§ 3.18 p.m.
§ Report received in respect of proceedings on recommitment.
§ Clause 10 [Failed asylum seekers: accommodation]:
§ Page 11, line 27, leave out from beginning to end of line 14 on page 12.
§ The noble Lord said: My Lords, we discussed this matter in Committee, but nothing that we have heard then or since has endeared us to the idea that failed asylum seekers should be compelled to take part in unpaid community service as an additional condition that they have to satisfy to be offered accommodation or to continue staying in that accommodation. Under proposed new subsection 4(6)(b) of the Immigration and Asylum Act 1999 they must also comply with unspecified other conditions imposed by the Secretary of State.
As if that did not give the Secretary of State enough leverage over the failed asylum seeker, under proposed subsection 4(6)(c), the provision of any accommodation is a matter for his discretion,
to a specified extent or in a specified class of case".
§ The people to whom these provisions apply have already had to demonstrate that they are unable to return to their countries of origin. Up to now that has meant Iraqis and Afghans because—the Minister will correct me if I am wrong on this—it was considered too dangerous to return to those two countries.
§ As far as I am aware, the provision has never been extended to any other nationality; I refer, for example, to Somalis, although Somalis were deemed to be unable to return to Somalia until fairly recently when the IND started surreptitiously returning them via Dubai in uninsured planes belonging to an airline nobody had ever heard of. From the beginning of 2002 to the end of the first quarter of this year, 7,630 Somalis had had their applications refused. Assuming that 20 per cent of those were unsuccessful on appeal, there are over 6,000 Somalis still living in the UK, even taking into account the handful of returns. None receive benefits or accommodation, nor are they allowed to work.
§ I should also like to mention the case of the Zimbabweans who are excluded from hard-case support under the 1999 Act. They are in a unique situation. On 15 January 2003 the Home Office suspended removals to Zimbabwe. Then, following the rigged elections in March, it froze indefinitely compulsory return while encouraging failed Zimbabwean asylum seekers to return on a voluntary basis. Predictably, hardly any have done so.
§ The result is that since the beginning of 2002 around 3,700 Zimbabweans have been added to the pool of destitute former asylum seekers in the UK. Some may well be supporters of the regime who made false claims to escape the anarchy and the economic meltdown of Zimbabwe. If such individuals could be clearly identified, no reasonable person would object 14 to their compulsory return. No doubt the Minister is aware of the allegations made on the BBC "Five Live Breakfast" report that a Birmingham-based group, Zimbabwean Community UK, has provided false documentation and national insurance numbers that allow supporters of the regime, including children of Mugabe's Cabinet Ministers and others, to pose as members of the opposition and falsely claim asylum. If that is true, ZCUK and its management are guilty of criminal offences. I hope its activities will be stopped and that the police will use their powers under Part VII of the 1999 Act to obtain any documents that may still exist relating to the false claims made through that organisation. The BBC should be asked to hand over any documents in its possession relating to the matter.
§ At the other end of the scale, we all know of Zimbabweans who have gone through the system unsuccessfully, even though an unbiased person looking at their claims would be at a loss to understand how they were refused. A torture victim whose father was murdered spent 10 months in Lindholme Detention Centre and was unable to prepare his case properly. The adjudicator rejected a faxed copy of his MDC membership card as a fake and when he managed to obtain the original in time for the tribunal he was told that it was inadmissible because it could not look at fresh evidence.
§ The Zimbabwe Association knows of a number of people in similar situations. I met one at the launch of Andrew Meldrum's book Where We Have Hope last Friday, a medical doctor who has not been allowed to practise in the UK. So when the Minister says, as he did on 15 June, that people denied accommodation have failed completely to become refugees he may be right in a narrow legal sense, but not in terms of compliance with the Refugee Convention. Whether or not someone is a refugee is a matter of fact, whereas the question of whether he attains the status of a refugee is determined not solely by the merits of his claim, but on a number of other factors, including the quality of representation, the assessment of his credibility and the possibility of getting evidence to support the claim from his country of origin.
§ None of that enters into the decision about hard-case accommodation. As the Minister explained in Committee, to qualify for this privilege a person must have been given permission to apply for judicial review; be unable to return because there is no transport service available; be awaiting travel documentation; be ill or pregnant; or be under rare or exceptional circumstances. I understand that only about 400 to 500 people qualify under one or other of the headings, although we have no statistics on the matter and no idea whether in future there are likely to be the same number or for how long they might remain on the books.
§ If the recipients are almost entirely Iraqi or Afghan, presumably once air services resume they will be shipped back to their countries regardless of deteriorating security situations and absence of employment opportunities in both countries. I note that 204 Iraqis and 165 Afghans were removed or went home voluntarily in the first quarter of this year. I should be most grateful if the Minister could explain under what circumstances a person belonging to 15 either of those two nationalities still qualifies for hard-case accommodation. That would have a bearing on the future take-up and cost-effectiveness of establishing the schemes which are envisaged in Clause 10. If the total drops much below the present level, there might be only two or three people in a typical local authority area and, as the noble Baroness, Lady Anelay, pointed out, the cost of the scheme might easily outweigh the benefits of the work these people undertake.
§ Local authorities will have to identify unskilled operations needing minimal induction and training; to discuss the choices available to trades unions; and to establish a programme for managing the forced labour, including training, supervision and reporting on any failures to comply with requirements. Setting all this machinery up for a rapidly changing labour force of two or three people in a particular local authority area sounds like a big money loser and it would be useful if the Minister could give us some idea of the arithmetic behind the introduction of Clause 10.
§ However, it is not only on the ground of probable waste of taxpayers' money that we object to the compulsory labour element in this clause; we say that it is inappropriate to impose what amounts to community penalties on people who, through no fault of their own, are unable to return to their countries of origin. That is a matter of principle for us. There are all sorts of practical arguments against conscripting a handful of failed asylum seekers in places such as Manchester, Leeds, Newcastle or Birmingham to dig old people's gardens or rub out graffiti. But even if they could be solved this is forced labour.
§ The Minister says that he is satisfied that the provision does not contravene Article 4.2 of the ECHR. If he turns out to be wrong, it would not be the first time that the Home Office has ignored the warnings of Parliament. I beg to move.
§ The Chairman of Committees (Lord Brabazon of Tara)
My Lords, I should point out that if this amendment is agreed to, I will not be able to call Amendments Nos. 2 or 3.
§ Lord Mackay of Clashfern
My Lords, I thank the Minister who is to reply to the amendment for giving us such a practical demonstration of the fact that Ministers in this House speak for Her Majesty's Government as a whole and not for any particular department.
§ Baroness Carnegy of Lour
My Lords, I endorse what my noble and learned friend has said. The Liberal Democrats feel strongly about the suggestion that failed asylum seekers, while appealing or who for other reasons have not returned to their home country, should not be asked to do community work in return for accommodation. They feel it is forced labour. I said in Committee and I reiterate that this is a very tricky point. The public are likely to understand that people who are still in this country, having failed to get asylum, should be required to do something in return for accommodation.
§ The trouble about the provision at the moment is that it is half-baked. The noble Lord almost admitted that, although he would not have used such an impolite adjective to describe the Government's current situation. There is a great deal we do not know about it, and we will probably deal with some of the detail when we discuss Amendment No. 2. As a general principle, I do not think it is forced labour. People are being asked to do this in return for being given accommodation by the people of this country when they have no real right to it. I should have thought that they would not mind that; such people will be extremely bored while they are waiting. They will not have anything to do, and it will be quite interesting to help the local community in which they live. So I do not share the Liberal Democrats' objection to this. But we do need to know a good deal more about the detail before we know whether it is a workable and good idea.
§ The Countess of Mar
My Lords, I have a certain amount of sympathy with the noble Lord, Lord Avebury. I remind noble Lords of my interest as a lay member of the Immigration Appeal Tribunal.
§ I have no objection to people having to earn their corn. There is no problem with that. What I am concerned about is the Minister's comparison of this sort of job creation, such as it is, with the New Deal. I asked him last time—he was unable to give me the answer, perhaps he can do so now—how much each job has cost under the New Deal, and I have a feeling that the cost of providing work for something like 500 people—I think the Minister said that in Committee—will be inordinate. I would be grateful if he could clarify that point before I decide.
§ Baroness Anelay of St Johns
My Lords, in Committee the Government were unable to give details of the justification for the new clauses that they were bringing forward at the eleventh hour in this Bill, by way of recommitment—particularly details of how the various policies would actually operate. I made it clear in Committee that we on these Benches do expect to be able to support the policy intention behind the 13 new clauses, but that we are still very concerned about the haste with which they have been drawn up, and the possibility that there could be flaws and unintended consequences. It is a case of the Government making up policy on the hoof.
Our concern has already been justified by the fact that the Government have brought forward further amendments today, to two of the new clauses which were accepted by your Lordships in Committee on recommitment. The Government say that the provisions of Clause 10 do not contravene the ECHR. Well, I hope that they are right. The Home Secretary certainly has a track record of charging ahead with flawed proposals that are then challenged successfully in the courts. That is bad for everybody concerned: bad for the reputation of Parliament; bad for the taxpayer for having to foot the bill, and bad for the Government overall, because it means people lose trust in what they are trying to implement. 17 I do not, however, support Amendment No. 1 of the noble Lord, Lord Avebury, as I am still prepared to listen to the Government's justifications for the clause, and their plans to make it work. If I can be flippant for one moment, I would say that the Government got one out of 10 in Committee, if I am being very gracious. I hope that the score might go up today.
In that vein, I have tabled probing amendments of my own that follow consideration of this amendment. In Committee, I remarked that I understood that, under the current system, failed asylum seekers—and we are talking only about those who have failed all the various avenues of appeal open to them—who are in receipt of hard case support are already allowed to make a contribution to our community by taking up voluntary work. The Minister did not seek to contradict me on that point, so I assume that must he the case. I would be grateful if he could confirm that, and if he could tell the House how many of the failed asylum seekers have, over the past year or two, actually volunteered to take up voluntary work in order to give something back to this community from which they are getting support. Of course, these are people who should not be here and who are awaiting removal.
I would also be grateful if the Minister would give the House some indication of the experience the voluntary organisations have had in managing such persons. I raised these issues in Committee, so they do not come as a surprise to the Minister. I hope he has had a chance to consult his officials between then and now, and has a response. The noble Lord, Lord Avebury, was right to refer back to my concerns about costs in managing this. I will go into more detail in my Amendment No. 2. It has certainly been my experience that when voluntary organisations are managing people, they want them to be true, openhearted volunteers, otherwise it becomes very expensive and difficult either to train them or to get any meaningful contribution out of them. It is a very difficult area for voluntary organisations.
The noble Lord, Lord Avebury, referred in his closing remarks to numbers and costs. I will deal with that in detail, on the more practical side of my amendments. But the noble Lord, Lord Avebury, has addressed the whole issue of principle about whether or not people should do what he calls "forced labour". I call it directed labour, but it is certainly a contribution to the community in recompense for the financial assistance and accommodation which that person has received here.
My noble friend Lady Carnegy of Lour was right to direct us to the fact that the public is likely to have some sympathy with the idea that people should give something back to a community which has been supporting them, when those people have no valid claim to remain here. It is also right that some persons cannot return, as yet, to their country of origin. The noble Lord, Lord Avebury, has mentioned Zimbabwe, and he has far better information about particular details of individual cases than most other Members of this House. As a class case, that is a prime example of a country to which it is difficult for people to return. 18 My noble friend Lady Carnegy was also right to refer to public concern—echoed by the noble Countess, Lady Mar—when she talked about the issue of the New Deal. It is not just the Minister who likens this to the New Deal. The Home Secretary also did so in the press release that came out in April, when this idea was first vaunted after the so-called summit on immigration that the Prime Minister called at Downing Street. The difficulty I have with that attempt to liken this to the New Deal is that the implications for the people concerned are at the other end of the scale. For example, if you are going on the New Deal, it is holding out a hope for a better future in employment to you. This is certainly no New Deal, even in my eyes—I say to the noble Lord, Lord Avebury—because this is not a launch pad to success, it is a launch pad back to failure. I found that an extraordinary comparison.
A comparison that we do need is the one that the noble Countess, Lady Mar, brings forward, and that is one of costs and management. I shall return to the detail of that in Amendment No. 2. But the Minister has a duty to look at the whole principle of directed labour, and how that falls within all the rules by which we are governed through ECHR and other international agreements, as well as commonly accepted views about what you can and cannot force people to do with the ultimate penalty of withdrawing from them the roof over their head.
§ The Minister of State, Office of the Deputy Prime Minister (Lord Rooker)
My Lords, given that the first three amendments are all on the same clause, are obviously not grouped, and a lot of general points have been raised, I will try to stick to the points relating to Amendment No. 1 so that I am not repetitious when I come to points relating to Amendment No. 2. There has been a decision to keep them separate, although they revolve around the same issue, notwithstanding the fact that the noble Lord, Lord Avebury, said that he was opposed to the whole point in principle. He made a speech that was slightly disconnected from the amendments, because he was raising other matters unrelated to the accommodation situation of failed asylum seekers in receipt of special hardship money—of which, as I said in Committee, there are about 500.
§ I respond first to the noble and learned Lord, Lord Mackay of Clashfern. We are flexible Ministers, and it makes the job more interesting, no doubt about it. My colleagues in the other place do not quite understand it, but I am gradually educating them. I thank the noble and learned Lord for his remarks.
§ If there is an opposition in principle, then nothing I say is going to make the slightest bit of difference, even though I will try and meet the arguments—some of which, of course, are ones that I repeated in Committee. On the other hand, we need a system to work and, as I said in Committee, this system will be subject to detailed regulations which I am not, of course, in a position to share with the House at the present time. They will be by affirmative resolution, so this is not the last point in the primary legislation that we shall deal with this. We will have an opportunity in the detail of the regulations to look at all of the circumstances, because we have to do that.19
§ It is true that failed asylum seekers can volunteer at present. I do not have any statistics about it. There is nothing in this world to stop anybody volunteering for anything. By definition there would not be. There is obviously an issue about paid employment. People are not able to take paid employment, but that does not mean that they cannot volunteer. To my certain knowledge, some failed asylum seekers do volunteer in various parts of the country but I do not have any statistics. Of course, those people may not be failed asylum seekers subject to hardship money.
§ There are a lot more failed asylum seekers than the 500 covered by this clause. We must be clear about that as the statistics that the noble Lord, Lord Avebury, gave involved a substantially greater number than that. This clause concerns people who are in receipt of hardship funds under Section 4. The central point of principle of the amendment and the new clause is that people should not get something for nothing.
§ As I said in Committee, we are committed to offering support under Section 4 to those who cannot maintain themselves and who are not in a position to leave the UK immediately. They will be due to leave at some time in the future but when they will leave cannot be predicted. We discussed this matter in Committee. Where a person is complying with the necessary redocumentation procedures and is seeking to return home voluntarily but cannot because there is no viable route, we should not leave him destitute. That is what Section 4 money is for.
§ This provision is not a punishment. I made that absolutely clear. It is simply a requirement that those in receipt of that support put something back into the community. I did not give examples but I made it quite clear that the contribution would be expected to be local to the circumstances of the person concerned. He would not be bused around the country on, in effect, gainful employment as a result of this. It would be local to his living circumstances and maybe would even be related to his own community. I gave those examples. I do not think I have any more but by the time that we come to regulations we certainly will have. We expect the work to be carried out in the immediate environment of the person who is receiving support. Indeed, it could be the upkeep and maintenance of his own accommodation, which might be being done by someone else at present. It will be local community work. That is what we will delineate in the regulations.
§ Other points that were raised in Committee were touched on again today. All the activities will be of value. They will not simply be activities performed for their own sakes. The activities must be beneficial to the public or to a section of the public. That is what the clause requires. The value of the activities is more difficult. I mentioned New Deal but we are dealing with a different situation. I fully accept the point that New Deal is about prospects for the future. This is slightly different but we are demonstrating that there are people with expertise in developing programmes. They could utilise their experience to develop a strategy for giving something back rather than for getting people into long-term work because these 20 people have no prospect of long-term work in this country. We will utilise people's skills. That makes good sense and I admit that we do not take account of them at present.
§ This is a slightly different situation for this narrow group of about 500. We are looking to put a flexible measure on the statute book that can meet circumstances that can change from time to time. We may be legislating for today and using figures based on today but we want to put something on the face of the Bill, and in the regulations, that can meet changed circumstances in the future. As a point of principle, that is what we are seeking to promote.
§ I also accept that there is a logical case for people to say, "Let them work and earn their keep". But since the time that I had day-to-day responsibility for this, we have repeatedly said that that sends the wrong signal. It sends the wrong signal so that people come here to claim asylum when basically they are economic migrants. That is why we have opened up many other managed migration routes so that people do not have to claim asylum or to put themselves in the hands of people traffickers. If we allowed paid employment, which has got a seductive ring to it, it would send the wrong signal to people in various communities. We want to maintain the distinction, which sometimes gets mixed up, between immigration and asylum. They are quite different.
§ I do not think that there is any argument, except perhaps from the noble Lord, Lord Avebury, that these are people who have been through the system and failed. I fully accept the examples that he has given. I do not deny them at all. But these are all people who have gone through the whole of the system and have no further prospect of any judicial or legal arrangements for making their claim for asylum. Their claims are finished and have been dismissed. They are at the end of the line. It is simply that for various reasons they cannot get on a plane or a boat to go back home and they cannot maintain themselves. I cannot say whether the people returning to their own countries are just going to Iraq and Afghanistan. It varies from time to time. I know from papers that crossed my desk when I was at the Home Office that there were people of other nationalities who could not be returned, even though they were failed asylum seekers. However, that was nothing to do with Section 4. There are other situations.
§ 3.45 p.m.
§ Lord Avebury
My Lords, can the Minister give me one example of another country, besides Iraq and Afghanistan, to which a person is unable to return?
§ Lord Rooker
My Lords, it depends on the person's circumstances. If it is by nationality, then I cannot answer the noble Lord off the top of my head and I will take advice. But there have been occasions when people, who were not from Iraq or Afghanistan, could not be returned, even when their asylum claims failed, 21 because of their particular circumstances. I not sure whether that would apply to a particular nationality in general. But I know from the time that I was at the Home Office that there are cases.
§ There is further work to be done. I freely admit that and I said so in Committee when we touched on consultation. I want to make it absolutely clear that there will be major consultation with the stakeholders before the regulations are laid and brought before this House. I could not come to the House with the regulations—assuming that this clause gets into the Bill and that it receives Royal Assent—unless we had consulted on the practicalities, systems and processes that will be put in place. We will consider the precise form of this exercise but we recognise that many of the organisations referred to in earlier debates will be able to inform our thinking.
§ We do not have a closed mind on this or a secret scheme that we want to impose. We want to get the principle of the legislation on the statute book to give us the authority to go out to negotiate and consult with practioners who have experience. Some of them have had failed asylum seekers working for them on a voluntary basis so they will have experience that will help to shape the regulations. I repeat that the regulations will be subject to the affirmative procedure so that we will have a full and frank debate on them before the system comes in.
§ Parliament and the public need to make sure that the asylum and immigration processes are being managed properly. It is true that these are extra measures that were not in the Bill to start with. They are allied with and connected to the success in halving the number of asylum applications. The more balanced and proactive approach to managed economic migration is helping to achieve that end. But one single policy objective will not solve the problem. We need to do them all. That is why we have opened up other routes of managed economic migration in recent years so that there is no need for people to claim asylum when they are economic migrants after a job and a new life.
§ We think that requiring people whose asylum claims have failed to participate in community activity while the taxpayer is supporting them enhances the balanced approach. It helps to send the right signals down the line. We know that policy changes and sending signals down the line affect the flow of asylum claims. There is no question about that and we have known it for years. We recognise that there is a cost to the taxpayer in providing support under Section 4 and I freely admit that I cannot put a figure on it. The cost per job might be irrelevant at the present time. When the regulations come forward we shall have more information about finance which can be given to this House.
§ Nevertheless, we are legislating in principle and flexibly for the future and not just for present circumstances. As we are legislating for the future one cannot predict exactly what the costs will be. The failed asylum seekers who are unable to participate in community activities should contribute to the cost to 22 the taxpayer by giving something in return while waiting to return home. All we are doing is asking a small number at present—we hope that it does not grow—of recipients under Section 4 to make a short-term contribution to their keep.
§ The noble Lord asked about that and I have touched on the question of cost. As part of the consultation we shall have to provide information regarding the cost of the programme and how we deliver one which is flexible enough to meet the circumstances.
§ As regards Somalia, I was conscious of what the noble Lord said today and what he said at Committee. Since 31 March this year we have been enforcing the return of a small number of Somali failed asylum seekers to Mogadishu, as the noble Lord is aware. This is not a policy change. Since October 2002, when we ended blanket country-specific exceptional leave policies, all asylum applications from all nationalities are considered on their merits. That renders Somali failed asylum seekers removable. The returns started when we opened a route to enable us to effect returns to Mogadishu. We are not returning vulnerable categories and are returning only very small numbers to southern Somalia. That is the current situation; it is not a policy change.
§ I freely admit that these assurances are not much greater than I was able to give at Committee. It is a point of principle. In due course we shall have detailed regulations. Heaven knows how long they will be, but I expect that they will be in greater detail than the clauses on the face of the Bill as they have to show how the system will work, the cost and the appeal mechanism. I made it quite clear that funds will not be cut off just because someone cannot carry the appeal process through. I shall touch on this matter when we come to the other amendments. I do not want to go down that route at present because the first three amendments all deal with the same group of people.
§ With these assurances I hope that this amendment will not be pressed. It is an issue that we shall return to when the regulations are brought to the House, if not at Third Reading.
§ Lord Avebury
My Lords, I have to disappoint the Minister if he hopes that the reply he has just given will satisfy us on these Benches. The only information we extracted from him, which was something of which we were aware already, was that there are compulsory returns to Mogadishu. I was very disappointed that the Minister was unable to give us any information about the composition or the nationalities of the people at present receiving Section 4 support. He could not even say whether there were any other nationalities among them apart from the Afghans and Iraqis I have already mentioned.
§ To make a half-baked proposal, as the noble Baroness, Lady Carnegy of Lour, described it, without any further information about the cost or the impact on the local authorities which will have to run the scheme, is grossly unsatisfactory. I ask for the opinion of the House.23
§ 3.54 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ *Their Lordships divided: Contents, 40; Not-Contents, 123.24
|Division No. 1|
|Addington, L.||Maddock, B.|
|Alton of Liverpool, L.||Northover, B.|
|Avebury, L.||Oxford, Bp.|
|Beaumont of Whitley, L.||Phillips of Sudbury, L.|
|Bradshaw, L.||Redesdale, L.|
|Carlile of Berriew, L.||Rennard, L.|
|Clement-Jones, L.||Rodgers of Quarry Bank, L.|
|Dholakia, L.||Roper, L. [Teller]|
|Ezra, L.||Sandberg, L.|
|Falkner of Margravine, B.||Scott of Needham Market, B.|
|Finlay of Llandaff, B.||Sharp of Guildford, B.|
|Garden, L.||Smith of Clifton, L.|
|Goodhart, L.||Steel of Aikwood, L.|
|Hamwee, B.||Taverne, L.|
|Harris of Richmond, B. [Teller]||Thomas of Walliswood, B.|
|Holme of Cheltenham. L.||Tordoff, L.|
|Leicester, Bp.||Wallace of Saltaire, L.|
|Lester of Herne Hill, L.||Walmsley, B.|
|Mackie of Benshie, L.||Waverley, V.|
|McNally, L.||Williams of Crosby, B.|
|Acton, L.||Gibson of Market Rasen, B.|
|Ahmed, L.||Gilbert, L.|
|Allenby of Megiddo, V.||Golding, B.|
|Amos, B. (Lord President of the Council)||Gordon of Strathblane, L. Goudie, B.|
|Ampthill, L.||Gould of Potternewton, B.|
|Andrews, B.||Graham of Edmonton, L.|
|Archer of Sandwell, L.||Grocott, L. [Teller]|
|Ashley of Stoke, L.||Harrison, L.|
|Ashton of Upholland, B.||Hart of Chilton, L.|
|Bach, L.||Haskel, L.|
|Berkeley, L.||Hayman, B.|
|Bernstein of Craigweil, L.||Henig, B.|
|Bhattacharyya, L.||Hilton of Eggardon, B.|
|Boothroyd, B.||Hogg of Cumbernauld, L.|
|Borrie, L.||Hollis of Heigham, B.|
|Brooke of Alverthorpe, L.||Howarth of Breckland, B.|
|Campbell-Savours, L.||Howells of St. Davids, B.|
|Carter, L.||Howie of Troon, L.|
|Christopher, L.||Hughes of Woodside, L.|
|Clark of Windermere, L.||Hunt of Kings Heath, L.|
|Clarke of Hampstead, L.||Irvine of Lairg, L.|
|Corbett of Castle Vale, L.||Jones, L.|
|Crawley, B.||King of West Bromwich, L.|
|David, B.||Kirkhill, L.|
|Davies of Coity, L.||Lea of Crondall, L.|
|Davies of Oldham, L. [Teller]||Levy, L.|
|Dean of Thornton-le-Fylde, B.||Lipsey, L.|
|Desai, L.||Lofthouse of Pontefract, L.|
|Dixon, L.||Macdonald of Tradeston, L.|
|Drayson, L.||McIntosh of Haringey, L.|
|Dubs, L.||McIntosh of Hudnall, B.|
|Elder, L.||MacKenzie of Culkein, L.|
|Evans of Temple Guiting, L.||Mackenzie of Framwellgate, L.|
|Farrington of Ribbleton, B.||Marsh, L.|
|Faulkner of Worcester, L.||Masham of Ilton, B.|
|Filkin, L.||Mason of Barnsley, L.|
|Fitt, L.||May of Oxford, L.|
|Fyfe of Fairfield, L.||Merlyn-Rees, L.|
|Gale, B.||Mishcon, L.|
|Gavron, L.||Mitchell, L.|
|Monson, L.||Smith of Leigh, L.|
|Morgan, L.||Stallard, L.|
|Morris of Aberavon, L.||Stone of Blackheath. L.|
|Morris of Manchester, L.||Strabolgi, L.|
|Palmer, L.||Taylor of Blackburn, L.|
|Patel of Blackburn, L.||Temple-Morris, L.|
|Pendry, L.||Thornton, B.|
|Peston, L.||Tomlinson, L.|
|Pitkeathley, B.||Triesman, L.|
|Plant of Highfield, L.||Truscott, L.|
|Ramsay of Cartvale, B.||Tunnicliffe, L.|
|Randall of St. Budeaux, L.||Turnberg, L.|
|Rendell of Babergh, B.||Turner of Camden, B.|
|Richard, L.||Uddin, B.|
|Rooker, L.||Warner, L.|
|Rosser, L.||Warnock, B.|
|Sainsbury of Turville, L.||Weatherill, L.|
|Sawyer, L.||Whitaker, B.|
|Scotland of Asthal, B.||Whilkins, B.|
|Sheldon, L.||Williams of Elvel, L.|
|Simon, V.||Williamson of Horton, L.|
§ [*See col. 31]
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.4 p.m.
§ Baroness Anelay of St Johns
moved Amendment No. 2:Page 11, line 39, leave out "appear to the Secretary of State to be" and insert "the Secretary of State has reason to believe are
§ The noble Baroness said: My Lords, we now reach a couple of probing amendments in quick succession, Amendments Nos. 2 and 3, which will look at the specific details of the Government's proposals. I am grateful to the Minister for saying that he would save his notes on the details until these amendments. In normal circumstances, I would happily have grouped them with Amendment No. 1. I was not in a position to be able to do so today because it struck me that the vote on Amendment No. 1 might be lost. Since it has been lost, if I had grouped my amendments with it, at Third Reading it could be judged that the issue had been decided, and I would not be allowed to bring back the amendments. The advice is always not to group them. I always seek advice on this from independent sources such as the Public Bill Office. One must always be careful. Therefore, my amendments have not been grouped.
§ It is important to look at the detail. The Minister has sought to pre-empt the questions by saying in the debate on Amendment No. 1 that he still does not know any answers. I hope that he might now know one or two, if not all the answers. I am probing the issue of what kind of purposeful activity the Secretary of State can order a failed asylum seeker to do under the provisions of Clause 10. In his previous remarks, the Minister said that with regard to the issue of the voluntary work that is or is not undertaken by those with a special category, he is not able to give details today. I am disappointed by that, because I would have thought that before the Government pushed ahead with introducing this skeleton proposal, they would have looked at alternative proposals already in place to see whether they were successful. The prime 25 alternative would involve establishing whether provisions stating that one can do voluntary work have proved to be successful, and how much they cost to manage. The Government have failed to do that. They have simply pressed ahead with a policy of compulsion without proving either way if the existing policy of volunteering works. It looks again as though we have a headline without any story behind it.
§ What progress have the Government made, if any, since Committee stage in working out how the new policies will be put into effect? The noble Lord, Lord Rooker, said that the details will come in regulations. At this stage, the Government have a duty to explain to the House and to the public what reasons they have for bringing forward this policy and how it will operate.
Looking at Amendment No. 2 in detail, the Government's drafting of Clause 10(7)(a) gives the Secretary of State the power to direct a person to work at anything that appears,
to the Secretary of State to be beneficial to the public or a section of the public".
My amendment removes the vagueness that is implied by "appears", and requires the Secretary of State to have some proper reason that the directed labour would be for the good of the public or part of it. The question must be what kind of directed labour the Government have in mind. So far, all that the Minister has said to the House is that it could be local to them. That seems sensible. He says that there could even be some running repairs on the accommodation that they are enjoying. I have seen many television programmes about houses of horrors. It sounds as if another television series could be spawned here about failed asylum seekers and what they do to their accommodation. How people's abilities are best used during the brief period that they hope to remain here before they are removed is a serious matter. At least, we hope that it is a brief period; they might hope that it is longer.
§ How will the Government decide whether the directed labour is for the good of the public or part of the public? Will they take into account the cost of managing that directed labour? Or will cost be a separate matter, and will they simply go for looking at the type of activity, whatever the costs of implementing the management of that? Do they expect the cost of managing each placement to be more or less the same as the cost of managing community penalties?
§ The Minister has recently said that the costs that he will be able to talk about today are the costs as they stand now and that things can change. Of course, numbers of failed asylum seekers can change. That is right; they can wax and wane, but surely the cost of managing schemes does not necessarily change if one has in mind the proper administration of these schemes. I am looking at the cost of the placement, not the global costs, which I appreciate will change according to the number of failed asylum seekers who may be subject to this direction. Of course, one must recognise that the Government do not necessarily have to direct all failed asylum seekers to carry out directed 26 activity—just some may be involved. The numbers may change, but surely the management of the placement should be estimated.
§ My concern, as I mentioned in Committee, is simply that the management of this scheme may be out of all proportion to the benefit that may be gained by any part of the community. What discussions have the Government already had with the Local Government Association about their willingness to become involved? What have been the results of those discussions? Have the Government had discussions with any private companies about taking on the management of such schemes?
At Committee on recommitment, the Minister said the Government:
do not, at this stage, want to be restrictive"—[Official Report, 15/6/04; col. 648.]
about what labour will be redirected. They want flexibility. He repeated the term flexibility again today, but it is only common sense that an individual should be asked to do only that work that is appropriate to them and within their capability.
§ I am not opposing that idea, but the Government have so far hidden their lack of policy about the scheme behind this general argument that in this clause we should write a blank cheque for whatever the Government think they might do at some stage in future. I beg to move.
§ Lord Avebury
My Lords, I dread to think what might happen to the accommodation if the failed asylum seekers are let loose on the plumbing or the electrics. I wonder whether the Minister, when he gives further thought to this idea, will conclude that to match the capacities of failed asylum seekers to tasks which are available within the locality, as he explained, and can be properly managed by the local authority will be extremely difficult.
§ People who have particular skills, such as the doctor I mentioned from Zimbabwe, who in any case is not eligible for Section 4 support, which does not apply to Zimbabweans, would not be able to work in the local hospital because the Minister carefully underlined the fact that none of this work is long-term in nature. So there will be people with skills that might be employed for the good of the community but which cannot actually be incorporated into these schemes because they are not of the nature that the noble Lord, Lord Rooker, has described.
As regards Amendment No. 2, in the name of the noble Baroness, Lady Anelay of St Johns, the Minister said in another context on the last occasion that he did not think that,
in practice there would be any significant difference between these two forms of wording".—[Official Report, 15/6/04; col. 677.]
Where it appears to the Secretary of State to be so, then he has to have reason to believe that it is so.
I have found examples of both usages in previous legislation. In Section 6 of the British Nationality (Hong Kong) Act 1990, a person shall not be registered as a British citizen if the Secretary of State has reason to believe that he is not of good character. Section 33 of the
Companies Act 1989 allows the Secretary of State to withdraw recognition from a body that qualifies auditors in other jurisdictions where he has reason to believe that membership of the body no longer meets the required standards. On the other hand,
appear to the Secretary of State
is a more common usage in immigration legislation, as for example in Section 22 of the 1999 Act, which allows the Secretary of State to make transitional provisions regarding a code of practice to avoid unlawful discrimination such as appear to him to be necessary or expedient. I an not sure whether it is necessary to spell out the equivalent of the two expressions, since on the basis of Pepper v Hart, a court would be able to make reference to the Minister's statement of 15 June.
§ Baroness Carnegy of Lour
My Lords, my noble friend is absolutely right to probe the Minister about what kind of jobs failed asylum seekers are likely to do under this scheme. When the Home Secretary gets the bit between his teeth, he does sometimes come out with some fairly draconian ideas. We need to look at this whole provision pretty carefully, when we know what it is.
§ In the mean time it is doubtless helpful for the Government to see what the problems and possibilities are. The most important point about these community activities is that they are seen by those failed asylum seekers who are doing them and by the public as genuine, useful, local projects. They should not be artificial. If work is made deliberately for this purpose it will be very disillusioning for everybody. The failed asylum seekers will be carrying the reputation of this country home with them, and it is very important that they do not have as the last thing they remember being made to do a useless job, on pain of losing support. It is very important that it is a serious, proper job.
§ 4.15 p.m.
§ As I mentioned in Committee, I go back in my public life as far as the Manpower Services Commission, in which I played a considerable part over several years. One of the problems then was measures for the long-term unemployed, and how to get genuine jobs from local authorities and voluntary organisations which people could see were useful. They were not necessarily jobs training them for the future, but they helped them by alleviating long-term unemployment and giving them satisfaction and a certain will to work when they could get a job.
§ It proved very difficult to do, and there was a lot of disillusionment when the public saw jobs being created which cost a lot of money to provide, to so little advantage for the community because they were artificial jobs. I think it is a problem that the Home Secretary should recollect; it occurred up to a point with the New Deal, although not in quite the same way. The Home Secretary is, luckily for him, a great deal younger than me and probably does not 28 remember the problems there were. It would be worth looking back at the records to see what the problems were.
§ It may be that when the cost is worked out and the job satisfaction is, over a limited period, seen to be low for the participants while the disillusionment of the public is seen to be high, it would be better to have a voluntary scheme. That would be seen as something quite different and could in fact be cheaper. I hope the House does not feel I am wasting time by mentioning these facts, for I think they are relevant.
§ The Countess of Mar
My Lords, the noble Baroness, Lady Carnegy of Lour, has made some very valid points. I, too, remember the Manpower Services Commission, the Youth Opportunities Scheme and all sorts of other schemes that have been given a whirl, so to speak. I used to serve on a committee with a lady who would start off by saying something like "Wouldn't it be nice...". We always knew that "Wouldn't it be nice..." meant that something totally impractical was coming out. That is what I am reminded of in this case. We have seen in the Daily Mail that everybody is upset that we are providing all this accommodation and food for all these people who should not be here anyway, so let us make them work for their food. Well, that is fine, but at what cost? I keep trying to extract from the Minister what the cost is.
§ There will now have to be a management team in every local authority area that has failed asylum seekers. Whether they have one or one hundred does not make any difference; the management costs will be the same. The costs per job may be different, but the management costs of setting up the framework will be there and it seems likely to me that they are going to be expensive. We need to know how much the Government expect it to cost. There are all sorts of other instances from which they can extrapolate figures. Maybe it is just 'Wouldn't it be nice...'.
§ Lord Rooker
My Lords, I shall address the points that the noble Baroness, Lady Carnegy of Lour, made about what were not perhaps the halcyon days of the Manpower Services Commission. I just ask her to remember that the Home Secretary, David Blunkett, entered the House of Commons in 1987. He entered as leader of Sheffield City Council. Therefore in the early 1980s I think he was more than well aware of the Manpower Services Commission, since as I recall its headquarters were in Sheffield. I, too, remember the criticisms in the early 1980s and some of the make-work schemes, and the way the MSC was really taken for a ride by lots of false community groups who went out and printed notepaper and created a group overnight, and got their handouts.
§ However, we are not living in the same world. Today some 28 million people are working in this country, but back in the early 1980s anyone would have said that that would be impossible to achieve. It is also virtually impossible today to be better off on benefits than working. We are living in a different world, one in which careful and sophisticated research is undertaken into training for genuine economic activity. That is not to criticise the MSC, which was a pathfinder operation 29 in those early days. I do not knock it. At the time there was a crisis with 3 million people unemployed. Something had to be done. However, the experience of the past decade or so, stretching back to the days before the present Government, means that we have enough expertise to ensure that we can provide good and purposeful activity.
§ I do not have individual figures for the costs. Indeed, even though the amendment is probing in nature, it is worth pointing out in response to what was said about the use of the words in other legislation that we do not believe that the proposed wording in the amendment would alter in any way the meaning of the clause, and is therefore unnecessary. Parliamentary counsel concurs with that view.
§ We want the Secretary of State to have some flexibility. We do not want to be restrictive at this stage. Community activities will not be limited to one particular task to be performed by everyone. Local authorities may or may not be involved. We have not conducted any consultation at the present time. This is a late addition to the Bill and, while it is not a unique procedure, it is unusual to recommit to the Committee stage. But we thought it best to raise and debate the issue in Parliament and then conduct the detailed consultations. However, we would certainly want to utilise any available skills of those affected and we would seek their views and preferences on the nature of the activities that would be most suitable for them.
§ As I said, however, there is no practical difference between the wording in the Bill and that of the amendment. The Secretary of State would be responsible for determining what activities would be suitable, and it is not that he would be able to act on a hunch. He could not get out of the wrong side of the bed one morning and decide to impose restrictions or suggest other activities. He must act reasonably in all cases. If not, his actions would be brought before the courts and subject to judicial review. It is not that he could act on a whim.
§ At this stage, and on the narrow issue of the wording and how the Secretary of State can lay down what might be thought of as suitable activities, I am quite happy to have this looked at again for the next stage, Third Reading, to clarify why this flexibility is needed.
§ I have not talked about work, accommodation and so forth. I was not thinking of a plumbing gang, or one of electricians, or a group knocking down walls and rebuilding staircases. The work may involve decorating or clearing rubbish, or perhaps cleaning stair and hallways, or maintaining gardens. It may also involve environmental work in the immediate vicinity of the failed asylum seeker, or assisting a local support group involved in similar activities, perhaps relating to the community to which the asylum seeker belongs. But, as I said, we have not conducted any detailed consultation; that is to follow. However, at this late stage, we have a radical and important proposal—I do not deny that—dealing with the policy point of ensuring that when asylum seekers go home, as they will 30 eventually, they are not able to say to their compatriots, "You can always get something for nothing in the United Kingdom". That message will stop.
§ Baroness Anelay of St Johns
My Lords, I am grateful to all noble Lords who have supported my objective here, which was to probe further what the Government are seeking to achieve by this policy proposal. The noble Lord, Lord Avebury, made the very proper point that some people among the target population will have skills that could be of real benefit to our community, but will not be in a position to use them because their stay over here will either be short or its length will not be determined. They will be difficult to manage effectively because they will not be able to say for how long they will be able to commit themselves.
§ The noble Lord, Lord Avebury, mentioned doctors in particular. We will all have seen the press reports over the past couple of weeks claiming that there is a considerable number of doctors among failed asylum seekers who could be of assistance, but who at the moment are not able to give anything back to the community. However, if the Government are able to make use of those skills in a constructive and cost-effective way, I do not think that any Member on these Benches would have qualms about the policy. We seek only a clearer picture of the kind of work that the Government are going to direct.
§ My noble friend Lady Carnegy took our minds back to the days of the Manpower Services Commission. I accept the historical case and the points made by the Minister, but I think that my noble friend sought to point out that whatever are the activities undertaken by failed asylum seekers under this scheme, they cannot be artificial, otherwise the scheme will not carry any credibility among the public, who will be paying for its management. It is important that the activities are of real benefit.
§ The noble Countess, Lady Mar, referred to the fact that the costs will be borne around the country. Someone will have to manage failed asylum seekers, even if there is only one such person in an area, on one occasion over a period of five years. A management team with the appropriate skills will have to be set up and those skills maintained because they cannot be allowed to fall away. Those probing questions were very valid.
§ The Minister looked first at the actual wording of the amendment, as must all Ministers, and responded by saying, as he did in Committee, "Bad luck, don't think that this adds anything to the Bill because it means exactly the same as the wording we have already". It is intriguing to note that on certain occasions in the past the Home Office has agreed to the addition of the words "reasonable grounds for believing"; but I shall not quibble on that. Provided that the Government intend that there should be a reason for the Secretary of State to believe that there will be a benefit before he makes a direction, that would satisfy me. My amendment seeks to probe the nature of the new beast of directed labour.31
§ The Minister said that the Home Secretary wants flexibility. The department is looking forward to considering how to develop the policy and will put it out to consultation. But the difficulty here is that, when the Home Secretary was asked by the press why he was doing this when the announcement was first made, his response was clear: because the Government had time to recommit it to the House of Lords and the procedure could be dealt with in this place. That is certainly a good reflection of his view of this House and I am pleased that he values us so highly. I shall remember that on the next occasion we engage in ping-pong. Given that he values us so highly as to make recommitment possible, I hope he will remember that the recommitment of these clauses will work effectively only if we have something that we can scrutinise properly. At the moment, I feel that I am tugging at cotton wool and not getting very far.
§ However, given that the Minister has, as always, properly and generously said that he will look again at these issues before Third Reading, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Speaker (Viscount Allenby of Megiddo)
My Lords, before proceeding to the next amendment, I must correct the voting figures for the Division that took place earlier on Amendment No. 1. The Not-Contents should have been 124 rather than 123.
§ 4.30 p.m.
§ Baroness Anelay of St Johns
moved Amendment No. 3:Page 11, line 45, at end insert—() prescribe the circumstances in which failure to comply with any requirement to participate in community activities shall constitute a breach of that requirement;
§ The noble Baroness said: My Lords, Amendment No. 3 looks at a very different aspect of the proposals for directed labour and concerns what the Government have done to look at the way in which breaches of the conditions imposed by the Secretary of State will be handled. New Clause 10 gives the Secretary of State the right to make it a condition of a failed asylum seeker receiving accommodation to participate in community activities.
§ I made it clear in Committee on recommitment, at col. 656 on 15 June, that the Government should explain to the House how they will deal with breaches of any requirement that is imposed as a result of subsection (6). Who will make the decision in the first instance about whether a person has properly performed their directed labour? Will there be guidelines to cover all organisations which take on the management role? Who will monitor the application of those guidelines? Will it be the IND? Who will do that?
§ I have in mind the debate on 17 June 2004 on the statutory instrument that brought into effect the Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2004 (Hansard: col. 908). That code prescribes stringent monitoring arrangements. It also 32 puts the burden of proof on the offender to prove to the police that the condition has been met. That raised in my mind where the burden of proof lies in that. Is that the kind of approach that the Government intend with regard to the imposition of conditions in Clause 10?
§ Does the failed asylum seeker have to prove that the conditions have been met? Or does the Secretary of State have to prove that they have not been met? Where does the burden of proof lie in this respect? I beg to move.
§ Lord Avebury
My Lords, I certainly agree with the noble Baroness, Lady Anelay, that we need more information about that. If you take the case that the Minister advanced, that the person would be working locally and he might even be doing some repairs on the accommodation given to him under these conditions, will a building inspector come along and look at the work? Does it have to be carried out properly? Or is it satisfactory that the person simply attends for a number of hours specified in the guidelines, irrespective of the quality of the work that he has done?
§ I said on the previous amendment that I dread to think what would happen if these failed asylum seekers are let loose on the plumbing or the electrics of the accommodation that they occupy. But supposing that they are, many of them will not be skilled in plumbing or electricity, and the quality of the work may be—to put it mildly—a little variable. Does that matter? If the person has applied himself simply to the task specified for a given number of hours, has he complied with the conditions which are laid down?
§ None of these questions has been answered. The Minister keeps on telling us that there will be guidelines at some point, but it is not satisfactory for Parliament to adopt a scheme on the blank-cheque assumption that at some point the guidelines will lay down properly exactly how the scheme is supposed to work.
§ Baroness Carnegy of Lour
My Lords, the noble Lord, Lord Avebury, is absolutely right, as is my noble friend. When the Minister was answering the last amendment, he said—probably addressing his remarks to me that it was important that the message that the failed asylum seekers took home when they eventually went, was that you do not get something for nothing in this country. Of course, I agree with that. That is a message that needs to go abroad with them and be spread about among their colleagues, and so on, who might be contemplating the same course of action as they have followed.
§ But there is another message about the justice that they met in this country. It is very important that they go away feeling that they knew what they were supposed to do in this job, they knew what they had to do in order to succeed and they knew in what respect they would fail. So it has to be absolutely clear. That message has to go abroad as well. The two should go together. I am sure that the Minister is nodding; he sees the point of what I am saying. But it means that this 33 scheme has got to be pretty clear and—to use a Scots expression—"I ha'e ma doots" whether that is possible.
§ The Countess of Mar
My Lords, the Minister keeps saying that we will see all these facts emerging in secondary legislation, but he must bear in mind that we have no ability to turn back secondary legislation. We might on paper, but that is very rarely done, and particularly if it is an affirmative instrument. So we are being presented with a fait accompli, not knowing what the "fait" is that is to be "accompli".
§ I am very unhappy about everything that is presented to us in these amendments. They were late, as the noble Baroness, Lady Anelay, has reminded us. The problem has been about for a very long time, as I said to the Minister in Committee. Her Majesty's Government are being unreasonable in asking us to agree something which has no basis, no solid foundations. We cannot do it.
§ Lord Donaldson of Lymington
My Lords, might I raise what I admit to be a lawyer's point, though I also think it is a point of good governance? You should not have a series of requirements and go on to provide what happens if you ignore them. The requirements themselves should contain their own exceptions. You either require, or you do not. That approach is, I think, a novelty. Certainly it is something which, as a lawyer, I very much regret.
§ Lord Mayhew of Twysden
My Lords, would the Minister undertake to give a clear answer to the point raised by my noble friend Lady Anelay about the burden of proof and where it lies and what the standard of proof shall be? Whether he or she has accommodation is of great importance to the failed asylum seeker. It is of extreme importance that this House should know what the legislation will provide so far as where the burden of proof lies.
§ I wonder whether the Minister is satisfied that a matter of that importance should be left to secondary legislation—to the regulations themselves when they are brought forward. I would like him to consider the suggestion that it ought to be on the face of the Bill.
§ Lord Rooker
My Lords, I agree entirely with the point made by the noble and learned Lord, Lord Mayhew. That is one of the areas that we only glanced at in Committee. I hope therefore that the assurances I am about to give will satisfy noble Lords on that point.
§ Amendment No. 3 would insert the provision for the Secretary of State to prescribe the circumstances in which failure to comply with the condition to perform community activities would constitute a breach of that requirement. The clause as contained in the Bill already allows the Secretary of State to set out in regulations the circumstances where a failure to comply with a condition of support under Section 4 would lead to termination of that support. So, in some ways, we do not believe that the amendment is necessary, but it is clearly helpful.34
§ I will remind my right honourable friend the Home Secretary—as I have done in the past—that the level and quality of scrutiny of Ministers in this House is far superior to that in the other place. I will not be contradicted by anybody on that, because I have experience of both. But one does need something to scrutinise, and I fully accept that I have not got all the answers here today. What I want to do is set out in broad terms how we envisage the arrangements working although I accept that I have to come back with more precise details later.
§ In introducing the new clause in Committee, I emphasised how we believe that those in receipt of Section 4 support should give something in return. It follows from that that there should be a sanction if someone fails to comply with a requirement of that support. So, a person failing to comply with a requirement to perform community activities—and I emphasise that they are community activities—or failing to comply with the other conditions under which Section 4 support is provided, would be liable to have that support removed.
§ It is worth stressing that we have recognised that there will be exemptions from the requirement to undertake community activities. We need to take account of situations where a person is unfit or unable to participate, or situations where they are temporarily unable to do so—where, for example, they are attending an interview to get their travel documentation organised. That is not a five-minute task in these circumstances. So when I refer to a breach for a failure to undertake community activities, I am dealing with those people who are able to participate and, indeed, expected to do so.
§ We have to he reasonable in operating this system. We do not envisage a situation where support would be terminated immediately as soon as we identify that a person has not taken part in an allocated activity on a particular day. We would naturally want to establish why that person had failed to participate in the community activities and whether there was a good reason for not having done so.
§ This means contacting the individual and the organisation managing the community activities or accommodation. I am presuming that a record system will be clearly set up and that there would not be any argument about whether the person had turned up to the activity in the first place. The records should be adequate for that. So, if a person has not turned up, we need to find out why.
§ Where we believe it to be appropriate, the failed asylum seeker might be issued with a warning. It would be quite reasonable not to apply the sanction at the point when it was first thought a breach had occurred. This would remind the individual of the requirement to perform the community activities as a condition of receiving support and the consequences of failing to do so. This is similar to normal, good human relations practice in industry for breaches of contracts of employment and so on.35
§ Failure to participate again after the warning would lead to a termination of support unless there was a reasonable excuse for not having done so. We would need to consider all the circumstances of individual cases. However, I hope that it will not be seen as a matter of a person not turning up and of support being immediately withdrawn. That will not be the situation.
§ I should remind your Lordships' House—I alluded to this in Committee without giving any detail—that there will be a clear safeguard of a right of appeal to the asylum support adjudicator, who will be able to examine the reasons for the Secretary of State's decision and consider whether it was reasonable in all the circumstances.
§ It is important to emphasise that a person from whom Section 4 support is withdrawn will be able to reapply provided that he or she accepts the conditions under which the support is provided. So there is a very clear way in which a person can avoid the consequences of termination of the support.
§ I cannot go into further detail at present. I hope to come back with more information at Third Reading and by the time of the regulations, which I freely accept are not amendable. But there is nothing new in bringing forward a proposal in principle in primary legislation that is to be operated by regulations which, although not amendable, can be subjected to fairly detailed scrutiny.
§ The safeguard in this legislation is that the Secretary of State cannot act on a whim—he has to act reasonably—and there will be a right of appeal to the asylum support adjudicator against the Secretary of State's decision on the circumstances of the person concerned. I hope that these assurances will be sufficient for today. I hope to come back with further information at later stages of the Bill.
§ Baroness Anelay of St Johns
My Lords, I shall cut to the chase first and then go into more detail. We will need to return to this matter at Third Reading. I thank the Minister for making it clear that he expects that to be necessary and that he will try to come forward with further information.
§ The Minister said that there is nothing new about this; that it is not very rare to have a recommitment at this stage. It certainly is very rare. I know that it occurred in the Nationality, Immigration and Asylum Act 2002 because I was the beneficiary of that in my first ever Bill as a spokesman on Home Office matters. So I have been there, done that and got the T-shirt. However, it is certainly unusual.
§ I know that at the moment in another place the Government are seeking to insert a completely new section of policy into the Domestic Violence, Crime and Victims Bill. We shall have words to say about that when the Bill returns to this House. I am going to assist the Government—I am going to say something nice about them, just briefly—because the difference with 36 that Bill is that the Government have gone out to consultation first. They have now received some responses into which the Commons can now get its teeth, if that is not a mixed metaphor, and we shall have further discussions when that Bill returns here.
§ The difficulty with this Bill is that we have the headlines without too much of a story. Although the story is beginning to be written through the good offices of the Minister, we have not got the consultation. This is why we are all finding it very difficult to assist the House and the public generally to get a better picture of what the Government are trying to achieve. I think that I am on the Minister's side on this issue, which many others are not. So if I can make his life difficult, I am sure other people do far better.
§ 4.45 p.m.
§ I am grateful to the noble Lord, Lord Avebury, for returning to the issue of whether it is the quality or quantity of the performance that will be important. When he asked his question, it reminded me that another cost that we will have to throw into the pot is that of insuring these people and those working with them when they are taking part in these activities. That may well be a considerable amount.
§ My noble friend Lady Carnegy rightly referred to the importance of clarity in this policy. I am concerned that unless there is certainty in the policy proposed, there will be challenges to it and the Home Secretary will be back in court again.
§ I am grateful to my noble and learned friend Lord Mayhew for considering not only the issue of the burden of proof, which I raised, but also the important issue of the standard of proof. When the Minister responded to my noble and learned friend, he explained how the picture looks so far and how the process will go ahead. He was trying to be as helpful as possible. He said that the sanctions have to be reasonable; that one has to establish why a person has failed to perform work and whether there is good reason; and that he or she could be cautioned first.
§ I shall read very carefully in Hansard the Minister's explanation but it looks to me as though the burden of proof will shift as the decision-making process goes on. The burden of proof seems to start with the department and then shift to the individual. I want to consider carefully this issue and may wish to return to it in the future.
§ I was particularly intrigued by the comments of the noble and learned Lord, Lord Donaldson. He said that this provision was something of a novelty and I shall want to consider his view between now and Third Reading. Before I sit down, I give way to the Minister.
§ Lord Rooker
My Lords, for the avoidance of doubt, when I said that this is not unusual I was referring to the fact that this is primary legislation which will be activated by regulations. The procedure of recommitment is unusual—I accept that—but it is not unique; it happened 37 with the Water Bill and the previous asylum Bill. But it is not unusual to have the operation of the detail in regulations.
§ Baroness Anelay of St Johns
My Lords, I agree entirely with the Minister. I am sure that we will both work together to ensure that what is unusual does not become practice—because it would certainly be bad practice. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 11 [Accommodation for Asylum Seekers: local connection]:
§ Lord Rooker
moved Amendment No. 4:Page 13, line 11, after "apply" insert—(a) to the provision of accommodation for a person in a district of a local housing authority if he was subsequently provided with accommodation in the district of another local housing authority under section 95 of that Act, or (b)
§ The noble Lord said: My Lords, as I have explained previously, Clause 11 is designed to support the Government's policy of dispersing asylum seekers to appropriate areas of Great Britain in those cases where they are in need of accommodation and encouraging and supporting them to settle in the dispersal areas. It seeks to ensure that, in so far as possible, an asylum seeker establishes a local connection with his or her dispersal area for the purposes of Part VII of the Housing Act 1996—that is, the homelessness legislation.
§ This will mean that local authorities in other areas can refer former asylum seekers to the local authority in the area where they were dispersed, if they are owed a main homelessness duty and have not established the local connection for any reason in the area where they are making their homelessness application.
§ Amendment No. 4 seeks to solve an operational difficulty of Clause 11. As drafted, Clause 11 provides that a person establishes a local connection—we discussed in detail in Committee the purpose of the need for a local connection, so I shall not go into that—with any area where he or she is provided with accommodation under Section 95 of the Immigration and Asylum Act 1999. However, in some cases, accommodation may be provided under Section 95 in more than one area. That may include accommodation provided on an emergency or interim basis prior to dispersal.
§ That does not fully achieve the Government's policy for two main reasons. First, it is intended that asylum seekers should establish a local connection with the area to which they are dispersed, but, generally, not with an area where they are provided with emergency or interim accommodation. Dispersal areas are carefully selected for their capability to support longterm integration of former asylum seekers. Emergency or interim accommodation is not necessarily in an area which has the infrastructure to support integration. Secondly, although it is not exclusively the case, much emergency and interim accommodation is located in London and the south-east where the pressure on 38 social housing and other local government services is most acute. Of course that was the very reason why dispersal was introduced in the first place.
§ If an asylum seeker were to establish a local connection with an area prior to dispersal—for example, where he was provided with emergency accommodation in a district in London—and then, following a positive decision on his asylum claim, he became a refugee and sought homelessness assistance in that London district, the housing authority in London would be unable to refer the case back to the housing authority in the dispersal area. That is because one of the conditions for referral of a homelessness case is that the applicant has no local connection with the district of the authority to which the application has been made.
§ Moreover, even where a former asylum seeker makes a homelessness application in an area where he has no local connection, it would confuse matters if he had established a local connection in more than one other area as a result of being provided with accommodation under Section 95 in those areas. Amendment No. 4 would therefore ensure that the local connection is established with the last district where accommodation is provided under Section 95.
§ In the context of the asylum dispersal process, the last place where Section 95 accommodation is provided will be the dispersal area, rather than an area where emergency or interim accommodation has been provided. In cases where asylum seekers are not dispersed—that can be for many reasons—and are provided with accommodation under Section 95 in the area where they make their application for support, a local connection would be established in that area.
§ Finally, I address a point that I undertook to consider when we debated Clause 11 in Committee. Some concern was expressed that the clause heading was somewhat misleading in its reference to asylum seekers, since the clause deals with homelessness assistance for former asylum seekers who have been granted either refugee status or some other form of leave to remain. I have taken advice on the matter and I am satisfied that the clause heading is, in fact, correct. While it is true that we are looking at whether former asylum seekers have established a local connection, they will have done so when they were asylum seekers—that is, prior to the decision on their asylum application. We therefore consider that the clause heading as drafted is proper, which I was very interested to learn. I beg to move.
§ Baroness Carnegy of Lour
My Lords, the Minister has explained the matter very carefully. I think that I understand what he has said. May I take it that the clause heading will still apply if the amendment is accepted?
§ Baroness Carnegy of Lour
My Lords, while we are discussing the reasons for dispersal, will the Minister explain one matter? I read in the press that 25,000 empty houses across the country are rented by the 39 Government for the purpose of housing asylum seekers. They are empty but are costing the public £100 million a year. They are still empty because, when they rented the houses, the Government omitted to include a get-out clause to enable them to escape from the commitment when they no longer wanted the houses. Will the Minister confirm that? If it is true, it would be the most extraordinary waste of public money, and are the Government trying to do anything about it?
§ Lord Rooker
My Lords, I cannot answer the detailed point that the noble Baroness raised. If we had a large increase in the number of asylum seekers but not had accommodation available, we would have been rightly chastised. A degree of flexibility must be built into the system. I am not dismissing the costs that the noble Baroness quoted. Running the system costs more than £1 billion per year, which is the cost to the taxpayer. Some of those properties may have been held for a long time and rented on long-term contracts—which was the case when the national asylum support system started. As a result of dispersal and the potential collapse of social services in Kent, East Sussex and some of the London boroughs, there was a desperate need to spread asylum seekers around the country. Many emergency and quick-fix measures were taken, which the Government were duty bound to take, but I make no apology for that whatever.
§ I cannot comment on individual contracts, but there will always be empty properties simply because of the ebb and flow of the asylum list. The number of asylum applications has been cut in half and not every asylum seeker seeks accommodation. When a person claims asylum, we do not know whether he has accommodation in his community until he actually makes a claim. That is the reality. We cannot plan for what will happen when 70,000–80,000 asylum applications per year are being made. That figure has halved in the recent past so there is bound to be a surplus from time to time. I have given the noble Baroness a common-sense answer, without going into the detail of the 25,000 properties which she cited. It would not be possible for me to do that in any event.
§ On Question, amendment agreed to.
§ Clause 12 [Refugee: back-dating of benefits]:
§ Lord Rooker
moved Amendment No. 5:Page 14, line 23, leave out "paragraph" and insert "paragraphs 61 and
§ The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 6, 7, 8 and 9. Clause 12 expressly revokes the regulations which set out the current backpayments system that was established in Section 123 of the Immigration and Asylum Act 1999. I am pleased to announce that Amendments Nos. 5, 6, 7 and 8 make additional minor consequential changes to the regulations on housing benefit and council tax benefit as a result of these changes. They are not matters of substance.
§ Amendment No. 9 deals with an earlier backpayments scheme established under Section 11(2) of the Asylum and Immigration Act 1996. It would 40 revoke the regulations which preserve it for transitional purposes. Although the vast majority of claims for backpayments of income support are now made under the 1999 Act, to which I referred earlier, we want to ensure that the policy is applied consistently. Our policy is that backpayments will cease for all those who are recorded as refugees after the clause comes into effect, irrespective of when they made their claim for asylum; that is, irrespective of whether the application is covered by the 1999 Act or the 1996 Act. I beg to move.
§ Lord Avebury
My Lords, the amendments shed light on another example of the hasty and sloppy drafting of clauses in the Bill, particularly that of Clause 12, which repeals the backdating of benefits. References to benefits payable to refugees are buried in a whole warren of statutory instruments and the drafters of Clause 12 obviously picked up just some of them.
§ Section 123 of the Immigration and Asylum Act 1999 allowed a person who was recorded as a refugee, and who had not been entitled to any of the benefits specified in Section 115 during the period when his claim for asylum was under consideration, to claim back payment of the amount of benefits of various kinds to which he would have been entitled but for the provisions of Section 115. The repeal of Section 123 makes it necessary to remove the references in the secondary legislation to the benefits treatment of refugees since, at the point they are recognised, they will be dealt with in the same way as a British citizen.
§ 5 p.m.
§ The two sets of regulations already amended by Clause 10, which are now to be further amended by Amendments Nos. 5 to 8, have been updated several times already. Although Google finds some of the previous amendments, in the public domain there does not seem to exist a consolidated version of either the Housing Benefit (General) Regulations or the Council Tax Benefit (General) Regulations. How on earth benefit practitioners, let alone claimants, manage to find out whether they have any entitlement under those labyrinthine instruments is impossible to imagine.
On a previous occasion, Lord Williams of Mostyn said that he was thinking of having a T-shirt printed that read:
'I have always been attracted to Keeling schedules—Earl Russell'".—[Official Report, 13/11/00; col. 120.]
It would be even better if the departments which pile regulations on regulations, year after year, were compelled to publish on their websites the Keeling schedules of the statutory instruments concerned that they no doubt produce for their internal use.
§ At least Amendment No. 9 refers to regulations made in 2000 which have not yet been amended, so one could begin to see what it meant before the Minister's explanation. Regulation 12(1) simply applies Regulation 12(2) to a person who claimed asylum before 2 April 2000 and was then successful. But Regulation 12(2) refers to the income support 41 regulations, which are not available in consolidated form. We understand the logic of repealing the backdating, although we disagree with the Government's arithmetic; we shall come to that tomorrow evening. We can only hope, without much confidence, that the whole set of provisions in the clause that deals with backdating has finally been identified, and that others will not emerge after the Bill has left us and it is too late to deal with them.
§ Lord Rooker
My Lords, I should say, on a point of principle, that I do not know the details of the regulations on housing benefit and council tax that get consolidated. However, I have always thought it most unfair that the only general annual consolidation of the legal arrangements was in tax Acts. It seems as though the whole system is geared up for to tax practitioners and everyone concerned with that, but benefit lawyers and others assisting people in receipt of and claiming benefit do not get the consolidation that the tax lawyers get on a regular basis. What is more, that is not conducive to the good conduct of public administration. I have no policy to enunciate today about that, but in some ways I agree very much with what the noble Lord said.
§ On Question, amendment agreed to.
§ Lord Rooker
moved Amendments Nos. 6 to 9:Page 14, line 24, leave out "paragraph" and insert "paragraphs 50 andPage 14. line 35, leave out "paragraph" and insert "paragraphs 60 andPage 14, line 36, leave out "paragraph" and insert "paragraphs 50 andPage 14, line 36, at end insert—(2A) Regulation 12(1) and (2) of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (S.I. 2000/636) (which save for transitional purposes the effect of provision made for back-payment of benefits for refugees under section 11(2) of the Asylum and Immigration Act 1996 (c. 49)) shall cease to have effect.
§ On Question, amendments agreed to.
§ Clause 13 [Integration loan for refugees]:
§ Baroness Anelay of St Johns
moved Amendment No. 10:Page 15, line 8, leave out "appearing to him to be" and insert "he has reason to believe are
The noble Baroness said
My Lords, in moving Amendment No. 10, I shall speak also to Amendments Nos. 11 to 15. The purpose of the amendments is to ask the Government to put on record some explanation about their new loans for refugees and how they will be operated. I live in hope.
In Committee, the Minister said:
I have some notes but they do not go into detail. I shall have to do that on Report and when we come to the regulations".
Now is his opportunity for the first stage of the explanation. He said that the Government were,
currently conducting detailed work across departments—including the Department for Work and Pensions and, obviously, the Treasury—to establish how the loan might best be delivered. I am not in a position to give that information today".—[Officiol Report, 15/6/04; cols. 673–74.]
What information can he give to the House? What progress has been made?
§ Amendment No. 10 returns to the familiar theme of asking the Secretary of State to be required to take actions based on objective rather than subjective grounds. I accept the assurances given by the Minister to my earlier amendment, with regard to the fact that he considers that the Secretary of State is bound to act reasonably. Subsection (3) provides that regulations shall specify matters that appear to the Secretary of State to be relevant when he is deciding whether a loan should be made.
§ I have kept the amendment not only because I did not have reassurance on it previously, but because, when I considered the drafting of subsection (3) a little further, I wondered whether it was curious in terms of its construction. Does it accurately reflect what the Government intend? It makes it look as though the matters that the Secretary of State shall specify do not have to be those that appear relevant. That cannot be what the Government intend, but it is simply a result of the way in which the subsection is constructed. The reference to relevance is in the subsidiary part of the sentence, which seems to refer to only the additional matters, not the main ones. Might the Minister ask the draftsmen to have a look at that before Third Reading?
§ Amendment No. 11 has been tabled to ask the Minister to explain why the Government have restricted so closely the list of criteria set out in subsection (3)(a). The list illustrates the reasons why someone might receive a loan. My amendment says that the Government should also take into account the refugee's family responsibilities—whether he or she is responsible for a child or dependent adult. It also includes in the criteria consideration of whether the refugee has a partner or spouse with assets or income that can properly be taken into account. One assumes that that would be relevant to the criteria. Surely there would not be occasions when the Government would wish to avoid taking such matters into account.
In Committee on recommitment, the Minister said:
At this stage... we do not wish to be prescriptive about the matters that may be taken into account when considering whether to make the loan".)
One could be awkward—I enjoy being awkward—and say, if that is the case, why have a list at all? The Government must have started to think about the criteria, because they have started to have a list. There is always the same old problem as soon as one has a list—important issues appear not to be on it. I am certainly not arguing for the absence of a list. I am arguing for greater cogency from the Government about explaining to the House how they will make their decisions.
§ Amendment No. 12 would give the Secretary of State the ability to make the loan available by paying it in instalments rather than in one lump sum. Might the Government not consider that to be a useful tool? Surely there will be times when a person's financial circumstances change for the better shortly after the award of a loan. It might then be appropriate to give 43 the Secretary of State the chance to stop paying any further amounts, rather than having to pay the whole lump sum in one go and then have all the attendant problems of trying to recover amounts later on, if that is what he decides to do.
Amendment No. 13 makes it clear that, when the Secretary of State makes a loan, he should make provision about the level of interest to be paid. In Committee, the Minister said in reference to loans:
As a matter of general principle, we do not intend that interest will be payable".—[Official Report, 15/6/04; col. 678.]
That raised two questions. First, for what reasons would one not charge interest? Secondly, could the clause be used to charge some people interest and not others, at different levels? If so, could the grounds on which that decision was made by the Secretary of State be challenged as unfair and, if so, how?
Amendment No. 14 is an old friend—the changing
of a "may" to a "shall". In this case it is simply there to ask the Government to explain the purpose behind paragraph (e), which gives the Secretary of State the power,
to attach conditions to a loan (which may include conditions about the use of the loan)".
What kind of conditions do the Government have in mind—that the loan should be repaid within a
specified period, or used to buy a particular piece of furniture or kitchen equipment?
§ The last amendment in the group—Amendment No. 15—deletes subsection (3)(i). I remarked in Committee that I think the paragraph an extraordinary part of the clause. So far as I can see, it gives the Secretary of State discretion to do whatever he likes, regardless of what is in the rest of the clause. It looks as though the Government decided that they could no longer work out what the clause should provide and therefore it is a catchall to say that the Secretary of State can do what he likes.
§ I remain convinced that this is too much of a blank cheque but I am open-minded. I hope that the Minister can give us further information on why this apparently blank cheque has a bit of writing on it to which one can sign up. I do not want to see a system put in place that forces the Government to provide loans whatever the circumstances. Equally, I want a system put in place that is fair to the beneficiaries—the refugees we are trying to assist to become integrated in this country.
§ At col. 680, the Minister offered to give further consideration to the drafting to which I referred in Amendment No. 15. I tabled that amendment simply to give him an opportunity to fulfil that commitment. I beg to move.
§ Lord Avebury
My Lords, Amendment No. 15 concerns the discretion which is given to the Secretary of State under paragraph (i). Will it be exercised differently for the three classes of asylum seekers according to the incomes they received when their applications are under consideration?
§ As a result of the withdrawal of the backdating, we will have, first, people who have received the full support, the equivalent of 90 per cent of income support; that is, 44 subsistence payments plus accommodation costs. Secondly, there will be people who have received only of subsistence; that is, 70 per cent of income support. Thirdly, there will be people who, unfortunately as a result of Section 55, have received no support and will have been living on thin air during consideration of their application. The discretion of the Secretary of State under paragraph (i) could be applied differentially in favour of people who have been kept on short commons during the period of their application.
§ However, under subsection (3)(a)(i) and (ii), a person's income or assets and his likely ability to repay the loan must be taken into consideration by the Secretary of State. Therefore, a person who has been kept on the lowest possible income—or zero income because of Section 55—is likely to be denied a loan because the Secretary of State will be doubtful of his ability to repay. Such a person will have lost out twice. He will first have been deprived of support during the whole period of his application and then when he asks the Secretary of State for a loan he will be refused because his ability to repay will be in doubt. Was that really the intention behind the provision?
§ Baroness Carnegy of Lour
My Lords, if the Government decided to have a loan scheme, they must have considered some of the aspects raised by my noble friend Lady Anelay in these amendments. It will be interesting to hear how far the Government have gone on the thinking behind these provisions and to hear the Minister's reply to the noble Lord, Lord Avebury, who knows at first hand how the interaction of benefits with such a loan will work.
In particular, the Government should be able to answer Amendment No. 11 about whether children and dependent adults will be taken into account and likewise,
the income or assets of a person's spouse of partner".
I am particularly interested to hear the response to Amendment No. 15 because the wording of paragraph (i) is extraordinary. The Secretary of State seems to be able to do anything he likes about anything. Reading the Bill, I cannot see how the discretion is limited.
§ 5.15 p.m.
§ Lord Rooker
My Lords, perhaps I may start first on a winner—Amendment No. 12—because I moved my pages around as noble Lords spoke. It seeks to ensure that a loan can be made by instalments. We are intrigued by the amendment and at first glance what we understood to be the motivation behind it would appear to have considerable merit. There is no question about that. However, although we have included a provision on the face of the Bill to prevent a refugee receiving more than one loan, in the case of a larger loan there may be much sense in staging payments to the applicant.
§ It is the impression that the spirit of the noble Baroness's amendment could be achieved by the clause as drafted: by conferring a discretion on the Secretary of State to make a loan by instalments. This might go 45 some way to providing a reassurance, but we are going to take that amendment away and look at it. I hope to come back with further clarification at Third Reading.
§ The rest is not all negative, but I thought I would start with that amendment because it was my best shot. I hope that I can satisfy noble Lords with a little more detail than I was able to give on the first two or three amendments.
§ Amendment No. 10 seeks to amend those matters that the Secretary of State may take into account in determining whether or not to make a loan from those that appear to him to be relevant to those that he has reason to believe are relevant. We discussed the matter in Committee and we discussed a similar amendment in relation to Clause 10. I hope to provide further reassurance that we believe the amendment is not necessary.
§ I have explained that in relation to Clause 10 we continue to believe that in practice there is no difference between the wording that appears in the Bill at present and that proposed in the amendment. Where it appears to the Secretary of State that a matter is relevant, I think we can also say that he has reason to believe that that is the case.
§ From our previous discussion of the amendment, I understand that the noble Baroness seeks reassurance that the decision to make a loan will be based on objective grounds. As I will explain in more depth in response to the next amendment to the clause, the Government are keen to ensure that matters to be taken into account by the Secretary of State are sensitive to the particular features of refugees. Of course, the Secretary of State will have to act reasonably in determining matters that shall be taken into account when considering the loan application.
Amendment No. 11 seeks to add two further matters to those that the Secretary of State may specify in regulations that he shall take into account in determining whether or not to make a loan. These are,
whether or not that person is responsible for a child or dependent adult",
the income or assets of a person's spouse or partner".
The Government are aware that refugees are newcomers to the country and in many cases have not had either the time or the means to establish the necessary credit- worthiness to access low-cost loans through the commercial sector. It is self-evident that before they become refugees they cannot work. That is not to say that they are completely asset-free. Although the Home Office has no desire to enter the banking industry, we do wish to ensure that refugees can access a fund to help them establish themselves in the UK. It is important therefore that the criteria used to assess whether or not a loan should be made recognises that refugees cannot be considered against the same criteria applicable to the rest of the population. It is important we give this careful consideration if we are to identify criteria which do not militate against refugees receiving a loan.
§ Furthermore, the Government wish to make loans according to need and may wish to take into account a person's income and assets. I believe that in doing so it would make sense to consider the demands placed on the income and assets, such as the obligation to care for a child or dependent relative.
§ The Government wish to move towards a system that allocates funds on the criterion of need, but it is important to balance that with administrative costs. I have no doubt I shall be reminded of that sentence when we come back to the subject we debated in the first group of amendments today. Noble Lords are aware that the loan scheme will be funded solely from savings made from the abolition of back payments. We are committed to identifying a system to disburse loans which costs as little as possible in terms of administration, thereby leaving as large a proportion as possible for refugees. I emphasise that the loans will come from the savings. Therefore, so as not to undermine what I said about the first couple of groups of amendments and so as not to have my words thrown back at me, a financial "curtain" will apply.
§ The list in subsection (3) is not intended to be exhaustive; rather, it is an illustration of matters which the Secretary of State may include in regulations as matters that he shall take into account when determining whether or not to make a loan. It will be for regulations, subject to the affirmative resolution procedure, to reflect the detailed consideration being undertaken at present by the Home Office, the Treasury and the Department for Work and Pensions.
Amendment No. 13 seeks to remove the word "interest" from Clause 13(3)(d) and replace it with the words,
the rate of interest that shall be charged to each recipient of a loan made under the regulations".
As I explained in Committee, the Government do not, at this stage, have any intention of charging interest on refugee integration loans. However, we think it is important that the Secretary of State has the flexibility to make provision about interest in the event that it is needed in the future. Should a decision be taken to charge interest on any loan in the future, I would expect comparisons to be drawn with other loan schemes in operation across government, such as the student loan system. Certainly, in the event that it was decided in the future to charge interest, I believe that it would be a "low-cost" loan under the terms of the Consumer Credit Act. Any future interest rate attached to the loan scheme would be in regulations, subject to the affirmative resolution procedure.
§ As drafted, Clause 13 enables the Secretary of State to make provision in regulations about interest, should that be necessary in the future. We do not consider the elaboration of the amendment to be necessary on the face of the Bill, and we ask that it is not proceeded with. I hope that what I have said will be sufficient in that respect.
§ Amendment No. 14 seeks to make it mandatory for the Secretary of State to attach conditions to the use of a loan. It is intended that the refugee integration loan will be used on items and activities that facilitate 47 integration. Those could include a deposit for rented accommodation, vocational training, work tools or clothes, and furniture and so on. That is by no means an exhaustive list; it is simply an illustration and a flavour of the Government's intention regarding the use of the loan.
§ It is important that we retain sufficient flexibility to make a loan for a purpose which facilitates integration but which has not been thought of before. People can be very innovative. They get on their bikes, as it were, and reach this country through all the barriers. Many innovative, entrepreneurial people are out there and they will think up reasons for wanting to integrate activities which we would never think of putting in legislation but which we would want to support. Therefore, we need flexibility, and we do not think that it is right to place a mandatory duty on the Secretary of State to make regulations specifying the conditions which will be attached to the use of the loan.
§ Amendment No. 15 seeks to remove the regulation-making power which enables a discretion to be conferred on the Secretary of State. I reassure noble Lords that the intent behind subsection (3)(i) is to confer a discretion on the Secretary of State for the purposes of a refugee integration loan. That, and only that, is what the discretion is about. The inclusion of this provision is merely a safeguard to ensure that the pot of money available for disbursement of refugee integration loans can be targeted to refugees who need most help with their integration. Of course, in exercising that discretion, the Secretary of State will have to act in accordance with the regulations and with more general public law principles. Again, as noble Lords would expect, the detail of this provision will be devolved to secondary legislation, where the extent of the discretion will be set out in regulations and will therefore be clear and transparent for all to see.
§ I thought that I was to respond to one other issue. I may have missed one out but I think that I have covered the points raised in the amendments. I hope that I have given more detail of the way in which we intend to operate the loan and of the purposes of the loan. It is not a loan for all or a loan for any purpose; it is for refugee integration. That is its central purpose.
§ Lord Avebury
My Lords, before the Minister sits down, could he answer my question about the exercising of the Minister's discretion in relation to the three different categories of persons who receive varying levels of support during the period of their application from 0 per cent up to 90 per cent of income support? How will the Minister's discretion be used to take account of the fact that these people are in varying degrees of destitution?
§ Lord Rooker
My Lords, I do not have a formal answer to that, but the facts are as I set them out in my response to the amendments. At the point that the loan is made, the following questions will be asked. What are the person's assets and income? What does he want the loan for? Is it consistent with the regulations? Is it 48 for the purpose of refugee integration? I say to the noble Lord that, with the best will in the world, it is no good trying to rewrite the history of the people who came to this country before they became refugees. I think that that is what the noble Lord is seeking to do.
§ Baroness Carnegy of Lour
My Lords, before the noble Lord sits down and with the leave of the House, can I ask him to expand a little more on what he said about Amendment No. 15, which seeks to leave out the words,may confer a discretion on the Secretary of State"?He said, in effect, that this discretion is simply to create an integrated loan system. But subsection (3) states:Regulations under subsection (1)... may confer a discretion on the Secretary of State".How does that limit the discretion in the way that he described? Does the drafting establish that and, if so, where?
§ Lord Rooker
My Lords, I am not a lawyer but the fact is that this has happened before in other legislation. Paragraph (i) relates to Clause 13 and to the purposes which this part of the Bill sets out for the refugee integration loan. I said that the intent behind subsection (3)(i) is to confer a discretion on the Secretary of State for the purposes of a refugee integration loan and not for any other purpose.
§ The inclusion of the provision is merely a safeguard to ensure that the pot of money available for disbursement of refugee integration loans can be targeted to refugees who need most help with their integration. But the point is that, when he exercises that discretion, the Secretary of State cannot act on a whim or a hunch; he will have to act in accordance with the regulations in which the discretion will be set out clearly and transparently and, of course, as I said, he will have to act in line with more general public law principles. Therefore, the provision is exclusively for the purposes of operating a policy of a refugee integration loan.
§ Baroness Carnegy of Lour
My Lords, if the House will permit me, I understand that and I am sure that the Minister is absolutely correct. It is simply that it seems to me that the drafting of the Bill does not give that assurance. The assurance will be in Hansard but it is not on the face of the Bill. The Bill simply states:Regulations under subsection (1)... may confer a discretion on the Secretary of State".
§ Lord Rooker
My Lords, if there is any doubt about this matter, I shall take away the drafting and have a look at it. The note that I have is clear but the point may not be clear in the Bill. Therefore, if we need to match the note with the Bill more clearly before Third Reading, we shall do so. I cannot make a concession now; to say that we shall go away and change the Bill would be ridiculous. But if I need to make it clearer, I shall seek to do so at Third Reading.
§ 5.30 p.m.
§ Baroness Anelay of St Johns
My Lords, I am grateful to the Minister, who recognises that we are trying to achieve the same objective as the one contained in the speaking notes he used today. What he said on the record today for Hansard gives the kind of clarity which my noble friend and I would wish to see on the face of the Bill. I am grateful for the fact that he will consider the matter again. We appreciate that he may come back with the same advice, but at least we shall have the opportunity further to consider it.
§ Lord Rooker
My Lords, I have just translated a note, which I hope is helpful to the noble Baroness. Subsection (3)(i) has to be read in conjunction with Clause 13(1), which states:The Secretary of State may make regulations enabling him to make loans to refugees".Clause 13(3) then states what those regulations will include. It would be helpful to have, which we cannot, a slide presentation. We would then be able to explain the way in which a clause is constructed, and that various parts are activated by other parts. In other words, subsection (3)(i) does not stand on its own. It has to stand with the trigger mechanism of Clause 13(1). In other words, the Secretary of State is constrained. His discretion is not total. To that extent there is a constraint on him which is consistent with what I said. I hope that drawing attention to those two parts of the clause further clarifies the answer.
§ Baroness Anelay of St Johns
My Lords, I do not think that my noble friend and I were quibbling with the interpretation which the Minister has just deciphered from the note from his advisers. Certainly, our concern is that even reading subsection (3)(i) in the context of Clause 13(1), the difficulty may be that it would give the Secretary of State—not this one but a future one who is far less liberal—the opportunity completely to ignore subsections (a) to (h) in the guidance and change regulations so that they were far more draconian than this. We are trying to assist all liberal—with a very small 'l'—governments in future to do what is right.
§ I am grateful to the noble Lord for saying that he will consider this again. I think that we shall all need to do that. It may be that we all agree in the end that the Bill should stay exactly as it is. In this particular group of amendments, I am now beginning to see the curtain drawn aside on some of the provisions that underlie the new clauses introduced by the Government. I am beginning to have a feeling for how the loans will operate. I hope that that will be read across into some of the other provisions.
§ I turn to Amendment No. 12. I am grateful to the Minister for saying that he will consider again my proposal that the Secretary of State might be able to make the loans by way of instalments. It was intended, as he perceived it, to be a helpful suggestion. Where a fairly substantial loan may be made, it could be for the benefit of all that that is done in instalments rather than by one lump sum.50
§ I am grateful for the way in which the Minister sought to address the issue of Amendment No. 14, which concerns the conditions on the use of the loan. He said that he was giving not a prescriptive list but an illustrative list. I am sure that noble Lords will take it in that spirit. That is the kind of thing we want to hear; that is, how the Government anticipate that the loans might be used. From what he was trying to explain, I think they will be used to enable activity not to disable it. That is what we want to see.
§ As regards Amendment No. 10, the Minister gave the usual answer that the drafting does not change anything and that the Secretary of State has to act reasonably. I would be grateful if he could consider again the drafting of subsection (3)(a) and allay my concerns, perhaps by letter between now and Third Reading, that the drafting achieves what the Government intend.
§ I am concerned that we shall need to consider again Amendment No. 15, but I say that in a constructive sense. I understand that within the context of the regulations in subsection (3) the Government may need subsection (3)(i) to get round the circumstances where the Secretary of State needs to discriminate against and between different types of people who want to make an application for a loan and may want to discriminate on good, not bad, grounds.
§ There may be occasions where the Secretary of State needs a get out clause, whereby if he has made an award to one person, he cannot be judicially reviewed by another because he has failed to give a loan to them. So, I do not seek to take away the power from the Secretary of State to act equitably on behalf of the taxpayer. What I seek to do throughout all this is to ensure that the rules are applied properly on behalf of all. It is with that approach that I say that I may want again to consider one or two of these issues at Third Reading. Certainly, I shall want to give the Government the opportunity to fulfil their commitment to consider again Amendment No. 12 even if they decide that there is no reason to go ahead with it. At this stage I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments. Nos. 11 to 15 not moved.]
§ Clause 19 [England and Wales]:
§ Baroness Anelay of St Johns
moved Amendment No. 16:Page 18, line 36, after "district)," insert—() may only be given if each party to the marriage attends the office of the superintendent registrar at the time of the presentation of the notice under section 27 of the Marriage Act 1949,
The noble Baroness said
My Lords, in moving Amendment No. 16 I shall speak also to Amendments Nos. 17 and 25. I made clear in Committee that as far as we are concerned, the trade in sham marriages for the purposes of obtaining residence in the UK is obnoxious. However, we recognise that there are sensitive issues here which must be considered when one is restricting the right of people to marry. We recognise that we must not discriminate against people who arrange their marriages for different reasons in 51 different ways. However, it is not acceptable for people to use marriage merely to obtain residence in this country.
§ In Committee I referred to the press release that was issued by the Government on 22 April. That states that both parties would need to attend one of the specialist register offices in person to obtain authorisation. My problem, when looking at the drafting of the clause, was that I could not see that specific requirement. I asked the Minister if he could point me to the provision and did not receive an answer on that occasion so I simply tabled Amendment No. 16 to ask him for an explanation today. My amendment would require both parties to attend the specialist register office.
§ I turn to Amendment No. 17. Subsection (3)(c) provides the Secretary of State with the power to specify which other people will be permitted to marry. The purpose of my amendment is simply to ask the Government what will be their reasons for exempting any person or class of person from the operation of this subsection.
In Committee, the Minister gave some indication of when permission to marry would be refused. He stated:
when the individual is here unlawfully, when the individual has leave to remain in the UK for less than six months, and when it is reasonable for that person to return to their country of origin and apply from there for entry clearance".—[Official Report, 15/6/04; col. 684.]
As ILPA point out in its briefing, the meaning of that is not altogether clear, particularly to which group of people the "reasonable to return" test may apply, although the noble Lord, Lord Rooker, stated later in the debate at col. 698 that those with valid leave to remain of over six months would be allowed to marry.
The problem throughout the debate was that we were not given a clear indication of which categories of people would benefit under subsection (3)(c). I received today from the noble Baroness, Lady Scotland of Asthal, a letter dated 25 June—I will not say "post-haste" because the post was slow; perhaps it was "post-slow"—in which the noble Baroness seeks to address this issue in further detail. Is the Minister able to confirm on the record today the point that was put to me? I believe the letter was sent also to the noble Lord, Lord Avebury, who momentarily is not in his place, but it will not have been seen by outside bodies. The letter states:
The exact details of this will be set out at a later date"—
I have heard that before—
but we envisage that those people legally resident in the UK and who have been granted six months or more leave would normally be granted approval to marry, in what will be known as a certificate of approval. Where a person does not meet this criteria, they would be required to return home and apply for entry clearance from abroad unless on the facts of the particular case it is unreasonable to expect a person to leave UK and apply for entry clearance from abroad. This covers all non-EEA nationals, and not simply overstayers and short term visitors, partly on practical grounds. It would be unreasonable and potentially unworkable to expect registrars to investigate the immigration status of all the non-EEA nationals giving notice of a marriage for valid leave to remain. This would require registrars to become pseudo immigration officers, familiar with every stamp, vignette and
category of leave to remain. By requiring non-EEA nationals to have either entry clearance as a fiance) or marriage visitor or a certificate of approval we are intentionally limiting the burden on registrars and the scope for abuse".
I would be grateful if the Minister could place on the record from the Dispatch Box that that is his understanding of how the subsection would operate.
§ I turn to Amendment No. 25, which returns to a matter I raised in Committee on 15 June at col. 690 of Hansard. I argued that it was important that there should be some effective system of reporting to Parliament on the clause's operation. It is the first stage of what we hope may be an effective policy to deter those who trade in sham marriages.
§ We need to know more fully the nature and scale of the abuse so that we can properly assess the effectiveness of the provision in tackling it. In response to my amendment at that stage, the Minister agreed that it was important to keep Parliament informed about the way in which the powers are used and he undertook to review with ministerial colleagues what might be the most appropriate form of a reporting mechanism.
§ My amendment is intended to encourage the Minister to tell the House what further consideration the Government have given the matter. It would require the reporting system to give the following information as a starting point, although of course other information could be valuable: how many applications have been made and refused in cases where subsection (3) is in effect in England with similar requirements for the provision's operation in Scotland and Northern Ireland.
§ It is right that the Government should provide information about why applications are refused. If we do not know that, how can we judge whether the refusals are in cases where people simply fail to bring the right evidence with them even though they possess it? We want to be able to see the size of the problem where people are making fraudulent applications. We also need to be given information about the costs involved for those who make applications for marriage within the rules imposed by the new clauses. I beg to move.
§ Baroness Carnegy of Lour
My Lords, my noble friend has done the House a service in asking the Minister to consider those points. They are all important. It was obvious in Committee that the Government had not considered carefully enough a number of matters.
§ Reading the Committee debate in Hansard, I was impressed by the enormously tolerant, patient and statesmanlike speech made by the noble Lord, Lord Ahmed. Listening to him when he spoke I took in only part of what he said, but reading his speech I saw that it was carefully crafted and put in careful terms so as not in any way to stir up problems for the Government on the matter: there were issues to which he sincerely believed the provisions did not attend.
§ The Minister overreacted a little. He may have been, as I was, unable to take in fully the tone of the speech and its contents when he listened to it. I had not 53 realised its nature as I listened. The noble Lord asked valid questions, some of which are related to what my noble friend said in moving her amendment.
§ 5.45 p.m.
§ When the Opposition calls for annual reports it is often a matter of form to ask for such a provision and a matter of form that the request is refused. But in this case something has to be done to ensure that Parliament can take account of what happens as a result of the provisions. There are definite causes for anxiety for residents of this country who legitimately want someone to enter the country to marry them and who may find that there are difficulties because it is suspected that such people are coming in for the wrong reasons—reasons of obtaining residence when there is not a proper wish to marry.
§ I hope that the Minister and indeed the Home Secretary will pay attention to what the noble Lord, Lord Ahmed, said. I respect what he said very much and I am sure that other Members of the House will too if they have taken the time to read his speech. I will be interested to hear what the Minister has to say in response to my noble friend because the points she made are important.
§ Lord Ahmed
My Lords, I am grateful to the noble Baroness for supporting some of the issues I raised last week. Will the certificates of approval apply also to marriages that take place in Church of England churches and chapels or do they apply only to registrars? When the special registrar gives permission and the couple are required to write to the Home Secretary for approval, how long does the Minister think it will take for the Home Office to reply and which documents will be required for permission to be given?
§ I was in my place last week and I will be interested also to hear what the Minister has to say tonight.
§ Lord Rooker
My Lords, when I replied to my noble friend last week I sought to answer most of the issues that he raised. I want to respond in detail to Amendments Nos. 16, 17 and 25 because they are specific and targeted. There is also the following group of amendments, which seeks to remove six or seven clauses, in which different issues are raised. I want to be able to reply to every point raised because I want to lead the debate so that everyone is happy and clear about what we intend, but it would be easier for me to answer first Amendments Nos. 16, 17 and 25 and then answer the principle issue in the second debate.
§ Amendment No. 16 would mean that we explicitly state in Clause 19 that each party must attend the designated registration centre to give notice of their marriage. That is unnecessary because the requirement is already set out in the marriage legislation. Specifically, Section 27 of the Marriage Act 1949 requires that each of the parties to a marriage gives notice in the prescribed form to the superintendent registrar. Section 28 of that Act requires that the notice is accompanied by a declaration in writing, made and signed at the time of giving notice by the person giving the notice.54
§ Section 28(2) specifically requires that any such declaration must be signed by the person giving the notice in the presence of the superintendent registrar to whom the notice is given. Therefore the effect of those provisions taken together is that each party to the marriage is required to attend the office of the superintendent registrar at the time of giving notice of the marriage.
§ However, we believe that the noble Baroness's intention was to have both parties attend the designated centre together. I can confirm that although the tabled amendment does not meet the policy end, Immigration and Nationality Department officials are currently considering introducing such a clause. I shall return to the issue and I shall return anyway to report back on the results of the consideration.
§ Amendment No. 17 would have the effect that regulations specifying the categories of person to be exempted under subsection (3)(c) would themselves justify the exemptions. As I am sure noble Lords will agree, that would be an odd measure to adopt.
§ Regulations are designed to set out what the law is and not why it is. I can assure the noble Baroness that, in accordance with existing parliamentary process, we will produce a memorandum for scrutiny—as for the Joint Committee on Statutory Instruments and the House of Lords Select Committee on the Merits of Statutory Instruments—justifying our regulation, as is the usual practice. That will be done. The process already provides a requirement for the Government to justify the terms of their regulations and allows for scrutiny of those reasons in the committees.
§ Amendment No. 25 would require the Immigration and Nationality Department to produce an annual report of the operations of Sections 19 to 25. I can assure all noble Lords that the Government accept it is important that the operation of these new powers is properly reported to Parliament. It is absolutely crucial that people outside the country and abroad fully understand what is happening with these powers. However, there are certain details within these amendments which would render them impractical in our view. Under subsections (2)(a), (2)(b) and (2)(c) the report would include a record of the number of notifications accepted and refused by registrars and the reasons for those refusals.
§ The details the amendment would require to be collected in the first three categories do not appreciate how marriage law operates. A person who wishes to marry does not apply for the notice to be entered in the marriage notice book, entered on a marriage schedule or for the registrar to act. If a person meets the statutory criteria, he can give his notice of marriage and these procedures follow automatically. If not, then notice of marriage cannot be given in the first place.
§ In other words, there is no refusal as such. That is why it would be difficult to collect the statistics. If a registrar is not satisfied that the criteria have been met, he cannot act. Registrars and the registrars general receive many inquiries about the criteria that have to be met in order for a notice to be given and give advice accordingly. They will often be unaware of whether the 55 person who wishes to marry meets the criteria and would, therefore, be unable to record whether a person failed to meet the requirements we are introducing or, indeed, any of the other criteria, because it is just a general inquiry.
§ The collection of this information and the recording of all inquiries, which is what the amendment would require, would add considerably to the work of registrars, certainly increase the cost of the service and serve no purpose in countering sham marriages. This reply is not wholly negative. I give your Lordships forewarning of that.
§ Subsections (2)(d) and (2)(e) require the report to include the number of applications for entry clearance for the purpose of marriage, for permission to marry from the Home Office, and the number of applications approved and those refused and the reasons for any refusals.
§ The Immigration and Nationality Department and UK Visas are to produce management information of the numbers of successful and unsuccessful applications they process and consideration is being given to how best to publish the figures for entry clearance and Home Office permission. As I said earlier, we consider such reporting to be very important. However, the reasons for those refusals are not recorded in a format which is easy to report on and this information would not be recorded in the reports.
§ At subsection (2)(f) the amendment calls for information on the number of notices that involve a person who is subject to immigration control and who is exempted in regulations made by the Home Secretary. That information would have to be obtained from registrars. They could provide the overall numbers of non-EEA nationals who give notice of marriage, but a breakdown of the different categories to give the number of those who fall within this category would have to be done clerically as a separate procedure. That too would prove to be a time-consuming task and certainly increase the cost of the service.
§ Under subsection (2)(g) we are asked to include in any report the amounts charged and received in fees under Section 25. As I said, the fee will be levied according to Treasury guidelines on a cost recovery only basis and will be set out in secondary legislation, allowing Members of the House an opportunity to debate it if they feel that it is unreasonable.
§ A memorandum trading account will be drawn up for sight by Immigration and Nationality Department officials and the Treasury. This is not a public document, but a summary of it will appear in the published resource accounts of the Home Office. It will show full income, full costs and overheads and any surplus or deficit. The Government feel that these documents will provide sufficient scrutiny of the charges. Therefore, we do not believe that it is necessary to include this information in a separate document; it will come out in one in the normal course of events.56
§ I hope, therefore, that those comments meet the spirit of the annual report requirement; that the information I have given regarding some of the details is accepted as practical arguments against going down that route, but nevertheless being open about it; and that the reply I have given to Amendments Nos. 16 and 17 is acceptable. I shall save the rest—otherwise I will just repeat myself—for the more important debate, when I can also reply to my noble friend Lord Ahmed.
§ Baroness Carnegy of Lour
My Lords, before the noble Lord sits down, he said in relation to my noble friend's Amendment No. 16 that he would be looking at the attendance by both people at the superintendent registrars at the presentation of the notice. If so, would he also look at Clause 21 of the Scottish provisions, which is differently drafted but which as far as I can see has the same requirement? If a change were to be made, it would need to be made in both.
§ Lord Rooker
My Lords, I had assumed by the way the group of clauses is drafted, that if there were such a change of substance it would, where necessary, flow over to Northern Ireland and Scotland. I am not saying that it would be automatically exactly the same, but that there would be the consequential changes.
§ Baroness Anelay of St Johns
My Lords, I am grateful to the Minister. I intended that this group of amendments should stand separate from the debate on the principal clause, so I am grateful for the way he approached his answer.
§ With regard to Amendment No. 25, which talked about annual reports, my noble friend is right; it is the habit of oppositions to ask for annual reports and the habit of governments to find them quite inconvenient. The Minister tried to point out, somewhat effectively, the difficulty of obtaining some of the information I sought in my own amendment, but pointing out what information might be available and how it might be presented.
§ I shall look very carefully at what the Minister said, but I certainly think on first reflection that it is acceptable to me. Certainly, my intention is not to try to seek some information trawl which is not cost-effective and which does not form the basis for proper development of policy later; quite the reverse. The difficulty has been that perhaps some of the information on which proper government policy on these issues should be based has not been available and therefore it leads people to suspect that the Government's intentions are not necessarily properly founded. There could be some uneasiness in some parts of our community about why the Government are proceeding on this particular tack.
§ It is all very easy for governments to react to government, I mean newspaper headlines—sometimes they are government headlines anyway; they spin so well. But I mean that they might react to newspaper headlines on alleged bogus marriages. Certainly the Written Answer that my honourable friend Humfrey Malins received in another place last week shows that there perhaps was a significant increase in alleged bogus marriages over the past year or two, but we need 57 Parliament to be able to act properly on verified information. That is all I seek to achieve in Amendment No. 25.
§ I refer briefly to Amendment No. 16. I am grateful to the Minister for saying that this issue is being considered. He was right: I am looking specifically at the importance of both parties attending at the new specialist register office. The Minister has made it clear that this is the first stage in a series of policy issues trying to prevent the use of sham marriages as a way of getting residency here, without in any way encroaching upon people's right to enter into marriage for different reasons at different times. It is not looking at different cultural approaches to marriage. It is important that the superintendent registrars are given the opportunity to use the expertise that they will build up over the years in a very effective way. If they do not have both people there, I do not see how on earth they are going to be able to divine properly, on real grounds, whether or not there is more information That they can elicit before they refuse to enter a marriage in the marriage book. I am grateful to the noble Lord for his indication on Amendment No. 16. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6 p.m.
§ [Amendment No. 17 not moved.]
§ The noble Lord said My Lords, let me say at the outset that we acknowledge—as I said on a previous occasion when we discussed the marriage clauses—that people are entering sham marriages with a view to gaining the right to reside in the UK. We agree with the Government in their intention to prevent this racket, but we consider they are going about it in entirely the wrong way.
§ Let me start by looking at evidence of the level of abuse of the current system. The Minister said that registrars had reported 2,251 suspected sham marriages to date in 2004, compared with 2,700 for the whole of 2003. I emphasise the word "suspected", because in the letter that we have just had from the Minister—it came into my hands as I entered the Chamber—this has become reported as 2,251 sham marriages. These are not sham marriages until they are proved to be so, although I accept that such a proportion of them as has yet to be determined will turn out to be sham marriages. I take the point that the noble Baroness, Lady Anelay, made at the conclusion of her remarks.
§ I understand, although the Minister did not give these figures, that there were 1,205 Section 24 reports in 2002, and just 756 when reporting began in 2001. Undoubtedly, there has been a steep increase in the level of Section 24 reports, which—as the Minister acknowledged when we were discussing it before—might have been partially stimulated by the registrars' awareness that action was being taken. Following the Home Secretary's Statement of 22 April, there was then, as Mr Blunkett 58 foreshadowed, a major new enforcement effort targeting sham marriages and those who organise them, with the aim of arresting those engaged in such marriages and, where appropriate, prosecuting the organised criminality behind them. This means that effective powers already existed in criminal law. The question that arises in my mind is why the Government waited for five years—from 1999, when reporting began, until 2004—before taking the action that the Home Secretary describes.
§ The Minister further told your Lordships on June 15 that, in May, enforcement officers attended some 200 suspected sham marriages and, as a result, they arrested over 100 alleged offenders and a further 28 marriages did not proceed as a result of the enforcement action. I emphasise that all this took place without any change in the law whatever. The Minister did say that registrars may refuse to take notice of a marriage when they believe that a forged document had been used, and the Immigration Service was going to provide training and support to registrars to help them detect those documents. If, as I understood him, the Minister was saying registrars already have that power, then can he tell your Lordships, for example, on how may occasions it has been exercised so far as regards the 2,251 Section 24 reports of suspicious marriages in 2004?
§ It is already impermissible for someone in the UK on a short-term basis to obtain leave to remain on the basis of a marriage, as announced by the Home Secretary in February 2002, and implemented by a change in the rules in April 2003. If such a person, a non-EEA national, does enter into marriage with a British citizen, then he or she cannot, under paragraph 284 of the rules, obtain an extension of stay on the basis of a marriage, but has to return to the country of origin and make a new application to enter as a spouse. That remains unaltered by these provisions.
§ The Minister said that permission to marry under these provisions would be refused in cases where the individual is here unlawfully, when the individual has leave to remain in the UK for less than six months, and when it is reasonable for that person to return to their country of origin and apply from there for entry clearance in order to marry. Let us see what difference this would have made to the 2,700 suspicious marriages in 2003. If any of the non-EEA partners to those marriages were here unlawfully then they acquired no rights and were still removable. If they were here for less than six months, then under paragraph 284, as I have already explained, they would have had no right to an extension of stay. If they had a limited need to remain for more than six months, then they would have been entitled to apply for permanent leave to remain on the basis of the marriage. Then the IND would have had to satisfy themselves that the parties intended to live permanently together, that they had adequate accommodation and that they could maintain themselves without recourse to public funds. My questions to the Minister are whether the 2,700 suspicious marriages have been tracked, and what happens when the non-EEA parties to those marriages log an application to remain on the basis of the marriage?59
In the first two cases, they should have been refused. In the third, they could have been refused if they were not living with their spouse or had had recourse to social security. Even if they had managed to satisfy all those requirements, they would be on probation for two years following the grant of leave to remain. If any evidence emerged during that period that the marriage was not genuine, then their leave to remain could be cancelled. In Committee on 15 June, col. 684, the noble Lord, Lord Rooker, said that these clauses,
would provide a significant deterrent against those intending to enter into a sham marriage... The chances of couples coming into contact with immigration officials will be much higher",
less likely to engage in a sham marriage".
§ Apparently, the more vigorous enforcement of the existing law has already had a major impact, and we are not satisfied that what is now proposed is effective, proportionate and compatible with the ECHR.
§ Under Section 28A of the Marriage Act 1949, as amended, registrars are entitled to demand evidence of nationality from a person who gives notice of an intended marriage. Under Clause 19, notice can only be given to one of some 50 special registrars designated for the purpose, but all other registrars will have not only to look at evidence of nationality—which I suppose will be the passport, in most cases—but will also have to verify that the person is not subject to immigration control, otherwise the application would have to be transferred to one of the 50 special registrars.
§ Every registrar will need sufficient training and advice to enable him or her to perform checks on a party who may be subject to these provisions so that, if necessary, that party can be directed to a Clause 19 registrar. That part of the Government's scheme may impose new burdens on all the registrars and cause delays—as the noble Lord, Lord Ahmed, has already pointed out in the earlier amendment—to perfectly legitimate intended marriages. It does, however, allow the IND to concentrate its attention on a limited number of registrars.
§ Although the right of spouses to live together in the UK has been subject to immigration controls for many years, this is the first time that the person's natural right to get married in the UK had been questioned. That is going to impede the matrimonial plans of the many people from the black and Asian communities who still have close family ties to their countries of origin, and perfectly naturally look for partners in those countries. We say that such a fundamental change also needs to be enacted—if at all—after thorough consultation with the agencies representing all the ethnic minorities concerned, as well as with independent experts who could advise us on the human rights implications. Such has been the haste of the Government that even the JCHR has not been able to look at these new clauses, which are being dealt with by the unusual procedure, already referred to, of recommitment—a wholly unsuitable mechanism for radical proposals affecting the very institution of marriage. In the few days that we have had to consider 60 the matter, ILPA has said that these provisions are a misconceived assault on our civil liberties that will undoubtedly lead to challenges in the British courts and in Strasbourg. JCWI's opinion is that the removal of the right to marry without the Home Secretary's permission is fundamentally retrograde and unjustified. It says that it may be a breach of the ECHR.
§ The new provisions quite clearly discriminate on grounds of national origin, as they do not apply to marriages in which neither party is subject to immigration control. The noble Lord, Lord Rooker, seemed to consider that that was entirely legitimate and non-discriminatory when he said that nationality was the trigger and that there is nothing discriminatory about it. It is most unfortunate that the Minister himself is unaware that in law discrimination on grounds of nationality is considered to be discrimination on racial grounds. Furthermore, UK and EEA nationals resident in the UK will clearly be affected. There will be discrimination against all those who wish to marry a person subject to immigration control. Certain ethnic communities in Britain, with close social ties to those subject to immigration control, are bound to be affected more than others. Remember the last minute amendments that were introduced into the 2002 Act, including the notorious Section 55, which has now been hit below the waterline by the Court of Appeal. Remember the saying: "enact in haste, repent at leisure". I beg to move.
§ 6.15 p.m.
§ Lord Dholakia
My Lords, I support much of what my noble friend Lord Avebury has said. There is no dispute that sham marriages must be condemned. But the entry clearance officer has ample powers to determine whether the purpose of the marriage is genuine when considering a person's application before he comes to this country. Once a person is in this country under any grounds, including being a visitor, he is not allowed to change his status. There are adequate safeguards under current legislation. If upon receiving notice of a marriage, a marriage registrar has reasonable grounds for suspecting that it will be a sham marriage he must report his suspicion to the Secretary of State. The Secretary of State has ample power to refuse registration or naturalisation or whatever the case may be in terms of British citizenship. Why is that power not being used? It is clearly specified in Section 24 of the Immigration and Asylum Act 1999.
A sham marriage is defined as one between a foreign non-EEA national and another person, whether British or an EEA national, entered into for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules. When this provision was introduced in the Immigration and Asylum Act 1999, we contended that the new power was unnecessary and intrusive. The Home Secretary subsequently announced in the 2002 White Paper Secure Borders, Safe Havens that he intended,
to make it more difficult for those who seek to stay on the basis of a bogus marriage".
In April 2003, he increased the probationary period for leave to remain on the basis of marriage from one year to two years and prevented those with six months' leave or less from switching into marriage by obtaining leave to remain as a spouse.
§ My noble friend Lord Avebury has already cited the noble Lord, Lord Rooker, who said on 15 June that this provision would provide a significant deterrent against those intending to enter into a sham marriage. He said that the chances of couples coming into contact with immigration officers will be much higher and that will make them less likely to engage in a sham marriage. This argument does not hold water since those entering into sham marriages are doing so with the intention of deceiving immigration officials at a later stage and, in any event, that permission will be granted if someone has a valid passport with more than six months' leave.
§ What are the implications of this? It is clear that the proposed new measures are far more sweeping than the current powers. On any occasion when one party to a marriage is a foreign national, the couple will effectively be singled out for special scrutiny. The requirement for all UK registrars, except those designated, to refuse to accept notice from a couple when one party is subject to immigration control is of even greater concern. In practice, this will mean that all registrars will have to undertake immigration checks on any couple where they suspect that one party falls within this definition. Marriage registrars are not immigration officers and should not be used as agents of immigration control.
§ As my noble friend Lord Avebury has pointed out, the power to prevent a marriage going ahead will amount to a breach of Article 12 of the European Convention on Human Rights, which covers the right to marry and found a family. Preventing an EEA national marrying a national of another country may also be unlawful discrimination and contrary to European treaties. Although the right of spouses to live together in the United Kingdom has historically been subject to immigration control, the right to get married has never been questioned in this manner.
§ This is an attack on minority groups. The Home Secretary has already questioned the practice among many young black and Asian British citizens to marry people who are not settled in the UK so this is not the first time we have heard this argument. In 2003, he put into place a number of measures restricting the ability of foreign nationals married to British citizens to seek leave to stay in the UK with their spouses and he extended the probationary period of the marriage before they can obtain settlement. The latest raft of proposed measures simply represents a further attack on the right of black and ethnic minority individuals to marry the spouse of their choice.
§ Additionally, my noble friend Lord Avebury has raised the point that the amendment discriminates against anyone who is not a member of the Church of England. The Church of England does not require the permission of the Home Secretary following the grant of a licence or the reading of the banns of matrimony. This point remains to be clarified.62
§ The requirement to seek prior written permission from the Home Secretary for a marriage in the United Kingdom is an attack on the right to marry and is therefore a breach of Article 12 of the European Convention on Human Rights. The amendment that has been proposed previously does not assist. It simply makes us more concerned. We are concerned about several areas. The removal of the right to marry without the Home Secretary's permission is fundamentally retrograde and unjustified and may be a breach of the ECHR. It is not clear in what circumstances permission to marry will be issued by the Home Secretary. The JCWI, a prominent organisation working in this field, remains opposed to the principle of making marriage registrars into agents of immigration control. The proposals will certainly lead to discrimination against couples where one or both partners is from a black or ethnic minority group. The proposals represent an attack on members of minority faiths who may not be able to celebrate the civil and religious ceremonies together. A burden will be placed on marriage registrars that they will be unable to fulfil because of the highly technical immigration law. For these reasons, we oppose this clause.
§ The Countess of Mar
My Lords, we have got things the wrong way round here. Why do we have bogus marriages? Because people who we are married to United Kingdom citizens very often find that they are allowed to stay. Why do we not make it clear, either at the point of marriage or beforehand, that marriage will not under any circumstances constitute a reason for allowing someone to stay in this country over and above the reasons that he already has? Then the couple can either undertake the marriage or wait until the permission to stay is granted and then marry. Why do we not do that? All this rigmarole with registry offices and everybody else involved is taking it the wrong way round.
§ I disagree with noble Lords who say that this is racial discrimination because I know of a number of cases of Australians and New Zealanders who have tried this ruse to stay. I rest my case.
§ Lord Phillips of Sudbury
My Lords, the noble Countess, Lady Mar, makes an admirably simple point from her vantage point as a very experienced lay member of the tribunal. I would like to make a few remarks confined to the provisions of Clause 19(3)(b) and very much support the general tenor of the way in which my noble friend Lord Avebury moved his amendment, supported by my noble friend Lord Dholakia.
§ One must sympathise with those who have to implement this byzantine jungle of regulations and law. In saying that I also recognise that it is extremely difficult for the Minister to respond to the micro-points made as regards these clauses. It must be a formidable task. I have good news for him because my point is rather a simple one. I know that is sometimes a prelude to the reverse, but I mean it.63
At the previous stage the Minister said,
There is no way that we would put something on the statute book that would, if you like, force a child to be born deliberately out of wedlock. The regulations will be drafted to accommodate such circumstances".—[Official Report, 15/6/04; col. 696.]
I believe that was an admirable sentiment really designed to reassure the House that there was no intention by the Government that any of these provisions should have an adverse effect on family life, bearing in mind the vulnerability in which many families already exist.
Clause 19(3)(b) gives one class of case in which the superintendent registrar can enter a marriage notice in his books where the person concerned,
has the written permission of the Secretary of State to marry in the United Kingdom".
That is one exceptional class where the superintendent registrar can say that he will proceed with the marriage.
§ The community concerned is very anxious to know more about that. Under what circumstances will the Secretary of State give permission to marry? There is no apparent requirement here for the framework of consideration of applications for this consent to be the subject of regulations although the following subsection does require them. I ask the Minister to reassure the House that this important subsection will be the subject at least of guidance which will enable all concerned to see the basis on which he would give consent to marry. For example, will he list publicly the criteria? What would he do about those who are not lawfully present here but who, if they returned to their country of origin, could be the subject of health problems or safety considerations if a civil war were in progress? For someone who applies under the subsection I have mentioned, how long will it take to obtain a response? What evidence will the Secretary of State require in order to make a decision on whether he will be given written permission to marry?
§ These are practical questions and none of them is on the face of the Bill. As I said, there is no requirement for regulations. The Minister cannot be expected to respond with criteria now, but I ask him to assure the House that if this part of the Bill is enacted there will be very open consultation followed by publicly published criteria which will enable all concerned to judge their application. Above all, perhaps it would help the powers that be and the civil servants involved to deal with the requests made under the subsection.
§ Baroness Carnegy of Lour
My Lords, I am interested that the Liberal Democrats have introduced what seems to me to be a wrecking amendment for this part of the Bill. Presumably, Clauses 21 and 22 are agreed by the Scottish Executive although immigration and asylum are matters reserved to Westminster. Many of the aspects of this part of the Bill have to be implemented under matters that are devolved to Scotland including the marriage laws and so forth. That is why there are specific Scottish amendments.
§ The Liberal Democrats are trying to wreck two clauses which, as I understand it, the Scottish Executive wishes to be implemented. I can understand why it wants it because it is also very worried about sham marriages as we are here. The noble Lord, Lord Dholakia, in his very interesting and, as ever, very well informed speech, said that he considered the clauses now under discussion unnecessary and why that is so. I shall listen with great interest to what the Minister has to say about it. So far I do not believe that we have heard an answer to what the noble Lord said.
§ If the clauses are unnecessary that partially solves my problem. However, I still believe that the political effect of the Liberal Democrats at Westminster trying to blow up two clauses of their political colleagues who are part of the partnership in the Scots Parliament, is slightly strange. Perhaps the noble Lord, Lord Avebury, can justify that because I am interested as a Scot who follows very closely what the Scots Parliament does. I have not had the opportunity to discuss this matter with any of his colleagues, but it will be interesting to hear what he has to say about it. I am sure that the Liberal Democrats have had discussions. I shall listen with great interest to what the Minister has to say.
§ Baroness Anelay of St Johns
My Lords, I agreed with the noble Lord, Lord Avebury, when he said in moving the amendment that he wanted a system which was effective, proportionate and met the requirements of the ECHR. So do we on these Benches. But by striking out these clauses I do not believe that he will achieve that effect. If he were minded to put the matter to a Division I would not be able to support him.
§ I find difficulty in that the Government have still not given all the information which we need to determine whether the method proposed is going to be effective. The question put by the noble Countess, Lady Mar, was very refreshing. She asked whether we were starting in the wrong place and whether there are other proposals that could be more effective in attacking what I may call real sham marriages. I believe that noble Lords will know what I mean.
§ The noble Lord, Lord Avebury, was right when he referred to the Home Office letter which sets out what was given in a Written Answer last week about the number of alleged sham marriages over the past year or two. I call them alleged sham marriages because the noble Lord is right that they have not all been proved to be sham yet. We are told that there are reports of them being suspicious or sham, but we have not got a hold on the level of the problem. That is why this debate is very useful in trying to take us further forward. I do not believe we have reached the stage where we really know how the Government are going to tackle the problem or the scale of it.
§ I have already had my chance to ask detailed questions on my own amendments. However, I would be grateful if the Minister could give us a picture of what would happen if I, for example, were a superintendent registrar and people came before me. What would be the process, so that he can reassure the House that it will be effective, proportionate and meet with the requirements of the ECHR? For example, what kind of evidence is a 65 specialist registrar going to be allowed to ask for and to use as a basis for a decision on whether to enter the marriage in the marriage book?
§ For example, it has been alleged that some registrars under the current system have seen the same person come back time and time again. A familiar face appears wanting to be married yet again. Under the new system, if the specialist registrar sees the same person turn up to get married, perhaps eight times in a row, do they have the right to ask something as simple as proof that a divorce has been obtained since the last time the person asked to get married?
§ What kind of authority will superintendent registrars have? We do not want them to end up being a tool of the Immigration Service. It is up to the Immigration Service to do its job. Registrars should be looking at the validity of the marriage and the ability of those appearing in front of them to marry lawfully under the laws of this country.
§ Although I could not support the noble Lord, Lord Avebury, if he were minded to take this to a Division, I still think that the Government have a long way to go before they are able to justify the provisions of these clauses as they stand. On these Benches, we want them to be able to do so. We want to get there, but we have not arrived yet.
§ 6.30 p.m.
§ Lord Rooker
My Lords, I first apologise to the noble Baroness, Lady Anelay, for not answering the specific question that she asked me on the last group of amendments, which was to confirm the quotation that she read out from the letter from my noble friend Lady Scotland of Asthal. I can confirm that she read word for word from the letter. I hope that she has had two copies of the letter. I left another one at the back of the Chamber here today just in case, given the little run-in that I had last week about distribution of post in this place. I apologise for that, but I can confirm that she was quoting from the letter. I am sure that in accordance with normal convention, these letters will end up in the Library.
§ We are dealing here with a narrow area, which we discussed in Committee. If I have any criticism of any of the speeches, and it applies to more than one, it is that there has been some loose language. The phrase "the right to marry", as in "the Home Secretary needs to give you permission to exercise the right to marry", as though it applied to everyone in all circumstances, gives the impression that anyone, no matter what nationality, needs some new barriers or new hoops to go through. That is not the case. That kind of loose language could give the wrong impression to people outside this House and in other countries. This is not a general requirement regarding the right to marry.
§ I shall separate out my points, and I shall come to some statistics. I freely admit that I do not have all the necessary statistics. First, I will answer from my notes some of the questions that have been raised, because it will set things in context. Three or four major points have been raised.66
§ I shall address the alleged breach of Articles 12 and 14 of the European Convention on Human Rights. So far as Article 12 is concerned, I understand that the right to marry is subject to national laws governing the exercise of the right. The Commission has not been inclined to regard the right to marry a chosen partner in a contracting state as one that overrides national immigration laws. That is because the parties may marry elsewhere. If this is impossible in a particular case, Clause 19(3)(b) will ensure that the Secretary of State can consider whether it is reasonable to require the person to leave the UK, and if not, he can give them the permission to marry here, ensuring that Article 12 is complied with.
§ Lord Phillips of Sudbury
My Lords, does the noble Lord realise that he has used the expression "right to marry" twice in what he has just said?
§ Lord Rooker
Yes, my Lords, because it was in context. I am answering specific points. I can pick up in Hansard tomorrow which noble Lords used the phrase in the flow of the narrative of the language relating to the powers of the Home Secretary and needing to give permission to marry. I do not think that the noble Lord was one of them.
§ That is not the case, because it would apply in general to everyone. We are talking here about a narrow, specific group of people. It is perfectly possible to marry whoever you want. We do not want to stop that. It is perfectly possible to enter this country solely and only for the purpose of marriage: thousands of people do that. They go through a process. They come here with the right to marry; they have entry clearance for the purpose of marriage. We are not interfering with that at all. To listen to some noble Lords, a certain impression is being given.
§ I hope that I got my paragraph about Article 12 on the record. Article 14 does not prohibit differential treatment to different categories if there is a reasonable and objective justification for the differences. We think that it is clear that such a justification exists here.
§ A question was asked about registrars needing to see evidence of nationality. I understand that nationality must be stated in a notice of marriage now. Registrars are already given specific guidance on documentation. The new provisions do not change this position. Section 24 reports, let us say when false details are given, raised by the noble Lord, Lord Avebury—
§ Lord Avebury
My Lords, one thing that has puzzled me is how the registrar—not the special registrar, the ordinary registrar who receives a notice of marriage—knows that someone is a non-EEA national if that is not declared on the application.
§ Lord Rooker
My Lords, I have just said that they are required to give their nationality. There are 26 countries in the EEA; 25 EU countries plus Norway, and there are some special arrangements for Switzerland. There are 67 26 countries in the EEA, so there is no argument about not knowing which countries they are. They are the 25 EU countries plus Norway.
§ Lord Avebury
My Lords, if the person who is a non-EEA national fails to declare that, but makes an application with a registrar on the basis that he is an EEA national, how does the registrar who is not the special registrar detect that falsehood?
§ Lord Rooker
My Lords, it would be like anything else. He is giving false information on the notice of marriage, and I assume that that is a criminal offence. We are not seeking to be draconian; this is a proportionate response to a problem. I do not know, but if the registrar has any doubts, he might ask for evidence of the nationality. He would reasonably have to be required to have some doubts. I cannot say how that would operate in detail. It would be like someone lying about whether they were free to marry. They are required to put down their current marital status. They are required to put their address, their occupation, and maybe that of their parents. They can lie in any of these matters. The crooks and the spivs and the people making money out of this will lie. They tend not to lie to the same registrar month after month after month. I was reading about a case the other day where someone had gone to at least 18 different registrars. That was how you did it; you did not go to the same one. That person is now a guest of Her Majesty.
§ This relates to the point that I made about Section 24 reports when false details are given. The registrar can only report a suspected sham marriage after notice has been given. If a false address is quoted, notice will not be taken, and there can be no report to the Home Office. You have to know that it is a false address. They may use a process of checking the electoral register or council tax records if they have a reasonable doubt. Those are accessible for such purposes.
§ I am sorry, I am not sure who asked why we cannot just allow those marrying here to stay on that basis. It was the noble Countess, Lady Mar, I apologise—
§ The Countess of Mar
My Lords, I did not say that. I said that they could not use marriage as a basis for staying in this country.
§ Lord Rooker
My Lords, the noble Countess is quite right. That is the question that she asked, and it may not be the question that I am answering. I shall take further advice on that. When the noble Countess asked the question the other way round, I thought that my noble and learned friends would say, "Hang on, once you are married you cannot bring in a new set of rules to say that you cannot stay in the country". That is what I am expecting to hear. The noble Countess is right that this does not answer her question. She was saying that you could get married, but you cannot stay in the country necessarily as a consequence of getting married.
§ The Countess of Mar
My Lords, I was saying that once people have come into this country, and they 68 have applied either for asylum or to stay in this country for some other reason, it should be made clear to them right from the beginning that marriage on its own will not allow them to stay in this country.
§ Lord Rooker
My Lords, that is absolutely right, but I suspect that once the marriage has taken place—and this is the whole point of the exercise—a whole new, different set of laws come into being that will probably protect their position. That may be the advice that I shall receive before I sit down.
§ I will start the response to the amendments in some detail, because this is an important matter. It is a sensitive area for government to legislate on. I quoted the Marriage Act 1949; this is not something that gets updated frequently. I take the point about acting in haste; we do it at our peril. There are plenty of records from my short time—30 years is a short time—of legislating in haste and then thinking that something was not such a good idea. We must get this right. It is fundamental in terms of individuals' lives. However, taking all the clauses out of the Bill—that is, Clauses 19 to 25—would be unwise.
§ In Committee on 15 June, I said that registrars had reported 2,251 alleged sham marriages so far this year. That compared with 2,712 in the whole of 2003; 1,205 in 2002; and just 756 when reporting began in 2001. The reporting period has effectively been since 2001.
§ In May, following the Home Secretary's announcement of 22 April, the Immigration Service increased its enforcement against sham marriages. As a result, last month, in May, 60 people were arrested, and there have been further arrests this month. However, it is naive to overestimate the effect of that on the number of Section 24 reports being made by the registrars.
§ The Immigration Service did not increase its enforcement effort in order to receive more Section 24 reports. It increased it because it had already seen a massive increase in those reports. In fact, between January and April this year, registrars had already made 1,453 reports of suspicious marriages. Following the increased enforcement action, that increased by 800 reports in May, and the Immigration Service has received further reports this month.
§ There has been criticism of the number of arrests in the past 12 months as compared with the number of reports made by the registrars. I would like to make it clear that while reports often lead directly to arrests at register offices, it would be unrealistic, to say the least, to expect every report to lead to an arrest. In some instances the reports are made after the marriage ceremony has taken place, and sometimes, despite a report being made, there may be insufficient grounds for enforcement action.
§ In deciding whether to attend a register office the Immigration Service has to consider what resources are available for competing demands and balance that against the need to take direct action, or use the report to help form a decision on any resultant application. Reports received from registrars will therefore always 69 lead to action, be it sometimes direct in the form of arrests, or perhaps sometimes indirect action such as the refusal of an application.
§ Registrars are aware of this, and it is wrong to suggest that they would report any marriage where they have the slightest doubt in the hope that some action would be taken. I regret if any nuance of the language I used in Committee gave that impression. It certainly was not intended.
§ During the Committee debate noble Lords expressed a great deal of concern that the new measures may institute a similar regime to that which existed under the primary purpose rule which this Government abolished in 1997. As I stated in Committee on 15 June, that is not the case. We have absolutely no hidden agenda to restore the primary purpose rule. I genuinely would not be prepared to stand at this Dispatch Box if that were the case. I had enough constituency problems over the years with the primary purpose rule. It beggars belief the distress that its operation caused.
§ The raison d'être of the primary purpose rule was to attempt to judge whether the applicant was entering the marriage primarily to gain access to the UK. It was ineffective and certainly pernicious, penalising lots of genuine marriages and dividing families. The administrative burden on the immigration system was absolutely catastrophic. It also stopped other genuine cases being looked at. It was imposed in 1980 by the previous administration, forcing applicants over one hurdle after another both at the point of entry clearance when they were applying and at appeal. This very unfair rule did not work to filter out those who sought to cheat the system. I want to make it absolutely clear that it was not abolished because of its failure to deal with sham marriages, but because of its inequitable treatment of genuine marriages.
§ There was no connection between sham marriages and the abolition of the primary purpose rule, and we have no intention whatever of reintroducing such a requirement.
§ 6.45 p.m.
§ Our lawful status eligibility requirement in the third subsection of Clauses 19, 21 and 23 will not be used to judge the genuineness of a relationship. In other words, whatever is in this set of clauses will not be used by the Home Office or registrars to judge the genuineness of a relationship. It has nothing to do with that whatever. Where a person applies for entry clearance as a fiancé or marriage visitor their application will be considered under paragraphs 290 and 41 of the immigration rules, as is already the case. Where they meet this criteria their leave will be granted.
§ The exact details will be set out at a later date, but we envisage that those who are legally resident in the UK and who have been granted six months or more leave would normally be granted approval to marry, in what would be known as a certificate of approval. Where they do not hold the appropriate leave to remain—that is, they have something less than six months—they will be expected to leave the United 70 Kingdom and apply for entry clearance from abroad, like hundreds of thousands of others do, unless on the facts of a particular case it is unreasonable to expect them to do so. In the example I gave, such a consideration would be given where a lady is heavily pregnant and therefore unable to travel.
§ I must say that the phrase 'unable to travel', as written here, is almost the answer of a wordsmith or jobsmith. The fact is, as I said at Committee stage, it is not our intention deliberately to force children into being born out of wedlock. The ability to travel might be a factor for a heavily pregnant woman, but I cannot see the marriage being refused for that. It would be wholly inequitable because we would be bringing in legislation almost forcing children to be born out of wedlock.
§ The applications for certificates of approval will be charged on a cost recovery basis. We are not yet in a position to put an exact figure on the charge, but we estimate that it will be similar to the charges for leave to remain applications. Applications for entry clearance as a fiancé and a marriage visitor will continue to be charged at £260 and £36 respectively.
§ The power to exempt certain categories of person is being left to secondary legislation in order to allow the Government flexibility in the operation of the clause. For example, although it is already possible to identify categories who could become exempt, it is likely that new categories will exist in future and it may be similarly appropriate to make those exemptions.
§ The reports from registrars and other sources have shown that those entering into sham marriages, or alleged sham marriages—there have been some arrests, although of course I only read about convictions in the press, like anybody else—have increasingly been favouring marriage to EEA nationals. This is because under EU law, third-country nationals who marry EEA nationals currently have a number of immigration advantages under EU law over those who marry British nationals.
§ Specifically, and first, they are not subject to the "no switching" rule which prohibits visitors and certain other categories of foreign nationals from applying for leave to remain as the spouse of a British national, as they benefit from treaty rights once married. Secondly, they are entitled to bring a wider range of dependants to the United Kingdom. Thirdly, they do not need to live together for a marriage to be considered genuine and subsisting.
§ As such, the easiest way to stop people from abusing the marriage and immigration laws in this way is to stop them getting married in the first place. The proposed government amendments will prohibit persons with no leave to remain or limited leave to remain in the UK from marrying in the UK. If you have leave to remain in the UK for more than six months, and if you have come here for the purpose of marriage with entry clearance as a fiancé, then there will be no problem whatever. It will also stop foreign nationals entering the UK as visitors, and entering into sham marriages with EEA nationals as a means of remaining in the United Kingdom.71
§ The introduction of designated register centres will enable us to focus our enforcement efforts into a more concentrated area, and allow intelligence and expertise on marriage abuse to be built up in these dedicated centres. We also believe that this will have a deterrent effect. The chances of couples coming into contact with immigration officials will be much higher, which will not be welcome for those who are not genuine, those who do not have the right documentation or appropriate leave to remain. That will make them much less likely to try.
§ As I have already made clear, the designated centre proposal will not restrict the locations at which a non-EEA national will be able to get married. They will be free to marry wherever they wish. What matters is the location at which they give notice of the marriage. I repeat that we envisage having around 50 designated centres so that they will be convenient for people to get to. Just as is the case for British nationals, they will be free to marry anywhere they want, in conformity with normal marriage arrangements.
§ We will continue to seek to minimise the burden placed on genuine couples wishing to marry in the UK while ensuring that the Immigration Service will be able to retain a sufficient concentration of expertise. Home Office officials are currently in consultation with UK registrars about how many offices will be designated.
§ I also want to make it perfectly clear that we are not seeking to discriminate against people who are members of a religion other than the Church of England. The Marriage Act 1949 provides for marriage in the Church of England and the Church of Wales to take place after either ecclesiastical preliminaries or civil preliminaries. The vast majority of Anglican marriages take place after ecclesiastical preliminaries in the form of banns or the common licence. All other marriages, whether civil or by any other religious rites, must be preceded by civil preliminaries. The difference in the preliminaries is fundamental marriage law, and certainly outside the scope of this Bill. It will not be affected by any of these amendments.
§ The Government will continue to pursue a policy of managed migration to the UK, with procedures in place that allow us to facilitate genuine applicants from whom our society derives real benefit. They include those who wish to enter into a genuine marriage with a UK or EEA national and settle here. The ability to maintain effective immigration control is crucial to promoting community cohesion and good relations between people of different nationalities. I repeat: we have no intention of bringing back the primary purpose rule; none whatsoever.
§ Abuse of the marriage laws, under which people are able or perceived to be able, to circumvent the Immigration Rules creates mistrust, fosters resentment between different groups and undermines the integrity of the institution. We are confident that these amendments will help to protect the institution of marriage within the UK while enabling us to maintain appropriate and secure immigration controls. I do not want to read headlines of people being found entering into 6, 7 or 72 20 sham marriages. All such headlines do is undermine community cohesion and genuine people coming to this country for the purposes of business, settling down, getting married and so forth. However, the media respond to what is actually happening on the ground. I said earlier: legislate in haste, repent at leisure. On the other hand, if you see a problem and do nothing about it, you are guilty if it gets worse. In this case, the figures show that we have seen the problem coming. It may be that we are later than we should be, but the figures justify these amendments and we believe that they form a proportionate response to the evidence we have at the present time. They are also fully compatible with our obligations under the European Convention on Human Rights.
§ I hope sincerely that noble Lords will not seek to take out the whole raft of these clauses. It would serve no purpose and would not help to solve a problem that has already been identified.
§ Lord Dholakia
My Lords, would the noble Lord be prepared to consider the excellent suggestion made by the noble Countess, Lady Mar? Could it be looked at in detail so that we could consider at Third Reading whether there is any merit in her proposal?
§ Lord Rooker
My Lords, yes, in due course I shall have a reply for the noble Countess. But I suspect that there will be plenty of legal arguments for why we cannot go down that road. However, I am not a lawyer. I draw on my experience as a former constituency Member dealing with hundreds of such cases. There were doubts, disputes, appeals and, sometimes, people had to leave the country. People also came into this country, both male and female, and abused the rules. Although I left the Commons three years ago, I still have cases going through the system. However, I shall get a considered response for the noble Countess, Lady Mar, and copy it for the House.
§ The Countess of Mar
My Lords, would the noble Lord be willing to have a chat with me outside the Chamber about my suggestion?
§ Lord Rooker
My Lords, yes, but I want to make it clear that I am not the Home Office policy Minister or the immigration Minister. Therefore all I could do is listen to the noble Countess. That is better done on the Floor of the House so that I can report back to the policy Ministers that we have questions that need answers. However, as a Member of the House, naturally I will listen and talk to any colleague at any time.
§ Lord Phillips of Sudbury
My Lords, would the Minister also be kind enough to respond to the point I made about Clause 19(3)(b) about setting criteria?
§ Lord Rooker
My Lords, I am sorry that I did not go through that specific question. I agree with the noble Lord, Lord Phillips. He said that he had a fairly simple point on the way in which the Home Secretary will give permission, and it deserves an answer. For most people it will be automatic in the sense that they meet 73 the criteria—they have leave to remain for over six months. However, where they only have leave to remain for under six months and there are special factors to be taken into consideration, they will need the certificate. I have already mentioned the example of a lady who is heavily pregnant. However, we do need to clarify the criteria.
§ Lord Avebury
My Lords, I should say at the outset that I am not going to press the amendment to a Division, so the noble Baroness, Lady Anelay, can relax. My reason for not doing so is, as I have already said twice, that we believe that measures do have to be taken against sham marriages, although we do not consider that these clauses are the right way to go about it. While we have much sympathy with the proposal put forward by the noble Countess, Lady Mar, we are not going to be put in the position of denying any weapons to the Government in the campaign against sham marriages just because we believe that a better solution would have been possible.
§ In the time available to us, we could not possibly have drafted a complete alternative to these clauses, let alone to have consulted, which we believe ought to have been undertaken with representatives of the ethnic minorities and those concerned with the human rights aspects here. Whatever the noble Lord may say about the meaning of Articles 12 and 14, the fact is that the matter has not yet been considered by the Joint Committee on Human Rights and the House has not yet received its advice. So we have no idea whether the committee concurs with the explanation given by the Minister or whether it will question the risk of a possible violation of Articles 12 and 14 arising.
§ I am most grateful to all those who have spoken in support of these amendments, in particular my noble friends Lord Dholakia and Lord Phillips, and to those who have spoken to the amendments even though they have not actually supported them.
§ My reply to the particular question put by the noble Baroness, Lady Carnegy—who I think has ascribed to me Scottish nationality, which I would love to possess but can claim to be only one-quarter Scots; I have a Scottish grandmother and many Scottish ancestors further back—is that if we had been able to produce the complete alternative scheme to cope with sham marriages that I would like to have seen, we would have said that this had to be a matter for consultation with our Scottish colleagues. Indeed, I turn the question around and ask to what extent the Minister has engaged in discussion with Scottish interests on these clauses.
§ Regarding the comment of my noble friend on Clause 19(3)(b), the Home Secretary will have to make a judgment on the genuineness of the relationship when he gives permission to those who have been legally resident in the UK for more than six months and who have been considered prima facie eligible for the grant of a certificate of approval. The only point in having such a provision on the statute book is that there are cases where that permission would be refused. The noble Lord said nothing about the criteria that he would use in applying his discretion against such a person in refusing the grant 74 of a certificate. That is where the primary purpose comes in—that the only grounds on which it is conceivable that he can refuse to grant a certificate to such a person would be that he thinks that the marriage is being entered into with a view to gaining some advantage under the immigration Act.
§ 7 p.m.
§ The Minister has not told us the outcome of the 1,453 cases reported under Section 24 between January and April, let alone the 2,700 that came to the notice of the Secretary of State during 2003. What he did say was that some action was always taken on these reports. I will repeat my request to the noble Lord to come forward before Third Reading with a total analysis of those cases, saying in how many cases there was a prosecution, in how many cases it led to doubts about the validity of the marriage which fell short of the prosecution, and in how many cases the marriage was in the end deemed to be genuine in spite of the suspicions voiced by the registrars. As I said on the last occasion, if I was a registrar faced with that duty, I would be inclined to report all cases where there was any doubt whatever, leaving it to the Secretary of State to sort out those on which action needed to be taken.
§ I think that the Minister underestimates the anxiety which these proposals have caused in the black and ethnic minority communities. As I said on the last occasion, it is not simply up to him to satisfy your Lordships that these clauses should go on to the statute book; it is up to him to engage in a campaign with the ethnic minorities to ensure that they know that discrimination is not intended and that their marriages will not be impeded or interrupted. I leave it to the noble Lord to engage in that activity. I hope that that will begin immediately and not wait until the clauses are on the statute book.
§ Baroness Carnegy of Lour
My Lords, with the leave of the House, the noble Lord was a little lighthearted on the point about Scotland. He was proposing that two clauses should be removed from the Bill. I was asking him whether he had consulted his colleagues who form the Government in Scotland, whom I do not believe want those clauses removed. I suggest to the noble Lord that when he does that kind of thing, it would be wise to do a bit of consultation. He tells me that he has a Scottish grandfather, I think he said—
§ Baroness Carnegy of Lour
My Lords, I would reply that both my grandmother and my great-grandfather were born in India, so that gives me an interest in this matter! That is by the way, but when moving such amendments the noble Lord's party should consult colleagues and make sure that they would be happy if there was no clause about marriage in the Bill. I think the reaction in Scotland would have been quite interesting.
§ Lord Avebury
My Lords, the answer to the noble Baroness is that they do not have to be happy or 75 unhappy, because I am withdrawing the amendment. But, as I said, if we had proceeded with the amendments then obviously we would have had to engage in consultation with our Scottish colleagues. I said—if the noble Baroness was listening—that I hope that the Minister has taken the trouble to consult with the Scottish Executive and the Scottish Parliament, and that the clauses drafted in relation to Scotland have had the approval of those organisations. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 20 [Supplemental]:
§ [Amendment No. 19 not moved.]
§ Clause 21 [Scotland]:
§ [Amendment No. 20 not moved.]
§ Clause 22 [Supplemental]:
§ [Amendment No. 21 not moved.]
§ Clause 23 [Northern Ireland]:
§ [Amendment No. 22 not moved.]
§ Clause 24 [Supplemental]:
§ [Amendment No. 23 not moved.]
§ Clause 25 [Application for permission under section 19(3)(b), 21(3)(b) or 23(3) (b)]:
§ [Amendment No. 24 not moved.]
§ [Amendment No. 25 not moved.]
§ Clause 29 [Entry clearance]:
§ Baroness Anelay of St Johns moved Amendment No. 26:
Page 30, line 14, at end insert—
( ) Immigration rules specified for the purpose of this section may include the requirement that a person who is normally domiciled outside the United Kingdom who travels to the United Kingdom to study shall provide evidence that he is registered to study at an education establishment that has been approved for the purpose by the Secretary of State.
§ The noble Baroness said: My Lords, Amendment No. 26 is a probing amendment. Its purpose is to ensure that Immigration Rules may include a requirement that somebody who lives overseas who comes here to study should not be able to abuse the process by which student visas are obtained in order that they may obtain entry when they have no intention of carrying out bona fide studies at bona fide colleges.
§ As my noble friend Lady Carnegy has pointed out to me, it is a good job that this is a probing amendment because it is not effectively drafted. It looks as though the amendment covers people who live normally within the EEA areas—the new areas from which they have the right to study at any college they like because they have right of residence here. I am targeting my concerns at those who have no right to remain here unless they get leave to do so.
§ The Minister acknowledged in Committee that the Government propose to draw up a register of approved colleges, and that if a student is not registered at one of those then they will not be able to get a student visa. At that stage the Minister was not 76 able to give much of an answer to the questions I put about how the register would operate and on what principles it would be based. He said that we would have a chance to return to the matter at Report. So I am giving him the chance to return to that with this amendment.
§ The questions that I would like to put to the Minister are as follows. What will be the criteria that will determine a college's eligibility to get on to the register it i the first place? Does the Minister accept that it is vital that there should be quality control involved? Does he accept that it is important that the college should have to demonstrate that it meets the current Home Office criteria for a "bona fide" institution, for example, one that involved running full-time courses with qualified staff and keeping registers of attendance? Has the DfES agreed to that as a requirement?
§ Which department will operate the list as far as immigration control is concerned? Surely it should be the Home Office since its decision to grant or withhold permission to enter the UK is the key to the whole matter. Why will the Government not put the provisions regarding the register and a right of appeal for colleges which are excluded on to the face of the Bill—to give clarity and fairness? If they fail to do that, they leave everything to administrative action—or inaction—and we are left with neither clarity nor equity.
§ If there are no statutory provisions regarding the register, is it the case that the Government may not charge fees for registration and inspection? If so, surely that means that the Government would impose further burdens on the taxpayer for a system that should surely be self-funding.
I anticipate that the Minister on this occasion should be able to give full answers to all these questions on the implementation of the proposals, but of course there have been significant developments since the Committee stage. Both of those developments I hope would mean that the Government have the full answer now, because, first, there was a DfES press release on 18 June which announced the creation of a register to be fully in place by the end of this year. It said it would cover,
educational providers who are able to provide evidence of their legitimate business".
That worries me. What does "evidence of legitimate business" mean? Does that mean it is not necessarily a bona fide college—it can just cough up accounts to prove that it has been taking money from people? How does that operate?
The press release goes on to say:
The register will be made available to the Home Office"—
that is good—
to support them in making their decisions on granting leave to enter for study. The Home Office propose that once the register is established, leave to study will not be granted to a student wishing to attend a college not on the register".
§ We are then told that there is a consultation going on and that the Secretary of State for Education and Skills will give an update in the next month. But the editor's note has a kick in the tail. The timeframe in that editor's 77 note says that the register is up and running from May this year—that is, now—for all publicly funded accredited providers. Can the Minister confirm whether that is the case and that the Home Office is operating on that basis?
§ The editor's note says that from May until the end of the year the DfES will "market"—its word—the scheme to private providers. What is going on? The press release makes no mention at all of any procedure by which education providers can appeal against rejection of their application to be on the register. What about the register itself? Considering I have my noble friend Lady Carnegy behind me, is it going to be UK-wide? If it is operated by the DfES instead of the Home Office, does that mean that Scotland is covered?
The second event for which I hope the Minister has a full barrage of answers is the evidence given to the Public Accounts Committee on 21 June on the issue of bogus colleges. Mr Bill Jeffrey, the director-general of the IND, is reported in The Times on 22 June as having told the Public Accounts Committee that:
In the last month we have visited 400 colleges about whom we had some doubts. We have established that 100 are not genuine and are doing something about that. Others require more careful investigation".
I congratulate those carrying out the investigations into bogus colleges. We hope that it is done in a thoroughly robust manner and has a robust outcome.
§ However, I am concerned that he went on to say that anyone applying for a course at one of the 100 bogus colleges will automatically be refused a student visa. That is fine. If they are bogus colleges, it is excellent—but we do not yet know whether they are; we do not have any proof that they are bogus.
§ I was further worried when an official at the Home Office said that it was not willing to identify those 100 bogus colleges. So we have the worst of administrative action here. We have people saying, "There are bogus colleges but we are not going to tell you which they are. We are going to refuse people permission to go to them". To me, this is an example of where the Government may be doing the right thing, but they are doing it in such a way that it makes one think that they may not be doing the right thing. That cannot be good for the education sector as a whole.
§ I would like to see transparency in the way in which the register is operated. I hope that it will be operated directly by the Home Office; not by the DfES, but in agreement with it. I beg to move.
§ Lord Avebury
My Lords, as I understand it—the Minister will correct me if I am wrong—the Secretary of State already has the power to refuse a visa to someone who applies to come here and attend a bogus college established as a means of evading immigration controls. As the noble Baroness, Lady Anelay, told the House, the Home Secretary announced last week that colleges and other educational establishments will have to register, and visas would be issued only to students attending courses at the registered establishments.
It is already a requirement of the rules that a person applying for entry as a student must show that he has been accepted for a recognised course of study at a bona fide private education institution which maintains satisfactory records of enrolment and attendance, and that he or she is able and intends to follow either,
a recognised full time degree course at a publicly funded institution of further or higher education; or a weekday full time course involving attendance at a single institution for a minimum of 15 hours organised daytime study per week of a single subject, or directly related subjects".
§ It appears that the Secretary of State has suddenly woken up to the bogus colleges' scam and the police have taken belated action against some of the more blatant of them. If someone is operating a business to enable people to enter the UK as students and not providing them with 15 hours of organised daytime study, a criminal offence is being committed by the managers of the business. There were indeed arrests, as the noble Baroness, Lady Anelay, said, following the raids last week on alleged bogus colleges in south London and Essex.
§ Incidentally, I note that these raids seem to have been confined to very limited areas. We all know that there are private education institutions offering, for example, courses in English as a foreign language in many other places, such as Hastings and other seaside towns. I am not saying that any of them are sham colleges; it is simply that the practice of bringing foreign students into this country for these purposes is not confined to London and Essex. If there have been as many as 100 bogus colleges identified, as the noble Baroness said, one would have expected the raids to be rather more widespread than they were.
§ A person who has been given a visa or entry certificate to attend one of those colleges should have his leave to remain withdrawn. It would be interesting to know what action has been or is being taken to ensure that the persons enrolled at these bogus colleges leave the country. I should be grateful if the Minister could tell us a little more about the students who were enrolled at the 100 alleged bogus colleges that have so far been identified, and what is being done about the remaining 400 colleges which are still under investigation.
§ 7.15 p.m.
§ I thought that the Home Secretary said that the proposed register would be up and running by the end of the year. Although the noble Baroness said that part of it is already in operation, I think that is the part that relates to public institutions, which are not the target of the measure. We are referring here to the private educational establishments. No one coming here to attend university would bother to make such an application if he or she intended solely to evade the Immigration Rules. He or she would choose one of the private educational establishments set up for the specific purpose of getting around the immigration controls.79
§ Are the Government satisfied that in the remaining six months, when they register the private institutions, that the police have the resources and the intelligence to enable them to deal with this racket? Have diplomatic posts overseas been alerted to it so that entry certificate applications can be refused in cases where the bogus colleges are confirmed?
§ Baroness Carnegy of Lour
My Lords, the noble Lord has made some very important points, as has my noble friend. She mentioned to the Minister that he had undertaken to tell us how the list of colleges was going to be extended to the whole of the United Kingdom. There is a lot of anxiety across the country, particularly in colleges which want no muddying of the waters between their bona fide activities and their dependence on the custom of people from outside the European Union. There should be clarity in all this. If the Minister can tell the House how this is being dealt with and by what dates, it would be enormously comforting.
§ Lord Rooker
My Lords, I cannot tell the House about recent action in regard to the 100 so-called bogus colleges because there is a possibility of legal action. That is one of the reasons why no list has been published. Also, some of the addresses have proved to be completely fictitious. These matters are under active consideration and inquiry. It is self-evident that once the list is available, people will know which colleges are which but, at this point in time, those are the reasons why no list has yet been published.
§ I certainly understand the reasons behind the amendment. I undertook to provide more details of the Government's intention to address the problem of students who enrol at bogus colleges or at establishments that do not maintain proper attendance checks.
§ We are looking at the possibility of creating a register of bona fide or approved colleges and making enrolment at a registered college a requirement of the Immigration Rules. The order-making power provided by the new Clause 29 could then be used to specify this requirement. The consequence of such a specification would be that an entry clearance application refused on these grounds would not attract the right of appeal. As I have said before, it makes no sense to provide a right of appeal in these circumstances as there are no arguable issues to be addressed—a college either is or is not registered.
§ During the debate in Committee I said that I would answer a number of concerns. I hope to do so now. I was asked what work the department has carried out with educational institutions on addressing the problem of student migration abuse. On 22 April we announced a raft of measures designed to tackle the problem as part of our wider review of managed migration. We have consulted extensively with sector representatives on our proposal and are continuing to work with stakeholders on the development of the new measures.80
§ In doing so, we recognise that the vast majority of overseas students are genuine and we value the substantial economic and cultural benefits that they bring to the UK. We are determined to ensure that our international reputation overseas as an education provider is not undermined by those who seek to abuse the student migration system. Our proposals are designed to protect genuine students and genuine establishments by targeting the unscrupulous providers.
§ I was asked to confirm that the Home Office intends to launch immediate checks on all claimed educational establishments and to set up an accreditation and monitoring scheme for all colleges by the end of the year. As part of the managed migration review, the Students Taskforce is investigating colleges which appear to be suspect and, as has already been said, it has recently made an initial assessment of 400 colleges. The result of these further enquiries is that applications to those institutions which were found to be illegitimate can now be refused.
§ In addition to that work, the new registration scheme for all genuine colleges that was announced by the Secretary of State for Education and Skills on 18 June will be operational by the turn of the year. The scheme will include all publicly funded institutions. Once the register is operational, student visas will not be issued for colleges that are not on the register. We are also working with the English language sector to encourage comprehensive accreditation of English language schools so that, in due course, visas will be issued only to English language students who are coming to the UK to study at an accredited school.
§ I do not think that we will be accrediting schools on the basis of quality. It is not our function to adjudge the quality of the education on offer. We have a world-class record in providing education services to overseas students, but quality is not the issue.
§ I was asked also for an assurance that the Immigration and Nationality Directorate will provide colleges with a list of students who have been issued with visas on the basis of an offer letter from a college. The Department for Education and Skills is consulting with representative bodies from the education sector on establishing a system for colleges to notify the Government of students who do not turn up or fail to attend. I am not able to give an assurance about how the system will operate, because the detail is still being worked out. I have played that record many times this evening, but there will be plenty of opportunities to put the detail to the House. All concerned are anxious to ensure that any notification system will result in the minimum possible resource burden on colleges, whether they be public or private, and that only the genuine no-shows should be reported to us.
§ We have discussed our proposals with representative bodies in the education sector, including the Association of Colleges, the United Kingdom Council for Overseas Student Advisors and the Association of Registered English Language Schools. They support our aim of preventing the reputation of the UK education sector being undermined by fraudulent students or colleges. Some of the bodies have expressed concerns about resource burdens on the institutions that arise from the 81 proposals. The Association of Registered English Language Schools is fully supportive of our plans for accreditation of English language colleges and the Department for Education and Skills' proposals to introduce a register of genuine providers have been widely welcomed.
§ I was asked also how the registration of colleges will be earned or achieved. In checking the legitimacy of providers, the Department for Education and Skills will look at the evidence that any genuine learning provider will be able to provide, such as the details of their premises, accounts and exam achievements. Work on developing the criteria and the process for accreditation for registration is ongoing, and the Department for Education and Skills is committed to providing further details about the scheme later in the summer.
§ Whether there will be a right to appeal for establishments which are not included in the register will depend on the detail of the scheme. It is clear that a set of criteria is needed and that those criteria must be met. I cannot go so far as to say that there will be an appeal system, but consultation is taking place. Providers and their representative organisations will have every opportunity to feed into the consultation before more details of the scheme become available.
§ I can therefore assure the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman, that the proposition in Amendment No. 26 that the power in Clause 29 could be used to specify a requirement relating to approved educational establishments is one with which the Government are in full agreement. That can be achieved using Clause 29 as drafted. It is not considered to be necessary to refer to the example in the legislation.
§ I hope that with that further explanation—I accept that it is not complete—noble Lords will accept that we are moving forward. The register which is being developed by the Department for Education and Skills will be used by the Home Office to verify that providers are bona fide for the purposes of immigration. The department has fully consulted the Home Office in developing the register. We are confident that the criteria being developed will allow the Home Office to ensure that bogus operators, who have no intention of providing learning, are not able to bring visa students to the UK. The register is not intended to address issues of quality.
§ A great variety of learning is available in the UK in both the public and the private sectors. That is one of our strengths. The register will help remove the risk of bogus providers while still being useful to the Department for Education and Skills in bringing together information on all providers. I hope that the House finds that further information to be useful, but I suspect that we shall come back to the issue, as we must do, when we have worked out the scheme in some detail.
§ Baroness Carnegy of Lour
My Lords, the Minister has not mentioned consultation in Scotland. The associations of which he spoke are not Scottish.
§ Lord Rooker
My Lords, I have a feeling that the United Kingdom Council for Overseas Student 82 Advisors may well cover Scotland. I referred to the UK education sector being undermined by fraudulent students from fraudulent colleges. Therefore, I have to take it as granted that consultation will be carried out with the special Scottish interests among colleges. Some colleges may be based in England; some may be based in Scotland. Therefore, they must all be included in the consultation.
§ Baroness Anelay of St Johns
My Lords, I thank the Minister. He referred to the fact that the education sector supports the Government's proposals. It certainly supports the proposition that there should be a register of bona fide colleges. Our only dispute is with how effective such a register may be, given that the DfES proposal appears to be one that could allow in colleges that would still be considered bogus by organisations such as ARELS. I was glad to hear the Minister refer to the Association of Recognised English Language Services by its old name. When organisations change names, as it has recently, it always creates difficulties.
§ I agree with the Minister that the list, when it is drawn up, should be operated by the Home Office. I just want to be sure that the current standard that the Home Office has set is the minimum that will be transferred to the new register. When I spoke about quality, I did not mean assessing whether the education being provided is first class or acceptable. I was asking whether it will fit in with the current standard that the Home Office exercises. That would be the minimum that we would consider appropriate.
§ I am glad that discussions on the criteria for accreditation are continuing with the DfES. It is not right to take the matter further at this stage because I shall now go back to Universities UK, ARELS and the Association of Colleges and see what other issues they would like me to raise at Third Reading. I shall then give the Government a further opportunity to address the issue of the right of an education institution to appeal against the refusal to allow it on to the list. The matter of appeal by the student has not been raised at all by the education institutions; rather, they are concerned that bona fide colleges might not be included on the list and might need the specified right of appeal. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
The noble Lord said: My Lords, Clause 29 gives the Secretary of State the power to remove appeal rights against the refusal of entry clearance applications in circumstances to be determined by Statutory Instrument. The clause does not reveal what the Government have in mind. The only clue is that the decision to refuse must have been taken on grounds that,
relate to a provision of immigration rules".
Since virtually all applications are made under the rules, and those that are not do not attract the right of appeal anyway, the provision is potentially very far reaching.
§ We believe that the preservation of appeal rights is vital in the interests of justice and the maintenance of standards in decision-making, so we are seriously concerned about the clause as drafted, which appears to give the Government carte blanche to remove appeal rights against all entry-clearance refusals, except those that raise issues under the Human Rights Act or Race Relations Act. In that sense, the proposal is breathtakingly wide, and the Government have given no justification whatever for seeking to take those tremendous powers.
§ 7.30 p.m.
§ The powers extend decisions based on not only any existing rules but, as the Minister frankly explained when we discussed the matter in Committee, any future rules that may be made hereafter. The only example that he gave of how the clause might operate in practice, which he said was not meant to be exhaustive, was that it could be made an additional requirement of the rules—we have just discussed the matter—that, to qualify for a student visa, the bona fide private educational institution at which the applicant had enrolled had to be on the proposed register. Therefore, it can be provided under the clause that, if an applicant has enrolled in an establishment that is not on the register, he can be refused with no right of appeal.
§ At present, if the system is working properly, there is presumably a list of establishments that are not bona fide, and entry-certificate applications naming them would be refused in any case. If the applicant then appealed, there would be an investigation of what was provided by that establishment. That would be the last thing that the operators of the bogus colleges would want. As the Minister said, once the register is in operation it will be a question of fact whether a school or college is on it. We would have no objection to there being no right of appeal against the negative decision based on the fact that a non-registered establishment is named in the application.
§ That example points to the way in which the clause ought to have been drafted. It should have said that a person may not appeal if the grounds of refusal are that he has failed to comply with a factual requirement of the immigration rules. That would be compatible with existing limitations such as in, for instance, Section 88 of the 2002 Act. When a person does not have a document required under the immigration rules such as a work permit, is not a Commonwealth citizen when that is a requirement, or is older than is allowed to be an au pair or working holidaymaker, there is no right of appeal. That is not unreasonable because those are objective criteria already set out in the rules, and 84 appeals against refusal on those grounds could not succeed. Similarly, visitors have no right of appeal, except if they seek to visit family members. Students cannot appeal if they seek to follow a course of less than six months' duration.
The press release that announced the amendments said that the Home Secretary would,
remove appeal rights in non-asylum cases when a person is refused entry to the UK because they fail to meet certain predetermined mandatory requirements, for example, attempted entry as a student when they do not have a place at their stated college".
That example was not helpful, because "prospective students" are already denied appeal rights by Section 91 of the 2002 Act.
If the Government would amend Clause 29 so that it could be used only to take away rights of appeal where the refusal was based on the applicant's failure to satisfy a factual requirement of the immigration rules, we would support them. We cannot accept the catchall provision that appeal rights may be removed where the decision is taken on grounds that merely relate to a provision of the rules. We ask that the Minister take the clause away and amend it to honour the undertaking that he gave that it will apply only to,
provisions in the Immigration Rules that are based on objective criteria".—[Official Report, 15/6/04; col. 709.]
That means provisions about which there can be little doubt as to whether the necessary requirements have been met. I beg to move.
§ Lord Rooker
My Lords, I can only repeat what I said in Committee. I give my reassurance again that the order-making power will be used only in respect of decisions based on objective criteria. As I said in Committee, the availability of judicial review in cases that will have no right of appeal as a consequence of Clause 29 underlines that assurance. It would be against the Government's interests to create a situation whereby high numbers of cases were judicially reviewed. That is what would happen if the Government sought to remove the right of appeal for decisions that were not based on objective and factual criteria.
§ The High Court was consulted before the Government tabled Clause 29, and indicated broad support for the measure, provided that it was to be used in the way in which I have described. I almost say "I rest my case", because that is the nub of the matter. If the Government are seen not to operate the provision, that would go against what the High Court said when we consulted it, and we would pile up a load of judicial review cases, which would be in no one's interests.
§ The Delegated Powers Committee scrutinised Clause 29 and accepted that there may be a need to respond to evidence of abuse. The committee considered the power acceptable in the light of the affirmative procedure. I confirm what I said in answer to the noble Countess, Lady Mar, when I was asked if there would be a possibility of judicial review from abroad. The answer is yes. If I said more I would risk repeating myself. We have to operate the provision as I set out. The High Court would 85 not buy it if we did not do so, and if we did not do so everyone would know about it because the court system would be clogged with judicial review cases.
§ Lord Avebury
My Lords, I am a bit mystified about why the Minister is reluctant to amend the clause to incorporate the undertakings that he gave in Committee and just now.
§ Lord Rooker
My Lords, we have opportunities for constant review of legislation as it goes through. The best brains in Whitehall are on the case. If we can clarify and make more transparent what we seek to do, to meet the points raised, we will do so. We intend to use the factual requirement only in relation to objective requirements. There are difficulties in defining "objective", which is probably part of the problem. There would be similar difficulties in defining factual requirements. The safeguard is the affirmative resolution procedure, which we will set out.
§ As I said, the High Court was consulted about the clause and indicated broad support—I do not say detailed support—provided that it was used in the way that I described. If the way that I have described it could be used better to clarify part of the clause, we will do that. I am not saying that we will shut the door, but on the other hand I cannot say that we will take the matter away and bring it back at Third Reading. I shall seek to have an answer on the matter for the noble Lord at Third Reading.
§ Lord Avebury
My Lords, I am still a little surprised that it is so difficult to draft an amendment to the clause that would give effect to what the Minister said. We would have to rely on a Pepper v Hart analysis of what he has said, instead of having the matter in terms on the statute book, which is always less satisfactory. I am most grateful to him for saying that he will have another look at the matter before Third Reading. Without holding him to any specific government amendment, I sincerely hope that he will be able to come forward with some words to give effect to what he said this evening. Meanwhile, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 48 [Commencement]:
§ Lord Avebury
moved Amendment No. 28:Page 43, line 20, at end insert—( ) Section 12 shall not come into force until the integration loan scheme under section 13 has come into effect.
§ The noble Lord said: My Lords, when the loan scheme was discussed previously, there seemed to be consensus that it should come into effect at the same time as the backdating of benefits ends, to ensure a relatively soft landing. As the Bill stands, from the moment that backdating comes to an end, successful asylum seeker A starting the rest of his life in the UK will be worse off to the tune of several hundred pounds compared with B, whose application was approved the 86 day before. Yet A might have lodged his application earlier than B, and might have been unlucky in having a less efficient solicitor, or the caseworker who dealt with him in the IND might have gone on leave at the critical moment.
§ At the very least, Parliament ought to ensure that B is entitled to the loan on offer under Clause 13, so that he is not in a worse immediate cash-flow situation than A, even if he has to pay the loan back as soon as he starts to earn. That is the purpose of Amendment No. 28.
§ The Minister was unable to answer some of the questions that were put to him about the loan scheme on 15 June. I hope that in the intervening fortnight he has been able to take advice on them. I asked whether the Government had discussed their proposals with the banks and what the banks thought about the Home Office going into competition with them. If the Minister says that the reason for not using the banks is that these loans are to be interest free—as he explained and as he has said again this evening—why cannot the IND reimburse the banks for the interest they would otherwise have received on the individual loans of these amounts, taking into consideration a guarantee of repayment by the Government? Doing it that way would have avoided the necessity for the Home Office to dabble in a business of which it had no knowledge or experience.
§ I asked how much has been spent by the Home Office so far in designing the loans scheme. Crucially, the noble Lord, Lord Hylton, asked whether every successful refugee would be eligible or only those who had accepted an offer of accommodation from NASS. The subsistence-only applicants would have been out of pocket to a far greater extent and therefore in greater need of a loan.
§ We asked how much it would cost to set up a mechanism for what is specified in the clause and how much it would cost to vet and approve the applications when the scheme is up and running—a task which the banks undertake regularly in the course of their normal business.
§ We asked whether the calculation of the amount available for lending would begin from the time when the back payments were abolished and whether potential applicants would have to wait until the funds had built up to a certain level of capital. Of course, if the banks ran the scheme, these problems could be overcome because the initial capital required would be zero and the running costs of interest reimbursement would be partly or wholly funded by the savings in back payments. I beg to move.
§ Baroness Anelay of St Johns
My Lords, in Committee I asked questions about the gap between the end of the backdating of benefits and the start of the loans scheme because I thought it strange that the Government were not giving an assurance that there would not be one. The only assurance which came forward was, "Don't worry, it's not likely to be a big one". It is unusual to deny people their entitlement and not put in place immediately the alternative recourse 87 to funds, particularly when the people have been correctly adjudged as refugees and are to be integrated into society. My question today must be: what will determine the length of the gap between the ending of the backdating of benefits and the start of the loan scheme?
§ Earlier today, the Minister told us that the loan scheme will be funded from the cancellation of the backdating of benefits. It will be completely self-supporting from that time. Two questions follow from that. First, which year of the backdating of benefits expenditure will be taken as the base when deciding what lump of money will go to the new fund? Having decided what that lump of money is, can the award start from day one, or must the Government build up their savings before they start making loans?
§ Another question occurred to me while listening to the noble Lord, Lord Avebury, reflecting on the questions posed in Committee by the noble Lord, Lord Hylton. What happens if I am at the end of the queue for loan applications and the money has run out in that financial year? Does it mean that I will receive no money—is this a stand-alone fund?—or does it mean that I must hope that the Government will make an ex gratia payment? We need to know who will qualify and how, and how the budget will be managed.
§ 7.45 p.m.
§ Lord Rooker
My Lords, I have been waiting almost all night to make this response, but that might have been a mistake. This is on the narrow issue of commencement and all these questions are "legit". I am tempted to say that I wish I had been asked them earlier when we were dealing with the issue, but I did not have the answers. I certainly do not have them now, but I have a key answer.
§ On the issue of commencement and the gap, I can get the answer out of the way. I am pleased to be able to inform noble Lords that in the period between discussions in Committee and today, further considerations have been given to the matter. I can provide the assurance that there is no reason why there should be any gap whatever. It is the Government's intention that there should be none. On the other hand, we do not feel it necessary to provide in legislation that there should be seamless transition. When we discussed the matter in Committee, that was the key.
§ Furthermore, as the loan fund will come from the savings, it also begs the question, "Until we get the savings, how can we give any loans?". I am speaking without notes, but I understand that a mechanism has been agreed with my friends in the Treasury that a sum will be placed at the use of the Home Office. Obviously, the loans would start at a few and gather in number. In other words, there would be a known budget. I do not know on which year it would be based—it could be the previous year or an average of the last three—but the sum of money would be made available for use by the Home Office.88
§ We are going into the banking system here rather than using the private banks, therefore loans will be available from day one for people in need. However, as I have said repeatedly, the fund is made up from the savings. It is not inexhaustible and it is not a loan system for anyone based on need. There will probably come a time during each year—I do not know—when the fund for that year will be exhausted. That will inevitably be the case because it will be funded out of the savings. It is not new money in that sense. However, it will be available from the beginning of the loan scheme. Obviously, there will be nothing in the kitty until the savings have been made, so a nominal sum will be transferred. As the savings accrue, the loans can be made, but the applicants will not be dependent on the savings because there will be a budget for the year. There is no intention for there to be a gap.
§ I will seek to get further particulars on the other quite legitimate questions asked by the noble Lord, Lord Avebury, as I am clearly duty-bound to do on this and other clauses that we discussed today. They are added to the list of questions for which I will have to find answers.
§ Lord Avebury
My Lords, the noble Lord has been good enough to give us the answer to our main question, but not to many of the others. We were in fact repeating the questions that we asked at an earlier stage. The noble Lord said he was tempted to wish that questions had been asked earlier, but they were. We hoped that by now he would have been able to come forward with some answers.
§ The reply he gave to the noble Baroness, Lady Anelay, was a matter for dismay. The scheme envisaged that the money would run out at certain points in the year and that anyone unfortunate enough to be in the queue for a loan at that moment would be out of luck. That is unacceptable. As the Treasury is in effect granting the Home Office an overdraft to begin the scheme, it could be asked to do so if there were meritorious applications for loans from credit-worthy individuals at points in the year when the funds allocated to the loan scheme had been exhausted. Why should not there be a repeat of the initial top-up with the Treasury lending money to the Home Office? It could then continue to make loans to bone fide applicants from the refugee community who otherwise would have to be told, as the noble Lord explained, "I'm sorry, but the money has run out for this year. You'll have to apply again on 1 January 2005".
§ We are grateful to the noble Lord for having undertaken to give answers to the other questions. I hope at least that we will be able to have a more informed discussion of the loan scheme at Third Reading. In the mean time, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.