Statement of Changes in Immigration Rules

Lord Avebury Excerpts

Tuesday 3rd May 2011 Lords Chamber

I hope that in her response to this debate, the Minister, for whom I have considerable respect, will be able to say something about the wider context and the wider consultations that have taken place.

[Lord Avebury]

My Lords, I am not going to follow the noble Lord, Lord Judd, down the road that he travelled, except to say that the impact assessment covers a multitude of subjects in great detail in the areas of statutory equality duties, economic impacts, environmental impacts, social impacts and sustainability. However, I do not think that it addressed the question of security. It will be interesting to hear what my noble friend has to say on the matter when she winds up.

I thank the noble Lord, Lord Hunt, for introducing this Motion and enabling us to debate a very important set of rules, as well as for his useful explanation of its purpose and of the Merits Committee’s comments. I add one point to the many useful ones that he made in his speech—that these changes to the Immigration Rules came into effect on 6 April, 15 days after the statement was laid and one day into the Easter Recess. I thought there was a convention that rule changes had to be laid 21 days before they came into force. I ask my noble friend why that seems to have fallen into disuse. Does she not find it incongruous that we are considering this instrument when it is already the law and, whatever we say, it is too late to alter any of its provisions?

As the noble Lord, Lord Hunt, rightly said, the Merits Committee report complained about the level of supporting information when the Government foreshadowed the termination of the tier 1 (general) order for applicants from overseas, and asked for this to be rectified when the full policy on caps was introduced. However, the Government still have not published the full report on the consultation on tiers 1 and 2, a month after publication of the Merits Committee report. I hope my noble friend will explain the reasons for the delay, which, as the Merits Committee says, makes it difficult to understand why the Government took the decisions that they did and whether the changes to tiers 1 and 2 will achieve their policy objectives.

Again, as the noble Lord, Lord Hunt, pointed out, the abolition of the tier 1 (general) category affects a wide range of organisations, as evidenced by the 3,200 responses to the consultation. These are summarised in very general terms in a two-page annexe to the impact assessment, but there may be large differences between the impact on, say, the universities on one hand and the health service on the other, to pick just two of the employers that have relied on tier 1 (general) in the past. There is the new category, which the noble Lord mentioned, of “exceptional talent” for internationally recognised scientists and cultural achievers, the criteria for which are to be agreed between the UKBA and “designated competent bodies”, which are yet to be listed on the UKBA website as the Explanatory Memorandum proposes. We are told nothing about these DCBs. Presumably there will be different ones for each speciality, such as the Royal College of Surgeons if the applicant is a surgeon, or the Institution of Mechanical Engineers if the applicant happens to be a mechanical engineer.

The 700 scientific and 300 cultural endorsements are to be divided among the DCBs, according to the standard note by the Library in another place—presumably by the UKBA in consultation with the DCBs. The note says that each of them will set its own criteria. Apparently there is no system to ensure consistency between the criteria, or to decide who the lucky winners are if the number of endorsements exceeds the allocation for a particular DCB. A crude way of dealing with that problem might be to provide in the guidance that each DCB should stop looking at applications once it has awarded the number allocated. However, that could mean having to turn away candidates who are even better qualified than the ones who have already been approved. Unlike for tier 2, there is no division of the total number of allocations by month, so the total could be exhausted very early in the year.

We welcome the amendments to the rules resulting from challenges in the courts to the Government’s right to add to or modify the rules in guidance that is not subject to parliamentary approval. Unfortunately, this means that more frequent statements of changes to the Immigration Rules, which are already fairly prolific, as the noble Lord has pointed out, are likely to come before your Lordships in the future. As Lord Justice Sedley said in his judgment on the Pankina case, this is an issue of constitutional importance. I pay tribute to ILPA’s briefing, as the noble Lord did. Its briefings are always extremely thorough and readable. ILPA suggests that there should be an audit of guidance to ensure compliance with the Pankina case. Perhaps my noble friend could say whether the amendments dealt with in paragraph 7.16 of the Explanatory Memorandum indicate that the UKBA has already carried out such an audit, to the extent that she can assure your Lordships that no further scope exists for litigation asking for judicial review of refusals that are based on guidance only, and not on the rules.

Tier 2 is divided into two: jobs which are exempt from the new limit because they are on the shortage occupation list or have been advertised in accordance with the resident labour market test, for which an employer can issue an unrestricted certificate of sponsorship; and jobs that are on the graduate occupations list of jobs eligible for tier 2, for which the employer has to ask the UKBA for permission to issue a restricted certificate of sponsorship. On 11 April the first monthly allocation of certificates of sponsorship took place and 1,028 were issued compared with the 4,200 that were available, meaning that the balance of more than 3,000 was carried forward to be added to May's 1,500.

At first glance one would suppose that the demand by employers for highly skilled workers from overseas had tailed off partly because of the recession but also because the applicants are required to have a better command of English and to have a degree-level qualification. If there are shortages of workers at the previous threshold of NQF level 3, they will have to be satisfied by stepping up the number of apprenticeships in this country. The Merits Committee reports that concerns were expressed by employers about whether the tier 1 cap would enable them to get the staff they need, but since a worker who had previously satisfied the tier 1 (general) criteria would qualify under the new tier 2 (general) conditions, it should have been possible for the affected employers to switch from tier 1 to tier 2, and evidently that did not happen, at least in the first month of the scheme’s operation. As the Merits Committee says, there was not enough evidence from the consultation to enable us to look at particular sectors to see where the shoe was pinching. I wonder whether my noble friend can tell the House what she is hearing from particular employers' organisations now that the scheme is actually in operation.

There is a known shortage of skills in the NHS, with a third of all medical staff already having qualified overseas. A leading medical recruitment agency says that cuts across the board in the healthcare sector have led to a decline in medical jobs across the UK but there are still job opportunities for GPs, nurses, midwives, and community nurses, for example. However, with the cuts biting, hospital trusts may be forced to look harder for doctors and other professionals in the European Union or to postpone recruitment, even at the cost of lowering standards of healthcare.

Tier 2 includes special provision for ministers of religion, which includes in this context members of religious orders. The rules assume that any minister coming to the UK is employed by their church, mosque, gurdwara or temple, but this creates a problem for Theravada Buddhist monks—perhaps this applies also to monks of other faiths—who are not employees and do not touch money. The rules also require that the post to be filled should be advertised to demonstrate that there is no suitably qualified candidate available on the UK labour market. It is manifestly absurd that temples should be required to advertise in the UK for a monk who is unpaid, has to speak Thai, Sinhala, Vietnamese or Burmese, as the case may be, is required to eat only one meal a day, remain celibate, abstain from alcohol and other mind-altering substances and be able to teach the dhamma. For some monks here it is not necessary to be proficient in English because their duties will be almost entirely with the diaspora from the particular country where they were ordained. There are monks of British origin here but they do not move from one monastery to another as a result of competitive forces because the vinaya or discipline is the same in all Buddhist monasteries.

I should perhaps declare an interest as patron of the Buddhist Prison Chaplaincy Organisation, which has a close association with a Buddhist monastery where these difficulties have arisen. The ultimate authority on these matters is the Buddhist Sangha UK, which was established in 2006 to speak for the body of Theravada monks, but was not consulted when the details of tier 2 were formulated. Clearly, the needs of Buddhist monasteries and the Immigration Rules for ministers of religion are mutually incompatible, and this needs to be discussed with the Sangha.