Temporary Immigration Cap

Ed Balls Excerpts

Monday 20th December 2010 Commons Chamber

[Ed Balls (Morley and Outwood) (Lab/Co-op)]

(Urgent Question): To ask the Secretary of State for the Home Department if she will make a statement on Friday’s High Court decision on the temporary immigration cap.

[The Minister for Immigration (Damian Green)]

In June, when the Government announced that we 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 that were laid before Parliament, and on which an oral statement was made. On Friday we received the judgment that the changes announced provide an 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 that more detail about the manner in which the limit is set, including its level, should have been included in the immigration rule 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 that will set out the details that 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 tomorrow I will also be laying changes to the rules to close applications under the tier 1 general route from outside the United Kingdom immediately, 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.

[Ed Balls]

On 28 June the Home Secretary herself came to the House to announce, without consultation, an immediate and temporary cap on non-EU migration. Details of the cap were then posted on the Home Office website, but not presented to Parliament. On Friday the High Court ruled that the Home Secretary’s actions 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—deeply unpopular with business—does not today 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 chaos, it is surprising that the Home Secretary has not chosen to come to the House to answer for her actions, so let me ask the Minister for Immigration two sets of questions.

First, on the consequences of the error, can the Minister tell the House what the status is of those who applied under the illegal cap but were rejected? Will their applications now be granted retrospectively? Can the Minister tell the House how many more migrants he expects to enter the UK because of the failure to implement the cap? In the light of that, is it still the Government’s target to cut net migration to the tens of thousands by 2015, as the Prime Minister pledged before the election, or is this mistake one reason why the Home Secretary is trying to water the target down to just an “aim”?

Secondly, on how we got into this mess in the first place, did the Minister and the Home Secretary ask for and receive legal advice before the summer about the legality of the temporary cap and the rushed way in which they were introducing it? Is it correct that he and the Home Secretary were warned by officials and lawyers that there was a risk of legal challenge if Parliament was bypassed in that way? If he and the Home Secretary did disregard legal advice, did they have the support of senior Home Office officials in so doing? Finally, will the Minister now agree to lay before Parliament all the legal advice on which the decision to proceed was based, to dispel the impression that he and the Home Secretary have acted in a reckless and chaotic manner, and to show that she has nothing to hide?

[Damian Green]

There were, I think, one or two substantive questions in the midst of that bluster. On the right hon. Gentleman’s first point, about why the Home Secretary is not here, it seems perfectly reasonable that if a question is asked about immigration, the Immigration Minister should answer it. He will also be aware that there is a serious counter-terror operation going on today. I would suggest that he and other Opposition Front Benchers who are attempting to bluster their way through this should recognise that fact.

The right hon. Gentleman asked a substantive question about the status of those who applied, but whose applications were not granted. The answer is that, as he is aware, the judgment was handed down on Friday; however, as he does not seem to be aware, the written judgment will not be available until January. Until the Home Office receives that written judgment, it is obviously impossible for us to decide whether to appeal against Friday’s judgment. All the questions that he asked about that are, therefore, simply inoperative until we see the written judgment. I am happy to confirm that, as the Home Secretary has said, it is still our target to bring immigration down from its uncontrolled, unsustainable level under the previous Government. As for the idea of publishing all legal advice given to Ministers, the right hon. Gentleman will be aware that this is a not a practice that was ever followed by the Government of whom he was a member. [Interruption.]

In response to the right hon. Gentleman’s sedentary heckling, I am happy to assure him that the announcement that the Home Secretary made on 28 June was changed as a result of the Pankina judgment, but clearly all legal judgments are open to interpretation. What I will set out in a written statement tomorrow will absolutely clear up the legal issues and address the narrow technical points made by the judge, and will mean that the interim limits can proceed on a completely legal basis. I hope that the House is reassured by that.