Immigration and Nationality (Fees) Regulations 2012

Lord Avebury Excerpts

Wednesday 21st March 2012 Grand Committee

I do not know how realistic that is. It seems on the face of it likely to prove an obstacle to employers and thus an obstacle to a particular area of economic success. It was not something that I believe was recommended by the Migration Advisory Committee, so why, in the difficult context that we are discussing, have the Government proposed it?

[Lord Avebury]

My Lords, my noble kinsman said that he was going to continue welcoming the brightest and the best, yet some of the announcements that he has made seem to go directly contrary to that, particularly the huge increases in fees for tier 1 general and tier 2 visas for coming to the UK. I suppose that we should give a partial welcome to the graduate entrepreneur scheme. I should like to ask the Minister, in pursuance of the points raised by my noble friend, whether it is aimed at people who have graduated from a UK university. Will they proceed directly from their studies to the graduate entrepreneur route, or will they be required to go back to their own country and make the application from there? Will people who graduate from universities overseas be able to enter the United Kingdom ab initio along this route without having been in a UK institution of higher education previously?

In his Written Ministerial Statement of 9 February, the Immigration Minister, Damian Green, said:

“We have continued with our strategic approach to charging; setting certain fees above cost on the basis of the value of the service”.—[Official Report, Commons, 9/2/12; col. 47WS.]

Both the noble Lord, Lord Hunt, and my noble friend Lady Hamwee have questioned whether there is a proper relationship between these two variables. As I have already said, some of the fees are very high and some were admittedly way above the unit cost estimate. On what basis does the UKBA, or the Home Office, assess the value of the service? What account, if any, do they take of such matters as the appeals success rate and the findings of the chief inspector’s report in determining the quality of the service provided? For example, the chief inspector in his global review of entry clearance made several critical findings. He looked at a sample of the cases decided at all the UKBA’s entry clearance decision-making centres—around 1,500 cases in total—and found that the evidence submitted with the application had not been considered properly in 483 cases, which was 33 per cent of the sample, and that in a further 201 cases, which was 14 per cent of the sample, the lack of evidence held on the UKBA file meant that it was not possible to assess whether the evidence submitted had been considered properly. The chief inspector also found that, in 235 cases—16 per cent of the sample—applications had been refused on the basis that the applicants had failed,

“to provide information which they could not have been aware [was required] at the time of making their applications”.

In 475 cases, there had been a review by an entry clearance manager, and, of those, in 141 cases—30 per cent—the chief inspector found that poor-quality decision-making had not been picked up by the entry clearance manager.

These criticisms indicate that the quality of service being provided is abysmal and that it is sheer exploitation to charge over the cost. In fact, it could be argued that the cost is seriously inflated by the high proportion of wrong decisions, and that the charges should be related only to the costs of decisions properly reached.

A similar view might be taken of the way in which many students have been treated recently when a college’s licence is suspended or revoked, through no fault of their own, but also other migrants whose visas are summarily curtailed. The case of Patel, on the fairness of revoking a sponsor licence, is but one recent example where the Upper Tribunal (Immigration and Asylum Chamber) has needed to issue a reported determination, reminding the UKBA of the general duty of fairness in decision-making, particularly in cases of students whose sponsor’s licence has been revoked and who face, through no fault of their own, losing their immigration application fee and incurring substantial other expenses as a result. The key finding in the Patel case was that, where the applicant was both innocent of any practice that led to the loss of sponsorship status and ignorant of such loss of status, common- law fairness and the principle of treating applicants equally meant that each applicant should have an equal opportunity to vary their application by being afforded a reasonable time in which to find a substitute college on which to base their application for an extension of stay to obtain the relevant qualification. In the curtailment cases, express Home Office policy is to afford 60 days for such an application to be made.

In previous debates on fees orders, I have raised the question of refunds. For example, in March 2010, I said:

“There should be timeframes for deciding 100 per cent of the cases and, if deadlines are missed, there should be refunds to the individuals concerned”.—[Official Report, 4/3/10; col. 1647.]

The then Minister, the noble Lord, Lord West, replied:

“On refunds, we charge for consideration of the application and so do not offer refunds—the consideration is a cost to us as well”.—[Official Report, 4/3/10; col. 1651.]

I should like to ask my noble kinsman the Minister to reconsider that policy. Why should someone who receives an abysmal service nevertheless have to pay for it? The Upper Tribunal (Immigration and Asylum Chamber) has recently issued the following general guidance in a reported decision:

“Fairness requires the Secretary of State to give an applicant an opportunity to address grounds for refusal, of which he did not know and could not have known”.

That indicates that the tribunal is seeing examples of what the chief inspector has found in situations other than the entry clearance cases on which the chief inspector was reporting.

I hope that my noble friend will concede that, in any normal business, a supplier simply would not get away with overcharging for services which are manifestly of such poor quality as this, and that the fees in this order are an abuse of monopoly power.