Immigration Bill

Debate between Lord Rosser and Lord Avebury

Monday 3rd March 2014 Lords Chamber

[Lord Avebury (LD)]

My Lords, I agree with what my noble friend has just been saying, particularly about the failure of the Home Office to deal with the serious criticisms of the case owners that were referred to earlier by the noble Lord, Lord Ramsbotham. The whole point about disbanding the UKBA and returning these functions to the control of the Home Office itself was that by common acknowledgement, including that of the Home Secretary herself, the UKBA had become dysfunctional and something had to be done. However, what has in fact been done since it was disbanded is that the case owners are not the same persons who were making decisions before and were manifestly incapable of doing the right thing, by reason of the fact that a very large number of the appeals against their decisions were upheld by the tribunal. It would be useful if we had an answer to both that question and the noble Lord’s further question about the consideration of Outsourcing Abuse, the report to which he referred, which never had the consideration that I believe it deserved in the Home Office but is crucial to the future health and efficiency of the people who are making these fundamental decisions, which affect the lives of so many people.

On these amendments, I agree with the Delegated Powers Committee that the definition of “family members” must be in the Bill and limited to those whose leave to enter or remain in the UK is expressly dependent on the principal’s leave to enter or remain. For example, a family member who came to the UK for work or study, not as the dependant of the principal, should not be included in the definition. That seems to be the effect of Regulation 3 of the draft Immigration (Removal of Family Members) Regulations 2014 but, as has been said, it should be in the Bill. As the Delegated Powers Committee found, the justification for placing both this and the time limits for removal in secondary legislation—that they may have to be amended from time to time—is not borne out by experience over many years and through a good many immigration Acts.

Draft Regulation 4 has the same effect as Section 10(1)(c) of the 1999 Act, providing that notice has to be given to any family member who is liable to removal, but the Bill provides only that notice “may” be given, as my noble friend Lady Hamwee pointed out in moving the amendment. This is partly covered by our Amendment 4, but the Minister may wish to consider placing the obligation to give notice firmly in the Bill. As ILPA makes clear in its briefing, quoting the noble and learned Lord, Lord Steyn, giving notice is vital for the legality of the decision to remove a person so as to give him the opportunity of challenging the decision before the courts. The Secretary of State’s attempt to remove certain persons without notice has been ruled unlawful by the High Court and the Court of Appeal. In short, the powers and safeguards dealing with the identification of family members who may be removed, the question of when the powers may be exercised and the notice to be given should all be in the Bill, as should the provisions of Section 10(5) of the 1999 Act, providing that removal directions should cease to have effect against a person who ceases to be a family member.

[Lord Rosser (Lab)]

My Lords, I will not at this stage make any comments relating to the extension of enforcement powers but will wait until we discuss Amendments 12 and 13. We are not opposed to the principle of Clause 1 but we have questions to raise. We cannot see what the problems for the Government would be in accepting Amendments 5, 6 and 7, and we await the Minister’s response with interest.

We have Amendments 2 and 8 in this group. Amendment 2 is not dissimilar to that moved by the noble Baroness, Lady Hamwee, and provides that a person should be given written notice of their liability for removal. According to the Government, there are approximately 14,000 enforced removals a year, with people being arrested, detained and then removed, and about 29,000 people depart voluntarily to a greater or lesser degree. Apparently, an enforced removal costs about £15,000.

The Immigration Act 1971 requires written notice of decisions to give, refuse or vary leave to be in the United Kingdom. Currently, migrants are told if they are not allowed to be here, and they are then told separately about their removal. Under the Bill, the Government want to be in a position to serve only one decision that gives, refuses or varies leaves and, following that decision, where notice has been given, those who do not have leave to remain will be subject to removal without a separate removal decision or notice being required. It seems that the notice giving the decision on leave to remain will tell the immigrant of their destination for removal, advise them to seek early legal advice and place them under a duty to raise any asylum, human rights or European free movement issues with the Home Office. It is not clear why this is not stated in the Bill. No doubt the Minister will explain why and indicate what else will be required to be included in this decision notice. Apparently, the decision notice will be issued at least 72 hours before any removal is attempted, which is in line with the amount of notice given currently when a removal decision notice is issued. Will the decision notice make clear the individual’s liability to removal, and will it state when, where and how that removal will take place? I look to the Minister to give a response to that question when he replies. Will the minimum 72 hours apply to family members? The draft regulations refer to,

“at any time prior to … removal”.

I hope the Minister will respond to that question. Included in the decision notice will be options for voluntary departure and the consequences of not so departing. Will the Minister say what the consequences of not departing voluntarily will be that will be set out in the notice and, once again, why that should not be in the Bill?

Since financial reasons appear in part to be behind the provisions in Clause 1, will the Minister say what the Government anticipate those savings will be and what impact the change to not having a separate removal notice will have on the number of enforced removals and on the number of people departing voluntarily? Perhaps he will also say what impact the Government expect the change to having no separate removal notice will have on the net migration figure each year, since one assumes that one key purpose of the Bill, as far as the Government are concerned, is to have an impact on that overall figure. It seems unlikely that the current system will be strengthened if the time gap between an individual receiving notice that they do not have leave to be in the United Kingdom and the time they are removed if they do not leave voluntarily is longer than under the current arrangements, under which a separate notice of removal decision is issued. Will the Minister say how long it currently takes, on average, for an attempt to be made to remove a person following a refusal to grant or vary leave being made, how long it takes following the removal decision being sent, and how long the Government intend it should take under the proposed arrangements with only one decision notice being issued in the light of the intention that a decision notice will be issued at least 72 hours before a removal is attempted?

Amendment 8 provides that the regulations that the Secretary of Sate can make about the removal of family members under Clause 1(6) should not be made unless a draft has been made before and approved by resolution of each House of Parliament. The Bill does not provide for this to be the case in respect of regulations under Clause 1(6), which would not be subject to the affirmative procedure. Clause 1(6) enables the Secretary of State to enable regulations that, in effect, define who should be considered a “family member” and the period during which they may be removed. Surely legislation should be clear about the people who are subject to the powers it contains. The Secretary of State’s definition of a family member, which could be wide-ranging, should be subject to full discussion and affirmative approval by both Houses.

Statement of Changes in Immigration Rules

Debate between Lord Rosser and Lord Avebury

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.

Draft Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010

Debate between Lord Rosser and Lord Avebury

Monday 4th April 2011 Lords Chamber

[Lord Avebury]

My Lords, of course we welcome this order, which corrects a serious error of judgment by the previous Government. We also welcome the Minister’s careful explanation of its purpose and consequences. She said that there was evidence of an increase in the number of sham marriages in the figures for 2009 to 2010. If I have the correct figures, the number of sham marriages increased from 561 in the first of those years to 934 in the second. However, is it not a fact that people do not acquire any additional rights to remain as a result of a marriage when they have entered the country for some other purpose? It would be interesting to find out what the subsequent immigration experience of the people was whose marriages were reported as possibly being sham. I am sure that the UK Border Agency carefully followed up all the reports that the Minister has mentioned. For future reference it would be useful to know how many of the people were subsequently prevented from remaining in the country because it was established that the marriages were not only suspected of being sham but were actually false.

The Minister also spoke about the experience of the police in detecting particular cases. She mentioned the Czechs who were convicted and sentenced to between 16 months and five years for facilitating sham marriages, and said that in some cases those marriages were proved to have been bigamous. Obviously, an offence was committed by those people quite apart from the immigration offence and they would have quite properly been convicted for that reason.

When the Labour Government introduced certificates of approval for marriages between people, either or both of whom were subject to immigration control, there were immediate warnings from those with experience of immigration law and the European Convention on Human Rights that the scheme was discriminatory. The Immigration Law Practitioners’ Association briefing to your Lordships for the Third Reading of the Asylum and Immigration (Treatment of Claimants, etc.) Act said that the provisions on sham marriages did not apply to those who marry in the Church of England and were therefore discriminatory against all other religions, a point that was taken up by the Joint Committee on Human Rights in its report of 30 June 2004 and by every single court that subsequently ruled on the matter.

The incompatibility with the convention was identified by the domestic courts as early as 2006, so the remedial order that we are now considering, which is intended to be “fast track” corrective action following a declaration of incompatibility, has taken five years to mature. Not surprisingly, the Joint Committee on Human Rights regrets the substantial delay. Having set out their intention to use a non-urgent remedial order under Section 10 of the Human Rights Act 1998, this Government acted as quickly as possible to abolish the certificate of approval scheme in response to the House of Lords judgment in the case of Baiai, which had been delivered on 30 July 1998. Will my noble friend say whether it would have made any difference if the matter had been treated as urgent? Does she think that there is any way of speeding up the process generally in any future cases, of which, fortunately, there have been very few so far?

The lesson to be learnt from this episode, however, is that it is dangerous to rush solutions to immigration problems through Parliament towards the end of the proceedings on a Bill without any consultation and in the face of reasoned criticism. The clauses embodying the certificate of approval scheme were introduced on recommitment, a wholly unsuitable mechanism for radical proposals that affect the very institution of marriage, as we said at the time. We were not satisfied that the scheme was effective, proportionate and compatible with the ECHR. The failure of the previous Labour Government to listen to the warnings by the Liberal Democrats, the JCHR and the Immigration Law Practitioners’ Association has cost the taxpayer perhaps hundreds of thousands of pounds in litigation and compensation, and there may be further claims still to come. In particular, there is one case before the European Court of Human Rights, and the JCHR proposed in its 31st report of Session 2007-08 that where there are multiple claims for compensation, the Government should adopt an approach that minimises the burden on the court and expense for the taxpayer. The Government do not consider that there is a significant risk of multiple repeat cases because potential litigants have had plenty of time to challenge the certificate of approval scheme since it was ruled to be unlawful.

There was a scheme for reimbursement of the certificate of approval fee of £295, or £590 where both partners to a marriage were subject to immigration control, but only where the payment caused the applicants real financial hardship at the time of payment. Of the 1,213 requests for repayment of the fee, only 170 had been granted and 49 remained outstanding at the end of January this year. In his letter to the JCHR of 21 December 2010, the Minister said that ILPA was wrong to say that the test for repayment was difficult to satisfy, because anyone able to meet the financial hardship test would qualify. However, the point that ILPA was making was that there was a four-and-a-half year interval between the introduction of the scheme and the date on which the UKBA first made arrangements to reimburse those who had suffered financial hardship. Most people do not keep records for that length of time and might well be unable to produce the evidence required. It does not seem to have occurred to the Minister that this could partly explain the relatively small number of applications for repayment and the 82 per cent failure rate of the ones that were made. I would be grateful if the Minister could comment on that measure.

[Lord Rosser]

My Lords, this order removes the requirement, known as the certificate of approval scheme, for those who are subject to immigration control to obtain the Secretary of State's written permission to marry in the UK. The Minister has set out the Government's reasons for terminating the scheme on 9 May this year, namely that our courts have ruled that the scheme is incompatible with the European Convention on Human Rights, and the changes that were made following those rulings have significantly weakened the effectiveness of the scheme.

The certificate of approval scheme was introduced in 2005 and clearly had a not inconsiderable effect on addressing the issue of sham marriages. During the life of the scheme there were 120,000 applications for a certificate of approval, of which 5,463 were refused. As has been said, under Section 24 of the Immigration and Asylum Act 1999, civil registrars have a duty to report any suspicious marriage to the UK Border Agency. In 2004 there were 3,578 reports of suspected sham marriages. Following the introduction of the certificate of approval scheme in 2005, reports fell to 452 in 2005, or one-eighth of the total in the previous year, and stayed below 400 cases each year until 2009, when 561 reports were made.

In the light of the court judgments, we support the order, but we need to know a little more than the Minister told us about the measures that the Government are now taking to address the issue of sham marriages, and why they believe that those measures will be successful. The Government have said that the increase in 2009 and the further increase in 2010 to 934 reports of suspicious marriages is an indication of the work that they have undertaken with registrars to focus on this issue. In other words, if the figure increases, we are having more success. However, the figure reduced dramatically when the certificate of approval scheme came in during 2005. That would suggest that a reduction in the number of reports, rather than an increase, indicates success. It could well be, in the light of the current Supreme Court ruling that has reduced the effectiveness of the current scheme, that those involved in sham marriages have started to become somewhat bolder again, and that the increase in the number of reports in the past two years is because of a significantly larger increase in the number of sham marriages.

It would be helpful if the Minister could say why she believes that the possible scenario that I have painted to explain the increase in the number of Section 24 reports is not likely to be the case, and that the scenario that the Government have painted to explain the increase in the number of Section 24 reports is correct. Mr Damian Green MP, the Minister for Immigration is on record in Hansard as saying that the increase in the reports of suspected sham marriages in 2010,

“shows that the certificate of approval scheme was becoming less effective, as well as the success of our crackdown on sham marriage and the subsequent publicity”.—[Official Report, Commons, Fifth Delegated Legislation Committee, 29/3/11; col. 4.]

That could be the case; but if it is, what is the hard evidence that shows that the recent work by the UK Border Agency is actually having an impact on reducing the number of sham marriages, as opposed to simply scratching the surface of an increasing problem?

The Minister for Immigration also referred at the end of last month to more than 130 operations having been carried out over the past 10 months, leading to more than 150 arrests. There is, of course, a big difference between being arrested and being charged, and between being charged and being convicted. Of the 150 arrests to which the Minister for Immigration referred, how many led to charges and how many then led to convictions in relation to sham marriages? Are we to assume from the comments of the Minister for Immigration that the number of people being charged and convicted for involvement in one way or another with sham marriages has increased in the past couple of years as the number of reports of suspicious marriages has started to increase again?

If the number of sham marriages being reported is increasing, how many more years can there be, with figures increasing year on year, before the noble Baroness is no longer convinced that more reports are a reflection of the work done by the UK Border Agency and instead that the increase in reports could be because the measures the Government are pursuing are not as effective as the certificate of approval scheme, and that the problem of sham marriages is getting worse?

I appreciate that targets have gone out of fashion as far as this Government are concerned, but how do they intend to measure the success or otherwise of the measures they are taking to combat sham marriages that were set out in the letter dated 21 December 2010 from the Minister for Immigration to the chair of the Joint Committee on Human Rights? I should also be grateful if the noble Baroness could say something about resources available to combat sham marriages, both human and financial—particularly since sham marriages are a route for illegal immigration—and that dealing with sham marriages is a declared priority for the Government. What will be the number of full-time equivalent staff at the UK Border Agency at the end of this year dealing with sham marriages, compared to the number of full-time equivalent staff in the agency doing so at the end of last year? Is the number projected to increase or decrease in future years? Is the Minister satisfied that sufficient resources are being devoted to this issue to prevent an increase in the number of sham marriages, and is there a plan B if there is compelling evidence that the number is increasing?

For the reasons that I have mentioned, we support the order, but I hope that the Minister will respond to some of the points I have made.