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Volume 475: debated on Tuesday 13 May 2008

[Relevant document: The Minutes of Evidence taken by the Joint Committee on Human Rights, on Immigration and Human Rights, on 19th February, HC 357-i.]

I beg to move,

That the Statement of Changes in Immigration Rules (House of Commons Paper No. 321), a copy of which was laid before this House on 6th February, be disapproved.

I want to make the case that the Home Office must start again. I shall argue that the rule changes will involve injustice to many individuals, including some child victims of trafficking, whom the Government are pledged to help. The changes will introduce automatic penalties for breaches of rules which, in the view of the Liberal Democrats, will prove to be counter-productive—far from saving official time, they will mean more appeals to the courts. The essential issue is whether people who breach entry rules, perhaps by making a mistake, or whose agents breach entry rules, must pay for that with an automatic—I repeat, automatic—ban on the right to reapply for entry for at least a year and for up to 10 years, regardless of circumstances, regardless of fault, regardless of understanding. As far as I know, the Home Office has yet to win the plain English prize for Government forms.

The Government say in their explanatory notes that this is about penalising deception, but deception implies that the officials concerned understand intention. One of the most difficult things to prove in any court of law is what is going on inside the defendant’s head. It is certainly no more possible to infer from a potential immigrant’s mistake on a form that he or she is deceiving people than it would be fair for me to accuse Home Office Ministers of deception every time their Department made a mistake. Of all Departments of State, surely the Home Office—found, only this week, to have the lowest capability level of any Department—ought to understand better than most the difference between an honest mistake and a deception.

The proposed change is a serious matter, which will involve injustice and hardship. A mistake will lead to exclusion from this country for one year or more, which may mean separation from family, friends and, in some cases, employment. Imagine someone who has lived in this country for some years with a partner and children. He or she may have overstayed, and may now wish to regularise the stay. His adviser would now say “Come clean, depart voluntarily and reapply on the basis of continuing family life”, but he will be excluded for at least one year, and possibly up to 10 years if there has been any previous deception.

What an extraordinary incentive for people to remain undercover and not to regularise. What an appalling prospect for a person’s partner and child if he or she tells the truth and comes clean. What a potential infringement of the Human Rights Act, and of article 8 of the European convention on human rights on the right to family life. The Liberal Democrats are waiting eagerly to hear whether the Minister can make a concession on this, at the very least.

The proposed change entirely contradicts the expressed desire of Government policy to be compassionate with victims of child trafficking, outlined by the Minister’s colleague, the Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker), in a recent debate on the ratification of the international convention. During that debate, on 18 January, Members in all parties spoke eloquently of the need to tackle human trafficking, particularly child trafficking, and to stand up for its victims.

On 19 February, in evidence to the Joint Committee on Human Rights, the Minister conceded that there might be a need for “carve-outs” to protect children and victims of human trafficking. The Children’s Commissioner wrote to request that he include an

“exception for those who were under 18 at the time of the breach”.

However, the Minister replied that the concern over trafficked and asylum-seeking children had been answered by the concession that delayed the implementation of the changes until 1 October. That is plainly wrong. How does the concession help children brought here by traffickers, who will in future be subject to re-entry bans for varying lengths of time because they entered the country illegally, although they were effectively kidnapped? They are least likely to be able to afford their passage home, and may therefore be subject to more severe penalties.

What will happen to a person who used to live in the United Kingdom with his or her parents? If the parents overstayed, or used deception in that person’s application when he or she was a child, that child will not be able to come and study in the United Kingdom without being subject to a blanket re-entry ban for offences of which he or she is completely innocent. In the extraordinary, discretion-free world that the Government are creating, the sins of the parents, of people-traffickers or of the person who is trying to take a child away from danger to sanctuary in the UK—albeit illegally—are visited on the child. I cannot believe that that is what the Minister intended, and I urge him to amend the rules to exclude offences committed when the person concerned was under 18.

Let me cite another case. Recently, the chief executive of the UK Border Agency told her officials not to be so silly when they were about to remove three students; the students had wrongly filled in their applications to extend their stay, and were branded “overstayers”. The lack of discretion in the new rules means that that second chance would now be entirely impossible. Indeed, the mistake may now also be viewed as deception and the students be banned from returning and completing their course, or from undertaking postgraduate studies. That is an arbitrary and extraordinary imposition, and a terrible way to make friends and influence people who may return to their countries and in due course become people of influence and position.

This is likely not just to involve injustice and hardship, but to prove counter-productive in streamlining the immigration procedures. Of course, we can understand the Minister’s logic. The Minister is a former management consultant; he understands these problems. Officials are human, and to err is human; therefore, officials err. It is an ineluctable logic—although when it was first expounded I doubt that anyone had in mind the spectacular capacity for human error recently perfected by the Home Office. After all, such a large proportion of decisions are overturned on appeal—in asylum cases, for example—that it must be intuitively appealing for discretion to be removed entirely from the process.

This is immigration rulings by rote; there is no room in these rules for any discretion. It does not matter whether someone has overstayed by one day or 10 years, or whether they have made a typo on a form or they have used false documents. That rigidity and automaticity will not save official time, however. We Liberal Democrats contend that it will prove counter-productive because more and more cases will end up in the courts and there is no evidence that the UK Border Agency is capable of handling them because, extraordinarily, there was an abject failure on the part of Ministers to consult on these matters before tabling their proposals in February, and because, most bizarrely of all, the changes are regarded as too trivial to merit an impact assessment. Why then are Ministers coming to this House and undertaking such trivial changes, and failing to concentrate on serious matters that deserve their attention? If, as we contend, these matters are far from trivial, why is there no consultation and no impact assessment from either the Home Office or the Ministry of Justice, when the courts system may well have to bear the fall-out and sweep up the mess?

The Government should withdraw these changes, at least until those assessments have been undertaken and they know what they are doing. At the very least, we need a provision for the exercise of discretion in cases of minor and inadvertent breaches and we need exceptions for children, people who have been trafficked and asylum seekers.

I have attempted to show that the rules would lead to significant injustice. Children, who most need our protection, would be denied it and potential immigrants would be discouraged from regularising their position because it might mean, de facto, the break-up of their family and the loss of their job. Automaticity will not only prove to be a poor handmaiden of justice, but it will lead to increasing numbers of appeals against arbitrary and insensitive official decisions. We conclude that the measures will not even deliver a reduced burden on the officials concerned, who will find themselves increasingly often in court.

For all those reasons, we beg to move that the measures be now disapproved.

The Government are evidently in some difficulties over this instrument, and the problems arise essentially from a lack of consultation. Their basic case—that there should be penalties that discourage people from staying here illegally—is a sound one, but the problem, as so often in this policy area, is a lack of sensitivity and an unwillingness to listen.

There were the first signs of flexibility in the debate on this issue in another place when the Government spokesman in the House of Lords, Lord Bassam, made a welcome concession by, effectively, delaying the implementation of the changes before the House until October, so that those who are here illegally have the chance to leave the country without falling foul of these rules. He said:

“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”.—[Official Report, House of Lords, 17 March 2008; Vol. 700, c. 97.]

Does the Minister agree that it might have been better to consult organisations such as the Immigration Law Practitioners Association and the Immigration Advisory Service, and other bodies, such as the Refugee Children’s Consortium and Universities UK, which might well have had constructive and helpful suggestions to make? As far as I can see, he consulted absolutely nobody, which, in this context, seems a little foolish.

I accept that the Government have to strike a balance. They are rightly charged with securing our borders and preventing abuse of our immigration system while ensuring that the system is fair to individuals. We are all aware that occasionally those two objectives sit uncomfortably with each other, but when concerns were raised in another place about those who have made mistakes on their application—the hon. Member for Eastleigh (Chris Huhne) has also made the point—Lord Bassam said:

“The Government believe that the points-based system will provide an adequate remedy for migrants who have made mistakes in their application”.—[Official Report, House of Lords, 23 October 2007; Vol. 695, c. 996.]

I hope that the Minister can tell us whether he is satisfied that adequate remedies are in place, because there seem to be some powerful arguments that they are not in place.

The hon. Member for Eastleigh made a number of points, and I, too, wish to deal with a range of questions that the Minister needs to answer. I wish to start with what is clearly both the most sensitive issue and the one on which the Government’s case is weakest: the treatment of children. The whole House will agree that the issue of children in our immigration system needs to be handled carefully, and the Minister will know that those most involved with children’s rights in this area have considerable concerns as to how the changes will impact on children.

It is clear that children in the immigration system cannot be accountable or wholly responsible for their own application and that, in some cases, they are legally in the care of a responsible adult. I hope that the Minister will tell the House what will happen if a child’s application contains false documents or statements made not by them, but by others. Will the Government treat that as deception? Will they bar such children from entering the UK even after they have become an adult?

I support the point that the hon. Gentleman is making. Is it also the case, as I understand it to be, that if the documents cannot be produced when the child is often much older than they were when they first arrived in this country, they would fall foul of this proposal and be threatened with removal—or if they are removed, they would not be allowed to come back for five years?

The hon. Gentleman makes a good point, and, again, I hope that the Minister can address it.

Clearly, a number of detailed issues affect children, where, as I just said, the Minister’s proposals are at their weakest. The Refugee Children’s Consortium makes a large number of points, of which I shall just detail two. First, it says that

“any application for further leave must be refused if any false document has been submitted, or false statement has been made, or there has been any failure to disclose a relevant fact. Refusal is mandatory in these circumstances regardless of whether the applicant is aware of the falsity or omission”.

That is clearly an extremely tough test to pass. Secondly, it states:

“These changes make no distinction between refugees and other immigrants; nor between children and adults. The previous Rules made no explicit distinction, but by admitting discretion allowed decision-makers to have regard to the particular age and circumstances of applicants.”

Another related point is that everyone in the House has particular concern for the victims of human trafficking, so I hope that the Minister will frame his response also in terms of the effect of these changes on potential child trafficking victims who are, as we all know, victims of one of the fastest-growing and most repellent crimes in the modern world. I hope he will address the issue of children.

Another area where questions need answering is cost recovery.

Before the hon. Gentleman moves on, will he be clear—he has not really touched on this—about whether he thinks there should be any penalties on those who are deported from this country in relation to having to wait a time before applying to come back?

Yes I do, and if the right hon. Gentleman had been listening he would know that I made that point quite explicitly at the start of my speech. I said that Governments have responsibility to protect our immigration system. It is late at night and I am happy to make things clear for him.

In the explanatory notes to the statement of changes, the Government say:

“Where migrants have left the UK at public expense, we will also require them to repay the cost of their departure, once we have introduced primary legislation that allows us to do so.”

Will the Minister tell the House when the Government intend to introduce those proposals? Having removed someone from the country, how do the Government propose to recover that payment? What discussions have they had with foreign Governments about their co-operation in recovering costs from their own nationals? On the surface, the Government’s aim of recovering costs from people who have already gone back to their own country looks extremely optimistic. I suspect that this part of the changes is somewhat unrealistic.

Another issue, which the hon. Member for Eastleigh raised, is inadvertent mistakes. Clearly, nobody condones the intentional use of misleading or false information and those who use it should be subject to stringent penalties. We support the general approach that those who give false information should be refused entry, but will the Minister clarify what entry clearance officers will take the word “false” to mean? Does it mean intentionally false or inaccuracies of any kind? In short, does it involve active deceit? Is a mistake made in good faith also covered by these measures?

The Minister will be aware that that issue was raised in another place by representatives of the universities. Perhaps students are particularly prone to making such mistakes, but whether they are or not, it is clear that full clarification will be important.

It is also important to put these changes in the context of the wider weaknesses of the points-based system as it has been introduced by the Government. It is designed to do one job, which is to allow the economically beneficial to come to this country, but Ministers would like it to do another, which is to limit the numbers coming here. The scheme does not set limits of that sort and, as it is set up, it is not intended to do so. Ministers constantly argue that it is a system like Australia’s, but they know that the Australian system is entirely different. It starts with a limit and selects within that total.

Nor does the Government’s points-based system prevent long-term settlement. By staying on for five years and making an application, all work permit holders will be qualified to apply for settlement in Britain and, later, for citizenship. That will apply whether or not their skills are needed beyond the short term.

The result of those weaknesses in the system and the complete lack of public confidence in the Government’s immigration record is that Ministers are at all times having to try to look as tough as possible. The result of that, as we see before us this evening, is too often self-defeating. We have seen that over the highly skilled migrants programme. The Minister will be aware of complaints from the restaurant sector and there are now complaints from those who employ seasonal workers. It is conceivable, indeed, that there might be objections from some people who are covered by the measure. The root of the problem is policy driven by rhetoric, which is never a happy prospect.

I put it to the Minister that this is the day of the U-turn for the Government. I hope that he repeats the performance of the Chancellor this afternoon and introduces another set of U-turns and sensible concessions on this badly drafted measure.

My hon. Friend the Minister for Borders and Immigration gave evidence to the Joint Committee on Human Rights on this issue on 19 February, and I am not entirely sure that we saw eye to eye during that session. The first point that I put to him arose from the explanatory memorandum to the document laid on 6 February, which said in paragraph 8.1:

“An impact assessment on these changes will be published on the website of the Border and Immigration Agency…and on the Home Office website”.

When he came to give evidence, that impact assessment had not been published and he went away to check it. I do not think that it has been published yet. No doubt the Minister will correct me if I am wrong, but the fact that we do not have that impact assessment is serious. Despite what we were told in the explanatory memorandum, no real thought has been given to the consequences of the rule changes for some vulnerable people.

I am reminded of a couple of cases that I put to the Minister in Committee. I gave the example of a trafficking victim who is brought into the UK by deception, so her entry is illegal, but who manages to escape from the traffickers. As she has no money to return to her own country, she relies on the UK to pay for her return and is barred for 10 years because of the deception, or for five years because her return is paid for by the UK. The other example I gave was of a child fleeing persecution in his home country who is smuggled into the UK with the assistance of an agent, and who has no travel documentation so has entered the country illegally. The child has no funds of his own and is given discretionary leave, but when his asylum claim is ultimately decided, it is refused, perhaps because the circumstances in the home country have changed. Even if the child agrees to a voluntary return, he has no money to pay for it so either he is excluded for 10 years because of the deception in getting into the country or for five years because he cannot pay for his own return.

Those are two examples of hard cases, and because there is no discretion in the system and it is based on mandatory refusals we end up with two pretty appalling cases. We have no special exemptions for children and trafficking victims, and so one would have thought that that sort of thing might be thrown up by the impact assessment, which has not been produced.

It is irrelevant if the applicant believes that he had a good reason to believe that the statement was true or the document was genuine or valid, if the statement was made or the document submitted by a third party without the applicant’s knowledge, if the applicant did not understand the relevant fact that needed to be disclosed and made an entirely innocent mistake, or if the false document or statement was totally irrelevant and immaterial to the application. None of those factors is taken into account. The refusals are absolutely mandatory, no matter how innocent of any wrongdoing the applicant might be.

Before the idea of a mandatory rule came in, had my hon. Friend come across any evidence in his capacity as Chairman of the Home Affairs Committee of the number of cases in which a decision had been overturned on appeal or on humanitarian grounds by the Minister’s office?

I must correct my hon. Friend. I am Chairman of the Joint Committee on Human Rights, not the Home Affairs Committee. I will not say whether he just offered me a promotion or a demotion. All of us who have high immigration case loads in our constituency offices will be aware of such problems. People make genuine mistakes and they end up being challenged. The point about these rules is that there is no incentive to put things right. The incentive would be to fight everything every step of the way as a consequence, because there is no benefit in trying to put things right.

The real problem is that an employer might have submitted a false document, and the migrant might have no knowledge of it. The same could be true of an educational or financial institution. Any false statement by a third party damns the applicant, too. Children are affected in the same way, as I have just said. The child who overstays because the parent failed to renew their leave is caught by the mandatory rules. That is not fair on the child, who is still caught by the ban.

The seriousness or otherwise of the breach makes no difference at all. The person who overstays by 29 days because they made a mistake with their visa date, or because their flight was delayed, is treated in exactly the same way as somebody who has overstayed for 10 years. That is not fair or right. Similarly, no discretion can be applied in the case of a student who works an extra hour beyond the 20 hours a week permitted. Some provision must be made for dealing with such hard cases. The consequence of mandatory rules is inevitably injustice. In this case, there is another by-product: cases will increasingly be fought tooth and nail, every step of the way, through the courts.

I urge my hon. Friend the Minister to consider whether some discretion could be used in cases involving children, trafficking victims, inadvertent mistakes or mistakes where there is no culpability whatever on the part of the migrant concerned. If we are serious about our international obligations to asylum seekers, about our obligations to victims of trafficking under the European convention that we are supposed to be signing by the end of the year, and about the convention on the rights of the child, which I hope we will sign by the end of the year, we have to make exceptions in such cases.

I think the Minister will be getting the message by now. My hon. Friend the Member for Eastleigh (Chris Huhne), the hon. Member for Ashford (Damian Green), who speaks for the Conservative party on immigration, and the hon. Member for Hendon (Mr. Dismore), whose Joint Committee on Human Rights considered the matter at a very appropriate time, have made the strong general case that the rules that we are discussing, which were presented to Parliament without consultation, are clearly not justified. They would not only fail to remedy a mischief but would leave the system for dealing with people who want to come to this country properly far worse than it is now.

I want to add two points about procedure. As the Minister will know, we have a ridiculous system, although I do not blame him personally for that. The changes to the immigration rules were published on 6 February. The Joint Committee met on 19 February to consider them. Hon. Members have 28 days in which to pray against rules and, with the support of my hon. Friend the Member for Eastleigh and other colleagues, we did so. That hopefully triggers a debate. However, some of the proposed changes came into force on 29 February, while the changes that we are concerned with tonight came into force on 1 April. From 1 April all the new rules were in place, even though we had not yet held the debate on whether they should be in place.

The Leader of the House has accepted that the system is nonsensical. This is not a Home Office problem, but a general Government problem. We must change the system whereby important rules introduced under secondary legislation come into force before we have had the chance to debate them. If we had had the chance to debate them, the point about the absence of consultation, made by all three colleagues who have spoken so far tonight, would have been pre-eminently made, and Ministers would have said, “We understand, and we’ll reflect on those points.”

Happily, there was a debate in the House of Lords between 6 February, when the rules were laid before Parliament, and 1 April, when the changes that we are most concerned with today came into effect. The debate was initiated by my noble Friend Lord Avebury, and he was supported by my noble Friend the Liberal Democrat Lord Roberts of Llandudno. Anyone who reads that debate—as the Minister, the hon. Member for Ashford and my hon. Friend the Member for Eastleigh have clearly done—will see that it showed overwhelmingly that the situation is nonsensical. To his credit, the Minister in the Lords accepted that it was nonsense, and at the end of the debate he said that the rules in question would not come into force on 1 April; instead, their implementation would be deferred until October.

Like friends and colleagues from all parts of the House, I deal with a huge number of immigration cases of the kind that we are discussing. It is not a record that I aspired to hold, but I think that I am currently at the top of the Home Office league table because of the number of cases that I have brought before it. Colleagues who are present, including the hon. Members for Islington, North (Jeremy Corbyn), for Slough (Fiona Mactaggart), for Hendon and for Regent’s Park and Kensington, North (Ms Buck), also deal regularly with significant numbers of cases that would involve the rule that we are discussing.

Let us be absolutely clear: the changes are misguided. If there was a breach of any of the rules, or if there was a failure—it is set out in these terms in the proposed changes—by overstaying, which could be by a day; by a breach of a condition, which could be one failure to report; by being an illegal entrant, which is obviously more serious but the applicant could have been as a child, brought as a relative, brought as a teenager, brought with somebody else, brought against their will, or brought not knowing what was happening; or by using deception in an application for entry clearance, whether the deception was theirs or was carried out on their behalf by an agent, by somebody whom their family had paid or whatever—any of those circumstances would automatically lead to a series of blanket bans, depending on the circumstance of the person’s departure.

If the migrant leaves voluntarily, it might be a year before they can come back in any circumstance; five years if they left voluntarily at public expense and only if they had repaid the cost; 10 years if they were removed or deported; and 10 years if they used deception—no questions, no qualification, no exemptions; a blanket ban. The case has been made as to why that is nonsense. To give the Minister some credit, his Department during his tenure as Immigration Minister and under all his predecessors from both the Labour and the Conservative parties since I have been in the House has always had a system whereby, as well as the immigration law and the rules, discretion has been available to the Home Office. That is normally exercised by officials and occasionally by Ministers, if the matter needs to go higher, so to speak. Officials regularly exercise that discretion because there is a good case, and so they should. Ministers occasionally do so, too.

That is as it should be. The case for the changes to the rules would not be justifiable in human rights law, as the hon. Member for Hendon pointed out, on the basis of the right to family life or on non-discrimination, and the system would not be sustainable or tenable if discretion were not allowed as a remedy for the person who, for example, was due to leave on a certain day and whose flight was cancelled, or who was due to go and report and was taken seriously ill. There are all sorts of examples.

In my office we were alerted to the issue pretty well immediately by people with whom we work, who represent immigrants and asylum seekers. They are highly respected companies and organisations, particularly the Immigration Law Practitioners Association. This had an immediate effect and rang alarm bells, hinted at by previous speakers. When I saw that Lord Bassam had agreed that there would be concessions until October, I advised everyone in my constituency who was likely to be affected to go immediately. I explained that if they went by October, there was a chance that they would benefit from the exemption and be allowed back in if they made an application.

That was no different from the practice that I have adopted for years when people come to me. I have many Sierra Leoneans in my constituency. Let us suppose that one of them had married a Sierra Leonean who had indefinite leave to remain in the UK, or who had become British by nationality, but they did not have proper status, possibly because they had been a student and overstayed, or had come as a visitor and overstayed, or had a work permit and overstayed for whatever reason, and they thought that that would be valid. I have always said to them, “The best way for you to deal with this is for you to go back to Sierra Leone now that there is peace and not civil war, and make a proper application. Provided everything is in order, provided you have somewhere secure to live, provided your partner or spouse is working, and provided you’re not going to be dependent on the state, you would be given probably one year initially, then possibly a second year, and then you would be allowed to stay.” They would do that.

The effect of the changes, as my hon. Friend the Member for Eastleigh suggested, is that those people would not say, “Fine, Simon, that’s what I’ll do.” They would say, “Thank you very much, Mr. Hughes. I may not see you again, and if you see me in the street, don’t tell anybody where I am.” Let us be realistic about this. If somebody has married and has a child, or has a long-term relationship and has two children, or has just got engaged and is desperately in love with someone, they will not suddenly give that up, with the prospect of at least one year and possibly two, five or 10 years before they can come back. That is just not realistic.

I was dealing with a case only the other day involving somebody whose children were in care in this country because there had been difficulties, but not the sort of difficulties that meant the family had given up links with them or that the children would not benefit from still having links with both parents. People make mistakes and want to put their lives right. There are all sorts of such cases in which people behave as anybody here in the Chamber would behave.

Does the hon. Gentleman think that there should be any differentiation between those who have completely abided by the rules and done everything properly and those who have not? Does he think that there should be no differentiation whatever?

Like the hon. Member for Ashford, I do not dissent from the notion that there should be a requirement to make up for the failure.

But not automatically, as my hon. Friend says. The failure might be accidental and unavoidable. It could happen to the right hon. Member for Warley (Mr. Spellar): if he had been struck down with a serious illness and could not deal with the paperwork, one would hope for his sake and that of his family that compassion would be shown to him. I apply the same principles to immigrants as I would apply to people of this country in respect of any other administrative procedure. That must be the right way.

Of course, there are already procedures for allowing people the opportunity to reimburse the fare. There are different policies depending on whether a person is sent back at public expense or whether they pay their way. I always encourage people to pay their own way; sometimes they need to borrow to do so. Of course I do that, because they need to be socially responsible and show that they are keen. Other things can also be done. There are perfectly proper ways of addressing the issue without there being any threat to the immigration system.

It seems to me that the Government have accepted that they made a mess of the process, and that a process that we should not have in Parliament was used. They have made an initial concession. However, that will be flawed if it lasts for six months and then stops. Other cases will come to that point on 1 November and 30 November, and 1 December and 31 December, and so on. It would be a nonsense if some people coincidentally benefited from the concession and others did not.

Like me, colleagues in the House will have been pursuing a constituent’s case that has gone on for one, two, three or four years—it may be an asylum case or another kind of case. In the end, the case might be decided in November, on the other side of the concession. It might be decided next year; there might be an appeal, or there might not. It is a nonsense for there to be a cut-off. The change has to be within a system and work for ever.

I have two short last points. Under this proposal, when the final decision comes there are only 28 days for a person to get their life in order and go. The Home Office has been intelligent in the past; it has understood that if a person is from a country at civil war such as Somalia, Eritrea, Ethiopia or Sri Lanka, or is from a country where there is political persecution such as Zimbabwe, Saudi Arabia or China, and if after one, two or seven years in this country that person is told that they have come to the end of the road, it will sometimes not be possible for them to sort out their whole life in 28 days. The Home Office normally shows sensitivity in such a situation. That has to remain, and it would be a nonsense if it did not.

Lastly, if the Minister is minded to be helpful—I hope that he is—I should be grateful if he looked at the issue of how families are defined. Families are not just the engaged or married couple, or formal civil partners; they are also people who have clearly been together for a very long time as partners. There can be other relationships, including between brother and sister, parent and child, and elderly parent and grandchild. I hope there can be an understanding that the right to family life in such circumstances is just as important as it is among a conventional nuclear family.

I hope that the Minister can be helpful. If he can, I hope that in addition to any concession given in Lord Bassam’s statement and any further concession that the Minister may be able to make, he will look at how we can come back to the issue in a consultative, formalised way so that in due course we get immigration rules that say what they mean and are workable, practicable and civilised. If we do that, it will be to the immigration service’s credit and it will strengthen the service. If we do not, the service will be discredited. I am sorry that we have had to come this far before we begin to get, I hope, the sort of change that many thousands of families and, I am sure, many colleagues in the House hope that the Minister can deliver.

I want to make a few points, but I will be very brief because I want to hear the Minister’s reply to the debate. First, we are debating rules that came into operation several months ago and have caused a great deal of complication, hardship and confusion. Unless the Minister has some very good news for us, the rules will be approved in tomorrow’s vote. That is not a very satisfactory system of parliamentary scrutiny and accountability, and it seems to be a negation of the parliamentary process.

Secondly, I would be grateful if the Minister told us exactly who was consulted before these rule changes were brought in. I understand that very few people were consulted. Organisations dealing with unaccompanied asylum-seeking children, children’s charities and bodies such as the Immigration Law Practitioners Association would have had something helpful and useful to say, and we should be well aware of it.

Thirdly—this follows on from the point made by the hon. Member for North Southwark and Bermondsey (Simon Hughes)—there is the question of discretion. That concerns me a great deal. I have been dealing with immigration cases since I was first elected to this House, and a very large number of them too. One has always known that there is a degree of discretion, either with an official or ultimately with a Minister. That is absolutely essential, because it is almost impossible to draw up rules relating to children seeking asylum or to immigration in general that can define every possible circumstance. Once the Minister throws discretion away, he is, in effect, getting it off his table and handing it over to immigration courts to decide, however perverse those decisions might be, and he will end up back here having to reform the rules or legislation to cope with that. It would be much better all round to keep that degree of discretion.

Fourthly, I am very concerned about the penalty imposed on children for the circumstances under which they came to this country. My constituency, like that of the hon. Member for North Southwark and Bermondsey, has a considerable number of Somali people who sought a place of safety in this country because of the war in Somalia. There has been a war going on in Somalia for a very long time, and I suspect that sadly it will continue for a long time to come. I have encountered many people who arrived in this country as children and who cannot remember how they got here, do not know by what route they came, do not know who brought them, and do not know what documentation was involved—it was probably false, and they were probably smuggled, with a people-trafficker involved. There were probably some desperate parents somewhere back home in Somalia who just wanted to get their children to a place of safety. The priority should be at least to look after those children in that place of safety. My understanding of the rules that are being introduced is that if, at a later stage, it became apparent that the documentation was false or that people-traffickers were involved, the child would be penalised in some way. That simply cannot be right. The same applies to children coming from Congo or from very many other places. I hope that the Minister will be able to help me in that respect.

I am sure that the hon. Gentleman will also have encountered youngsters who have come here legally and who have left their affairs behind to be dealt with by somebody on their behalf such as a relative or lawyers, or so-called lawyers, who have not done what they should have done, and they have subsequently discovered that their application was not made in time.

The hon. Gentleman makes a good point about what is, in reality, a kind of informal adoption. I was just about to come to that. Unfortunately, there are within the world of immigration law some extremely incompetent, inefficient and corrupt advisers who are no good or help to anybody, as well as a lot of very good and overworked immigration solicitors who have great difficulty in coping with their work loads and the pressures that are put on them. I have come across cases where children have come to this country, perhaps from Nigeria or Bangladesh—from many different places—as quite young children, probably unaware of what was going on, and have been effectively adopted by an uncle or an aunt. I am not saying that there is anything bad about the uncle or aunt in question, who may often have looked after them and brought them up very well. That child came to this country to be with their adoptive parents; those parents either did not understand the system or did not do anything about it, and when the child reaches the age of 18 and becomes an adult, they apply for all the things that adults want and discover that they are not legally allowed to be in this country.

I have had cases where 18 or 19-year-olds who have been all the way through the education system in this country are removed. Under the rules, they would be banned from even visiting again within five years because they had come here by what someone has decided is a process of deception. I can think of families where at one level it could be argued that there had been deception. I would argue that there is a huge degree of ignorance and that those families needed help and support. Above all, why are we penalising the young people in question? They are not the ones who created the deception or problem in the first place.

My hon. Friend outlines a number of cases. Can he explain why all those responsibilities should fall on the citizens of the United Kingdom?

Because we are dealing with immigration law affecting people resident in this country, and, in the case of the young people I was talking about, people educated in this country who wish to make a contribution to its economic welfare and development. My right hon. Friend would do well to recognise that much of the wealth of this country comes from migrant labour—people who have given a great deal to our society, from which we have all benefited and continue to benefit. I am sure that his constituency includes such people just as mine does.

My last point follows the one made by the hon. Member for North Southwark and Bermondsey on family reunion or right-to-family-life issues under the Human Rights Act 1998. The problem seems to be an over-close definition of what a family is. We could argue that it is lots of things: the nuclear family of two parents and however many children, one parent and a child, informal adoptive parents, brothers and sisters, or a wider family unit. It is extremely difficult to define, and either it should be defined in a very general way, as the UN convention attempts to do, or officials and Ministers should retain a high degree of discretion so that we can avoid the often unbelievably hurtful situation where a family is broken up because one of them has not achieved citizenship or status in this country. In such situations, it is claimed that someone came here by some degree of deception—they may have come as a child—and they are removed from this country, leading the family to suffer a great deal as a result.

We have to be rather more humanitarian than we appear to be at the moment, and recognise that human beings are involved. The people involved want to live ordinary decent lives and make a contribution to our society—indeed, they do make a good, positive contribution to our society. I hope that the Minister will be able to help me with the concerns that I have expressed about the rules, which are shared by a large number of children’s organisations in this country.

I shall be brief. I was prompted to speak by the intervention of my right hon. Friend the Member for Warley (Mr. Spellar), who asked why British citizens should bear the burden of such responsibilities. The Minister, whom I thank for listening carefully to a series of representations that I have made about the rules, led me to write letters to 63 families in Slough, to which the hon. Member for North Southwark and Bermondsey (Simon Hughes) alluded. I had a look at the families who would have been affected by this proposal, and in a large proportion of cases the families involved a number of British citizens, and the British citizen in question was married to someone from overseas.

I can think of one case about which I am still battling with the Home Office. A woman with five children who had been married for years was deemed not to be a wife, but was admitted as a fiancée. That happened because the husband had been married previously and, ab initio, the marriage was determined to be bigamous in UK law, although, when the couple originally married, he was a Pakistani citizen. He is now a British citizen. She did not know that she had been admitted as a fiancée—she thought that she had been admitted as a wife because she had been a wife for many years and had five children. When her six-month visa expired, she applied to the Home Office for indefinite leave to remain, and it replied, “Sorry, no marriage certificate.” She tried to book a wedding at Slough town hall and could not do it in the time left before her visa ran out. Shortly afterwards, she had her sixth child, and she is still here because the child is too young for her to return. In that case, I have not done what I usually do—advise people to go overseas and make an application from there to come back home, as the hon. Member for North Southwark and Bermondsey described—because her children need to be cared for.

My concern about the rules is their effect on family life and article 8 of the European convention on human rights. The Minister has listened carefully to my comments and I shall stop speaking soon because I hope that he will cheer us all up by saying that he recognises that the impact on British as well as long-resident families is unacceptable. The lack of confidence in the system created by that wee group of people, who happen to go overseas just before the period described in the other place as a concession and get refused but would not be refused two weeks later, is unreasonable. I hope that the Minister can tell us that those people whose applications were made before 1 April and refused after that date but would have fitted the concession will have their cases reconsidered.

I also hope that the Minister can tell us that he intended people who disregard UK immigration law to face penalties, but that those people’s families, who will be deprived of sometimes a breadwinner and always a loved one, should not pay those penalties. I look forward to his comments.

I am grateful to the hon. Member for Eastleigh (Chris Huhne) for giving us the opportunity to hold the debate. I agree with many of the remarks of the hon. Member for North Southwark and Bermondsey (Simon Hughes). When we make changes such as those that we are discussing, it is important that a parliamentary process is involved. That is why there is an opportunity to pray against rules and have such debates. However, I also agree that it would be helpful in future to try to hold them before rather than after rules are introduced. The hon. Member for Eastleigh said that he had made representations to the Leader of the House. I shall check whether she has received them.

I want to start with some context and then I shall rattle through my notes because I do not want to detain the House much longer. Hon. Members know that we are making one or two changes to the immigration and the border security systems in this country this year; the introduction of the points system is among the most significant. We had a rather good debate on the points system a week or two ago, when I hope that our intention to make the rules much simpler came across. We want to make them clearer and easier, not only for the Government to administer, thus reducing the room for mistakes that derive from 10 measures since 1971, but in order to reduce the space for bad immigration lawyers to take people for a ride. I agree with the remarks that my hon. Friend the Member for Islington, North (Jeremy Corbyn) made about that. When there is a complicated system of rules, vulnerable migrants often get taken for a ride and end up paying quite a high price.

Is not the point that people who are in this country, rather than people making an application to come through the points-based system, have messy and complicated lives? They have relationships, as my hon. Friends have described. It is impossible to create a rigid and mandatory structure for making such decisions that accommodates the complexity and difficulty of those lives. That is exactly why discretion must be retained in the system.

Yes and no. I agree with a large part of the sentiment that my hon. Friend expresses, and I will explain why shortly. None the less, sharp edges are sometimes required and sometimes we need to make rules clear so that people can understand them.

The Minister is familiar with the point about immigration lawyers and advisers, which I have raised before. Is the Home Office making any progress on that, through communications with the Immigration Law Practitioners Association and recognised quality solicitors or action against advisers who take vulnerable people with no access to legal aid for a ride? They are often poor people who pay out hundreds if not thousands of pounds on nonsensical advice that only makes corrupt lawyers rich.

Progress is indeed being made on that. I know that the House will not necessarily welcome another Immigration Minister saying that he hopes to bring forward legislation, because that is said in the House quite often, but we hope to introduce a consolidating measure that will simplify, overhaul and clarify the 10 Acts that have been passed since 1971. As part of that, we will propose new action to try to drive out such abuse. However, let me move on to the substance of my remarks.

As part of the changes that we are making through the introduction of the points system, we want to introduce a much clearer series of rules. That necessarily involves putting some boundaries on discretion, which can be exercised very subjectively. When people can take subjective decisions, as they can today, there is room for inconsistent decisions. That often means having to put in place an appeals process to try to regulate the system, which can introduce further complexity and cost, but sometimes it is not the migrants who benefit from such change. We have to try to strike a balance between clear rules that are clearly applied and discretion, accepting that discretion brings a degree of subjectivity into the system. That is the balance that we have tried to strike in framing the rules.

When we introduce the points system, we will be seeking to replace the discretion that an immigration officer has in judging somebody’s intention and their intention to obey the rules and leave. We have always considered previous breaches of immigration laws when considering whether to let somebody into the UK. However, in the past those powers have been discretionary powers that have allowed us to refuse people who have not complied with the rules when they were last here. I am not sure that that blanket discretion is right. I would prefer a system with clearer rules, so that migrants are aware of the penalties that apply if they overstay or breach the rules that are still in the Immigration Act 1971. That is why we have sought to introduce a system of blanket bans for those who breach the rules. We have sought to reserve the toughest rules for those who have cost the taxpayer the most money.

It is also important that there should be sanctions for deception. People need to take responsibility for the applications that are submitted in their names, subject to the caveat that I am about to add. There must also be quite strict tests for what we judge to be falsified documents. It is possible for people to make honest mistakes, and it is important that the system should be able to accommodate them as honest mistakes. None the less, deception must carry a sanction.

I will not rehearse the automatic provisions that we are proposing in the rules, because hon. Members are already familiar with them. I will just add one direct answer to the hon. Member for Ashford (Damian Green), however. It is important that people who have left the country at public expense should have the opportunity to come back into the country in due course, but it is only reasonable that we should ask them to pay back any costs incurred by the taxpayer before we allow them back in. The hon. Gentleman will be delighted to learn that I hope that this will be among the proposals in the legislation that I hope to bring forward. I also hope to publish the Bill in draft form, before we bring it anywhere near the House in a formal sense, so there will be ample opportunity over the long summer months to study this question in depth, and to check whether we have got it right or wrong.

I do not dissent at all from the proposition that the Minister has just put to us. On his earlier point, does he accept that there is a difference between an adult who acts improperly and a minor—somebody under 18—on whose behalf the conduct has been carried out? Such young people would be the innocent victims of other people’s arrangements.

I absolutely accept that, and I shall spell that out further in a moment.

I want to make a number of changes in the light of some of the remarks made by right hon. and hon. Members this evening. I would like to put on record my thanks not only to the hon. Member for North Southwark and Bermondsey (Simon Hughes), who has discussed some of these issues with me in the past, but to my right hon. Friend the Member for Warley (Mr. Spellar) and my hon. Friend the Member for Slough (Fiona Mactaggart), who have gone to some length to tell me where I have got things wrong and helped me to reshape the amendments that I shall now propose.

I said at the beginning of my speech that we needed to try to balance the application of clear rules—and the elimination of subjectivity—with an element of discretion. There is more room for discretion than was suggested in the concession that was announced by my noble Friend Lord Bassam in another place. I am announcing two further reforms this evening, and I want to add one clarification.

First, we will not automatically refuse applications from people applying to join their family permanently in the UK—that is to say, those applying for visas as a spouse, civil partner or unmarried or same-sex partner under paragraphs 281 or 295A of the immigration rules; a fiancée or proposed civil partner, as set out in paragraph 290 of the rules; a parent, grandparent or other dependent relative, as set out in paragraph 317; a person exercising rights of access to a child, as set out in paragraph 246; or a spouse, civil partner or unmarried or same-sex partner of a refugee or person with humanitarian protection, as set out in paragraphs 352A, 352AA, 352FA and 352FD. Following some of the comments made by hon. Members this evening, I will of course check to see whether we have cast the scope of those exceptions correctly, but my initial analysis is that that is where the discretion should apply.

Secondly, we will not automatically refuse anyone who is under the age of 18 at the time of the breach of the immigration rules. My hon. Friend the Member for Islington, North spoke powerfully on this subject, as did the hon. Member for North Southwark and Bermondsey. That case has been well made.

The clarification that I want to make underlines comments that I have made to the Committee of my hon. Friend the Member for Hendon (Mr. Dismore) in the past that there should be a carve-out for victims of trafficking. We will put that into effect when we have ratified the Council of Europe’s convention on trafficking.

There are two caveats that I wish to add, but before I do so, I give way to the hon. Gentleman.

I am glad that the Minister brought up the subject of ratification. His point that the Government were going to ratify was welcome, but will he give us some indication of when that might be?

I have nothing further to add to what my right hon. Friend the Home Secretary said in the House not too long ago.

In the light of his helpful remarks, will the Minister clarify whether any cases falling in the period before ratification will be subject to discretion in the same way as he outlined for those under the age of 18?

I will take the advice of my lawyers on that point first, if I may, and write to the hon. Gentleman to clarify the position.

As to the caveats, this does not mean that people who need to go home and reapply will automatically get in; they will still need to meet the requirements set out in the immigration rules and they may be refused if they have contrived in a significant way to frustrate those rules. Nor is it or can it be a green light for the groups I have mentioned to deliberately overstay. We need to bring forward fresh proposals to ensure that there are consequences for these actions.

Suggestions have been made to me. Obviously, the need to go home and apply for entry clearances is one sanction, and other opportunities are presented in our Green Paper “The Path to Citizenship”. For example, we may, because we could, make those who have breached immigration rules wait slightly longer before they become citizens, but I do not want to go into detail on that proposal this evening. I simply want to flag it up for the House’s attention in order to illustrate the wider point: we must have sanctions for those who overstay. These changes will have immediate effect as a concession and will be added to the immigration rules at the first opportunity.

I hope that the hon. Member for Eastleigh will recognise the benefits of some of the changes announced this evening, and indeed the balance that we are trying to draw between the elimination of subjectivity in decision making on the one hand and the need for discretion on the other.

With the leave of the House, I will wind up the debate. I thank the Minister for his constructive response. I have been impressed this evening, as I was when we debated the points-based system, with the measured and rational way in which the Minister approaches these matters. It is slightly unfortunate that, given that these rules have already entered into force, this is somewhat late in the day. [Interruption.] It is late in every sense, both this evening and for the rules.

The Minister’s assurances on families and particularly those under the age of 18 relate to essential changes to the rules originally put forward by his Department. I am still concerned about the transition from the current situation. As was made clear by my hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes), we are unfortunately debating matters that have already become law, as a result, in my view, of an unfortunate procedural lapse of this House—[Interruption.] It may be a normal lapse, but it is still a lapse and it definitely needs to be put right.

I am concerned that before the changes outlined by the Minister can come into effect, there will be a number of cases that fall between the two stools. I would like to know, if possible before we have to vote in the deferred Division tomorrow, whether these matters can be dealt with without leading to serious problems. If the Minister proceeds with the changes and if there is no transitional problem of the sort that I am concerned about, I will very much welcome this exceptionally adroit U-turn—the Government’s second today, following the Chancellor’s U-turn on compensation for those caught up in the doubling of the 10p tax rate. That reminds me that the diet of our own words is often, for a professional politician, one of the most nutritious available. I commend it to the Minister, who has clearly had his fill this evening.

Question put—


Division deferred till Wednesday 14 May, pursuant to Standing Order No. 41A (Deferred divisions).