Immigration (Leave to Enter and Remain) (Amendment) Order 2013

Baroness Smith of Basildon Excerpts

Thursday 27th June 2013 Lords Chamber

[Lord Davies of Stamford]

I hope that the noble Earl will forgive me if I intervene on a slightly different matter, but a matter directly related to the subject of this order. I believe it to be in the public interest to do so. I shall speak very briefly.

I discovered this morning from my NHS GP—who has a practice in the centre of London, and whose name I cannot put on the record because I do not have his consent to do so—that very frequently he and his practice colleagues come across prima facie evidence of immigration fraud, people being here illegally or indeed people illegally accessing NHS services. Although there is a hotline available to medical practices to report prima facie evidence of benefit fraud, apparently there is no hotline or other mechanism available to GP practices in this country or to medical centres to report prima facie immigration fraud or other immigration irregularities or illegal access to NHS services. I wonder whether the noble Earl will give some consideration to whether it might be a good idea to provide such a mechanism. I believe that the corresponding mechanism that is supposed to alert the authorities to prima facie evidence of benefit fraud works very well.

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for his explanation. I have a couple of questions for clarification on the order. At the top of page 2, Article 4 inserts two new articles, 8 and 8ZA. Article 8 has a new process of an oral grant or refusal of leave, whereby an individual who has been granted leave to remain or refusal to remain can be told that by telephone. I am slightly puzzled about the mechanics of how that would work. I indicated to the noble Earl that I intended to raise this matter.

Some people who apply will, of course, not have English as their first language and may have difficulty in understanding. What process is undertaken to ensure that the person receiving the notice to leave the country or to remain fully understands what they are being told, so that there is no misunderstanding? If someone receives something in writing saying that they do not have leave to remain in the country, they can take it to a solicitor and get advice, but if they receive that information over the telephone they will have to digest it at a later date. I am slightly concerned that someone may get information but not fully understand the nature of that information and not be able to act on it because they are puzzled or do not have any proof of that information. How is it possible to be assured of the identity of someone being notified that they may be granted leave to remain or refused leave to remain in the country if you only talk to them on the telephone? I have questions about how that will work. I am not clear about the security issues involved.

Article 8ZA paragraph (4) says:

“Where attempts to give notice”—

for a grant, refusal or variation of leave in writing—

“are not possible or have failed”.

That is the point that the noble Earl was making. That could be put on file and deemed to have been served. In paragraph (4) it refers to “attempts” in the plural, so obviously two attempts have to be made, but is there any guidance on how those attempts should be made? When it talks about attempts to give notice not being possible, why would it not be possible to make an attempt to contact someone? I am slightly puzzled by the wording.

Paragraph (6) says:

“A notice given under this article may, in the case of a person who is under 18 years of age and does not have a representative, be given to the parent, guardian or another adult who for the time being takes responsibility for the child”.

Does that mean a legal responsibility, or could it be a casual and informal responsibility? I recently raised a case with the Home Office where an individual was seeking to have a passport returned on behalf of another person and I was told that it could not act or intercede with that person because there was no legal authority to do so. I am slightly puzzled how the situation of someone who, for the time being, takes responsibility for a child being able to receive information regarding the granting, refusal or variation of a right to remain in the country would work in practice.

My final point is on the presumption of receipt of notice. The article refers to the notice being sent by the postal service and on the second day after it is sent,

“it shall be deemed to have been given to the person”.

What happens in the event of a mail or postal strike, as we have seen in some parts of the country? I would be grateful if the noble Earl could clarify those points and give me some answers.

[Earl Attlee]

My Lords, I am grateful for the supportive and thoughtful contributions made by both noble Lords.

In answer to the noble Lord, Lord Davies of Stamford, on reporting suspected immigration irregularities, there is a generic hotline for members of the public and stakeholders to report suspected immigration offenders. Information is available on the Home Office website, and I can write to the noble Lord with further information. However, it is a good point that we should understand about the abuse of our NHS facilities.

[Earl Attlee]

My Lords, I will write in detail to the noble Lord on the issue of confidentiality and on whether anything else needs to be done. Everyone is aware of the abuse of our NHS treatment, to which a lot of immigrants are not entitled.

The Government have made this order to protect our ability to control immigration and ensure that migrants are treated fairly. This Government are committed to ensuring that the UK attracts the brightest and best migrants but is closed to those who seek to abuse the system. We must be clear to the public, our corporate partners and those who wish to come here that we will take action against migrants who fail to pursue the purpose of their leave. In the most non-compliant cases we will require the individual to leave the UK immediately or be subject to enforced removal.

Where the cessation of sponsorship is a result of the sponsor losing their licence or migrant non-compliance is not clear, we must operate a system that is fair and enables bona fide migrants who want to study to switch to another sponsor—and the system does that. However, our ability to take appropriate action must not be hampered by gaps in legislation or result in delays and the need for time-consuming and bureaucratic processes. We do not want to create a duty on sponsors to have to report every change in their migrants’ address, phone number or e-mail address. That would be far too onerous a task. However, it is reasonable to ask the sponsor to provide the latest contact details with their notifications. That will give us the best opportunity of communicating the decision to the individual concerned in the first instance. If we cannot serve the notice on the individual, whether by post or some other means, we will seek to serve the notice on the migrant’s representative. Only where that is not possible, or the service fails, will we serve the decision on file.

The order amends Article 8 of the 2000 order. These changes are technical and retain the current position in Article 8, which provides that a notice giving or refusing leave to enter may be given by fax, e-mail or, in the case of a visitor, orally, including by means of a telecommunication system. The amending order retains the provision in Article 8 regarding oral notice to visitors but transfers the provisions regarding fax and e-mail to the new Article 8ZA, where other means of giving the notice are dealt with—post, courier and so on—and I will write to the noble Baroness, Lady Smith, to confirm the procedure for giving oral notice.

The noble Baroness, Lady Smith, also asked what the purpose was of such a broad definition of adults who are responsible for children. Perhaps it would be helpful if I read out the answer.

[Baroness Smith of Basildon]

I think that the noble Earl misunderstood my question. If he checks Hansard, I should be happy to receive a letter with the answer.

[Earl Attlee]

My Lords, that would probably be helpful. Perhaps I will just move on.

I trust that the House will agree that this order will ensure that we have a consistent statutory framework that protects the Secretary of State’s ability to control migration and is fair on genuine migrants. As I have already said, this Government are committed to ensuring that the UK attracts the brightest and best migrants. Where it is appropriate, we should give individuals an opportunity to continue working and studying here. It is not just a matter of fairness, ensuring that we do not act disproportionately. It is also about recognising the important role that genuine migrants play in enriching our communities and supporting economic recovery. I hope that the House will look favourably on the order and agree the Motion.