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UK Border Agency

Staff are properly trained to work within the rules. Of course there will be some leeway and discrepancy in individual cases, but it is important to ensure that those rules are applied impartially. I am trying to explain that that is necessary not only in the first instance of contact with individuals, but throughout the handling of a case. It is, however, also important to have in place appeal mechanisms, and beyond, to ensure that cases are dealt with reasonably and within the rules. As for the issue of those who are allowed to work in the UK, it is very important that we have an immigration system that is fit for the 21st century and protects the interests of not only Britain and British people, but foreign nationals who have legally settled here. That is why we introduced and are rolling out the flexible points system, which has the purpose of controlling the number of people coming to the UK from outside Europe and ensuring that they have the skills that this country requires. We cannot allow individuals to circumvent this system once they are already here. The right hon. Member for Maidstone and The Weald is concerned about the implementation of the new civil penalties regime. We know that the way to tackle illegal immigration is to tackle illegal working. The availability of illegal work is often associated with breaches of legislation governing tax, health and safety, and so on, and it can act as an incentive for people to enter and remain in the country unlawfully. The experience of UKBA staff shows that illegal migrant workers tend to be found in jobs and occupations that are often considered unattractive by UK workers because of the hours, wages and working conditions that prevail. As a result, those migrant workers are exploited should they take those jobs on coming into this country. That is why we introduced new measures on 29 February 2008 under the Immigration, Asylum and Nationality Act 2006 that distinguish between employers with less than adequate recruitment practices and the more serious cases where employers knowingly and deliberately employ illegal migrant workers. The measures include: a system of civil penalties for less diligent employers—I take the right hon. Lady’s point about her view of the diligence in the case that she raised; a tough new offence of knowingly employing an illegal migrant worker, which applies to the more serious cases and can carry a penalty of up to two years’ imprisonment and/or an unlimited fine; and a continuing responsibility on the employers of migrant workers to check their ongoing entitlement to work in the UK. Again, I note the points that right hon. Lady made about that responsibility. UKBA takes an intelligence-led approach to operations and will target those whom it believes may not be complying with their obligations. Again, let me be clear that there are no soft targets. UKBA will issue civil penalty notices to any employers should it come across evidence of illegal working. Where evidence exists to show that an individual has been knowingly employing illegal migrant workers, consideration will be given to prosecution, as appropriate. The evidence in respect of the notices that have been issued and the potential value in fines shows that we were right to bring in this tough legislation. Let us consider the second case that the right hon. Lady raised and the general points arising from it. On her concerns about UKBA’s application of the immigration rules to individual cases, I should say that the rules lay down the requirements that need to be satisfied by a person who seeks leave to remain as the spouse of a person present and settled in the United Kingdom. The first requirement is that the applicant has limited leave to enter or remain that was given in accordance with any of the provisions of the immigration rules. The only exception to that would be where, as a result of that leave, he or she would not have been in the UK beyond six months from the date on which he or she was admitted to the UK—on this occasion in accordance with the rules. The requirement prevents people admitted to the UK for six months as a visitor from switching into the category of spouse. I understand the particulars of the case that the right hon. Lady has described, but I am trying to set out the background for the rules. We strongly believe that anyone who is coming to this country with the intention of settling on the basis of marriage should apply for spouse entry clearance in the proper fashion, from abroad—the right hon. Lady accepted that point. Before the no-switching requirement was introduced in April 2003, more than half of those who switched into the marriage category did so within six months of entry to the UK. I hope that I can set out why the rule is as it is. Many of those who switched intended to avoid rigorous examination of marriage applications by diplomatic posts abroad or the higher costs of obtaining spouse entry clearance compared with visitor entry clearance. Some applications to UKBA for leave to enter or remain touch on article 8 of the European convention on human rights. Article 8, which is a qualified right, states that everyone has the right to respect for his or her private and family life. Restriction or interference with that right is permissible in order to maintain effective immigration control. When an application for leave to enter or remain contains an express or implied family life claim, caseworkers should complete a five-stage process, considering the following questions: does the claimant have family life in the UK; is it reasonable to expect the family to leave with the claimant; if there is interference with family life, is it in accordance with the law and the immigration rules, published policy and procedures; is the interference in pursuit of one of the permissible aims set out under article 8(2); and is the interference proportionate to the permissible aim? In considering proportionality—item 5—caseworkers consider all relevant factors and no one factor is decisive. The prospective length and degree of family interruption involved is highly relevant, as is the person’s immigration history. Any delay in considering the claim is relevant. Another factor is whether family members can or cannot reasonably be expected to join the person abroad when he or she makes his or her entry clearance application.