HC Deb 09 May 1994 vol 243 cc65-74 6.23 pm
The Parliamentary Under-Secretary of State for the Home Department (Mr. Charles Wardle)

I beg to move,

That the draft Immigration (European Economic Area) Order 1994, which was laid before this House on 21st March, be approved. The purpose of this Order in Council is to incorporate into United Kingdom immigration law the provisions of all the various European Community directives dealing with freedom of movement and rights of residence for European Economic Area nationals.

The earliest of these directives, relating to the free movement of EC workers, were already in force when the United Kingdom joined the Community. These and later directives have been implemented since by way of the immigration rules, but, as a consolidating measure, they are now to be covered by the order, to provide a separate legislative instrument dealing with the rights of residence of European Economic Area nationals.

In spite of that legal change, the order will make little practical difference to the treatment of EEA nationals in the United Kingdom, because those directives not already covered by the immigration rules are being implemented administratively. The order is thus largely a technical measure.

The three most recent directives relating to students, retired people and others—

Mr. Andrew F. Bennett (Denton and Reddish)


Mr. Wardle

I will give way, but I hope that the hon. Gentleman will appreciate that I want to get through my speech so that the Opposition Front-Bench spokesman and his hon. Friends will have a chance to speak.

Mr. Bennett

I appreciate that, but, on behalf of the Joint Committee on Statutory Instruments, I should like to ask the Minister to explain the fact that it is rather unusual of the Government to press ahead with an order when there is a clear suggestion that there might be problems with its vires. Would it not have been better to take the instrument away and bring it back when it is right?

Mr. Wardle

It is the Government's clear view that it does not need amending. I shall deal later with the hon. Gentleman's point.

As I was saying, the three most recent directives relating to students, retired people and others who are financially self-sufficient have been implemented administratively since they came into force in June 1992—and the latest students directive, in December 1993. Likewise, the extension from 1 January 1994 of all the rights of residence directives to the European Economic Area—that is, to Austria, Finland, Iceland, Norway and Sweden in addition to the 12 EC states—has been implemented administratively.

The order will discharge our commitment to implement formally the latest rights-of-residence directives. At the same time, it provides a distinct legal framework for EEA nationals who come to the United Kingdom, by covering also the six earlier directives which date back to the 1960s and 1970s and have already been implemented through the immigration rules.

By consolidating these directives, which have already been long in force, together with the latest three directives, which have been implemented administratively, the order is a necessary technical measure and it will not introduce any significant change in the entitlement of EEA nationals to reside here with their families. These, of course, are the same rights of residence which enable British citizens to work and reside anywhere within the European Economic Area.

The concept of free movement within the European Community is long standing. When the United Kingdom joined what was then the European Economic Community in 1972, we acceded to the provisions that were already in place allowing the free movement of EC workers.

Further measures were introduced subsequently allowing the free movement and residence of self-employed people and of providers and recipients of services. Three more directives came into force in 1992 and 1993 concerning the rights of residence of retired people, students and of any EC nationals not already covered by existing EC measures.

The main condition for anyone benefiting from the three latest directives is that he must be financially self-supporting. The cumulative effect is to provide all EC nationals with a right to reside in any member state, regardless of whether they are economically active, provided that they are working or can otherwise support themselves.

The European Economic Area Act 1993 enabled the United Kingdom to ratify the European Economic Area agreement which came into force on 1 January 1994. The agreement extends most of the provisions of the single market to five of the member states of the European Free Trade Association—to Austria, Finland, Iceland, Norway and Sweden. That is why, although we are speaking about Community entitlements arising from directives made under the treaty of Rome, the order refers to nationals of states that are parties to the European Economic Area agreement. The order is being made under the powers conferred by the European Communities Act 1972, as amended by the European Economic Area Act 1993.

The immigration rules already contain a general statement to the effect that they apply only to EC nationals—now extended to EEA nationals—and their families to the extent permitted by Community law, and that such persons are entitled to exercise their rights of residence as provided in Community law.

The order carries no implications for the maintenance of immigration controls at our frontiers with other member states, on which the Government's position is well known. However, on 1 January, to coincide with the entry into force of the European Economic Area agreement, the separate immigration channels for EC passengers arriving at our major ports and airports were extended to all EEA nationals. Arriving EEA nationals are thus treated in a similar way to British and other EC citizens and no longer require any "leave to enter" stamped in their passports.

The reality is that EEA nationals, including British citizens, are now free to work or reside anywhere within the European Economic Area. Showing a passport or identity card at the frontier as evidence of nationality cannot be said to interfere with the fundamental rights of free movement and residence.

The wording of the order is in part complex as it follows closely the wording of nine separate directives. It sets out the rights of residence of EEA nationals who fall into the following categories: workers; self-employed people, including those who have ceased economic activity in the United Kingdom; providers and recipients of services; retired persons; self-sufficient people; and students.

The order confirms that any EEA national may enter the United Kingdom on production of a valid passport or identity card. I should add that this wording comes from the EC directives that link the right of entry to the production of an EEA passport or identity card.

As long as they continue to qualify under the order in one of these categories, EEA nationals are free to remain in the United Kingdom without any further formality. I should make it clear that in some other member states, where there is a compulsory system of registration, residence permits are obligatory, but in this country there is no obligation to apply for a residence permit. If an EEA national does so, of course, subject to proof of their entitlement, a residence permit confirming this status will be issued. The residence permit is a card with the holder's photograph available to EEA nationals residing here. It is issued free of charge and, with certain exceptions, is normally valid for five years,

For example, workers who are to be employed in the United Kingdom for more than three months, but less than 12 months, are issued with a residence permit valid for the period of employment. Students' residence permits are valid for the duration of the course of study or, where the course lasts for more than one year, the validity of the permit may be limited to one year.

Mr. Max Madden (Bradford, West)

The Minister will know that the primary concern of the Joint Committee on Statutory Instruments involved students. Will he give information on the procedures and the evidence that the UK authorities will require, first, to assure themselves that a student has the resources to support himself or herself and, secondly, to satisfy the validity of a spouse and family?

Mr. Wardle

I understand the hon. Gentleman's concern and I shall come to that point, as is my wont, at a fair gallop to allow as much debate as we can reasonably have.

The order also confirms the right of appeal to the independent immigration appellate authorities for any EEA national or family member who is refused a residence permit or residence document or has one withdrawn.

Those rights of residence are qualified by the important power to refuse admission to, or to remove from, the United Kingdom any EEA national whose exclusion or deportation could be justified on grounds of public policy, public security or public health.

The order provides that EEA family members of EEA nationals benefit from the same rights of residence as the EEA principal. They are not required to apply for a residence permit, but may do so if they wish and, so long as they remain members of the family of an EEA national who is exercising residence rights in the United Kingdom, they benefit from the same entitlements.

Any family member who is not an EEA national and who is coming to the United Kingdom to install himself with an EEA national exercising rights of residence will need to be in possession of an EEA family permit. That family permit is an entry clearance issued by British diplomatic posts overseas to those who can demonstrate that they are family members of an EEA national who is resident, or is about to become resident, in the United Kingdom.

No charge will be made for the issue of such a family permit. We have chosen the name "EEA family permit" to distinguish it from a visa issued under the immigration rules. The power to demand such an entry clearance is contained in article 3(2) of directive 68/360/EEC.

Mr. Neil Gerrard (Walthamstow)

Will the Minister clarify the status of a non-EEA national who does not have such a document? Will it be regarded as one of the documents that are necessary under section 10 of the Asylum and Immigration Appeals Act 1993? If so, that will have an impact on the rights of that person to have an appeal.

Mr. Wardle

I shall seek to clarify the hon. Gentleman's point in a few moments.

Non-EEA family members of EEA nationals who are coming to the United Kingdom for other reasons—for example, a short visit—will not be required to hold an EEA family permit, but family members who are visa nationals will need to obtain a visa or an EEA family permit, depending on the purpose of their stay, before travelling here. That answers the hon. Gentleman's question.

The definition of "family members" in the order covers all those family members of EEA nationals with an entitlement to reside here with the EEA national in accordance with the various directives—the spouse, dependent children, parents or grandparents. I should add that any children under 21 years of age are regarded in EC law as being entitled to accompany their parents; that provision dates back to 1968.

In addition, we allow for the admission of other dependent relatives of EEA nationals as provided for in EC regulation 1612/68. That provision, however, is not contained in the order, first, because it is not an absolute entitlement to entry and, secondly, because EC regulations have direct effect in United Kingdom law and, therefore, do not require separate transposition.

Hon. Members will have noticed that the order contains a provision in article 2(2) that precludes non-EEA nationals from any entitlement to enter or remain in the United Kingdom by contracting a marriage of convenience to an EEA national. We recognise that EC law does not enable us to apply all the provisions of the immigration rules, such as the primary purpose test, in EEA marriage cases, but we do not accept that a party to a marriage of convenience has any right to benefit from EC law relating to the admission and residence of family members. We intend to maintain a strong line against bogus marriages and we will ensure that non-EEA nationals are not able to use marriages of convenience as a way of obtaining residence in the United Kingdom.

I understand that the Joint Committee on Statutory Instruments has expressed its doubts about the vires of the reference in the order at article 6(2)(h)(ii) to the adequacy of the financial resources available to an EEA student. We take a different view from the Joint Committee over the drafting of this article, the wording of which comes directly from the students directive. The article states, among other things, that a student for purposes of the order means a person who has sufficient resources to avoid him becoming a burden on the social assistance system of the United Kingdom. The term social assistance, rather than social security, is used here simply because that term is used in the directive. Although not defined in EC law, it is regarded as covering income-related benefits such as income support.

The order does not specify by what means a student may demonstrate that he has adequate resources. We do not consider that it is necessary to set out that evidence of means may be provided by way of a declaration, or such alternative means as are at least equivalent, or that the absence of any such detailed procedural reference creates any doubt about the transposition of the students directives by the order.

When an EEA student applies for a residence permit, we only ask for only reasonable evidence of funds, and a declaration including letters indicating financial support from parents or other sponsors would be regarded as sufficient.

In parallel with the order, we shall bring into force section 7(1) of the Immigration Act 1988, which removes the requirement on EEA nationals to obtain leave to enter the United Kingdom.

I should mention an administrative change relating to the non-EEA dependants of Irish nationals, which is linked to the order. Until now, given our close links with Ireland, it has been our practice to regard the non-EEA spouse and dependants of an Irish national as settled as soon as they arrive in the United Kingdom. This practice is different from the treatment of non-EEA spouses of other EEA nationals, who would normally be issued with a five-year residence permit. There is some evidence, moreover, of non-EEA nationals contracting marriages of convenience with Irish nationals.

We have decided, therefore, that, following the entry into force of the order, the non-EEA dependants of an Irish national who apply under EC law will be treated under the order in the same way as the non-EEA dependants of all other EEA nationals. Irish nationals, in such circumstances, will be issued with a residence permit, normally valid for five years, and their non-EEA spouse or other dependants will be issued with a residence document of the same limited validity. Irish nationals with a non-EEA spouse will not, however, be obliged to apply for residence permits and the non-EEA spouse may choose to apply under the immigration rules in the same way as a non-EEA national who marries a British citizen. Furthermore, the change will affect only Irish nationals with non-EEA dependants. Accordingly, it will not cause any inconvenience for the great majority of Irish nationals living here.

Mr. Keith Vaz (Leicester, East)

Will the Minister assure the House that additional resources will be made available to the immigration service to enable it to deal speedily with these changes?

Mr. Wardle

The hon. Gentleman knows that, as soon as the changes come into force, that will be attended to. It has been taken into account under the normal procedure in our negotiations with the Treasury.

In the context of EEA nationals more generally, the order will not result in any fundamental change of treatment. It will enable us to discharge our commitment to implement formally the latest directives in United Kingdom law and will thus enable us to maintain one of the best records within the European Union for transposing EC law into domestic legislation. The United Kingdom is second only to Denmark in its rate of transposition of single market measures.

I hope that the order will go some way towards clarifying the effects of EC law on rights of residents by consolidating in this one document the key provisions of the nine separate EC directives on which it is based. Time is short because of the earlier debates, but, if I have the opportunity, I will seek to answer some of the points that I suspect the hon. Member for Nottingham, North (Mr. Allen) and other hon. Members will raise. If I do not get the opportunity to do that before 7 o'clock. I assure the House that I will write to hon. Members. I commend the order to the House.

6.40 pm
Mr. Graham Allen (Nottingham, North)

Out of courtesy to hon. Members and those outside, I hope that in the not-too-distant future the House will timetable its business so that our debates on immigration and other matters can be heard by those who regard such issues as significant. We often get, at best, one and a half hours quite late, and on this occasion we have only 30 or 40 minutes to debate the matter at the end of other business.

It is sad to see a great Department of State in trouble and out of political control, but that is what has happened over the past few months in the Home Office, especially on immigration and nationality matters. Immigration policy was never much more than an add-on to Conservative thought, a way to supplement playing the race card at general elections, and it was never taken seriously as a significant policy matter.

In the past few months, there have been a number of banana skins and some deliberate miscalculations. It started at Christmas with the fiasco over Jamaicans coming to our country. About 160 people were detained for no good reason and not one person was charged as a result. We still do not know whether the Minister had agreed to that or whether it was a freelance operation at Gatwick airport by immigration officers who were perhaps not under proper political control.

There was the fiasco of the Campsfield detainees. At one point, about 150 political asylum seekers were on hunger strike. Was that fiasco a weapon deliberately designed to put off people seeking asylum in our country or did it have its own momentum and get out of hand because of lack of control from the top? Hon. Members could pepper the Government's record with examples from their casework relating to immigration and asylum matters in which discretion has not been used in the way that it should. That applies especially in the context of the abolition of the right of appeal for student or other visitors. Thousands of people are denied the right of appeal that was used successfully until last year.

We could add to the catalogue. There was the tragedy of Joy Gardner, the present banana skin of identity cards or border checks and the "when the music stops" nonsense that is being played with the European Commission. We are right up to date with the pantomime surrounding the order. The Government have had six years to prepare the instrument, but it is unclear and deeply confusing and confused. I challenge hon. Members to read it if they have the time. It may not even conform to EC directives.

Just over a week ago, the order was debated in the other place and so many discrepancies were found by my noble Friend Lord McIntosh of Haringey and by Lord Bonham-Carter that the Minister responsible for the order, Lord Annaly, felt unable to put it to a vote. It is amazing that the order has not been withdrawn or rewritten in a form that would be acceptable to both Houses.

Mr. Charles Wardle

I am used to the hon. Gentleman's normal delivery, but he has raised a couple of issues to which he and the House would expect me to reply. The Joint Committee made one point in its report that we saw no reason to change.

The hon. Gentleman spoke about the order being withdrawn in the other place, but that did not happen. The debate was adjourned and my noble Friend undertook to look into a number of points raised in the debate and follow them up by writing to the noble Lords. He gave no undertaking that the order would be amended before being reintroduced and we have no intention of so doing.

Mr. Allen

The debate was adjourned in the other place, and it is unusual for a debate on such an affirmative order to be adjourned there or in this House. If it is a familiar process, I should be happy for this debate to be adjourned so that hon. Members could have more than 15 minutes during which they can seek to intervene on my speech. It is an unusual procedure, but I should be happy to see it repeated in the House if the Minister thinks that it is appropriate.

It is evident from the recent record of the Home Office, from Joy Gardner to the Jamaican incident and to the order placed before the two Houses, that the Department is a complete shambles. Someone inside or outside the Home Office needs to get a grip on the Department and restore its political primacy so that, instead of blaming officers at Gatwick or Heathrow, we can call Ministers to account at the Dispatch box.

The Home Secretary has attempted to steer clear of immigration matters and keep to law and order, which has given great pleasure to my hon. Friend the Member for Sedgefield (Mr. Blair). We all know from recent opinion polls the outcome of that battle.

The order puts into UK law parts of nine different EC directives which, as the Minister said, will give the rights conferred on nationals of European Union member states to nationals of the European Free Trade Association. The measure was enthusiastically backed by Conservatives during proceedings on the European Economic Area legislation, but a few weeks ago those same people, bereft of any sense of purpose in Europe, sought to appease their Europhobes with puerile antics in the Council of Ministers on the issue of enlargement. That put at risk the chance for colleagues in Austria, Norway, Sweden and Finland to become members of the European Union.

That shows how lacking in importance are European and immigration matters to the Government and the Home Office. Having deliberately created that difficulty over enlargement, Conservatives had to back down in humiliation. I do not mind the Conservative party ritualistically inflicting humiliation on itself over Europe, but I do object when my country has its good public image and good European image dragged down into the mire alongside the internal battles of the Conservative party.

Despite our broad and necessary support for the measure, I wish to raise a number of general points, some of which the Minister touched on and others that he sidestepped. In view of the time constraints, it may assist the House if I put those points as a series of questions. Colleagues who wish to intervene may take the opportunity to do so.

Is the Minister aware that the rules for EEA nationals throw into sharp relief the lack of corresponding rights for resident third country nationals in the United Kingdom—notably, settled Commonwealth country citizens? Although the order did not need to include them, as it is designed to implement a European agreement only, will the Government resolve the anomaly whereby an Austrian citizen, for example, will now have more rights in the European Union than an Indian citizen who has lived here for 30 years? The European Commission recently proposed improving the rights of resident third country nationals throughout the union. Will the Government support its proposals?

Will the Minister further define the reference to "a marriage of convenience" in paragraph 2(2)? Who is to decide what is a marriage of convenience? Couples have been questioned by Home Office officials in a way that suggests that it is treating applications as though people must meet the requirements of British immigration law on marriage. European law gives automatic rights to the spouses of people who have moved for a treaty purpose. British immigration rules could mean no right of appeal against refusal and deportation.

If a person has been in the UK less than seven years, he or she has no full right of appeal against such a decision. European Union nationals and their family members have extra safeguards against deportation under EU law. The Minister must be aware of fears that the measure is an attempt to export Britain's primary purpose rule to all other EEA member states. Is that his intention? Does he realise that there are no domestic powers to overrule rights defined under European law? The Minister is creating a lawyers' bean feast, with the possibility of judicial review and cases being taken to the European Court.

Will the Government delete the rider to the definition of spouse in paragraph 2(2), so that it has its customary and normal meaning? If the Home Office believes that the marriage is one of convenience and therefore that it is not conducive to the public good that the person be given a residency permit, it has the power to refuse a permit or to deport on that ground—as provided in sections 17 and 18 of the 1972 Act—and justify its allegation before the immigration appellate authorities. That is the course that the Home Office should take.

Does the Minister acknowledge concerns about paragraph 3(1) and (2) which require proof of family membership? How is that proof to be provided? Who will make the decision, and what means of redress will be available to those whose claims are refused? In that context, what is meant in paragraph 3(3) by a "family permit"? That conflicts with paragraph 5(2), which in turn conflicts with paragraph 19. Those differences are hard to understand and virtually impossible to reconcile. They are yet another example of drafting that almost defies comprehension.

In the other place, my noble Friend Lord McIntosh raised a number of other issues that require further explanation, which one hopes will be forthcoming when debate is resumed there. Contradictory definitions of "family member" and of the immigration status of a family member who reaches the age of 21 are to be found in paragraph 2.

Mr. Gerrard

Paragraph 4(2) deals with a person who ceases to be a family member of a qualified person. Does my hon. Friend agree that under existing immigration rules, a person who is a foreign national and the spouse or family member of a UK national, would normally acquire residence rights after one year's probationary period. It is far from clear whether that would be the case under the order.

Mr. Allen

My hon. Friend raises an important point. I shall be glad to give way to the Minister if he wishes to put his comments on record. Otherwise, I hope that that aspect will be put right in the other place because it is a source of great confusion. What will happen to such individuals? There seems to have been little preparation, even though the Government had six years to pull the order together. I hope that they will re-examine that issue and will put on the record in the other place what will happen in such circumstances.

Their Lordships also queried the definition in paragraph 6(2)(h) of a student as a person on a vocational course. That was highlighted by my hon. Friend the Member for Stockport (Ms Coffey). The Joint Committee on Statutory Instruments commented that the matter was ultra vires, and even wrote to the Home Office to point out that provision was so contradictory and conflicting that the Committee felt that it might prevent the order progressing in its present form. Although only a passing reference to that was made in another place, the Minister should give clearer assurances.

Does the order's definition of a student mean all students, or are the Government sticking to the words of the European Union, to mean only students who are on a vocational course? If so, that would be highly restrictive.

We seek further clarification of the difference between social security and "social assistance", in paragraph 6(1)(f). The provisions covering involuntary unemployment seem designed to exclude as many people as possible and also demand further clarification.

Further assurances are sought in respect of paragraph 12, dealing with residence permits. Is it the Government's intention to get rid of or to limit the concept of settlement and permanent stay, and to replace them with time-limited residence permits that are subject to periodic review? The order goes only as far as absolutely necessary.

My hon. Friends who have dealt with the Home Office in seeking written answers will know of the mentality that produces a lack of openness and generosity in its definitions. Nowhere is that more evident than in the order's failure to tackle third country nationals. The appalling treatment of domestic servants wholly dependent on employers has been passed by—another opportunity missed. Equally, there is nothing in the order to help unify split families of third country nationals.

The order is a dog's breakfast and will produce a rich seam of cases for judicial review and the attention of the European Court. Unless it is withdrawn or substantially amended, it will pass tonight without the support of the Opposition.

As an aside, it is nonsense that under the affirmative procedure, even when it is obvious that an amendment is necessary, it is not procedurally possible to amend an order in this House or the other place. Either the order must be withdrawn and resubmitted or the House must pass a resolution stating that it acknowledges that the order is faulty.

I hope that the Minister will refer to our detailed criticisms of the order and those of my noble Friend Lord McIntosh and the Lord Bonham-Carter, as well as to the views of knowledgeable pressure groups. It is evident from the order that a more mature and professional approach needs to be taken to Europe than the Conservatives—riven by internal differences—are capable of providing. The order is the product of a tired, directionless Government who do not know what they want from Europe. I hope that the electorate will put the Government out of their misery, at least in respect of the European issue, on 9 June.

6.59 pm
Mr. Charles Wardle

With the permission of the House, I will reply. The preamble of the hon. Member for Nottingham, North (Mr. Allen) was entirely predictable. It was a chorus that we have heard again and again. The only thing is that it sounded more tired on this occasion. He raised a number of points. I said earlier—like him, I regret the shortness of the debate—that I would provide answers in writing, which I will make available to hon. Members.

The first point that I will address is about a marriage of convenience: a marriage entered into solely for immigration purposes, with neither partner having the intention of living permanently with the other as man and wife in a settled and genuine relationship. The hon. Gentleman referred to the primary purpose test. That test is contained in UK immigration rules, but not in EC law on free movement, which simply refers to a "spouse"—who may or may not be a EEA national—

It being Seven o'clock, MR. DEPUTY SPEAKER proceeded to put forthwith the Question necessary to dispose of proceedings on the motion, pursuant to order [29 April].

Question agreed to.

Resolved, That the draft Immigration (European Economic Area) Order 1994, which was laid before this House on 21st March, be approved.

Mr. Madden

On a point of order, Mr. Deputy Speaker. It is clear that the time available for the debate has been wholly inadequate. Hon. Members on both sides of the House wish to participate. May I move, therefore, That the Question be not put, to enable debate to take place on another day?

Mr. Deputy Speaker (Mr. Geoffrey Lofthouse)

No. I comply with the order of the House.