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Immigration: Statement of Changes in Rules

My Lords, the noble Baroness, Lady Warwick, mentioned concessions, but we cannot find such concessions in the order itself. Possibly the Minister can tell us exactly what these concessions are and how he is going to deal with them. Is there a concession regarding transitional arrangements, especially under paragraph 47, which is a very worrying provision. Without transitional arrangements, many people are going to suffer a grave injustice. We need to recognise the human rights implications, particularly on the right to private and family life for those who have established themselves. Given that, what are our obligations under Article 8 of the Convention on Human Rights? Is this something to which the Minister can say, ““Yes, it has been cleared and we are meeting our obligations under the convention””? We see the difference between old paragraph 320 of the Immigration Rules and the present one. It sets out the general grounds for refusing applications for entry clearance or leave to enter the United Kingdom. ““General grounds”” means simply that the grounds for refusal apply to any application and are not specific to any category or type of application under the rules. Some of the grounds for refusal are mandatory and some discretionary, but new paragraph 47 tightens up the whole system by listing additional mandatory grounds for refusal. These include where an applicant has previously breached the UK’s immigration laws by overstaying. If he has overstayed for 28 days or less and has left the UK voluntarily, not at the expense of the Secretary of State, that is all right, but otherwise an overstay of even a day over 28 days could incur a severe penalty. Another ground is breaching a condition attached to the applicant’s leave. What happens there? Then there is being an illegal entrant or using deception in an application for entry clearance unless the deception took place more than 10 years ago. Others are someone who left the UK voluntarily and not at the expense of the Secretary of State more than 12 months ago, someone who left the UK but at the expense of the Secretary of State more than five years ago, and someone who was removed or deported more than 10 years ago. All these new regulations will cause a lot of confusion in certain quarters. The scheme tries to set out particular behaviours that will trigger a ban and set out the particular circumstances governing the length of the ban. The general intention is that breaches of immigration law should result in a ban on the person returning to the UK for a fixed period in the future. The general intention here is to provide an incentive to those who have breached immigration law to leave voluntarily and at their own expense, in which case their ban is only for 12 months, otherwise the ban will be for between five and 10 years. The one exception is where deception is used, in which case the ban will be for 10 years. We on these Benches oppose the bans in principle. It is our position that the current rules are adequate in allowing for breaches of immigration laws to be taken into account in relation to any application to come to the UK. In addition to this position of principle, there are several concerns with the scheme. One of the fundamental problems, as already mentioned, is that there are no transitional arrangements. Furthermore, the scheme will provide an incentive for people to do exactly the opposite of what is intended, an issue to which I shall turn in a moment. It will penalise people who have done what the Home Office wanted by returning home to make entry clearance applications before these changes were published on 6 February or before they became aware of the changes. There was no consultation and so these people are in limbo. They have done what they should have done or were unaware of the changes, and now they find themselves in a difficult predicament. The scheme runs a coach and horses through established jurisprudence on which the Home Office has consistently relied, and continues to rely, relating to people with established family life who are unlawfully present in the UK. The problem is that those who were unaware were caught in this transitional period without any special arrangements being made for them. The Minister appeared before the Joint Committee on Human Rights on 19 February, where he referred to the importance of sending a ““very clear signal”” to those who use deception on entry clearance applications. However, these statements by the Minister neither explain nor justify the lack of transitional arrangements. If someone has already done something inadvertently, how can you deter that person from doing it when it has already been done? After they have done it, it is too late to be sending a very clear signal to them. We need clear transitional arrangements by which people can abide. Far from giving an incentive for people to leave, the rules provide an incentive for people to remain in the UK, to pursue appeals and judicial reviews, and, ultimately, if unsuccessful, to be come part of a larger problem—those who have gone to ground and disappeared from the scheme. Once a person has committed a breach, however minor, that person no longer has any incentive to comply with immigration laws. With one minor infringement, such as forgetting to report on one occasion or overstaying for a short time beyond 28 days, the ban comes into force. From this point, the person may well reason, ““In for a penny, in for a pound. With no transitional arrangements, why should I abide further by these regulations?””. Those who have returned home will, from 1 April, face a mandatory ban on their return. Neither they nor their advisers could have predicted that they would face such a ban; a ban had not been envisaged when they were advised. If it had, the advice would in many cases have been very different. It is a fundamental injustice that people in this situation should be penalised for having returned to their home country. We need to look again at the arrangements and the rules. As has been mentioned, we know that the Asylum and Immigration Tribunal and higher courts are already having considerable difficulty in thinking about this order.