Immigration Rules (Hansard, 12 June 2003)

§ Mr. Siôn Simon (Birmingham, Erdington)

I am grateful for the opportunity to have an Adjournment debate on a matter in which my interest was first stimulated when some constituents relatively recently began to express concern that it seemed to be impossible to obtain anything other than printed copies of changes to the immigration rules.

It is widely accepted that the internet is the future, and indeed the present. There have been many statements from the Government over the years about the importance of citizens being able to interact with the Government online, and much progress has been made. Acts of Parliament and most statutory instruments are already available on the web, but that does not mean that all legislation is readily available. In particular, until three days ago, changes to the immigration rules were available only in paper form from The Stationery Office.

Surely of all Government information, that which is likely to be of most interest to many people abroad should be available through the medium that is global, virtual and free. That may not sound like a big issue, but if someone is denied knowledge of legal changes affecting his immigration case because he cannot get the documents, it certainly is. The immigration and nationality directorate has a website that is reasonably comprehensive.

I was pleased to learn from a constituent earlier this week that what would have been one of my main requests to the Minister has already been met—as I said, just three days ago. It is now the case that any changes to the immigration rules are shown separately, as well as being incorporated in the consolidated version of the rules that was previously available. Until that extra facility was added earlier this week, anyone wishing to spot the changes would have had a difficult, if not almost impossible, task. I congratulate the Minister on that useful and important new facility.

There are still one or two other points that I would like to raise. Unless the Minister is aware of any later change not yet mentioned on the IND website, it is correct to say that the latest changes to the immigration rules are those that took place on 30 May. That is the first set of changes to be separately documented on the website, but it was not added until 9 June, 10 days after it took effect. As those changes to the immigration rules do not appear to have been accompanied by any press release—certainly, none is mentioned on the website—it follows that most people will have been ignorant of them for 10 days before they were made available on the website.

Of course, those changes were the first to be separately available. On the same date, the consolidated version of the rules was also updated. I wonder whether the delay in making available the new rules, which were effective from 30 May, occurred because work on the consolidated version was not finished. If that was the case, I urge the Minister to ensure in respect of any future changes that the changed document is made 920 available without delay and that it is noted at the top of the consolidated document that the new changes, which are effective from a stated date, have yet to be incorporated in the consolidated version. In that way, it will be possible for any interested parties to work out for themselves the effect of any changes. I submit to her that it is far better than allowing people to be in the dark simply to put the information on the web so that they can see how the law has changed and the ways in which it might affect them.

While I warmly welcome the publication of the documents on the IND website, I wonder whether it will be possible to go further. The Minister may well have a technical explanation of why it is not possible to do so. I am by no means expert in these matters, as no doubt she and you, Mr. Deputy Speaker, are, but I wonder why the immigration rules and any changes to them are not published as statutory instruments. That is the usual method that the Government use to introduce secondary legislation and I cannot think of any logical reason why the immigration rules and changes to them are treated so differently. I look forward to hearing her remarks about that.

I have mentioned the changes to the rules that took effect on 30 May. An examination of that changed document shows that there have been no fewer than seven sets of changes in the past 12 months: on 27 August, 7 November and 26 November 2002, and on 8 January, 10 February, 31 March and 30 May 2003. An examination of press releases issued by Ministers appears to show that only four of those changes merited a press release. The other three sets of changes do not appear to have merited a press release of any kind. I cannot help but wonder if it is right for changes to be made and a press release not to be issued in explanation. Does the issue relate to the point that I made about statutory instruments, which tend to be published with details of the new legislation followed by an explanatory note? Immigration rules do not currently have the benefit of such explanations.

While the IND is to be commended for many aspects of its website, and especially the consolidated immigration rules, one aspect is now clearly out of date—the "How we apply the rules" section. For example, that section still refers to spouse visas as being issued for a 12-month period, whereas since April, they have been issued for 24 months. I note that the website was updated today, which is commendable, but that period is still erroneously listed as 12 months rather than 24 months. I ask the Minister to ensure that the website is updated not only regularly, but properly.

The major set of changes in the past 12 months appears to be those that were published on 31 March this year and took effect on 1 April. There were seven pages of detailed changes and a press release was duly issued at the same time. It is three or four pages long and was issued in the name of the Home Secretary. The changes deal with all sorts of matters, including tightening up on switchers—those who come to the UK in one visa capacity and then want to change to a different category. They also deal with the change in the spouse visa period that I have mentioned.

921 The press release said nothing about switchers. On spouse visas, it merely said: The changes will also tighten up the rules on marriage to prevent people getting involved in sham marriages as a way of getting into, or staying in, the UK. That is hardly a lot of detail and does not specifically mention two years at all. In other words, the press release gives minimal detail about the changes. That is to be expected, as it is in the nature of a press release, but it is also why we could do with some more detailed and up-to-date explanation on the website.

It was not until the website was updated on 10 April, nine days after the legislation took effect, that those not in possession of a written copy of the statement of changes to immigration rules could read about the detailed changes that had already passed into law. Those seven pages of detailed change included some very important ones. Following the White Paper, "Secure Borders, Safe Haven", which was issued in February 2002, many people wanted to know which of its proposals would make it into the immigration rules and in what form. The fact that the wording of the detailed changes was not available in any form on the internet until after the changes had taken effect bolsters the problem that I am highlighting. I urge the Minister to speed up access to any future changes and to consider whether it would be possible for such documents to be published as statutory instruments, as well as on the IND website.

As regards the changes that took effect on 1 April, the Minister may recollect that I asked two written questions about the matter. The first asked whether, following the recent changes made to paragraph 284 of the Immigration Rules, he will take steps to make it clear that the holder of a fiancé(e) visa of six months' duration can apply for their spouse visa in the UK. The Minister replied: It was never intended that the "no-switching provision"—prohibiting those given leave to enter for six months or less from switching into marriage—would include those given leave to enter as fiancés. This will be made absolutely clear in the next rules change. I was happy to get that answer, but I point out that when the next rule change was made on 30 May, it did not incorporate any change to paragraph 284. I therefore ask the Minister for an assurance that the issue remains on her to-do list.

My second question asked when, following the recent changes made to paragraph 287 of the Immigration Rules, the current holder of a 12 month duration spouse visa issued in March or earlier can apply for their Indefinite Leave to Remain visa; and whether such a person may apply for indefinite leave to remain near the end of their current 12 month visa. The Minister kindly replied: The recent increase in the probationary period on marriage to two years will not affect applications to remain on the basis of marriage made before 1 April. The probationary period in these cases will remain one year and applications for settlement can be made no more than one month in advance of the end of the probationary period."— [Official Report, 15 May 2003; Vol. 405, c. 433W.] 922 Again, I welcomed that answer, but it raises a more profound point. Anyone reading the immigration rules would undoubtedly conclude that the Minister's answer, although eminently sensible, is not actually what the rules say. That is, the changes introduced with effect from 1 April did not incorporate any transitional provisions to make the situation clear. Will the Minister consider whether it might be sensible to incorporate transitional provisions in the immigration rules where a profound change is being made, such as the duration of spouse visas moving from one year to two years?

According to the changes introduced with effect from 30 May this year, the current rules were laid before Parliament on 23 May 1994. They have since been amended no fewer than 25 times. I suggest to the Minister that it may be time for the 1994 rules and those 25 sets of changes to be replaced by one new consolidated set of rules. That would make it easier for everyone, including the IND, to follow them.

I am conscious that these matters are not exactly sexy, but they are no less important for that. I am very grateful to the Minister and the House for their time, and for the positive work that the Minister has already done and the positive changes that she has already made. I look forward to hearing her comments on what further progress she plans to make.

§ The Minister for Citizenship and Immigration (Beverley Hughes)

I welcome the opportunity to respond on behalf of the Government, and I am grateful to my hon. Friend the Member for Birmingham, Erdington (Mr. Simon) for raising such important issues. He demonstrates a commendable and remarkable depth of knowledge of a detailed and technical subject. He has given credit where it is due and identified some important aspects, to which we can make improvements.

Immigration policy is high on the public agenda, and my hon. Friend is right that immigration rules play a vital part in setting out and interpreting the Government's policy on that. Too often, the media concentrate solely on the abuse of the asylum process and the way in which we should deal with economic migrants who come to the United Kingdom and claim asylum. However, as my hon. Friend made clear, immigration policy goes much wider than that.

Many thousands of people come to this country each year for entirely legitimate reasons—and often support our economy—to work, study, join families or marry and settle with their spouse. Patterns of migration are constantly changing and we need to ensure that our immigration rules keep up with them. We must also ensure that changes are made to prevent new avenues of abuse and that those who are given leave to remain in this country have a valid reason for staying.

As hon. Members may know, the immigration rules constitute a statement of policies that the Secretary of State is obliged to produce from time to time under section 3 of the Immigration Act 1971. The statutory instrument process that my hon. Friend mentioned is 923 not the process in law for making changes to the immigration rules. I shall explain the reasons for that. The rules set out the basic criteria for the admission and stay of persons subject to immigration control. Changes to the rules can take effect on the day when they are made or on a specified date in future, and, of course, there is a mechanism whereby Parliament can challenge such changes. If the House is sitting, hon. Members are notified of changes in the form of a documented statement of changes. If the House is not sitting, notification occurs via a Command Paper. Changes are deposited with the Votes and Proceedings desk in the Journal Office in this House and in the Printed Paper Office in another place. They are also listed on the Order Paper for each House.

The previous two sets of changes came into effect this year on 1 April and 30 May respectively. The first set covered issues such as adoption, the highly skilled migrant programme, the innovator scheme, the long residence concession, marriage and employment matters. The second covered sector-based employment schemes and the Hague convention.

When possible, we publish in advance any proposed changes to the immigration rules and consult interested parties. The decision on whether changes should be accompanied by a press notice depends on the extent of the change and on whether it has previously been announced. For example, my right hon. Friend the Chancellor announced the introduction of the sector-based scheme in the rule change of 30 May in his Budget report on 9 April.

On the 1 April changes, we first published details of the proposals to increase the probationary period on marriage to two years in the White Paper, "Secure Borders, Safe Haven", to which my hon. Friend referred. In it, we explained our reasons for proposing the change: it would help to prevent sham marriages. It also gave us the opportunity to take on board comments from the public and from immigration organisations. The White Paper also gave information about the highly skilled migrant programme.

In some instances, we respond to immediate concerns and, for good reasons, it is necessary to make a change quickly without prior publication or consultation. One example is the recent increase in the sponsorship age on marriage to 18 years. My hon. Friend the Member for Keighley (Mrs. Cryer) wrote to us expressing anxiety that vulnerable 16 and 17-year-olds were being forced into marriage against their wishes with spouses abroad. That is different from arranged marriages in which both parties consent to the marriage. It was said that young people were being duped by their parents into going abroad, held prisoner and put under severe pressure to marry someone whom their parents selected. We did not feel that we could allow that to continue, and considered that urgent action was needed. The opportunity arose to include the change in the immigration rules quickly and it was introduced without public consultation. There are other circumstances in which changes are introduced without prior public consultation, when there is a deliberate decision not to make an announcement in 924 advance. This is when a measure is being brought in to preserve or strengthen immigration control, and it is important to have that facility.

The Government need the flexibility to act in this area without delay, when that is necessary in the public interest. The current format of the immigration rules provides that flexibility in the most appropriate way. That flexibility would be diminished to an unacceptable level if the immigration rules had to be produced as a statutory instrument. As the House will know, as a general rule, statutory instruments subject to negative resolution must be laid at least 21 days before they come into force. Such a delay could have serious implications when we had to introduce a new visa regime, for example. As I have said, there are mechanisms to ensure that the Government are accountable to Parliament in respect of changes made to the immigration rules.

My hon. Friend raised the extremely important point about the accessibility of the public to changes in the rules. We are committed to making any changes to the rules as accessible to the public as possible, in line with our general commitment to openness and to modernising public services, including through the best use of information technology. In addition, we aim to incorporate any changes into the consolidated text of the immigration rules available on the immigration and nationality directorate website as soon as is practicable after they have been made. This reflects the commitment that we gave in the Home Office publication scheme, produced under section 19 of the Freedom of Information Act 2000, to make information about current immigration, asylum and nationality legislation available on our website.

A consolidated version of the immigration rules reflecting the most up-to-date text is already available on the website. The text can be found in the "Law and Policy" section alongside information about other immigration legislation and associated staff guidance. I want to continue to look at ways to improve the presentation and accessibility of material on the site, and we will aim to improve the timeliness of updates to the site. My hon. Friend made a point about that, which I take very well.

As my hon. Friend mentioned, we have now changed our practice to ensure that any further changes to the immigration rules are also placed in the "Law and Policy" section as separate documents. During discussions with officials today, as a result of my hon. Friend being granted this debate, I also asked them whether we could highlight the changes in the consolidated text, at least for a period of time, so that people reading the text can immediately see what recent changes there have been. That way, it will be clearer to hon. Members and their constituents what changes have been made. We will also work to improve our performance in updating the published guidance in the "How we apply the rules" section. In response to another point made by my hon. Friend, we aim formally to consolidate the whole of the rules later this year so that up-to-date copies can be obtained from the Stationery Office. This will also help everyone to see and understand all the changes made in recent years, and how this updates and strengthens the rules.

On my hon. Friend's point about his recent written questions, I can assure him that we will amend the rules 925 at some future point to make explicit the position of fiancées in relation to switching. As I have made clear, the no-switching provision does not apply to fiancées. There is no need to introduce transitional provisions to the immigration rules. Changes to the rules cannot apply retrospectively, and the date from which they take effect is always shown on the statement of changes.

926 I hope that I have addressed my hon. Friend's concerns in my reply. I also hope that his raising this important, although technical, issue will be of assistance to other people who are interested in this very important subject.