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Immigration: Statement of Changes in Rules

My Lords, I am grateful to everyone who has taken part in this short debate; they have raised some important issues. I am particularly grateful to the noble Baroness, Lady Warwick, who gave me advance warning of a couple of specific issues that she wished to raise. I am conscious that noble Lords have spent quite a lot of time researching what I said on the UK Borders Bill last year and I am grateful to be reminded of my fine words at that time. I hope that nothing I say this evening will run in contradiction. The noble Lord, Lord Avebury, is always assiduous in these matters. I have a great deal of respect for his general approach to these issues and for the courteous way in which he conducts himself. Generally, that is the best way and is in the best traditions of your Lordships’ House. It makes for a more interesting and civilized debate. It is clear that noble Lords feel strongly about the changes we are making to the general grounds for refusal, particularly those that require people who have broken our immigration laws in the past to be, in effect, banned from coming back for a period. Before I respond to the detailed questions, it may be helpful if I explain why we propose these changes First, we wish to deter people from breaching our immigration laws—we take that very seriously—and we do that by imposing a clear sanction on those who do so. Secondly, we wish to give illegal migrants an incentive to go home of their own accord rather than wait for the BIA to remove them. That is why the rules say in terms that if you go home voluntarily, and at your own expense, you will be banned for only one year; but if you are removed, you will be banned for 10 years. That is a very clear, plain, straightforward, simple incentive—and that remains the Government’s position. A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 327B of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules. I emphasise that that does not mean that those people will automatically be allowed to come back. They will need to meet all the other requirements of the Immigration Rules. The BIA will also, as now, have the discretion to refuse them if they contrive in a significant way to frustrate the Immigration Rules; for example, by contracting a bogus marriage, which we know happens. They will not face a period of automatic refusal under paragraph 327B, however, if they go home after 1 October. That gives those who are currently here illegally a clear incentive to go home and, as I mentioned earlier, it promotes the Government’s objectives. We cannot withdraw the Immigration Rules in order to make the change, as I have outlined, since many of them are already in force. The change will therefore take effect as a time-limited concession outside the rules. I hope that noble Lords will find themselves able to support that concession. Noble Lords have taken the opportunity to raise a number of issues, and I will go through those in turn. The noble Lord, Lord Avebury, started his commentary by asking why we did not consult immigration practitioners before putting forward the initial proposals. It is normally the practice that we would go through fairly rigorous consultation arrangements, but it is not always possible to consult everyone who might have an interest in the subject before changing the Immigration Rules. However, we have subsequently had some extremely valuable meetings with the Immigration Law Practitioners Association, a very respected body, since we proposed our changes, and that dialogue continues to be of value to us. The noble Lord asked about appeals. Other questions were also asked about appeals, to which I shall come. In essence, the noble Lord asked how appeals could succeed if refusal is mandatory. It is possible to bring an appeal on human rights grounds if keeping the applicant out would breach their human rights, the right to family life and so on. If they succeeded on appeal, that would lead to them being admitted. The noble Lord asked about our objection to the EU re-entry ban. The main reason for our declining to take part in that instrument was that it is a matter best dealt with by member states, and that is essentially what we are doing with this set of proposals. My noble friend Lady Warwick mentioned a number of points, one of which was about false documentation. She asked what we meant by a ““false document””. We mean a document that is forged or has been altered to give false information. If people submit such documents, our belief is that they should be refused. It will be for the BIA to prove that a document is false, and the standard of proof has to be very high. My noble friend asked whether we could confirm that people who apply within 28 days of their leave expiring will be dealt with as normal under the points-based system. The answer to that is simple: yes. That was an undertaking we gave when Section 19 of the UK Borders Act 2007 was before the House; in fact I made it, and plainly so. These rules deliver on that. They do not require a points-based applicant to have existing leave. Consequently, applicants whose leave has expired can be granted as normal under the points-based system; that is what the rules say. My noble friend also asked whether we could make available a copy of the guidance on overstayers and place it in the Library. There is no specific guidance on overstayers. The position of overstayers is dealt with in the guidance that covers each individual category of the Immigration Rules—those that cover students and those that cover spouses. That guidance is already in the public domain on the BIA website. To make it easier for my noble friend, I shall ask our officials to provide her with a copy. If other noble Lords want a copy, I shall happily make it available to them. My noble friend asked whether the position of student overstayers as announced to the joint education taskforce was still valid. The answer to that is yes: students who overstay up to 28 days will be considered as normal; those who overstay for between 29 days and six months will be considered in exceptional circumstances.