Immigration Bill

Lord Taylor of Holbeach Excerpts

Wednesday 19th March 2014 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I rise to probe the Government’s intentions on fees following the questions that have been put by the noble Baroness, Lady Smith of Basildon, on Amendment 79F and in the other points raised. This is a useful consolidation of the rules and the powers on fees, but I have two questions that I hope my noble friend will be able to comment on. First, what are the Government’s plans for immigration and visa fees following the passage of this Bill? Secondly, will fees and future changes to fees be set out clearly on the government website which I hope the Government will establish so that, following the passage of this important Bill, everyone clearly understands the prevailing immigration and visa arrangements? Those are points about intention and about transparency.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, noble Lords have asked me quite a number of questions and I will do my best to show a techie side to my nature. Where I slip up, perhaps noble Lords will allow me to write. I am aware of the case mentioned by the noble Lord, Lord Ramsbotham. I will have to write to him because I cannot give him an authoritative answer on a point that is not directly to do with the amendments that we are considering today. In any event, I will make sure that I get a letter to him on that issue.

I will speak to Amendments 79F, 81B, 82A, 87ZG, 87ZH and 87ZJ, which have been grouped together. I will not mention Amendment 87ZD because that has not been spoken to.

Amendment 79F concerns fees. It fits slightly uneasily in this grouping, but I am sure that it is something that we want to address. The current legislative framework for setting and amending visa fees is slow and inflexible, and we are experiencing that at the moment. We had a statutory instrument in January, and later on next week we will debate the actual fee levels. This two-part process is not necessarily the most informative. It makes it difficult for the Home Office to respond to identified issues—and opportunities, because this is an important area of income generation for the Government.

For example, it does not allow us to introduce new premium services or amend fees up or down within a particular period. It has also been criticised in this House because the “menu” of immigration and visa services is debated separately from the prices of the things on the menu. As I have said, that seems a funny way of doing things. The fees measures in the Bill are meant to address both of those issues.

I say to the noble Lord, Lord Pannick—who queried transparency on this issue, as did my noble friend Lady Neville-Rolfe—that the whole point of this is to be more transparent and provide information on fees. The mandate to provide fees is an important thing to secure in Parliament. As I said, they are an important factor for the Home Office.

My noble friend Lady Hamwee made a number of technical points and I would like to thank her for advising me of them. The fees order will set out in relatively general terms the types of categories of fees that will be charged for. It will set the maximum and in some cases—although not all—the minimum levels for the fees that fall within each category. The order will be subject to the affirmative procedure. The regulations will then specify the precise fee for each product, which could stretch to several hundred different fees. This mirrors the current arrangements. For example, the current fees order states that we can charge for,

“a sponsor licence or renewal of such a licence”,

and the fees regulations specify all the different fees for each type of sponsor licence payable by the different categories of sponsor. Thus the detail included in the order and the regulations mirrors the current arrangements set out in Section 51 of the Immigration, Asylum and Nationality Act 2006 except in terms of the introduction of maximum, and in some cases minimum, fee levels into the order.

My noble friend went on to say that Clause 62(2) appears to require a fees order for all fees. She asked whether fees are chargeable outside of the specified functions. All chargeable functions must be set out in the fees order. The only caveat to normal treatment is set out in Clause 64:

“Power to charge fees for attendance services”.

She asked whether “any specified fee” under Clause 62(4) means each fee specified by a fees order. That is correct; it does. She assumed that Clause 62(10)(b) overrides subsection (8)(a)(ii), which requires a fee not to be less than the prescribed minimum, and that is correct. She also asked why subsection (10)(c) needed a failure to pay in the light of subsection (3). The consequences might mean the refusal of a visa in the future. Subsection (10)(b) relates to debt recovery in particular circumstances, such as where a payment is withdrawn once it has been processed and the application considered. Paragraph (c) ensures that we can provide that applications will not be considered if payment is not received. It also states that any other consequences for failing to pay must be set out in regulations. These provisions have been carried forward from current legislation.

My noble friend asked about costs and whether we can give an example of costs. Costs will be incurred by our commercial partners when, for example, providing visa services overseas, and they form part of the costs to the Home Office when providing services or processing applications. On Clause 62(13), she asked whether there are particular arrangements or ways to recover such things as the premium service. Yes, there are such arrangements. This subsection reflects that fees for the same function may vary depending on where and when they are delivered, and the specific service provided. It also reflects the fact that we may, in limited circumstances, charge different fees for the same product in different circumstances. We might, for example, enter into a reciprocal arrangement with another country by which we agree to offer a reduction in the visa fee to nationals of that country.

My noble friend put a question to me about Clause 62(4). This subsection is directed at the factors that the Secretary of State can consider in setting fees, taking into account costs and benefits to applicants. Subsections (4) and (6) are directed at the mechanics of the calculation, so that if the fee is being set out at a flat rate or by reference to an hourly rate, the reference to other factors is to give us flexibility in the future in order to charge, for example, with reference to a daily rate. My noble friend asked whether the rate is the hourly rate. Yes, it is, or there can be other factors. As I have just said, there can be a daily rate as set out above. I was also asked whether the calculation will involve an hourly rate to give the position/grade of the officers for whom a rate is charged. The grade of officers is not a relevant consideration when establishing an hourly rate. Where the grade of staff is relevant in establishing an estimated unit cost, it will form part of the calculation. This level of detail will not be set out in statutory instruments or a fees table.

My noble friend asked whether, where a fee is intended to exceed the cost, this will be made clear in the Explanatory Memorandum to the regulations. We will include the unit costs, as is currently the case. She asked whether the exceptions might allow for increases in a particular class of individuals. No, the exceptions relate to exemptions from payments; that is, waivers. The Home Office currently provides a number of exceptions in regard to fees including, for example, asylum applicants and children receiving local authority assistance, and there is no plan to withdraw the exceptions currently offered. This is complicated and I am sorry to have rattled it off but my noble friend did ask that I put it on the record. I hope the record has noted it and that I have reassured my noble friend.

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[Lord Avebury]

Will the Minister deal with the question that I asked about the directions that the tribunal would formerly have been able to give regarding the restoration of citizenship and its backdating in cases where that was appropriate? Since the tribunal has lost its power, those directions can no longer be given.

[Lord Taylor of Holbeach]

My Lords, I think that I will have to write to my noble friend if he wants an authoritative on answer on that. I have given the answer that I have before me, but if that does not meet the point that he has made—it is clear that it does not—I hope that my noble friend will allow me to write to him.

[Lord Tyler (LD)]

Before my noble friend sits down, will he go just one step further on the issue raised by the noble Lord, Lord Ramsbotham, and the case to which he referred, which seems on the face of it to be extremely serious if the facts as reported by Channel 4 last night are correct? Will he undertake to provide an answer and place it in the Library, and as soon as possible? I can see that, since the inquest has not taken place as yet, it would be all too easy for Ministers to hide behind that fact and not give us urgent advice on what seems to be a major problem with the way in which the immigration law is operating at present.

[Lord Taylor of Holbeach]

I do not want to be difficult. This matter is clearly not associated with an amendment or even this part of the Bill, but I am sympathetic to the point that the noble Lord, Lord Ramsbotham, and my noble friend Lord Tyler have made. I will do my best to inform the House on the facts of the matter as much as I am able. If matters are sub judice, it would be inappropriate for any Minister to interfere with due process. I hope that noble Lords will understand that. I am always prepared to answer either Oral Questions or Written Questions on any subject, but we are here to debate the Immigration Bill. It may interest the noble Lord to learn that I am going on a removal flight on Friday to Kosovo and Albania. I want to see what goes on. I share the noble Lord’s determination to make sure that things that are done in our name are done properly. I hope that with that reassurance my noble friend will understand why I do not want to give an answer at the Dispatch Box at the moment.

[Baroness Smith of Basildon]

My Lords, I appreciate that that point is not part of the deliberations today on the Bill but it was appropriate for the noble Lord, Lord Ramsbotham, to address it given the concerns raised. I am glad the Minister has offered to place an answer in the Library if he is able to. I suggest if he is going on a removal flight that people do not know he is on there and he goes incognito. That is the best way to understand how these matters are carried out. I hope that is the case.

I turn to the amendments. On transitional provisions and arrangements regarding health, perhaps I should have been clearer. I apologise to the noble Lord if I was not. The reason for raising the matter here is that I am not clear from what he said in his previous responses when I raised this if any transitional provisions are required for the transitional arrangements. He referred to the arrangements between two departments—the Department of Health and the Home Office. Where I am confused and do not understand this is, as I said, in the real-life implications and workability. Will Home Office computers be able to talk to and share information with Department of Health computers?

My recollection as a government Minister of various meetings on Cabinet committees on this is that there must be some kind of process, agreement or even legislation to ensure that that happens. I am not clear if that has been agreed from what I have seen so far. It does not seem to be in the Bill and nobody is able to tell me how the process would work where, for example, somebody who has a visa and is in the country legally but has not paid the surcharge turns up for treatment. How will the health service know that they are legally in the country but just have not paid the surcharge? They came into the country and took their visa before the surcharge was in place. If that information can be provided only by sharing information between the computers of the two departments, how will that be done, have the arrangements been put in place and is legislation needed? If not, something will be needed in transitional provisions, presumably in this Bill, to undertake that. That is what I am trying to get to. I need to understand how it will work in practice.

[Lord Taylor of Holbeach]

All I can say at the moment is that if that were needed in transition it would be in the Bill. I have been party to some of the discussions that have taken place. Indeed, it is intended that there should be an exchange of information between the two departments. If the noble Baroness does not know how that will happen, I hope I am in a position to inform her. This matter does not need legislation; it is one of good administration. My noble friend Lord Howe and I both share the determination that this should be properly done because it is important to make sure that the health service is not in any way impeded by measures that we enact in this Bill.

[Baroness Smith of Basildon]

My Lords, I do not for one moment question the determination of the noble Lord and the noble Earl, Lord Howe, to make this work but when we pass legislation we need to understand—as I said at the very beginning, at Second Reading—the evidence base for something being brought forward and the workability of it; that is, if what is sought can actually be achieved and the implications, including unintended consequences. I really want to understand this. If the noble Lord could undertake to write to me with further information about how this will work in practice that would be really helpful.

I raised two other points in speaking to my amendments. It was helpful to have the response on the record. I take it from what the Minister said that there probably will not be a government amendment coming forward on the points I raised on my second amendment, but if there was it would be helpful to have very early notice of that. I would have expected that today. On the other issue, he made the point on fees. This is a reduction in scrutiny. I understand the Government’s reasoning that under Clause 62 a higher level is set and it cannot go above that but in terms of setting the amount, specifically where the fee for the visa is higher than the cost of the provision, we experience a loss of scrutiny. That is now on the record and I am grateful to the noble Lord for accepting that, even though I understand the reasons. With that, I beg leave to withdraw my amendment.

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[Baroness Smith of Basildon]

My Lords, this is an interesting and useful amendment that the noble Lord, Lord Avebury, has brought before us. If the only objection from the Government in the other place was that they thought it was out of scope and that it could not be brought forward, it is clearly no longer out of scope as it has been brought forward. I hope that the Minister might take the advice of my noble friend and that, if the Government are not able to accept this amendment or bring it back, they will explain why. I really hope that there can be a positive resolution to this.

[Lord Taylor of Holbeach]

I am grateful to my noble friend Lord Avebury for raising this matter and to the noble Baronesses, Lady Lister of Burtersett and Lady Smith of Basildon, for supporting it because we are well aware of the issues faced in acquiring British citizenship by those whose parents never married. We agree that this is an anomaly which deserves to be addressed. Having understood that nationality matters were outside the scope of the Bill, we were considering whether a measure covering this could be drafted as a government handout Bill for the next Session. I understand that had this amendment been tabled in another place, it would indeed have been ruled out of scope. However, this House has different rules on relevance and therefore it is appropriate for us to debate the matter.

I say to the noble Baroness, Lady Lister, that while I cannot give her any numbers, she is quite right that this is not about numbers but about whether to do it or not. That is the position the Government are coming from.

As my noble friend Lord Avebury pointed out, the law changed on 1 July 2006 to enable British citizen fathers to pass on their citizenship to a child where the parents were not married. This was not made retrospective, however, because it could have created difficulties for those affected in relation to any other citizenships that they held. For example, some countries do not allow dual nationality, as some noble Lords will know. Since 1987, the Secretary of State has exercised discretion in relation to those born to an illegitimate father. Discretion is exercised under Section 3(1) of the 1981 Act to enable the registration of children born before 1 July 2006 who are the illegitimate children of British citizens or settled fathers. Registration can take place if the Home Secretary is satisfied about the paternity of the child, if all those with parental responsibility have consented, if the good character requirement is met and, had the child been born to the father legitimately, if he or she would have had an automatic claim to British citizenship or an entitlement to registration.

However, this exercise of discretion under Section 3(1) applies only to those who are minors at the date of the application for British citizenship. There is no power in law to register as a British citizen a person who was born illegitimately to a British citizen father before 2006 and who is now an adult. We accept that this creates a lacuna and that those who were born illegitimately to British citizen fathers are at a disadvantage compared with those whose parents were married.

I cannot accept my noble friend’s amendment as currently drafted because while this provision covers any person who would have been a British citizen had his parents been married, we think that it should be set out clearly exactly who should benefit from such a change in the law. In addition, other matters would need to be considered such as good character, which persons registered under this provision should be British citizens by descent and what additional measures should be included for those who might apply when under the age of 18. These are technical matters which need to be considered in amending the legislation. I am afraid that I must resist the amendment as it stands but I am happy to commit to taking it away, with a view to considering urgently whether the Government could prepare a suitable amendment for tabling at Report. I hope that amendment would have the support of the House, should it come back, and I therefore ask my noble friend to withdraw his amendment and its proposed new clause.

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Moved by

[Lord Taylor of Holbeach]

82: Schedule 9, page 103 , line 18, at end insert—
“Special Immigration Appeals Commission Act 1997 (c. 68)In section 2 of the Special Immigration Appeals Commission Act 1997 (jurisdiction: appeals), in subsection (2), after paragraph (c) insert—
“(ca) section 78A of that Act (restriction on removal of children and their parents),”.”

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Moved by

[Lord Taylor of Holbeach]

83: Schedule 9, page 104 , line 21, at end insert—
“Prison Act 1952 (c. 52)(1) Section 5A of the Prison Act 1952 (appointment and functions of Her Majesty’s Chief Inspector of Prisons) is amended as follows.
(2) In subsection (5A)—
(a) omit “and” at the end of paragraph (b);(b) after paragraph (b) insert—“(ba) in relation to pre-departure accommodation within the meaning of that section, and”.(3) In subsection (5B)—
(a) in paragraph (a), after “facilities” insert “, accommodation”;(b) in paragraph (b)(i), after “facilities” insert “, pre-departure accommodation”.”

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[Lord Pannick]

My Lords, I offer my support to the noble Lord, Lord Avebury, on Amendment 84A. As he said, the Committee will recognise the importance of the right to bail, particularly in relation to persons who have not been convicted of any criminal offence and who are often detained for lengthy periods.

I ask the Minister whether proposed new subsection (5A) is being brought forward to address a practical problem. How often are applications being made within the 28-day period, and with what result? I am concerned about proposed new subsection (5A) because it is not difficult to envisage cases where it may well be appropriate to bring a further bail application within the 28-day period, even if there is no “material change in circumstances”, the criterion in proposed new subsection (5A).

Suppose, for example, that a bail application has been dismissed because of the incompetence of the legal advisers—sadly, in this context, as in others, that is far from a hypothetical contingency. Suppose that the individual concerned lacks proper legal advice when the bail application is made. New solicitors may be appointed, a friend may be assisting the individual, they may be able to present a bail application differently or they may have discovered a binding Court of Appeal judgment which, hitherto, escaped attention. None of that would be a material change in circumstances, as I understand the concept, but it would surely be highly undesirable for the detainee to have to wait for 28 days before an application for bail could be heard and ordered, if it is appropriate on the facts of the detainee’s case.

I hope that the Minister will therefore be able to tell the Committee that he is prepared to think again on this important matter before Report.

[Lord Taylor of Holbeach]

My Lords, I welcome the opportunity to debate my noble friend’s amendment because it provides me with the opportunity to reassure noble Lords that the safeguards we highlighted when we debated Clause 3 in terms of the Home Office’s process and policy, common law and case law protections and, indeed, judicial oversight are in place when immigration bail applications are considered by SIAC. The power to detain under immigration powers flows from the Immigration Act 1971, and the consideration of whether detention remains lawful is governed by exactly the same legal principles. It is simply the venue that is different: SIAC, instead of the immigration tribunal. SIAC has its own procedure rules, separate from the tribunal procedure rules, and paragraph 2 of Schedule 9 requires SIAC’s rules to mirror those of the tribunal in how repeat bail applications made within 28 days should be handled in cases where there has not been a material change in circumstances. My noble friend’s Amendment 84A would remove the requirement for SIAC to dispose of repeat applications made on the same facts within 28 days without a hearing. That would create disparity between how different tribunals are required to handle the same matter.

As will be the case in the immigration tribunal, if a further bail application is made within 28 days of a previous unsuccessful bail application, SIAC can agree to an oral hearing, provided that there are genuine reasons to seek another hearing because there are materially different grounds to consider which may lead to a different outcome.

As I have said, safeguards are already in place. Clause 3 does not prevent an individual from applying for bail. Nor does it prevent an individual from challenging the legality of their detention, and legal aid will remain available for that. The Home Office will continue to conduct formal reviews of detention, and detainees will continue to have full access to legal advice.

I have been asked how many times the existing power has been used. The existing power has not been used for some time, so the Government have no statistics on its use. It is drafted so broadly that its meaning is, arguably, unclear. The government amendment is clear about the circumstances in which the power can be exercised and is proportionate. Therefore, it is more workable.

My noble friend Lord Avebury asked about judicial review and habeas corpus and their relationship with SIAC. He suggested that they were not adequate in SIAC. I hope that I can assure the noble Lord, Lord Pannick, that the position in SIAC differs from the position in the tribunal. SIAC is a superior court of record, whereas the tribunal, which considers most bail applications, is not. In SIAC bail applications, SIAC does consider the lawfulness of detention, and detainees do not have to apply for JR or habeas corpus, although those options remain open to them should they wish to do so.

I hope that I have covered the salient points made by my noble friend and the noble Lord, Lord Pannick. I understand that my noble friend’s amendment was probing. I therefore hope that my comments have reassured the noble Lords that there is no difference in the policy, procedural or judicial protections that those detained under immigration powers enjoy even if the case is under SIAC’s jurisdiction rather than that of the immigration tribunal. I therefore ask that my noble friend withdraw his amendment.

[Lord Avebury]

My Lords, I understood on good legal advice that the principles in Chahal did read across to SIAC but in view of what my noble friend has said about that, I shall go back to my advisers and see whether they have any further comments on what he has said.

Perhaps I may make an aside about this amendment and others that we have dealt with today. It is very inconvenient, when looking up the Special Immigration Appeals Commission Act or any other Acts to which amendments are being made by the Bill, to find at the head of each page in the version that we can see online that it cannot be guaranteed that all the amendments which have been made to that Act have been incorporated. This is a serious disadvantage because it means that we always have to go back to the Library, which has access to another database that contains the full Keeling schedules of Acts that have been amended. Normally, people using the parliamentary website cannot see that database and that causes some considerable inconvenience. I would be grateful if my noble friend could address that point at some stage in the future. I do not ask him to give me a reply now but this is a general disadvantage to people who are trying to work on these Bills which work by reference to other legislation. However, with those words I beg leave to withdraw the amendment.

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Moved by

[Lord Taylor of Holbeach]

85: Schedule 9, page 104, line 38, at end insert—
“Northern Ireland Act 1998 (c. 47)In section 69C of the Northern Ireland Act 1998 (investigations: places of detention), in subsection (3)(g), for “or short-term holding facility” substitute “, a short-term holding facility or pre-departure accommodation”.
Immigration and Asylum Act 1999 (c. 33)(1) The Immigration and Asylum Act 1999 is amended as follows.
(2) In Schedule 11 (detainee custody officers)—
(a) in the heading above paragraph 3, at the end insert “and pre-departure accommodation”;(b) in paragraph 3—(i) in sub-paragraph (1), after “facility” insert “or in pre-departure accommodation”;(ii) in sub-paragraph (2), after “facility” (in both places) insert “or accommodation”;(c) in paragraph 4(c), after “facility” insert “or in pre- departure accommodation”;(d) in paragraph 5(c), after “facility” insert “or in pre- departure accommodation”.(3) In Schedule 12 (discipline etc at removal centres)—
(a) in paragraph 4 (assisting detained persons to escape)—(i) in sub-paragraph (1), for “or short-term holding facility” substitute “, a short-term holding facility or pre-departure accommodation”;(ii) in the opening words of sub-paragraph (2), for “or short-term holding facility” substitute “, a short-term holding facility or pre-departure accommodation”;(iii) in sub-paragraph (2)(a), for “or facility” substitute “, facility or accommodation”;(iv) in sub-paragraph (2)(b), for “or facility” substitute “, facility or accommodation”;(v) in sub-paragraph (2)(c), for “or facility” substitute “, facility or accommodation”;(b) in paragraph 8 (notice of penalties)—(i) in sub-paragraph (1), after “facility” insert “or contracted out pre-departure accommodation”;(ii) in sub-paragraph (2), after “facility” insert “or pre-departure accommodation”.”