§ '(1) The Secretary of State must prescribe a period ("the regularisation period") during which overstayers may apply, in the prescribed manner, for leave to remain in the United Kingdom.
§ (2) The regularisation period—
- (a) is to be not less than three months; and
- (b) ends on the prescribed day.
§ (3) Section 7 and paragraph 6 of Schedule 13 come into force on the day after the prescribed day.
§ (4) The Secretary of State must publicise the effect of this section in the way appearing to him to be best calculated to bring it to the attention of those affected.
§ (5) "Overstayer" means a person who, having only limited leave to enter or remain in the United Kingdom, remains beyond the time limited by the leave.'.—[Mr. Mike O'Brien.]
§ Brought up, and read the First time.
§ 10 pm
§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien)
I beg to move, That the clause be read a Second time.
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
With this, it will be convenient to discuss Government amendments Nos. 28, 29, 91, 92, 96 and 139.
§ Mr. O'Brien
I said on Second Reading that we would consider any representations that we received, as well as what was said in the Special Standing Committee. The new clause is part of that process.
Too often in debates on immigration and asylum, people have taken fixed positions and made knee-jerk reactions to proposals for change. The left too often saw every change as xenophobic and racist, while the right tried to be tough and often seemed to believe that every asylum seeker was bogus and every immigrant was unwelcome. Neither reaction has characterised our discussions on the Bill.
In the Special Standing Committee, we discussed with refugee groups, interested parties, the Opposition and others how to develop a policy with broad-based support. The refugee groups, particularly the Refugee Council, the Refugee Legal Centre, Justice and the Joint Council for the Welfare of Immigrants, responded positively to the opportunities to express their views. Lawyers also responded through the Immigration Law Practitioners Association. The Opposition came forward with some constructive proposals in Committee. I thank them for the tone in which they conducted the debate. We said that we would consider their proposals. We did not promise to accept every proposal or always to agree, but I hope that we are at the beginning of a process of sensible discussion on sensitive issues.
Setting aside the knee-jerk reaction of the appallingly racist Dover Express and the bilious mendacity of the odd leftist journalist, the debate on the Bill has been constructive in the national press and among pressure groups and many hon. Members. The Kosovan refugee 268 crisis has shown everyone that many refugees are genuine. That has helped us to focus on devising a balanced package aimed at creating a system that works.
§ Miss Ann Widdecombe (Maidstone and The Weald)
I do not want to spoil the wonderful consensus that the Minister is trying to generate, but does he include in his comments about knee-jerk reactions the reactions of his Front-Bench colleagues when we introduced our much milder Asylum and Immigration Bill in 1996 and were accused of playing the race card and being racist? Will he repudiate that?
§ Mr. O'Brien
The right hon. Lady voted for a Bill that removed all support from in-country asylum seekers and those in the appeal system. That was not an acceptable or humane approach.
§ Mr. O'Brien
I hope that the right hon. Lady will allow me to reply to her. In an attempt to encourage her not to pursue the abrasive approach for which she is renowned, I welcome her to her new Front-Bench position. I wish her a long period as Opposition home affairs spokesperson.
§ Miss Widdecombe
I was rather surprised by the hon. Gentleman's answer which confused the social security measure, for which I was not responsible, with the Asylum and Immigration Act 1996, which introduced measures with regard to safe third countries, safe countries of origin and illegal working, all of which, to an extent, have been picked up in this Bill. Will he repudiate the opposition that his party mounted to that measure?
§ Mr. O'Brien
We properly opposed the 1996 Bill, which the right hon. Lady put forward, because it was a bad Bill that created a shambles in the asylum and immigration system. The problems that we have to sort out were caused during her time at the Home Office, when she was responsible for immigration and asylum. Before she tries to preach to us, let her remember the shambles that we inherited from her and those with whom she worked at the Home Office in the previous Government.
Let us return to the more proper and sensible discussion that we were having until the right hon. Lady intervened. Perhaps she wants to use these difficult, complex and sensitive issues as a party political football. The hon. Member for Hertsmere (Mr. Clappison), who ably represented the Conservative party in Committee, did not seek to do that. She ought to learn the lessons of the failure of the 1996 Act and start engaging in sensible, adult discussion about the issues.
When we discussed what is now clause 7 in the Special Standing Committee, concern was expressed about the position of those current overstayers who have come to the attention of the authorities and are likely to be deported. At present, they have a suspensive right of appeal. They have a full right of appeal if they have been here for more than seven years, but only on a point of law if they have been here for a shorter period.
Under clause 7, such people would be removed, with a right of appeal against the legality of the removal decision, but the appeal could be exercised only 269 from abroad. It is important to note that asylum seekers will retain a right of suspensive appeal. The concern is about immigration offenders—overstayers—who may have been here for many years.
We will not condone overstaying—it is as much an evasion of our immigration controls as is illegal entry—but we have listened to representations and we are prepared to allow overstayers a limited and final opportunity to take advantage of the right to a suspensive appeal against deportation. New clause 1 achieves that. Importantly, it will allow them to remain in the United Kingdom only until their appeal is decided—a matter of months—and it will be for the adjudicator to decide whether they can remain beyond that date. Some may be able to remain; others will not and will need to be deported.
§ Mr. O'Brien
It applies to those who come to the attention of the immigration authorities during the period for which the regularisation procedure will apply. There will be a period during which they will be allowed to bring themselves to the attention of the immigration authorities; if they do that, we intend to allow them that right of appeal. We will consult the various organisations on the length of the period, but I anticipate that it will be about a year.
We will expect those who want to take advantage of the suspensive appeal to bring themselves to our notice, or they may be brought to our notice because they are detained, and in those circumstances an appeal will be allowed—but after that period is over, it is anticipated that such an appeal will no longer be available to those who are merely overstayers and have no other right of appeal.
§ Mr. Clappison
Is the Minister referring to all overstayers, or only those who have overstayed by more than seven years?
§ Mr. O'Brien
I am referring to those who currently have a right of appeal. Those who have been here more than seven years will have a full right of appeal, as at present. Those who have been here less than seven years have a very limited right of appeal, which is basically on a point of law, and that will continue to be the case. We are not extending the appeal rights beyond what we inherited from the Conservative Government. We will maintain the existing rights for a time and say, in effect, that if people want to exercise their right to a suspensive appeal in the specified period, let them come forward then, or that will be that.
§ Mr. Jeremy Corbyn (Islington, North)
Does my hon. Friend intend to set out any guidance on how the appeals should be conducted, or will existing case law apply? Will there be any new criteria?
§ Mr. O'Brien
Perhaps it will help hon. Members if I set out in some detail how we shall do that, and in doing so I shall deal with the point that my hon. Friend has raised.
§ Mr. Peter Bottomley (Worthing, West)
This is a tricky subject. Several people will have a copy of the Bill 270 as it was first debated on Second Reading. Hon. Members have the Bill as amended in Committee. Some people outside will have the old notes on clauses and some clause numbers have changed. If possible, could the Minister refer to the present clause numbers and, if his officials can provide the information, the previous clause numbers? In that way, those watching our debates would be able to understand what we are talking about.
§ Mr. O'Brien
With great respect, the hon. Gentleman is seeking to add a level of complication—doubtless for the good reason of informing the public—to the proceedings, which might end up confusing more people. I shall try to be as straightforward as I can in my explanation of how the procedure will work, but I do not think much will be achieved by trying to refer to two different clause numbers each time I discuss a clause.
New clause 1 will allow people to remain in the United Kingdom until their appeal is decided, as I have said. Overstayers who apply for their status to be regularised will not be considered under any special criteria. In each case, their particular circumstances will be taken into account under the criteria set out in the immigration rules when deciding whether or not deportation is appropriate.
We shall ensure that the scheme is well publicised. The period for applying will be at least three months—we are considering the time limit—and clause 7 will not come into force until it is over. I believe that that was clause 6 in the old Bill. The details of how to apply will be set out in regulations.
We appreciate that the scheme does not go as far as some would like—some people asked us to retain the right of appeal indefinitely—but we are not prepared to allow current overstayers to retain access to lengthy deportation procedures in perpetuity. That would be both undesirable and impractical.
Amendment No. 28 is contingent on the regularisation arrangements provided for in the new clause. The former protection from removal provided by the original subsection (2) is no longer necessary. The effect of clause 3, which was introduced in Committee, and of paragraph 17 of schedule 4 is that, where someone makes an in-time application for further leave, the leave is treated as continuing while the application is being considered and while any appeal is pending under either clause 47 or clause 55(2). The person concerned is no longer an overstayer. Consequently, he is no longer liable to removal as such until the leave application is decided.
However, anyone who applies for leave to remain under the arrangements envisaged by new clause 1 is already an overstayer. If his application has not been resolved by the time clause 7 comes into force, he would be liable to removal under the new administrative removal procedures. Amendment No. 28 makes it clear that the new removal procedure will not apply to someone in that situation. If the application is granted, the person concerned will be granted leave to remain. If it is refused, they will have the same right of appeal during that period against any decision to make a deportation order as they do at present.
Amendment No. 29 deletes subsection (5) of clause 7. That power was originally included in case it was required. However, I can envisage no circumstances in which it might be necessary and, having regard to the concerns that were expressed by the Opposition—by 271 the hon. Member for Hertsmere about the number of powers in the Bill to make subordinate legislation—we have decided to forgo that one.
Clause 149 gives details of how the various orders and regulations are to be managed. Amendment No. 91 adds a new subsection (3A) to that clause, specifying that certain regulations are to be made subject to the affirmative resolution procedure. Those are regulations concerning the regularisation period for the current overstayers and regulations extending the clause 60 one-stop procedure. We listened to the representations made in Committee by several hon. Members about the way in which we should do that, and we accept that the affirmative procedure is appropriate for those regulations, in line with the orders specified in subsection (3) of clause 149.
Amendment No. 92 is consequential on amendment No. 91. It simply adds a reference in the regulations that are to be subject to the affirmative resolution procedure to the list of exceptions in subsection (4), which otherwise requires all secondary legislation to go through the negative procedure.
Amendment No. 96 relates to new clause 1 and amendment No. 139. The new clause gives the Secretary of State power to make a regulation specifying when the regularisation period for overstayers ends. Subsection (3) of the new clause states that clause 7—under which overstayers are to be removed without deportation—and paragraph 6 of schedule 13 come into force on the following day. Amendment No. 96 refers back to new clause 1 in the commencement clause, listing it as a special case. For example, under clause 153(3), most parts of the Bill will come into force on the day that the Secretary of State appoints, but clause 7 will come into effect the day after the specified final day of the regularisation period.
Amendment No. 139 is a transitional arrangement. It retains the appropriate deportation appeal provisions of the Immigration Acts of 1971 and 1988 for overstayers who have made a valid but unsuccessful application under the regularisation scheme and who are to be deported under the old provisions, rather than removed under the new ones.
§ Mr. Richard Allan (Sheffield, Hallam)
Will the Minister clarify a point arising from when clause 7 comes into force? That clause applies also to those who have observed the conditions attached to their leave to remain, as well as to those who are simply overstayers. Will those in the former category retain their appeal rights during the regularisation period?
§ Mr. O'Brien
Our intention is that clause 7 will come into force all at once after the regularisation period has ended. We listened to the representations of various hon. Members in Standing Committee, who felt that we had to examine the issue very carefully, and the aim is to bring in the clause at a date later than originally planned. We cannot go as far as some hon. Members wanted, but we believe that this is a sensible way forward.
§ Mr. Clappison
It would be less than gracious not to respond to the Minister's opening remarks. I am grateful 272 that he has recognised that our opposition to the Bill has always been constructive and well meaning. I am just a little surprised, given what the Minister has said, that the Government have decided to guillotine debate and to keep the discussion of subsequent provisions as short as possible.
The Minister claimed to have listened to outside groups and to the evidence presented to the Special Standing Committee. However, had he tried to take on board all the criticisms of the Bill in that Committee, we would be here for a very long time. Perhaps that is why the Minister's colleagues want to guillotine debate.
New clause 1 follows on from matters that we have debated already with regard to overstayers' rights of appeal, but new clauses 2, 3 and 5 contain very controversial proposals that have not been foreshadowed in debate in any way. They were not part of the Government's original proposals for the Bill, were tabled at a very late stage and then were made subject to the guillotine procedure. That is unsatisfactory.
New clause 1 appears to be an addition to what the Government have proposed already by way of curtailment of overstayers' rights of appeal. In Committee, we did not oppose the proposals for change in those rights of appeal, nor the proposed change of regime for overstayers from deportation to removal. That curtails the rights of appeal, especially for people who have overstayed by more than seven years.
We take a serious view of those who overstay. People who exceed their permission to remain are flouting the law and obtaining benefits not available to those who follow the rules and who lawfully leave when they are supposed to do so. Overstaying is a serious matter, but if people have been here for a certain period, a balance must be struck in deciding what to take into account before they are expelled or deported. We must consider the need to remove them from the country against the need to take into account compassionate circumstances that may have arisen because of their presence in the UK for such a long time.
The previous Government set that balance at seven years. When someone had overstayed by more than that, compassionate circumstances could be considered as a ground of appeal. The present Government have changed the balance. Once the regularisation period has elapsed, there will be no right of appeal on compassionate grounds for overstayers who have been here for more than seven years. They will be unable to prosecute any right of appeal in the UK, which makes a very great difference. In taking that view, the Government have gone further than the previous Government. We did not oppose that change in Committee, but the Government have since bolted on a regularisation procedure as a means of meeting concerns expressed by outside organisations that gave evidence.
§ Ms Diane Abbott (Hackney, North and Stoke Newington)
It is true that the hon. Gentleman and his party did not oppose that change in Committee, but some of the Minister's Back-Bench colleagues did oppose it. Many people who overstay are settled members of the communities in which they live. They may have children at school, and the proposals will cause great misery and unhappiness.
§ Mr. Clappison
The hon. Lady's comments fairly reflect what was said in Committee. We went into 273 this matter—which, as the Minister said, is extremely sensitive—in some detail. It would not preserve the harmony that unexpectedly broke out at the beginning of the Minister's speech if I were gently to remind him of what the Labour party said about these matters when in opposition.
We have a number of questions about the regularisation period. The Minister has given a brief account of how it will work, and we have before us the bald statements in new clause 1. We wish to clarify matters further. Can the Minister confirm that the criteria to be taken into account in evaluating the cases of people who have overstayed are the same as those currently used in respect of the rights of appeal under the present system, which deals with them by way of deportation? For people who have been here for fewer than seven years, will the new regime mean that their rights to appeal will be judged against the points of law and other matters currently taken into account in their cases? For those who have been here longer than seven years, will compassionate circumstances be taken into account?
We want to know that there has been no relaxation in the current framework of law. It would be a new matter entirely if the Government intended, by way of regularisation, to relax the law in any way. We should also like to know how long the regularisation period will last. Will he tell us a little more about subsection (4), which deals with publicity on the effects of the clause?
We are not opposing what is being done. It may concern those who originally expressed the sort of fears that the hon. Member for Hackney, North and Stoke Newington (Ms Abbott) mentioned. She may know, as will other hon. Members, that many people who fall into the category of overstayers and who stay here for a long time simply put their heads down and do not respond to anything and the compassionate circumstances build up. The regularisation period will come to an end at some stage—the Minister will probably tell us when—and when it has ended those people will face administrative removal even if they have been here for more than seven years, with the rights of appeal that that entails. They will simply be removed from the country and they will have to prosecute any rights of appeal in the country to which they are removed. That is the regime that is to be put in place.
We look to the Minister for answers to my questions. It is interesting to set his contribution this evening against what he told us in Committee when these matters were being discussed. The hon. Gentleman tells us that he has been prepared to listen, but in Committee the Government assured us that the rationale behind and justification for the changes was a so-called streamlining of the system. Having listened to the Minister this evening, streamlining is not the appropriate description.
We do not oppose new clause 1, but we need a number of answers to our questions.
§ Mr. Neil Gerrard (Walthamstow)
I shall make a brief contribution because I raised this issue in the evidence-taking sessions and later in the debate on the relevant clauses in the Standing Committee. It is an important matter.
As originally drafted, the Bill took away all appeal rights from overstayers, including those people who now when they have been here seven years or more get a full 274 substantive appeal—in which all sorts of factors can be taken into consideration—but who in future will be subject to administrative removal.
I very much welcome the fact that the Government have made some moves on this matter. In Committee, the Minister said—I am not sure whether the hon. Member for Hertsmere (Mr. Clappison) was there at the time—that when administrative removal is being considered the same factors relating to deportation that are in the immigration rules at present would be taken into consideration. That is a move in the right direction, but I still have some doubts about whether we have the balance absolutely right.
§ Mr. Clappison
As the hon. Gentleman knows, there were not many occasions on which I was absent from the Committee. I remember the matter to which he adverts, but the factors to which he is referring will be taken into account by officials in the Home Office. My point related to rights of appeal before the courts.
§ Mr. Gerrard
I understand that absolutely. At the moment, the immigration rules list matters that will be taken into account by an adjudicator in deciding a deportation order. In Committee, we were told that the same factors would be taken into account in an administrative removal.
However, there is a significant difference between an administrative removal and an appeal. I am always worried when appeal rights are removed. I recall the Asylum and Immigration Act 1996, to which the right hon. Member for Maidstone and The Weald (Miss Widdecombe) referred. By the way, the right hon. Lady was wrong when she said that the benefit cuts were nothing to do with that Act. Although those cuts started off as a social security measure, the court threw out the social security regulations that the Government introduced, so they amended the 1996 Bill in its last stages. Those regulations were part of that Act and a part of her responsibility as a Home Office Minister.
The 1996 Act removed appeal rights on visit visas, which we are quite rightly putting back in this Bill. I know, as do many other hon. Members I am sure, the consequences of that removal. Then, people who previously would have had appeals were turning up in our advice surgeries week after week saying, "The visit visa appeal for my relative has been turned down. Please can you help?" We got drawn into making representations, which ended up on Minister's desks.
Generally, it is much better for decisions on appeal to be taken through a proper appeal process, rather than through administrative processes, into which hon. Members will inevitably be drawn.
Another matter that concerns me is that, in future, other routes may be sought. People might make probably quite unjustified asylum claims because they saw that as the route to an appeal. Alternatively, they might use one of the other provisions in the Bill—the possibility of an appeal under the Human Rights Act 1998. That could open up the possibility of appeals on compassionate grounds—for example, on family grounds in respect of people who have been in the country for some time.
If there is to be a grace period, it needs to be of substantial length, because it will not be easy to persuade people to come forward. They are likely to come forward 275 only if they think there is something in it for them—if they think that they will benefit in some way. It is not easy to see precisely what the incentive might be for people to declare themselves to be overstayers. Many people might think about it, but they may be advised to keep their heads down, in the hope that they can spin out the period during which they are in this country, so that, in the longer term, they can build up a case on compassionate grounds and make family connections through which they can argue an appeal on human rights grounds. I welcome the fact that the Government have moved to acknowledge that we should—at the very least—safeguard people who are in the country at present. That is a positive move in the right direction.
However, I still have some doubts. It might have been better to consider a measure that did not include a grace period. For example, if we said that everyone who has been in the country for seven years on the day on which the Bill comes into force could keep their right of appeal, that might mean that appeals would be heard over a considerable period, although the number would inevitably gradually dwindle. However, if we do not take that course, I hope that my hon. Friend the Minister will consider a grace period of reasonable length in which people can be persuaded to come forward. If the period is too short, it might not serve the purpose that my hon. Friend wants it to serve.
§ Mr. Allan
In speaking to the new clause, I first welcome the right hon. Member for Maidstone and The Weald (Miss Widdecombe) to her new position. She is one of the Members of the House who inspired me to become involved in politics and to stand at the last election. Like many other hon. Members, I was able to replace a Conservative Member, thus helping the right hon. Lady to achieve her position on the Opposition Front Bench. I am pleased that that happened.
However, after that election in 1997, I did not expect the new Labour Government to introduce Bills which, in many ways, take us back to the position adopted by the previous Conservative Government in 1996. I did not expect to feel the same anger about measures on immigration and asylum under a Labour Government, whose Members stood on the kind of platform that they did in opposition, that I had felt in 1996. I was interested to hear the Minister say that his approach was no longer one of knee-jerk reaction. In 1988, when the Labour Opposition opposed similar measures—to take away the appeal rights of people who stayed in this country for less than seven years—I took that to be principled opposition rather than simply a knee-jerk reaction from the left. I am somewhat disappointed to hear it described in those terms.
I am also interested to hear that the Government no longer feel that they need the support of dodgy left-wing columnists in subversive papers—such as The Observer perhaps. I do not know what the Minister was referring to, but perhaps that is the sort of extremist publication that he has in mind when he talks about dodgy subversive columnists. I am glad that he can retain the support of Labour Members without having to kowtow to those pressures from extremist positions.
We have had constructive debates on this issue and many others in Committee. I do not want to destroy the career of the hon. Member for Hertsmere (Mr. Clappison), 276 but I should say that together we have been able to mount an effective opposition by asking the right questions, even though we approach the matter from different angles.
We opposed the provisions of clause 7 in Committee and we continue to be concerned, even though we are pleased that the Minister has made some concessions. Our opposition has paid off in that he has now tabled a new clause that gives a marginal right of appeal to some people who would have had that right removed by clause 7. We are also pleased with the commitment that the Minister made in Committee to ensure that the immigration rules explicitly refer to the sort of criteria that may be used before a decision on removal is made. The Minister made it clear that, even without a deportation appeal, those compassionate circumstances would be taken into account.
However, new clause 1 does not cover that other category of people—those who have breached their conditions. Clearly, people should not breach their conditions, but we believe that there is a difference between illegal entrants and those who have entered the country legitimately and have the legal right to be here but who have breached their conditions for one reason or another. Such breaches are not to be applauded, but the reasons for the breach may be understandable. However, clause 7 leaves such people in exactly the same position as illegal entrants, in that they will be removed and unable to exercise any right of appeal until afterwards, and new clause 1 does not change that.
Our other questions arising from new clause 1 relate to operational details. Recently, the Immigration and Nationality Directorate has not demonstrated that it is entirely capable of dealing with large rushes of applications, so we are concerned about how it will cope with the pressure resulting from a finite grace period. The hon. Member for Walthamstow (Mr. Gerrard) made a good suggestion—that it would be better to have a system whereby individuals who have been here seven years or more at the time when the legislation is implemented retain a right of appeal. That group would be finite—there is no suggestion that such a system would apply to persons other than those who were already in this country when the provision was introduced—and it might help to avoid an otherwise inevitable rush of applications toward the end of the grace period.
I hope that the Minister will think about those points. There is to be further consideration of the Bill in another place, and I am sure that their Lordships will want to consider this issue and many others. The Minister should recognise that our suggestions, if incorporated in the Bill, would enable the retention of a limited right of appeal, but without many of the administrative problems that new clause 1 would cause. I shall not continue to oppose the retention of a limited right of appeal tonight and the proposals before us give no opportunity to revisit the whole principle of clause 7. However, we shall continue to return to the issue of appeal rights for people who have either breached their immigration conditions or who have overstayed.
§ Fiona Mactaggart (Slough)
In a way, I hesitate to speak on the new clause, because it relates to an issue that I raised on Second Reading and have been pressing vigorously with the Minister and the Home Secretary ever since, to such an extent that the Home Secretary has taken to associating new clause 1 with my name, which I think 277 is deeply unfair. That is not because the new clause does not represent a concession—it does, and I welcome it—but because the nature of that concession is, to be frank, pretty paltry.
All the new clause does is defer the time at which the rights of people who have overstayed to appeal against a decision to deport them are curtailed. Before the election, the Labour party said, in terms, that it would sustain such rights; and when he was an Opposition spokesman, my right hon. Friend the current Prime Minister made the powerful statement that:It is a novel, bizarre and misguided principle of the legal system that if the exercise of legal rights is causing administrative inconvenience, the solution is to remove the right."—[Official Report, 2 November 1992; Vol. 213, c. 43.]However, we are planning to do precisely that. I am glad that, at least for some people who currently have a right that can work, there is to be a deferral before they can no longer exercise that right. The problem is that I am not confident that the new clause will work in practice. That is part of the problem with the Bill as a whole. Those of us who have been involved in immigration and asylum matters over many years are concerned about not just the Bill's principles but its administration. The recent administrative concessions that Ministers have introduced constitute the best changes made during consideration of the legislation.
I am concerned that the new clause will lead to fishing expeditions. What rights will people retain during the registration period? They will retain the right of appeal, which, as has already been pointed out, is ineffectual in most cases. It is potentially effective only for those people who have overstayed for more than seven years, and appeal statistics reveal that only 5 per cent. of appeals in this category succeed. So that is a tiny possibility. If we are to publicise extensively the fact that people will retain their right of appeal, it might lead to a fishing expedition. People will register because they will know that they retain their right of appeal, and then discover that that right is ineffectual in their case. So they will have done the work of immigration officers, who are tasked with finding and prosecuting overstayers.
I believe the proposal has serious defects, but that does not seem serious if we accept that overstayers are trying actively and deliberately to contravene immigration law. However, many of them are not doing that. A constituent, Mr. Singh—I do not identify him particularly by revealing his surname as it is common to many of my constituents—entered the United Kingdom in 1989 as a child of 12 when his father applied for asylum. I believe—although I have not investigated the application fully—that his father's asylum claim was not particularly well founded. Nevertheless, my constituent—who was a child at time—was part of that claim, which was refused and went to appeal. In the meantime, my constituent reached adulthood and married. His marriage application was rejected because he was an overstayer. Mr. Singh has no appeal on his substantive case, and he will never have one. That is the kind of person who might be affected by this measure.
Some 8,000 readers of The Express have sent letters and petitions to that newspaper concerning a young man who entered the United Kingdom as a child, whose parents stopped paying his school fees and who has been an overstayer in this country for a long time. His case has caught the imagination of its readers. He is a typical example of that kind of overstayer.
278 In view of the position that Labour adopted when rights of appeal were curtailed under the last Government, there is a strong case for following precedent. Ten years ago, Commonwealth citizens who entered Britain before the Immigration Act 1971 came into effect and who had lived here for five years were declared immune from deportation. In 1974, after the 1971 Act came into force, the then Prime Minister said that those people who would have qualified would be treated as though they continued to qualify. If we look at the history books and the statistics, we can see that the outcome was quite predictable: a fixed number of people who had arrived before the commencement of the Act and who retained their qualification right submitted applications. As one would expect, the number of applicants fell away five years after the Act's commencement.
In this case, the numbers would fall seven years after commencement because of the way in which the Home Office correctly exercises the rule regarding people who have been in this country for 14 years, recognising the compassionate circumstances that may exist in such cases.
The new clause takes a small step in the direction that I requested the Government to take on Second Reading, and it is accompanied by bigger steps in other parts of the Bill, but I ask the Minister to consider whether publicising, in the short-term, a right that is not significant achieves very much. The process will not be made faster; it will not be made firmer because the new clause affects, by definition, only people who are already here, and it will not be made fairer because that would be achieved only by the introduction of a proper right of appeal against Executive decisions.
I am glad that a small step has been taken, but I ask the Minister to consider whether a slightly larger change—made, perhaps, in the other place—might deliver the slogan about a firmer, faster and fairer immigration system on which we were elected.
§ Mr. Corbyn
I shall be brief because there are many more matters to discuss and the proceedings are subject to an allocation of time motion.
There is a strong human dimension to the new clause. My hon. Friend the Member for Walthamstow (Mr. Gerrard) alluded to that when he said that the new clause must contain substantial provisions for overstayers or they will simply not come forward. Those of us who have the honour of representing one of the large number of inner-urban constituencies know many people who have been overstayers for many years. They lead a twilight existence. They live in perpetual fear of getting a parking ticket, of being stopped in the street, of witnessing a crime and being brought forward as a witness and of going to any authority because they know that they will be asked for their passport, their papers will be searched for, the Home Office will be contacted and their whole life will be torn apart.
If overstayers have a settled relationship and children, that fear is transmitted to their children, who are afraid to come forward and get involved. That simply is not right. If overstayers are looking for work, they are often subject to the worst possible exploitation. They will be exploited in sweatshops, burger bars, kebab houses and other places where people can get a job for a short time with no 279 questions asked. They will be paid disgraceful wages, and if they are abused by the employer, they cannot do anything about that. They cannot go to the Health and Safety Executive to complain about safety, and they cannot complain about not receiving the minimum wage or about anything else.
We have to recognise that we will damage the fabric of our society unless we try to make sure that everybody is legally entitled to work and able to lead a normal existence.
Although I recognise that the Minister has moved in the direction requested by my hon. Friend the Member for Slough (Fiona Mactaggart), it is essential that overstayers have the fullest possible rights of appeal. Case law indicates that in applications that rely, ultimately, on compassionate grounds, those grounds often reflect family relationships and structures. That is fine for people who happen to be in a relationship and to have a family, but the procedure often militates against single people who cannot claim such a network of support. That is why I have asked the Minister if any guidance will be given on that.
I hope that the Minister will reconsider what has been said and, perhaps, use the opportunity of the Bill's passage through the Lords further to amend the Bill not only to allow full rights of appeal, but to recognise the needs of single people who do not fit into the categories of compassionate circumstances that he is probably more accustomed to dealing with.
§ Mr. Peter Bottomley
This has been a useful debate. Some of it may seem very technical to people outside the House. I am grateful to the Minister for acknowledging that my point about trying to make our debates comprehensible to people outside is serious. New clause 1 will not be the most important part of the Bill to them because, in time, it will die as those who qualify under it have their cases and, if necessary, their appeals processed.
Those who have a serious concern about the new clause, and who have tried to provide briefing material to the House—they will continue to provide such material to the other place in the weeks ahead—must be able to look through the marshalled new clauses and amendments, including the four-digit numbers on the pages of the amendment paper and clauses with numbers of up to three digits, and be able to work out what effect each will have. If they begin by reading the original Bill, that process will be difficult to follow. I am grateful to the Minister for acknowledging that the present clause number had changed. If that happens in future, it would be helpful if we could be told.
As the Minister acknowledged when he spoke about consultations, a range of groups has been useful to the Government and wishes the Government to go further. The Minister acknowledged in Committee that meetings with such groups could be useful. Some of those meetings made progress, as the outside groups wished. Some groups hope that further progress will be made not just today and tomorrow, as the Bill goes through its Report stage under a pretty strict timetable, but in another place. We can anticipate further changes when it comes back from the House of Lords in due course.
I have one particular point to make to the Minister. For most of the time in Committee, he did well. Occasionally, he may have been defending the indefensible, but he 280 usually kept his temper. He did not do that when my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) intervened at the beginning of the debate. The House will want to know whether that was preplanned, or whether it was his instant reaction to any kind of challenge to his remarks. I would like to think that it was preplanned and that it was the Minister's way of getting attention. Perhaps it was his bid to get into the Cabinet, but if it is repeated, we shall have to conclude that it is his reaction to being challenged.
We need to learn that in a democracy, challenge is normal. There may not have been much challenge to the Government on the matter in Committee, because it was only in the later stages that Labour Members began to participate more actively. They had originally listened rather quietly while arguments were advanced by the Opposition. I congratulate the hon. Member for Sheffield, Hallam (Mr. Allan) on his assiduity in Committee.
The points made in Committee matter a great deal. I pay tribute to the Minister's advisers, who try to keep the existing system running and to find ways of getting the new system to work better.
Part of the job of the Opposition is not only to argue for the changes that we believe should be made, but to allow Ministers to answer the arguments of outside groups about aspects that they believe the Government have not got right or could deal with better. I hope that all the representations that we have received over the past four or five days have been copied to Ministers. Some of those relate to the present new clause, but most refer to issues that will probably be discussed tomorrow.
Some of the groups had to spend as much time with refugees, migrants and overstayers as do Home Office and immigration service officials. The partnership between the voluntary sector and the public sector is important. We have heard Conservative, Liberal Democrat and Labour Members speaking of their experience, and some hon. Members have spoken very well this evening.
This is not a time for long speeches. Progress needs to be made. The limited rights for overstayers do matter. There is a point that is tangentially relevant to that. During the hiccups—to put it gently—of the immigration service over the past few months, some people became overstayers while their application for variation of their leave to remain was supposed to have been processed.
I have advised a constituent that if such people are refused variation of their leave to remain, and they abide by the time limit by which they must leave the country, and if they later apply to come back on a visitors visa of some kind, the fact that they overstayed because their original application, which was made in time, could not be processed will not be held against them. I do not ask the Minister for an assurance on that tonight, but I want him to know that that is the advice that I have given. if it was not people's fault that their application was not processed in time, that should not be held against them if they want to return to this country under normal arrangements.
§ Ms Abbott
I begin by thanking the Minister for listening to what was said in Committee and outside and making some move to meet our concerns through the new clause. However, in his opening remarks the Minister characterised people's response to immigration legislation as either knee-jerk leftism or knee-jerk rightism. I suggest 281 that one of the things that characterises people's response to immigration legislation is their personal and constituency experience.
I have never had much taste for the tone in which Ministers talk about economic migrants because my parents were economic migrants, although they were within the law. I come from a part of the world where, for at least three or four generations, people have used economic migration as a pressure valve to relieve poverty and deprivation, so I cannot buy into the tone that is sometimes adopted to people who travel thousands of miles to better their lives and those of their families, although one does not condone people doing that outside the law.
My constituency experience shapes my response to the new clause. For some of my colleagues, refugees and asylum seekers are transient figures who come through their constituencies for a few months and then are gone, but I represent a part of London where nearly everybody comes from somewhere else, be it Ireland, eastern Europe, Jamaica, Nigeria, Somalia or Iraq.
Outwardly, many people in my part of the world are pillars of the community, but technically they are overstayers. Many are wilful overstayers, but many others did not set out to subvert the Minister's legal system. They came here as children, as partners of men who became abusive and abandoned them, as students or as visitors. One cannot do as much immigration case work as I do and have any illusions about the saintliness of most people who come forward at surgeries, but the thread that is common to many of them is that they did not start out seeking to subvert the system. I would pray that in aid for them.
There is another common thread, certainly in many of the cases that I deal with. When Ministers talk about overstayers and economic migrants, they conjure up a world of triads, gangsterism and wicked, venal people whom all right-thinking people should condemn; but first, my children's school friends, party members and people I see in the supermarket did not start out seeking to subvert the system; and secondly, many of them are settled members of the community. I have dealt with pupils who have been shocked to find that some little boy whom they have known since nursery is facing deportation because—guess what?—his parents are overstayers.
I want to speak about what the new clause and its limitations will mean in practice in the context of my life and my constituency experience. As colleagues have said, the three-month period is not enough. Most immigrants—even legal immigrants—tend to keep their heads down. I remember previous deadlines for regularising people's situations, and when one was set by the Government of the day, I had to say firmly to my own mother—who was here perfectly legally, but on her Jamaican passport, to which she was very attached—that she should go and get a British passport because that was the best thing for her to do. Most immigrants—for all sorts of reasons and even if they are here legally—do not want to draw themselves to the attention of the authorities. How much worse are things for those who are here illegally?
Subsection (4) of the new clause says:The Secretary of State must publicise the effect of this section".Presumably, that refers to the gentlemen and ladies in the Immigration and Nationality Directorate, and we will come to its operations as we go through the Bill. 282 Some Members are slavish in congratulating the IND, and I am sure that many of its personnel are very nice people who go to church and are kind to animals, but the level of efficiency and the appalling state of the IND at present give me no confidence that it will publicise the effect of the subsection.
In effect, and as so often happens, these matters may come down to word of mouth. I do not think that three months is enough time for news of the subsection's effect to get round the Nigerian, Ghanaian, Iraqi and Somali communities in my constituency by word of mouth, or for their members to be persuaded to present themselves; and many people will miss out if the regularisation period is as brief as that suggested in the new clause.
I also think that there will be a problem towards the end of the three months when news of the subsection's effect finally gets round by word of mouth. There will be a big rush. How will the IND, which has boxes and boxes of unopened cases and misplaced files, deal with any sudden rush? We know what happened when the IND had to deal with previous rushes.
Some people have said that the new clause is a technical measure, but I know that, in the months and years to come, I will be dealing with some very sad cases as a consequence of it—cases involving people who, to all intents and purposes, are settled members of the community. Yes, technically they are outside the law, and yes, they are economic migrants; but have matters come to such a point that we, as a House, will condemn people who did not set out to subvert the law, and who are trying to play their part in the community?
It would be churlish not to welcome the extent to which the Government are meeting the need by tabling new clause 1, but I do not think that it will deal with circumstances in my constituency, and I hope that they will try to improve their proposals in another place.
§ 11 pm
§ Mr. Mike O'Brien
We have had a short but useful debate, in which hon. Members have been able to express a welcome of sorts for our proposals. Some reactions have been warmer than others, but we have listened to what has been said, and have responded with the new clause and the amendments grouped with it.
My hon. Friend the Member for Walthamstow (Mr. Gerrard) said that overstayers could use other avenues of appeal. I think that the hon. Member for Hertsmere (Mr. Clappison) alluded to that as well. If overstayers wish to raise a family issue, or another issue that might properly be raised on the basis of the European convention on human rights, they are entitled to use that appeal mechanism on family and other compassionate grounds, provided that those grounds come within the provisions of the ECHR. However, we are introducing new powers for adjudicators to deal robustly with representatives who might seek to abuse such a system.
My hon. Friend the Member for Slough (Fiona Mactaggart) mentioned the Daily Express articles. I shall not comment on the case in question because it is before the courts; but overstayers are breaching immigration controls, and that is against the law. The Government were elected on the basis of their promise to establish firm immigration controls, and that sometimes means removing people who have been here for some time. People must face up to that unpalatable fact. Sometimes 283 people will the ends, but not the means. It is important for us to convey the message that overstaying is breaching the law, and we must ensure that we enforce the law.
Our aim is to create a system that works. We want a system that considers the particular circumstances of individuals, and offers appeal rights where they are appropriate; but we do not feel that people who have no right to remain here should be able to do so, and drag out the process of their removal.
§ Ms Abbott
Does my hon. Friend accept that some people are overstayers owing to circumstances beyond their control, either because they came here as children or because they came here as partners of men who either turned out to have other wives or subsequently abused them? I see a lot of that in some communities.
§ Mr. O'Brien
My hon. Friend has written to me a number of times citing cases that she has taken to Ministers on compassionate grounds. We listen carefully, and, if there is a strong case, Ministers have discretion to make decisions on such grounds. That right will remain with them. However, lengthy legal procedures—and deportation procedures take a long time—enable people with no right to be here to drag things out, and that is unacceptable.
The hon. Member for Hertsmere asked me whether the criteria for the decisions would be the same as they are now. The answer is yes: there will be no relaxation of the criteria. As for how long the regularisation period will last, we envisage a period of about a year, but we shall consult various groups and listen to the debate as it progresses.
A number of hon. Members asked about publicity. I can tell my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) that we are committed to proper publicity. We aim to advertise in various ethnic minority media, including some of the international publications that are read by groups that may be overstaying in the country; but there are other ways of conveying our message through community groups.
My hon. Friend the Member for Walthamstow welcomed the changes, but sought more. I understand why he did so, but he was right to say that we had listened. I think that we have gone as far as we can, but we shall continue to listen, as far as we are able, during proceedings in another place.
The hon. Member for Sheffield, Hallam (Mr. Allan) sought more detail on the process. That detail is more properly given during consideration of the regulations that will, in due course, evolve from the Bill, but essentially, the idea is that there will be a period during which will have to apply. It will be properly advertised. A decision will be made under the current criteria on whether people should be allowed to remain. If the decision goes against them, they will be entitled to an appeal.
The appeal will occur in much the way that it does now, except, as the hon. Gentleman is no doubt aware, that the backlog of appeals is now quite low, so the decision on appeal should be able to be made fairly quickly. We intend to ensure that we keep that appeal backlog low, so that such decisions can be made rapidly.
284 My hon. Friend the Member for Slough was concerned about overstayers with families. One of my problems as a Minister arises when hon. Members are concerned about the families of people who are subject to deportation proceedings. Someone who is deported is prevented from re-entering the country for three years. Their wives and children may become very disturbed about the deportation. The wife and children, or the other spouse and children, may not need to leave the country. They therefore have a choice. Do they go with someone who may be out of the country for three years, or do they remain? That is a difficult choice. It often deters people who have a deportation order against them from going voluntarily.
What will happen with the removal process is that there will not be the three-year period, so people with—
§ Mr. O'Brien
Let me finish describing the position; then I will give way.
People who have been removed and have a right to re-enter the country because they are married to someone—they have a lawful right to be here—may be able to apply soon at the nearest embassy or high commission to re-enter lawfully and to ensure that their families are kept together. That is a more sensible approach. So my advice to Mr. Singh is that, if he is overstaying, he should obey the law. If he has good family reasons for wanting to remain in the UK—my hon. Friend mentioned that he was married—he should go back to his country and make an application properly, as other people do, at the high commission or wherever it is—presumably, it will be in New Delhi. If he has a legal right to do so, he will in due course be able to re-enter and to rejoin his family.
Of course, if Mr. Singh were removed under the deportation order procedure, he might be prevented from coming back for three years. However, if he has no legal right to be here, he will not be able to return.
§ Fiona Mactaggart
Does the Minister accept that one reason why people are reluctant to do exactly that is the fact that, in some parts of the world, there are long delays before people are even interviewed on such applications? Perhaps if he could tell my constituent that he would not face a six-month wait before the interview on his application for return, my constituent might find it more possible to go to a country that he has not visited since he was 12 to make a fresh application.
§ Mr. O'Brien
The delays are not that long. The maximum delays in places such as Islamabad are about six months, which I accept is a long delay for the family, particularly when children are young. There are ways in which, in particular cases, it is possible to expedite those interviews, but in most other countries there are not such lengthy delays.
My hon. Friend will know that we have been making substantial efforts to reduce the backlog of interviews in various countries. We will continue to do so. She will be aware of the way in which the Foreign Office and Home Office will be integrating operations on issuing visas. I hope that the greater co-operation between the Home Office and Foreign Office will enable the sort of decisions that she wants made to be made much more quickly. 285 My hon. Friend the Member for Islington, North (Mr. Corbyn) described the life of some overstayers—working in sweatshops and living in fear. It must surely be far better to return properly, if they have a right to do so by reason of marriage, to regularise their stay and behave in a lawful way, as most immigrants do.
My hon. Friend the Member for Hackney, North and Stoke Newington referred to her parents as economic migrants. My parents were economic migrants, too, but they came here lawfully and obeyed the law. I trust that my hon. Friend's parents obeyed the law. That is what is important. Our job as lawmakers is to make good laws and then to ensure that they are enforced. Some people do not like enforcing laws because they may be unpalatable, but we have a responsibility as lawmakers to do so.
The hon. Member for Worthing, West (Mr. Bottomley) referred to the consultation with various interest groups. They have been enormously helpful to us and have prevented us from making mistakes that we might otherwise have made. We are entirely responsible for the decisions and many of the interest groups will disagree with some of them. It is important to keep the door open to dialogue because it helps us not to make mistakes and it helps them to understand where we are coming from and why we are making decisions. I have found the process of opening up the Home Office valuable and I hope that the interest groups have, too. We will seek to continue to do that.
The hon. Gentleman seemed to have some misunderstanding about giving advice. If someone applies in time, under the variation of leave order, the leave is extended until 28 days after the date of the decision. So people in that position are not overstayers. They cannot overstay, whether consideration of their application takes two days, two weeks, two months or even two years. They are not in the precarious position that he feared, so he can reassure people on that point.
The hon. Member for Hertsmere referred to the guillotine motion and complained that, if we wanted to listen, we would not be guillotining debate. We have had hours of debate in Committee, in the House, with interest groups and among Members of Parliament. The hon. Gentleman seemed almost to reduce the hours of consideration in Committee to an irrelevance, particularly the Special Standing Committee procedure in which we were engaged. This must be one of the most consulted-on Bills ever.
We offered two days of debate, but yesterday Conservative Members decided to muck about like a bunch of schoolboys, filibustering to disrupt the people's business. If Conservative Members have points worth making on this Bill that are so important, they should have curtailed the pranksters' antics yesterday. They are the architects of their own misfortune. Let us get on to talk about asylum and immigration and stop rehearsing the debates of earlier this afternoon.
§ Mr. Peter Bottomley
On a point of order, Mr. Deputy Speaker. Can the Minister explain what is meant by the people's business that hon. Members are not supposed to discuss? Is that from central casting—or did the Minister make it up?
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.