Immigration Bill

Lord Mackay of Drumadoon Excerpts

Wednesday 5th March 2014 Lords Chamber

Moved by

[Lord Mackay of Drumadoon]

34: Clause 14, page 12, line 37, at end insert “Welsh or Gaelic”

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[Lord Mackay of Drumadoon (CB)]

My Lords, in speaking to Amendment 34, I shall also refer to Amendments 35 to 37, all of which are in my name on the Marshalled List. These amendments seek to amend Clause 14 and arise from points raised with me by the Law Society of Scotland when it considered the terms of the Bill as it was introduced to your Lordships’ House. I should confess that, having listened to the Minister referring to one of my judgments, I have a distinct feeling that I might be hoist by my own petard. Nevertheless, I intend to proceed.

As we are all well aware, Clause 14 is headed, “Article 8 of the ECHR: public interest considerations”. It seeks to amend the Nationality, Immigration and Asylum Act 2002 by introducing a total of four new sections to that Act. All four amendments would take effect in subsections (2) and (3) of new Section 117B to be inserted into the 2002 Act under Clause 14.

Amendments 34 and 35 have been enrolled because the terms of Clause 14 appear to fail to take into account the existence of the minority languages of Gaelic and Welsh, and the status that they respectively enjoy in Scotland and Wales and throughout the United Kingdom. By implication, it appears that the Government have ignored the fact that many who are able to speak one or other of those languages adopt it as their first language and, at the same time, contribute to the economic well-being of the United Kingdom.

It is instructive to have regard to some of the statutory references to the Gaelic and Welsh languages, which appear in legislation enacted by this Parliament and the devolved Parliaments. I shall deal first with the Gaelic Language (Scotland) Act 2005, which is an Act of the Scottish Parliament. The language used in that Act describes it as one whose function is to establish a body with responsibilities exercisable with a view to securing the status of the Gaelic language as an official language of Scotland. Section 1(3) of the 2005 Act provides that the functions of the bòrd set up are to be exercised with a view to securing the status of Gaelic as an official language of Scotland commanding equal respect to the English language.

Section 78 of the Government of Wales Act 2006, which was enacted by this Parliament, deals with the Welsh language. Subsections (1) and (2) of Section 78 place on the Welsh Ministers duties, first, to,

“adopt a strategy (‘the Welsh language strategy’)”,

as it is described in the legislation, setting out how it proposes to promote and facilitate the use of the Welsh language and, secondly, to,

“adopt a scheme (‘the Welsh language scheme’)”.

The latter requires to specify the measures that the Welsh Ministers propose to take for achieving the purpose mentioned in Section 78(3) as to the use of the Welsh language in connection with the provision of services to the public in Wales by the Welsh Ministers,

“or by others who … are acting as servants or agents of the Crown, or … are public bodies”.

As set out in subsection (3), the purpose,

“is that of giving effect, so far as is both appropriate in the circumstances and reasonably practicable, to the principle that in the conduct of public business in Wales the English and Welsh languages should be treated on a basis of equality”.

I have listened to what the noble and learned Lord has already said about how the Government are responding to judicial pronouncements about the need to clarify what may lie within the public interest for the purposes of Article 8. However, that raises the question of what the Government considered before they lodged this Bill in the terms in which it currently stands. In particular, it would be of interest to know whether the Government gave any consideration at all to allowing an ability to speak Gaelic or the Welsh language to be considered as equivalent to being fluent in English for the purposes of this legislation. It is particularly of interest because it is very doubtful that if Clause 14 were amended in the way that these two amendments suggest, much abuse could or would be made of such terminology. For these reasons, Amendments 34 and 35 would amend Clause 14 in the terms set out.

I accept that the need for an individual seeking a visa to enter the United Kingdom or an order entitling him to remain here needs to rely on a variety of factors. However, in these circumstances, an ability to speak Gaelic or Welsh being something that could validly be relied on would bear in mind the experience that many of us have in the different parts of the United Kingdom in which we live, where people who are members of an ethnic majority have moved into an area and acquired an ability to speak one of these minority languages and have done so happily over many years.

Amendments 36 and 37 would also amend the terms of new Section 117B(2) of the 2002 Act. As drafted, they provide that persons who can speak English,

“are better able to integrate into society”.

That may be so, but it is not an absolute truth. Accordingly, the amendment is enrolled to delete the word “better” and substitute the words “likely to be” to reflect the reality of the situation. In a similar vein, Amendment 37 would amend the terms of new Section 117B(3) of the 2002 Act to delete the assertion that those who are financially independent,

“are less of a burden on taxpayers, and … are better able to integrate into society”.

It is suggested that there is no necessary connection between financial independence and being better able to integrate into society. For that reason, Amendment 37 has been enrolled in the terms set out in the Marshalled List. I beg to move.

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[Lord Wallace of Tankerness]

My Lords, I thank the noble and learned Lord, Lord Mackay of Drumadoon, for this amendment and I thank my noble friend Lord Roberts for his spirited endorsement of it. I readily appreciate the concerns raised by the noble and learned Lord about the provision made by Clause 14 on the public interest in migrants being able to speak English and also in being largely independent. We believe that these are important elements of the provision made by Clause 14 as to the public interest in controlling immigration to safeguard the economic well-being of the United Kingdom under the qualified right to respect of private and family life under ECHR Article 8.

The noble Baroness, Lady Smith, said she thought that the language was not normal for legislation—it might actually be simpler in parts than in some legislation we have grappled with. The reason for that is one that I articulated when I set the scene. With Clause 14, we have basically sought to put in statute the Immigration Rules, which were debated and have been in place since 2012. In some places, the language is not in the usual statutory form because it has been substantially carried through from the Immigration Rules. That also answers the question of whether the courts will have difficulty interpreting it because of that. I do not believe that they should, because they have been interpreting these rules since the middle of 2012. The point is that they will now have, if Parliament so decides, the full force of statute rather than simply being rules. That also answers the point raised by the noble and learned Lord as to whether we had considered Welsh and Gaelic prior to bringing this clause forward. The answer is no, we did not, as this was being lifted from rules that were already there, which stipulated English.

As has been made clear, Amendments 34 and 35 propose allowing a migrant to rely on their ability to speak Welsh or Gaelic, instead of English, when applying for leave to enter or remain in the United Kingdom on Article 8 grounds. I want to make it very clear that I am not a Welsh or Gaelic speaker but that the Gaelic Language (Scotland) Act 2005, to which the noble and learned Lord referred, was brought forward by an Administration in which I was the Deputy First Minister. I do not think anyone can challenge my support for the Gaelic language. As my noble friend Lord Roberts knows, I have a strong affinity with my Celtic colleagues in Wales and have had very many enjoyable Welsh evenings at our party conferences, when the songs have been well sung in Welsh and English.

We believe that a command of English is essential in helping migrants integrate into the life of the UK as a whole and in improving their employment prospects. That is the case even if a migrant is living in a Welsh-speaking or Gaelic-speaking community. Indeed, the possible consequence of the amendments is that if someone were able to meet a test in Welsh, for example, along with all the other tests, they could get entry into the United Kingdom. Having done that, they might choose to not go anywhere near a small village in Carmarthen or Carnarvon but instead go to Newcastle upon Tyne, despite not really having a word of English.

We do not doubt that Welsh and Gaelic speakers would contribute to the economic well-being of the United Kingdom, but migrants to the UK should be able to speak English to a basic level when they apply to come or remain here. Speaking English is necessary to ensure that a migrant is able to integrate and play a full part in our society. The ability to speak English also reduces the burden on the taxpayer arising from the cost to public services of translating information or guidance into other languages. We do not believe that the inclusion of the Welsh and Gaelic languages in Clause 14 would support that objective. It would not reflect the public interest in reducing taxpayer burdens and promoting integration.

I also ask the House to consider some practical issues involved in making such provision. First, there is no infrastructure to support the testing of ability in these languages on a global basis, even I think in Patagonia —the noble Baroness may know whether we have a consulate there. Secondly, the demand is likely to be very low. There have been no requests for testing in Welsh or Gaelic as an alternative to English since the introduction in November 2010 of an English language requirement for spouses and partners applying to enter or remain in the UK. Thirdly, in view of the likely low demand, the setting up and maintenance of a secure and reliable global network of test providers would be unlikely to be commercially viable. If commercial providers were not willing to offer tests, it would fall to the Home Office to set up the required infrastructure in the United Kingdom and overseas. This would represent a significant and disproportionate cost to the taxpayer.

Amendment 36 seeks to amend the drafting of the integration aspect of the public interest in migrants being able to speak English. It clearly is in the public interest for a migrant seeking to enter or remain in the UK to be able to speak English. Parliament has already approved this for spouses and partners, for example as part of the family Immigration Rules. English language skills play an important part in a person’s successful integration into society and help migrants access employment opportunities and contribute to the wider society. However, although in some cases it may be true that migrants who can speak English are likely to be able to integrate, their ability to integrate does not rest solely on their ability to speak English. None the less, there can be no doubt that the ability to speak English will mean migrants are better able to integrate into British society. I therefore suggest that the intention here is better reflected in the current wording of Clause 14.

Amendment 37 seeks to remove the promotion of integration as a factor in the provision made by Clause 14 as to the public interest in migrants being financially independent in immigration cases which engage Article 8. Those who choose to establish their family life in the UK by sponsoring a non-EEA national partner and any dependent non-EEA national children to settle here should have the financial means to support themselves and their families for the long term without needing to rely on public funds. This safeguards the United Kingdom’s economic well-being by preventing burdens on the taxpayer. In addition, being financially independent also helps ensure that a migrant is able to integrate and play a full part in our society.

It is important, for example in facilitating community involvement, that migrants should be able to use local shops, local services and public transport in an ordinary, everyday way that is not inhibited by a lack of funds. The same applies to adult education resources, such as English language classes, for which a fee may be charged. This is consistent with available evidence on effective integration, which shows that the level of migrant household income is an important factor.

The OECD report, Settling In: OECD Indicators of Immigrant Integration 2012 has shown a clear connection between effective integration and the level of migrant household income. The report states that household income and wealth have been shown to be important for a broad range of socioeconomic outcomes, in areas as diverse as health, education and civic participation. The report also found that having insufficient income may hamper migrants’ ability to function as autonomous citizens, which may have consequences for social cohesion. The report underlines the importance of migrants having access to sufficient funds to enable them to participate in the life of their local community. Despite declaring that I support the promulgation of the Welsh and Gaelic languages, I think it would be inappropriate in this context, and in the light of these points I hope that the noble and learned Lord will agree to withdraw his amendment.

[Lord Mackay of Drumadoon]

I am grateful to noble Lords who spoke in support of my amendment. I am also very grateful to the noble and learned Lord not only for his very detailed response to my submissions and remarks on the present amendment but for some of his earlier responses, which will be of great interest to a number of people. In these circumstances, I seek leave to withdraw the amendment.

Amendment 34 withdrawn.