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

Earl Attlee Excerpts

Thursday 27th June 2013 Lords Chamber

Moved by

[Earl Attlee]

That the order laid before the House on 3 June be approved.

Relevant documents: 3rd Report from the Joint Committee on Statutory Instruments.

[Earl Attlee]

My Lords, the order, which amends the Immigration (Leave to Enter and Remain) Order 2000, creates a consistent legal framework for the effective service of immigration decisions.

Immigration decisions which attract a right of appeal are currently subject to the Immigration (Notices) Regulations 2003. The regulations, which have been in force since 2003, require the Secretary of State to take reasonable steps to notify the individual of the decision. If that is not possible or if service fails, the regulations enable decisions to take effect when they are served to the individual’s file. However, no such framework exists for immigration decisions which do not attract a right of appeal. This primarily affects decisions to curtail leave to 60 days.

The House will be aware that academic institutions and businesses which bring migrants into the UK to study or work under the points-based system are required to notify the Home Office about changes in the migrants’ circumstances. In many cases, the notification relates to compliant behaviour, such as permissible changes in the migrants’ circumstances or early completion of their work placement or course of study. However, if a sponsor notifies the Home Office that they have withdrawn sponsorship from a migrant, the case is referred for curtailment.

If there is clear non-compliance on the part of the migrant, for example they fail to enrol with their college and make no attempt to switch to another sponsor, their leave is curtailed with immediate effect and a removal decision is made. Where non-compliance is less clear—for example because the migrant started to study but subsequently left, potentially to study with another sponsor—leave is curtailed to 60 days to allow a short period for the migrant to find another sponsor or depart the UK in good order.

Leave is also curtailed to 60 days where their PBS sponsor loses their sponsor licence, unless the migrant was complicit in the reasons for the revocation of the licence, for example if there is proof that the migrant was knowingly using the sponsor to enter the UK purely to work and not study. Where the migrant has entered the country having been issued a visa overseas, the Home Office may not have a UK postal address for them. In these cases the notice is served via the migrant’s sponsor, but if it is returned as undeliverable, the decision is placed on the migrant’s file. In a recent tribunal determination it was held that unless these notices are communicated to the person in writing they have no effect. In the absence of an order covering service of non-appealable decisions, the Secretary of State must be able to prove that a notice of such a decision was communicated to the person in order for it to be effective.

The Home Office has taken a number of steps to counter the problems with serving these decisions, for example requiring sponsors to provide contact details with notifications and writing to the sponsor to request postal details if none has been provided. We must now act to ensure that our ability to curtail leave in these circumstances is not reliant on migrants keeping their sponsor, or the Home Office, informed of their contact details.

The message to migrants must be clear: we expect them to pursue the purpose of their leave. If they fail to do that, we will curtail their leave. Our ability to control immigration in this way will not be frustrated by any potential attempts to avoid service or deny receipt of a notice. The order will redress that imbalance and place the service of these decisions on a consistent legal footing with the process for serving appealable decisions, which has been in place for 10 years and supports the operation of effective immigration controls. I beg to move.

--- Later in debate ---

[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.

[Lord Davies of Stamford]

The problem may be that because of medical confidentiality there is some hesitation to use a regular hotline. There needs to be a mechanism available specifically to and within the medical profession. That may be necessary if the Government really want the full co-operation of the medical profession in this matter.

[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.

Motion agreed.