EU Drugs Strategy: EUC Report

Debate between Lord Avebury and Lord Henley

Thursday 19th July 2012 Lords Chamber

[Lord Henley]

We will certainly look at the American experience. We are aware that there are a great many more lawyers in America than there are in this country, and that the Americans are keen on making use of lawyers. However, obviously we would want to learn from their experience. While I am on the subject of the ACMD, I should also say to my noble friend Lord Avebury, who asked about khat, that the advisory committee is currently reviewing the harms associated with it. We will not prejudge that advice, but we will look at it in due course.

[Lord Avebury]

I am most grateful to my noble friend. I also mentioned, in the context of the examination of khat, the possibility of applying regulation. The committee looked at regulation although it did not express a firm opinion on it. However, it is another way of tackling harmful drugs, and it may particularly apply to the use of khat. I would be grateful, given that the advisory committee is looking at khat, if it would also examine the possibility of using regulation to control it.

[Lord Henley]

I think that that must be a matter for the advisory committee to decide. I want to make it clear that we will not prejudge its advice. We will look at it when it comes and then make an appropriate decision. I understand that that is likely to be later this year.

I want to try to make progress because the House wishes to get on to the next debate. One of our key priorities for the next iteration of the drug strategy is to ensure that we agree a principle of transparency that would allow greater oversight of the available EU funding streams and the actions they are driving. It is vital that we ensure that EU funding for counternarcotics and EU co-ordination in external third countries is effectively targeted and aligned with overall EU drug strategy priorities. We would like to see concrete actions intended to tackle drugs covering both action to enhance local capability against the drugs trade and alternative development.

The noble Lords, Lord Hannay and Lord Liddle, and others mentioned the European Monitoring Centre for Drugs and Drug Addiction in Lisbon, which is rather inelegantly known as the EMCDDA. I will refer to it as the European monitoring centre. I was asked what our view is of this body. I agree with everything that the noble Lord, Lord Hannay, said about its valuable work. We accept that it should continue and that we should make increased use of it where possible, and similarly of its early-warning system through the use of intelligence gathering and forensic analysis via Europol and Interpol. This will also help with our collective understanding of the current EU drugs market.

There were those who took the debate further and asked that we look at alternative approaches. The noble Lord, Lord Hannay, said that he was somewhat constrained because he was worried that the Daily Mail might be listening. I looked up at the Gallery and I do not think that anyone from that paper was there at that stage. We fully respect the fact that different ideas and policies will be put forward in the ongoing debate. We believe that policies should be discussed, challenged and reviewed. That is what we are doing in the United Kingdom through our annual review of the drugs strategy that we produced back in 2010, and the development of our evaluation framework. We continue to discuss efforts to tackle the drugs trade with our international partners.

Similarly, within this country, the noble Lord mentioned a conference that my right honourable friend Oliver Letwin will be addressing in November on these matters. My right honourable friend, as a Minister in the Cabinet Office, is also part of the inter-ministerial group on drugs that I chair on behalf of the Home Office. There were those who said that it should not be the Home Office that led on this subject and that this matter should be transferred to the Department of Health. However, we in government think it should cover all the Government but be led by the Home Office. The inter-ministerial group that I chair also has representatives from Health, Education, the Cabinet Office, Work and Pensions, the Ministry of Justice, Communities and Local Government and, last—one should never say least—Her Majesty’s Treasury. Meetings of the inter-ministerial group are roughly once a month and all those Ministers regularly attend. I think that it is a very fine example of the Government being non-siloised—if I can put it in those terms—and thinking across the board in these matters.

I will say a word or two about Portugal and decriminalisation. Again, we will continue to look at what happens in all countries and we are determined to study the effects of the work they have done in Portugal. There is an excellent policy review by the EMCDDA of what Portugal is doing, which I commend to noble Lords. We will look at what it does and make our decisions in due course. Lastly on the subject of decriminalisation, I do not think that this is the time or place to go on to that wider subject. However, the legal framework that we have in this country—the Misuse of Drugs Act 1971—allows the criminal justice system some flexibility to deal with the best way to reduce reoffending and gives both the police and the judiciary discretion to take into account all the circumstances of the offence, such as when it involves possession of a relatively small amount of some drug.

As noble Lords will be aware, government officials are closely involved in the development of the new EU drugs strategy. It is currently on course to be adopted at the Justice and Home Affairs Council in December. I can assure the noble Lord and his committee that officials from the Home Office will keep the committee informed of progress with the new document as appropriate.

Crime and Courts Bill [HL]

Debate between Lord Avebury and Lord Henley

Wednesday 4th July 2012 Lords Chamber

[Lord Henley]

My Lords, without knowing more about the sort of cases that my noble friend refers to, I do not think that I can respond to him at this stage. The more general point, and the reason for bringing this clause forward, is that we feel that many of the applications can be dealt with by a new application and so the process of a right of appeal is not the right way forward. We are bringing it into line with other parts of the immigration system. In the main, we have found that so many appeals have been on the basis of new information. This is a more appropriate way of dealing with it.

[Lord Avebury]

My Lords, I dread to think of how many occasions I have sat here and listened to Ministers from the Front Bench saying that they will make amends for the all the criticisms that have come from the chief inspectors of the UK Border Agency or their predecessors; yet on the next occasion we debate precisely the same thing. It is with some reluctance that one accepts the assurances that the Minister has given that the Government are going to sort out the UK Border Agency so that fewer false decisions are made. I am sure that he has been told by the officials that they have this matter in hand but the benefit of past experience shows us that we cannot rely on that.

In relation to the suggestion made by my noble friend Lady Hamwee, that there should be some mechanism whereby, if the entry certificate officer needs some further information that the applicant could not possibly have known would be required on his original application, that should not be the cause of a refusal but of a communication from the ECO to the applicant to say exactly what kind of information is needed and that that would be considered in making the decision. There is no such mechanism at the moment and I am not satisfied that the assurances the Minister has given, that he will look at the proposal, are sufficient. My suggestion is that we could perhaps think about this before Report and come back to it then, to hear further from the Minister about what progress he has been able to make on my noble friend Lady Hamwee’s suggestion.

Even so, there remains a problem: that the applicant has a black mark against them in the Home Office records, which may have deleterious effects on any further application that he makes. When he comes to make another visit and officers look up what happened in the past, they will see that he has had a refusal. In the case that I mentioned of Mrs N in Beirut, who made a number of visits to her husband in London, no problem was ever encountered. It was rather like the case cited by my noble friend Lord Hussain. Quite simply, they granted the entry certificate. She came to visit her husband in London and went back to Beirut afterwards, for the very simple reason that she had an 89-year-old mother there for whom she is the primary carer, as I explained. That was known—it must be on the files—yet on this occasion, after she has been from Beirut to London perhaps a dozen times without any problem, suddenly she was refused.

Mrs N’s solicitor advised her not only to put in a fresh application, which my noble friend thinks is the ultimate solution, but to appeal because she does not want a stain to appear on her record. That is not going to vanish. There is no way in which you can rub off a record of a refusal, except by means of an appeal. Although people may be able to get permission more quickly to come here by putting in a fresh application, as my noble friend says, that application will have to be considered in the light of the fact that there is a record of a refusal. It is less likely that that person will be able to come here in future. The solution that my noble friend has suggested is not the answer and I say again that we will have to return to this on Report, when I hope we can make some further progress on it. Meanwhile, I beg leave to withdraw the amendment.

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[Lord Avebury]

My Lords, the specific race discrimination ground of appeal in immigration cases now relates only to Northern Ireland. The 2002 Act continues to allow an immigration judge to find an immigration decision to be unlawful by reason of race or other unlawful discrimination, because Section 84(1)(e) provides a ground of appeal,

“that the decision is otherwise not in accordance with the law”,

but only where he or she has jurisdiction to hear the appeal in the first place.

The importance of the specific race discrimination ground of appeal is that it is one of two statutory grounds that generally preserve an appeal right that would otherwise be precluded by the 2002 Act. Thus, in the various and complex sections restricting appeal rights in that Act, the following general formula is repeated several times: that the relevant restriction,

“does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c)”.

This general formula previously preserved the right of appeal against an immigration decision, where the would-be appellant sought to challenge the immigration decision on race discrimination or human rights grounds. This has particular relevance to Clause 24 of the Bill, by which it is intended to remove the right of appeal against the refusal of a family visit visa. The provisions that Clause 24 amends will continue to retain the general formula intended to preserve a right of appeal on race discrimination or human rights grounds. Preserving the right of appeal on those grounds is clearly intended, as is stated by paragraph 373 of the Explanatory Notes. It was also made clear on the UK Border Agency website when the Bill was first published, as well as in a more recent announcement on that website concerning changes to remove the right of appeal for aunts, uncles, nieces, nephews and cousins against a refusal of a family visit visa.

However, the omission of the relevant words in Section 84(1)(b) undermines all this. The general formula now preserves appeal rights only where the appeal is brought on human rights grounds in England and Wales or Scotland, and on both race discrimination and human rights grounds in Northern Ireland. The Immigration Law Practitioners’ Association has raised this with the Home Office, and it has been confirmed that this was not intended. ILPA informs us that the Home Office is looking at how best to remedy the omission, and we hope that it can be done while this Bill is in progress. Ideally, the Government will be able to say how and by when this omission is to be corrected in answer to this amendment, and we would then expect to see it implemented on Report.

The events that led to the inadvertent omission of the specific race discrimination ground of appeal highlight once again the notorious complexity of immigration law, including the highly complex statutory appeal provisions. We have just enacted the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in the face of widespread concern both within and outside Parliament about the removal of legal aid in areas such as immigration, which, as the noble Lord, Lord Pannick, said on the last day of debate in the House of Lords before enactment,

“will hit hardest the weakest and most impoverished sections of our society, often on complex questions of law such as are raised by immigration law”.—[Official Report, 25/4/12; col. 1797.]

If the Government cannot even foresee the consequences for the statutory immigration appeals scheme when they draft legislation with an impact on that scheme, they can hardly expect individuals without legal advice or representation to understand the rules and to know what appeal rights they still have, if any. I beg to move.

[Lord Henley]

My Lords, my noble kinsman has spotted something, and it will be suitable for me to intervene at this stage and save ourselves a debate. As he has explained, Amendment 148B is intended to reinstate a right of appeal against an immigration decision on race relations grounds. Such a right of appeal existed prior to the commencement of the Equality Act 2010, but many noble Lords will remember that the latter stages of that Act were rushed through rather fast in the run-up to the election, and that right was inadvertently removed by the consequential amendments made under that Act. That might encourage us to think more carefully about the wash-up process in the future because of the mistakes that can creep in.

The Government’s stated policy remains that there should be a right of appeal on race relations grounds, and we agree that this appeal right should be reinstated. My noble kinsman asked how we can do that. We do not apparently need primary legislation to rectify this problem as we could effect the necessary change through secondary legislation made under the Equality Act 2010, a point that has been recognised by the Immigration Law Practitioners’ Association in its briefing on this amendment.

I am happy to give a commitment that the problem will be rectified and to explore further over the summer —my noble kinsman will be aware that we have quite a few months before we get to Report—how best this might be achieved. In light of this reassurance, I hope that he will withdraw his amendment.

[Lord Avebury]

I am happy to withdraw the amendment on the basis of that assurance.

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[Lord Henley]

My Lords, I will deal with the amendments in the same order as my noble kinsman did. Amendment 148C would create a right of appeal whenever someone is refused asylum but is granted any form of leave. It would also have the effect of providing for multiple rights of appeal against the refusal of asylum for a group of cases where no right currently exists, as there will be a right of appeal every time a fresh grant of leave is given. That is possibly an undesirable position.

The original purpose of Section 83 of the Nationality, Immigration and Asylum Act 2002, which, again, the noble Baroness will well remember, was to provide a right of appeal where an asylum application has been refused but the applicant was granted more than 12 months’ leave. Normally when a claim for asylum is refused, there is a right of appeal against the subsequent removal from the UK rather than against the refusal of asylum itself. The appellant can raise asylum grounds as part of that appeal against his removal. However, where someone has been refused asylum but granted leave of less than 12 months, removal directions will not be set and therefore no appeal right arises. In these cases, the short duration of the leave necessarily means that the case will be considered again quickly, reducing the need for an appeal. Where there are no grounds to grant asylum but there are other valid reasons why someone cannot return to their home country, another form of immigration leave is sometimes granted. If leave is granted for more than 12 months, Section 83 of the 2002 Act provides for a right of appeal against the refusal of asylum.

Amendment 148C would remove the 12-month restriction and would create a right of appeal against the refusal of asylum, even where a short period of leave is granted. It is not unusual for these short periods of leave to be extended more than once, and recent case law means that the amendment would create a right of appeal against the earlier refusal of asylum every time further leave was granted. If a decision to remove the applicant from the UK was ultimately taken, a separate right of appeal would arise against that decision. The amendment would possibly undermine the intention of the existing asylum appeals framework, which aims to prevent multiple, fruitless appeals being used to prolong someone’s time in the United Kingdom, often at significant cost to the taxpayer.

My noble kinsman and the noble Baroness asked about the impact on children, particularly unaccompanied children, who are refused asylum. They are normally granted leave until they reach the age of 17 and a half. The 12-month restriction therefore means that some unaccompanied children will be refused asylum and granted less than 12 months’ leave, which means that they do not get an appeal right under Section 83 of the 2002 Act. Those children may not have their asylum considered by a court for more than a year after they first claimed asylum. That is an unfortunate consequence of the otherwise very sensible 12-month restriction, and I can assure my noble kinsman that we will review our policies concerning the length of leave granted to children to ensure that there are no unintended consequences of the sort that he and the noble Baroness implied.

Amendment 148D concerns the Secretary of State’s powers to certify, under Section 94(7) of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach his or her human rights. The effect of the certificate in such cases is that an appeal can be brought out of country only after that person has been removed. This provision is designed to prevent spurious appeals being used to delay removal in hopeless cases. When determining whether such persons may be removed, the third country must be a place from which the person will not be sent to another country other than in accordance with the refugee convention; we want to make that clear. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached. I believe, therefore, that Amendment 148D is unnecessary because the courts are already able to consider whether the person’s human rights may be breached by way of judicial review challenging the issue of that certificate. Once the person has been removed to the third country, an appeal may be brought and refugee convention issues can be considered. In light of that assurance, I hope that my noble friend will feel able to withdraw his amendments.

[Lord Avebury]

My Lords, I am grateful to my noble kinsman for what he has said about Amendment 148C. I look forward to hearing further from him, perhaps on Report, about the results of the policy review on the length of permission granted for a child and the effects of an appeal being heard after the child has reached the age of adulthood. I hope that I may take it, from what he said, that we will be able to have a more concrete idea of what the Government propose to do to remedy the situation before Report. If legislation is required to remedy it, we must not miss the opportunity presented by the Bill.

On Amendment 148D, the question of whether we need changes in the statute to cope with the cases that I have mentioned, where it was found that the presumption was not justified, is a matter on which I need to take further legal advice, so I will not pursue the matter any further at this point but may well return to it on Report. I beg leave to withdraw the amendment.

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[Lord Henley]

My noble friend is absolutely correct. It is always difficult to make sure that any law is understandable to the ordinary man or woman in the street or the ordinary man or woman on the Clapham omnibus. It is obviously, as our noble friend Lord Lester of Herne Hill put it, sometimes difficult to make the law intelligible to even the extraordinary lawyers let alone the ordinary ones. We try to make sure that it is as intelligible as possible but, as I think my noble friend Lord Lester is aware, even with some of the simplest laws one lawyer will take one view and another will take another view. These matters are often argued in the courts at some considerable length. We try to do what we can to make things as simple as possible. I hoped that this would be a very short amendment, and I hope that the reassurance that I offered to my noble kinsman will be sufficient for him to withdraw the amendment.

[Lord Avebury]

The important thing is that my noble kinsman has agreed to tidy up Section 99 of the Nationality, Immigration and Asylum Act 2002. I am most grateful to him for that assurance and beg leave to withdraw the amendment.

UK Border Agency: Visa Applications

Debate between Lord Avebury and Lord Henley

Tuesday 19th June 2012 Lords Chamber

[Lord Henley]

My Lords, I join the noble Lord in paying tribute to John Vine for the work that he does and for his report. I think that he has slightly overegged the pudding—if I can put it in those terms—in his criticism. The chief inspector found some very good practice in three out of four sections that he visited. He found that they were good on timelines, although I accept the criticism that there was possibly an attempt to push things forward purely to meet targets. There was obviously some criticism about accuracy.

We will obviously move forward as fast as we can on producing responses to this, but, as the noble Lord will be aware, there have been quite a number of reports from the chief inspector’s office and we are still processing some of the others. Some of the facts that he deals with in his report relate back to as early as February or even to last year. Things have moved on since then, but I can assure the noble Lord that we are treating this matter with urgency.

[Lord Avebury]

My Lords, neither entry clearance manager reviews nor complaints procedures are of sufficiently high quality and cannot be relied on. Will my noble kinsman say how family visitors who are to be denied a right of appeal in the future will be able to get redress without an appeal mechanism? Bearing in mind that the ability to apply the law correctly is poor, how will the Government ensure that the errors detected in this report will not happen when decisions are made under the new rules on family immigration?

[Lord Henley]

My noble kinsman is right to draw attention to the changes we are making, which we discussed at Second Reading of the Crime and Courts Bill. We will have further discussions on this in due course when we get to the appropriate stage of that Bill in Committee. However, I can say, and I think I said it at Second Reading, that someone who has been refused a visit visa can reapply and address the reasons why they were refused. A decision will be received more quickly as a result. Typically, that will take 15 days compared with going through an appeal, which can take eight months. On top of that, the application fee is cheaper when reapplying than when pursuing an appeal.

Immigration: Detention of Children at Heathrow

Debate between Lord Avebury and Lord Henley

Wednesday 16th May 2012 Lords Chamber

[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

Debate between Lord Avebury and Lord Henley

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.

UK Border Agency: Prisoners

Debate between Lord Avebury and Lord Henley

Thursday 1st December 2011 Lords Chamber

[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

Debate between Lord Avebury and Lord Henley

Wednesday 9th November 2011 Grand Committee

[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

Debate between Lord Avebury and Lord Henley

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?