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Immigration: Statement of Changes in Rules

rose to move, That the Statement, laid before the House on 6 February, be disapproved. The noble Lord said: My Lords, we oppose this statement on a number of counts, but first and foremost because there has been no consultation with any of the stakeholders. The Immigration Law Practitioners' Association, the Immigration Advisory Service, the Transport and General Workers' Union, the Refugee Children's Consortium and Universities UK—I am glad to see the noble Baroness, Lady Warwick, in her place—all had valid points to make and their views were ignored in the formulation of this statement. The Minister apologised to ILPA in a letter of 29 February and since then there have been discussions with it, but even though officials appear to have acknowledged the concerns expressed, the only way they could have been accommodated was to withdraw the statement and retable an amended version, and they clearly have not been prepared to do so at such a late stage. HC321 brings into force the tier 1 component of the points-based scheme announced by the Home Office in March 2006, and we fully endorse the criticisms made by the JCHR of the tighter conditions for the grant of further leave to remain, which apply not only to those coming here under the new scheme but to highly skilled migrants who came here under the previous arrangements. Those people came here to settle down and they bought houses and placed their children in schools with the legitimate expectation that if they satisfied the conditions specified, they would qualify for settlement at the end of four years. Now, the carpet is being pulled from under their feet, and the retrospective imposition of additional conditions is seen by the JCHR as a fundamental breach of their right to family life. This matter is being tested in the courts as we speak, and it was wrong of the Government to ask your Lordships to approve these changes until that matter had been decided. However, our concerns also extend to the general changes that are being made here in dealing with false documents and applicants who previously breached immigration laws. It is to be mandatory to refuse an application for entry clearance or for leave to enter or remain where false representations have been made or false documents submitted whether or not they are material to the application and whether or not they are to the applicant's knowledge, and the same applies to material facts not disclosed. On Third Reading of the UK Borders Bill, we moved an amendment to allow mistakes or misunderstandings in an application to be corrected. The noble Lord, Lord Bassam, said that under this system appeals, "““will not be an opportunity for applicants to patch up failed applications with new evidence””.—[Official Report, 23/10/07; col. 995.]" Thus a clerical error or the wrong document submitted by mistake will lead to mandatory refusal, even where there was no intention to deceive. The applicant can then be prohibited from returning to the UK for one, five or 10 years. However, the noble Lord, Lord Bassam, confirmed explicitly in an earlier debate that a person whose application for an extension of stay is rejected because of a clerical error or a wrong document would be entitled to have a corrected application considered if it was lodged within 28 days of the expiry of his existing leave. In response to an amendment, the noble Lord said: "““A 28-day grace period will be included in the Immigration Rules as part of the tier 1 process in March 2008 … This will allow those who send their applications within 28 days of their leave expiring to continue with their application. That is a very ""helpful approach on our part, which will probably be welcomed, not least by immigration law practitioners””.—[Official Report, 16/10/07; col. 661.]" He repeated that assurance later, making it crystal clear that the 28-day period would allow a person whose application had been rejected because of an inadvertent clerical error or the submission of the wrong document to put in a new application within 28 days. When I put that to him, he replied: "““Yes, my Lords, that is what I am saying””.—[Official Report, 23/10/07; col. 996.]" Will the Minister be good enough to point to the passage in the statement that gives effect to those undertakings? In the JCHR hearing on the statement, the Minister was asked about the even more serious case of a woman or child who is trafficked into Britain on false documents and subsequently escapes. He said: "““That is why there has to be an appeal that is attached to these kinds of decisions””." However, there is no discretion in the rules on false documentation, even for asylum applicants who customarily have to produce travel documents to which they were not lawfully entitled, because obviously a Government who are persecuting them do not want them to escape and tell their story in a free country. Will the Minister explain how any appeal can succeed when the law makes no provision for exceptions in those cases? Paragraph 47 imposes catastrophic penalties on an applicant who commits breaches of the immigration laws, including minor infractions of the conditions attached to his leave. I expect that my noble friend Lord Roberts will deal with the retrospectivity of these penalties, which is particularly abhorrent. Apart from that, a mandatory ban on entry for a fixed time in a given set of circumstances is undesirable, and paragraph 320 of the rules already provides adequate powers to deal with persons who had previously obtained leave to enter by deception, or who failed to observe a time limit or any other conditions attached to a previous stay. Paragraph 320 provides that such persons are normally to be refused, but allows for discretion so that the punishment can fit the crime. Thus an inadvertent or accidental breach could be overlooked, while deliberate breaches can be treated with appropriate severity. Making exclusion mandatory is to ignore the gravity of the breach so that, for example, a missed attendance for reporting, for whatever reason, or a short delay in advising the BIA of a change of address when a residence condition has been imposed, would mean a one-year ban on re-entry if the person leaves the UK voluntarily at his own expense; a five-year ban if he leaves voluntarily at the expense of the taxpayer; and a 10-year ban if he is deported at the expense of the taxpayer. The European Council is currently looking at a draft directive on returns of illegal third-country nationals and has agreed with the Parliament that the length of the re-entry ban should be no more than five years, except where there is a threat to public policy or to security. There is no mention in that draft of the ability to pay. When your Lordships considered Clause 16 of the UK Borders Bill, which allows for the imposition of residence and reporting conditions on any person given limited leave to remain, we had no idea whatever that breaches were to be dealt with in this arbitrary and disproportionate manner. Among those who are to be made subject to the conditions are child asylum seekers, for whom the Refugee Children’s Consortium has expressed great concern. The degree of responsibility to be laid on a child, whatever her age, for observing conditions ought not to be equal to that of an adult, still less where the child has been trafficked or smuggled into the UK. However, the same procrustean penalties are to be imposed on children as on adults, and in practice they are more likely to suffer the longer ban of five years because they will be less able to pay the fare back to their country of origin. Last week, Amnesty International and Southall Black Sisters published a report on gender-based violence against women with limited leave to remain. The men who rape, mutilate and starve these women also threaten them with penalties under the immigration rules. In the particular case of domestic workers, on whom conditions are being imposed that prohibit a change of employment, the perpetrators are being handed an additional weapon. In the Government’s response to the EU Select Committee report on illegal migrants, they said about a proposed EU-wide re-entry ban that, "““the time limits would be arbitrary in nature and involve considerable administration in monitoring the bans””," and that to allow a person to escape the ban, "““simply by paying the costs of the removal would condone the abuse of the control by those who are financially well off, while those without such financial means are excluded””." Is that not what we are being asked to agree to now? Children, abused women, domestic workers and other vulnerable people without means are going to suffer the five-year ban. There is a threat that students may also be added to the categories of those with limited leave to which these penalties will apply. Even worse, as the thousand Zimbabweans now being threatened with deportation will be subject to a 10-year ban, if any of them is the victim of fresh persecution when they arrive back home, they will be unable to submit a new application. Indeed, without an exception to the ban for any person who establishes a claim to have been persecuted for a convention reason, this statement could well be unlawful. The statement is ill considered, arbitrary, inflexible, unnecessary, out of line with the rest of Europe and contrary to recent government policy. It could have serious repercussions on our commitment to ratify the Council of Europe convention on human trafficking and the UN Convention on the Rights of the Child. The sensible thing to do now is to wait until the reviews on the steps that we need to take for those purposes have been completed, so that the carve-outs mentioned by the Minister in his replies to questions from the JCHR can be incorporated into the rules. That would give time for the process of consultation that has been so grievously side-stepped so far. It is not too late for the Minister to say now that he will not proceed with the changes but will further reflect on what has been said with one voice by the many agencies that made their comments after it had been tabled and by your Lordships here this evening. I beg to move. Moved, That the Statement, laid before the House on 6 February, be disapproved.—(Lord Avebury.)