§ (2) In subsection (3A)(a), after the words "as a visitor," there shall be inserted the words "other than as is provided in subsection (3AD) below,".
§ (3) After subsection (3A) there shall be inserted—
§ "(3AD) A person who seeks to enter the United Kingdom as a visitor to visit a family resident in the United Kingdom shall be entitled to appeal against a refusal of an entry clearance to an adjudicator who will consider the appeal together with any representations made by the appellant's representatives on the papers without an oral hearing".").
§ The noble Baroness said: My Lords, I have tabled this amendment in response to evidence of great distress caused by the removal of the right of appeal from visitors to this country in 1993. Noble Lords may remember that at that stage I moved an amendment, accepted by the Government, which led to the appointment of an independent monitor to look at refusals from the entry clearance officers for the purposes of fairness, equity and the proper conduct of that power.
We have received two reports from the independent monitor, Dame Elizabeth Anson. They point to some grave injustices and anxieties on the part of the monitor that perhaps not all is as well as it should be. She looks at only one in 38 cases. She reports,
that most applications are considered properly under the Immigration Act and the Immigration Rules, but a number have caused me grave concern. Some of these examples are family visit cases where there have been a number of applications and refusals for members of the same family, and as I stated in my last report evidence of the reasons for the refusals should be in the interview notes. When an application is refused and all the reasons in that refusal are answered and evidence accepted by the ECOs then a similar application supported by that extra evidence should satisfy the ECO and an entry clearance be issued".
She further states:
The ECO must therefore cover all his reasons for refusal in any refusal notice and not bring up new reasons on a second application unless there is new evidence to support them".
§ My reason for tabling the amendment is that family visits are being hampered. Those most affected are British citizens who have settled here from other countries. They are the ones who have been caused distress. Members of families who want to attend weddings or other special occasions are being denied the right to come by entry clearance officers. There are no means to deal with these matters as there is no right of appeal. The Immigration Advisory Service, which is the largest national charity that undertakes this kind of work, is aware of a very great number of documented cases where matters are not as they should be and the degree of distress caused by these unnecessary refusals.
§ One of the IS staff members was refused leave to bring his elderly parents into this country because the entry clearance officer said that he had visited them in the country of origin in the past. That seems strange. Many people living here would go back to visit their relatives and families and the country itself. Does that mean that anyone wanting to come here to visit would be refused entry just because their relatives can visit them?
§ Elderly parents apply for settlement rather than a visit because there is then a right of appeal. It cannot be right that all that money is being spent by the individuals who want to come here and by the administration in this country just because those people know that they are unlikely to obtain permission to visit here.
§ It is also worth noting that the predecessor of the Immigration Advisory Service (the UK Immigrants Advisory Service) was winning 50 per cent. or more cases on appeal. Since the criteria have not changed, it would appear that 50 per cent. of the people who in the past would have been able to gain entry on appeal as genuine visitors are now being refused entry. The consideration is whether this provision would lead to a great expansion in numbers.
§ It is not intended that the right of appeal should lead to a full hearing. It should be a limited right which should be dealt with on paper by a single adjudicator sitting in chambers. He should be able to see all the papers, including the representations made. He would then be able to give an independent and impartial view.
§ Up to 10,000 letters are being received by Members of another place on behalf of their constituents. That number will increase, because when people's close relatives are refused entry, the first person to whom they will go will be their Member of Parliament. A great deal of work will be involved in dealing with all those letters. It is unlikely that this limited right of appeal will cost much more than what happens at the moment.
§ There is another point which my noble friend the Minister may wish to bring up; namely, the question of a review by the entry clearance manager of his officer's view of the case. It is difficult to imagine that the entry clearance manager would want to go against the decision of one of his officers. That was the very point upon which I was able to base a previous amendment in 1993. There must be someone who is not within the system and part of the system itself. The independent monitor's report points out that some of the reviews are extremely sketchy. She was unable to read some of them 740 because they were written in almost unreadable long hand. Other concerns are expressed in the monitor's report; for instance, the fact that the interviews with the applicants have lasted only 15 minutes.
§ It is extremely important to people to be able to maintain their family ties. I very much hope that the Minister will look carefully at the issue in order to see whether there is some way of meeting that great need. I beg to move.
§ 12.30 a.m.
§ Lord Hylton
My Lords, one is given to understand that the present Government protect, defend and uphold the interests of the family as a basic unit of society. The amendment concerns family relationships and on such grounds it seems to be very worthy of support. I do indeed recall the noble Baroness's amendment of 1993 and I congratulate her on bringing forward this amendment today. I hope that it will receive a very sympathetic hearing from the Government.
§ Earl Russell
My Lords, I warmly welcome the amendment. I too remember the noble Baroness's intervention in 1993. Her amendment could not be better designed to illustrate the point that I was making just a few minutes ago; that we no longer exist in a lot of little separate national boxes. We belong to one world and our social circle comes from many different countries.
Recently my wife's uncle was dying. That was hardly an unexpected circumstance as he was in his middle 90s. His daughter in Australia wished to visit him before he died. I can imagine the shock and outrage all around the family if after flying all the way from Australia she had been refused entry clearance.
That is exactly what happens from time to time and it is the problem to which the noble Baroness wishes to call attention. We see in the papers a great many such cases which arise under the habitual residence test. I shall not enter into that debate now but it illustrates, particularly in families which are divided between here and India or Pakistan, the very real difficulty and the gross hardship which can arise from the casual refusal of entry clearance.
What the noble Lord, Lord Hylton, said about the effect on families is entirely to the point. The extended family is very important. It is a support system which the Department of Social Security ought to welcome. Indeed, it relies on it often enough in unexpected and often mistaken places. But, where that system wishes to operate, to restrain it from doing so in the name of a concern for bureaucratic tidiness or a respect for a kind of national privacy which in this world no longer exists is perverse.
My only misgiving about the amendment is the words "without an oral hearing". I see why the noble Baroness included them. In this context one might possibly forgive them if they were never to get out of it. I fear that they might but I am glad that the noble Baroness tabled the amendment. It makes a very important point which I hope will receive a hearing.
§ Lord Dubs
My Lords, I too support the amendment moved by the noble Baroness, Lady Flather. In my 741 experience, which I believe is general, the people who are hurt by refusals are already in this country. Perhaps they have become British subjects or have settled here permanently and wish to be visited by relatives from abroad; sometimes aunts and more often elderly parents. It causes enormous hurt and pain when the visits of such people, who may wish to have a holiday, often with their children, are refused. Of course, we have to rely a great deal on our officials abroad. But from time to time they make mistakes. I am not saying that they act in bad faith, but they do make mistakes. The only safeguard against such a mistake is the right of appeal. That is what is at issue here.
I too have reservations about not having a full hearing, but I accept that by having a hearing other than an oral hearing a great deal of time and money are saved. Therefore, as the noble Earl, Lord Russell, said, that may be acceptable in this instance. However, I should be very upset if that were extended to asylum applications where the substance of the case could only be put at a full hearing. But in this case that may just be acceptable. However, I repeat that this amendment seeks to safeguard against the pain and anguish caused by refusing entry to people who wish to be visited by close members of their family.
§ Baroness Williams of Crosby
My Lords, a very strong case has been made in support of this amendment which seeks to provide a right of appeal. This is a very modest amendment indeed. The right of appeal is limited by excluding oral hearings.
I wish to put before the House one other factor which is important. We have a substantial number of families living in this country whose parents were born or originated in other parts of the Commonwealth. It is vital that those communities are made to feel fully part of our citizenship and are treated on an equal basis with all other citizens. Indeed, during our debates today the Minister has said repeatedly that she is strongly in favour of good race relations.
Apart from hurt to families, to which reference has already been made, there is the important issue of race relations. Rightly or wrong, people from ethnic minorities in this country feel that they are treated differently from those who come from other sections of society in respect of visits by their relatives to this country. There are a number of cases where people have come here for a wedding or in some cases for a funeral and have been refused entry clearance, often on somewhat thin arguments. I hope that the Government will consider allowing a right of appeal in those cases so that there can be second thoughts about whether or not refusal of entry clearance is soundly based.
§ Baroness Blatch
My Lords, the intention behind this amendment is to re-establish a limited right of appeal for those refused entry clearances to visit their family members who are resident in the United Kingdom. That is the intention but the wording is deficient. I will return to the deficiency in the wording in a moment, but first I will deal with the general principle of whether there is an 742 argument for making a special case for those seeking entry clearances to visit their family members who are resident here.
Noble Lords will remember that the Asylum and Immigration Appeals Act 1993 withdrew a number of rights of appeal which had previously existed under the Immigration Act 1971. One of these was the right of appeal available to those refused entry clearances as visitors. The rationale behind this decision was clear. Only limited resources are available to fund the immigration control and the related appeals system, and it is essential to concentrate resources on those cases which vitally affect a person's long-term future.
The Government welcome genuine visitors to the United Kingdom and do not underestimate the importance of family visits. However, it must be clear that family visits do not have the same long-term impact on a person's future as, for example, an application for entry for settlement following marriage or as a dependant.
There has never been any intention to restrict the number of people visiting the United Kingdom. The criteria under which applications for visit entry clearances are considered have not changed. A number of measures have been introduced to ensure that would-be visitors are not disadvantaged. The refusal notice is more detailed, providing clear reasons for the decision. Information leaflets have been revised and expanded, and sponsors and applicants can provide fresh evidence and secure much earlier reconsideration. Perhaps more importantly, decisions to refuse applications for visit visas are reviewed within 24 hours by a senior officer. The post of independent monitor, as mentioned by my noble friend, was also established to review a random sample of entry clearance decisions and to present an annual report to Parliament.
I turn now to the question of restoring limited appeal rights for those refused entry clearances for family visits. This amendment proposes adding a new tier to the already hard pressed appellate system with adjudicators determining cases on a papers-only basis. On the face of it, that would simplify the process and reduce the additional burden on the system. But, if I have understood this measure correctly, the intention behind introducing papers-only determinations is to ensure a quick decision. That would mean that a person originally refused an entry clearance to attend, say, a family wedding in the United Kingdom, would still be able to attend the wedding if the appeal was allowed.
We cannot accept the justification for according that level of priority which, however simplified papers-only determinations may be, must involve diverting resources away from the determination of appeals on matters of such lasting importance as asylum and marriage. There are only so many adjudicators.
I referred earlier to deficiencies in the wording of the amendment. In that respect, it should be noted that it gives no indication of what constitutes "family" for the purposes of establishing an entitlement to a right of appeal. However, there is a more fundamental flaw. If accepted, the amendment would provide a limited right of appeal to anyone refused an entry clearance,as a visitor to visit a family resident in the United Kingdom".743 The wording of the proposed new clause makes no mention of a family connection or relationship between the entry clearance applicant and the family resident in the United Kingdom. Unless I have misdirected myself, and I do not believe that I have, acceptance of the amendment would provide a limited right of appeal for anyone refused an entry clearance to visit a family resident in the United Kingdom whether or not there is a family relationship between the applicant and the family.
My noble friend referred to yet another friend of mine, Dame Elizabeth Anson, who is the monitor and who has now made two detailed reports on the entry clearance operation. She has visited posts overseas and has looked at samples of cases. Many of the points are being followed up in some detail by the Foreign and Commonwealth Office. Given what has been said about the amendment, one would think that, somehow or other, the Government are not concerned about family ties. During the course of today, I thought that I had said enough to prove that the Government do indeed regard family ties as being very important in so many ways. They certainly take them seriously.
I believe that the proof lies in the figures relating to this particular issue. The figures for 1995 show that 1,167,000 applications were received and that 1,042,000 were acceded to; that is, 93.5 per cent. of those who applied for entry clearance did in fact receive it. That means that only 6.5 per cent. of those who applied were refused. The noble Earl is not at present in his place, but he referred to the case of an Australian who, on entry here, was disappointed. However, we are really talking about applications that are made in country. It is the entry clearance officers in country who receive the requests for entry clearance papers to visit relatives in this country. As I said, well over 1 million applications are received and still over 1 million are accepted.
I believe that our case is a good one. Nevertheless, the 72,000—the 6.5 per cent.—who are rejected would require in the case of my noble friend's amendment being accepted, in addition to the 24-hour review and the monitoring exercise, another paper exercise review to see if those decisions could be reversed. Again, it is a matter of priorities. We believe that the other part of the system dealing with applications for asylum and other means of entry into this country should be given priority.
§ 12.45 a.m.
§ Baroness Flather
My Lords, I am a little disappointed with the response of my noble friend, particularly as she points to the defects in the amendment. In my six years' experience in this House it has been rare indeed to find no defects in the amendments tabled by those on the Back Benches. I accept that there may be enormous defects, but it is the matter of principle that I wish to emphasise. I clearly stated that principle. I am not impressed by the fact that the measure does not define the family, or that—in a legalistic way—one can say that any person visiting any family (regardless of whether it is their family or not) would be covered by this amendment.
If the amendment had any chance of winning any support, I should be perfectly happy to word it differently to avoid the defects. It appears that resources 744 are limited. Resources are always limited. We are now trying to work out who is more important, whose needs are more important and why one person's needs should be more important than another's or should be given priority. The main point of my amendment is that the measure hurts most the people settled in this country. It is not necessarily the people who come to visit who will be most affected by the measure; it is the British citizens who live in this country who are most deeply affected by not being able to have family reunions. As regards the percentage of people who are refused entry, it is worrying to note the reasons given for that refusal. There is an enormous number of documented cases which show a cavalier attitude towards people who want to come for a short visit. There is no obvious explanation for that.
If my noble friend feels that there is no way in which there can be a limited right of review—it is almost a review by an adjudicator rather than an appeal—surely there has to be some other method of dealing with the situation. As I have said already, the independent monitor is not satisfied with the review taking place within 24 hours. I am worried that there has not been a definite response to the first report. She has now issued a second report which deals with all these deficiencies. As far as I know, there has been no public response to it by the Government and no promise that anything will be dealt with.
I shall not press the amendment to a Division but I urge my noble friend to take this matter away and reconsider it. Perhaps she could try to place herself in the following situation, and try to imagine how one feels when one is a citizen of a country but one cannot have one's parents, brothers or sisters to visit. Obviously the measure would be limited to close family members only. That can easily be defined in consultation; it is not a problem. I hope that there will be further consideration of this issue. If there is to be no right of appeal, perhaps there is some other way to deal with this situation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 12 [Short title, interpretation, commencement and extent]:
§ [Amendment No. 99 not moved.]
Baroness Blatch moved Amendment No. 100:
Page 8, line 35, leave out (" "immigrant" ") and insert (" "person subject to immigration control" ").
§ The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 76. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 101 to 103A not moved.]
Lord Hylton moved Amendment No. 104:
Page 10, line 16, at end insert ("but paragraph (c)(i) shall cease to apply where a person, who was subject to the condition in that paragraph and was employed as a domestic worker in the United Kingdom, is certified by a police officer, doctor or solicitor to have suffered substantial physical abuse or deprivation or serious economic exploitation, in the course of that employment."").
The noble Lord said: My Lords, at the same time as moving this amendment, I wish to speak to Amendment No. 67 which was put down in mid-May. It has been in print since that time, and I might have expected the courtesy of the information that the Government's Amendment No. 64 would pre-empt my amendment by one line of text. The original amendment was withdrawn in Committee. It and its twin have been modified by me to meet criticisms made by the Minister and I have explained the intention and general thrust of the new amendments by letter to her.
The two amendments are designed to protect both the employer and the worker when a tied domestic worker takes a second job. The protection is tightly circumscribed by the requirement that the original employer must have abused or exploited the worker. That fact must be certified by a reliable professional person. It does not open, in the words of the noble Baroness, a "very real loophole" in immigration control. It merely helps to remedy an intolerable injustice. The amendment is far more restrictive than the pre-1988 work permit system. I am advised that the penultimate word in Amendment No. 67—that is "bonded"—may be incorrect in that in international law it refers to persons working in lieu of debt interest. No doubt the Home Office will be able to suggest better wording.
I should explain some of the other terms used in my amendment. "Substantial physical abuse" means, for example, beating, assault, threatened, attempted or actual sexual abuse or imprisonment on the employer's premises. "Serious economic exploitation" means, for example, non-payment of wages, payment of derisory wages, no holidays or time off or in general excessive hours. "Deprivation" in my amendment includes such things as no bed to sleep on, no individual bedroom and minimal provision of food.
During the period from 1992 to 1996 there have been many hundreds of cases of such abuse, exploitation and deprivation. An analysis of them has been made by one voluntary organisation which showed that 40 per cent. of its cases had been physically abused; two-thirds had had their passport confiscated; and on average those people were being paid £4 a day for 17 hours of work. That works out at a rate of £24 or £28 per week. It is not surprising, therefore, that a significant number of such workers continue to run away from their employers each year because of the serious abuse they suffer.
The situation has continued since 1981. I very much regret to say that it has not, as yet, been overcome by the leaflets provided by the Government or by their system of interviews at the point at which the incoming worker leaves another country, or even by a model code for a contract of employment.
In response to an earlier amendment, the Minister seemed to be expressing some tenderness and sympathy for people employed in the very seasonal occupations of fruit-picking and catering. I merely throw out the hope that she will show rather more sympathy this time round than she previously did to such domestic workers in their plight of being tied hand and foot to a single 746 employer. Perhaps she will go so far as to offer me an interdepartmental committee to look at this matter and to report. I beg to move.
§ Earl Russell
My Lords, under the Mansfield Judgment, slavery is illegal on English soil. I congratulate the noble Lord, Lord Hylton, on the abstemiousness with which he moved this amendment. There are many cases, which I am sure he has at his fingertips, where the exploitation to which the amendment refers has stretched to a point where it could very well be classified as slavery. The cruelties can be quite unimaginable. I shall not repeat the case I quoted in Committee. I am sure the noble Baroness remembers it.
The noble Baroness, Lady Rawlings, pointed out when we discussed this matter in Committee that the type of behaviour to which the noble Lord, Lord Hylton, draws attention is already illegal. But the parallel with slavery is genuine in that the main reason why people do not escape is that they cannot get any freedom when they do. What deters them from complaining about this sort of treatment is their inability to earn a living legally when they have done so. The effect of this amendment would be to except these victims from employment controls under Clause 8. I refer to Amendment No. 67. If that is not done, the power of the exploiter cannot effectively be checked. It is only if they can honestly earn a living in some other employment that the people concerned can be capable of escaping. If that is not done, all expressions of sympathy and compassion, and all repetitions that the conduct complained of is illegal, will be of no use. If you do not open the escape hatch when the ship goes down, it does not matter how sympathetic you are.
§ Baroness Williams of Crosby
My Lords, I hope that the Government will consider very seriously what might be done about this issue. It is a serious matter and one that in some ways shows signs of growing. At the United Nations Women's Conference in Beijing last year, Her Majesty's Government were among those governments who expressed themselves as being very concerned about child prostitution and the spread of issues concerning domestic violence. The House owes a debt of gratitude to the noble Lord, Lord Hylton, for once again persisting in raising this issue.
As the House will know, there are a number of countries whose ambassadors and consuls general have expressed particular concern on this kind of matter. One country that springs to mind is the Philippines, which has suffered very badly over the employment of young women as maids and au pair girls in different countries of Europe. They find out when they arrive here that they are being used for very different purposes and are exploited by their employers, sometimes for sexual reasons.
I hope that the Minister will think hard about this issue. It is not one that profoundly affects numbers. But, as my noble friend said, it profoundly affects the civil liberties of a relatively small number of extremely vulnerable people, many of them young women. I hope that she will look at this matter very closely. She will be aware that there are some cases sometimes of people 747 living in this country who themselves come from other countries where the habit of what one might describe as forced indentured labour is not unknown. It would be a great shame if that kind of treatment became embodied and rooted in this country.
The noble Lord, Lord Hylton is absolutely right in saying that this amendment will go at least some way toward protecting people against that kind of exploitation.
§ 1 a.m.
My Lords, on the point raised by the noble Baroness, the people under the scheme about whom we are talking are people who have come to this country with their own employer, whom they know. They have worked for them and are part of the family staff when they arrive in this country. It is not as though they come to an employer in this country whom they do not know and who exploits them. They are the same people for whom they have been working. It also has to be said that they come here on that precise condition: they come with that employer and the condition of entry is that they remain with that employer. Any idea that it suddenly becomes a licence for the individual to be able to work anywhere and for anybody and for any employer for whom such a person works to be exempt from offences under Clause 8 is wrong.
Amendment No. 104 provides that the power to attach an employment restriction to a person's leave to enter or remain in the United Kingdom will be nullified once a police officer, doctor or solicitor certifies, in the manner described in the amendment that was not allowed—it was pre-empted this afternoon—that a domestic worker has been abused or exploited.
In practice, this would probably mean that these people would be able to stay here for good, because it would be very difficult to refuse them an extension of their stay once they had found another job, even if they had been here for only a short period. They would thus become part of the resident workforce, free to take employment of any kind, and neither they nor their future employers would be committing an offence.
I appreciate the sentiment behind these amendments. No one can possibly condone the abuse or exploitation of employees, no matter where and how it takes place. That is why we have criminal and employment laws to deal with such abhorrent behaviour. Overseas domestic workers have the same rights and the same protection under those laws as every other worker in the United Kingdom. That is made clear to them, and to their employers, before they even leave the country of origin.
But the effect of these amendments would be to confer on these people a privileged immigration status. They would be able to change jobs without hindrance, a right afforded to no other overseas national who comes to work here, including those with work permits. It would not, however, stop the abuse in the first place; nor would it stop the second or subsequent employers from behaving in just as wicked a manner.
It is for these reasons that the Government have sought to minimise the risk of abuse and exploitation of domestic workers by taking steps designed to ensure that 748 only those who are willing to come here with their employers are allowed to do so. This is the very reason why we insist on entry clearances so that checks can be made before the visit. The entry clearance officer must be satisfied that adequate arrangements have been made for the domestic worker's accommodation and maintenance; that he or she understands his or her rights when in the United Kingdom; and that the employer is equally aware of all these. All this is contained in a leaflet which is given to the employee and which explains where to go for advice or help. A copy also goes to the employer with a note making it abundantly clear that domestic workers have full rights under our criminal and employment laws.
Under no circumstances do we allow domestic workers to be recruited from overseas by employers already here. They must have been employed by the person they are accompanying for at least one year, and for two years if anything more than a short visit is intended.
I am of course conscious that these arrangements, though designed to minimise risks, cannot eliminate them altogether. But the concession also means that domestic workers do not lose their jobs just because their employers wish to come to the United Kingdom. In the vast majority of cases the system works smoothly and uneventfully.
The noble Lord, Lord Hylton, referred to an inter-departmental committee. We see no need for that. We keep in close touch with colleagues in other departments, mainly of course the Department for Education and Employment and the Foreign and Commonwealth Office. We will continue to keep the entry clearance arrangements under review. There is a constant liaison between the Home Office, the Foreign and Commonwealth Office and of course, for employment purposes, work permits and other such related matters, we are constantly in touch with our colleagues at the Department for Education and Employment.
§ Lord Hylton
My Lords, I regret that nothing the Minister has said tonight makes one feel that the Government appreciate the gravity of the offences committed by the employers, which have been going on for many years.
The noble Baroness said that pre-entry checks are applied. Experience shows that they are simply not sufficient; they do not achieve the purpose for which they are intended. She went on to say that domestic workers coming in with these restrictions on them enjoy the benefit of the protection of British law. That is fine in theory; again in practice it simply does not work out, particularly when the domestic worker is confined to his or her employer's premises. I could speak at length giving examples of where the worker has a limited knowledge of the English language and other practical difficulties which exclude such a person from normal legal protection.
In relation to the scale of the problem, one single voluntary organisation working in central London is still, in this year and last year, receiving 15 to 40 new cases per month—it varies from month to month. 749 I should have thought that that was enough to arouse serious concern. This is undoubtedly a matter to which I shall have to return at Third Reading and, if there is no further help from the Government, then at all possible subsequent opportunities. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch moved Amendment No. 105:
Page 10, line 40, leave out ("approvals to work") and insert ("equivalent documents").
§ The noble Baroness said: My Lords, the amendment to Section 14(2A)(c) of the 1971 Act contained in paragraph 3(2) of Schedule 1 to this Bill is a minor, technical amendment. The Asylum and Immigration Appeals Act 1993 removed the right of appeal for certain categories of mandatory refusal. Examples of the type of case where the right of appeal was removed include where a visitor seeks to remain beyond the six-month permitted maximum, where a person does not meet the requirement as to age set out in the immigration rules, for example, as an au pair or working holiday maker, or where a mandatory entry clearance has not been obtained prior to arrival. The right of appeal was also removed in cases where the applicant does not hold a relevant document required by the immigration rules. Relevant documents are listed in Section 14(2B) of the 1971 Act, as amended by the 1993 Act, and work permits are included in the list of relevant documents. It was originally believed that the phrase "work permits" would include both the permits required to be presented on entry to the United Kingdom and also approvals of particular employment issued by the Department for Education and Employment where the applicant is already in the United Kingdom.
§ Subsequently, it was held that a work permit is solely an on-entry document. That produced an inconsistency between the appeal rights available to those seeking to take employment for the first time and those refused further approval or a change of employment by the Department for Education and Employment.
The current print of the Bill includes the phrase,
approvals to work issued after entry".
To resolve that inconsistency, however, further consideration has suggested that that phrase does not fully meet the needs of the situation. The approval provided by the Department for Education and Employment is approval of particular employment. It is the Home Office who provide permission to work.
The amendment would replace
work permits, or approvals to work issued after entry
work permits or equivalent documents".
This construction more accurately meets the needs of the situation and I am satisfied it will provide the effect we are seeking. I commend this essentially minor, but complicated technical amendment to the House. I beg to move.
§ On Question, amendment agreed to.
§ ("Recovery of expenses incurred in detaining persons refused leave to enter
In sub-paragraph (1) of paragraph 19 of Schedule 2 to the 1971 Act (recovery of expenses incurred in detaining persons refused leave to enter), for the words "at any time" there shall be substituted the words "for any period (not exceeding 14 days)".
§ Recovery of expenses incurred in detaining illegal entrants
.—(1) In sub-paragraph (1) of paragraph 20 of Schedule 2 to the 1971 Act (recovery of expenses incurred in detaining illegal entrants), for the words "at any time" there shall be substituted the words "for any period (not exceeding 14 days)".
(2) After that sub-paragraph there shall be inserted the following sub-paragraph—
(1A) Sub-paragraph (1) above shall not apply to expenses in respect of an illegal entrant if he obtained leave to enter by deception and the leave has not been cancelled under paragraph 6(2) above.".").
§ The noble Baroness said: My Lords, the first part of the amendment will restrict the liability of a carrier to pay detention costs to a period of no more than 14 days. The second will exclude from a carrier's liability for detention costs those cases where a passenger obtained leave to enter by deception and the leave has not otherwise been cancelled.
§ In Committee the House showed considerable sympathy for the concerns of my noble friend Lady O'Cathain about the open-ended commitment on carriers for liability to detention costs. I undertook to bring forward an amendment limiting liability. Ministers have confirmed that they are now content with the proposition that the carriers' liability for detention costs should be confined to 14 days in total and not be an open-ended commitment for the airlines. This is a substantial concession but one which should not result in the loss of too much revenue. In addition, it will tighten up administrative practices enabling the Immigration Service to recover debts more effectively.
§ The Government cannot accept a proposal which would shift the burden of these costs so fundamentally from carriers to the taxpayer, leaving the Home Office to find the shortfall from existing provision. If carriers were to be exempted from detention costs for passengers carrying valid documents, there would be no financial risk and no disincentive for unscrupulous operators to bring dubious visitors to the United Kingdom on cheaper charter flights.
§ My noble friend knows that we must start from the premise that the costs associated with the detention and removal of people who are not to be admitted to the UK should be met by carriers unless such people arrive with a certificate of entitlement, entry clearance or a work permit.
§ Carriers profit from bringing passengers to the UK, and the taxpayer has only limited control over who is brought here. Therefore, it is right that carriers should bear some responsibility for the costs where their customers do not qualify to enter this country. The Act already limits liability to some extent. Carriers do not have to meet detention costs while an appeal under the Act is in progress; for example, a concession extends this principle to cases where judicial review has been sought.751
§ The fact that a passenger is properly documented does not mean that he is necessarily admissible. A large proportion of the 19,000 people refused entry and removed at the ports in the last 12 months were indeed properly documented. The decision to refuse them leave to enter is based not on documentation but on their intention or undesirability.
§ But although the principle that carriers should meet their liabilities is a sound one, we accept that the present system contains some elements which can seem unfair. That is why I undertook in Committee to review the scope for limiting carriers' liability in this area. We now, as I have already said, propose to amend the Bill to limit liability for detention costs to a period of 14 days in total. We believe that this is equitable. It gives carriers a clear and unambiguous statement of where their liabilities lie without putting at risk an important area of government policy and without an open-ended commitment.
§ But this was not my noble friend's only concern. She raised the point that carriers should be exempted from detention costs where the passenger arrives with adequate documentation. Once again, her intentions are laudable, but the Government cannot accept an amendment of this kind. The reasons are very important. Many nationalities do not require visas to come here. All they need to travel is a valid passport. As I said a few moments ago, that does not make them admissible. A number of national airlines take their responsibilities in this area very seriously. They work with the Immigration Service to provide proper advice and training to their staff and play no small part in reducing the number of inadmissible passengers who arrive at our ports. But not all carriers exercise their responsibilities as conscientiously as the best.
§ Some carriers have been persuaded to bring to the UK large numbers, particularly of non-visa nationals who are proved to be inadmissible. If we agreed to exempt detention costs for passengers carrying valid documents, there would be no financial risk and no disincentive for unscrupulous operators to bring dubious visitors to the UK on cheap charter flights. If there is no disincentive for carriers to bring non-admissible non-visa nationals, there would be a greater pressure to introduce more visa regimes around the world. I do not believe that this is what the carriers would want since it would make the burdens on them even greater.
§ But I recognise that if a passenger has already been granted leave to enter by an immigration officer, it might seem unfair to expect carriers to foot the bill if the person is subsequently found to have obtained that leave to enter by deception and is detained. The Government therefore propose an amendment in the Bill to make clear to carriers that they will be exempted from any liability whatsoever for detention costs where leave to enter has been granted on the subject's last arrival in the UK and has not been withdrawn within the 24 hours permitted under the Act. We believe that this will address the main grievance which carriers feel about current arrangements. We believe that the proposed measures will in some cases significantly reduce the liability of carriers for detention costs.752
§ Taken overall, we believe that these measures will clarify for carriers where their liabilities lie and reduce the uncertainties and perceived unfairness which my noble friend mentioned in moving her amendments at Committee stage. I commend them to the House. I beg to move.
§ 1.15 a.m.
§ Baroness O'Cathain
My Lords, it will come as no surprise that I am grateful for this amendment which addresses the issue at the core of the amendments which I moved at an earlier stage and which drew such widespread support in the House. I am sure that noble Lords will recall me saying previously that my awareness of this situation was heightened by my joining the board of British Airways. I therefore declare my interest once more.
My noble friend has been most generous both in the time that she has set aside to discuss with me the principles underlying the amendments which I proposed in Committee and in the sympathy that she has exhibited over the iniquities of the existing legislation. But perhaps I may gently chide her because it was not merely a "perceived unfairness"; it was an unfairness. However, I have been greatly heartened by my noble friend's grasp of the situation and her willingness to seek a practical and meaningful way forward.
The climate which has evolved in the past two decades has resulted from the vast increase in international travel which has conspired to create a situation where the staff of airlines and, indeed, of shipping companies have found themselves in the front line of the UK's defence against illegal immigration, with ever-increasing burdens put on them to detect fraudulent travellers. Today not only are carriers fined for failing to spot forged or expired documents, which is not as easy a task as it might sound when one considers the many international permutations, but they are also expected to pay the detention costs indefinitely of anyone detained by UK immigration, irrespective of whether that person has faulty or entirely proper documents. It seems to me—and to many people—that UK immigration has hit upon a marvellous way of policing that activity without it costing it a penny. As a taxpayer, I have thought about applauding that, but I cannot say, hand on heart, that I feel comfortable with it. It is a deep injustice, rooted in the 1971 Act, which was not created to deal with the mass travel which we now experience.
I return to my noble friend's generosity because I am extremely grateful—I am sure that other noble Lords will feel the same when they read Hansard—that an important point of principle has been conceded in this amendment. By accepting that UK immigration should share the cost of, and therefore accept responsibility for, detaining illegal immigrants, my noble friend has admitted that the existing legislation is flawed, that it has been iniquitous and that the burden has until now fallen on the carriers' shoulders.
The fight for recognition of this principle has gone on for many years. I am the last in a long line of those who have been pursuing it. It is good that some progress has 753 been made in this respect. I think that it would be dishonest of me, and disloyal to those noble Lords who have fought so stalwartly in the past for this unfair legislation to be amended, to express complete satisfaction with what my noble friend has proposed. I am disappointed that it fails to address the issue of carriers being expected to pay potential costs in respect of correctly documented passengers detained for some unforeseeable reason, such as an immigrant officer's sixth sense.
I continue to believe that this is a deep injustice and hope that my noble friend may be open to further meaningful discussions on the point, especially in respect of those carriers who take their responsibilities very seriously. I note what my noble friend has said about some being much more responsible than others. One always finds cowboys in any type of organisation or business. I believe that this particular sector has had its fair share of cowboys. But those who take their responsibilities seriously will wish to continue to discuss these matters.
I had hoped to have a more generous cut-off point than 14 days after which carriers cease to be responsible for paying detention costs. My noble friend will recall that my original amendment proposed a 72-hour cut-off point. That was the point at which the transportation industry in the UK in general felt it would be fair for UK immigration to take over. I then proposed seven days. It almost became a matter of bargaining. That was the period of time that my noble friend had herself referred to in Committee. The significance of seven days' detention was that that was the point at which any detainee could apply for bail. I felt that that provided some kind of link. I was disabused of that idea when I went to see my noble friend in her office early one morning. It seemed to me to be an entirely logical point at which UK immigration should take over the cost of further detention. I am surprised that my noble friend and I cannot agree as to that. However, I am very encouraged that the Government have conceded the point of principle. It gives me cause to hope that at some future date there may be an opportunity to revisit the issue and re-examine the justification for further refinement. I am pleased to support the amendment.
On Question, amendment agreed to.
Lord Hylton moved Amendment No. 107:
Page 12, line 16, after ("released") insert—
("(i) into the care or supervision of a voluntary organisation, or (ii)").
§ The noble Lord said: My Lords, I beg to move Amendment No.107 and speak also to Amendment No. 109, which is closely connected with it. I speak also to Amendment No. 108, which provides an alternative method of diminishing the practice of detaining mainly asylum seekers but no doubt also some immigrants. The amendments are all the more necessary since the Government voted down Amendment No. 1 at Report Stage which would have provided an independent review of detention after a person had spent seven days locked up. One route is the use of reputable voluntary 754 organisations. Another route is by not setting bail which is excessive, not only to the person who applies but to those who may provide sureties on his or her behalf.
§ Baroness Blatch
My Lords, when we considered this Bill in Committee we discussed Amendments Nos. 138 to 140, which were framed in exactly the same way as this group of amendments. We had an interesting and useful debate at that time. I apologise if I cover the same ground this evening. It is difficult not to do so because the arguments remain the same.
The clear intention behind this group of amendments is to alter the way in which people are released from detention. Instead of being released on bail, a person who is detained can be released without preconditions into the care of a voluntary organisation specified by the Secretary of State for that purpose. It is not clear how those who would be released into the care of these organisations would be separated out from those who would continue to rely on the bail system for their release. Neither is it clear how these organisations would take on this supervisory role, nor how it would be funded. There is no mention of a sanction being applied if the person who has been released fails to return from the care of the voluntary organisation at the appointed time. The financial penalties in the bail system are aimed at compliance, but there is no equivalent encouragement to compliance in the system now proposed.
A further measure is proposed which would require an applicant's personal means and circumstances to be taken into account when fixing the financial levels for any recognisance or bail bonds. That appears to be a superfluous addition because subparagraph (2) of paragraph 22 of Schedule 2 to the Immigration Act 1971 already allows adjudicators very wide freedom when setting the conditions of a recognisance or bail bond, including whether or not to require sureties.
The noble Lord, Lord Hylton, when introducing Amendment No. 138 and the related amendments in Committee, stated that he had four principal objections to the practice of detaining immigrants. These were the cost of detention, the waste involved in requiring advisers who specialise in immigration cases and their interpreters to travel to distant detention centres in order to provide advice, the distress caused by detention, particularly to those who come here fleeing persecution in their own country, and finally that detention tends to criminalise immigrants, helping to establish a perception in the minds of the general public that all immigrants are illegal and outside the law. The noble Lord went on to explain that the proposed amendments would help to minimise the practice of detaining immigrants by encouraging the voluntary sector to take on responsibility for supervision.
I was taken to task during the earlier debate in Committee for repeating a phrase which he suggested had become the mantra of successive immigration Ministers, "detention is used only sparingly and as a last resort". I make no apologies for repeating it again now because it is true. The numbers of people detained under powers in the 1971 Act at any time are minuscule when considered against the numbers arriving as a whole.
755 I hope that I have explained why I regard the alternative system proposed by these amendments as unsatisfactory. The bail system generally works well and the major criticism levelled against it has always been that certain people are excluded from applying for bail because of the stage their particular application has reached. We have included measures in this Bill to extend the right to apply for bail to all of those who are detained, irrespective of the status of their case. The system proposed by these amendments would serve merely to confuse the picture, posing questions which I have outlined but without providing any answers. I would like to make clear that in expressing my objection to these measures I intend no criticism of the voluntary sector, for which I have nothing but the highest regard. I was its particular Minister for a very long time, and I regard it with great affection and have enormous respect for the work that it does. I urge the House not to accept the amendments.
§ Lord Hylton
My Lords, I regret the fact that the Minister continues to offer a dead bat to every amendment proposed on the Bill. One might have thought that she would welcome something which 756 would help to reduce the number of persons detained each year. If the Government feel that some kind of pre-condition might be necessary before individuals are released into the care or under the supervision of a voluntary organisation, why do they not have discussions with the voluntary sector as to what those pre-conditions should be. One might also have thought that the Government would welcome a possible reduction in cost, which is considerable at present. Nevertheless, at this time of night I do not intend to press this matter further. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 108 and 109 not moved.]
Baroness Blatch moved Amendment No. 110:
Line 3, leave out ("immigrants and the employment of immigrants") and insert ("persons subject to immigration control and the employment of such persons").
§ The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 76. I beg to move.
§ On Question, amendment agreed to.
§ House adjourned at half past one o'clock.