HC Deb 21 February 1996 vol 272 cc340-6 1.30 pm
Mr. Max Madden (Bradford, West)

I am very pleased to have this opportunity to introduce a brief debate on the case of Mr. Sodagar Hussain, who, as a visitor, married in this country in 1985. He was advised to observe the law, returned to Pakistan and applied for a visa to rejoin his wife in the United Kingdom. He has made several unsuccessful visa applications since then, and he has had at least three appeals in Leeds dismissed.

Mrs. Hussain has had extended visits to Pakistan to be with her husband—not to be with him, but to demonstrate what the immigration laws describe as intervening devotion. Mr. and Mrs. Hussain have two children, a son of nine and a daughter of eight. Both children were born in this country and are, therefore, British citizens by birth.

Mr. Hussain's initial visa applications were turned down by entry clearance officers in Islamabad on the basis of the primary purpose rule. That hated rule is one by which the authorities say that the primary purpose of an application is to gain entry to the United Kingdom. By using that rule, the authorities are clearly saying that a marriage is not, in their view, genuine, and that it is bogus.

Mr. and Mrs. Hussain's marriage was viewed in those terms as late as 1990, after the birth of their two children. It is interesting to note that the Government's position on the primary purpose rule was radically affected by a critical judgment delivered by the European Court of Human Rights, following which the Government introduced a so-called concession by which couples who have been separated for five years or who have children are able to apply for a review of their case. I emphasise that it is only a review and does not in any way imply a guarantee that applicants will be granted a visa.

In April 1993, Mr. Hussain was refused another visa application because an official in Islamabad was not satisfied that adequate maintenance and accommodation were available in the United Kingdom without what is termed "recourse to public funds". John Molloy, the adjudicator in Leeds, dismissed Mr. Hussain's appeal against that decision in March of last year. Mr. Molloy clearly had considerable sympathy for Mr. Hussain and, especially, for Mrs. Hussain. In his verdict, which was published last year, he said: I also bear in mind that she,"— that is, Mrs. Hussain— perhaps more so than other people in this country, would wish to secure employment not only to provide for her family but also to satisfy the Immigration Rules. In these times of economic uncertainty and difficulties in the labour market her efforts do her credit. The fact that she is able to save from her earnings also does her credit. These points count in favour of her husband. Sadly, what does count against the appellant,"— that is, Mr. Hussain— and tellingly so in this appeal, is the fact that the sponsor has when entitled to do so claimed and received not only Income Support at the date of the decision but Family Credit some months after she commenced her first period of employment … in 1993. Mr. Hussain made yet another application last year, which was refused, and he is now awaiting yet another appeal, to be heard in Leeds.

I met the hon. Member for North Dorset (Mr. Baker), the Minister's predecessor, at the Home Office on 9 August last year. I subsequently received a reply, dated 16 November, from the Under-Secretary of State for the Home Department, the hon. Member for Leeds, North-East (Mr. Kirkhope), whom I am pleased to see in the Chamber, and who will reply for the Government in this debate. In that letter, he said: Where a couple both work, family credit would be payable if their wages were low. The amount of family credit would depend on the wage but for a couple with two children, £195 is the lowest wage they could earn without receiving family credit. The Immigration Department does not object to the settled partner receiving any assistance to which he or she is entitled in his or her own right, nor, in the short term, would there be any objection to assistance provided by third parties. However, the Immigration Rules do envisage both parties becoming self-supporting in the long-term and I am afraid that the evidence which Mr. and Mrs. Hussain have so far produced does not suggest that they would be able to maintain and accommodate themselves without recourse to public funds. I am afraid that in these circumstances it would not be appropriate for me to reverse the decision to refuse entry clearance, which, as you know, was upheld by the appellate authorities. The Minister went on to say that he was copying the correspondence to our post in Islamabad.

How does the Home Office now define "long-term"? As this is clearly a significant shift in policy, when was guidance issued to adjudicators about the phrase "long-term"? Last year, Mr. Molloy was clearly unaware of that shift in policy when he took the decision to which I have referred.

On 22 November, I replied to the Minister's letter and said: I must say I am most concerned it has taken the Home Office so long to reach such a monstrous decision. There can be very few couples, who have been separated for more than ten years, with two children, whose case has been dealt with so shabbily. I would be most grateful for an early opportunity of discussing this case with you further to see if there is some way it can be resolved in favour of Mr. Hussain and his wife and family. On 10 January this year, the Minister replied and again referred to Mr. Hussain's application of 1993. He went on to say: Mr. Hussain appealed against the decision to the independent appellate authorities and at the time of the appeal hearing in March 1995, Mrs. Hussain was employed by a clothing company … She was earning £155 a week. Mr. Hussain re-applied for entry clearance in June 1995 and there had been a change of circumstances as Mrs. Hussain now worked for"— another company— for … £89.75 for a 40 hour week. I shall repeat that: for … £89.75 for a 40 hour week." The Minister goes on to say: The entry clearance officer considered that the wages were very low and as Mrs Hussain had two children to support it was likely that she would need that assistance of Family Credit payments. Moreover, the entry clearance officer discounted the possibility that Mr Hussein would gain employment in a reasonable time, or that Mrs Hussain's family would provide third-party support. Mr. Hussain is now 36. When I first met Mrs. Hussain, in the late 1980s—I made representations by way of parliamentary questions in 1989—she was a bright and confident young woman looking forward to married life in Bradford with her husband and her children. Now, I am sad to say, she is dejected and defeated, approaching her middle years and uncertain whether she will ever be united in this country with her husband and children. It is monstrous that a British citizen who has married and wishes to remain in this country with her husband and her British-born children should face such insecurity and uncertainty.

Mrs. Hussain has had to give up working full time, even for the miserably low wages that I described, because her sister, who is also married with children and has the misfortune to live in a low-income household, is no longer able to take Mrs. Hussain's young children to and from school. Mrs. Hussain, who was rightly praised by the adjudicator for all her efforts during those 11 years to establish a home and obtain employment, now works from 9 am until 3 pm from Monday to Friday, on commission, for the princely sum of £60 to £70 a week.

Low pay, especially for women, is endemic not only in the region that I and the Minister have the honour to represent, but across our country. The Government encourage low-paid workers to take family credit. Millions of pounds are spent on advertising to encourage low-paid workers to take advantage of family credit. The Government constantly boast of the number of workers who are supported by family credit. Over the years, what was Mrs. Hussain expected to do? She had struggled to obtain and keep a job, despite children. The view of the officials who were interviewing and refusing applications from her husband in Islamabad so frequently was that the pay was too low to support herself, her children and her husband. Was she expected to deny herself and her family the subsistence income that family credit provides, in the knowledge that if she accepted it there was every prospect that she would disqualify her husband indefinitely from ever being given a visa to join her and the children in Bradford? Was she to deny herself and her children that subsistence income in the forlorn hope that one day her husband would be given a visa? That is the dilemma that has haunted Mrs. Hussain and her family in the 11 years that she has been waiting for a decision to be taken.

The only sin committed by Mr. and Mrs. Hussain is that they are poor, and that is something with which many people caught up in immigration laws are afflicted. There seems to be one law for the well-off and an altogether different law for the poor and the most vulnerable. If the decision to refuse to grant Mr. Hussain a visa stands, many will conclude that only the well-off will be allowed to live together in this country in future.

I strongly believe that this case illustrates the overwhelming need for family credit to be taken off the list of public funds, so that no one who has the support of family credit, which is encouraged by the Government, is disqualified in the same way as Mr. Hussain. Unless and until that is done, low-income applicants and sponsors will be denied not only a basic decent income but their fundamental right to family union in this country. It is appalling that the Government have separated this couple for 11 long years. It is wrong that they should separate a husband from a wife, a father from his children. The time has come for the Minister, exceptionally and outside the immigration rules, to allow Mr. Hussain to join his family, so that he may enjoy the family union to which they are entitled.

I hope very much that, as a result of this short debate, the Minister will agree to consider my request, which would restore some prospect of hope for this couple to enjoy what is left of their married life together in Bradford, and send an important message to others in similar circumstances, that they should not forsake their hope of family union in this country. I hope very much that family credit, which has caused this couple such great difficulty over the past 11 years, will soon be exempted from the list of public funds.

1.46 pm
The Parliamentary Under-Secretary of State for the Home Department (Mr. Timothy Kirkhope)

I listened most carefully to what was said by the hon Member for Bradford, West (Mr. Madden), and I appreciate the reason for his determination to draw the attention of the House to his constituent's case.

The case concerns a decision to refuse entry clearance to the spouse of a person—the husband of the hon. Gentleman's constituent—settled in the United Kingdom. The application was refused because the entry clearance officer was not satisfied, as he must be, that adequate maintenance and accommodation were available to the couple in the United Kingdom without recourse to public funds. As the hon Gentleman said, this is the second time that the applicant has been refused entry clearance because the entry clearance officer was not satisfied that that requirement was met.

Parliament has provided a right of appeal to the independent appellate authorities in such cases. The applicant exercised that right against the earlier refusal, but his appeal was dismissed by an adjudicator in March last year. The applicant then re-applied for entry clearance in June. The application was refused in November. His appeal against that decision will be heard by the appellate authorities as soon as possible. The responsibility for the arrangement of hearings rests with the Lord Chancellor's Department, but I understand that the appeal is likely to be heard towards the middle of this year.

I have taken particular note of what the hon. Gentleman said about the steps that the sponsor has taken to find employment and to repay the mortgage on her home. Although it is impossible not to sympathise with her, the burden of proof as regards satisfying the requirements of the immigration rules in question rests squarely on the applicant. In other words, her husband must show that he and his wife can maintain and accommodate themselves without recourse to public funds. Although I hear what the hon. Gentleman says about that rule, he will know that there are many examples where we require those who come to this country not to be a drain on public funds, of whatever kind. As the hon Gentleman will be aware, the independent appellate authorities, after carefully weighing all the evidence, concluded that the applicant had not discharged that burden.

The hon. Gentleman has presented his case thoroughly, but I am sure that he will not mind if I go over some of the facts that led the entry clearance officer to refuse the latest application, which was made just three months after the appellate authorities dismissed the applicant's appeal. At the time of the appeal hearing, the hon. Gentleman's constituent was employed by a clothing company, earning £155 a week. There was also an offer of employment to Mr. Hussain in the same company. Moreover, the sponsor's sister had offered third-party support from her own funds.

The adjudicator considered all the facts. He noted that, in addition to working, the sponsor had been claiming family credit. He dismissed a job offer for the applicant as vague and inconclusive. He also dismissed the offer of third-party support as unrealistic, given the circumstances of the person making the offer and also given the fact that none had been paid so far. When the entry clearance officer came to consider the latest application, he found a change of circumstances. The sponsor no longer worked for the clothing company, although she had found alternative employment—but at a salary of just over £2 an hour.

Given that the adjudicator was unhappy with the sponsor's earlier employment, her present rate of pay was clearly equally unsatisfactory, and the entry clearance officer could not be satisfied that she would not have recourse to public funds. The entry clearance officer also considered it reasonable to discount the possibility that the sponsor would gain better-paid employment in a reasonable time, or that her family would provide third-party support.

The entry clearance officer acknowledged that the sponsor had now started making mortgage repayments from her own account, but, as she was probably still in receipt of family credit, he could not be satisfied that the payments were not being made, at least indirectly, from public funds. He concluded that, since the appeal hearing, there had been no improvement in either the maintenance or the accommodation aspect of the case, and he therefore refused the application. I am satisfied that that decision was fully in accordance with the clear requirements of the rules. An appeal has been lodged, and, if there is any further change to the couple's circumstances, it will be thoroughly considered by the appellate authorities.

The hon. Gentleman referred to the hardship that the decision has caused the couple's two children, and suggested that I consider allowing the applicant to come to this country on an exceptional basis outside the rules. I agree that the welfare of children is an extremely important aspect, but it must be borne in mind that someone claiming an important benefit such as admission to this country with a view to settlement should have to demonstrate his eligibility. It is an important principle that, in both the immigration rules and most other functions of government, people must show that they are entitled to the benefit that they are claiming.

The applicant clearly does not qualify for admission, and only in the most exceptional circumstances would it be appropriate to waive the requirements of the rules, which have been approved by Parliament. The compassionate considerations in this case cannot be considered most exceptional, and I would not be applying the rules fairly and consistently—as I must do in order to maintain fair and firm immigration control—if I overruled the conclusions reached by the entry clearance officer and the appellate authorities, and issued entry clearance to the applicant.

The hon. Gentleman criticised the way in which the maintenance and accommodation requirements of the rules operate. I am glad to have the opportunity to put their operation in context. We are not the first Government to act to prevent the admission of spouses when the parties to the marriage could not maintain themselves without drawing on public funds. As the hon. Gentleman is doubtless aware, the last Labour Government found it necessary to apply a similar requirement. It would be impossible to overestimate the additional burdens that would be placed on the welfare services were we to cease to apply such tests.

The hon. Gentleman suggested that the test discriminates against sponsors who, like his constituent, are making commendable efforts to combine the responsibilities of work with bringing up children. That is not the case. We would not normally object to the settled partner's receiving any assistance to which he or she is entitled in his or her own right; nor, in the short term, would we normally raise any objection to assistance provided by third parties.

The hon. Gentleman also asked for family credit to be discounted when it comes to deciding what constitutes public funds. On 5 February this year, regulations came into force that tightened Department of Social Security procedures to ensure that ineligible persons from abroad were excluded from receiving certain non-contributory benefits, including family credit. Our intention is that those who are in the United Kingdom either illegally or on a temporary basis—including spouses who are admitted for an initial probationary period of 12 months—should not receive benefit intended for those who are settled here and genuinely entitled to it.

Mr. Madden

Will the Minister give way?

Mr. Kirkhope

I want to deal with a point that the hon. Gentleman raised earlier, and I have not much time in which to do so.

The curbs are intended not only to strengthen immigration controls, but to save taxpayers' money and greatly reduce the incentive for people to enter the country illegally. The key question, therefore, is whether additional recourse to public funds would be necessary as a result of the applicant's arrival here. The fact that a sponsor may not be claiming public funds at the time of the application is not in itself evidence that the couple have adequate resources to satisfy the requirements of the rules. The couple would need to provide evidence that the foreign partner would not, in the long term, need to claim public funds in his or her own right.

The hon. Gentleman raised the question of the definition of "long term", suggesting that we might have changed it. We have not, but the definition depends very much on the circumstances involved in individual cases. Adjudicators examine such cases and determine what would constitute a long-term or short-term position in those cases, but nothing is defined in the way in which the hon. Gentleman suggested. Certainly, no case law is available to benefit either him or me.

Mr. Madden

This is an important point. Does the Minister agree that, if Mr. Hussain were allowed to enter the country, he would not be eligible to claim family credit until he had been granted indefinite leave to remain, which would be at least 18 months after his entry? Will the Minister provide adjudicators with guidance on the definition of "long term"? Mr. Molloy was clearly unaware of what the Minister has told us, and I suspect that many other adjudicators are as well.

Mr. Kirkhope

I cannot discuss Mr. Molloy's views, nor do I wish to; but I can say that adjudicators are well aware of the need to define "long term", and do so on the basis of individual circumstances. That has been the case in this instance as in others.

Practical experience confirms that the tests are not too difficult to pass. The figures for migration from the sub-continent show that entry clearance was granted to 8,610 spouses, whereas 1,160 were refused solely because there was insufficient maintenance and accommodation.

I repeat that the sponsor's position deserves some sympathy, but I cannot believe that either she or her husband was entirely ignorant of the requirements of the immigration rules when they entered into the marriage. As the hon. Gentleman knows, it is my responsibility to maintain a fair and firm policy on immigration control. The majority of spouses applying for entry clearance to join persons settled in the United Kingdom are able to satisfy the requirements of the immigration rules.

Having said all that, I assure the hon. Gentleman that I have taken careful note of what he has said. Despite my remarks, I shall of course consider the matter in the light of what he has told me: that is a courtesy to which he is entitled, and one that I am pleased to exercise. I shall come back to him in due course.

It being three minutes to Two o'clock, the motion for the Adjournment of the House lapsed, without Question put.

Sitting suspended, pursuant to Standing Order No. 10 (Wednesday sittings), till half-past Two o'clock.