Immigration Bill (Fourteenth sitting)

Debate between Robert Buckland and Anne McLaughlin

Tuesday 10th November 2015 Public Bill Committees

[The Solicitor General]

I can give the hon. and learned Gentleman several assurances. First, in assessing the potential discriminatory impact of the clause, the consultation process is an important part of allowing Government to understand precisely what the pressures might be. I also assure him that the standards of fluency will be assessed by the employer. The draft code of practice already contains welcome indicative standards for what various qualifications mean in terms of English fluency. Therefore, within the interview and selection process, there will be systems in place that can be deployed to deflect some of the more specious complaints that might be made. There will be an objective standard rather than a somewhat fluid situation, which I am sure he agrees would be wholly unsatisfactory.

I was going to deal with the basic definition of fluency that will underpin the code of practice. Subsection (8) explains that for the purposes of the Bill,

“a person speaks fluent English if the person has a command of spoken English which is sufficient to enable the effective performance of the person’s role.”

Therefore, it follows that employers will have to satisfy themselves of that criterion among the others that they might deploy in seeking persons to fill vacancies for customer-facing jobs. Subsection (9) clarifies that the requirement to speak fluent English applies to existing workers and new members of staff. Finally, subsection (10) provides that the clause does not apply to those who work for public authorities where work is carried out mainly or wholly outside the United Kingdom.

The code of practice will be an important part of fulfilling our commitment, and it will assist public authorities to comply with every aspect of the new duty. I commend the clause to the Committee.

[Anne McLaughlin (Glasgow North East) (SNP)]

Part 7 of the Bill, which comprises clauses 38 to 45, is completely unnecessary and unworkable. It will have negative consequences, whether intended or not; I have some difficulty coming to a conclusion on that one. Perhaps when the Minister speaks later, it will be easier for me to do so. It goes against the wider measures advocated by the Government in the Bill. I will argue those points in turn, but I hope that the Committee will allow common sense to prevail and scrap this part of the Bill.

It is clear that the clauses are unnecessary from the overwhelming lack of evidence from the Government or anyone else that legislation is required. Page 25 of the explanatory notes state that clause 38 is being introduced in order

“to improve the quality of service provided by public authorities, such as the NHS and the police”.

The question is surely why those professionals have not demanded such legislation themselves. I note the submission from the British Medical Association stating that doctors must already pass the international English language testing system to a level set by the General Medical Council or provide evidence to the equivalent. If the Committee does not agree to scrap part 7 of the Bill, will the Minister provide assurances that it will not result in duplication?

The fact is that part 7 in its entirety is merely a duplication of what any employer asks of an applicant: do they have the skills for the role? I challenge any Member here to tell me whether they know of any firefighters turning up to save our lives who have to bring an interpreter with them, or whether any of them have visited a GP and had to explain their symptoms in mime because the GP does not speak English. It simply does not happen. Many of my constituents have terrible problems with the Department for Work and Pensions. I was of the view that that was due in the main to unfair policies, but I had not considered that it is perhaps because the Government employ people who do not speak the language of this country. I have never heard of that, and have never experienced it.

That point is made eloquently by the Royal College of Nursing, which argues against duplicating and undermining the standards being developed by the Nursing and Midwifery Council. That is what it is: an undermining of professional bodies. The fact remains that it is professionals, not Ministers, who have a sophisticated understanding of the level of English required for professional roles. The RCN states:

“We question whether it would be appropriate for ministers to set out standards rather than professional regulators, such as the NMC, as is currently the case.”

Far be it from me to argue for lighter-touch regulation to a Tory Government, but the professionals themselves are safeguarding public services, so it is difficult to envisage a Minister, of whatever party, devising a more sophisticated practice-led assessment of language skills than the professional bodies representing the public sector. The Government are fond of saying that they are fixing the roof while the sun is shining, but here they are putting a leaky tin roof in place of one that functions. Like much of the Bill, regardless of our respective opinions on the rights and wrongs, these provisions simply do not make sense.

--- Later in debate ---

[Anne McLaughlin]

Thank you, Mr Owen. Discrimination has increased following the trial of the right-to-rent provisions, which has led to people being judged not to look or sound British and to their having increased difficulty finding accommodation. The exact same prejudice will now face those working in the public sector, with people who sound as if they are not from Britain at risk of spurious complaints and victimisation.

Our public sector workers are doing increasingly difficult work, thanks to the Government’s cuts agenda. They are often working with fewer resources and taking on more responsibilities. It does not take a genius to see that this will be stressful for the worker and for those using the service, nor does it take a particularly high IQ to imagine that a disgruntled and stressed-out member of the public may take out their frustration with their situation on a member of staff. If that person is obviously an immigrant, there is a risk that complaints will be brought against them on the grounds of language ability—a complaint that would then have to be investigated. All that does is waste time and money, and increase the stress levels of everyone involved.

I have seen it myself. I have been in a GP surgery where I heard people muttering about the African receptionist—“Could they not get somebody who can speak English?”—when she was speaking perfectly good English, since it was her first language, as it is for many people coming to this country. All that was different about her was the colour of her skin and her accent. Now those racist mutterings can be turned into formal complaints—[Interruption.] Yes, they can. The Government are legitimising that racism instead of tackling it head on. If I am wrong about the intentions, will the Minister tell us if and how he will assess the implementation of this part of the Bill? If he does not intend this part of the Bill to have such consequences, and if he does in fact care but does not believe that my fears are founded, will he at least consider the possibility that I might be right, assess this at a later stage and be willing to review it if necessary?

Part 7 makes it much more difficult for genuine migrants to integrate. It places a ludicrous burden on public agencies at a time when the Government are asking them to tighten their belts. It punishes those who have come here legally and are trying to get on and contribute to this society. Part 7 legitimises the rantings of racists, who will say, “Well, there is obviously a problem or the Government wouldn’t have to have a law to stop it.” In fact, it goes against much of what people believe the Tory party stands for—not me, incidentally, but some people. Part 7 certainly goes against the principles of the Scottish National party, and I urge all Members to reject clauses 38 to 45.

[The Solicitor General]

I would like to say that this debate has created more light than heat, but I am afraid that I cannot do so. With the greatest of respect to the hon. Lady, people such as the receptionist she mentioned will be protected by these provisions, safe in the knowledge that they have fulfilled the criteria set out in the code of practice. They have nothing to fear from people who, through racism or prejudice, may wish to make specious claims. I wholly reject her prospectus.

[Anne McLaughlin]

If the Minister is saying that that receptionist will be protected against spurious complaints, does he mean that nobody is allowed to make a spurious complaint? If so, will it be decided that a complaint is spurious before the receptionist is informed? The stress levels suffered by someone who has had an unlawful complaint made against them are just as bad as they would be if the complaint were founded.

[The Solicitor General]

I am sorry, but the hon. Lady acknowledged that several parts of the public sector have basic proficiency requirements in place. I am afraid that all of us in a public sector role, including everyone in this building and elsewhere, will be the subject of complaints from time to time. Some of those complaints might be wholly justified; others will not be justified. I do not accept for one minute that these provisions will increase the culture of fear that she has colourfully, but wholly erroneously, painted. She is right to say that some parts of the public sector have minimum standards of English for their staff. The provision underpins and widens that duty so that the rest of the public sector is brought into line with those who are leading the way and being proactive.

[Anne McLaughlin]

I thank the Minister for giving way—I appreciate it. Which parts of the public sector employ people who do not speak English in a public-facing role? I have listed all the possibilities, but I have never experienced it, and I have seen no evidence that anyone here has experienced it.

[The Solicitor General]

I am grateful to the hon. Lady for sharing her anecdotal experiences, but the Home Office has done pre-consultation modelling, based on the proportion of over-16s in employment in the public administration, education and healthcare sectors according to 2011 census data—those are important, objective, statutory data obtained from the British population. According to that modelling, about 3.6 million employees are within the scope of the proposed duty and about 1.5 million employees in Great Britain, excluding Northern Ireland, are subject to English language standards, so an extra 2.1 million employees will be newly affected by the duty. We anticipate that between a low of 8,500 workers and a high of 25,000 workers may not have the required standards of English fluency. There is objective evidence upon which we can base this policy.

The policy is not designed suddenly to change the game or somehow create a wholly new structure that will alter the balance and change societal attitudes towards people who have a heavy accent. I include myself in that—I know the hon. Lady is as proud of her accent as I am proud of mine. We are seeking to standardise and enhance the position of people who have come to this country to work and who might have a different ethnicity or background. They will be employed under the same objective criteria that will be applied to everybody else in the public sector.

--- Later in debate ---

[The Solicitor General]

I take point made by the hon. and learned Gentleman, and that made by the hon. Member for Glasgow North East. I will write to the Committee, as I have indicated.

On the question of bureaucracy, the measures take a minimalist approach. The code of practice will guide public authorities to align their actions regarding the new duty with existing practice. We expect a minimal expansion to existing procedures to suffice. Our open consultation will allow any concerns about bureaucracy to be raised and taken into account.

[Anne McLaughlin]

Does that mean that the British Medical Association, for instance, will be allowed to make its own assessment?

--- Later in debate ---

[The Solicitor General]

I am happy to give that. From my own understanding and experience of such issues, I am extremely keen to ensure that people who are fluent but who might, due to disability, express themselves slightly differently, are not discriminated against in any way.

On the question of setting a single standard, again, to enlarge the point that I was making, because the public sector has such a broad range of customer-facing roles, whether they be heart surgeons or parking enforcement officers, different particular standards will be appropriate. Therefore, the code will guide public authorities to set a standard that is proportionate to the nature of the spoken interaction that is an integral part of each role. To reinforce the point that I just made to the hon. and learned Gentleman about discrimination, public authorities, like all employers, are prohibited from discriminating against members of staff and job applicants by the terms of the Equality Act 2010, under which disability is a protected characteristic. Of course that will be relevant to individuals with a speech impediment.

[Anne McLaughlin]

I appreciate the Minister letting me butt in so often. He has said that there is a public duty under equalities legislation not to discriminate against a potential employee, but discrimination happens and we know that it happens. It is far harder for someone to find a job if they are black; basically, it is much more difficult. The Committee has heard most of my fears, but my fear on this is that is that, just as landlords feel that they will discriminate whether they really want to or not, these measures will make employers more fearful of employing somebody who might get complaints against them because of language—not because they cannot speak the language fluently, but because they sound and look different. It will make it even harder for people to find employment. All the equalities legislation in the world is only useful if people know how to use it and have the resources to use it.

[The Solicitor General]

I hear the hon. Lady, but I must remind her that we are talking about public authorities, which have had to, quite rightly, adapt their practices to take into account legislation such as the Equality Act 2010, which consolidated and enhanced a number of other statutes passed over a generation or more, which in turn dealt with racism, disability discrimination and so on. They were Acts of Parliament passed by all parties in this House. I would be as distressed as she if a public authority misused in any way what I would submit are the benign duties in the clause to reverse the progress that we have made. It is not about whether somebody looks or sounds different; it is about basic standards of proficiency and fluency that will improve public services.

--- Later in debate ---

[The Solicitor General]

At this stage what I will say is that those points need to be fed into the consultation, so that in the code of practice we get objective standards for fluency absolutely right. I note from the code of practice that there is a helpful table in the draft suggesting the stages of proficiency that can be equated with various qualifications, such as GCSEs, GCE A-levels or NQFs.

The hon. Gentleman makes an interesting point, which I would argue needs further discussion. I hope that if, when the code of practice is finalised, the issue he raises is causing problems, that will be reflected in a system that, while still objective, will include an understanding that fluency can sometimes be measured in a non-academic way, which would therefore need to be built into any assessment such as a written test or other proficiency test conducted by the employer or prospective employer when interviewing candidates for a job. That could be an objective standard.

[Anne McLaughlin]

Is not that the same as allowing the employers to follow their current recruitment processes and make the judgment themselves? If things are going to be that vague, why do not we just continue to allow employers to make the assessment themselves?

[The Solicitor General]

What we are doing is making sure that the practice spreads. Indeed, some employers do it already; but we think that the duty would spread it throughout the public service. The hon. Lady may well be right; normal assessment processes may be perfectly sufficient. Examples might be a spoken interview or the choice to require an applicant to answer a detailed interview question in English or Welsh, or to possess a relevant qualification, or pass a specifically tailored competency test. It is not a matter of heavy prescription.

The Opposition cannot have it both ways. On one level, they are telling us that they are concerned that the proposals will be too bureaucratic, and on another, when I suggest that this is in fact, more flexible, they ask what the point is. There is a point: it is all about spreading best practice through all levels of public service.

--- Later in debate ---

[The Solicitor General]

Clause 40 provides a power to make regulations to expand the meaning of a person in respect of whom this duty applies. Should the relevant Minister—the Minister of the Cabinet Office or the Chancellor of the Duchy of Lancaster—choose to make such regulations, the duty would apply to customer-facing staff of contractors and subcontractors delivering a public service through an arrangement with a public authority. To comply with the statutory duty in clause 38, public authorities need to have regard to the code of practice to ensure that the customer-facing staff of these organisations, as well as their own directly engaged staff, meet the language standard.

Public authorities need to make sure, first, that the standard of fluency applied is proportionate to the nature of each customer-facing role; and secondly that their complaints process allows citizens to report their experience of a customer-facing worker employed by such organisations who is not speaking fluent English. Hon. Members will be aware from our previous debate about the consultation that is now live that respondents are asked explicitly for their views on the impact of expanding the scope of the duty to the staff of private and third-sector suppliers. We will publish those views as part of the Government response to the consultation. However, any expansion of this duty to apply to the staff of private and third-sector providers of services will involve separate consultation before any regulations are made.

Question put and agreed to.

Clause 40 accordingly ordered to stand part of the Bill.

Clauses 41 and 42 ordered to stand part of the Bill.

Clause 43

Application of Part to Wales

[Anne McLaughlin]

I beg to move amendment 246, in clause 43, page 39, line 23, at end insert—

‘(4) This Part does not apply to Scotland.”

I have set out why I do not want this measure to be part of United Kingdom legislation, so this is really just to make the argument that if the rest of the United Kingdom does, indeed, want it—I have set out the different experiences of Members in the different countries—then it should not stand in Scotland.

[The Solicitor General]

I gently remind the hon. Lady that the title of clause 43 is “Application of Part to Wales”. I see the point she is making, so I do not want to make too lawyerly a point, but the provision relates to Wales rather than Scotland.

The purpose of the hon. Lady’s amendment is to exclude Scotland from the whole of part 7. Subsections (3) and (4) of clause 39—the governing clause of this part of the Bill—provide that the requirement for customer-facing public sector workers to speak fluent English applies in Scotland only to the extent that a public authority exercises functions related to a reserved matter.

Hon. Members may not be aware of a letter sent on 3 November from the Cabinet Secretary for Social Justice, Communities and Pensioners’ Rights in the Scottish Government, Mr Alex Neil, to my right hon. Friend the Minister for the Cabinet Office and Paymaster General. In that letter, Mr Neil acknowledges that this part of the Bill will only apply to reserved matters, and we agree that any further extension into devolved matters would require a legislative consent motion.

I am grateful to Mr Neil and his team for the work that has been done with members of the British Government and the discussions with Scottish Government officials that have resulted in this proposal. I am also grateful to him for instructing his officials to ensure that the Cabinet Office received every support in understanding the landscape of the reserve public sector in Scotland. Such lines of contact have been established, and indeed the consultation continues. For all those reasons, I very much hope that the hon. Member for Glasgow North East will withdraw the amendment.

[Anne McLaughlin]

On a point of clarification, Mr Owen. Being a new MP and a new member of the Committee, I am a bit confused by the gentle reminder that the Minister gave me. Amendment 246 says:

“This Part does not apply to Scotland.”

I am not entirely sure what the Minister was referring to when he mentioned Wales—I am just looking for a bit of guidance on that. Do we have different pieces of paper?

Immigration Bill (Twelfth sitting)

Debate between Robert Buckland and Anne McLaughlin

Thursday 5th November 2015 Public Bill Committees

[The Solicitor General (Robert Buckland)]

Clause 32 repeals section 3D of the Immigration Act 1971, which extends a migrant’s leave where that person’s leave to enter or remain is revoked or was varied with the result that he or she has no leave to enter or remain in the United Kingdom, and an appeal or administrative review of the variation or revocation decision could be brought or is pending.

Following the changes to the appeal system introduced by the Immigration Act 2014, it is no longer possible to appeal against the revocation of leave or the decision to vary leave where the consequence of that variation is that the person has no leave; it is also not possible to seek an administrative review of those decisions. Where somebody still has a pre-2014 Act appeal pending against the decision to revoke immigration leave or a relevant variation decision, there are transitional arrangements in place so that their leave extended under section 3D continues until their appeal is finally determined.

In a nutshell, given that section 3D no longer serves any purpose, it is right that it and references to it be removed from the statute book to avoid unnecessary confusion, and indeed to nod to a recent judgment by the Court of Appeal in which Lord Justice Elias said that he was concerned about over-complexity in the law in this area. It is in pursuance of that important function that I move the clause.

[Anne McLaughlin (Glasgow North East) (SNP)]

The clause will also cause problems for anyone seeking to have their claim handled in a just manner, because leave can be revoked if a person no longer meets the requirements for leave: for example, if someone is here as a spouse and they split up with their partner. Often, nobody is at fault, but imagine being the injured party who, to add insult to that injury, is then considered not to have the right to live where they have been living. By forcing the departure of those whose leave has been revoked but who are already well integrated into society and are law-abiding citizens and who have freshly been deemed illegal for whatever reason, including the one that I just mentioned, but who may in fact not be here illegally, the Government are making it difficult for justice to be done.

No immigration worker will make a correct judgment in all cases. I think we have all accepted that the accuracy of far too many judgments has been shown to be wanting by an appeal. The Minister talked about his frustration that Opposition Members seem to refer constantly to wrong decisions by the Home Office, and he is right—it is not always the Home Office’s fault—but sometimes it is about things that, although they may be the fault of the person applying, are trivial. For example, I had a friend who was married to a Sri Lankan and wanted her husband to live here with his wife and child, understandably. She was refused, and she had to start the entire process all over again because she inadvertently enclosed a photocopy of the wedding certificate instead of the original. [Interruption.] I can see from the Solicitor General’s response that we all agree that that is trivial. Sometimes it is the fault of the person applying, but the reasons are silly.

[The Solicitor General]

I am very familiar with cases of that nature, as I have many such constituency cases; I know exactly what the hon. Lady is talking about. There is an important policy purpose behind ensuring that we have original documents. I think that she can see the obvious point about the danger of relying on a copy that might not be a true representation of the original. If that is explained clearly to people—the guidance discusses the need for original documents rather than copies—hopefully such misunderstandings will cease. Probably in the case in question the application is entirely genuine, but there is a need to rely on original documents, and that is important.

[Anne McLaughlin]

I do not disagree, and my friend was very aware of the need to submit the original document; she just put the photocopy in accidentally without realising, but that meant that she had to start the entire process over again—and, if memory serves me correctly, she had to pay all over again. As well as people understanding how important it is to do the correct thing and provide the correct information, it would be useful if the Home Office could take into account the fact that someone made a mistake, and just ask them to sort it out. That is just one example.

The Government are looking at this situation the wrong way around. Instead of improving the accuracy of the original judgments or taking into account what we just talked about—the fact that problems could be sorted out relatively quickly—if feels as if they are trying to hinder reviews and appeals, worthy or not, by hampering appellants in submitting their claims. Human error alone will lead to faulty judgments which—given the consequences, such as having to appeal from overseas, or criminalisation for remaining in the UK—will inevitably lead to human suffering that could have been avoided. That is why previous legislators included a workable administrative review and appeals system. Those of us who have knowledge of that system will be familiar with its problems, but they pale into insignificance in comparison with the general policy of appeals from overseas and the criminalisation of those whose leave has expired.

There should be no doubt: those who support part 4 of the Bill will needlessly split up families. The fact that it will be impossible for families to stay together while appeals are dealt with makes a mockery of the Government’s professed support of family values. The family life of British citizens with foreign family members could hinge on such minor matters as faulty judgments, typos, stray documents or, to use my recent example, the accidental submission of a photocopy, which should be picked up during the appeal. Tat is no way to run an immigration system.

[Keir Starmer (Holborn and St Pancras) (Lab)]

I want to make sure I have understood the measure. As I understand it, section 3D leave was for people whose leave had been cancelled or curtailed by the Home Office for various reasons including deception, so that they could bring an appeal—so they would be entitled to remain to bring an appeal. That seems sensible. There might be an error and it is usually best to put errors right. I have worked in a big organisation of 9,000 staff making hundreds of thousands of decisions. There is an always an error rate, however well trained the staff. It seems sensible therefore that if there has been an error the person in question should have the right to remain and appeal.

What happened, I think, is that the right of appeal was removed last year, but on an undertaking that there might be administrative review. Again, that might be quite sensible: we will remove the right of appeal but provide a different mechanism so that someone can simply correct a wrong decision. I understand that the administrative review procedure has not been put in place. Now, in cases where a decision is made to cancel someone’s leave, the Government want to strike out section 3D on the basis that since they will not let the individual affected do anything about it, there is no point in it. So when a wrong decision is made about an individual, what are they to do—in a nutshell?

[The Solicitor General]

I am grateful to hon. Members for their contributions to the debate. The hon. Member for Glasgow North East is concerned about the availability of administrative review. I am grateful for her more general observations, and I hope I answered them in response to the debate on clause 31; I hope that she will forgive me for not repeating my observations on those points. I mean no disrespect.

On the hon. Lady’s specific points, we do not think that administrative review should be available where a person has their immigration leave cancelled or revoked. There are a number of circumstances where it would not be appropriate. One example would be where a migrant worked in breach of their immigration conditions and had their leave cancelled. Another example would be a person whose conduct or behaviour has made it undesirable for them to remain here—people who facilitate sham marriages, for example.

[Anne McLaughlin]

Did the Solicitor General just say that the reason there should not be administrative reviews is because there are a number of circumstances in which they would not be appropriate? Surely we can surely write out the right for cases where it would not be appropriate, but still allow administrative reviews? If there are some cases where review would not be appropriate, there must be some where it would be very appropriate.

[The Solicitor General]

I will come to that point and the point that the hon. Lady made about error. It is an amplification of the intervention she kindly allowed me to have. In place of administrative review, the Home Office has an error correction policy for when immigration leave is cancelled. So an application for error correction under the policy does not extend the immigration leave, but it does allow errors to be raised with the Home Office. We are getting the balance right between effective immigration control on the one hand and the fairness point that the hon. Lady quite properly raised.

[The Solicitor General]

I will in a moment. I just want to finish this point. The Home Office contacts people who make applications and who have paid a fee to give them the opportunity to correct errors in their applications.

[Anne McLaughlin]

rose—

[The Solicitor General]

There are examples. The case of Iqbal, which we cited yesterday, was an example where individuals were invited to correct errors. So the process works. Statistics show that only 2.45% of applications were found to be invalid—invalid is when an application is made, but because of error it is of no effect, so the process is having an impact, which is good. I accept the point that the hon. Lady made about the case that she raised, but we believe that the error correction policy fills a particular gap and addresses the mischief that hon. Members have raised.

Immigration Bill (Ninth sitting)

Debate between Robert Buckland and Anne McLaughlin

Tuesday 3rd November 2015 Public Bill Committees

[Anne McLaughlin]

This is the first time during the consideration of the Bill that I have noticed the Minister looking impatient. I appreciate that I might just be putting my interpretation on things, but he has been shaking his head and he looked quite defensive to me.

[The Solicitor General (Robert Buckland)]

We think you are wrong.

[Anne McLaughlin]

Do you want me to sit down and take interventions? I think that we have hit a sore spot, because the Minister is well aware that the measures will have a significant impact on—