consultation. We want to consider all the responses to that consultation. But what I tried to make clear earlier, and what I will repeat to the noble Lord, is that we want to make sure that we get the right balance by providing the appropriate safeguards while making sure that we have the right safeguards against unnecessary immigration.

[Lord Avebury]

My Lords, in the letter from the Minister for Immigration, following a meeting we had with him on 6 September, he referred in some detail to the protection afforded to domestic workers by the national referral mechanism, which applies only to those who are trafficked and not to those who are admitted under the domestic resident worker visas. If these arrangements are terminated, as we discussed in Committee, would that not encourage rich employers to bring in their servants as visitors, as many of them already do? Would my noble friend confirm that the national referral mechanism would not be available to them or to servants in diplomatic households, who still normally come from the diplomat’s country of origin?

Rainforests

Lord Avebury Excerpts

Tuesday 13th September 2011 Lords Chamber

[Baroness Verma]

The noble Lord talks about a specific case, which I will not refer to. In a more general response, I would like to say to noble Lords that we are ensuring that we respond proactively to the difficulties we are all facing with this issue. The multinational companies that deal in illegal logging will find that the penalties for this will be severe. That is the agreement we are trying to get from all our partner countries so that it is not just a small group of countries that are willing to apply severe penalties, but that the penalties will be severe at every border that illegal timber comes through. It is about greater partnership but it is also about recognising that we are only a small cog when it comes to dealing with these issues and it is really for the whole world to respond collectively.

[Lord Avebury]

My Lords, what does my noble friend think about the UN-REDD initiative mentioned by the noble Lord, Lord Eden? Is it cost-effective, and how much does the United Kingdom contribute to it annually?

[Baroness Verma]

I cannot give my noble friend a figure on the contribution at the moment; I will write to him on it. However, I repeat that we may think that some systems are weak, but we have to strengthen those systems—review and revise them—and make countries where deforestation and illegal logging take place responsible for responding positively.

UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011

Lord Avebury Excerpts

Thursday 7th July 2011 Lords Chamber

Moved by

[Lord Avebury]

That this House regrets that the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011 (SI 2011/1293) changes the law that applies to appeals that have already been lodged.

[Lord Avebury]

My Lords, I am very grateful for the opportunity to discuss this Motion, which relates to an order that brings into effect Section 85A of the Nationality, Immigration and Asylum Act 2002, inserted by Section 19 of the UK Borders Act 2007. The title of Section 19 is “Points-based applications: no new evidence on appeal”, and that is a succinct description of its effect. The general rule that applies to immigration cases is that the immigration tribunals have power to consider any evidence relevant to the substance if the UKBA decision is under appeal, except in entry clearance cases—that is, cases relating to applications from abroad. In such cases, if there is a new development, the individuals have to make a new application to UKBA.

Section 19 makes provision for a new exception: all points-based system cases dealing with people either coming to or remaining in the UK for the purposes of work or study. A good deal was said about the substance of this section in the debate in Committee on the Bill which became the UK Border Act 2007, although there is no point in recapitulating the arguments against it that were deployed in both Houses, including in your Lordships' Grand Committee, on an amendment which I moved on 1 July 2007. If anyone is interested, it starts at col. GC 70, but I am afraid that the arguments are now only of historical interest.

In this short debate, I invite your Lordships’ attention to the specific reason for this Motion: namely, what I consider to be the unlawful retrospective effect of the commencement order. On Thursday 19 May, the immigration Minister, Damian Green, made a Written Ministerial Statement, announcing that this change would come into force the following Monday, 23 May, and advancing as an argument that around two-thirds of successful points-based system appeals were those at which further evidence had been submitted after the dismissal of the initial application. At some point on Friday 20 May, the commencement order was placed on the website www.statutelaw.gov.uk and printed copies were available in Parliament some time on that day.

There was hardly any time for your Lordships or Members of another place to consider the merits of the order or its lawfulness, let alone to consult with persons who might be affected by it or their legal representatives. On the Localism Bill, we have just had a discussion on the unwisdom of allowing discussions on the further edges of that Bill to be channelled into the Recess, the only opportunity between the last sitting day and the first day that we come back—it is a similar case. Your Lordships are not being given adequate opportunities for discussions on what may be very important details or of consulting with outside experts or lawyers on the way in which these matters are being dealt with.

This is not the way to treat Parliament and I would be grateful if the Minister could explain the reason for such unseemly haste when Section 19 has been lying unused on the statute book for the past four years, during which time six commencement orders relating to other sections of the 2007 Act have been approved by Parliament. It could not have been for the reason sometimes given for orders changing immigration law being brought in with little notice, which is to prevent a spike in applications before the change comes into effect. In this case the only persons affected were those who had already received a refusal from the UK Borders Agency and had either lodged an appeal or were within the 10-day working window for deciding whether to lodge an appeal.

The Immigration Law Practitioners Association, ILPA, wrote to UKBA protesting about the lack of notice and, in its reply, UKBA said:

“The order is not required to be laid before Parliament and it is not subject to the 21-day rule, as such no parliamentary conventions have been ignored in the introduction of this measure”.

No doubt that is true, but your Lordships still have the right to consider these orders, by tabling a Motion before they come into effect, as I have done. I respectfully suggest that, to table these Motions on a Friday when generally neither House sits in the hope that no one will notice them on Monday when they arrive for a busy week, is a sneaky way of preventing any parliamentary scrutiny. This case is not only an insult to Parliament, but it creates major problems for the affected applicants, their legal representatives and tribunals.

Looking at the order, the new provisions on evidence do not apply to appeals that were part heard on 23 May, but they apply to appeals that were pending before the tribunal on that date; in other words, when a person has lodged an appeal and is waiting for it to be heard. The gravamen of my Motion is that it is a violation of the principle of legal certainty when a person has gone to the trouble and expense of lodging an appeal on one legal basis only to find the rug pulled from under their feet by a change in the legal basis, which has come into effect without warning or notice. Indeed, they would have had every reason to believe that, as Section 19 had been dormant for the past four years, they would be very unlucky if it suddenly came to life during the interval between the refusal of their application and the hearing of their appeal. Such a person may have concluded or may have been advised that their prospects of an appeal succeeding were good because there was substantial new evidence available, but they would have those expectations dashed because that evidence was instantaneously disqualified.

We are advised by ILPA that the terms of the order are not lawful. It argues that unless the language clearly indicates a contrary parliamentary intention, a statutory provision has to be construed as not interfering with existing accrued rights. There is a presumption against retrospectivity which can be displaced only by clear statutory language and there is nothing in Section 19 or in Section 59 of the parent Act 2007 dealing with commencement that displaces the presumption in the case of Section 19. It is particularly telling that Section 59 displaces the presumption in the case of other sections of the Act, such as Section 26.

Without going through all the consequences of what Section 19 will mean in practice, there is one on which I seek an assurance from the Minister. This is the refusal of appeals on the grounds that mandatory evidence is missing or faulty. UKBA has issued a notice to its consultative forum, the employers’ task force, stating that a validation stage is being trialled in which applicants are contacted when mandatory evidence is missing and given the opportunity to provide it before the decision is made. Those with pending appeals on the date on which this order came into effect had not had the benefit of that validation stage and I ask my noble friend to check that none of them had their applications rejected solely on the ground that a mandatory document had not been produced. As we all know, when dealing with complicated applications, it is easy enough to omit accidentally some piece of information that is required and we would expect to be reminded of the omission rather than to be told that the service requested would not be granted to us because of the omission.

Entry clearance appeals have always been held under the law which applied when a negative decision was made by UKBA and before that by the Home Office on the application, going right back to the original immigration Act 1971. Not surprisingly, challenges to the lawfulness of this order are coming before the courts, a situation which could have been avoided if the Government had made transitional provisions for the small number of points-based system cases where the application had been refused but the appeal had not yet been started when the order came into effect. The wording of the order could simply have been amended so that it applied to appeals against decisions made on or after 23 May.

For the sake of this handful of cases, the Government are breaching a fundamental principle of law and it is the duty of Parliament to warn them of the enormity of what they are doing. We ask them to lay orders in proper time to allow Members to judge whether they are lawful and never again to scurry them in furtively over a weekend. We ask them never again to fail to make it clear in primary legislation where it is the intention to make the commencement of a section or sections retrospective. I beg to move.

[Baroness Hamwee]

My Lords, I will not repeat the arguments that my noble friend made so powerfully. I have one point and one question for the Minister. My noble friend mentioned the validation pilot. Before hearing about that, it struck me that the problem may lie in a lack of clarity about the evidence required, and in poor initial investigation. Can the Minister say anything about that?

I will not talk about making rods for our own back, but as a country we owe it to those who are applying for visas to be as clear as possible about what is required. We have talked in many debates about immigration and the importance of warm feelings on the part of other countries towards this country—the reputational area. I will mention that in this context.

--- Later in debate ---

[Baroness Browning]

My Lords, I think the noble Lord has been in the House long enough to know that the Government do not comment on the legal advice that they receive. Certainly, in bringing this measure into being, as I have outlined, it is our understanding that, unlike other statutory instruments, commencement orders are subject to no parliamentary procedure. It would not be appropriate for me to comment on any legal advice that the Government have taken in this matter.

[Lord Avebury]

My Lords, I did not expect my noble friend the Minister to be able to respond to that question from the noble Lord, Lord Rosser, knowing that there are already actions before the courts that have not yet been heard. She obviously cannot predict the result of those actions. Nevertheless, it is worth underlining that legal advisers of some applicants believe that they have a chance of success; otherwise they would not have been able to launch their actions in the courts. The precedent and the lawfulness of the order are still under review. We will not know the answer to the noble Lord’s question until those cases have been determined.

I thank the noble Lord, Lord Rosser, and all others who have spoken in this debate—my noble friend Lady Hamwee, the noble Lords, Lord Judd and Lord Hylton, and particularly the right reverend Prelate, who made the extremely valid and useful point that to do justice to applicants, all the evidence must be heard. By this order, we deny that to many people who would otherwise be successful, as illustrated by the Government’s own figures, which were just cited by the noble Baroness. Sixty-three per cent of those who produce fresh evidence after being refused were successful on appeal. I understand perfectly well her point that 92 per cent of the applicants found the process easy to understand.

However, looking at this the other way round, 8 per cent had some difficulty with it. As I said, even those who are very used to filling in forms occasionally omit a document or make a mistake on the statement that would invalidate the whole application. These minor errors cannot then be taken into consideration at the appeal stage because the documents must stand on their own merits without exception. As the right reverend Prelate pointed out, this means that any applicant who is in that position will have to formulate a new application simply because he omitted a document or made a literal error on one of the forms. This seems an unnecessary burden on both the applicant and the tribunals.

I am extremely grateful to my noble friend for her comprehensive answer to all the points that were raised in the debate. She gave full value for money in her reply, and answered many of the points that we dealt with. We look forward to receiving answers in due course to those that she did not manage to squeeze into her time, particularly to the question about the number of people who were affected at the time.

Needless to say, I did not accept my noble friend’s point when she said that my suggestion would have led to further difficulties if it had made it into the transitional provisions. With respect, nor do I think that she answered adequately the question about why it was necessary to bundle this order before your Lordships with such haste over a weekend, with no adequate opportunity for either consideration by your Lordships or consultation with outside interests that might well be affected by it. I wish my noble friend had been able to give me the assurance that I asked for: that this would not happen again on future occasions, and the Government would not make retrospective orders unless doing so was given express authority in the parent Act. However, I look forward to these points being dealt with by my noble friend in the reply that she has kindly promised to give. I beg leave to withdraw the Motion.

Motion withdrawn.

Migrant Domestic Workers

Lord Avebury Excerpts

Wednesday 8th June 2011 Grand Committee

[Lord Avebury]

My Lords, I join in the congratulations that have been expressed by others to the noble Baroness, Lady Cox, who not for the first time has raised the issue of rights for migrant domestic workers, as have my noble friend Lord Dholakia and the noble Earl, Lord Sandwich, in previous debates. This problem goes back a long way, as noble Lords can see from the fact that Kalayaan, which has been quoted by everybody who has spoken so far, goes back for more than 20 years. In fact, its briefing quotes from a debate we had on the subject in 1990, by no means the first of its kind, initiated by the noble Lord, Lord Hylton, to whose determination and persistence we should pay tribute.

Throughout the whole of the two decades, the abuse of foreign workers has followed a similar pattern to the description by the noble Lord, Lord Hylton: there are no written contracts of employment or contracts are arbitrarily changed, and wages are often withheld or paid in kind. Then there is compulsion to work excessive hours; inadequate food; denial of privacy; denial of access to friends or often to the outside world; and, in extreme cases, physical attacks, sexual abuse, and credible threats of violence. These things are still with us.

It is true that Kalayaan statistics comparing 1,000 MDWs in a survey done in 1996 with the workers registered with the organisation in 2010 shows some improvement, but from a totally unacceptable baseline. In the earlier year, 100 per cent were being made to work for 17 hours a day, while last year nearly half had to work 16 hours or more. In 1996, 38 per cent were not given enough to eat, compared with 26 per cent in 2010. The only statistic that got worse in those two years was that employers are now withholding the passports of nearly two-thirds of MDWs, compared with 62 per cent in 1996. The ability of the MDW to change employers and in 2008, the extension to MDWs of official status as workers under the points-based system, for which Kalayaan must be given a lot of the credit, should make a big difference in the longer term, but we need to know why a substantial proportion of employers are still ignoring their obligations.

Should not there be a provision in the rules that when an employer is found to have committed serious abuse of an MDW by the employment tribunal, his right to employ MDWs should be suspended for a period to be decided by the tribunal? The Kalayaan statistics on tribunal cases demonstrate that all too many employers are unfit to be given the power over the lives of domestic workers that allows them to break the law with impunity. While two-thirds of those registered with Kalayaan were made to work seven days a week with no time off, for instance, only 14 such cases were reported to the tribunal, so there is still a huge penumbra of abuse which the oppressors successfully conceal. The threat of not being allowed to have domestic servants might be an effective deterrent to the widespread defiance of the law that is continuing.

Another possible way of improving compliance would be to produce an explanatory leaflet in the principal languages of MDWs, and hand it to employers and MDWs at the port of entry. It is all there on the UKBA website, but I doubt whether many of the workers have access to the internet or have adequate knowledge of English to understand that advice.

The treatment of some MDWs equates to trafficking for domestic servitude, as the noble Baroness, Lady Cox, demonstrated, and these cases are brought to the attention of the national referral mechanism, established in 2009 following the Council of Europe's Convention on Action against Trafficking in Human Beings. Up to the end of last year there were 175 adult referrals under the domestic servitude heading, of which 55 were from Kalayaan. Could the Minister give us a breakdown of the agencies that reported the other 120 cases?

What is revealed in the statistics is that 246 of the NRM referrals were of children, of which 104 led to conclusive grounds decisions—a really shocking picture, particularly when you consider the difficulty and danger for a person making the initial complaint while still under the roof of the oppressor. What happens when it is first established that the referral is of a child, bearing in mind that the average time taken to reach a conclusive decision is 190 days, compared with the 45 days reflection period? One would expect that the child would be removed from the employer and fostered pending the NRM decision, but suppose the employer claims to be a close relative, as in the case of Victoria Climbié, for instance. Do we ever allow children to enter the UK now with a person who claims to be a relative but not a parent? Does the NRM refer all the cases reported to it of children to the UKBA with a view to checking on their immigration status? The children obviously did not qualify for admission under the overseas domestic worker regime, first introduced in 1998 and now part of the immigration rules. But one reason given by abused workers for not agreeing to be referred to the NRM is that it would lead to excessive focus on their immigration status. This means that the NRM statistics are the tip of the iceberg, because only those who entered legally as ODWs are likely to register. With an ODW visa, the migrant is free to change employer and frequently does so with minimum support. For the undocumented, Kalayaan recommends the issue of a three-month bridging visa to enable the exploited MDW to find new employment and to apply for an ODW visa, paying tax and national insurance, and eliminating the expense of treating the victim as an illegal entrant.

Finally, I turn to the knotty question of MDWs brought here by diplomats, raised by the noble Baroness, Lady Cox. These workers are not allowed to switch to another employer without losing their immigration status, and the employer's immunity means that although the levels of abuse and exploitation in diplomatic households are similar to those in private households, the FCO does not ask to be informed of trafficking cases identified by the NRM, which itself is a woefully incomplete record. The Austrian Government interview diplomatic MDWs annually, and it would be useful to know how many cases of abuse are thereby uncovered. Does my noble friend think we should have a similar procedure, or better still, that it should be made part of European law?

The annual interview could be an important tool for uncovering abuse throughout the whole of the MDW population. To minimise the bureaucracy involved, the employer could be obliged to complete a form detailing the hours of work and hourly pay; the additional hours the worker is expected to be on standby and the hourly rate for those hours; the details of rest breaks, days off and annual holidays; and the details of tax deducted and national insurance contributions paid. This form should be countersigned by the worker as correct, and it should be available for rechecking at the annual interview. When the worker is said to be treated as part of the family, and to be covered by the family worker exemption, this should be clearly specified, but Kalayaan recommends that the statutory minimum wage should apply to these workers as to all others. Seeing that half of all MDWs are paid less than the minimum wage, it seems likely that the exemption has been widely abused.

The Kalayaan report is a competent and thorough piece of work, and its recommendations demand well considered replies from the Government. In the quarter of a century since the abuse of domestic workers from overseas first became a subject of concern to your Lordships, there have been several attempts at reform, but the extent and nature of the problem has remained the same. It is intolerable and unthinkable that we should fail to act against the criminal employers who treat vulnerable domestic workers, many of them children, like slaves, and I hope that this debate will enable us to signal the determination to stamp out abuse and bring criminal employers to justice.