Skip to main content

Temporary Immigration Cap

Volume 520: debated on Monday 20 December 2010

(Urgent Question): To ask the Secretary of State for the Home Department if she will make a statement on Friday’s High Court decision on the temporary immigration cap.

In June, when the Government announced that we would consult on how to implement a permanent limit on economic migrants, we also said that we would impose an interim limit until the permanent one took effect. This was to avoid a surge of applications in anticipation of the permanent limit.

The interim limit was given effect through changes to the immigration rules that were laid before Parliament, and on which an oral statement was made. On Friday we received the judgment that the changes announced provide an insufficient legal basis for the operation of the interim limit. The judgment was based on a technical procedural point known as Pankina grounds. The Court decided that this meant that more detail about the manner in which the limit is set, including its level, should have been included in the immigration rule changes laid before Parliament.

I would like to make it clear that the judgment of the Court was concerned solely with the technicalities of how the interim limits were introduced. It was in no way critical of, or prejudicial to, the Government’s policy of applying a limit to economic migration to the United Kingdom, either permanently or on an interim basis. The policy objective of a limit in migration has not been called into question, and I am now considering what steps are required to reapply an interim limit consistent with the findings of the Court. Tomorrow I will be laying changes to the immigration rules that will set out the details that the Court required. This will enable us to reinstate the interim limits on a clear legal basis.

The House will be interested to know that tomorrow I will also be laying changes to the rules to close applications under the tier 1 general route from outside the United Kingdom immediately, as the original level specified on this tier has been reached. I can reassure the House that the policy of using these limits as part of our overall policy of reducing net migration is unchanged.

On 28 June the Home Secretary herself came to the House to announce, without consultation, an immediate and temporary cap on non-EU migration. Details of the cap were then posted on the Home Office website, but not presented to Parliament. On Friday the High Court ruled that the Home Secretary’s actions were, in fact, illegal. Lord Justice Sullivan said:

“There can be no doubt that she”—

the Home Secretary—

“was attempting to sidestep provisions for parliamentary scrutiny…and her attempt was for that reason unlawful.”

As a result, the Government’s much-heralded cap—deeply unpopular with business—does not today exist. As Lord Justice Sullivan said,

“no interim limits were lawfully published…by the secretary of state…there is not, and never has been, a limit on the number of applicants who may be admitted”.

In the light of this chaos, it is surprising that the Home Secretary has not chosen to come to the House to answer for her actions, so let me ask the Minister for Immigration two sets of questions.

First, on the consequences of the error, can the Minister tell the House what the status is of those who applied under the illegal cap but were rejected? Will their applications now be granted retrospectively? Can the Minister tell the House how many more migrants he expects to enter the UK because of the failure to implement the cap? In the light of that, is it still the Government’s target to cut net migration to the tens of thousands by 2015, as the Prime Minister pledged before the election, or is this mistake one reason why the Home Secretary is trying to water the target down to just an “aim”?

Secondly, on how we got into this mess in the first place, did the Minister and the Home Secretary ask for and receive legal advice before the summer about the legality of the temporary cap and the rushed way in which they were introducing it? Is it correct that he and the Home Secretary were warned by officials and lawyers that there was a risk of legal challenge if Parliament was bypassed in that way? If he and the Home Secretary did disregard legal advice, did they have the support of senior Home Office officials in so doing? Finally, will the Minister now agree to lay before Parliament all the legal advice on which the decision to proceed was based, to dispel the impression that he and the Home Secretary have acted in a reckless and chaotic manner, and to show that she has nothing to hide?

There were, I think, one or two substantive questions in the midst of that bluster. On the right hon. Gentleman’s first point, about why the Home Secretary is not here, it seems perfectly reasonable that if a question is asked about immigration, the Immigration Minister should answer it. He will also be aware that there is a serious counter-terror operation going on today. I would suggest that he and other Opposition Front Benchers who are attempting to bluster their way through this should recognise that fact.

The right hon. Gentleman asked a substantive question about the status of those who applied, but whose applications were not granted. The answer is that, as he is aware, the judgment was handed down on Friday; however, as he does not seem to be aware, the written judgment will not be available until January. Until the Home Office receives that written judgment, it is obviously impossible for us to decide whether to appeal against Friday’s judgment. All the questions that he asked about that are, therefore, simply inoperative until we see the written judgment. I am happy to confirm that, as the Home Secretary has said, it is still our target to bring immigration down from its uncontrolled, unsustainable level under the previous Government. As for the idea of publishing all legal advice given to Ministers, the right hon. Gentleman will be aware that this is a not a practice that was ever followed by the Government of whom he was a member. [Interruption.]

In response to the right hon. Gentleman’s sedentary heckling, I am happy to assure him that the announcement that the Home Secretary made on 28 June was changed as a result of the Pankina judgment, but clearly all legal judgments are open to interpretation. What I will set out in a written statement tomorrow will absolutely clear up the legal issues and address the narrow technical points made by the judge, and will mean that the interim limits can proceed on a completely legal basis. I hope that the House is reassured by that.

What is very clear is that the policy is not being challenged. Has the Minister had any discussions with other Departments, such as the Cabinet Office, about what lessons can be learned about how the process has to be followed, and what consultation needs to be carried out?

That is a perfectly valid question. We are in constant discussions with the Cabinet Office. There are, as the hon. Gentleman is aware, many court cases involving immigration issues. The lesson that I draw is that more and more should be put in the immigration rules and not simply in the guidance notes. We have already started to adopt that as a policy, and will do so in the future.

May I assure the Immigration Minister that, whatever the courts decide, there is huge support in the country, including in Labour constituencies, for the policy that the coalition Government are pursuing? Of course, if he were able to bring those measures within the law that would be an advantage, but voters want to see the numbers coming down.

I am grateful to the right hon. Gentleman for that question. He shows a wisdom on this issue that is not available to the shadow Home Secretary, and he is right about what the public are asking—in Conservative, Liberal Democrat and Labour constituencies—about our policy of introducing a limit. The shadow Home Secretary has said:

“as many of us found in the election, our arguments on immigration were not good enough”,

and I have to say that they are still not good enough.

How does the Minister think the voters of Oldham East and Saddleworth, which borders my constituency, will react when they hear that the shadow Home Secretary opposes limiting economic migration?

I imagine that the voters of Oldham East and Saddleworth—who have great knowledge of immigration, owing to the unfortunate activities of my predecessor in this job—will take the view that the Labour party is, as ever, attempting to mislead them completely on immigration, and that that is why it should not be trusted.

Can the Minister please answer the question that my right hon. Friend the shadow Secretary of State asked him earlier? What is the status of those who applied under the illegal cap and were rejected, and will their applications now be granted? I draw to his attention the example of the international scientist who was unable to come to this country to take part in a cancer research project.

I am sorry that the hon. Lady did not listen to the answer that I gave the shadow Home Secretary, but I am quite happy to repeat it. The judgment was given on Friday but we do not have the written judgment yet, and we will not get it until January. It is clearly absurd to ask us to decide what to do about individual applications in advance of deciding whether to appeal against the judgment, and we cannot do that until we have the judgment in writing.

Does the Minister agree that it is a bit rich for the shadow Home Secretary to talk about chaos, given the parlous state of the immigration system that the new Government inherited?

My hon. Friend makes a perfectly good and valid point. The reason why we needed the interim limit was that we inherited an immigration system that was in complete chaos. We said at the election that we were going to introduce a permanent limit that would come into force next April. Between that point and next April there would have been an unimaginably large surge in applications if we had not imposed an interim limit. It is a perfectly sensible policy, and we will take steps tomorrow to ensure that it meets the Court’s requirements so that it can continue to do the essential job of bringing immigration numbers back down to a level with which this country can feel comfortable.

The Minister will know that, in paragraph 110 of the Home Affairs Select Committee’s report on the immigration cap, we warned that this might happen. It is not just this Government but successive Governments who have legislated on immigration without giving Parliament the opportunity to scrutinise what was happening. Can he give the House an assurance that the consultation that he is now undertaking on students and on the permanent cap will not be affected in any way by the judgment? Clearly, if there are lessons to be learned from the judgment, when he gets it, it will be important to extend that consultation period.

I absolutely can give the right hon. Gentleman that guarantee. I was grateful for the Select Committee’s report; as ever, it was extremely thoughtful and useful. The judgment has no effect at all on the permanent limit, and the lessons will certainly be learned. As he will have seen, our consultation on the permanent cap was a genuine consultation, and the policy that we announced at the end of it was welcomed by many business groups, including the CBI and the British Chambers of Commerce, that had expressed worries about it in advance. That shows that this Government’s consultations are genuine, that we listen to people and to Parliament, and that we change policies in sensible ways after those consultations.

For the benefit of my constituents, will the Minister make clear beyond any shadow of doubt that the ruling, which is simply about process, will not deter the Government from their aim of reducing net migration from hundreds of thousands to tens of thousands?

I am happy to give my hon. Friend that complete assurance. As I said, the ruling is technical. We want to obey it as fast as possible, which is why we will change the rules tomorrow. I think that the only people in the House who do not want a reduction in immigration and a sustainable immigration system are those on the Opposition Front Bench.

Can the Minister confirm that this is not the first occasion on which Ministers have had difficulties with the courts? Can he also confirm that Ministers in his Department—he and the Home Secretary—received clear and unambiguous legal advice from their officials before they introduced this temporary measure?

Ministers in all Governments receive clear legal advice before any measure is introduced. The hon. Gentleman has been around for long enough to know that all Home Office Ministers have had issues with the courts. Indeed, that was happening even before he and I entered the House. I should love to stand here and say that it will never happen again, but I have been around for too long to say that.

Does the Minister agree with the shadow Home Secretary that Labour’s arguments on immigration during the general election campaign were not good enough?

I do agree with the shadow Home Secretary on that point. He has said many interesting things about immigration—facing both sides of the issue, as he frequently does. However, I think that the country has decided. People want immigration limits, they want immigration brought down, and they elected this Government to do precisely that.

As the Minister appears to be under some pressure from employers in the private sector and the academic and research institutions with regard to the operation of the cap, is it such a good idea to reimpose a temporary cap tomorrow, rather than letting the consultation run its course and then coming up with a more thoughtful answer early next year?

I think that the hon. Gentleman is, perhaps understandably, confused about the nature of the consultation. The consultation was on the permanent limit. That consultation is now over, and my right hon. Friend the Home Secretary made a statement a few weeks ago which was, indeed, welcomed by business groups. We have laid to rest the legitimate concerns that business groups had about the operation of the permanent cap, which will now proceed—as was always intended—from April.

The “Listening to Wellingborough and Rushden” survey has shown that for the last two years immigration has been the No. 1 issue. My constituents would congratulate the coalition Government on what has been their most popular measure, and would urge the Minister to continue the policy.

I am interested to hear what my hon. Friend’s constituents say. They are representative of many people around the country in wanting this issue to be gripped, after 10 years of chaos. I am happy to assure my hon. Friend that that is precisely what we are doing, and precisely what we will continue to do.

Unless I misheard him, which is perfectly possible, the Minister said that tier 1 was being closed with immediate effect because the cap had been reached. Does that include the two-year post-study visa? Will it too be closed immediately?

No. What is being closed is the tier 1 general visa for people from outside the United Kingdom. That was part of the interim cap, and that is what will be closed tomorrow. As the hon. Lady knows, from April we will completely recast tier 1 to make it a tier for exceptional people such as entrepreneurs and investors—the brightest and best people, whom the country needs and from whom we continue to benefit.

Would my hon. Friend care to comment on the immigration controls that he inherited from the last Government? Does he know that, according to the shadow Home Secretary, Labour “actually addressed” immigration—that, according to him,

“We’d put in place controls on immigration”?

Order. As he has helpfully reminded the House, the Minister is very experienced, and I know that he will want to relate his answer to the policy of the Government rather than that of the Opposition.

I shall be happy to do so, Mr. Speaker. The Government’s policy is to operate an immigration cap, and to operate an interim cap on the way to a permanent cap as part of a much wider set of measures that will bring immigration down to sustainable levels. The only thing that I can say about the previous Government’s policies is that immigration was running at totally unsustainable levels, causing social tension and pressures throughout the country. I am surprised that the shadow Home Secretary did not take the opportunity to apologise for that.

Did the Minister consult the Attorney-General? Given that he has said he is going to reimpose the cap, can he now tell us what the status is of those who have applied during the period?

This is the third time I have been asked that question, and I will give the same answer for the third time. Until we get the details of the judgment we do not even know whether we will appeal against it, so until then it is impossible to discuss sensibly the status of those who applied and were turned down between July and now. [Interruption.] As I have said, Labour Members can keep asking that question, but they will keep getting the same, truthful, answer.