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Borders, Citizenship and Immigration Bill [Lords]

Volume 496: debated on Tuesday 14 July 2009

[Relevant Documents: The Ninth Report from the Joint Committee on Human Rights of Session 2008-09, Legislative Scrutiny: Borders, Citizenship and Immigration Bill, HC 375, and the Seventeenth Report from the Committee, Government replies to the Second, Fourth, Eighth, Ninth and Twelfth Reports of Session 2008-09, HC 592.]

Consideration of Bill, as amended in the Public Bill Committee.

New Clause 2

Short-term holding facilities

‘In section 147 of the Immigration and Asylum Act 1999 (c. 33) (removal centres and detained persons: interpretation), in the definition of “short-term holding facility”—

(a) after “used” insert “—(a)”, and

(b) at the end insert “, or

(b) for the detention of—

(i) detained persons for a period of not more than seven days or for such other period as may be prescribed, and

(ii) persons other than detained persons for any period.”’.—(Mr. Woolas.)

Brought up, and read the First time.

With this it will be convenient to discuss the following: Amendment (a) thereto, after ‘detention’, insert

‘by an immigration officer, general customs official or Customs revenue official’.

Amendment (b), thereto, leave out ‘for any period’ and insert

‘for not longer than six hours’.

Amendment 9, in clause 3, page 3, line 35, leave out paragraphs (a) and (b) and insert—

‘(a) any officer transferred to the UK Border Agency from HM Revenue and Customs, or

(b) any UK Border Agency employee recruited for that specific purpose,’.

Amendment 18, page 3, line 36, at end insert—

‘(ba) a police officer’.

Amendment 10, page 3, line 43, leave out subsection (3).

Amendment 11, in clause 11, page 8, line 4, leave out paragraph (a) and insert—

‘(a) any officer transferred to the UK Border Agency from HM Revenue and Customs, or’.

Amendment 12, in clause 12, page 9, line 10, leave out ‘or for a specified period,’.

Amendment 13, page 9, line 11, leave out from ‘withdrawn’ to end of line 12.

Government amendment 15.

Amendment 20, in clause 25, page 19, line 29, at end insert—

‘(1A) The designation of short-term holding facilities must be renewed every six months.’.

Amendment 21, in clause 28, page 22, line 27, at end insert—

‘(10A) The Chief Inspector of the UK Border Agency may delegate his responsibility to inspect facilities to Her Majesty’s Inspectors of Constabulary.’.

Amendment 3, in clause 30, page 24, line 9, at end insert—

‘(2B) Regulations made under subsection (1) or (2A) may make provision conferring functions on the Independent Police Complaints Commission in respect of the exercise of immigration and customs functions and the provision of services pursuant to arrangements relating to the discharge of those functions whether in the UK or overseas.’.

Government amendment 16.

May I report back to the House on the deliberations of the Committee? I believe that we had comprehensive scrutiny, that we have improved the Bill even further and that, on the major matters, we have achieved consensus. There are, however, some outstanding issues. I shall deal first with the group of Government and non-Government amendments that deal with part 1, which are included in the first group on the selection list. The House will want to pay tribute later in the debate to Lord Kingsland, who has sadly been taken from us. His premature death this weekend was a terrible blow to all those who loved him and to this House and the other place. In the debate on citizenship and part 2 of the Bill, we will see even more of that. The Home Office is profoundly shocked by his death. He worked with officials in the Home Office for many years and he is a great loss.

This is a large group of amendments, so let me deal immediately with Government new clause 2, which goes with Government amendments 15 and 16, and describe their purpose and effect. The Liberal Democrat spokespersons, the hon. Members for Carshalton and Wallington (Tom Brake) and for Rochdale (Paul Rowen), are in their place and they helped the Committee, as did the hon. Gentlemen who speak for the official Opposition, the hon. Members for Ashford (Damian Green) and for Reigate (Mr. Blunt). They were both on the Committee and will wish to speak about their proposals.

Since we last discussed the Bill on the Floor of the House of Commons, the Government have published a document that is very important—“Building Britain’s Future”. In the section on immigration, they pledge that we will move to a points system for citizenship so that we break the link between people coming here to work and their automatically becoming citizens. My hon. Friend the Member for Mid-Sussex (Mr. Soames) and I chair the all-party group on balanced migration and we have been pushing for that. Does the Bill bring us up to date with the latest Government development?

The Bill provides a beautiful tapestry on which the next proposals will be embroidered. There is a beautiful and symmetric logic to what we are doing, as I shall explain. I am sure that the hon. Member for Mid-Sussex (Mr. Soames) and my right hon. Friend the Member for Birkenhead (Mr. Field) will welcome the proposals. My right hon. Friend the Member for Redditch (Jacqui Smith), the then Home Secretary, made it clear on Second Reading that she thought that should the Bill be accepted by the House—it has cross-party support—it would provide a platform from which to move forward to the next stage of reform, which would be a points-based system for citizenship building on the points-based system for temporary migrancy for economic reasons. Indeed, the document “Building Britain’s Future” to which my right hon. Friend referred makes it clear that our intention is to bring forward ideas for consultation on that point, precisely to address the proposed lack of a link between temporary and permanent migrancy, but it is important that we get this Bill first. Its citizenship element, although not the border functions set out in part 1, is a platform on which those proposals can be built.

I thank the Minister for that. Given his tapestry analogy, will he take a message back to the Home Office? If what he wants is not delivered, will he remind them that there are many hon. Members with long needles? We do want to aim them not at him but at other forces.

My immediate thought is that we should not take the analogy any further. The Government are committed to that strategy, and we are working on the proposals. They do not lie within the scope of this Bill, but my right hon. Friend is right to point out that they have a strong relationship.

I turn now to new clause 2, which deals with short-term holding facilities. Government amendment 15 is consequential to it and removes clause 25 to make way for the new clause. Government amendment 16 makes the changes to the schedule that will be necessary if the House accepts the earlier amendments.

The purpose of the existing clause 25 that was inserted in the other place was to provide greater flexibility in the use of short-term holding facilities, and thus to maximise the use of these finite detention resources. In short, it was a management tool to secure greater flexibility and therefore the greater efficiency for the taxpayer that is always at the front of our concerns.

Short-term holding facilities fall into two categories—the residential facilities at Dover, Manchester, Harwich and Colnbrook near Heathrow, and the holding rooms at most ports and certain UK Border Agency offices. All are subject to a statutory maximum stay of seven days. At present, short-term holding facilities may be used to hold only individuals who have been detained for immigration purposes under UKBA’s administrative powers of detention, and those who have been detained under section 2 of the UK Borders Act 2007, pending the arrival of a police officer.

By modifying the definition of short-term holding facilities, we are removing that constraint so as to allow other categories of persons to be held in those facilities. As a consequence, short-term holding facilities will be able to hold a range of individuals, subject to the prescribed periods of detention and protections relevant in each case. That could include individuals arrested in connection with immigration or customs offences, individuals detained under section 2 of the UK Borders Act 2007 as liable to arrest and pending the arrival of a police officer or, as now, individuals detained in detention under the Immigration and Asylum Act 1999.

I am grateful to the Minister for giving way, and I am particularly pleased by his reference to the exotic and beautiful tapestry that he is weaving for the benefit of our country. However, does he believe that the facilities that he is outlining will be man enough to cope with an annual inflow of about 237,000 people?

Our policy is one of managed migration, and our intention is that we will be able to manage the numbers. The hon. Gentleman mentioned the figure of 237,000, and I think that that is the gross inflow—

The net inflow, I am sorry, but that is according to Office for National Statistics definitions with which the hon. Gentleman knows that I have some issues. In the main, our short-term holding facilities are used for outflows—if I can use that word in this context. We think that our estate has been significantly improved, and that it is still improving, in both capacity and fitness for purpose.

To continue the analogy with a tapestry, which I think that one embroiders rather than weaves, although I shall not dance on the head of a pin about that—[Interruption.] I am sorry, Mr. Deputy Speaker, that will be the last reference to a tapestry from this Dispatch Box.

The hon. Gentleman’s serious question is whether we anticipate the numbers of migrants remaining roughly as they are or as increasing, and whether the policy is based on that. In this regard, we are talking mainly about the facilities that we have to enforce removals from the country. There are some facilities, of course, for holding people at the borders, especially at the airports. We have increased capacity, but that does not imply that we are expecting the inflow to increase. Indeed, I think that the points-based system and the proposals in the Bill will reduce the inflow, and of course the hon. Gentleman was referring to a net figure.

In each case, there will be no change to the existing time limits or, where relevant, the application of the Police and Criminal Evidence Act 1984. These technical Government amendments have been tabled at a late stage, and that is regrettable, but it has been pointed out—and we are grateful for that—that clause 25 could have had the unintended effect of making any place at which immigration detainees might be held for a period of seven days or less—including removal centres, prisons or police stations—a short-term holding facility. So leaving clause 25 in the Bill would have meant that such places were subject to the short-term holding facility rules rather than their appropriate statutory frameworks such as detention centre rules, prison rules and PACE. Indeed, removal centres could lose their status entirely and become short-term holding facilities instead.

Therefore, I ask the House to remove clause 25 by accepting amendment 15 and to replace it with new clause 2. We intend to replace clause 25 with a clause that not only achieves the objective of flexibility but does so without the adverse effects for other places of detention. The revised definition of a short-term holding facility in new clause 2 would allow such facilities to be used either solely for immigration detainees or for a mix of detainees and persons detained under other powers.

In increasing the period of this type of detention that some people will face, is the Minister satisfied with the quality of resources at the short-term holding facilities? There have been reports of inadequate facilities and lack of access to legal advice. What is he doing to improve the quality of those resources?

I have of course looked into that point and I have read the reports, as the hon. Gentleman has. The reports from the independent monitoring boards are extremely helpful. I was able to address their conference in Bournemouth recently, not least to thank them for the work that they do. I genuinely believe that transparency and shining a light on the issues improves the situation, not least for the taxpayer. I am sure that he accepts the need to put the reports into context. Overwhelmingly, they are supportive, indeed congratulatory, of the work that the agency does, but that does not diminish the criticisms. We provide detailed responses to the reports, mainly agreeing with the recommendations and putting forward plans for implementation but where we disagree justifying that in terms of policy. I take a special interest in that. I think that the hon. Gentleman has asked parliamentary questions about the centres. Am I satisfied? Broadly, yes. Could matters improve? Some holding centres are perhaps a bit old, but we have a capital programme that is secure so yes, I am satisfied.

The new clause and amendments that I have tabled would mean that, in all cases, there was no change to the relevant powers of arrest and detention; I just reassure the House that there is no sleight of hand there. Also, there is no change to the statutory protections that apply in each case. I should just put on record that the detention of individuals arrested in connection with criminal offences would still be subject to the provisions of PACE and the associated codes of practice, including those on time limits in custody, even for those held in a short-term holding facility. Mr. Deputy Speaker, it may be of benefit to you and the House if I finish speaking now, so that the official spokesmen of the other parties—and other hon. Members, too—can, if they catch your eye, put their points on their amendments.

I am very grateful. The Minister is always extremely courteous in giving way. May I ask him a question on a point that he raised before he was intervened on by the hon. Member for Perth and North Perthshire (Pete Wishart)? I took the Minister to say that he had some problem with the figures published by the Government’s own statistics officers, the ONS. If the House is to get a true picture of the extent of the problem that the Bill is trying to deal with, it is important that it should know what his objections are to the ONS figures. On what points does he disagree with them, and which parts of the Bill are those disagreements likely to affect?

I am extremely grateful to the hon. Gentleman for asking me that question, because it allows me to state in the House my actual views, rather than those that have been reported. My problem is not with the ONS. The ONS is not the Government’s ONS, but the taxpayers’ ONS; it is independent. It was set up by statute as an independent body by the House, with across-the-Floor agreement, if I recall correctly. My problem is with the interpretation of those figures by some—not, I hasten to add, by Migrationwatch UK. My simple point is that extrapolation is not the same as projection. The reported figures are extrapolations based on trends, but are reported as projections, and of course the two are extremely different. The extrapolation makes a number of assumptions on net migration that I just do not think can be backed up by actual fact.

My second point, which is extremely important—I think that the hon. Member for Ashford agreed with the point that I made to the Fabian Society when we debated the subject with it—is that there is a crucial difference between measuring the number of people who are not UK-born and measuring the number of migrants. There is a crucial difference between temporary migration and permanent settlement, or citizenship. On that latter point, to which my right hon. Friend the Member for Birkenhead, who is now not in the Chamber, has referred, the importance of the difference between temporary and permanent migration needs to be highlighted, yet the reporting of the figure does not do that. Part of the purpose of policy is better to enable us to do exactly that, so that we can have a more transparent debate about immigration in this country, something of which the hon. Member for Mid-Sussex is an important advocate. Whatever our policy disagreements, we both agree that we need to get the subject talked about.

The immigration figures and their interpretation are extremely important, and it is interesting to note the Library’s contribution to the debate. Of course, the ONS has strict criteria on the management of statistics and their public release, and it is difficult to answer the hon. Gentleman’s parliamentary questions without including caveats on the statistical code from the authority in a way that is helpful, but does not leave me open to misinterpretation, if he follows my logic.

I am grateful to the Minister. I understand that these are extremely difficult matters, but as he says, if policy is to be correctly informed and drafted, it must be based on sound numbers. We believe that the figures supplied to him by Balanced Migration are entirely accurate. Following his line of argument, does he agree that immigration will add nearly 7 million people to England’s population by 2031?

Straightforwardly, no. That is my point. That figure is an extrapolation, but I agree that it is important that we have policy measures to restrict the numbers, and that we must be able to show the country that those are in place, both for reasons of population and for reasons of public reassurance. I agree with hon. Gentleman on that point. My disagreement with him is that those figures, which are well known, are based, as I say, on an extrapolation, which includes an extrapolation of emigration as well as immigration.

I do not quarrel with Migrationwatch’s figures at all. They are accurate, as far as I have been able to determine. Point 1 on the 10-point plan, on the use of the England figures rather than the United Kingdom figures, may allow them to be interpreted in a slightly unfair way from the point of view of honest debate, but I take the point that Migrationwatch is making—that the south-east of England is where significant pressure comes about. I shall stop there in order to allow other Members to speak.

The Minister has entertained us by comparing the Bill to a beautiful tapestry. I see it as a more modern artistic artefact, with no apparent meaning on the surface and a random distribution of effects, from which only initiates such as the Minister can derive any pattern. I suspect the artistic analogy will not last much beyond the opening speeches in this evening’s debates.

I thank the Minister for his explanation of new clause 2 and the consequential amendments. I take the point that the existing amendments and new clauses were technically defective and it is no doubt better to proceed along the route that he has been explaining for the past few minutes. I shall speak to amendments 18, 20 and 21 in particular, which deal with various aspects of the border functions.

Amendment 18 adds “a police officer” to the list of people to whom the Secretary of State can devolve power. To set this in context, it is not a matter of controversy across the Floor that those working on our borders could work more efficiently if they could share powers. We all agree about that. One of the disagreements between us is that the Opposition believe that those powers should extend to police powers if we are to be effective in preventing illegal immigration.

I take the point that the Minister made in response to the good point made by my hon. Friend the Member for Mid-Sussex (Mr. Soames) that the net numbers coming in will not all be illegal immigrants. The holding facilities that we are discussing are, presumably, to hold people who are suspected of being illegal immigrants. We do not need holding facilities to cope with the full number. As was agreed, the gross number will be about 600,000 a year, based on figures over the past few years. We believe that that is too high and needs to be brought down.

With reference to the Government’s proposals on the subject throughout the stages of the Bill, we have been concerned that they are rushing to set in motion the cross-powers, which we agree are desirable, without taking the necessary steps that would provide the appropriate safeguards, particularly with regard to training of those who will be given those powers, and with regard to checks and accountability.

We are worried about the piecemeal approach to organised crime, generally. Obviously, a lot of the crime associated with our borders is international organised crime, and such an approach has clearly not worked so far. Yesterday, the new serious organised crime strategy was published and it revealed that very little has improved over the past five years, precisely because of the lack of cross-cutting powers which the Minister seeks to enforce through this legislation. The problem is that different bodies have been working to different agendas, and agencies have not made full use of their available powers.

Yesterday, the Government themselves identified the need for a new strategic centre to fight serious organised crime, which is, I am afraid, an indictment of the power of the existing structures. A significant proportion of the organised crime in this country is international and, therefore, ought to be stopped at our borders. That reveals one of the great divides between us: we propose a national border police force; and the Minister and his colleagues always oppose it—even though, in some speeches, they appear to accept the logic of it.

Before the Minister responds, I accept that he has said that the proposal has not been ruled out for some point in the future, but we think that we need to proceed with that option as a matter of some urgency.

Amendment 18 would allow for a very small step towards that important, wider aim of a border police force, by giving the Secretary of State the power to designate a police officer as somebody who can exercise general customs functions. That is the nub of the amendment’s desirability, because we want the different expertise that is available to police, immigration and customs officers to be brought together at our borders so that it can all be effective.

It is easy to illustrate the importance of greater effectiveness at our borders. We know that our porous borders are a significant contributor to a number of crimes—not just illegal immigration, but drug trafficking, people trafficking and, at the margin, terrorism. We know that 60 per cent. of the illegal immigrants who are in the UK arrived through illegal means. Although the practice of overstaying by people who have arrived here legally is a significant problem, it is less significant than the problem of those who get through our border controls illegally.

We can discuss people trafficking in more detail when we consider a later clause, but, by most calculations, its economic and social costs to the UK amount to more than £1 billion a year. We know also that weapons are increasingly smuggled through our badly protected borders, and the regrettable increase in gun crime has been fuelled by a supply of weapons that have entered the UK, particularly from eastern Europe. The Metropolitan police commander, Cressida Dick, has said that three quarters of firearms used by UK criminals are converted replica and imitation guns, and that most of them are smuggled in from eastern Europe.

The Minister, in a fit of honesty that he may come to regret—[Interruption.] It is a common fit that comes over him. He has said that

“we have, compared to other rich countries, been liberal in our border controls”.

I hope that he recognises that quotation. He will be pleased to hear that I agree: that is one of the mistakes that the Government have made.

I hope that the House agrees with me on amendment 18 and supports the step it takes towards a much more collective effort at the borders. One reason for tabling the amendment is our knowledge that the specialisation of police services is effective in fighting new types of crime. Such specialisation is the way in which policing is going, and that is why we welcome the proposals from Lord Stevens, who, after conducting a review of our overall border security arrangements, concluded that only a unified force can protect our borders. As I have said, a future Conservative Government would create a national border police force to replace the current inadequate system, but, in the meantime, through the amendment we seek to take a step towards that by extending the general customs function to police officers.

Let me widen the scope of my remarks a little and return to the point about appropriate training, because the question whether these important powers are exercised by appropriately trained people lies at the heart of the debate about changes within the UK Border Agency and Her Majesty’s Revenue and Customs. As I said, there is no great divide across the House about that because the Minister and I agree that existing functions are subject to too great a diversity, sometimes an incoherence, on account of people exercising different powers at the border, and we want more cross-cutting powers. However, before we achieve that, and while the powers are being shared and spread around—as they would be under the amendment and, to some extent, under amendments in this group tabled by other hon. Members—it is legitimate to ask about the new functions that they represent and who would exercise them.

Customs officials’ powers, which are extremely broad, are already being shared out to immigration officers, and the Minister will be aware that customs officers can already undertake a wide range of extremely intrusive activities. The threshold of reasonable suspicion needed for an officer to take enforcement activity is, rightly, very low, and that activity can relate to a combination of things, including the origin of a person’s journey, their clothing, and the quantity of luggage that they are carrying. That is why I emphasise the need for only properly trained people to be allowed to exercise those powers, which in some cases, are greater than the average powers that a police officer can exercise. The amendment would allow the Secretary of State to designate police officers to do that such work. Of course, we accept that that in itself could entail extra training for the police officers involved, but the ability to exercise those cross-cutting powers would make it worth investing in that training. If we do not progress down the route towards a national border police force, we are in danger of giving increasingly extensive powers to people who may not be properly trained to exercise them, so that in an effort to make our borders safer, which nobody could object to, we could end up inconveniencing the travelling public. I am sure that we all agree that that would be undesirable.

At the risk of offending the vast number of Labour colleagues sitting behind the Minister, I have to say that I agree with the hon. Gentleman. I do not think that the Minister has been fully briefed. Several police forces at ports, including Tilbury, Belfast, Tees and Hartlepool, and Felixstowe, exist under old legislation, and they do a tremendous job in fulfilling the functions that he describes. It is by sheer luck that those particular ports have uniformed police with those powers. If it is good for them to be able to exercise those powers, why should not all the other hundreds of wharves and ports around our country have comparable people who can intervene on immigration, customs and law enforcement issues?

The hon. Gentleman, who speaks from his own constituency experience, is exactly right. There are inevitably places where this expertise has, rightly, been built up. One of the problems is that there is no mechanism to extend that expertise or even to appoint the people who are able to exercise those powers in the hundreds, perhaps thousands, of small ports, and some of the bigger ones.

Yes, as the hon. Gentleman says, there are some reasonably sized ports that lack that expertise. It is a glaring problem, not a hidden one. We all know that it is there. One point that I have been making throughout the debates on the Bill is that in some ways, it is a wasted opportunity. We have an immigration Bill every year, yet for all the legislation that this Government have passed on immigration, there are certain glaring problems that do not seem to get addressed. We probably need less legislation and more enforcement of the existing legislation.

Does my hon. Friend agree that as far as the public whom we are sent here to represent are concerned, the point made by the hon. Member for Thurrock (Andrew Mackinlay) is absolutely key? They need assurance that the policies put forward for securing our borders are credible. They cannot be credible if the arrangements are not clearly satisfactory.

My hon. Friend is right, and I can only repeat the point that I have just made. We are not short of immigration legislation. In the three and a half years that I have been doing this job, this is the third immigration Bill that I have had to investigate and probe, yet public confidence in our immigration system has probably never been lower. There are a number of reasons for that, and if I went into them at great length I suspect that you would pull me up, Mr. Deputy Speaker. It is quite clear that the two big reasons are the sheer scale of immigration over the past 10 to 12 years, which my hon. Friend and I agree should be lower, and the fact that it is apparent that our systems for stopping illegal immigration and wider cross-border crime are simply not working well enough.

I am following the debate carefully. I respect the hon. Gentleman’s argument on the relationship between police powers and the UK Border Agency, but I cannot accept the point that he has just made, and certainly his own county police force would not accept it. The success that it has had, working with our officials, in reducing illegal immigration, and the success that we have had at the juxtaposed border in France, has brought the numbers down dramatically. His own police force would say that.

Order. May I say gently to the House that this is in danger of widening out into a Second Reading debate? Perhaps we can come back to the matter in hand.

I will rapidly move on to another amendment, Mr. Deputy Speaker, but not before saying that the Minister needs to address the point made by the hon. Member for Thurrock (Andrew Mackinlay). There are success stories in some ports, but we know that there are many failures in other ports around the country. There is no point in putting one brick back in the wall if the wall has holes in it all around the coastline.

I take on board what you said, of course, Mr. Deputy Speaker, but does not the case of Kent rather destroy the hon. Gentleman’s argument? That is an example of success, and Kent police have said that does not support his proposals, precisely because they needs to be able to bring the whole weight of the force behind the UK Border Agency. That is not the case in all ports, but it is a very good example.

I have obviously discussed the issue with Kent police. Like all effective police forces, it would like to carry on doing what it is doing. However, there are two points to make about that. First, the national border force that I propose would be able to spread precisely that successful expertise offered by police forces such as Kent. Secondly, although as a Kent MP I am very pleased that Kent police is effective, that is not much good if people can observe that the system is ineffective next door in Essex. If we all know that, we can guarantee that the serious international criminals whom we want to stop know that as well.

I bear in mind what you said, Mr. Deputy Speaker, but the fact is that with human nature being what it is, territorial police forces are jealous of their geographical jurisdiction and do not want another police force in it. In the vast majority of county police forces up and down the country, if somebody draws to a police officer’s attention the fact that there is an illegal immigrant or somebody who appears to be an illegal immigrant, what happens? The police give them a card and tell them to go to Lunar house, Croydon, and they just disappear into the ether.

Local commanders do not feel able to draw the authorities’ attention to somebody who looks like an illegal immigrant, nor are they charged with doing that. That is the reality both sides of the River Thames outside the Port of Tilbury police, the Port of Dover police, the Belfast Harbour police and the Tees and Hartlepool Harbour police. At all the other big ports, it is open season.

I cannot resolve the argument between the Minister and his hon. Friend, certainly not while keeping in order.

We can all agree with that, and I think that the hon. Gentleman has the better argument. Those of us with such responsibilities know about these things. If the Minister is not careful, I shall start talking about alternatives to detention, about which I know something because one of his failed experiments took place in my constituency. I will not be attracted down that route because, you will be pleased to hear, Mr. Deputy Speaker, I want to talk about our other amendments.

I start with amendment 20, which states:

“The designation of short-term holding facilities must be renewed every six months.”

The purpose of the amendment is to probe the condition of the facilities—the point that the hon. Member for Perth and North Perthshire (Pete Wishart) made. Given that we now have more than 30 short-term holding facilities near ports and airports throughout the country and people can be held in them for up to seven days—I daresay that it does not feel very short term if one is being held there day after day—it is important, in view of the extra powers that the Minister wishes to take in new clause 2, to know that the conditions are secure. That is the first thing about which we should care, but those conditions should also be satisfactory and humane.

I want to ask the Minister some questions, which I hope that he can answer when he winds up the discussion on the first group of amendments. What immigration and customs offences would typically cover people who will be held in the short-term facilities? What regulations apply to the officers who are responsible for holding those suspects? Is there any necessity to charge or transfer a suspect in a specific time period? Are suspects normally transferred to immigration detention centres or police stations after they have been in the short-term facilities? What legal advice or representation is offered to suspects in the short-term holding facilities? It would be helpful if the Minister could paint a picture of how the short-term facilities are currently used and how he envisages their being used in future.

We have already had an exchange about the independent monitoring board, so the Minister knows that the monitoring board for Heathrow airport considers the current facilities to be inadequate. Clearly, Heathrow is the busiest facility, so I am sure that the Minister will be concerned about that. Indeed, Lord West of Spithead said in another place that he had visited the short-term facilities in Gatwick and that he was “not over-impressed.” There are clearly deep problems with the short-term holding facilities in all our airports. [Interruption.] Yes, that is two, but they are Heathrow and Gatwick. If the facilities there are unsatisfactory, it is likely that others are also unsatisfactory. However, given Lord West’s description of the new facilities at Heathrow, perhaps they have improved. He said about Cayley house that

“we provide toiletry packs, clothes, blankets, newspapers, magazines, hot and cold food, eye masks in places where the lighting is difficult, family areas, telephones without SIM cards which people can use, DVD players, DVDs and baby changing facilities.”—[Official Report, House of Lords, 6 July 2009; Vol. 712, c.443.]

I have paid money to stay in worse places. I hope that Lord West is right but I also hope that the facilities are secure because they need to be.

As my hon. Friend may or may not know, Lord West is a goat; a member of the “Government of all the talents”. Does my hon. Friend realise that the staff who run the homes do the best they possibly can under difficult conditions? As he rightly says, it will not be much fun staying there, but they do their best.

I am sure that is right, and I know my hon. Friend has great expertise in respect of Gatwick. Let me explain what I am seeking to achieve through this probing amendment: given that these facilities will become ever more important and widespread in the future, it is essential to strike the right balance so that they are secure but also humane. My final point on this matter is to do with interpretation facilities, as they will become increasingly important. Is the Minister satisfied that there is sufficient provision of such facilities at the various short term-holding facilities?

The third of our amendments addresses inspection, which the Minister and I had exchanges about in Committee. One of my worries about the Bill—indeed, about this whole part of the policy—is that there will be inspection creep, in that more and more inspecting regimes are being applied to individual areas. This amendment would allow one inspectorate to delegate its powers and duties to another inspectorate, if that is necessary. I can absolutely guarantee that now that we have three different inspection regimes that are all able to operate, as time goes by those who are doing this difficult job in trying circumstances will spend increasing amounts of their time ticking boxes to try to hit the targets of the next inspection regime. They will also certainly find that each of the three inspectorates that have some power to inspect the facilities will have a different set of priorities and will tell those facilities to do different things. We have seen this happen across the public sector over the past few years, and it would be very unfortunate if we introduced that particular failure into the inspection regime for any kind of detention facilities on the immigration estate, and perhaps especially for the short-term holding facilities.

The point was made in Committee that we know that the new inspectorate—UKBA’s own inspectorate—will be the least powerful. It will be less powerful than Her Majesty’s inspectorate of constabulary and the prisons inspectorate simply because they have greater expertise and history and know the ways of doing things. It will take some years for the UKBA inspectorate to build itself up. No criticism of the UKBA inspectorate is implied in that; it is just the way of the world. I have attempted at various stages of the Bill’s passage to reduce the volume of inspection, because I think a single good inspection is what these facilities and those who work in them should have, and that multiple, constant inspections will result in the facilities providing a lower quality service.

I will not deal with all the amendments tabled by the Liberal Democrats and others, but I hope that the Minister and the House will take on board the arguments I have put for the three amendments we have tabled.

Before speaking to my amendments, I shall address the issue of short-term holding facilities. There are at present concerns about short-term holding. Although there has been some jocular reference to the conditions in these facilities, the people detained in them are not criminals; they are being detained while further investigations take place. My concern about the new clause is that it would extend the short-term holding facility definition to police cells and prison cells. That is a worrying move, and I am also concerned about people being left in such short-term holding for considerable lengths of time. That is why I support the amendments which try to limit the hours for which people are detained.

The amendments in my name are amendments 9 and 10 to 13. When we debate legislation such as this, it is important that we look at the practicalities of the implementation of its provisions. I have Heathrow in my constituency and a large number of my constituents are immigration or customs officers. Most of them are organised through the Public and Commercial Services Union, and I co-ordinate the PCS group. We therefore get considerable feedback about the anxieties of existing staff about the changes proposed in the Bill.

As hon. Members are aware, at present there are three lines of inspection—three sequential control points—for people coming into this country and therefore three opportunities for detection and intelligence. Passengers, vehicles and traffic are potentially subject to three checks: by immigration, by customs and then by the police. Over time, specialist knowledge and training have been built up in each area, as has, therefore, a professionalism.

Under clause 3, the Secretary of State can designate

“an immigration officer, or…any other official in that Secretary of State’s department, as a general customs official.”

That is an extremely sweeping power—“any other official” in the Department could, I suppose, apply to the departmental cat. The breadth of the designation powers being given to the Secretary of State is extraordinary. That has caused unease among officers in the service, whose first concern is that the extent of the power could lead to privatisation. I am grateful for the time that the Minister and management have taken to meet trade union reps and to reassure them that the thrust of the legislation is not about privatisation, but about trying to streamline the service, as some have said, and increase its effectiveness. The staff have gone along with that by looking at how effectiveness can be achieved.

There are still concerns, however, that the professionalism of the service will be undermined by the breakdown of specialisms. Nevertheless, the staff have gone into negotiations through PCS to look at where the specialisms can be maintained or drawn upon in a unified service. However, it is accepted that there will be change and that not all will be catered for. I have seen the correspondence between the union and management, and the union accepts that the business model being pursued by management will mean that there may not be a sufficient number of posts at every port to satisfy everyone’s wishes. The union recognises that, as a result, management may wish to redeploy staff to new duties. That displays a flexibility in those discussions from the union in order to ensure that the implementation of the legislation is delivered as Ministers want it to be delivered.

However, there are genuine concerns about what could happen as a result of the breadth of the Secretary of State’s powers. That is why my amendments seek to limit those powers and ensure that the Secretary of State can designate from either existing staff—that is, customs officers—or staff who are specifically recruited for that purpose. My amendments would also remove the flexibility that the Secretary of State is seeking to give himself to designate customs officers for a limited period, so that we can inspire existing staff, see them as professionals, build on their expertise and recognise that they need both the security of employment and the respect for their profession that they are pursuing in the longer term.

The implementation of the legislation could fall at the earliest point, however, because of the breakdown of the discussions that have taken place so far. Unfortunately, there has been a rush by elements in management to implement the single border approach, with the recent publication of integrated guidance, which has triggered some managers to change shift patterns, job content and ways of working among staff, despite the offer by the union to become involved in workplace planning and to look at how people can be redeployed. At the moment, if the legislation goes through and there is no proper consultation between management and the unions, which is what should happen, there will be industrial action on its first implementation in August. At the moment, the union is balloting on that industrial action. I believe that the Government have a responsibility to intervene to ensure that the management respect the wishes of the House.

The current union offer is that there should be a moratorium, not on change but on the compulsion on staff to move from their existing positions to new ones, and that that moratorium on compulsion linked to change should last until May next year. However, I understand that the management want it to last only until December, so we are talking about a difference of six months. If the management remain intransigent, there will be industrial action in August next year—August is one of the busiest periods for customs and immigration officers—and the morale of the staff and their confidence in the new system that the Government are introducing will have been undermined.

The Minister has intervened recently to reassure the staff that the sweeping power that he has given himself will not be used for privatisation or to bulldoze through measures that undermine the professionalism and morale of the existing staff. As I have said, there is a meeting on Friday between the unions and the management. If no agreement is reached, the ballot that is now taking place could well produce a majority in favour of industrial action, and the service will face a crisis at its very birth. Will the Minister give me an assurance that if no agreement is reached on Friday, he will meet Members of the House to see what can be done to resolve the industrial relations problems that the new service, as set out in the Bill, seems to be encountering at its birth?

A residue of good will among the immigration and customs officers within the Minister’s Department and elsewhere has been drawn on, and it now needs to be bolstered, rather than undermined at this early stage. I do not believe that it is too much to ask of the service that there should at least be a moratorium on compulsory redeployment between now and May, so that negotiations can take place to protect the staff who are in situ at the moment. They are professionals who have served this country relatively well over the years. In fact, one of the arguments that we have had in the House has centred not on their professionalism but on the fact that there have been too few of them. We need to build on the strengths of the existing service, and that is what we are seeking to do.

The amendments enable me to highlight the problems that exist in the service at the moment, and I hope the Minister will give me the undertaking that if negotiations fail on Friday, we can have a quick ministerial meeting with Members and, hopefully, resolve the outstanding issues. That would enable the service to go forward on a basis of professionalism and with increased morale and stability from the beginning.

I shall speak briefly to this group of amendments on border functions. Before I come to our amendments, I should like to comment on those tabled by the Conservatives, starting with amendment 18, which would allow a police officer to be designated in relation to general customs functions. There is agreement between the Conservatives and the Liberal Democrats on the need for a UK border force, although there is some difference of opinion about precisely what responsibilities and roles such a force would have. I doubt that the Conservatives intend to press amendment 18 to a vote, as a little more preparation would be required than a simple reference to a police officer in order for the Bill to reflect the entirety of the requirements of a fully fledged UK border force.

The hon. Member for Ashford (Damian Green) was quite right to stress the importance of training—a matter we discussed at some length in Committee, and we sought assurances that the funding and appropriate level of training would be available for staff.

Amendment 20 would entail a review every six months of the short-term holding facilities, and I view it as a valuable probing amendment. Given the difficulties highlighted in some short-term holding facilities—the hon. Member for Ashford spoke about Heathrow and Gatwick for starters—the issue clearly needs to be kept under review. The hon. Gentleman outlined what was theoretically available in the short-term holding facilities. I do not want to stray into a debate about mental health services, but I wish that the level of provision available there were matched by that in many mental health hospitals, but having had an engaged dialogue with my local trust to secure just one additional newspaper in a similar facility, I know that it is not. However, I would like to see those facilities rolled out in other places as well.

Coincidentally whether police inspectors should be allowed to take on the role of the chief inspector of the UK Border Agency was, a matter discussed in the Home Affairs Select Committee earlier today. One aspect of the chief inspector’s role that was underlined there was the importance of ensuring that he is perceived as being completely independent of government. It was suggested that he should not have an e-mail address with the term “.gov” in it and that he should have the word “independent” on his letterhead. There must be certainty about the degree of independence, which is an issue that can be resolved, and our proposals for a UK border force need to ensure that independence is maintained. Police inspectors must be seen to be completely independent of government in the same way as we expect the chief inspector of UKBA to be completely independent of government.

Our amendment (a) to new clause 2 welcomes the fact that Government lawyers spotted the possibility of certain difficulties arising in designating prisons and police cells as short-term holding facilities. One occasionally wonders how legislation arrives in such a form. I do not know whether the responsible official is here today and sitting in the Box, but it is strange the way these things happen, and it is fortunate that in this case it was spotted before the legislation went through. [Interruption.] The Minister says from a sedentary position that we are only human, and Ministers are also only human, so I welcome this change.

Amendment (a) is designed to provide even greater clarity about who the new clause applies to. It would provide for a detention

“by an immigration officer, general customs official or Customs revenue official”.

The Minister may say that that is already the case and that we are being over-cautious, in which case I will take that on board, but I think it provides clarity about who is going to be responsible for the control of the detention.

Amendment (b) is designed to ensure what I believe the Minister was seeking to achieve—that there should be a maximum detention period of six hours in these short-term holding facilities. As other Members have said, these are not necessarily facilities that people would want to be detained in for much longer. What the Minister said in Committee suggested his support for our position. The amendment would ensure that the short-term holding facilities could hold people under HMRC and court powers for a maximum of just six hours.

The aim of amendment 3, which we discussed at some length in Committee, is to ensure that the Independent Police Complaints Commission’s remit extends beyond our borders. I acknowledge some of the concerns raised by the Minister about the possible impact of exporting the United Kingdom’s laws on the jurisdictions of other countries, and the possibility that they would feel we were interfering in their legal business.

We might not have pursued the amendment so strongly but for something that happened in the Home Affairs Committee. When John Vine, chief inspector of UKBA, appeared before the Committee, I asked whether he saw any valid role for the IPCC in extending its powers to juxtapose controls. In what may have been an off-the-cuff response, or one to which he would have liked to give greater consideration—the Select Committee format does not really lend itself to that—he said that he could not think of a reason it would not be appropriate for the IPCC’s powers governing the activities of UKBA officers to be applicable abroad. It could be said that that gives the amendment an additional weight which it did not have three or four hours ago.

I hope the Minister will consider our proposals carefully. I hope he will judge them to be in the same vein as the proposals we presented in Committee in an attempt to improve the Bill and probe the Government’s intentions, but will give them a warmer and more positive response.

As my hon. Friend the Member for Ashford (Damian Green) observed, there is a sort of ritual to these immigration Bills. They come around almost annually, yet they never seem to close with the main problem.

Before I lend my support to what my hon. Friend has said, let me remind the House that net foreign immigration trebled between 1997 to 2007, from 107,000 to 333,000. During the same period, the net outflow of British citizens doubled to about 100,000 a year. The overall inflow—the backdrop against which these clauses are being debated and the Bill’s passage is to be completed—has reached about 237,000 people a year, compared with 48,000 as recently as 1997. The total inflow of foreign citizens since 1997 is nearly 3 million. Those are enormous figures, and, however we view them, they will have a profound consequence for the life of this country. The Bill is a major piece of legislation. It is of the first importance to the security of our people, and to the harmony and cohesion of our country.

I pay tribute to the rational, calm and sensible way in which the Minister approaches these matters. I personally think that he does a very good job in very trying circumstances, but that is as far as it goes, because I do not think that the Government are closing with the real issues. The fact that the Minister appears to be in denial about the figures from the Office for National Statistics is example enough.

The Minister referred to the short-term detention facilities, and the number of people with whom it would be necessary to deal. Nobody knows how many illegal immigrants there are in this country—they are additional to the numbers I quoted. The latest estimate by the London School of Economics is that there are about 618,000, within a range of between 417,000 and 863,000.

The Government propose to deal with that increase by introducing a points-based system for work permits, which they inadvisably describe as being tough and Australian-style. In fact, it is neither. The Australians start with a limit and issue permits within it. There are no limits to the Government’s scheme; indeed, according to their own calculation, it will reduce immigration by only 6 per cent.

I raise this issue not in any partisan way. We can all agree or disagree with those figures, and I know that the Minister does not agree with the interpretation and analysis of the Office for National Statistics, although he was good enough to refer to Migrationwatch UK, the work of which I and the right hon. Member for Birkenhead (Mr. Field) admire and believe has brought enormous credibility and sanity to the debate, enabling us to discuss these matters in public.

As you will remember, Mr. Deputy Speaker, when you and I first entered this House, if anyone was foolish enough to raise this subject, they would be branded as being on the far right of the Conservative party and treated as a pariah. There is no reason why you should remember this—I do not know whether you were in the Chair at the time—but I had an Adjournment debate on immigration back when my right hon. Friend the Member for Witney (Mr. Cameron), who was present at the debate and has since rocketed past me and become the leader of my party, was a member of the Select Committee on Home Affairs. The right hon. Member for Stretford and Urmston (Beverley Hughes), whom I understand is to leave this House shortly, accused us of being racist. She said that even mentioning the subject on the Floor of the House of Commons was unacceptable. The Balanced Migration campaign has tried, in discussing the legislative process with Ministers, to enable this country to have a serious and open debate about a matter that is of profound consequence and importance to this country.

I say this—I am grateful to you for giving me the latitude to do so, Mr. Deputy Speaker—only because we must consider what will happen to the facilities that we have created and will create if the legislation is not right. The hon. Member for Hayes and Harlington (John McDonnell) spoke eloquently about such facilities in his own constituency; I know a little bit about such facilities, because Gatwick used to be in my constituency and I have visited them. The hon. Member for Thurrock (Andrew Mackinlay), who is sitting below the Gangway, in one of the most famous seats in the House of Commons, knows very well what he is talking about. There are real difficulties at the moment in dealing with this tidal wave. This is not designed to be an emotive speech, but we are talking about an enormous number of people. It is essential that the legislation provides proper, coherent, joined-up government to enable us to deal in a humane, decent and honourable way with the very large number of people who come to seek their fortune and way of life in this country.

I believe that in this Bill, the Government, who have good intentions, are trying to deal with the matter—

Order. I am reluctant to stop the hon. Gentleman—[Interruption.] Yes, I think he has probably exhausted my latitude. Perhaps he could now come to the matters in hand. This is not a Second Reading debate.

Mr. Deputy Speaker, you have been characteristically, magnificently generous and I am sorry to have abused your hospitality in the Chair; I will cease to do so.

I want very quickly to say only this. I support my hon. Friend the Member for Ashford on the question of the short-term holding facilities. As I have said, those who have to design and run those facilities have to manage a very unhappy, difficult and frustrated population, and my goodness, if one were there oneself, one would understand very well why they feel that way. They are frightened for their future, for their families and particularly for their children, and they do not know what is going to happen. It is important that those centres be humane, decent, properly run places.

The only point that I wish to make to the Minister is that I hope he is satisfied on this issue. He does not agree with me, with Migrationwatch UK, with the ONS or, apparently, with anyone else about the number of people involved. He knows very well, however, because he is an intelligent man, that the numbers are very great.

The hon. Gentleman makes a very important point. In questioning the 70 million figure as an extrapolation, not a projection, I am in no way diminishing the importance of his point about the net migration figures to which he draws attention. I do, of course, accept that point.

I am grateful to the Minister for saying that.

On the structure of the administration of the facilities and the accompanying bureaucracy, a very important point was made about liaison between police forces. I have not had the same experience, but I know very well of the inability of police forces to work properly together unless they are made to do so; indeed, every such attempt to make them do so has nearly always been seen off. Given the great difficulty in coping with this large and increasing number of people, it is essential that the Minister and my hon. Friend are satisfied that the legislation can cope with such numbers. The steps that the Government are taking to diminish their numbers will have only a very marginal effect.

It is a pleasure to follow the hon. Member for Mid-Sussex (Mr. Soames). There is no doubt that he brings a great deal of experience and passion to the debate, and where the amendments did get a fleeting look in, he certainly brought a great deal of interest to it. May I say gently to him that the range of issues he described does not apply to my nation? It is experiencing structural depopulation, so we face the opposite range of issues. I hope he recognises that, and agrees that what Scotland perhaps requires is its own immigration process, so that we can deal with our own issues and he can get on with dealing with his. That is how we should proceed.

Does the hon. Gentleman agree that the proposal for a separate immigration policy would be entirely unnecessary if we had an Australian-style points-based system that allowed for the Scottish circumstances? That way, we could have a UK system without going quite as far as he suggests.

I am grateful to the hon. Gentleman for raising that, because exactly what is lacking in the points-based system is the flexibility that would allow the nations of the UK to determine their own immigration requirements and help us to deal with the challenging immigration and population issues that we face. We need those powers and we need them now, in order to tackle the challenges we will face in future.

I want to address my remarks to new clause 2 and the consequential amendments, and to support the very good amendments (a) and (b), from the hon. Gentleman and his colleagues. Regardless of what the Minister said to me in response to my earlier intervention, there is no doubt that the current arrangements for the short-term detention of detainees are less than satisfactory and are, in fact, inadequate. What is proposed in new clause 2 will only make matters worse and compound the situation in which the detainees find themselves.

It is not just the independent monitoring board and Lord West, but Her Majesty’s inspectorate of prisons that found the situation in nearly all the short-term holding facilities less than adequate. It found difficulties with ensuring that children could be looked after, with access to legal advice, and with ensuring that even basic things such as toilet facilities were of a suitable standard. There was no child care training or policy, and there were no child protection arrangements. There were bullying issues, and no way for some of those complaints to be addressed. I hope the Minister recognises that there are difficulties and issues in the short-term holding facilities, and that the Government should take the matter seriously and try to resolve it.

I am particularly concerned about the care and welfare of children, which is the nub of the issue, whether in the short-term, or in the longer-term, detention estate. On Second Reading, I had a useful exchange with the Minister and the hon. Member for Ashford (Damian Green), with a real desire to consider the detention of children, whether in the long or short term. I thought that we were making progress with the idea that the issue had to be addressed as a priority.

The Minister is right: I have raised several parliamentary questions on the subject. On Second Reading, I mentioned the case of a family from Africa, who came to Glasgow. They had been subjected to a dawn raid and held at the Dungavel long-term detention facility. They were deported to the Ivory Coast by private jet, only to be returned immediately to a detention centre in England. I now understand that the family is to be deported this week to Senegal, again by private jet via Brazil.

I asked some questions about the cost of such deportations, and I could not believe the responses I received. For example, the cost of holding and deporting the family in the case I have mentioned has been £70,000, even before this week’s round of deportations. Other parliamentary questions revealed that the cost of chartering private aircraft had almost doubled in the last year to more than £8.2 million. The UK Border Agency spent £26.8 million on chartered and scheduled flights to remove immigrants at the taxpayers’ expense in 2008-09. A total of £81.5 million has been spent since 2005. Those are staggering figures, and they reveal just how much is spent in deporting people from this country.

Would it not be more cost-effective to consider other, more creative solutions to deal with the problem? Is deportation always the answer in such cases, especially when the costs are so astronomical? I urge the Minister to look at this problem.

I understand the hon. Gentleman’s point about the cost, and perhaps the answer is to administer deportations more effectively, but would it not send the wrong signal if deportations were to stop and we were simply to say that we would look for an internal solution? Would not that encourage even more people to come to the UK, because they would see it as a soft touch?

The hon. Gentleman is right, and deportation is necessary in many cases. No hon. Member would argue that that is not necessary, but the parliamentary questions revealed the staggering cost of the process. I did not know that all this was happening, and I am sure that other hon. Members did not know about those excessive costs. I challenge the Minister to consider other methods, including alternatives to detention and deportation, to try to make progress. I know that some work has been done in that area and it should be encouraged. It seems that the solution to all the problems is either to detain or deport, but there must be other answers that are more humane and more cost-effective. We should ask what these people may have to contribute to our communities and our society, and I hope that the Home Office will look seriously at the issue.

The costs of the immigration system are spiralling out of control. We are compounding the problem with further measures on the short-term detention of immigrants that will not be helpful. I support amendments (a) and (b), as tabled by the hon. Member for Eastleigh (Chris Huhne) and his troika of colleagues on the Liberal Democrat Front Bench. The amendments would help to mitigate some of the more damaging aspects of new clause 2 and I hope that they secure the support of the House. We have to ensure that we do not make a bad situation worse.

Sensitivity is required, but we seem to be making matters worse. We look at immigration issues in black and white, but we have to challenge ourselves to be more creative in our approach, to consider other solutions and to start to explore other avenues. I hope that the House rejects new clause 2 as drafted and supports amendments (a) and (b), so that we can start to make some progress on these important issues.

There is a good Charles Walker and a bad Charles Walker. The bad Charles Walker says on occasions, “Why should the short-term detention centres be particularly welcoming? We have loads of immigrants coming to this country, and many people do not want so many to come, so why should these detention centres be comfortable?” Then the good Charles Walker holds sway and says, “Yes, there are bad people who want to come to this country and do bad things, but there are also many good people escaping terrible oppression.”

Of course, if people are put in a short-term detention centre for seven days, they are not illegal immigrants, because they have not entered the country and been lost within the system. They have been detained at our borders. We have to ensure that while people are in the short-term detention centres, it is not a near-prison experience. They must be looked after and receive the support that my hon. Friend the Member for Ashford (Damian Green) mentioned. They have the right to legal representation, interpretation services and so on. As I said, many good people will be caught up in the system.

Many people will take an interest in amendment 20, because short-term detention facilities last at most seven days. For many people who leave those centres, the nightmare will just be beginning. They may face years and years caught up in a system that refuses to give them a clear decision on their immigration status. They will be in limbo, unable to work and relying on handouts.

We said at the start of the debate that it was important that our immigration system was humane. My concern is that although we may have humane seven-day detention centres, the rest of the system will continue to be inhumane. We need to remove people from this country far more quickly than we do at present, but at the same time it is almost madness that we force people to wait for up to a decade for a decision. We need to take a broader look—outside amendment 20 and this Bill—at how we treat people who come to this country. Yes, in many cases, sending them home will be the right thing to do, but it may now be time to consider whether we should let people work while they are waiting for the decision. The quid pro quo for our constituents could be that we would make that decision in, at most, a couple of years, and we would remove people after that period. However, while they are here, we would not make their lives a living hell. We are a first-world country, and we need to behave like one when it comes to immigration.

I will restrict my remarks to the amendments before us. We have had a wide-ranging debate on these amendments that has been well informed on the subject areas, but not always relevant to the amendments before us—

Order. Sometimes it is reasonable to allow a little background to the amendments that we are discussing, and sometimes I extend that generosity to the Minister himself.

I am very aware of that, Mr. Deputy Speaker, and very grateful. It is, of course, entirely a matter for you and not for me. However, it is sometimes difficult to answer specific points that have been raised if they are not directly relevant to the amendments, even though they might be generally relevant.

Let me try to explain again what the amendments on the short-term holding facilities do. There has been a discussion about them this afternoon and, at times, the issue of detention centres has been confused with the issue of short-term holding facilities. It is, of course, the latter that we are talking about. Typically, in a short-term holding centre people will be held for a small number of hours and rarely for longer. There are some examples of where that does not happen.

The hon. Member for Broxbourne (Mr. Walker) made a point about the time that the process takes. Of course, some of the legacy cases have taken a number of years. That is regrettable, but it is most often caused not by the lack of a clear decision but a series of legal challenges involving appeal, fresh application, application for judicial review and so on. It is exactly that point—that justice delayed is justice denied both for the applicant and the taxpayer—that our proposals on judicial review are designed to address. Given that the hon. Gentleman spoke so strongly and passionately about the need for speedy decisions, I hope that he will support us, if we divide tonight, on the administrative reforms.

The Minister is very generous in giving way, and he is very good at laying traps—I hope that I do not fall into one. I take his comments in the spirit in which they are said. What probably concerns his constituents, as well as mine, is the sheer length of time that it seems to take to remove certain people who are refused entry. We can perhaps both agree on that.

I gave way to the good hon. Gentleman, and his intervention was good, too. My experience is that the delay of deportation to which he refers—rather than the delay of an immigration or asylum decision—is, in practice, either due to legal challenge and non-acceptance of the decisions of the judiciary, which we will debate in a later group of amendments if you allow it, Mr. Deputy Speaker, or to do with false claims of country of origin. For example, many people who claim to be Zimbabwean are, we discover, nothing of the sort. Many people who claim to be Kosovan turn out to be Albanian. In some cases, the country of origin refuses to issue documentation and the bad side of our characters, which says that we should get on with it, often misses the reality, which is that it is not possible to get on with it because of the dispute. In those circumstances, the thrust of policy is designed to speed up that system because the delays are, frankly, unacceptable. That is why, given what the hon. Gentleman has said, I am sure that his good side would support my comments on the changes required to the process of tribunals and courts and on the behaviour of some lawyers.

Does the Minister agree that those of us who are very sympathetic to his argument still have a number of cases that have taken a very long time? I had one such case in my surgery on Saturday, in which a perfectly respectable person in my constituency, and known to me, married somebody. The marriage is disputed, but he has been promised a decision again and again. However, when the decision comes, it is so ludicrous and the way in which it has been documented is so manifestly unconnected with that individual—the smallest amount of investigation would have discovered that what has been said is clearly not true—that it makes it difficult to say, “A lot of cases out there have to be put right because lawyers behave badly.” I would like to feel happier about the performance of the Minister’s Department, which is much improved since he has been there, but it is still questionable in the cases that I see from week to week.

I am grateful to the right hon. Gentleman. I do not claim personal credit for the improvements—at least not here. It is true that the UK Border Agency, since its creation, should be commended on the improvements in the clearing of the backlog and on the report by our chief executive to the Select Committee on Home Affairs. Any reasonably minded person who follows the letters and exchanges would accept that there has been significant improvement in effectiveness in terms of both quality and quantity. It is our policy objective to speed up decisions and to improve their quality. Part of that, however—this is not a contradictory point but a supplementary one—involves trying to improve the processes through the independent system. That is what this group of amendments is about. That is where Lord Kingsland played a very helpful role.

I agree with what my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) says. I deal with a number of immigration cases where I think, “For goodness’ sake, this is clearly a good person, so can we get on with it?” However, I support the Minister in that I think that Members of Parliament have to be far more robust in supporting the work of his Department when we feel that it has got it right. We need to say to the people who come through our door, “No, a decision has been made. It was the right decision and it is time for you to go back to where you came from.”

The hon. Gentleman describes the two pressures on us, even if it is not quite a Jekyll and Hyde situation. I believe, as I am sure that he does, that most right hon. and hon. Members do the right thing. There is a balance between advocacy for the individual and pursuing the honest policy. My experience is that we, as Members, are often naive about the intent and content of cases that are put before us. Close examination by our officials often paints a different picture from the one presented to us. It is understandable that people present their case in a good light.

I oversee the detention of children. In the UKBA, we have a number of layers of checks to ensure that we are doing the right thing. The hon. Member for Perth and North Perthshire (Pete Wishart) asked whether detention is necessary. It is a last resort, but let us consider case studies from among those children. Of course, I cannot name individuals but I have one such case study that I chose at random before today’s debate. The person was involved in two counts of sexual assault, possession of a knife and blade in a public place, assault and battery and three counts of theft. He was sentenced to 12 months’ detention—this is a child by legal definition; he is obviously a teenager. That sentence was increased to 18 months on appeal, as the judge decided that the crime was even worse than had been first judged. The person was put into immigration detention and then, of course, he appealed. He subsequently claimed asylum, which he is allowed to do under the Geneva convention, to which we are a signatory. That was refused. He was then served with a notice of intention to deport, he appealed against the deportation order and a further hearing had to take place. So it goes on. Our policy runs against the background of those legal checks, which this House and the other place would support in general.

That case, which I have not chosen as an extreme example—it was a genuinely random case—shows that we are often not dealing with what hon. Members are presented with on the face of it. It is an asylum case; I do not say that about the majority of immigration cases. I agree with the point made by the hon. Member for Broxbourne that speedier decisions are better for all concerned. However, our policies are delivering in that regard and the Home Affairs Committee has played a useful role.

The hon. Member for Perth and North Perthshire talked about alternatives. We referred to the pilot project in the area represented by the hon. Member for Ashford (Damian Green). Of the 30 families in the pilot, only one turned up. Detention is used because people do not want to be deported and so abscond. We are sometimes forced to call on homes early in the morning to avoid having to call on schools. We want to keep families together: if there were an alternative, I assure the House that we would use it. Detention is the last resort, but I emphasise that we are talking about short-term holding facilities, and not detention centres.

The hon. Member for Ashford asked a number of questions and I shall answer them in the order that I have the answers before me, rather than in any other logical order. He asked about the typical immigration offences involved here, and I can tell him that issues relating to smuggling drugs and people are foremost among them. He also asked about the regulations that apply, and I can assure him that the PACE regulations will continue to apply to persons arrested and detained in the short-term holding facilities.

The hon. Gentleman asked about timetables. The PACE timetables apply in these cases—that is, a person can be detained for up to six hours in a facility that is not designated under PACE, and for up to 96 hours in a place that is so designated. He asked what levels of legal advice were available, and that matter again is covered by the PACE regulations, including the right to access the duty solicitor.

The hon. Member for Perth and North Perthshire referred to the concerns about the independent monitoring board. I do not dismiss their importance but, to be fair, they are largely historical. As I said before, we have taken up the recommendations in most cases.

It is difficult to accept amendment 20 on short-term holding facilities, not least because we propose to remove clause 25 but also because it is not clear from the amendment what sort of designation is being referred to. If it is the designation of a particular place as a short-term holding facility, it is not clear why that designation should need renewing every six months. In any event, all places of immigration detention are specified as such in a direction made by Ministers under paragraph 18(1) of schedule 2 to the Immigration Act 1971. The direction is modified or replaced from time to time, and a copy of the current direction is in the House Libraries.

Aside from immigration removal centres, which are identified individually, the direction specifies the categories of place in which a person may be detained, rather than the individual locations. Short-term holding facilities therefore appear as a class of place: there is no reason why their inclusion in the direction should need to be renewed and no real purpose served in doing so.

If the term “designation” is meant to be a reference to the designation of a short-term holding facility for the purposes of PACE, again there is no need for the reviews proposed by this amendment. There is no such requirement in PACE, or in the orders applying PACE to Her Majesty’s Revenue and Customs. I do not believe that there is any need for such a requirement here.

The Secretary of State will designate a facility for the purposes of PACE only when he is satisfied that it meets the requirements and standards set out in PACE and Home Office guidance. Only a short-term holding facility that meets those requirements will therefore be designated for the purposes of PACE.

I hope that the House accepts the logic of my argument. It is clear that, having designated a short-term holding facility for the purposes of PACE, the Secretary of State will retain responsibility for ensuring that the facility remains compliant with the relevant standards. If the facility falls below those standards at any time, the designation will be withdrawn, so there is no need to introduce an administratively burdensome six-monthly review requirement when PACE already provides the appropriate framework for the designation process.

I take the Minister’s point, which is indeed clear, but how will the Secretary of State know? One of the purposes of our amendment was to ensure that there was a mechanism for the provision of information. Presumably the facility would be kept up to the mark, but I am not clear what mechanism there is under PACE to make sure that the Secretary of State knows what is going on.

The independent monitoring board and the inspectorate regime provide the framework for specific places that are named. The hon. Gentleman said that he was concerned about too much inspection, and I understand that point, but the PACE regulations cover the classes of designated areas. He asks a reasonable question, but he may as well ask how the Home Secretary knows that a cell in a police station is up to standard. The answer is that he will know such information through the various inspection frameworks that are in place, and through the police authority mechanisms.

My answer to the hon. Gentleman’s question is that the PACE regulations will make sure that the Home Secretary is in possession of the necessary detail. My concern is that amendment 20 is a long way around a short corner, to use a Lancastrian phrase.

Proposed new subsections (a) and (b) to new clause 2, which replaces the existing clause 25, attracted support in the debate this afternoon. I think that the hon. Member for Carshalton and Wallington (Tom Brake) was praising the lawyers for spotting the mistake, and it shows the Home Office’s good intent that we have recognised the point being made. We have sought to put the matter right, and that shows why scrutiny in Committee is important. Sometimes it appears very technical—and, dare I say it, boring to the outsider—but it remains important and we have recognised the unintended consequence of our original proposal. However, let me explain our thinking on that point.

Proposed new subsection (a) would restrict the persons who may be held in a short-term holding facility to those who have been detained

“by an immigration officer, general customs official or Customs revenue official.”

I hope that the hon. Gentleman will bear with me, because I asked exactly the same question as he did when the point was put to me. The effect of the amendment would be to undermine the objectives of the UK Border Agency and HMRC, which are seeking to maximise their ability to make use of existing detention facilities.

It was agreed in Committee that it makes operational sense that individuals who have been arrested on suspicion of committing a customs offence, whether by a customs official of the UKBA or an officer of HMRC, should be able to be detained in a short-term holding facility for up to six hours or, where such a facility has been designated for the purposes of PACE or PACE (NI)—that is, PACE as it applies in Northern Ireland—as a place of detention, for longer than six hours, in accordance with the time limits prescribed by the PACE clock. To restrict flexibility in the way that amendment 20 proposes would prevent UKBA and HMRC from making the most effective use of existing detention facilities.

Proposed new subsection (b) to new clause 2 would restrict the period of detention in a short-term holding facility of persons other than administrative immigration detainees to six hours. That is unnecessary: as I have already said, the revised definition of short-term holding facilities would have no effect whatsoever on the relevant time limits that apply to a person’s detention or custody in those facilities, including those that apply in the case of an arrested person whose detention is regulated by the provisions of PACE.

In accordance with the provision that we are making elsewhere in part 1 of the Bill, where an arrested person is detained in a short-term holding facility the appropriate obligations and safeguards in PACE, or PACE (NI), will continue to apply.

Under the proposals in the Bill, individuals who have been arrested on suspicion of committing an offence, whether immigration or customs, may be detained in a short-term holding facility for up to six hours or, where such a facility has been designated as a place of detention, for longer than six hours. The hon. Gentleman is therefore seeking to change the designation process. What I am seeking to do in my amendments is to put right the unintended consequences, as I explained earlier.

Amendments 9 to 13 were tabled my hon. Friends the Members for Walthamstow (Mr. Gerrard) and for Hayes and Harlington (John McDonnell). As they said, the amendments honourably reflect the concerns of the Public and Commercial Services Union, as did some similar amendments tabled in the other place. There are a number of broader issues at play, but to answer my hon. Friend the Member for Hayes and Harlington directly, we have sought to meet the points that have been made. I am grateful to him for his thanks for the meeting that we held. It is not the role of Ministers to interfere in trade union matters, and I know that he is not asking me to do that. He is asking me to ensure that policy is implemented. He asked for another meeting if circumstances arise during the discussions that make it necessary, and of course I will agree to one. I like to think that I and my colleagues always make ourselves available for meetings with Members of Parliament. It is not our job to interfere in the discussions between the management and the unions, but we hope that we will be able to reach agreement. Indeed, I am confident that we will.

Important assurances have been sought, and I think that I can give my hon. Friend the reassurance that he seeks. Only those who are immigration officers or other officials of the Secretary of State may be designated as general customs officials or customs revenue officials. Officials of the Secretary of State will include the current officers of HMRC once they have transferred to the UK Border Agency, but not the private contractors. I did not want private contractors to be so defined, so I hope that that answers my hon. Friend’s second question and provides some reassurance.

The amendments would have two main effects. First, they would prevent the Secretary of State from designating immigration officers and other existing officials of the UKBA as general customs officials. Secondly, they would remove the director of border revenue’s ability to vary the designation of customs revenue officials according to business need. Even though they would not, as seems to have been the further intention, prevent the director from designating immigration officers as customs revenue officials, the amendments would undermine the very point of bringing together the customs and immigrations functions, which everyone in Committee was agreed on, notwithstanding the differences raised over the police, which we covered in some depth.

The general problem is that we need to achieve that objective while ensuring, as my hon. Friend rightly says, that staff judge that the two functions have been brought together harmoniously.

The border force has been criticised for a lack of success in tackling crime, but I must reject that accusation. The new border force that we have in place already provides a team with a single purpose; it is a unified border force with a single strategy, a brand and an identity. It has the right blend of skilled and specialist staff who have defined career paths supported by a strong performance culture. The force has the flexibility to enable managers to focus deployment on priorities that matter to the public. We have stopped more than 14,000 attempts to cross the channel illegally and searched more than 400,000 freight vehicles. I was grateful to the hon. Member for Mid-Sussex (Mr. Soames) for his acknowledgement of the bravery and hard work of UKBA officials, who have seized in excess of £240 million of smuggled cigarettes, representing a loss of £45 million of tax revenue. They have seized £100 million of illegal drugs and taken 5,300 dangerous weapons, including firearms, off the streets.

The relationship between the police and the UKBA has been raised, and it was discussed in Committee. Without repeating what was said in Committee, I suppose that the argument comes down to what is the relationship between the existing police forces and the UKBA. Apart from the disruption that a merger would bring about, our fear is that it would make proper partnership working with the 43 police forces in England and Wales, the eight in Scotland and the force in Northern Ireland more difficult.

I urge the Minister to reflect on this and to be cautious about listening to the advice of the Home Office police advisers who are drawn from territorial policing. The obvious parallel is with the British Transport police, which is a dedicated, specialist force that collaborates with the county and Metropolitan police forces, and that is what would and should happen if we had a proper, comprehensive, highly mobile police force incorporating the border force in our ports around the United Kingdom. It is just common sense, and the people who oppose that are jealous of safeguarding the old territorial jurisdiction of the Met and the county forces.

I can assure my hon. Friend that we have looked closely into the matter. It has been the subject of an important debate. The Stevens report raised it, and it was also raised in the other place. The Public Bill Committee found that opinion is divided among police authorities and forces, including not just those with a vested territorial interest. My fear is that if we created such a force as a designated force either within UKBA or amalgamated it with existing officials, our ability to get the nationwide police forces to work with us as partners would be diminished, not increased. The very example that my hon. Friend gave proves my point. It is sometimes difficult to get local police forces to take part in our endeavours. Anyone who has had the good fortune of watching “Border Force” on Sky Television, produced in co-operation with the UKBA, will understand the wisdom of my words. The fact is that the situation is significantly improving.

I turn quickly to the points about the Independent Police Complaints Commission and the evidence of the chief inspector. The hon. Member for Carshalton and Wallington said that it was by chance that he gave evidence this morning. It was a fortunate chance from the point of view of his argument. Nevertheless, it does not take away from the point that France is France. We have had some improvements as a result of the debate in Committee and we are looking at a voluntary means of ensuring that inspection can take place with the same effect as the hon. Gentleman seeks. Progress has been made on that, but the legal point that I made in Committee remains the same.

I welcome the fact that some investigations are being undertaken into whether a voluntary arrangement could be brought into effect. Can the Minister give hon. Members any more information about what is being considered, the time scales over which it is being considered, what in practice we might see and whether it is something that the House might be given the chance to consider in the future?

As it happens, I have before me a note on that very point. In his evidence to the Home Affairs Committee, the chief inspector of the UK Border Agency made it clear that he was giving a personal view, and that the issue was a matter for Parliament; of course, he is right, and I respect him for that. He said that he thought that the IPCC should have a role wherever enforcement powers were exercised, and he did not think that the IPCC’s remit should be curtailed by geographical boundaries. I think that that refers to the juxtaposed borders, which are in France. Just for the record, to answer the points made by the hon. Member for Ashford in quotes to the tabloid newspapers, we have not given £15 million to the French to police their own border; we are spending £15 million to police our border, which, with the agreement of the French, is in France, and thank goodness it is.

As I have said, the Government remain committed to securing appropriate oversight of all complaints and incidents. It has always been our intention that the IPCC should have a statutory role in relation to the UKBA only in England and Wales, just as it does in respect of the police and the other organisations that it oversees. However, there is an argument for introducing oversight of complaints relating to the exercise of specified enforcement functions by our officers at juxtaposed controls. Recently, following the Standing Committee debate on the issue, we wrote to the IPCC to inquire whether it would be content to consider having a non-statutory role in overseeing UKBA internal investigations into relevant matters at the juxtaposed controls. We await a formal response from it, but I understand that it is looking at the proposal positively.

It makes sense to get the experts in, but as I am sure that the hon. Member for Carshalton and Wallington appreciates, there are delicate matters relating to the French; they are tremendous partners in the endeavour that we are discussing, but we recognise the sovereignty of their soil.

I am sure that the hon. Gentleman agrees; he is nodding his assent. I am grateful to him for that. I believe that I have answered all the specific questions that were raised. Some of the debate was more general, but I hope that I have satisfied right hon. and hon. Members that we have considered the points that were made. I therefore ask the House to oppose the amendments that hon. Members have tabled, and to support the Government new clause.

Question put and agreed to.

New clause 2 accordingly read a Second time, and added to the Bill.

New Clause 8

Transfer of certain immigration judicial review applications

‘(1) In section 31A of the Supreme Court Act 1981 (c. 54) (England and Wales: transfer from the High Court to the Upper Tribunal)—

(a) after subsection (2) insert—

“(2A) If Conditions 1, 2, 3 and 5 are met, but Condition 4 is not, the High Court must by order transfer the application to the Upper Tribunal.”, and

(b) after subsection (7) insert—

“(8) Condition 5 is that the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 (c. 41) wholly or partly on the basis that they are not significantly different from material that has previously been considered (whether or not it calls into question any other decision).”

(2) In section 25A of the Judicature (Northern Ireland) Act 1978 (c. 23) (Northern Ireland: transfer from the High Court to the Upper Tribunal)—

(a) after subsection (2) insert—

“(2A) If Conditions 1, 2, 3 and 5 are met, but Condition 4 is not, the High Court must by order transfer the application to the Upper Tribunal.”, and

(b) after subsection (7) insert—

“(8) Condition 5 is that the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 (c. 41) wholly or partly on the basis that they are not significantly different from material that has previously been considered (whether or not it calls into question any other decision).”

(3) In section 20 of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (Scotland: transfer from the Court of Session to the Upper Tribunal)—

(a) in subsection (1), for the “and” at the end of paragraph (a) substitute—

“(aa) must, if Conditions 1, 2 and 5 are met, but Condition 4 is not, and”, and

(b) after subsection (5) insert—

“(5A) Condition 5 is that the application calls into question a decision of the Secretary of State not to treat submissions as an asylum claim or a human rights claim within the meaning of Part 5 of the Nationality, Immigration and Asylum Act 2002 (c. 41) wholly or partly on the basis that they are not significantly different from material that has previously been considered (whether or not it calls into question any other decision).”’.—(Mr. Woolas.)

Brought up, and read the First time.

With this it will be convenient to discuss the following: new clause 6—Right of appeal to court of appeal—

‘Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (right of appeal to court of appeal etc.) does not apply in relation to immigration and nationality appeals from the Upper Tribunal.’.

Government amendment 41.

Amendment 31, in clause 54, page 45, line 21, leave out paragraph (a).

Amendment 32, page 45, line 23, leave out paragraph (c).

Amendment 33, page 45, line 26, leave out paragraph (a).

Amendment 34, page 45, line 28, leave out paragraph (c).

Amendment 35, page 45, line 31, leave out paragraph (a).

Amendment 36, page 45, line 33, leave out paragraph (c).

Amendment 37, page 45, line 33, at end insert—

‘(3A) Nothing in section 31A of the Supreme Court Act 1981 (c. 54) (England and Wales transfer from the High Court to the Upper Tribunal), section 25 of the Judicature (Northern Ireland) Act 1978 (c. 23) (Northern Ireland: transfer from the High Court to the Upper Tribunal) or section 20 of the Tribunals, Courts and Enforcement Act 2007 (c. 15) (transfer from the Court of Session to the Upper Tribunal) shall permit the transfer of any application where the application calls into question a decision under—

(a) the British Nationality Act 1981 (c. 61),

(b) any instrument having effect under an enactment within paragraph (a), or

(c) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas citizenship.’.

Amendment 38, page 45, line 33, at end insert—

‘(3A) The Secretary of State must by affirmative order make provision for the transfer of fresh claim applications made under rule 353 of the Immigration Rules to the Upper Tribunal.

(3B) An order under the above subsection may not be made until after the Asylum and Immigration jurisdiction has been transferred to the First Tier Tribunal and Upper Tribunal.’.

Government amendments 42 and 43.

Amendment 25, in clause 59, page 47, line 39, at end insert

‘, provided this is no sooner than two years after the date of Royal Assent,’.

Government amendments 44 and 45.

We now move on to the administration of justice, and judicial review in particular. In my opening remarks on the previous group of amendments, I mentioned our sadness, which I know is reflected across the House, at the death of Lord Kingsland at the weekend. He really was a superb politician who brought the best attributes of politics to his public service. He had a long and distinguished career in the areas of public policy, politics and the law. Indeed, I recall that he represented Stanley Adams, for those who remember that case. He was greatly appreciated in the Home Office. He genuinely improved our legislation by his scrutiny. His death at the weekend caused great sadness and was a great loss to the other place.

The amendments that we have brought forward reflect our discussions with Lord Kingsland to seek an accommodation of his concerns and those of Members in the other House. With their help, I think that we have managed to make a good job of that. The Government’s position, as I explained to the Committee, was and continues to be that we should give the judiciary the powers that they need to manage cases in the best interests of justice.

The right hon. Member for Suffolk, Coastal (Mr. Gummer) expressed his frustration at a particular case, and I suspect that that reflected his frustration at other cases. Part of our objective is to ensure that the expert judges take the decisions. Judicial reviews often go above that level, or to the side of it, as some would put it. Part of our objective is precisely to ensure that it is the immigration judges, who have the expertise, experience and knowledge, who take the decisions. By that means, we are trying to address some of the frustrations felt by the right hon. Gentleman and, I am sure, other hon. Members; my hon. Friend the Member for Walthamstow (Mr. Gerrard) has raised similar frustrations with me on numerous occasions.

In Committee, we reinstated the original judicial review clause to ensure that the judiciary has the necessary powers available to them. However, we said that we wanted to seek consensus on the Bill, so I am mindful of the views expressed in another place. New clause 8, amendment 25 and amendments 41 to 45 reflect the essence of the clause as it was when it left the other place. Concern was expressed about the timing of transfers of judicial review, and about overwhelming the upper tribunal. There were also differences on points of principle, but it is, I believe, recognised that the administrative court is under enormous pressure. We have made the case for the transfer of at least some cases. Fresh claims have been identified by the Lord Chief Justice as the most suitable class of case for transfer. I should explain to the House that a “fresh claim” is not a fresh claim; it is a renewed or refreshed claim.

The effect of our proposed new clause is that the Lord Chief Justice, with the agreement of the Lord Chancellor, will be able to order the transfer of judicial review cases that deal with so-called fresh claims to the upper tribunal. Transfer of other cases, either on a case-by-case basis or on a class-of-case basis, will not be possible; that is the change to the earlier proposal. That will go a significant way, I believe, to alleviating the burden on the higher courts. Once the upper tribunal has established its ability to deal efficiently and effectively with fresh claims judicial reviews, the House may be persuaded that it should be able to deal with other cases, too, but that is a matter for another day.

In the light of what the Minister says, does he have estimates of the number of cases that will be transferred, and the number that will be left where they are?

I thank the hon. Gentleman for his question; he goes to the heart of the matter. About 4,600 judicial review applications were made in the last year. Of those, about 900 related to the “fresh claims” class. That is a significant number, and I am advised that those 900 are the largest single class, but they are far from being the majority of claims, so his question is pertinent. The measure meets our objective of bringing us more into line with other tribunal services. It meets our objective relating to the good point made by the hon. Member for Broxbourne (Mr. Walker) about the speed and efficiency of decisions. It meets our objective of having the expertise available. It also allows the upper court to look at the other cases. It does not exclude their transfer to the upper tribunal. It just means that they must go via that route.

There are an incredible 4,600-plus applications. Around 85 per cent. of them are rejected. That backs up my assertion that some of them are an attempt to play the system. Of course we do not wish to deny justice or access to justice, and our proposals do not do so. That has been accepted. The hon. Gentleman is right: justice delayed is justice denied.

The new clause extends the same powers to the Lord Chief Justice in Northern Ireland and the Lord President in Scotland, in line with the procedures set out in the Tribunals, Courts and Enforcement Act 2007. It also provides that it cannot be commenced—the hon. Member for Ashford has tabled an amendment on the commencement provisions—until the asylum and immigration tribunal has been transferred into the first-tier tribunal and upper tribunal system established by the Tribunals, Courts and Enforcement Act. That was always the policy intention, which is why I am happy to make it clear in the Bill.

The amendments tabled by the Opposition address a number of points. Some are on similar lines to the Government’s own amendment, so I cannot in all fairness resist them on policy grounds. Others limit the power to transfer judicial reviews in ways that we regard as unacceptable. The effect of new clause 6 and amendments 31 to 38 is that the Lord Chancellor cannot limit the test for appealing to the Court of Appeal. High Court judges must review every case before transferring them to the upper tribunal, and even then cannot transfer nationality cases—not until the asylum and immigration tribunal has transferred into the unified tribunal system.

As I said, I have no difficulty with this last point, which is covered in the Government’s new clause. Similarly, the requirement under amendment 38 that the Secretary of State make provision for the transfer of fresh claims is unnecessary, first because we are committed to addressing the burden in the High Court as soon as possible, and secondly because such orders are not required to implement case-by-case transfer of cases. Amendment 25, however, would mean that the clause cannot be commenced until two years after Royal Assent. The burden on the higher courts exists now and we need to address it now. I understand the motive behind the amendments, but we need to get on with it.

Amendment 38 requires commencement by affirmative order. This is not necessary or desirable, if we are talking only about commencing the power to transfer a limited class of cases, as I said we are. The judiciary have made it very clear, and the other place has accepted in principle, that fresh claims cases should be transferred, which makes commencement by affirmative order unnecessary.

The other amendments cause considerable difficulty. Primarily, they would cause difficulty for the judiciary, who would be hampered in their ability to manage cases in the best interests of justice. Some of the amendments in the group are concerned with limiting the categories of case that may be transferred, and the Government amendments achieve much the same ends. Amendment 38 suffers from the same drafting difficulties as we have seen in previous amendments to the clause— applications are not made under rule 353 of the immigration rules; they are refused under it.

Requiring a High Court judge to consider every case before transferring it defeats the point of allowing cases to be transferred into the upper tribunal. This is not what the judiciary wants and it does not address the burden that the higher courts are facing. If there is to be any positive impact from transferring fresh claims judicial review cases into the upper tribunal, they should be transferred on a class basis, without the need for a High Court judge to scrutinise every case. That is what the judiciary have asked for and what the Government amendments provide. The Opposition amendments would take away any possible benefit from clause 54, and I therefore ask the House to consider carefully the real-world impact and therefore to resist them.

New clause 6 prevents the Lord Chancellor from making an order that restricts the test for permission to appeal to the Court of Appeal to that set out in the Access to Justice Act 1999. The Master of the Rolls supports this more restrictive test—it is not something that we are imposing on the judiciary against their will, as some had feared. We are clear that the test would not stop cases that raise important issues concerning human rights or asylum being granted permission to appeal to the Court of Appeal. That is a critical point, which came up in the other place.

The test would simply allow judges to refuse permission in cases where there was no important point of principle or practice and no other compelling reason to grant permission. It is preferable to have a single test for the hearing of appeals by the Court of Appeal, and we are satisfied that the amendment is not necessary to provide the protection for immigration cases, which we accept can raise important issues of life and liberty, although other appeals can also raise important issues. Again, I ask hon. Members to consider the impact of new clause 6.

The Minister makes an important point. Given the gravity of the statement that he has just made, will he write to Members with examples of how he sees that operating? New clause 6 was designed to ensure the safeguards that he says are not affected. If he could confirm that, it would go a long way to allaying many concerns that hon. Members have.

I am happy to do that. I believe it would be helpful. One could say that I am giving in graciously. This is not the position that we started with at the beginning of the passage of the Bill. It is the consequence of the debate both in Committee and in the other place, and the discussions that we have had. I can assure the House that I have given Opposition and Cross-Bench peers access to advice from officials in a very open way, because the policy goal is to cut some of the delays that we have discussed. There is a consensus across the spectrum that that should be done, from those who want to see fair administration and justice for asylum seekers through to those who do not want any, if I may put it that way. Because the fresh claims category is the most significant class, although not the majority, I can support the compromise that has been proposed, and at the same time guarantee access to the Court of Appeal on a reasonable basis.

The test would allow judges to refuse permission to cases where there was no important point of principle, as I said. The write-round with examples that the hon. Gentleman has asked for is a helpful suggestion, because it will show hon. Members in this place and in the other place our intent.

The Government amendments represent the discussions that we have had, and I hope they are sufficient to address Members’ concerns about which judicial reviews should transfer, and when. Although I am disappointed that we have not been able to go further, I believe this is a sensible way forward.

Judicial review applications represent the biggest significant class of case not just in immigration hearings, but in the higher courts, I am advised. Our constituents will not understand why 4,600-plus can be made and, in layperson’s terms, clog up the higher courts, and that 85 per cent. of those can end up being refused, when access to a judicial review application can be made in the upper tribunal and heard by an immigration judge with the relevant expertise. There is a common-sense case for the measure, and it provides the guarantee of access to justice that hon. Members on the Government and Opposition Benches have sought, so I ask the House to support the Government motion.

I thank the Minister for his warm and entirely justified tribute to Lord Kingsland, who died so suddenly and tragically at the weekend. His work on this legislation will serve as an exemplar for much of the very good work that he did in Parliament and elsewhere. It showed his concern that the legal system should provide justice and that the legislation that we pass through both Houses should promote justice. The Minister has taken on many of the arguments that Lord Kingsland employed, and that is a fine mark in his memory. I acknowledge that fact, and that the Government’s new clause bears the imprint of his arguments.

As the Minister is aware, this is a vexed issue, but I sympathise with his attempt to strike a balance. We all agree that something must be done to ease the case load of the asylum and immigration tribunal. It is one of many things that are wrong with the system, and it promotes delay and, therefore, frustration. Indeed, part of the reason for the backlog is that poor initial decision making leads to a large number of appeals and to problems with cases that are being decided only on paper.

The Minister will be aware of those concerns, which he seeks to address in new clause 8, and of the Government’s rush to transfer immigration cases to the new upper tribunal. It is barely up and running, but it cuts down access to the higher courts. The widespread feeling is that Home Office failings must not be compensated for by a lessening of appeal rights in those complex cases that involve human rights issues or constitutional principles, and that the inadequate handling of judicial reviews by an untested tribunal risks increasing the work load of the supervising court, the Court of Appeal, and reducing supervision at the Home Office.

Those are the issues that the Minister seeks to address, and he is aware that there is widespread agreement in this House and in another place that many cases from the immigration and asylum courts could be transferred satisfactorily to the new upper tribunal. We all agree that it would be an effective way of reducing the pressure on the administrative courts. He will be aware also that the Home Affairs Committee looked at the issue and did not object in principle to the upper tribunal considering cases that were neither highly significant nor complex. That is the balance that he needs to strike.

I have two specific points to make. First, Liberty made the point that

“removing the exception before assessing the performance and capacity of the newly established Tribunal is dangerously premature.”

The Minister has sought to address that, but I hope that he will again reassure the House that there is no intention of moving too quickly to the new system, because, as Liberty argues:

“More frequently than in other spheres decisions regarding immigration and asylum applications engage fundamental rights.”

Secondly, the Minister yet again brought up the point that 85 per cent. of judicial review applications fail, and the clear implication was that a large number are in some way frivolous, which is why they fail. He will be aware of his correspondence with the Immigration Law Practitioners Association, which disputes the factual basis of that point. In a letter to the Minister last month, the acting chair of ILPA said:

“Our experience is that many judicial reviews are not progressed because the decision that is being challenged (a decision of the UK Border Agency) is withdrawn or agreed to be reconsidered. In other words, many judicial reviews do not proceed because the claimant has succeeded in his or her challenge to the lawfulness of the decision without requiring the Court to consider the matter further.”

If ILPA is right, the gloss that the Minister puts on the 85 per cent. figure is not right. It suggests that claimants are overwhelmingly in the wrong and have to give up because they cannot justify their case. ILPA makes the point that the opposite is true: often, the claimant’s case is proved and they do not have to go through the whole judicial process. This is the ideal opportunity for the Minister to address what seems to be a factual point. Where does the balance lie in that 85 per cent. figure?

While I still have those caveats, I am delighted that the Minister has recognised that strong arguments were advanced not only in another place but in Committee, that he has recognised those concerns, and that he has tried to deal with them in new clause 8. By and large, it represents an attempt to acknowledge the strength of those arguments, and I welcome the Government’s change of mind.

I speak mainly to new clause 6 and to Government amendment 41, which will remove clause 54. Some of the Minister’s opening comments were very welcome, as were his reassurances about the safeguards that will be put in place. If he did as he suggested and put into writing something that everyone could see, with examples of how he expected the safeguards to operate, that would be helpful. He has, none the less, certainly provided me with considerable reassurance about how the system might operate.

I still have a few concerns, however. The hon. Member for Ashford (Damian Green) raised the first concern, which is about the timing of the changes. As recently as 2007, the Government accepted that the power to allow for the transfer of applications for judicial review in immigration and nationality cases would be expressly excluded because of their complexity and sensitivity. During the passage of what became the Tribunals, Courts and Enforcement Act 2007, the Minister in the Lords said on Report that before introducing any legislation to allow the transfer of judicial review applications in asylum and immigration cases, the Government wanted to see how the new tribunal regime would work. But we have not seen how the system works, and the introduction of the Bill before us—with clause 54—took place more or less simultaneously with the opening for business of the upper tribunal in the tribunal system. We have not had the chance to see properly how the system works before agreeing to the transfer. I therefore hope that the Minister will indicate his thoughts on the possible timing of a transfer of responsibilities, because we would not want it to happen prematurely—before the new tribunal system had bedded in and was capable of dealing with the undoubtedly considerable work load.

We have heard that we currently deal with a few thousand judicial review applications. If the bulk of that work load is to go to the upper tribunal, we need to be satisfied that it is functioning properly and capable of taking it on. Otherwise, we will just be shifting a blockage from one part of the system to another—from the courts to the upper tribunal—which would not achieve a great deal.

New clause 6 was intended to prevent the Lord Chancellor from introducing a restriction on the right of appeal to the Court of Appeal on the immigration and nationality law decisions of the upper tribunal. At the moment, the Court of Appeal will hear appeals from the asylum and immigration tribunal where the court considers that the tribunal’s decision is arguably wrong in law or where the appeal appears to have a reasonable prospect of success. Those are the hurdles that have to be jumped in order to get a case into the Court of Appeal. I am sure that all of us who deal with immigration and asylum casework will have seen applications for judicial review put in that look as though they have remarkably little prospect of success and do not even try to argue a point of law. I am afraid that that is about lawyers making money from clients in a completely unjustifiable way by putting forward a case that they must know has very little chance of success.

If section 13 of the 2007 Act is brought into play, allowing the Lord Chancellor to add restrictions, what is then suggested is that there will be an extra condition—that an appeal would have to raise some further compelling reason or point of principle or practice. If immigration and nationality judicial reviews are to be transferred from the High Court to the upper tribunal, I assume that those restrictions could also apply there in terms of judicial reviews that were decided on by the upper tribunal. If this change goes ahead, I would like to be clear about whether it will mean not only that there is a transfer of judicial reviews to the upper tribunal, but that the extra hurdle will be in place, so that we do not simply say that a case is arguably wrong in law or has a reasonable prospect of success, but also that it must involve some further compelling reason or point of principle. It would concern me if we were to end up with that extra condition.

My final point concerns what the Minister said about fresh claims. I know from the debates in the House of Lords that the judiciary believe that there is no problem with transferring across fresh claims. They pointed out that only a very small proportion of applications for judicial review that are made as fresh claims get anywhere. Of the 900 or 1,000 cases in 2008 that the Minister mentioned, only a very small number were found to merit a substantive hearing. In the vast majority of applications that were argued as a fresh claim, the Court of Appeal decided that they did not deserve a substantive hearing. The judiciary obviously believe that they could be transferred, as a class, to the upper tribunal, and that would not raise any injustice. That still worries me a little bit. Although only a small number of the applications that are regarded as fresh claims lead to substantive hearings, I suspect that they are cases that raise important points, and it is those cases that one wants to be sure will be heard by High Court judges. At the moment, there is no guarantee that a High Court judge will be involved in hearing a case in the upper tribunal. Some High Court judges would be involved with the tribunal, but would they necessarily be involved in these cases?

In view of what the Minister said, I am not inclined to pursue new clause 6 to a Division, but I hope that he will follow through on the reassurances that he gave us. I also hope that in winding up he can say a little more about when he intends to bring in the changes. We need to be satisfied that the small number of fresh claims that will now not end up in the Court of Appeal will be dealt with by senior judges—High Court judges, if at all possible.

I, too, pay tribute to Lord Kingsland for his work in the other place. We are seeing in tonight’s debates the results of much of that work.

I welcome the Government’s change of heart on many aspects of this part of the Bill. I agree with much of what the hon. Member for Walthamstow (Mr. Gerrard) said about the changes that have been announced. We are concerned about a new tribunal that is only just operational and with no track record taking on the bulk of all judicial review cases to do with immigration and asylum. Can the Minister ensure that we get a report on the upper tribunal’s first year of operation, say, before any new cases are transferred to it? There are still concerns about how it is going to operate, and there will need to be a learning curve. I accept, with the caveats that have been given, that the only immigration and asylum cases that will be dealt with are fresh claims. I hope that the Minister can assure us that we will not, at some later stage, without necessarily having recourse to this House, see the scope of that decision widened. We all want to ensure that where there is a case that can be answered, people have recourse to the courts to seek justice. The hon. Member for Ashford (Damian Green) referred to Liberty’s point—many of these cases involve human rights issues—and it is a fundamental principle of British law that people have access to the courts when their human rights are threatened.

As the hon. Member for Walthamstow said, a very small minority of the 900-odd fresh claims that go to judicial review will then proceed further. How does the Minister envisage that in the minority of fresh claims cases that may be dealt with by the upper tribunal, where the person feels that they have not had their case dealt with by a senior judge, there will be proper recourse to the Court of Appeal so that the decision can be appealed? I am grateful to him for his assurance that he will explain how the safeguards in the new provisions will operate. There will not be a problem in the bulk of cases. We already know—this is why the judiciary want to see a change—that most applications for judicial review in fresh claim cases are dismissed. However, we need an assurance that the 3 or 4 per cent. of cases each year in which there is a genuine issue at stake will be dealt with properly.

The hon. Member for Ashford mentioned the point that the chairman of the Immigration Law Practitioners Association had made about the 85 per cent. figure. Certainly my experience is that when there is a solid case against a decision—usually when the UK Border Agency has not examined the information in front of it properly—UKBA’s case collapses when judicial review is applied for. I do not want there to be a lack of proper recourse for someone affected to raise their points when UKBA has not dealt with information properly.

Given the assurances that we have received from the Minister and the promise of further information, we shall not press our amendments. We believe that the Government have listened to the debates both here and in the upper place. Given the safeguards that we have asked for, we feel that we can live with the Government amendments and new clause 8.

In bringing forward new clause 8, the Minister poses serious questions. Whose interests does the immigration appeal system serve? We have identified that it certainly serves the interests of lawyers, some of whom are not too reputable. We have identified that it sometimes serves the interests of those who bring appeals through lawyers, the immigrants who face removal from this country.

If one were to go out in my constituency and talk about new clause 8, there would be a view that the appeal system does not serve the interests of my constituents. I imagine that the case may well be the same in the Minister’s constituency. There is a view out there that we are in a world of endless appeals. We in this place know that that is not the case, but it is the perception, and we are here to reflect the concerns of our constituents.

I am pleased that we are moving towards a system that accelerates the whole process of identifying whether someone has the right to remain here and, if we decide that they do not, then accelerates the process of their removal. If our immigration system is to secure the support of the majority, it has to be seen to reflect their concerns and aspirations. Our constituents are fair-minded people, and they want the law to contain certain safeguards so that if a wrong decision is made in the early part of the process, it can be overturned. What they do not want is a system that frustrates and thwarts their desire to ensure that those who have a right to remain in this country are allowed to remain, but that those who have no right to remain are removed quickly and humanely to the place from which they came here.

I agree with the hon. Member for Broxbourne (Mr. Walker) on his last point. The issue is more difficult in the area of immigration and asylum, because while appeals are being awaited and the process is going on, in the real world people’s circumstances change. They get married, have babies, change their location and so on. That means that the judicial system is asked to cope with a moving scenario. From the taxpayer’s point of view, it is important that we have as efficient a system as possible, commensurate with access to fair justice.

Three issues have been raised in response to the amendments, and I wish to give the assurances that the House is looking for. I turn first to the question of timing, raised by the hon. Member for Ashford (Damian Green) and my hon. Friend the Member for Walthamstow (Mr. Gerrard), which is addressed by the amendments. We are now proposing that only fresh claim judicial reviews can be transferred as a class, and that will not happen until the asylum and immigration tribunal has transferred to the first tier and upper tier. Our expectation, although it is not down to us, is that that will take place about February next year, but the transfer of the AIT will require an affirmative resolution approved by both Houses. Before making an order to allow transfer, the Lord Chief Justice will need to take account of the capacity in the upper tribunal. The decision to ask for the order will be a matter for him, and it will also require the approval of the Lord Chancellor. That is our expectation of the timing, but it depends on the capacity being available.

That is very helpful, but may we also have an assurance about what information would come to the House before we were asked to make that order?

I assume that my hon. Friend means information about the capacity of the tribunal service. I would make it my business to ensure that the explanatory memorandum, which I understand would be required, provided information on that capacity and on the points that had been made about the process.

Secondly, my hon. Friend made a specific point about section 13(6) of the Tribunals, Courts and Enforcement Act 2007. That section will not apply to judicial reviews. It will apply only if an appeal before the upper tribunal comes from a decision of the first-tier tribunal—if the case is on its way up, as it were. A judicial review decision is not a first-tier decision, so the section 13(6) test would not apply. My hon. Friend sought that important point of clarification.

Thirdly, my hon. Friend asked whether High Court judges should hear important cases in the upper tribunal. That will be a matter for judicial allocation, but the intention of having High Court judges in the upper tribunal is that they should deal with important cases. The right to make a challenge, about which the hon. Member for Ashford asked an important question, will still exist. One does not need the High Court process for that, because there will be the opportunity for a challenge in the upper tribunal or, critically, in the Court of Appeal. The proposals will cut out an unnecessary stage. As my hon. Friend the Member for Wirral, West (Stephen Hesford), whose expertise in this matter is well known, has pointed out, they will help the good guys, if I can put it that way.

The hon. Member for Ashford made an important point about that 85 per cent. figure and the letter from ILPA. As I have said, 85 per cent. of applications for judicial review are unsuccessful. It is true that some cases are withdrawn because UKBA has reconsidered its decision, sometimes after representations made by hon. Members and sometimes as a result of the re-examination of a decision. However, the number of cases withdrawn because the UK Border Agency has reversed its decision is small. Unfortunately, I do not have the figures available this evening, but I will write to the hon. Gentleman with them. Even if I conceded that the numbers were significant—I do not—that is an argument for the experts’ tribunal, or upper tier, dealing with the requests under the new system, rather than the existing position, whereby delay, as my hon. Friend the Member for Wirral, West has said, is almost built into the system, as we clog up the higher courts.

The hon. Member for Ashford asked whether judicial reviews by inexperienced upper tribunals would increase the work load in the Court of Appeal, because that access route will still exist. My previous point partly answers that, but it is also relevant to point out that the Tribunals, Courts and Enforcement Act 2007 limits the judiciary in upper tribunals who can deal with judicial reviews to High Court judges, Court of Appeal judges or other judges agreed between the Lord Chief Justice and the senior president. We are therefore confident that the quality of judges in the upper tier will be the best available. Again, part of our purpose is to get a more efficient system, to answer the point that the hon. Member for Broxbourne made.

I thank the hon. Member for Rochdale (Paul Rowen) for his comments. Let me be clear that the effect of new clause 8 is that the Lord Chief Justice, with the agreement of the Lord Chancellor, will be able to order the transfer of judicial review cases that deal with fresh claims to the upper tribunal. Transfer of other cases, either on a case-by-case basis or on a class of case basis, will not be possible. It will go some way towards alleviating the burden on the higher courts. Once the upper tribunal has established its ability to deal efficiently and effectively with the judicial reviews of fresh claims, and the process that I described in response to my hon. Friend the Member for Walthamstow has been fulfilled, the House may be persuaded that we should be able to deal with other cases, too. However, that is a discussion for another day and would require another Bill. It is the Government’s view that that is desirable, but we must pass the tests first. I hope that that gives the hon. Member for Rochdale the reassurance that he seeks.

I think that we have a sensible understanding, so I am happy to recommend new clause 8.

Question put and agreed to.

New clause 8 accordingly read a Second time, and added to the Bill.

New Clause 1

Entitlement to British citizenship by certain citizens of the Republic of Ireland

‘(1) After section 31 of the British Nationality Act 1981 (c.61) insert—

“31A Entitlement to British citizenship by certain citizens of the Republic of Ireland

(1) If a person born in the Republic of Ireland on or after 1 January 1949 gives notice in writing to the Secretary of State claiming to remain a British subject on either or both of the following grounds, namely—

(a) that he is or has been in Crown Service under the government of the United Kingdom; and

(b) that he has associations by way of descent, residence or otherwise with the United Kingdom or with any British overseas territory.

he shall as from that time be a British subject by virtue of this subsection.

(2) A person who is a British subject by virtue of subsection (1) shall be deemed to have remained a British subject from the date of his birth to the time when he became a British subject by virtue of that subsection.”.’.—(Andrew Mackinlay.)

Brought up, and read the First time.

With this it will be convenient to discuss the following: new clause 3—Amendment of the immigration rules relating to Gurkhas—

‘(1) The Immigration Rules, as laid before Parliament under section 3(2) of the Immigration Act 1971 (c. 77), are amended as follows.

(2) In Rule 276F (requirements for indefinite leave to enter the United Kingdom as a Gurkha discharged from the British Army) omit paragraphs (ii) and (iii).

(3) In Rule 276I (requirements for indefinite leave to remain in the United Kingdom as a Gurkha discharged from the British Army) omit paragraphs (ii) and (iii).

(4) Gurkhas discharged from the British Army prior to 1997 shall have parity with Commonwealth servicemen in terms of the requirements for indefinite leave to enter and remain in the United Kingdom.’.

New clause 5—Consequences of failure to fulfil requirements for naturalisation—

‘Failure to satisfy the requirements set out in Schedule 1 to the British Nationality Act 1981 (c. 61) shall not exclude the possibility of the grant of a further period of probationary citizenship, or other immigration leave.’.

New clause 7—Exemptions to the application of Part 2—

‘Nothing in this Part shall affect an application for indefinite leave to remain in the United Kingdom or for British citizenship if it—

(a) has been submitted at any time in the 12 months after the commencement of this Part; or

(b) is made prior to the commencement of this Part.’.

Amendment 4, in clause 39, page 30, line 6, after first ‘the’, insert ‘average’.

Amendment 5, page 30, line 10, after ‘period’, insert

‘, save that periods during which A was in the United Kingdom with leave other than that conferring qualifying immigration status shall be disregarded for the purpose of considering whether A had qualifying immigration status for the whole period’.

Amendment 1, page 30, line 13, leave out from ‘abode’ to end of line 14 and insert

‘, or a permanent EEA entitlement or refugee status or humanitarian protection;’.

Amendment 40, page 31, line 17, at end insert—

‘(10A) After sub-paragraph (5) (inserted by subsection (10) above) insert—

(6) The Secretary of State shall exercise his discretion under sub-paragraph (ba) above in favour of individuals recognised as having a refugee status in the UK, so as to treat time spent awaiting the outcome of their asylum claim as time spent with a qualifying immigration status, unless there are exceptional reasons why he should not.”’.

Amendment 7, in clause 40, page 32, line 18, after first ‘the’, insert ‘average’.

Amendment 2, in clause 41, page 35, line 21, at end insert—

‘(6) In the case of an applicant with refugee status or humanitarian protection—

(a) the number of years in the period is 5; and

(b) the activity condition is waived.’.

Amendment 22, page 35, line 21, at end insert—

‘(6) Such prescribed activities may not include those activities that could be considered in the interests of a single political party.’.

Amendment 23, page 36, line 14, at end insert—

‘(5A) None of the conditions in section 41(1) shall apply to anyone who entered the United Kingdom under the Highly Skilled Migrants Programme more than four years before the date of commencement appointed by the Secretary of State for Part 2.’.

Amendment 8, in clause 49, page 43, line 42, at and insert—

‘(10) The following periods of absence from the labour market shall be disregarded for the purposes of establishing whether an applicant is or has been in “continuous employment”—

(a) periods of involuntary unemployment duly recorded by an employment agency or office lasting no more than six months,

(b) all authorised employment absences (whether expressly or by custom) including maternity and paternity leave, illness, temporary cessations of work and sabbaticals, and

(c) other periods of unemployment in circumstances where they have not resulted in the cancellation or refusal of immigration leave.’.

Government amendment 17.

I will not detain the House long, but we have an opportunity, which the House will probably not have again for some years, to right a wrong, provide parity of treatment for people who are Irish, whether they deem themselves to be from Ulster—in which there are nine counties, not only six—or elsewhere and allow them to identify with their Britishness.

Why do I say “parity of treatment”? Ever since the concept of Irish citizenship was realised, it has been possible for people born in Northern Ireland to decide to take up Irish citizenship and have an Irish passport, or opt for United Kingdom citizenship. Increasingly, many opt for both. It is a matter of where they feel most comfortable and how they designate themselves. That has been position since Irish citizenship came about, and it is has been reinforced by the successful initiatives of Prime Minister Blair and Taoiseach Ahern, and their predecessors, John Major and the Taoiseach who was TD for Roscommon—his name will come to me in a moment. We had the Belfast agreement, the Good Friday agreement and the St. Andrews agreement, which put on an institutional basis the idea that people in Northern Ireland should be able to decide how they designate themselves.

However, the same does not happen for a relatively small minority, though not an insignificant number of people, who were born in the Irish Republic after the Oireachtas passed the Republic of Ireland Act 1948, which came into force on 18 April 1949. People born in the Republic of Ireland after that cannot designate themselves British. That is unfair, wrong and inconsistent with the practice for people who are born in Northern Ireland. I therefore believe that we should ensure parity of treatment.

Does the hon. Gentleman agree that his point is made even more poignant by the fact that many people who live in the Irish Republic have brothers, sisters and other family members who have settled in Northern Ireland? The idea of being British, Irish or having joint citizenship is not therefore unusual for them.

The hon. Gentleman is absolutely correct, but there is more to it than that. Let me explain my own position. I was born on 24 April 1949. Many of the children with whom I went to school were born after the relevant date and emigrated with their mum and dad to Greater London. Today, they would probably deem themselves Londoners—their accent, tradition, culture, background and schooling is London—yet they cannot opt to be British under the current position because they were born in Dublin, Donegal or Kerry. There are therefore people in Northern Ireland, but also in Greater London and some of the other great conurbations, to which there was a lot of post-war Irish immigration, who were born in the Republic after 18 April 1949, but cannot designate themselves British.

We are all proud of the fact the United Kingdom armed forces today include a significant tranche of recruits from the Irish Republic, particularly, though not exclusively, in the Irish Guards. Those young men serve in the United Kingdom armed forces and contribute a great deal. Many have made the ultimate sacrifice and distinguished themselves by their gallantry, yet they are prevented from being British.

I am not very up on contemporary music, but there are some distinguished show-business people, for example, Geldof, who were born after 1949, whose United Kingdom honours are prefaced with an explanation that they are honorary. That is a pity and it is also ludicrous. Somebody born before 1949 would be the real thing—an OBE or a knight and so on.

We need to rationalise the position. New clause 1 is in the spirit of all that has happened in bringing communities together and in recognising parity of esteem. Perhaps the Minister’s brief will state that it would create precedents, but it would not. Our relationship with Ireland is sui generis—unique. That was reflected by Parliament in 1949, when it passed the Ireland Act. In the face of the Republic’s declaration in the Oireachtas’s 1948 Act—it unilaterally, but correctly decided that it wanted to be a republic—Clem Attlee’s Government passed the Ireland Act 1949, which stated that people from Ireland would have total parity of treatment in the franchise and so on. Many people have served in the House who are Irish citizens.

I am going to do exactly that. I am an Irish passport holder, although I come from a background of dual heritage. I am proud of that, and I am proud to be a Member of this House.

And I am very proud to have my hon. Friend as a colleague in the House, and I also hope that she sees my point. She has decided that she wants to hold an Irish passport and she is extremely proud of it, and she may be one of those people—including many people in the armed forces drawn from Northern Ireland—who holds passports of both the United Kingdom and Ireland.

The hon. Gentleman is making a very powerful case on an issue I was not aware of before he brought it to the attention of the House, and I am by no means unsympathetic to it. I wonder whether the hon. Gentleman can help me, however: what is to stop a person in the position he is delineating from applying for British citizenship in the usual way?

Well, the usual way is long, contorted, expensive and downright irritating, and I just think that people born in Ireland are a one-off case. The Irish Republic citizenship laws allow people to claim citizenship if they have one grandparent who was born in Ireland—in the 32 counties—before 1949. Its citizenship laws are generous, therefore; all I am seeking is parity of treatment for folk born in the Republic after 1949 who want to claim United Kingdom citizenship.

I am extremely grateful to the hon. Gentleman for bringing this issue and new clause before the House. He will recall that I attempted to push through a private Member’s Bill along similar lines a couple of years ago. Is the difference he describes not even worse, in that some people in Northern Ireland who have never lived in the Irish Republic can apply and get an Irish passport, but those who were born in the Irish Republic and have lived 40, 50 or 60 years in the United Kingdom cannot get a British passport without going through the complicated procedure of applying for nationality?

The hon. Gentleman is absolutely correct. I recall his private Member’s Bill, and I hope that if we cannot succeed tonight, at least the Government will have an open mind if he or others introduce a comparable private Member’s Bill to remedy this wrong. It is a source of irritation, and the remedy is not rocket science; it is merely providing parity of treatment.

I am conscious of the fact that the hon. Gentleman’s constituency abuts Donegal, where there are many folk who are very proud of their United Kingdom traditions. This very weekend people paraded in Donegal in the Irish Republic, commemorating the battle of the Boyne and celebrating their membership of the Orange Order. I am not a member of that order—I think I would be disqualified from being a member—but I am very proud of the fact that that tradition is maintained in Donegal, where there are many people who are keen to hold on to their United Kingdom associations. We should meet that need and demand.

I promised the House that I would not labour the point. The hon. and learned Member for Torridge and West Devon (Mr. Cox) said that I have drawn his attention to a topic of which he was unaware before. That is part of the problem. The Home Office, and now the Ministry of Justice, have never really understood the complicated, but unique and extremely interesting, constitutional relationship between, and shared history of, the United Kingdom of Great Britain and Northern Ireland and the Irish Republic. Perhaps they should have understood it, however, because, after all, we are told that this legislation has emerged from a review by one of our former Attorneys-General. He was supposed to do an in-depth job, but this topic obviously never crossed his desk; it was not on the radar screen. My case is that it should have been, because many of our electors would be beneficiaries from this change. To provide it would be in the spirit of giving parity of treatment.

I ask the Minister either to accept my new clause 1, or at least to indicate—and not just for form—that its provisions might be taken on board if there is an early legislative opportunity to do so. That would be most welcome by a number of people living in England, Scotland and Wales, as well as folk in Northern Ireland, and particularly by people who were born in the Irish Republic and who are resident there but who are very proud of their historic traditions, through service in the armed forces or some other connection, which this House should recognise now.

I am tempted to go down the route set by the hon. Member for Thurrock (Andrew Mackinlay), but I will resist that temptation and leave the Minister to respond to his points, because there are many very important amendments and new clauses in this group. I want to address three of them—and to do so fairly briefly, as there are further important groups to come.

In the current group, Government amendment 17 is key. The Minister needs to be able to answer the question whether it gives satisfactory treatment to all those who were affected over the past few years by the High Court rulings, which the Government have lost, on the matter of retrospection, and in particular satisfy the House that he is being fair to those who have not yet applied for indefinite leave to remain on their route to citizenship, because that is what a lot of the amendment is about.

It is worth while setting out the Conservatives’ attitude to citizenship in principle. We believe that UK citizenship is a privilege, not a right. Anyone who is here on temporary leave to remain should not assume that that gives them the right to remain here permanently or to become a British citizen. However, we need to be fair and reasonable. We also need to recognise that our country is competing with others around the world for highly skilled migrants who will benefit our economy—we all agree that Britain benefits from highly skilled migrants.

The Government’s previous decision to change the rules so that highly skilled migrants who are already here and who want to stay are now disqualified from doing so is both unfair and wrong-headed. It is unfair because those people have made a commitment to this country but are having that flung back in their faces, and it is wrong-headed because it sends a signal to highly skilled people around the world that Britain is an unreliable place.

It is an indictment of the current Government that precisely the people whom we should be encouraging and supporting to come to this country are disillusioned by their efforts. As the Minister is aware, the Conservatives have consistently opposed the retrospective elements of the changes to the rules affecting highly skilled migrants. In 2006, his predecessor attempted to change the rules regarding indefinite leave to remain, citing the introduction of the points-based system. At the time, I helped deliver a petition to the then Prime Minister with 4,000 signatures of those opposing the rule change. Since those changes came into force, the highly skilled migrants programme forum has successfully challenged the Home Office in the courts. That was a three-year battle with massive and unnecessary attendant legal costs, but, in the end, the Home Office lost in the courts.

The hon. Gentleman says his party has consistently opposed these retrospective provisions, and we were very happy in the other place to support his party’s noble Lords who tabled an amendment that would have removed those retrospective elements. Why has he now gone back on that in attempting to restrict the proposed change to the highly skilled migrant programme?

I had hoped that the hon. Gentleman was listening to my speech, in which I made the point that highly skilled migrants are particularly valuable to this country, and as he will be aware, the court case was specifically about those migrants. Those are the people in the frame, as it were, in terms of the Government’s unfairness.

I think we should make progress.

The Government have not learned from this and have tried to introduce in the Bill retrospective changes to the citizenship rules. As the hon. Gentleman has just pointed out, our colleagues in another place tabled an amendment and, again, the Government were defeated. I hope that the Minister might recognise that he has not just lost the court case and a vote, but he has also lost the argument; I hope we will hear from him on that. The key point is the date of commencement. That will establish whether there are remaining elements of retrospection in the Government’s system. I will be interested to hear the Minister tell us when he proposes to apply the new rules.

One other amendment that I should speak to is our amendment 22, which concerns the activity condition. The Bill introduces an activity condition for qualifying for citizenship, but it is not clear what could be covered by it—it is not given, but left to be clarified in secondary legislation. There are a number of legitimate concerns to be expressed about what will be covered by that condition. We have seen some introductory documents from the Government, and there are a number of areas where many of us would have great concern about what might be involved. The proposals threaten to be both expensive and bureaucratic. Also, the broad term “activity” does not seem to be restricted to volunteering, which was the Home Office’s original intention.

My hon. Friend is absolutely right. I have read all the debates from the other place, and there is a lack of clarity about what is involved in terms of fairness and so on. It would therefore help if at some stage the Minister could tell us a little more about that.

Indeed. I completely agree with my hon. Friend. Genuine concerns arise about the type of activities that would count. There is a potential burden on the voluntary sector, and particularly on small charities. There could be huge demands for form-filling, and we understand that referees for applicants may even be fined. The Minister is proposing a national checking service, which would be a huge extra burden on local authorities, but it is not at all clear what will happen to the money from the migration impacts fund to offset some of those costs on local authorities. Altogether, the House is being asked to buy a pig in a poke with the current proposals.

The proposal that we are making in our amendment 22, almost as an illustration, is to prevent the prescribed activities that would count as activity—that is, those activities that would allow a two-year reduction in the time before someone was eligible to become a British citizenship—from including

“activities that could be considered in the interests of a single political party.”

At a time when the reputation of politics is not particularly high, I shudder at the prospect, which is possible under the current legislation, of somebody turning up at a Member of Parliament’s surgery and being told, “If you want to become a British citizen more quickly, I know what you can do—go out and deliver these leaflets for me.” That would be absolutely appalling. It would be borderline corrupt if that were allowed by the legislation, and it would do democratic politics in this country no good either. That is an extremely important illustration of one of the things about the Bill that the Government have still got wrong, and we intend to test the mood of the House on that.

My final point is about new clause 3. I always hesitate to talk about the Gurkhas in front of the Minister, who has had some bruising experiences in connection with the Gurkhas over the past few months. However, it is important that on every occasion the House should check on the progress of the Government’s promises, on the Gurkhas, which were extracted from them by their defeat in this House. This debate gives another opportunity to do that, and new clause 3 is an admirable way of providing it.

I shall address my remarks mainly to new clause 5 and amendment 8, which stand in my name, and then say a brief word about amendment 17.

Let me start with new clause 5 and what happens if someone fails to fulfil the requirements for naturalisation. What happens to somebody who is in the probationary stage of citizenship but then, for whatever reason, does not fulfil the criteria for citizenship? There may be cases where somebody decides not to go through the expense of making an application because they know there is a condition that they cannot fulfil. There will also undoubtedly be cases where people’s applications are refused because they do not fulfil some of the relevant requirements and discretionary power has not been exercised in their favour. However, it is very unclear from the discussions on the Bill so far just what the consequences of that would be.

For instance, in relation to the continuous employment requirement, the earned citizenship team has told some organisations outside this place that a failure to comply with the employment requirements would lead to removal. However, it has been suggested in other discussions about various aspects of the Bill that a failure to meet a requirement might just lead to the resetting of the clock on probationary citizenship to zero, to a further period of probationary citizenship or even to the option to switch to a different category, such as the points-based system.

There is an issue if people do not know where they stand if, for some reason, they cannot fulfil the requirements. It is important that we should know as clearly as possible what the consequences of that failure might be. It would therefore be helpful if the Minister could give us some clarity about that, although I realise that it will not be easy because there are so many different requirements that someone might not fulfil.

The second issue that I want to address is that of continuous employment, which is dealt with by amendment 8, which stands in my name. Amendment 8 tries to define continuous employment. Again, we are talking about clarity. The Bill as it stands uses the term “continuous employment”, but does not define it. If a consequence of not fulfilling the relevant requirement is that someone could be removed, that could be quite serious. Amendment 8 tries to define “continuous employment” in a way that corresponds roughly with the points-based system. At the moment, a tier 2 worker who has leave lasting under six months will not lose their status when their employment is terminated, and there are more generous provisions for tier 1 workers. However, what happens if there is a break in employment, which might in no way be the responsibility of the person concerned? The employer for whom they are working might go bankrupt, which would mean they would have to try to find another job under the terms of their work permit.

The other issue that concerns the TUC and a number of other unions is the scope for exploitation of those who are here as migrant workers. If a migrant worker is in an abusive employment situation, but is frightened that giving up that job may lead to their removal from the UK, that makes it much more difficult for them to extricate themselves from that exploitative situation. That is particularly important for women and disabled people. We know that exploitation goes on in the labour market and that the most disadvantaged, such as migrants, are often its victims. I therefore hope that the Minister can give us some reassurances about how the system will operate. He said something in Committee about people being able to work for up to 60 days when they were looking for new employment, but again the issue is one of certainty. If someone in the middle of their term of employment does not know with clarity what the consequence will be of either a period of unemployment or trying to change their employer if there is abuse, that will leave them in a difficult situation.

My final point is about Government amendment 17. This amendment is an improvement on what was suggested before, because it gives some protection to people who are in this country. It clearly protects those with indefinite leave when the new procedures commence, as well as those who have applied for indefinite leave before the commencement date.

It has already been pointed out that a key factor will be the commencement date. I have heard various dates mentioned, including, most recently, the summer of 2011, as opposed to the original proposal of late 2010. This will be important, given the retrospective nature of the legislation. If we know the commencement date, we will have a fairly clear idea of who might be affected by the provisions. For example, someone who is here on a marriage visa that is valid for two years might expect to get indefinite leave to remain here towards the end of that two-year period. If we knew that the commencement date was going to be in the summer of 2011, we would know that anyone who was already here on a two-year marriage visa would be in a position to get indefinite leave before the new provisions came into play.

Certainty will be important in this context. We have heard the arguments about what happened to the highly skilled migrants programme. The problems arose because of the retrospective nature of the programme, and because people who had come here expecting that they would be able to apply for indefinite leave after four years were suddenly told that the requirement had changed to five years. That led to the High Court case that the Home Office lost. None of us wants to see a return to the High Court.

I wondered whether it might be possible to table an amendment to Government amendment 17 in order to introduce more certainty, but that might result in our picking and choosing in a way that the Conservative amendment does when it singles out the highly skilled migrant programme. I understand the arguments that the hon. Member for Ashford (Damian Green) was making on that, but those are not the only people who would be affected, and they are not the only ones who need to be safeguarded from retrospection.

My reading of the condition in amendment 17 which states that a commencement order “must include” provisions about various dates is that that would not preclude the commencement order from including other provisions. The way seems to have been left open for the order to include other provisions that could provide other protections if necessary. That is an important point, which I hope that the Minister will address. I hope that he will confirm that my interpretation is correct. If it is, and if a commencement date might still be a little time off, we could have a serious discussion in the interim about exactly what provisions ought to be included, rather than trying to write them all into the Bill now and, almost inevitably, finding that we had left out a particular class of people who need protection against retrospection.

I hope the Minister will give us some assurances on that last point, and on the points that I have raised in relation to new clause 5 and amendment 8. I am not seeking to press the new clause or the amendment to a vote, but I would like some assurances about the way the new citizenship provisions will operate. There is real concern outside this place about the delays that they might introduce, about the length of time that people might have to wait before they can acquire their citizenship, and about the uncertainty involved. The uncertainty over how the system will operate probably concerns people more than anything else. There is nothing worse than having a system that is full of uncertainties about how it will operate.

I am pleased to follow the hon. Member for Walthamstow (Mr. Gerrard), and to support amendment 8 for the reasons that he has just given. I am also pleased to speak in the same debate as the hon. Member for Thurrock (Andrew Mackinlay), who said some very sensible things about new clause 1 concerning citizens of the Republic of Ireland. I know from my recent constituency experience attending the Eastleigh and District Irish Association dinner dance that that proposal would affect many people across the country, and it deserves support for that reason if no other.

I shall speak in support of new clauses 3 and 7, and amendments 4, 5, 1, 40, 7, 2 and 22. Those provisions all concern the new requirements being imposed by the Government in relation to British citizenship and naturalisation. The new path that the Government are laying out amends provisions on naturalisation in the British Nationality Act 1981. This overhaul is well intentioned and is broadly something that we can support, but it has resulted in certain aspects to which we object and which we seek to amend.

I will start with our two new clauses. New clause 3 aims to enshrine in law the policy changes that the Government agreed to implement on 21 May with regard to Gurkhas who had retired from the British army before 1997. The Government have agreed to this and, as I understand it, have implemented the policy change announced in the Home Secretary’s statement of 21 May. The reason that the new clause is still necessary is that the policy change amends only the guidance used to implement the immigration rules. Guidance, as we know, is not legally binding. It is subject to the discretion of civil servants who are not bound to follow it, and it can be amended at the whim of this or any subsequent Executive. That is simply not good enough. We need something more solid and less transient.

Amendment 40 addresses the issue of asylum seekers and their qualifying period for citizenship. As things stand, many asylum seekers face long waits to have their cases resolved. The delay in dealing with their cases is not their fault; it is the Government’s fault, and the Government should make concessions to rectify this, rather than penalising them for problems of the Government’s own making.

I have been following the debate on the monitor.

Today the Home Secretary gave evidence to the Select Committee. Last week, the head of the immigration and nationality directorate did so. It costs £650 million for the Government to service the backlog of immigration cases. Does the hon. Gentleman believe that it would be in the interests of all concerned if that backlog could be cleared so that all these cases could be processed quickly?

I entirely agree with the Chairman of the Home Affairs Select Committee. I know that he has made this issue an important cause, and I support and pay tribute to his stressing this point.

Let me turn to issues relating to retrospective application. Our new clause 7 seeks to limit the retrospective application of part 2 of the Bill. It would protect migrants already on the path to citizenship from having their requirements for citizenship changed at the last minute. It would give a 12-month grace period for any migrant seeking to apply for indefinite leave to remain, after and before the commencement of the Bill. Neither the Government’s nor the Conservatives’ amendments seek to redress the unfairness and injustice that part 2 will inflict on the many people who have embarked on the path towards settlement with the expectation of gaining indefinite leave to remain.

Government amendment 17 is an improvement on their previous proposals, but it is too narrow in its application, as it restricts the time period for migrants to obtain indefinite leave to remain status. The Conservative proposal is just as worrying, as it discriminates in favour of those who have entered this country via the highly skilled migrants programme. It implies that those who work in the UK on work permits, or who are highly skilled but did not enter through the highly skilled migrants programme, have not made as valuable a contribution to the UK, and so are not entitled to a grace period while finishing their citizenship process.

To make matters worse, clause 39, the Lords amendment that our new clause seeks to replicate, was a Conservative amendment proposed by Baroness Hanham. In the Lords debates, more than one Conservative peer spoke vehemently on this subject, recognising the injustice inherent in part 2. By collaborating with my Liberal Democrat colleagues, the Conservatives managed to defeat the Government on this. One can imagine our shock when, in the Commons Committee stage, we discovered that a strange line had been drawn by the Conservatives to separate highly skilled migrants from other migrants, giving one group—oddly enough, arguably the wealthier group—preferential treatment. Their amendment ignores hard workers, it ignores spouses and it ignores basic human rights.

The morality behind our new clause 7 is simple: there needs to be transitional protection for all migrants already on the path to citizenship. It is unfair to alter the rules for those who have already adhered to them by lengthening the qualification period and throwing in other provisos such as active citizenship. That is, in principle, what the High Court found on 6 April 2009—that it is unlawful to increase the qualifying period for indefinite leave to remain from four to five years for people who were already in the UK on the highly skilled migrants programme. Surely the same logic should apply here: fair play means not moving the goalposts in the middle of the game.

Let me deal finally with volunteering activity. The rest of our amendments are linked to the provisions for active citizenship and continuous employment. While the Liberal Democrats do not object to the idea of earned citizenship as a whole, the Government provisions for active citizenship and continuous employment have created more problems than solutions. We have thus tabled these amendments as an attempt to remedy the problem.

I wish merely to support the new clause presented by the hon. Member for Thurrock (Andrew Mackinlay). I believe that it proposes a necessary change to support a fair system with respect to Ireland. I am sorry that our Front Benchers did not support it. We in the Conservative party have a great deal to live down in our treatment of Ireland, and the new clause provides one way we could do so.

Let me try to respond to the points raised. New clause 1 was debated first, so let me explain the situation with that.

Section 31(3) of the British Nationality Act 1981 currently provides for British subjects born in the Republic of Ireland before 1949 to make a declaration to retain the British subject status they acquired at birth. The new clause seeks to extend that provision to those born after 1949. I shall not repeat the historical background that my hon. Friend the Member for Thurrock (Andrew Mackinlay) has already covered.

Before 1 January 1949, southern Ireland was part of the Crown’s Dominions. Anyone born in that territory therefore acquired British subject status at birth. On 18 April 1949, southern Ireland became an independent republic outside the Commonwealth, although for nationality purposes, that change effectively took place from 1 January 1949. As such, southern Ireland’s British subjects were deemed to have ceased to be British subjects on 1 January 1949, when the British Nationality Act 1948 came into force. A person born in southern Ireland would retain that status automatically only if he or she became a citizen of the United Kingdom and colonies or a citizen of a newly independent Commonwealth country.

Section 2 of the 1948 Act provided that a citizen of Eire who was a British subject immediately before 1 January 1949 could retain that status by making a claim in writing to the Secretary of State under certain conditions. That provision was replaced by section 31(3) of the British Nationality Act 1981, which allows those born in the Republic before 1949 to make a claim in writing to remain a British subject under certain conditions.

The new clause will effectively extend these provisions to those born in the Republic of Ireland after 1 January 1949. However, as the Republic effectively ceased to be part of the Crown’s Dominions on that date, British subject status could not have been acquired by birth there after that date. The new clause would not therefore allow those born after 1949 to elect to retain British subject status, as they would never have held it in the first place.

The status of British subject continues to exist in British nationality legislation as a result of Britain’s historical legacy. However, the only people who hold that status are certain people with a connection to southern Ireland, or with India and Pakistan. As such, the numbers holding that status will reduce over time and we do not wish to create a new route to British subject status. Those Irish nationals who were born after 1949 and wish to become British citizens can do so through naturalisation, based on a period of residence in the United Kingdom.

We do not believe that it would be right for Irish nationals who do not have British subject status to be treated any differently from those of other nationalities, including, of course, other European economic area nationals, who are required to demonstrate an ongoing connection with the United Kingdom through residence, settlement and knowledge of English and of life in the United Kingdom.

None of this material that the Minister is rehearsing contradicts what I said. If he reads the Official Report tomorrow, he will find that I told him the history. He is now getting full marks for getting it correct, having listened to what I said. The issue remains, however, the parity of treatment. The fact is that in one part of the United Kingdom it is possible to opt either way or have both; it is a matter of our relationship with Ireland and the fact that the people born in the 32 counties of Ireland are unique. It is not comparable to the European Union, or to Pakistan and India; it is a one-off. As to all this business about naturalisation, it is a gross impertinence that folk have to go through this long, tortuous and expensive process to do what is simply common sense and perfectly just.

I am sorry that my hon. Friend did not listen to what I, in fact, said rather than what he has assumed I was saying. What I said in respect of his new clause, not in relation to the general policy issue, is that it is not possible to allow those born after 1949 to retain British subject status as they did not have it. That was my simple and logical point, irrespective of one’s view on the justice, morality or otherwise of the issue.

My hon. Friend says that those born after 1949 who have emigrated from the Republic of Ireland and come to Britain cannot opt to be British. That is simply not the case. He may not like the route, but the fact is that a child born in the Republic who moved to the UK when a child—presumably with his or her parents—can naturalise as a British citizen under section 6(1) of the 1981 Act, or, if the parent who acquired citizenship was registered as a British citizen when still a child, it can be done under section 1(3) or 1(4) of the 1981 Act.

My hon. Friend asks what is to stop a person applying in the usual way, and the answer is nothing. What is also different is the fact that the Republic of Ireland is also a member of the European Union, which has changed since 1949, so that represents an important difference.

I think the Minister has missed the point. The new clause is really a request for a reciprocal arrangement to the one that exists for people who live in the United Kingdom and want to claim Irish citizenship. For them, there is an easy route. All the new clause is requesting is that that easy route be available in the other direction. That is why this is a unique situation: people who wish to have Irish citizenship have a method by which they can get it quickly, so to reciprocate in the other direction seems to me to be fairly sensible.

I am sorry the hon. Gentleman thinks I have missed the point, but I think I have exactly addressed the point, by saying that there is an available route. I do not accept that it is a difficult route. Indeed, many hon. Members have made representations to the effect that EU membership citizenship is too easy to get. If that is the case for other EU countries, hon. Members would presumably think it was the case for the Republic of Ireland.

Let me deal briefly with new clause 3. The House will not be surprised to know that I shall ask it to resist the amending provision. We believe that the revised policy on the situation of the Gurkhas meets the concerns of Parliament on the issue. It is not open to civil servants dealing with applications to disregard the published policy; it is established case law that policy must be followed and it would be unlawful not to give effect to it. The policy we now have follows the commitments given by the Home Secretary, following the vote in the House of Commons, and I can confirm that officials are, of course, following it. The policy provides certainty that the Ghurkhas discharged before 1997 will be allowed to apply for settlement.

The proposed amending provision would also have the effect of altering the position of those Gurkhas discharged after 1 July 1997. The logic of the distinction between those who served pre-1997 and those who served after was recognised by the High Court, as it is recognised by common sense. The problem is that the new clause would make the rules for Gurkhas since 1997 inconsistent with those of Commonwealth soldiers. It was that principle that the campaign was trying to establish.

In the context of new clause 5, my hon. Friend the Member for Walthamstow (Mr. Gerrard) raised the important question of what would happen if an application for probationary citizenship failed. Given that the Bill relates to citizenship—not to settlement, which is covered by other Acts and rules—the answer is that citizenship would not be granted. Status is covered elsewhere, under settlement rules.

As my hon. Friend said, there would be several options for those affected. If a person with permanent residence applies for British citizenship and the application fails, that will not affect that person’s permanent residence status. That is probably the category about which he is most concerned. If a person with probationary citizenship applies for citizenship, it will be open to that person to apply for permanent residence once he or she has accumulated the right amount of qualifying leave, as set out in clause 41. It will also be open to the Secretary of State to grant further probationary citizenship. What will happen to the individual concerned will depend on his or her settlement rights—backed up by the European convention—rather than citizenship rights.

Hon. Members on both sides of the House have raised the important issue of transitional arrangements. I told the Committee that I would return to the issue. The original clause 39 was found not to be acceptable. I trust that Government amendment 17, tabled in the name of my right hon. Friend the Home Secretary, alongside assurances that I intend to give the House will address the concerns raised by hon. Members about transitional arrangements. I am also announcing today that, as part of our package of transitional measures, we have decided that to give those who are currently in the UK on a route to settlement time to adjust to the new system, we will allow the earned citizenship provisions to commence in July 2011.

I thank the Minister on behalf of members of the Malayalee league community in Salisbury, who make a very valuable contribution to the economy of the country.

I am grateful to the hon. Gentleman for that comment.

I believe that I said on Second reading—I certainly said it in Committee—that I support the idea of transitional arrangements. The court ruled on the highly skilled migrants programme. Of course we accepted that, and I personally accept that in such cases there is a reasonable expectation for application for status. That is not the case in the other categories, as we established in Committee. The precedent set in court established that there is no reasonable expectation in law. However, we understand the point that has been made.

New clause 7 attempts to reinstate much of the old clause 39. It would provide for a one-year period after commencement in which migrants may apply for indefinite leave to remain or for citizenship under the current rules. I explained in Committee why part 2 is not an appropriate context in which to deal with applications for indefinite leave to remain. I hope that hon. Members will understand why clause 39 was removed in the first place, and why it is preferable to amend clause 59. I believe that I can provide the assurances that have been sought.

Can my hon. Friend respond to the question that I asked about what could be in the commencement order?

Yes, I can. Let me explain. This is a very important matter for many of our constituents.

Amendment 23 seeks to deal with those who arrived here on the highly skilled migrants programme. I explained in Committee that the Government would of course honour obligations under the judgments to allow HSMP migrants covered by the judgments of the court to apply for indefinite leave to remain. We do not accept that HSMP migrants have a legitimate expectation to be able to apply for citizenship as amendment 23 suggests, but I hope that after I have explained our proposed package of transitional arrangements, the hon. Member for Ashford (Damian Green) will accept that they are fair and will not press the amendment to a vote.

I am happy to accept that some provision in the Bill is desirable to provide sufficient clarity and assurance in relation to any transitional provisions. That is the point on which the hon. Gentleman pushed me. Other matters are set out better and in more detail in the commencement order giving effect to part 2.

Government amendment 17 requires the commencement order giving effect to the earned citizenship provisions in the Bill to set out transitional arrangements for certain groups. We have made clear in legislation that people who apply for citizenship before the earned citizenship provisions are commenced will be treated under the current system—that is, they will not be subject to the earned citizenship provisions. We have also made it clear that people who already have indefinite leave to remain when the earned citizenship provisions commence, and people who apply for ILR before the provisions commence and whose application is successful, will be eligible to apply for citizenship under the current system, provided that they apply within two years of commencement. That deals with the point made by the hon. Gentleman in Committee.

For the avoidance of doubt, let me reassure the House that although Government amendment 17 does not specifically make provision for migrants with a pending application for ILR submitted but not decided before the rules are changed following commencement, those people will have their ILR applications considered under the existing rules. The law requires that. As I have said, the Bill is not the appropriate place to set out transitional arrangements for applications for ILR, and I am making this statement on the record in order to provide clarity.

I believe that, taken together, the Government amendment and the statement I have just made about how we will treat applications for ILR meet the intention behind new clause 7(b). On that basis, I hope that I have satisfied the House that the transitional arrangements are fair.

Finally, there is the issue of continuous employment. I gave assurances to the Committee that sensible arrangements could be made. I said that if people lost their jobs through no fault of their own, they would be given reasonable opportunities—commensurate with employment law, as agreed in the Employment Acts—that would provide the flexibility that they sought.

I hope that I have answered hon. Members’ questions and that I have made the proposed amendments that I undertook to make in Committee. My hon. Friend the Member for Walthamstow asked me to confirm the situation regarding the commencement order. The amendment prevents us from doing anything more restrictive in the commencement order regarding those individuals whom it covers. It does not prevent us from extending the protection by making further transitionals for other groups. I hope that that satisfies him.

With the leave of the House, Madam Deputy Speaker, I beg to ask leave to withdraw the clause, because I am looking forward to hearing about the common travel area.

Clause, by leave, withdrawn.

With the leave of the House, Madam Deputy Speaker, given the Minister’s assurances, we withdraw new clause 7.

That has not been moved, but I understand what the hon. Gentleman is saying.

New Clause 3

Amendment of the immigration rules relating to Gurkhas

‘(1) The Immigration Rules, as laid before Parliament under section 3(2) of the Immigration Act 1971 (c. 77), are amended as follows.

(2) In Rule 276F (requirements for indefinite leave to enter the United Kingdom as a Gurkha discharged from the British Army) omit paragraphs (ii) and (iii).

(3) In Rule 276I (requirements for indefinite leave to remain in the United Kingdom as a Gurkha discharged from the British Army) omit paragraphs (ii) and (iii).

(4) Gurkhas discharged from the British Army prior to 1997 shall have parity with Commonwealth servicemen in terms of the requirements for indefinite leave to enter and remain in the United Kingdom.’.—(Chris Huhne.)

Brought up, and read the First time.

Question put, That the clause be read a Second time.

Amendment made: 15, page 19, line 23, leave out clause 25.—(Mr. Woolas.)

Clause 50

Common Travel Area

With this it will be convenient to discuss the following: amendment 46, in clause 59, page 47, line 31, leave out ‘50 (Common Travel Area),’.

Amendment 47, in schedule, page 50, leave out lines 4 to 6.

Amendment 14 would remove clause 50, which deals with the common travel area. I understand that the Minister is to make a statement on this matter, so I shall sit down to hear the good news.

Order. There are far too many private conversations going on in the Chamber. Will Members who are not wishing to listen or participate please either leave or keep their conversations low?

Thank you, Madam Deputy Speaker. As I was saying, I had planned to gild the lily of the arguments that I made in Committee, which were sadly rejected by the Government. Given the lateness of the hour and the amount of time left for this debate, it would probably be inappropriate to restate things. I am afraid that right hon. and hon. Members who want to see the arguments in detail will have to look at the Committee Hansard. I do not think that the arguments on either side have changed substantially. The Government have had a month to reflect on them, and I hope that we will get a different answer today. I look forward to listening to the Minister reply to the debate.

I thank the hon. Members for Rochdale (Paul Rowen) and for Reigate (Mr. Blunt) for their constructive attitude. Let me explain where we are.

The Government are disappointed, as am I, that we have not been able to persuade the other place of the need for the clause. We think that the UK’s security requires some amendments to the common travel area. [Interruption.] This is my statement, which I have had typed up.

I believe that the Committee Hansard shows that the argument was won by the Government, although it is clear that the hon. Member for Reigate does not think so. As I argued there, and as my noble Friend Lord West has argued in the other place, we think that this issue is important. For example, just one week of activity at a limited number of UK ports revealed 158 immigration offences via the CTA.

Section 14 of the Police and Justice Act 2006 would require carriers to provide information on travellers who were not holding a UK or Irish passport. Does he agree that if that were implemented, it would be a much simpler way of securing our borders?

We believe that that is part of the answer. Implicit in the hon. Gentleman’s suggestion is an acceptance that there is an issue that needs to be addressed, and I am grateful to him for that. There is no miracle cure to the problem. We believe that the limited and proportionate measure that we put forward would make a difference, but that is for the future. The fact is that we have to face some hard and immediate truths.

Travellers from Northern Ireland are UK citizens, but what the measure that the Minister describes as “limited and proportionate” would mean that all of them would be treated as non-UK citizens, even when they travel within the UK. Leaving aside the practical difficulties, does he accept that there is a real political difficulty with that? If the clause were to go through, a large section of people who regard themselves as UK citizens would be treated as though they lived outside the UK.

I do not accept that. That argument shows the misunderstanding of the proposal. If the hon. Gentleman bears with me, I think that he will find that the answer gives him some satisfaction.

I have to face some hard immediate facts. The provisions of part 1, on which we have broad consensus, enable the formal establishment of a properly joined up border force, bringing together immigration and customs officers at the frontier. I believe that we need to get on with that, to complete the staff transfers and to draw out the real benefits of joint working. It is also fair to say that the Government have listened and compromised on the Bill, which started in the other place, as we have taken it forward. I have made significant changes on the nationality issues in the other place. I have listened to the concerns on the transitional measures, and I think that what I have proposed is the fair way forward. We have also reached agreement on judicial review.

However, there can be no compromise on the option of the common travel area. We either make this necessary change now, or we do not. I have therefore decided to accept the Opposition amendments to clause 50 this evening. We are committed to the policy and we will examine the options going forward. It is clear to me from the discussions that we have had that the clause is not acceptable across the Floor of the House, and is not acceptable to the other place. Therefore, I intend to support the Opposition amendments.

I am grateful to the Minister for that agreement. The common travel area has existed since 1922. It was enshrined in law in the Immigration Act 1971, and it recognises, as the hon. Member for Thurrock (Andrew Mackinlay) said earlier, the strong bond and link between the Republic of Ireland and the United Kingdom of Great Britain and Northern Ireland. So I am grateful to the Minister for accepting our amendment.

Amendment 14 agreed to.

Clause 54

Transfer of immigration or nationality judicial review applications

Amendment made: 41, in page 45, line 18, leave out clause 54.—(Mr. Woolas.)

Clause 55

Trafficking people for exploitation

On a point of order, Madam Deputy Speaker. Amendment 14 tabled by the Liberal Democrats, which was debated in Committee and signed by us and has just been agreed to, requires amendments 46 and 47 in order for the legislation to hang together.

I beg to move amendment 26, page 46, line 9, at end insert—

‘(1A) In section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (trafficking people for exploitation), after section 4(5) add—

“(5A) The Secretary of State shall publish a code of conduct to guide Entry Clearance Officers in their treatment of applications which they suspect involve human trafficking.”’.

With this it will be convenient to discuss the following: amendment 24, in clause 56, page 46, line 39, at end insert—

‘(5A) The Secretary of State shall collect and publish statistics regarding detention of children during the relevant period, on a regular basis.’.

Amendment 28, page 46, line 39, at end insert—

‘(5A) The Secretary of State has a duty to ensure that children held in detention centres—

(a) have access to counselling;

(b) have access to English language classes; and

(c) receive education classes that are equivalent to what they would be entitled to if placed in state school education.’.

Amendment 29, page 46, line 39, at end insert—

‘(5A) The Secretary of State shall collect and publish monthly statistics regarding the detention of children, including figures relating to, the number of children detained, the average length of period in detention, and the number of children with the same family in detention, their ages, nationalities and where they are detained.’.

Amendment 39, page 46, line 39, at end insert—

‘(5A) The Director of Border Revenue and the Secretary of State have a duty, in the need to safeguard the welfare of children, to ensure that dawn raids are not used to—

(a) remove and/or deport families with children, who are failed asylum seekers or illegal immigrants; or

(b) remove and/or deport children of failed asylum seekers or illegal immigrants.’.

I am glad that we have a brief time to discuss an extremely important part of the Bill and the extremely important issue of human trafficking, and the action that we wish the Government to take to stop this particularly vile trade. I wish to speak in particular to amendment 26, in which we seek to establish that the Secretary of State should have a code of conduct to guide entry clearance officers in their treatment of applications for entry which they suspect involve human trafficking.

We have discussed some issues in the past couple of hours that deeply divide the two sides of the House. I know that human trafficking is not one of those. The Minister will feel as strongly as I do that we should end the practice of human trafficking. One of the things that has, sadly, led to Britain becoming one of the destination countries for human traffickers is the widespread recognition that Britain’s borders are not secure enough. That, along with this country’s prosperity and the relative ease of illegal working here, is why Britain has become a destination for human traffickers.

We Conservative Members believe that it is impossible to tackle the overall issue of crime in the UK effectively without addressing the problems at our borders. We know that human traffickers target Britain, and we know that there are various particularly pernicious forms of human trafficking. It is often part of the sex industry, and there has been a staggering and deeply depressing increase in the percentage of prostitutes in this country who are young women trafficked from abroad, either from eastern European countries just beyond the edge of the European Union, or from Africa.

There is a real problem, as was illustrated just today, when we discovered the details of a Home Office report that included research carried out as long ago as 2006, although for some reason it has not come to light until today. I always seek to be balanced, so I will give the Minister one quote from the Daily Express and one from The Guardian. The Daily Express says:

“Criminals are convinced that Britain’s border controls are ‘soft’ and that police are tolerant of the vice trade, according to a Home Office report”.

The Guardian, perhaps even more seriously, says:

“Corruption and bribery were mentioned by a range of interviewees involved in smuggling and trafficking as a means of smoothing the passage into the UK”.

I know that the Minister will be as concerned—indeed, disturbed—as I am at the thought that there are serious, organised, international criminals who believe that bribery and corruption can be used to smooth the way into the UK. [Interruption.] The Minister seeks to intervene from a sedentary position. As I say, there is, I think, nothing much that divides us on the need to combat human trafficking more effectively. Our amendment is one way of taking a step forward on that. He knows that I would urge on him much other activity in that sphere, but I should like to give him a chance to say something on this important issue, so I shall end my remarks.

I, too, would like to hear what the Minister has to say, so I shall be brief in supporting the hon. Member for Ashford (Damian Green). The amendments are sensible. I think that there is unity across the House on the need to deal with the traffickers of human beings. I will seek to catch your eye on Third Reading, Madam Deputy Speaker, but shall say now that it is important that we have a code of conduct that will better inform entry clearance officers of their responsibilities in dealing with those who have been trafficked. There are other amendments in the group that deal with the welfare of children; they, too, are sensible, and I hope that the Minister will accept them.

I will be brief. I wish to speak to amendment 29, which stands in my name and the names of my hon. Friends. On the issue of the collection of data on children held in custody and in detention centres, in Committee, the Minister undertook to update us on Report with further information with regard to publication and plans. I would be grateful if he dealt with those points, either now or on Third Reading.

Time is limited. I undertake to answer the specific questions on Third Reading, if I catch your eye then, Madam Deputy Speaker. With regard to the research that has been published, let me be clear that it is based on interviews with people who have been caught, convicted and imprisoned. It is therefore evidence that the system was working, whatever the response from the interviewees in that research, which is, in any event, now out of date.

Very briefly, the spirit of amendment 26 is well intentioned. We agree with it, but we have problems with the wording. On amendment 24 dealing with statistics on children in detention, I hope to explain the progress that has been made in regard to this important area—

Debate interrupted (Programme Order, 2 June).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the amendment be made.

Amendment 26 negatived.

The Deputy Speaker then put forthwith the Questions necessary for the disposal of business to be concluded at that time (Standing Order No. 83E).

Clause 58

Extent

Amendment made: 42, page 47, line 22, leave out ‘54’ and insert

‘[Transfer of certain immigration judicial review applications]’.—(Mr. Woolas.)

Clause 59

Amendments made: 46, page 47, line 31, leave out ‘50 (Common Travel Area),’.

Amendment 43, page 47, line 37, leave out ‘54 (transfer of immigration or nationality judicial review applications)’ and insert

‘[Transfer of certain immigration judicial review applications] (transfer of certain immigration judicial review applications)’.

Amendment 17, page 48, line 11, at end insert—

‘(8A) An order commencing sections 39 to 41 (acquisition of British citizenship by naturalisation) must include provision that the amendments made by those sections do not have effect in relation to an application for naturalisation as a British citizen if—

(a) the date of the application is before the date on which those sections come into force in accordance with the order (“the date of commencement”), or

(b) the date of the application is before the end of the period of 24 months beginning with the date of commencement and the application is made by a person who falls within subsection (8B) or (8C).

(8B) A person falls within this subsection if on the date of commencement the person has indefinite leave to remain in the United Kingdom.

(8C) A person falls within this subsection if the person is given indefinite leave to remain in the United Kingdom on an application—

(a) the date of which is before the date of commencement, and

(b) which is decided after the date of commencement.

(8D) The reference in subsection (8A) to an order commencing sections 39 to 41 does not include an order commencing those sections for the purpose only of enabling regulations to be made under the British Nationality Act 1981 (c. 61).’.

Amendment 44, page 48, line 24, at end insert—

‘( ) No order may be made commencing section [Transfer of certain immigration judicial review applications] (transfer of certain immigration judicial review applications) unless the functions of the Asylum and Immigration Tribunal in relation to appeals under Part 5 of the Nationality, Immigration and Asylum Act 2002 (c. 41) have been transferred under section 30(1) of the Tribunals, Courts and Enforcement Act 2007 (c. 15).’.—(Mr. Woolas.)

Schedule

Repeals

Amendments made: 16, in page 49, leave out lines 6 and 7.

Amendment 47, page 50, leave out lines 4 to 6.

Amendment 45, page 50, leave out lines 11 to 15.—(Mr. Woolas.)

Third Reading.

I beg to move, That the Bill be now read the Third time.

I would like to put on record my thanks to Members of the House for the work that they have put into scrutinising the Bill. I commend the many valuable contributions from Members on both sides of the House. Perhaps I may draw a veil over the less constructive points. The Committee on the Bill was particularly helpful, and its proceedings were conducted in exactly the right atmosphere and manner in which a Bill should be scrutinised. I thank the Chairs of the Committee and the officials who have been involved in the different parts of the Bill, the Public Bill officials, Hansard, and the Whips, who ensured that the Bill had smooth passage through Committee and on the Floor of the House.

The Bill is crucial to the future development of the UK Border Agency. I hope that its speedy enactment, subject to the agreement of the other place to our amendments, will enable the transfer of 4,500 customs officers from HM Revenue and Customs to UKBA. We want that to happen as soon as possible. That will mark a milestone in the reform of the way in which we protect our borders. The reform of the immigration system will be given yet more impetus, as I indicated earlier in answer to my right hon. Friend the Member for Birkenhead (Mr. Field), by the publication of proposals for consultation on a points-based system and by the publication of the draft immigration simplification Bill, which I know we are all eagerly awaiting, in the autumn.

The Bill is already making important changes to our nationality and immigration laws, and I have been grateful for the opportunities afforded to the Government, in the Chamber and the other place, fully to examine and explain their proposals and the intentions behind them. Principal among them are the proposals on earned citizenship, important debates which concern the affect of our laws on people’s lives, aspirations and entitlements. Such debates enable us, as I have done today, to set out a new path to citizenship that makes a reality of the pledge to ensure that those who wish to become British citizens earn that right, to enable them better to get on in life and to do so in the context of the recognition by the indigenous population that those immigrants are here legally and with a positive purpose. I believe that we have achieved an important consensus on that issue.

Concerns have been expressed by Members in this House and the other place about the transitional arrangements, and I hope that they have been satisfied this evening. Our intention is and always has been to make fair and reasonable transitional arrangements, and, in response to the debates in this House and the other place, I have made the changes that we discussed earlier today. I have therefore made a commitment to commence earned citizenship no earlier than July 2011, and placed in the Bill clear assurances, first, that people who apply for British citizenship before the earned citizenship provisions are commenced will be treated under the current law; and, secondly, that the transitional arrangements on the commencement order must allow for citizenship applications that are made within two years of commencement by those who have indefinite leave to remain on the date of commencement, or by those who are granted ILR following an application pre-dating commencement, to be considered under the current law.

I am hugely pleased with the success of the measures in parts 1 and 2. They enable change that the public want; stronger borders, with a single, integrated customs and immigration check now possible; and clear rules for those who want to settle in the United Kingdom. There have also been some important small changes in parts 3 and 4: the studies clause, which strengthens the points-based system by tying those on student visas more firmly to their sponsoring institution—a measure that our constituents strongly support—as well as the clause that will speed up the fingerprinting of foreign criminals and facilitate their deportation; and the extension of the power of detention at port in certain circumstances by immigration officers in Scotland, to help support the police in fighting crime.

I also welcome the duty to safeguard and protect the welfare of children, which imposes that important principle at the centre of the UK Border Agency’s work. On a further issue of consensus, agreement was reached in the other place on the new clause on trafficking, which amends the definition to include those who traffic children. A specific point was made a moment ago about the statistics, and we are on course to be able to include them in the August bulletin. It was argued that Members wanted not just the snapshot of the numbers that we currently provide, but the average—a median and a mean, if I remember my schoolboy statistics correctly—in order to provide a better picture, and the independent Home Office statisticians are on course to be able to provide what the House needs.

I do not wish to reopen the debate about the common travel area, because I made my proposal a moment ago. I believe that there is an unfortunate loophole in our border security and it is obviously incumbent on the Government to find a means of closing it that is acceptable to Parliament. That is what we will seek to do.

One of the most important changes in the Bill is that to the judicial review process, and I hope that their lordships accept the proposals. I again pay tribute to the noble Lord Kingsland, who worked tirelessly on the issue and, indeed, on many other pieces of Home Office legislation in a constructive and positive manner. The clause restricts the transfer of judicial reviews to “fresh claims”. It is a strange description for that category of claims, because they are not in fact fresh—but I never really wanted to be a lawyer in any event. Lord Kingsland’s thinking was an important part of our underlying considerations in tabling the amendment.

In today’s debates, in Committee, and on Second Reading, the Bill has been criticised as being yet another piece of immigration legislation. The House should consider two important points in that regard. First, immigration law necessarily changes as a result of responding to changing circumstances—changes in global situations, in movements of people, and in the activities of those who are not well-intended towards our country. Many of the provisions in the Bill are in response to events.

Secondly, the laws that we pass in this place have a direct impact on many people’s lives. Even the announcement of an intended consultation on a piece of immigration law has a direct impact on people and causes changes in their behaviour, not just in this country but around the world. The substantial changes to immigration policy that have been introduced in the past two years represent the first concerted, serious attempt to put in place a managed migration policy in the United Kingdom. It is important that we do that in a way that does not have unintended consequences, not only in law but indirectly, in terms of people’s behaviour. One always finds such changes in behaviour as a result of proposed legislation. That is partly why I have been keen to try to build a consensus on the Bill, and I believe that we have done so, by and large. I am grateful to the House for that support.

The Bill is now in the right shape to send it back to the other place, where it started. It is therefore my pleasure to commend its Third Reading.

I echo the Minister’s thanks to all the officials who dealt with the Bill. That meant that technically its passage was smooth, even if in other ways it was less so; I also echo his remarks in that respect.

I think, most unfashionably, that in this case we can give about two and a half cheers for parliamentary procedure. It is pretty unfashionable to say that Parliament works and does its job, but it is unarguable that the Bill that has emerged at this stage is considerably better than the Bill that was originally introduced in another place. Significant improvements, both big and small, have been made to it in each House. To that extent, we can all feel reasonably satisfied with the work that has been done over the past couple of months.

The most recent and most dramatic example of that is the Minister’s retreat on the common travel area, but the way he explained that means that I wish to return to it in a moment. We should also pay tribute to him for retreating on the retrospection clauses on highly-skill migrants, and others, and their moves towards citizenship. That is a welcome improvement. On the changes to judicial referrals, he rightly and generously paid tribute to the work of Lord Kingsland, which, again, I echo. I am glad that the House has reached an appropriate compromise that protects the interests of those who may have genuine cause for concern about the legal procedure, while not clogging up the courts, to repeat the legal phrase that the Minister used earlier.

I am glad that the Minister was able to confirm that he will be able to produce proper, useful statistics on the number of children in detention. As he is aware, that was the subject of one of the key amendments that Conservative Members tabled in Committee. It was good of him to say that that was the appropriate and right thing to do, and I am glad that he has confirmed that on the Floor of the House. Overall, after those significant changes, we should offer thanks to the Minister for presiding over that range of retreats with grace and good humour. I am aware that being a Minister at the moment requires a sense of humour, and I am delighted that he has kept his throughout the proceedings and at all other times in the past few months.

I intervene at the risk of breaking this wonderful consensus between the two Front Benchers, which I have not witnessed very often between them. It is not quite mutual admiration, because the hon. Gentleman was not lavished with praise, although maybe he will be in the remainder of the debate. Does he share my concern about how the Minister dealt with his points about the report on the Home Office and human trafficking, and the allegations that were made? Does he agree that it is important that even though those allegations relate to 2006, they ought to be investigated seriously?

I very much agree with the right hon. Gentleman, and I was going to come to that later. We had a greatly truncated debate about trafficking, about which I share his concern. As he says, I have lavished the Minister with praise, but I now wish to express deep concern about some matters. Before I come to trafficking, I begin with the common travel area.

Although the Minister has withdrawn the Government’s original proposal and accepted an amendment to remove it, which is welcome, he used the word “necessary” to describe the Government’s proposed changes and said that he proposed to return to them later. That struck me as a clear signal that we are not out of the woods and that the common travel area is still under threat. It is therefore worth rehearsing some of the arguments that won the day in another place. I agree with my hon. Friend the Member for Reigate (Mr. Blunt) that they also won the day in Committee.

The Government’s proposals, which the Minister has just described as “necessary”, are offensive in principle to many of our fellow citizens. They are reckless with regard to the constitutional implications for Britain’s relations with its dependencies, and if they were ever implemented, which he said he still intended to do, they would prove ineffective. He knows that the practical application of them would be fatally undermined by the fact that the land border between Northern Ireland and the Irish Republic is simply not policed. That is for good, historic reasons that we all know, but it means that it is simply non-existent as a security barrier.

I accept the hon. Gentleman’s point about the argument not having been made. Given that 15.4 million people travel between the UK and the Republic of Ireland annually, my calculation is that if there were a 30-second passport reading, that would take up some 2,500 man days, or person days. Does he believe that that shows the whole process would be completely unworkable?

Certainly, at no stage has any Minister made the case that the process would not cause huge inconvenience to travellers on some routes. Almost before considering that practical stage, it is worth asking whether the security aspects that the Government pray in aid are themselves practical. I do not believe they are.

I do not wish to reopen the argument, but our proposals to amend the common travel area are based on our belief and strong advice that third-country nationals are using a route into the United Kingdom through the Republic of Ireland with criminal and malicious intent. Do the official Opposition accept that or not? If they do, do they have proposals as to how we should deal with it? Can we therefore have a discussion about potential amendments to how we police and secure our border?

I am not aware that the Government have produced convincing evidence about the loophole in our defences. I know that the Irish Republic has taken considerable steps to improve its border security in recent years and that the Minister approves of those measures. [Interruption.] We do not oppose the principle of e-Borders, as the Minister knows. He keeps repeating that canard—he knows it is not true, but he cannot resist repeating it. We object to the deep inadequacies in the implementation of e-Borders. He cannot have it both ways. If the Irish Republic is introducing a system that he supports and making its border effective, he cannot at the same time claim that there is a huge loophole, which threatens the security of this country, especially as he has made no proposals to change the status of the land border between the Republic and the UK in Northern Ireland.

Sometimes we have a more interesting debate after the votes than before them. Let me be clear: the Conservative Opposition rely on the Republic of Ireland’s border security measures to secure the United Kingdom. Those measures include electronic borders. The Conservative Opposition have substantial problems—I accept that they do not oppose the idea in principle—with our e-Borders, so their solution to the loophole is to rely on a foreign country’s system of border control, which they do not accept for the United Kingdom.

The Minister wilfully misunderstands. We do not completely rely on the Republic of Ireland. As the hon. Member for Rochdale (Paul Rowen) pointed out, the Government have passed legislation, which, if implemented, would significantly affect precisely the people they are trying to keep out. However, they have not implemented it.

It seems extraordinary that we are now hearing from the Government Benches about apparent threats to national security, when we maintained an open border with the Republic of Ireland throughout the troubles, when we faced serious terrorist threats. The Good Friday agreement, for which I pay due tribute to the Government, means that that threat has been removed, yet they now propose ending the common travel area. That is astonishing and absurd.

I agree. The Minister should stop digging, because his warnings of what not taking the steps that he wants would mean for the security of this country are becoming ever more apocalyptic. If he genuinely believes that, he should argue his case. He should take it back to the House of Lords. However, having lost a vote there, he has given up and caved in. That suggests he does not believe that the security threat is as big as he has just claimed.

The answer to the hon. Member for Eastleigh (Chris Huhne) is that the loophole has not occurred because of the Good Friday agreement. Smuggling drugs and other illegal objects through the Republic of Ireland is happening because of the stronger measures that we have established in UK ports. Hon. Members are more than welcome, if they wish, to have access to briefings from police and security forces to convince them of that. I have decided not to include a provision in the Bill because, despite the evidence of the 8,000 clandestine and illegal routes through the Republic of Ireland given in the other place, for other reasons—I do not impugn the hon. Gentleman’s motive—the Opposition decided to oppose it.

Order. I have allowed some leeway, but as hon. Members know, Third Reading is about the content of the Bill.

I am grateful for your guidance, Madam Deputy Speaker, although I am sure you will admit that your generosity and latitude was rewarded by some interesting exchanges. We have discovered a lot recently, and, in rapidly closing the out-of-order part of my speech, I simply say that, although the Minister mentions evidence, the only evidence that he has produced so far is a newspaper cutting. That is frankly not convincing.

I am a member of the all-party group on trafficking of women and children and we have called for the setting up of a commissioner in this country, so that we can have a proper assessment of human trafficking, and proper evidence can be provided before any decisions are made.

My hon. Friend, along with my hon. Friend the Member for Totnes (Mr. Steen) and many other Members on both sides of the House and in both Houses, do very good work on that group, and I am glad that some of the Bill’s measures will actually help in the fight against human trafficking. The Minister will be aware that we have been urging him to greater activity in this regard. We spent some time urging the Government to sign up to the convention against human trafficking, which they then did. They have now ratified it, and we can only hope that as a result of some of the measures in the Bill, this country will do better in combating trafficking than it has done in recent years.

In saying that, I am not seeking to make a partisan point, as I am conscious that any British Government would have had problems with the explosion in trafficking in the past few years. However, I hope the Minister will take on board what I and the right hon. Member for Leicester, East (Keith Vaz), the Chairman of the Home Affairs Committee, have said. There were stories in today’s newspapers about a three-year-old Home Office report that suggested that the traffickers regarded Britain as something of a soft touch and thought they could use bribery and corruption to ply their criminal trade in this country and to smuggle people into it. That is hugely disturbing. I very much hope that the Minister can give some reassurance to the House that that report is being acted on. Frankly, it should have been acted on some years ago, but if it has not been, can he give us some reassurance that he is acting on it now?

We welcome the improvements in the Bill—there have been four significant ones that will help. However, sitting back and looking at the Bill even in its improved state, I think it is clear that it is still a fairly incoherent mixture of measures, some of which will be mildly useful, some of which will be mildly damaging, but none of which will address the scale and size of the crisis in our immigration system over recent years.

As has been said, we have an immigration Bill almost every year. I calculate that there have been eight of them under this Government; the hon. Member for Eastleigh (Chris Huhne) always makes it nine.

The hon. Gentleman makes it 11; at some stage we must sit down and work out which he thinks are immigration Bills and which I do not think are. Either way, we have had at least enough, if not too much, such legislation, of which this Bill is the latest in a long line, that has not been matched by any significant increased effectiveness in the immigration system. Today, the Minister has heard Members from all parts of the House complaining about delays, routine incompetence and the unfairness caused by the administrative problems in the system, and he will be aware that unless and until the Government get to grips with those, the public confidence in the system will not be restored.

The other significant fact about the Bill is how small it is, especially when compared with the ambitions for it when it was first mooted. Last summer, the then Home Secretary published a huge draft Bill that was going to be all-encompassing and that would simplify and sharpen up the system. Over the subsequent months, that Bill melted. What was left was a small remnant of that Bill—a haphazard mix of a few ideas, some of which might help a little, others of which are fairly meaningless. Some were simply absurd, although I am glad to say that some of the more absurd have now disappeared.

However—this is almost the most serious charge—the Bill is also a missed opportunity. Part 1 deals with functions at the border. The failure to tackle the porousness of Britain’s border has resulted in the disastrous rise in organised immigration crime that this country faces. We cannot tackle crime generally in the UK effectively without addressing the problem of our porous borders. We on the Conservative Benches believe that our borders can be better policed, preventing significant amounts of illegal immigration, as well as cracking down on people trafficking and weapons and drugs smuggling, by setting up a national border police force.

The hon. Gentleman will have noted in The Times today that a second report has emerged, from the Cabinet Office, which looked at serious and organised crime. That report showed that 30,000 people were involved in criminal gangs and that the illegal economy had grown to some £40 billion. Therefore, the issue touches not just on illegal immigration, but on all the other areas of crime that he has mentioned.

I agree. Indeed, I was making the more general point that much more effective control of our borders is essential not just in itself, which it is, but as part of the general fight against serious and organised crime, which is increasingly international. Indeed, crime is being globalised as much as any other aspect of the world economy. One of the advantages that we ought to have as a country, given that we are a set of islands, is our border, but it is an advantage that we do not exploit enough. It is because our borders are so insecure that we are a destination country for people traffickers and some of the world’s most significant and unpleasant criminal gangs.

That is where I believe the Bill is a huge missed opportunity—part 1 is an aspect of that, but so are the citizenship proposals. Fascinatingly, we have heard little from the Home Office—indeed, there has been silence—about the extension of the points-based system to citizenship applications since the previous Home Secretary stood at the Dispatch Box and announced this big new idea, yet we have now had all stages of this Bill, through to Third Reading. What has happened to that proposal? We have gone through an entire Bill. The previous Home Secretary made radical proposals for changing the route to citizenship—changes that she appeared to let out of the bag to Parliament—yet the House of Commons and the House of Lords have discussed a citizenship Bill without any proposals from the Government about them.

That is significant. If those proposals are properly worked out—I assume that they had been, otherwise the then Home Secretary would not have stood at the Dispatch Box and revealed them—it seems implausible that the Government should be sitting on them. Let me warn the Minister now that if the Government produce those proposals over the summer, when Parliament is not sitting, Parliament will be right to be angry, particularly when you have made such a welcome point about announcements coming first to Parliament, Mr. Speaker. I hope that that extremely welcome rubric will apply over the summer, as well as during the day, as it were, and that when Ministers say they are about to announce something, that announcement should be made first to Parliament.

Either the Minister has until next Tuesday to announce those proposals or we will expect nothing to come out before October. [Interruption.] The Minister mentions the party conference. I would remind him that, for the moment, he is the Government. Therefore, he may want to make announcements at his party conference, but he still has at least a week left to give us some idea.

The ultimate verdict on the Bill must be one of severe disappointment. We have an annual immigration Bill from this Government—some are better than others, but none has faced up to the severity of the crisis in our immigration system.

Before my hon. Friend concludes his remarks, may I tell him that I am interested in the issue of when any announcement might be made? Is he suggesting that Parliament might have to be recalled to hear such an announcement?

I genuinely do not wish to be the first person to call for the recall of Parliament over the summer, particularly when we have not even gone into recess yet. I hope, however, that the Minister has heard my views on this interesting proposal that was dangled before Parliament and then withdrawn.

I am aware that others wish to speak, so I will end with the thought that, for the third time in three years, we have had the potential for a significant improvement of an immigration Bill to be put before the House but that, yet again, the Government have disappointed us.

I did not serve on the Committee for this Bill, although I did participate in the Second Reading debate. It is a pleasure to be called to speak now on Third Reading. I, too, would like to pay tribute to all those who served on the Committee. We should get an improved Bill out of it, and the fact that the Liberal Democrats and the official Opposition both accept that the Government have moved in some areas is a tribute to the fact that the Minister has been prepared to listen to the reasonable proposals from parties on both sides of the House. He is no doubt relieved to be out of Committee, as he will now be able to get back to the ministerial correspondence that awaits him. Until yesterday, the Government were one Minister down, but the Home Secretary told the Select Committee during his session with us today that another Minister had temporarily been appointed to the Home Office to deal with the backlog in correspondence.

I am grateful to my right hon. Friend for his support during this period. For the record, may I clarify that the backlog in correspondence to which he refers is certainly not my correspondence? I believe that I am the Minister most close to target in that regard.

The right hon. Gentleman has certainly told us a very interesting piece of information. Could he enlighten the House as to which Minister has been appointed?

I raised with the Home Secretary a matter that I had raised with his predecessor. Of course the Minister with responsibility for identity is entitled to her maternity leave, and we wish her well in her motherly duties. However, we felt that this was a difficult period for the Home Office, and that it was important that her job should be filled for this limited time—we are all sure that she will come back at the end of this period. We were told by the Home Secretary that it was the “substantial” figure of Lord Brett—[Hon. Members: Who?] I am not sure whether the term “substantial” means that he is very large, or that his curriculum vitae is very large—

Order. The right hon. Gentleman’s speech was absolutely on track, and he should not be diverted from the path of virtue by the intervention—however well-meaning—of the hon. Member for West Chelmsford (Mr. Burns).

I will certainly accept your ruling, Mr. Speaker. Nevertheless, we are glad that this very important Member of the other place has been appointed.

Yes, this is another Bill, and I hope that the Government will now have the opportunity to draw a line under the plethora of immigration Bills that we have seen over the past 12 years. The hon. Member for Ashford (Damian Green) puts the number of such Bills at nine; the hon. Member for Eastleigh (Chris Huhne) thinks that it is 11. I think that it is 10. Perhaps the smokescreen that has been created by all these Third Reading debates on immigration Bills means that the three of us need to sit down, possibly with the Minister, and work out exactly how many Acts of Parliament on immigration have gone through.

This Bill has a number of important features, but I would like to draw attention to a key point, which I hope is reflected in the two reports that the Select Committee will publish next week. They are the long-awaited report on the points-based system, which has taken us a year to complete, and the report into bogus colleges, which has taken only about three weeks because we had clear evidence in front of us. The key point is that further legislation might not be the answer. What we actually need is administrative control of the Border Agency. This is point that we put to Lin Homer when she came before us last week and to the Home Secretary today.

One of my concerns about the Bill, although I welcome the fact that it clarifies what the Government expect the chief inspector of the Border Agency to do, is that it puts too much responsibility on this individual, who also came before us to give evidence earlier today. The post was created by the Government following the abolition of four other posts, including the independent monitor, the race adviser and the audit committee. That, of course, followed on from the statement of a previous Home Secretary who had said that the Home Office, and particularly the immigration and nationality directorate, was “not fit for purpose”.

I thus worry about the clauses that place a greater responsibility on the chief inspector, who, as we tried to point out in our evidence session today, is actually the independent chief inspector of the UK Border Agency. The Minister himself wrote to our Committee as a result of our representations and said that from the time he wrote to us onwards he would always refer to the chief inspector of the UK Border Agency as “the independent chief inspector”, yet when we look at the Bill, we find that the word “independent” is missing.

It is important for the Minister to stick by the commitments he has made to Parliament through the Select Committee. He must ensure that this individual, Mr. Vine, is independent, is given the resources he needs to complete his job and is given appropriate direction. We were told today that his first report is going to be on the visa regime in Rome—a wonderful place and a great city, but one does not need visas to come from Rome to the UK. We would much rather that the independent chief inspector of the UK Border Agency were doing the job that he is expected to do and that Parliament has asked him to do, which is independently to inspect the UK Border Agency. I hope that the clauses that place new responsibilities on this inspector will enable him to do his work effectively.

On citizenship, which is an essential part of the Bill, the Select Committee produced an interim report—we could not conduct a final analysis of the draft Bill because so much of it was missing when it came before us—and we hope that the new arrangements for earned citizenship will be monitored very carefully indeed. I am not against people earning the right to come into this country. I came as a first generation immigrant.

What the Minister will probably find—he has a large diaspora especially from Bangladesh in his Oldham constituency—is that there is excitement within communities about gaining citizenship. We are not against provisions to give people certificates, as people feel very excited about becoming British citizens, but I worry that we are putting on people who try to acquire citizenship under the arrangements in the Bill a greater onus than we are on people born in this country who are already British citizens. After all, we expect those who come as immigrants and want to be British citizens to sit and take tests on the country’s institutions, whereas many citizens from this country do not know what those institutions are.

My right hon. Friend makes the very important point that the applicant for citizenship does not need convincing of its benefit or of the desirability of integrating and taking up opportunities. Does he agree with me that the value of the Bill is that it will help to show the indigenous population that that is also the case? Does not the fact that people can say that many ordinarily resident domestic British people could not pass the test rather prove the benefit of the immigrant to our country?

I accept that point, but I do not think that the public are desperately concerned about legal immigration and the acquisition of citizenship. What concerns them is illegal immigration, along with the fact that the Government do not have any control over the large number of people who come into this country legally. Some of my constituents tell me that it is easier to come into this country illegally than to do so legally because so many requirements are placed on people. I understand the Minister’s point—it is a good point—but I do not think that we need to prove it to the citizens of this country. They accept that someone who has been here for five years will need to jump over some more hurdles in order to become a British citizen, and those hurdles are contained in the Bill.

Some of the schemes in the Bill involve volunteering, and that has been discussed. The Select Committee felt that some of the tasks being set for those who wish to acquire citizenship should be monitored. I hope that the Minister will bear that in mind, along with all the other tests that he has proposed for those who wish to become citizens.