Immigration: High Court Ruling

Lord Hunt of Kings Heath Excerpts

Monday 20th December 2010 Lords Chamber

[The Minister of State, Home Office (Baroness Neville-Jones)]

My Lords, with the leave of the House I would like to repeat a Statement made earlier today in another place by my friend the Minister of State for Immigration. The Statement is as follows.

“In June, when the Government announced that they would consult on how to implement a permanent limit on economic migrants, we also said that we would impose an interim limit, until the permanent one took effect. This was to avoid a surge of applications in anticipation of the permanent limit.

The interim limit was given effect through changes to the Immigration Rules which were laid before Parliament and on which an oral Statement was made. On Friday, we received the judgment that the changes announced provide insufficient legal basis for the operation of the interim limit.

The judgment was based on a technical procedural point, known as Pankina grounds. The court decided that this meant more detail about the manner in which the limit is set, including its level, should have been included in the Immigration Rules changes laid before Parliament.

I would like to make it clear that the judgment of the court was concerned solely with the technicalities of how the interim limits were introduced. It was in no way critical of, or prejudicial to, the Government’s policy of applying a limit to economic migration to the United Kingdom, either permanently or on an interim basis.

The policy objective of a limit in migration has not been called into question and I am now considering what steps are required to reapply an interim limit consistent with the findings of the court.

Tomorrow I will be laying changes to the Immigration Rules which will set out the details the court required. This will enable us to reinstate the interim limits on a clear legal basis. The House will be interested to know that I will also be laying changes to the rules tomorrow to close applications under the tier 1 general route from outside the United Kingdom, as the original level specified on this tier has been reached. I can reassure the House that the policy of using these limits as part of our overall policy of reducing net migration is unchanged. I commend this Statement to the House”.

My Lords, that concludes the Statement.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Baroness for repeating the urgent question in the other place as a Statement.

Migration has made, and continues to make, a significant contribution to our country, but it is also essential that it is properly controlled for reasons of both economic well-being and social cohesion. Over the past few years, the previous Government put in transitional controls on EU migration; a suspension of unskilled work permits; a tough but flexible points system to manage skilled migration; tighter regulation of overseas students, leading to the closure of 140 bogus colleges; and new citizenship requirements for those seeking settlement.

At the general election, the leader of the Conservative Party proposed to go further in two key respects. First, he proposed a new target to reduce net migration to tens of thousands by 2015. To meet that target he pledged a cap on immigration, which he said would be tougher than the points system. Since then, the Government have been in wholesale retreat.

The Home Affairs Committee and the Migration Advisory Committee have highlighted that the cap not only excludes EU migration but covers only 20 per cent of non-EU migration. The CBI, Chambers of Commerce, universities, UK and foreign companies have highlighted the damage the Government’s proposals would have meant for business investment and job creation.

As a result, we have the retreat confirmed by the Home Secretary on 23 November. We have also learnt of the funding cuts in the noble Baroness’s department, leading to the cutting of the number of border officers and staff by nearly a quarter, raising serious questions about the security of our borders and whether the Government’s policy can actually be implemented.

We come to the way in which the Home Secretary imposed the cap. On 28 June, the Home Secretary came to the other place to announce, without consultation, an immediate and temporary cap on non-EU migration. Details of this cap were then posted on the Home Office website, but not presented to Parliament. On Friday, the High Court ruled that the actions of the Home Secretary were in fact illegal. Lord Justice Sullivan said,

“There can be no doubt that she”—

the Home Secretary—

“was attempting to sidestep provisions for Parliamentary scrutiny … and her attempt was for that reason unlawful”.

As a result, the Government’s much heralded cap does not in fact exist. As Lord Justice Sullivan said,

“no interim limits were lawfully published … by the Secretary of State … there is not, and never has been, a limit on the number of applicants who may be admitted”.

In the light of this chaotic situation, on the consequences of the error, what is the status of those who applied under the illegal cap but were rejected? Will their applications now be granted? Can the Minister tell the House how many more migrants she now expects to enter the UK, while the cap is out of action? And in this light, is it still the target of this Government to cut net migration to tens of thousands by 2015, as the Prime Minister pledged before the election? Or is this mistake one reason why the Home Secretary is now trying to water down this target to just an aim?

Secondly, how did we get into this mess in the first place? Did Ministers ask for and receive legal advice before the summer about the legality of the temporary cap and the rushed way they were introducing it? Can she confirm that, in fact, Ministers were warned by officials and lawyers that there was a real risk of legal challenge if Parliament were bypassed in this way? Will the Minister agree to lay before Parliament all the legal advice on which the decision to proceed was based in order to dispel the impression that they have acted in a reckless and chaotic manner and to show that Home Office Ministers have nothing to hide in this regard?