Statement of Changes in Immigration Rules (Hansard, 23 October 1985)

HL Deb 23 October 1985 vol 467 cc1169-88 1169

§ 7.8 p.m.

§ Lord Avebury rose to move, That the Statement of Changes in Immigration Rules, laid before the House on 15th July, be disapproved.

§ The noble Lord said: My Lords, it is never entirely popular to say, "I told you so", but there are occasions on which it is necessary to do that if the errors which one criticised originally are to be prevented from recurring. My noble friend Lord Harris of Greenwich pointed out on 14th June, when the decision of the European Court which gave rise to the present rules was debated in your Lordships' House, that the United Kingdom had been judged to have breached the convention on no less than 12 occasions.

§ In the case of the immigration rules introduced in February 1980, following the White Paper of the previous November, I had ventured to suggest in your Lordships' House on 11th December 1979 that cases would be brought against the Government and that the complainants were going to be upheld. Admittedly I believed that the rules were discriminatory on grounds of both sex and race, while in the event the court found the Government guilty only on the former. However, I think I ought to point out that it was a narrow thing, with some members of the commission finding against us on both counts. In deciding what to do now the Government ought surely to listen more carefully to advice instead of saying, as they contented themselves with saying six years ago, that if charges were brought they had a good answer to them, when, as it turned out, they had no answer whatsoever.

§ The number of people entering Britain for settlement has in fact dwindled over the past five years—this was pointed out by the Minister in the debate in another place—because primary settlement has ceased and the dependants of the primary settlers are in a queue of finite and steadily decreasing length. Lest the Minister should trot out the usual Tory allegation that we on these Benches are in favour of unrestricted immigration, let me make it quite clear that we are not in favour of admitting anybody for work as such. What we do believe in, however, is the unity of the family, and we say that a person who has been allowed to settle here should also be entitled to bring in his or her spouse and children, as citizens of the EC already can do.

§ The Government, on the other hand, have created what has been described as an equality of misery in these rules by decreasing the rights of men to bring in their wives and creating additional barriers to the admission of spouses of both sexes. They have broken solemn undertakings given by Ministers; they have violated the principle of family unity; they have imposed a means test on family life; and they have continued to breach the convention.

§ The new rules provide that women settled here may be joined by a husband or fiance from abroad if certain 1170 tough conditions are satisfied. But the husbands and fiances of British women citizens will also have to satisfy these more stringent tests. Women coming to Britain for marriage will need to have entry certificates, which was never the case in the past. They will have to undergo the same tests as men have formerly, and in addition they are going to have to prove that they will be supported and accommodated for the rest of their lives without recourse to public funds. Even the wives of British citizens will have to go through the ordeal of satisfying an entry certificate officer that they can support themselves for life and that they are not getting married just to gain entry to Britain. Common law wives, who were formerly allowed to come here to join their common law spouses, are now to be excluded altogether.

§ The new public funds requirements—they have been dealt with in detail in another place and so perhaps we need not go into them here—are reinforced by a provision that a relative or friend may be asked to give an undertaking in writing to be responsible for the maintenance and accommodation of the person seeking entry, and the Department of Health and Social Security will be empowered to recover from the relative or friend any supplementary benefit paid to the entrant.

§ I must point out that the definition of public funds extends far wider than supplementary benefit. It includes housing benefit, family income supplement and housing under the Housing (Homeless Persons) Act. Thus it will not be enough for the couple to show that one of them has a job in one of the many areas of the National Health Service, or catering, where the wages are so low that a small family would be eligible for benefit. The couple will have to have at least one of its members in a professional job, and an employer could hardly be expected to offer such a job to an applicant from overseas without interview. 1 should also point out that in many public corporations employers will not take on workers who are here on a conditional basis. So because everybody has to be under the 12-months' probation rule the spouses will be excluded from many of the occupations for which they might be qualified, such as the Post Office or London Transport.

§ In the 1983 rules the burden of proof was laid on the applicant to show that the couple had met, that they intended to live together, and that the primary purpose of the marriage was not to obtain entry to this country. In our materialistic society it may be hard for anybody to believe that someone from a poor third world country is not motivated largely by economic considerations when he seeks to come to live here with a British woman, and the requirement that the couple must have met betrays another of our western prejudices against arranged marriages.

§ The primary purpose rule accounted for almost 90 per cent, of refusals in the last full year for which statistics are available, and the objective of much of the questioning by entry certificate officers was to establish that an applicant knew what the wage rates were in Britain, and hence that he must have been influenced by the fact that he could earn 25 times as much in Britain as in India or Bangladesh. From now 1171 on, he is going to be caught on "Brittan's Fork": if he has no job to come to, or only a badly-paid one, he fails the support test, while if he has a well-paid job to come to he fails on the primary purpose rule. Nobody except the rich, who will be mainly white, are likely to gain admission as spouses in future. There is in these rules a means test in reverse on family life.

§ As to the undertakings that may be required of third parties, we need to know much more about how this provision is to operate. Would undertakings be demanded of the parents-in-law of the spouse who is entering, and what sanctions are to be applied when the victims refuse to sign? If an applicant meets all the requirements of the rules, but the entry certificate officer is not satisfied that he can support himself and his family, could leave to enter be made conditional on some other person entering into sureties? If a man asked to come here to join his wife in this country, could the application be granted only on the condition that his wife's parents would sign an undertaking such as is provided for in these rules?

§ How would the Government recover from the guarantors benefits other than supplementary benefit, because that is the only one specifically mentioned in the rules? Is it simply a moral undertaking into which someone enters, or are there any legal means by which those undertakings can be enforced? If a person is given indefinite leave to remain, do the undertakings remain in force for ever? Is someone who signs that guarantee liable to have his goods distrained or action taken against him through the courts if, 20 years later, one of the couple falls on hard times and has to claim supplementary benefit? To carry it even further, could these guarantees be enforced against executors when the person who signs the undertaking dies and later on one of the couple claims supplementary benefit?

§ Is it really the purpose of the Government to make it dangerous for anyone entering as a spouse ever to claim benefits of any kind either for himself or herself or for his or her children? Is it seriously the purpose of the Government to say that if a person comes here and has satisifed the authorities that he is capable of supporting himself and his family, but during the first 12 months of his stay in the United Kingdom he becomes redundant or is evicted from his house and therefore needs to claim unemployment benefit or to depend on the services of the local authority for rehousing, he automatically forefeits his entitlement to remain in the United Kingdom?

§ The treatment of children under the new rules was commented upon adversely in another place. Any child accompanying the spouse who enters Britain is given one year's leave, the same as the parent. The Minister said that if the marriage breaks down it is sensible that the incoming parent and child should return together. Does that mean that the concession announced by my right honourable friend the former Home Secretary on 28th July 1975, that children under 12 would normally be allowed to join a single parent here without proof of sole responsibility provided there is adequate support and accommodation, has been revoked without any public announcement? If the Minister says the children will automatically be sent back to the parents, that means that children under 12 who might otherwise have 1172 wanted or were entitled to remain with the single parent in this country will not be allowed to do so.

§ I must also point out to the House that normally it is a matter for a court to decide the best solution for children when the parents separate, but in these cases the Minister sets himself up above the law. Technically the rules also make a child ineligible if he becomes 18 or marries during the 12-months' probationary period. The Minister says they will not expel the 18-year-olds, but woe betide any child who dares to marry before the year is out. Nothing was said about that matter in another place.

§ One further important matter was raised in another place but not dealt with by the Minister there, and perhaps we may hear something on it now. A provision has been slipped into these rules which has nothing to do with the judgment of the European Court; that is, the reversal of the judgment of the House of Lords in the case of Khawaja and Khera, where their Lordships condemned the attempt by the Government to impose a duty of "positive candour" on immigrants.

§ The proposition condemned by their Lordships was that an immigrant could be deprived of his leave to enter, already granted to him, if it could be shown that he had failed to disclose material facts, even if he was not asked about them at the port of entry or by the entry certification officer and had no idea that they might be relevant. This nasty little rule, which is the kind of thing one might expect to find in the penal code of the Soviet Union, perhaps, or of Paraguay, should be debated separately instead of being surreptitiously brought in here under cover of completely different matters. The Government's tactics are as repugnant as the rule itself, and although we may not be able to do anything about it this evening we shall make sure that what is being done here is widely understood by those who are concerned to maintain genuine parliamentary authority and the rule of law.

§ I come now to the rights of persons already settled here before the 1971 Act came into force. Every Home Secretary from Mr. Reginald Maudling onwards, including Mr. Leon Brittan, stressed the principle that immigrants who had arrived before 1973 had none of their existing rights taken away or impaired. Now those undertakings are to be dishonoured, and the Minister pretends that the Act was "transitional in character and effect". A child who arrived here with parents in 1972 might be married as late as some time in the 21st century, an event which could not be regarded as transitional except in geological or cosmological terms. He would have an absolute right to bring a wife from overseas to join him in the United Kingdom under the 1971 Act, and this is now to be taken away.

§ I understand the Government's dilemma, since the alternative would be to confer on those women settled here before 1st January 1973 an absolute right to bring in husbands from overseas, who would then be in a preferable position to those who arrived after that date. The solution adopted by the Government was to declare an intention to remove the sexually discriminatory effect of Section 1 (5) in order to comply with the court's judgment. Presumably it means that the 1173 tests imposed on post-1973 settlers will be applied also to those who came here before that time, in exactly the same terms as those found in these rules. That is supposition, but if such is the intention of the Government it ought to have been set out in the form of a White Paper, so that it could have been discussed when these rules were debated in another place.

§ Meanwhile, that provision is not the only one that still embodies sexual discrimination. Male work permit-holders are allowed to bring in their wives, as are male students, but female work permit-holders and students may not bring in their husbands. As your Lordships may know, a case dealing with this matter has already been brought before the European human rights commission, and has been found admissible there.

§ Finally, the Government have resolutely declined to face up to the judgment of the court that no effective remedy was provided to complaints against the immigration rules, as required by Article 13 of the convention. The Minister contented himself with the observation in another place that the case of Silver,

§ "seemed to suggest that there was no automatic and continuing breach of Article 13 if a member state did not incorporate the convention".

§ Obviously it must be left to the discretion of member states as to exactly how they comply with Article 13, and there could be effective remedies by means other than incorporation of the convention in the domestic law. The point is that as matters stand a complainant from this country has to go to Strasbourg, where it takes six years and many tens of thousands of pounds to assert his right. That is not good enough, and it is unfortunate that the heroic efforts of my noble friend Lord Wade over many years to incorporate the convention in our domestic law were not successful.

§ On 27th August the Foreign and Commonwealth Office announced new arrangements for queues in the Indian subcontinent. Applicants are to be divided into four classes, with corresponding degrees of priority. Fiancées, who could enter without notice until then, may have to wait for a year before even being interviewed in Pakistan. The addition of fiancées to the queue means also that 17 per cent. more people will have to be interviewed, while the new provisions on maintenance and accommodation will make the decision-making process even slower. The new procedures were introduced without any prior consultation, either with the communities from the subcontinent in Britain, the agencies responsible for helping people with immigration problems—such as the JCWI and the UKIAS—or the diplomatic representatives of the countries from which such people may come.

§ It is a depressing feeling to come here and argue a case knowing that whatever its objective merits there is little hope of its being accepted—though not an unfamiliar one for those of us who deal with the Home Office. It gives me no pleasure to see my own country in the dock at Strasbourg, but if it were not for the restraints of the convention the situation of minorities in Britain would undoubtedly be far worse than it is. I am under no illusion that the Government will agree to withdraw these particular rules as a result of this evening's proceedings, or of the considerations of morality and family unity which ought to be of 1174 paramount importance in dealing with the relationships between spouses and their children. I urge them, however, not to allow our reputation in Europe to sink any lower than it is already, but to review their immigration policies carefully so that further cases will not lie against us. I beg to move.

§ Moved, That the Statement of Changes in Immigration Rules, laid before the House on 15th July, be disapproved.—(Lord Avebury.)

§ 7.28 p.m.

§ Lord Renton
My Lords, I am sure that the House should be grateful to the noble Lord, Lord Avebury, for giving us an opportunity to discuss these changes in the immigration rules. They are very important, and there is no doubt that they give rise to individual cases in which difficulties occur. May I say that having years ago been responsible for a number of years for the administration of immigration control, I learned that hard cases make bad law but that they are nevertheless inevitable. We should try to minimise personal hardships as much as we can, but we must get the principles right.
I should first like to stress that I was relieved to hear the noble Lord, Lord Avebury, say that he and his party agree on the need for immigration control. He made the very important point that, especially, we should not normally issue more work permits I think that many immigrants in this country would agree with that view of the matter.
There are three main reasons why, in my opinion, the Government have a duty to control the flow of immigration. This is the background to our discussion, and I shall come to the more specific matters later. The reasons are these. England, where most immigrants settle rather than in other parts of the United Kingdom, taken as a separate territory, is already one of the six most densely populated territories in the world if we exclude the small island and city states. The other countries comparable with us are lapan, Bangladesh, Belgium, Holland and West Germany.
The second reason is that we have 3 million unemployed, and other acute social problems. The third reason—and it is one which we should not ignore—is that many immigrants when they come here tend to go to those very areas which already have the most difficult social problems. Naturally they go there in order to be with other people of the same kind as themselves who have immigrated previously, or with their descendants.
The inflow of immigrants continues in fairly large numbers each year. The statistics are most interesting to study in some detail, but I will be very selective and quite brief. If we take the 10 years from 1975 to 1984—that is very nearly the period post-1973 to which the noble Lord, Lord Avebury, referred—661,540 people were accepted for settlement in this country from all parts of the world: the old and new Commonwealth, foreign, and so on. But let us get it in proportion. The average is 66,000 each year over the 10 years, but the figures have been steadily falling. In 1984, the last year for which we have complete figures, the total was nearly 5 1.000. Nearly half of those were from the new Commonwealth and Pakistan.
1175 A very interesting factor in these figures, which I believe is relevant to what the noble Lord, Lord Avebury, said about spouses, is that we find year after year, for many years, many more women than men have come here and have been accepted for settlement; indeed, far more women than children. If we take the new Commonwealth and Pakistan, we find that in 1984 the total number admitted for settlement, or on removal of time limit, which comes to the same thing, was 24,800, of whom only 5,740 were men but 12,020 were women. That was nothing new. That sort of pattern goes back through the past 10 years. Only 7,040 were children. I think this could be a relevant factor. We cannot continue to absorb the numbers I have mentioned and the Government are, in my opinion, justified in legislating in such a way as to ensure that the matter is kept in reasonable control, as the noble Lord, Lord Avebury, concedes.
I think that family unity has been achieved, bearing in mind the figures that I gave of settlement last year from the new Commonwealth and Pakistan, as it has in previous years, too. After all, there has been plenty of time since 1973 for family unity to be achieved. As to the admission of spouses, following the ruling of the European Court, I do not agree with the noble Lord, Lord Avebury, and I support the Government in their decision which, in my opinion, is fully justified. First, I think the Government are justified in treating men and women equally. That is what, for better or for worse—and I know some people have doubts about it—we have been trying to do throughout the whole of our law and our society.
Secondly, I think the Government are absolutely right—as I have understood it, having lived with the subject for so many years since I had to handle it with the late Lord Butler of Saffron Waiden—in ensuring that marriage is not primarily used as a device for entering the United Kingdom. It used to be very much so, goodness knows!
Thirdly, I am sure that the Government are right in insisting that couples admitted should be able to accommodate themselves, or have accommodation guaranteed for them, and maintain themselves without recourse to public funds. The working people and the taxpayers of this country have a right to expect that. Therefore, I really feel that the Government have made the right decision and no doubt my noble friend Lord Glenarthur, when replying to the debate, will give good reasons for the decision.
There is just one other point that I should like to make. There are other decisions of the Government reflected in this Statement of Changes in Immigration Rules dated last July. However, it is very difficult to ascertain them, because in order to do so one needs to have in one's hand the principal rules made in February 1983; two lots of rules containing fairly minor changes in March and May of this year; and now these rules which we are considering this evening and which contain 32 paragraphs of changes and cover seven-and-a-half pages.
Many ordinary people—as well as lawyers, people in libraries, and so on, who can use scissors and paste to get things right—need to study these rules. I must confess, in case any of your Lordships have been 1176 deprived, that I have in my hand the only copy of the principal rules that was available this evening in the Printed Paper Office. Of course, I have had to undertake to hand it back when the debate is over. That is the sort of situation in which on this occasion one finds oneself. Therefore, may I ask my noble friend Lord Glenarthur to advise the House how soon the rules will be consolidated? It should not be a difficult or lengthy process to do so because, wisely, the changes have nearly all been expressed in the form of textual amendment of the principal rules. An answer on that would be very helpful.

§ 7.38 p.m.

The Lord Bishop of Southwark
My Lords the noble Lord, Lord Avebury, has given us a very clear and full explanation of the numerous difficulties which some people are now facing as a result of the rules made under Section 3(2) of the 1971 Immigration Act and he has strongly criticised some of the procedures involved. The noble Lord, Lord Renton, speaking from very long and full experience, has rightly given us the overall background—which is relevant and I fully take that point—but acknowledged that there are some difficulties for specific people and that we need to do more to minimise these. It is on that aspect in particular that I wish to speak for a few moments tonight.
May I try to illustrate these problems, drawing particularly on the experience of the Afro-Asian Advisory Service which, although based at Cambridge House in the Camberwell Road and catering, as your Lordships would expect, mainly for London clients, nevertheless sometimes has inquiries from all over the country and from time to time even the Indian subcontinent. The shoe pinches most sharply because of this so-called "primary purpose" rule in paragraphs 41(a) and 46(a) and especially, of course, in regard to the so-called "arranged marriages" which are still normative for many in an Asian cultural pattern of family life.
We are not talking about large numbers. An estimate puts the figure at about 3,000 applicants a year who fall into this specific group. Yet, contrary to the normal practices of British law, people are put in the position of having to prove that the primary purpose of their marrige is not to gain access to this country; that is, there is a presumption that they are ineligible unless they can demonstrate otherwise. Hence the human difficulties on both sides become very great, I think. The interviewer, or the interviewing officer, is expected to be rigorous in his or her questioning because, as we have heard, no country can allow slackness in its immigration policies and we all know that people do try to get round the regulations in order to gain access to the country where life certainly looks easier than in their own—or it used to.
On the other hand, the interviewee may well have language and cultural handicaps to contend with in this setting and often has very little idea of the hazards to which he or she is exposed in giving quite innocent answers to questions designed to expose any trace of false motive. In fact, sometimes one ends up with the extraordinary situation that the person who seems to stand the best chance of being cleared is the person who is both totally ignorant of this country and more 1177 or less unemployable, thereby establishing no ulterior motive. I put it in that extreme way, although he or she will then immediately fall foul of the second rule about support and accommodation; but that was the comment that was given to me on the basis of some of the actual cases interviewed by the Advisory Service.
I understand that the Home Office accepts that at least 80 per cent. of all marriages or engagements which are examined are genuine; that is, there is the intention of a lifelong relationship. Yet despite this, about 50 per cent. cannot or do not pass the test. On the face of it this seems to be a very high percentage. It is certainly very frustrating for the families concerned and causes a widespread feeling of discrimination. Earlier today I spoke to the right reverend Prelate the Bishop of Leicester and he confirms from his experience in his own diocese that this is indeed so. He has marked it as being on the increase and he feels that in some way it is contributing to growing restlessness there.
For the sake, then, of preventing a very small number of people from entering this country, we seem to be laying ourselves open to charges of serious discrimination. It is alleged that we are committing one or more offences against the European Convention on Human Rights and we certainly seem to be doing disproportionate damage to community and race relations. As has already been pointed out, the rules would now be very difficult to change or reject, so I should like to ask the Minister to do all that he can to ensure that the enforcement is less blunt and less rigorous and that the process of vetting and questioning applicants is also speeded up so that family life where it exists can be genuinely strengthened and a sense of justice and calm can be reestablished in some of our major communities in this country.

§ 7.45 p.m.

§ Lord Pitt of Hampstead
My Lords, I am glad to be following the right reverend Prelate because I wanted to comment on our approach to this issue and the question of the way in which the immigration rules are both framed and applied. I do not accept that strict immigration control necessarily means harsh immigration rules. It is not necessary to have harsh immigration rules in order to have strict immigration control. The negative approach of the immigration rules has always struck me every time I read them. I shall illustrate this with the example of marriage. In the Statement of Changes in Immigration Rules paragraph 124 says: Where a person with limited leave seeks an extension of stay on the basis of marriage to a person settled here, an extension will not be granted unless the Secretary of State is satisfied:

(a) that the marriage was not entered into primarily to obtain settlement here".

That is the first thing, of course. That particular clause could well have been worded more positively, for example, "He should be entitled unless …".
It is because of the way it is worded that the situation is as the right reverend Prelate says, and because it is the duty of the immigration officer first and foremost to see that the applicant has not entered into marriage primarily in order to settle in this country. He has to begin with the assumption that that is why this person 1178 entered into the marriage; he has to work from there. I have used this example as an illustration but it is the same throughout the rules and the consequence of the way in which the rules are drafted is that there are these difficulties in the way of enforcement.
Having said that, I should like to make another point about something which worries me. We ought to have certain principles which guide us in our acceptance of new people into this society. I should have thought that one of the greatest and most important principles was that we wanted family cohesion. We want the family to be united and society to be cohesive. If that is what we want, and I hope it is, then men should not have to wait many years before their wives can join them. You cannot create a cohesive society if a man stays apart from his wife for many years. The chances are that he will have another family by the time she is actually allowed to come to this country. It may not be a legal family, but it is another family. The cohesion of the family is in fact already disturbed.
The same situation holds good for the children. We ought to be encouraging wives and children to join their husbands and parents as quickly as possible. When children are away from their parents for the length of time that many are away before they join them here, the parents find that they have lost the link which enables them to control their children properly. The parents are strangers to their children, who know adults other than their parents, so that when they come here it is not as easy for them to settle as they otherwise would if the break had not been that long.
My plea to the Home Office is that it takes on board the need to unite families as quickly as possible. I know that that means additional entry certificate officers. I think that we should have them. It will be worth while and probably cheaper than what other things may cost. I hope that the Minister will discuss this point with his right honourable friend the Secretary of State.
My other point is this. There are agencies in those countries which could help to speed up the process of getting people to this country. I know that over the years the entry certificate has been used to make sure that only a certain number of people come in every year. I think we are at the stage where that should stop. At this moment we do not need a slowing down in the entry of wives and children of the people who are here, but a quickening of that process, so that they may be quickly absorbed into the family fold and the family as a group can make a real contribution to this society. That would be an important step forward.
Many seeds are sown by the way in which we separate families. Having talked about helping families to come here, let me make a small plea about breaking up families when someone is deported. An individual may have broken all the rules and need to be sent out of the country, but the price of leaving his wife and children here while he is sent away may be future social problems for us. I put this to the Minister for him to discuss with his right honourable friend. In exercising their discretion, I hope that the Government will bear in mind the importance of keeping families together and not dividing them.
1179 That was the only contribution that I wanted to make tonight. I hope that it has some effect. I have not commented on the rules. I know that in any case the Home Secretary will not change the rules, and so I do not comment on them. What I ask for does not require a change of rules. It requires a more positive rather than a negative approach. That is my plea tonight.

§ 7.45 p.m.

§ Lord Mishcon
My Lords, this has been a temperate, moderate and human debate on a human problem. I think we are all grateful to the noble Lord, Lord Avebury, for that opportunity as the result of his initiative. He uttered a rather pessimistic statement in the course of his interesting and informative speech. He said that he realised that there was little hope of his Motion being accepted and of the Government changing their attitude. From this Dispatch Box I refuse to adopt such a pessimistic view. We have a new Secretary of State. In saying that I in no way cast aspersions on his predecessor. We also have an understanding Minister dealing with Home Affairs in your Lordships' House.
We were delighted to hear from the right reverend Prelate who comes from his jurisdiction in Southwark—a part of London that has very much a racial problem; a problem of ethnic minorities. The noble Lord, Lord Avebury, needs no introduction or praise from me. He has conducted a fight on immigration and fairness to immigrants for a number of years. The noble Lord, Lord Renton, has a reputation in this House for kindness and the way in which he faces human problems, and that was apparent at the Home Office over many years. We are always delighted to hear my noble friend Lord Pitt of Hampstead, who again uttered in a moderate voice a plea for humanity in regard to those that he knows so well.
It is on that basis that I want to address your Lordships, following upon a Statement made in your Lordships' House on Monday last—and what a serious Statement it was. We were dealing with the ugly riots that had occurred. Brixton preceded Tottenham, and both followed riots in other parts of our country. They were chapters in our history that we had never known before. Police were brought in to control riots in ways that we had never known before. Looting took place. In our deliberations of course we condemned without qualification the violence and the rioting, but we said that there were basic social matters that had to be looked into carefully. Only a matter of days after the Statement we are talking about rules on immigration very much affecting ethnic minorities. As has been said by other speakers, we are dealing with rules related directly to family life.
In regard to social affairs, our social history and our social complex, if there is anything that we have stood for in this country it is the sanctity of family life. We are trying hard to see that juvenile delinquency among our ethnic minorities declines. We cannot always cure it by giving these young people employment, unfortunately. We all know of the percentage of unemployment among the ethnic minority youth. We cannot give them more than the social insurance cover to which they may be entitled if they are poor, or they 1180 cannot work or they suffer from ill health. But we can give them one thing at a time of reducing numbers for new immigration.
I am speaking personally. I have no right to say this on behalf of my party. I have had no consultations on the matter. But speaking personally, I should prefer to see more restrictions on new immigration, and, if one likes, as a compensation for that to ensure that family life for our existing ethnic minorities is made much easier, with relatives and dependants coming in more easily. I should prefer that rather than to start talking about political quarrels about the number of people who might be new immigrants. That is the plea which is being made tonight. There should be every facility on genuine grounds for the uniting of families so that we can say with due conscience that we are taking seriously the social, family and human problems of the immigrants who have come to this country from the continents of Africa and Asia. It is very likely we are speaking in the main tonight of those immigrants.
Having said that, and I do not want to address your Lordships for long, let us look at the rules that exist. Let us say to the noble Lord the Minister, "All right, they are indelibly written for the time being in an order, but please give instructions now to the immigration officers, and tell them"—because I know the sort of questions being asked—"the method they ought to adopt"—as has been said in this debate—"is that if a marriage looks genuine, do not try and cross-examine too much"—and I mean that.
If we are trying to attack arranged marriages, are we doing it—and the right reverend Prelate will support me on this I think—out of pride for the number of broken marriages that we have in this country which do not originate at all in arranged marriages, but are based on romance? Are we in a position to preach against arranged marriages which very often occur after a detailed examiniation by parents as to whether a young couple would be suitable for each other? Are we, the preachers, able to preach?
I know that the sort of questions asked by immigration officers are the following: "How long have you known the woman or the man you are married to?", "Have you had experience already of living with him, or her?" "You want to come to this country; do you want to obtain a job here?" The answer to that, in order to maintain a wife, obviously is, "Yes". "Did you have a job you were pleased with in the country you came from?", and the answer to that is, "No, I was not very pleased with it. I wanted to improve myself—ergo, the primary purpose is not marriage that has led to settlement. The primary purpose is to get a better job—quod erat demonstra-dum, one might almost say. There it is proved. And the job of the immigration officer is to ask these questions.
I beg the noble Lord the Minister to tell immigration officers, "Your department can do it". That is not the way we want questions asked; that is not the way in which we want immigration permission refused. My Lords, if you think that I am wrong, can you in human terms, knowing that the people who are seeing the immigration officers badly want to get in, in any way believe that what I am saying is exaggerated if you look at the figures given to me; namely, that by 1181 the end of 1984 46 per cent. of husbands and fiancés were refused entry clearance? And do you know that the percentage of those refused because they could not satisfy on primary purpose grounds was 89 per cent.? All of them wanted to give the right answers, that must be obvious; but 89 per cent. of those refused failed on primary purpose grounds. Can you doubt, my Lords, that the kind of questions I am talking about were asked?
We then turn to the next question. Having satisfied presumably the immigration officer that the primary purpose really was marriage and joining the wife, and so on, and no other purpose, and presumably because that was the primary purpose very little can be done from abroad about jobs and things of that kind, then it is said: "Ah! You have got home on your first ground; now you must jump this fence." Having said the primary purpose was marriage, the next question that is asked is in regard to the fact that parties must be able to maintain and accommodate themselves without recourse to public funds. Having said, "I want to join my wife, this is a new country and I will work as hard as I can if only I can get a job", the question is, "Oh, but you have not got a job yet, and if you have not got a job yet, how can you say you will get accommodation? Accommodation is expensive and scarce". If we are honest, we all of us know that with our unemployment figures and our housing problems, whether one says that is caused by things that could be altered or not—and we are not having that debate tonight—of course immigration has to be limited.
The purpose of this debate, if I am interpreting my noble friend Lord Avebury aright, and the purpose of the contributions made by my noble friend and the right reverend Prelate—and I have no doubt in his heart of hearts by the noble Lord, Lord Renton—is that if we have to have this sort of rule which we cannot upset tonight, please see to it that the Home Office gets a name not in the European Court of Human Rights, which is not a very good name at present so I will not go further than the noble Lord, Lord Avebury, went—but let us have a name for humanity and let us try to see that as many genuine families among our ethnic minorities are united families. Let us try and make one contribution at least to see that the riots we talked about last Monday never occur again.

§ 8.7 p.m.

§ The Parliamentary Under-Secretary of State, Home Office (Lord Glenarthur)
My Lords, it was on 14th June last that your Lordships debated the judgment of the European Court of Human Rights on an Unstarred Question asked by the noble Lord, Lord Harris of Greenwich. The Government were pressed then to take urgent action to cure the breach found by the court. The statement of changes was laid on 15th July, they were debated in another place on 23rd July, they were approved, and came into effect on 26th August. Our response was in keeping not only with the importance of the judgment, but also with the requirement to respond speedily to it.
My noble friend Lord Renton referred to the complication of the lack of consolidation of the rules. May I say to the noble Lord that I quite understand his point of view, but would tell him that although we 1182 have no plans yet to publish a formal consolidated edition incorporating all the changes made since 1983, I shall draw it to the attention of those concerned and shall place in the Library of the House a sequence of extracts containing a de facto current version of the rules in the hope that it will help your Lordships until such consolidation takes place.
I welcome the opportunity that the noble Lord's motion this evening gives me to explain why the Government responded to the criticisms in the European Court judgment by changing the rules in the way that they have been changed. But first I must emphasise that the changes do not amount to a fundamental revision of the immigration rules or the immigration policy of the Government. The judgment, and therefore the changes in the rules, essentially concern the specific if important issue of whether there should be common provisions for husbands and wives seeking permanent residence here on the basis of marriage.
There was no finding of a breach of the conventions on grounds of race discrimination. On the matter of different rules applying to the admission of spouses to join men and women in this country on the basis of marriage, the previous rules allowed a wife to loin a husband settled here whether or not he was a British citizen.
By contrast, a husband could only join his wife if she was a British citizen. That distinction manifestly treats the sexes differently. That is the essence of the European Court's judgment. The European Convention does not prevent different provisions for men and women as such. What it does do is protect the enjoyment of the rights guaranteed by the convention from sex discrimination unless there are good reasons for differences of treatment between the sexes What the court decided was that in the particular circumstances of the case the reasons advanced by the Government for differences in the rules between husbands and wives were not sufficient to outweigh the importance of sex equality.
My noble friend Lord Renton indicated, with some useful statistics and based upon his great experience, some features that point towards the need for an immigration policy. It is a fundamental aim of the Government's immigration policy to protect the domestic labour market. The European Court explicitly endorsed the objective of immigration policy to protect that domestic labour market. But it expressed the firm view that the advancement of equality of the sexes is today a major goal in the member states of the Council of Europe. This means that the court did not hold that the goal of sex equality must in every case be overriding.
The court balanced the arguments for distinctions between the sexes in the marriage rules with the goal of sex equality. It came to the conclusion that the reasons for allowing wives to settle on more favourable terms than husbands under the previous immigration rules were not sufficiently weighty to meet the requirements of the convention in this day and age. The court accepted the object of the rules to restrict primary immigration. But the judgment requires this object to be met without differences in the rules between the admission of husbands and wives of those settled here.
1183 The noble Lord, Lord Avebury, was concerned about lack of effective remedy in United Kingdom law to breaches of the European Court of Human Rights. I can tell him that we do not accept that by not incorporating the convention into United Kingdom law we are in breach of Article 13. These changes have been made to the rules to meet the finding on sex discrimination. In that, the rules comply with the convention. No one can complain of violation by reason of the proper application of these rules, and Article 13 would not be engaged.

§ Lord Avebury
My Lords, I did not propose that Article 13 had to be satisfied by incorporation of the convention in domestic law. I said that this was only one means by which it could be done. I said that we had failed to provide any remedy whatever for breaches of the convention in our domestic law and that the only recourse for the complainant was to go straight to Strasbourg, where it took him six years and tens of thousands of pounds to assert a right.

§ Lord Glenarthur
My Lords, if I misinterpreted the noble Lord, I can only apologise. I thought the indication of what he said was that he specifically referred to the need for that remedy to be available. I shall certainly study the noble Lord's remarks.
The Government of course accept the judgment of the European Court. The changes we have made to the immigration rules conform with our obligations under the European Convention. They reflect the spirit of the court judgment, not just its letter, and are not the grudging response which I think the noble Lord seems to think they are, to our obligations. Indeed our response has actually involved a relaxation of the provisions for admitting husbands.
Let me now turn to the three aspects of the marriage rules affected directly or indirectly by the European Court judgment: the nationality requirement, the marriage tests and the maintenance and accommodation requirement. The issue arising directly out of the court's judgment was whether to extend the nationality restriction to which the admission of husbands was subject, so that it applied to the admission of wives; or to relax the provisions for the admission of husbands. As I made clear to your Lordships on 14th June, the essential choice was between narrowing the provision for the admission of a wife so that she could only join her husband if he was a British citizen or widening the provision applying to the admission of a husband to enable him to join his wife settled here even if she was not a British citizen.
As my right honourable friend the then Home Secretary said in another place, a restrictive approach, narrowing the rules for the admission of wives, would have raised formidable difficulties. It would have meant that men settled here who were not British citizens would not have been able to bring in their wives when successive Governments have acknowledged the importance of allowing men who have come here to work and have settled here to be joined by their families. The new rules accordingly allow women as well as men who are settled here to bring in their spouses, whether or not the husband or wife here is a 1184 British citizen, provided they meet the other provisions of the rules. I believe that this is a generous response to the European Court judgment.
What of the other provisions which have been criticised as less generous? To protect the labour market, young men who do not qualify for admission for employment must not be able to use marriage to obtain entry. The rules we introduced in 1980 strengthened the provisions in the immigration rules of the previous Government. They contained three requirements: the parties to a marriage must have met; each must have the intention of living permanently with his or her spouse; and the marriage must not have been entered into primarily to obtain admission to this country—the so-called primary purpose test. Provided these requirements were met, a husband might be admitted for 12 months in the first place, with permanent residence if the marriage continued to subsist and the parties still intended to live permanently with each other. Like the provisions which they strengthened, these requirements applied only to the provisions relating to the admission of husbands. They did not apply to the admission of wives.
The noble Lord, Lord Mishcon, criticised the application of the primary purpose rule in so far as it might be applied too harshly. I should like to say to him that we shall continue to consider the exercise of discretion in individual cases where a genuinely exceptional feature appears, even if the formal requirements of the rules have not been met. This could be justified, for example, if there was some legal or other genuine obstacle to the couple living overseas.

§ Lord Mishcon
My Lords, before the noble Lord the Minister continues, he is now on a matter that I believe exercises the consciences and minds of everyone who has participated in the debate and those listening to it. What I was asking for, and what I think others who have participated in the debate were asking for, is a direct instruction from the Home Office to immigration officials as to the way in which they would deal with these tests in regard to primary purpose and the merciful way and understanding way in which they were to be asked to deal with them. Can the noble Lord the Minister at least say that he will give consideration to that matter and discuss it with his right honourable friend?

§ Lord Glenarthur
My Lords, in picking up that point and also the point made by the right reverend Prelate the Bishop of Southwark may I simply say that the Government's immigration control has two objectives—firmness as well as fairness. I can assure both the noble Lord and the right reverend Prelate that we do pay due regard to compassionate features of individual cases. If the noble Lord feels otherwise, I can tell him that that is not the case.

§ Lord Mishcon
My Lords, I interrupt the noble Lord the Minister I hope for the last time? I have not said that if a case comes to the Secretary of State he will not deal with it compassionately. That was not my remark. I take it for granted that he would. I am sure that if it came to the noble Lord the Minister he would show equal compassion. I am dealing with instructions 1185 given to immigration officers. All that I have asked the noble Lord the Minister, in view of the debate, is whether the noble Lord is prepared, as I hope he would be, to discuss with the Secretary of State the speeches made in the debate tonight with a view to compassionate treatment being given by instruction to immigration officers on the primary purpose regulation. That is all that I am asking for.

§ Lord Glenarthur
My Lords, I am sure that my right honourable friend will note the remarks that have been made in this debate. But I cannot agree with the noble Lord in his suggestion that the immigration officers who deal with these cases are not compassionate in the same way as, for example, those in the Home Office when one gets to the top of the tree, so to speak, are also compassionate. There has to be a measure of fairness and firmness together. Those are important features of any proper immigration policy, and I do not believe that the suggestion of the noble Lord, that it is not compassionate at the moment, holds water.
The European Court judgment left the Government with two alternatives: to drop these requirements from the rules relating to the admission of husbands, or to extend them to the admission of wives. To drop the tests so that they no longer applied to the admission of husbands would reopen the immigration rules to potential abuse, and would be an unjustifiable relaxation of immigration control. We cannot have strict provisions for the admission of men for employment without having rules which prevent marriage being used to circumvent that control. The European Court judgment did not raise questions about the requirements which husbands must satisfy as such. What the judgment did however clearly imply was that to continue to give wives preferential treatment by making the admission of husbands subject to tests not applied to the admission of wives would be in breach of the European Convention.
To comply with the principles annunciated by the court and maintain the protection of the labour market which the court specifically endorsed means retaining the requirements applying to the admission of husbands and extending them to apply on the same basis to the admission of wives. This is what the new rules do. Extending the marriage tests to the admission of wives follows logically from the change of approach to wives which underlies the European Court judgment.
The noble Lord, Lord Avebury, asked about common law wives, suggesting, or perhaps asking whether, they were going to be excluded altogether. May I simply say to him that the Government will always be prepared to consider the exercise of discretion outside the rules in favour of an applicant based on a stable and long-standing relationship if hardship would otherwise result. The rules in force at the time of the judgment made the admission of wives subject to provision for maintenance and accommodation, which the sponsoring husband had to satisfy. The admission of husbands was subject to no such requirement. Again a distinction between the sexes had to be removed in the light of the European Court judgment.
The principle that someone claiming admission to this country should be allowed to come here only if he 1186 or she will not become a burden on public funds, which the noble Lord, Lord Avebury, correctly defended, is manifestly justified. It is indeed incorporated throughout the immigration rules. The Government could not consider relaxing the requirement. Accordingly, the new rules adopt the realistic approach under which the admission of a spouse of either sex is subject to the requirement that there is adequate provision for maintenance and accommodation for the couple together. I should like to stress that this provision is designed to protect public funds—an objective shared not only by the noble Lord, Lord Avebury, but by many countries as well.
There has been criticism that the new rule sets an impossible task; namely, to prove adequate maintenance and accommodation for the future. In that respect it is no different from the previous provisions. It is of course different in the sense that a young girl, dependent on her parents, marrying a man abroad may not contribute much to the maintenance and accommodation of the new marital home. In such cases a sensible assessment will be made of the young man's prospects. I can assure your Lorships that the new rules are not designed to create a "Catch 22" situation whereby a young man having had the prudence to explore prospects of employment before seeking to come to this country is either refused under the primary purpose test or, to avoid failing the primary purpose test, is refused because he has not made provision for maintenance and therefore does not meet that requirement.
To answer the concern of the noble Lord, Lord Avebury, that the maintenance test is too exacting, I say that it is only proper that those seeking assessment should not become a burden on public funds. However, the receipt of benefits by someone already resident here will not necessarily preclude permission being granted for an entry of his or her spouse for settlement. What is at issue is whether there will be an additional burden on public funds. As to how the test will be applied after 12 months, the main emphasis is on assessing maintenance and accommodation for the family either when the spouse seeks to enter this country initially or seeks leave on the basis of marriage.

§ Lord Avebury
My Lords, I specifically asked the noble Lord about the case of the person who fell on hard times within the 12 months. Having been able to establish that he was likely to be able to support and accommodate himself and his family and having gained admission on that basis, if he then becomes redundant, or is evicted from his accommodation and is therefore forced into the position of claiming benefits of one kind or another, would it mean that at the end of the 12-month probationary period, having signed the undertaking that he would not claim benefit, and being forced into doing so, he would then be refused indefinite leave to remain?

§ Lord Glenarthur
My Lords, I shall have to study the remarks of the noble Lord. In the interests of time, with rather more to say to cover all the points raised, perhaps it is fair to deal with the one point I have dealt with and to come back to him in writing.
1187 I realise that there are many who are concerned about the issue of queues. I think that it must be recognised by all those who consider it necessary for the Government to respond to the judgment that these changes may to some extent increase the delays for entry clearance. Resources are not unlimited. But I can assure your Lordships that efforts will be made to keep increases to the minimum by the redeployment of staff and other measures.
The noble Lord asked me about a point which I think would concern your Lordships; that is, the under-12 concession. I can confirm that the concession which provides for the admission of a child under 12 to join a single parent will continue. I hope that reassures the noble Lord.
With regard to the matter of the duty of candour and the judgment of your Lordships' House in a particular case, the new rules contain at paragraph 98 general considerations providing for refusal of further leave if false representations have been made or material facts not disclosed. I can assure the noble Lord, Lord Avebury, that these provisions are designed to change the circumstances in which refusal may be warranted. This small change is not designed to place greater obstacles in the way of applicants.
Although the changes in the immigration rules are specific and limited, other consequences flow from the European Court judgment. The Government took the opportunity to make related changes, for example, to clarify the meaning of "public funds", in the immigration rules. This was in no sense, however, a comprehensive review of the rules. Its object was to make those changes necessary to meet our obligations in response to the judgment, and only those changes.
There is one respect in which our response to the European Court judgment must go beyond the rule changes. That was indicated by the noble Lord, Lord Avebury. As I have made clear, the different approach to husbands and wives has been a traditional part of immigration policy reflected in the drafting of the 1971 Immigration Act. Section 1(5), to which the noble Lord referred, is indeed cast in a form which is sexually discriminatory. That provision was designed to be transitional in preserving rights of Commonwealth immigrants who had entered under the previous legislation. But as my right honourable friend the then Home Secretary announced in the debate on the rule changes in another place, the Government intend as part of our response to the European Court judgment to introduce legislation in due course to put an end to the sexually discriminatory features of the provision.
The judgment of the European Court raised an important question about one aspect of our immigration rules. I have outlined our response to the judgment and the thinking that lay behind it. The noble Lord, Lord Mishcon, said that we had had a temperate debate. I agree with the noble Lord. The debate has been temperate in what is inevitably an emotional area. The changes we have made strike a balance. They preserve the Government's policy of firm control over immigration. The rules preserve the protection of the labour market and the protection of public funds. But the rules also respect the important 1188 principles of family unity—indeed, respect for family life—enjoined in the European Convention and about which all your Lordships who have taken part in this debate have spoken this evening. The changes we have made to the immigration rules reflect that. They are the right response to the issues raised by the European Court.

§ Lord Avebury
My Lords, it would obviously not be right for me to enter into a further discussion at any length on the points that have been made by the Minister in his speech, but I should like to thank him most warmly for giving such a comprehensive reply to the speeches that have been made in this discussion.
I should also like to thank the noble Lords who have taken part in it, particularly the noble Lord, Lord Renton, whose first point was that we had to create a policy that was based on firm principles, and he enunciated some of them. He said that we had to preserve family unity and that we had to treat men and women equally. Then the noble Lord went on to deal with some negative provisions: that marriage should not be used as a device for entering the United Kingdom and that accommodation and support should be properly arranged in advance by those who wished to come here for marriage.
Our contention is that the Government have still not satisfied some of those principles and that, in the attempt to protect the labour market, which indeed was found to be a legitimate purpose by the European Court, we have gone too far in the direction of excluding persons who have married citizens of the United Kingdom or those who have been settled permanently here. The aim of protecting the labour market will not be fully achieved as long as we are prepared to let in workers from the rest of Europe or patrials from the rest of the Commonwealth to the tune of several tens or even hundreds of millions of people. So if it was the fundamental aim of our policy to protect the labour market, we should have had a completely different immigration policy.
However, I do not think it would be appropriate for me to rehearse all those arguments at this late stage. It is sufficient for me to say that if this matter had not already been the subject of a Division in another place, I should have felt strongly enough about it to ask your Lordships to comment on it. As things stand, our custom prohibits us from doing that, and I can only say to the noble Lord and to the Government that we must return to this matter on another occasion. We do not believe that our criticisms have been met by the answers which we received this evening. My Lords, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.