That the Bill be read a second time.
My Lords, the Government have talked regularly about the biggest shake-up of our border control and immigration system for a generation. The familiarity of the description should not disguise its truth. The Government are making fundamental changes throughout the system—to key policies, to organisations and to the information and technological support that underpins it. The points-based system, e-Borders and the introduction of ID cards for foreign nationals are just some of the headline changes.
We have recognised that we must, as an integral part of these changes, reform the legal framework that underpins the UK Border Agency’s work. Last July, we started that process by publishing for scrutiny a draft partial Bill, which will replace all the current layers of primary immigration law with a single new Act. We intend to publish that Bill—a completed and revised draft immigration simplification Bill—before the end of this parliamentary Session. We remain committed to that programme of legal reform. We want to ensure that we engage fully with our stakeholders and produce as comprehensive and polished a new Bill as possible.
Meanwhile, the Borders, Citizenship and Immigration Bill will make a number of priority changes to the law. The Bill makes changes necessary to border functions and on the journey to citizenship. The Government believe that the security of this country’s borders is best served by a UK Border Agency that can give both customs and immigration powers to its front-line staff. The UK Border Agency, like the Home Office of which it is part, has an overriding objective, which is to protect the public. The agency works on a daily basis to secure our border and to control travel and migration for the benefit of our country.
As a result of this Government’s creation of the UK Border Agency in April 2008, there have already been real successes: the prevention of more than 21,000 individual clandestine attempts to cross the channel illegally; the screening, using the e-Borders system, of more than 75 million passengers travelling to and from the UK, which has led to more than 2,700 arrests, including of murderers, drug dealers and sex offenders; the removal of 5,000 foreign criminals in 2008, exceeding the record in 2007 of 4,200; and the issuing of more than 1,000 fines, worth over £10.5 million, against employers who knowingly hire illegal workers.
Significantly, many people—including the noble Baroness, Lady O’Cathain, who mentioned this in Questions on Monday 27 October last year—have noted that the UK Border Agency’s staff provide not only security but a professional, welcoming and now uniformed presence across the UK’s ports. Indeed, a new uniform is coming in from April. I had it modelled for me this morning, prior to London Fashion Week in about 10 days’ time.
Many of the proposals in this Bill, which I look forward to discussing with the House, stem from the Prime Minister’s announcement in July 2007 of the creation of the new agency. They build on the recommendations in the Cabinet Secretary’s report Security in a Global Hub, which looked at this further.
The measures in Part 1 of the Bill will address the report’s clear recommendation for the implementation of a unified passport and customs checkpoint. They will allow the formal transfer of customs functions and staff integrating customs frontier work. There has been debate—I do not doubt that it will continue—on whether this goes far enough and on whether the police should form an integral part of a much bigger unified border police force. This proposal has superficial attractions but, when we looked at it in detail, as in government we must, it is not so attractive. There are some very real operational downsides, not least in managing the potential dislocation from local policing that might result from the creation of a new national entity. Moreover, I am sure that now is not the time to contemplate the costs and risks involved in and the organisational upheaval entailed by such a fundamental further change to the way in which we control our border.
Of course, let us not forget that the police are already very close partners of the UK Border Agency, and this seamless co-ordination works well. In addition, the UK Border Agency has a new Memorandum of Understanding with ACPO, a police chief constable has joined its board and ACPO is considering whether there might be further options for the active enhancement of existing collaborative arrangements.
The Bill makes the functional and management changes necessary for customs and immigration to work together at the border. It will allow us to complete a process which is already under way and proving its worth. From April until the end of December 2008, our officers seized in excess of 800 million cigarettes, representing a potential loss of £150 million in tax revenue. They seized £260 million-worth of illegal drugs and have taken more than 5,000 dangerous weapons off the streets.
The Bill will allow the formal transfer of up to 4,500 officers, currently with Her Majesty’s Revenue and Customs, to the border force, augmenting that force with officers trained and designated with the necessary powers to enable them to perform immigration and customs functions at a primary checkpoint. This integrated approach to combating illegal immigration and the smuggling of drugs and weapons will help to ensure the security of those who travel to and from the United Kingdom, and protect the tax base and thereby the economy. The provisions in Part 1 allow us to complete the process of integration and further enhance our operations.
I move on to the citizenship part of the Bill. This Government believe that migration brings benefits to our nation but we understand that the British public rightly demand that we have robust systems in place to control those coming here. We will ensure that those who want to stay earn the right to do so, learn to speak English and play by the rules. Those who do not do so will not be allowed to become citizens.
The provisions in the Bill on citizenship follow the Green Paper, The Path to Citizenship: Next Steps in Reforming the Immigration System, published last February. Our migration policy must strike the correct balance between the economic benefits that inward migration undoubtedly brings and the impact that it has on those already here. Our proposals in the Bill on earned citizenship are part of making that balance work. We want to integrate migrant workers into the country in a way that benefits both the migrants and the communities that they join.
The public have responded very positively to our initiatives to encourage newcomers to complete the journey to citizenship. We want to encourage those with the right values to become citizens. With rights come responsibilities, and those responsibilities must first be demonstrated, ensuring that the benefits of British citizenship are earned. This is at the heart of the Government’s firm-but-fair system.
I note the contribution that my noble and learned friend Lord Goldsmith has made to the wider debate on citizenship. I see that he is in his place today and I look forward to his remarks. His report was wide-ranging, informing a significant and wider debate of what it should mean to be a citizen of this country and going beyond the more specific question of how newcomers should acquire British citizenship. I hope he will agree that the approach of earned citizenship which we have developed, and which this Bill supports, goes with the grain of his thinking. The wider debate will of course continue and I hope that he and the House will accept the Bill as the Home Office’s initial contribution to that debate.
I now turn in more detail to the structure and contents of the Bill. Part 1 deals with border functions and will enable the concurrent exercise of certain functions of Her Majesty’s Revenue and Customs by the Secretary of State, her officials and a newly created post, the Director of Border Revenue. General customs functions—for example, the prevention of drug smuggling—will be vested directly in the Secretary of State. The border revenue functions of the agency will be vested in the Director of Border Revenue. Such functions will include the prevention of revenue smuggling and the collection of duties and taxes from passengers and on international postal packets.
Officials at the border will all be UK Border Agency staff. We intend to ensure that there is a clear, single management line by allowing the chief executive of the UK Border Agency and the Director of Border Revenue to be the same individual. We are proposing a strict confidentiality regime in relation to personal customs information gathered and retained by the UK Border Agency. A person who unlawfully discloses such information may be subject to criminal prosecution. This reflects the protections afforded under the Commissioners for Revenue and Customs Act 2005.
Much of the provision in Part 1 is technical—consequential to the mechanics of the conferral of customs functions to the UK Border Agency. HM Revenue and Customs will remain in the lead on internal collection issues and on policy for maintaining the overall customs regime. The UK Border Agency will take responsibility for matters at the border.
Part 2 makes necessary changes to nationality law to allow the introduction of earned citizenship. The Bill sets out requirements that must be met for naturalisation as a British citizen. Migrants will, as now, need to demonstrate sufficient knowledge of the English language and of life in the United Kingdom. There will be minimum time periods during which those who are here as economic migrants will need to continue working and those here as family members will need to remain in a subsisting relationship. Those who have demonstrated active citizenship—engagement in the wider community—will be able to speed up their path to citizenship. This is complex, and a design group involving contributions from across the third sector has been established to agree how this will operate in practice.
We expect those applying for citizenship to have obeyed the law and played by the rules. Criminality will be a consideration through the whole journey to earned citizenship. Migrants will, as now, need to be of good character and we will normally refuse those who have unspent convictions. We will refuse applications from those who persistently and repeatedly commit minor offences. We will normally refuse applications from those given custodial sentences and seek to deport those convicted of serious offences.
Part 2 also makes clear the esteem in which this country holds members of the Armed Forces who are not British citizens but who serve this country. Foreign or Commonwealth citizens serve with distinction and in some numbers, with more than 7,000 Commonwealth nationals and more than 3,500 Ghurkhas in the Regular Forces as part of the British Armed Forces.
The Bill proposes a new route of registration for children born outside the United Kingdom to a Foreign or Commonwealth parent serving in the Armed Forces and ensures that those born in the UK to a serving parent will continue to be British from birth. Furthermore, the Bill removes a historic cut-off date in nationality legislation to enable British mothers to pass their citizenship to children born to them before 1961, in the same way as British fathers have always been able to do. I trust that the House will welcome these changes.
Turning to Part 3, Clause—
My Lords, will my noble friend say something about Clause 47 referring to “Restriction on studies”? How pervasive will it be? Does he agree that it needs further clarification?
My Lords, I shall come to that in a moment.
Clause 46 will enable controls on air and sea routes for people travelling within the common travel area between the Republic of Ireland and the Crown dependencies and the United Kingdom. This step will enhance the UK’s security and will be augmented by increased intelligence-led operations on those entering the UK, via the land border in Northern Ireland. Let me be clear that the common travel area will remain and that we do not intend to introduce fixed controls on the land border between the Republic of Ireland and Northern Ireland or for those arriving from the Crown dependencies.
Clause 47, which was mentioned, introduces a change to the conditions for foreign students who come to the UK to study to allow their permission to be linked to the particular institution which sponsors them under the points-based system. At the moment students come here, go to an institution, move after a few months and then disappear. In future, we want to ensure that there is a responsibility on both the educational institution and the student to inform us that they will move to another course at another educational institution, which must be properly sponsored and registered. That is to ensure that we do not have a loophole, which has caused considerable problems in the past.
My Lords, it is one thing to require the student and the university to notify the UKBA when a move is contemplated, but it is quite another to take the power to forbid such moves.
My Lords, I am not quite clear about the noble Lord’s point. If the educational establishment is not properly registered and we do not recognise it, we would not allow that to be a way for the person to come into this country in the first place to study. Therefore, we do not think it appropriate for him or her to come here and then say after a matter of months, “I am moving to the school of guerrilla warfare in northern so-and-so”. We want them to go to properly recognised educational establishments. If they move, we should be aware of the fact and their telling us should be of no difficulty to them. Then we can monitor and keep track of all those people, which we are unable to do at the moment.
Clause 48 ensures comprehensive powers to take the fingerprints of foreign criminals subject to automatic deportation. Clause 49 extends powers already available in Northern Ireland, England and Wales to Scotland to allow immigration officers to detain at port for up to three hours a person subject to a warrant for arrest.
In Part 4, Clause 50 will provide the administrative court and equivalents in devolved areas with greater flexibility in handling immigration judicial reviews. It will allow the transfer of suitable cases to the Upper Tribunal of the new unified tribunals system established under the Tribunals, Courts and Enforcement Act 2007. That clause will be commenced only if it is decided to move the Asylum and Immigration Tribunal to that system.
Finally, the Bill introduces a duty on the UK Border Agency to safeguard and promote the welfare of children in its work, a clause welcomed by the Children’s Commissioner for England, Sir Al Aynsley-Green, in the following terms:
“a significant step forward to creating an immigration regime that places the best interests of all children at the heart of the decision making process”.
In conclusion, as I have made clear, the Bill is focused on immediate changes necessary to build the UK Border Agency and bolster its ongoing work, and to implement the Government’s new approach to earned citizenship. It makes important provisions which will make our system both firmer and fairer, while our wider work to reform and simplify immigration law continues. I beg to move.
My Lords, I start by thanking the Minister for his introduction and explanation of the Bill. Neither the size nor the content of the Bill seem to justify the efforts of the Home Office team in the contribution that it makes to the control of immigration, asylum and the security of our borders. It is beyond parody that it is described by the Home Office on its UK Border Agency website as being,
“part of the biggest shake-up to the immigration system for a generation”.
That statement might be justified if this had been the long promised consolidation or simplification Bill, but it is not. I am glad to hear from the Minister that that will come later this year, but there is a lot of work to be done on it when it does. It might be justified if the Bill had implemented either the full proposals in the draft immigration and citizenship Bill—it was only published in July 2008, for goodness’ sake—or those under A Pathway to Citizenship, the consultation document published by the noble and learned Lord, Lord Goldsmith. But it does not do that either.
As the Refugee Council states in its briefing, there is concern that by taking a piecemeal approach to implementing the simplification proposals, the Bill adds to the existing complexity of asylum and immigration law, rather than reducing it, and reduces opportunities for proper parliamentary scrutiny of the whole simplification programme. That is quite an indictment, and the Minister might like to comment upon it.
Of the 52 main clauses, 36 are devoted to constructing a system of border control that parts the department of Her Majesty's Revenue and Customs from most of its customs and many of its revenue functions, and gives them to the Home Office. They then become the property, for implementation, of the Home Secretary and the new Director of Border Revenue. I am interested to hear from the Minister that the chief executive of the UK Border Agency will, by any other name, be the Director of Border Revenue. Between them, they will control the newly named general customs officers and customs revenue officials, who, it seems, may hold either role or a combined role.
Clause 22 gives the Secretary of State powers to invoke provisions under PACE to enable these officers to undertake investigations. Clause 3(8)(g) and Clause 7(8)(h) give the officers powers of arrest. Clause 15 then enables them to share personal information gleaned from their inquiries with other bodies. I hear what the Minister says about the care and confidentiality with which that information will be treated, but the Government’s record on preventing information going AWOL is not startlingly good. We need to find out what information is open to being passed on and whether it will be passed on on security grounds, and we will need to ensure that such information is subject to legal professional privilege.
These officers have wide powers and functions, which are enhanced by the provisions of PACE being passed to them. I realise that these provisions are already given to current immigration officers, but they should be confined to the police. Following any arrest, will these officers be able to caution and detain without police input, or will it still be the case that, once someone is arrested and detained, no charges can be laid without the police attending? This is an important point, and I hope that the Minister will be able to answer it.
It is straining credulity to suggest that these officers, who emanate from the department of Her Majesty’s Revenue and Customs and who, under the UK Borders Act 2007, also include immigration officers, can or should become pseudo-police. If these proposals are to go ahead and to succeed—they are of course enabling, and it will be up to the Home Secretary to decide whether and when they are implemented—it is essential that all the officers are trained and competent to deal with all aspects of their immigration and customs and revenue roles, including, most importantly, how those who are suspected of illegal or criminal activity are dealt with at the border.
Clauses 4 and 12 make it clear that general customs officials and general revenue officials—those are the new names—can be designated only if the Secretary of State or the Director of Border Revenue is satisfied that the officers have received adequate training. We will table amendments to satisfy ourselves about the terms and the level of such training. The Law Society of Scotland has drawn attention to the fact that officers will need to have a high level of training, competence and familiarity with tax law as well as with customs and excise law, and we need to ensure that they do.
The contrivance in the Bill to avoid having to admit that our proposals to have a border police force are correct—proposals that we have put forward for several years now—makes a farce of having inclusive border security. I note what the Minister says about this, but I do not agree with him. The Bill’s proposals only shuffle the pieces around the board; they do not do a proper job. It is not our intention to rubbish the need for a dedicated border force, but that is not what we have in the Bill. We will table an amendment in Committee to have a border police force that will have all the necessary powers to arrest, detain and prosecute offenders. Only by having a fully integrated border police force will officers have the specialist skills to fight people-trafficking, illegal immigration, drug smuggling and all the other border offences.
We welcome the changes relating to the forces and their families in Part 2, which is on citizenship. However, as the Immigration Law Practitioners’ Association, which has briefed me, has said—I am sure others have said this—we are at a disadvantage in discussing the limited changes. The reason is that the provisions in these clauses on acquiring British citizenship by naturalisation are the tip of the iceberg, and are being promoted in isolation to the wider aspects of the anticipated changes, such as those who are not British citizens or permanent residents being denied access to services such as social care and healthcare.
We will also test by amendment the effect on existing migrants of these changes. In the White Paper, The Path to Citizenship, the Government acknowledge the importance of understanding the effects of the proposals now before us on those who are already in the system and say that they will continue to examine this before making any changes. Will the Minister tell us the result of that examination, particularly as the Bill is now here and there seems to be no operative date for the start of this scheme and, thereby, the effect of that on those who still have their applications under consideration? Many migrants currently will be progressing their way along the road to citizenship and will be concerned as to whether they will end up in a game of snakes and ladders, by which they may fall down and have to start the process all over again. The Government need to make it clear in the Bill that those who are already in the scheme will be able to enjoy its benefits as originally offered to them.
The Bill also includes a completely new terminology of “probationary citizenship”, rather than the better understood phrase, “limited leave to remain”. It is not at all clear why this change has been made or what its implications are. As a correspondent has pointed out to me, one of the rationales put forward is that probationary citizenship will be an explicit stage which recognises that migrants are on a journey and need to continue earning the right to become British citizens, which is very much what the Minister said. But “limited leave to remain” was also a stage on a journey, so what is the great difference that makes this part of the legislation worth while?
There is also the much vaunted requirement to be able to speak English, which, as the Minister said, is a requirement already. However, the current standard is far too low. Will the standard be enhanced and how will it be tested? Finally, the new proposals that a quicker way to naturalisation will be through participating in an activity—for which we should read the words “voluntary service”—will also require considerable scrutiny.
I declare my interest now as the chair of the England Volunteering Development Council, which is an integral part of Volunteering England. This organisation has been and is a member of the design group, which the Minister mentioned, on this aspect. It has put forward its concerns during the discussions and wants to ensure that the Government’s intentions can be fulfilled in a way which is beneficial to the applicant and fair to others. But it has some concerns, which, if we are not satisfied on them, we will be testing. The legislation says that this part will be introduced by regulation, but we will put down amendments to test the adequacy of what is being proposed, and the consequences for volunteering and the voluntary sector of having a considerable number of people who have been compelled to undertake voluntary service, not as willing participants but only as a way to accelerate their path to citizenship.
The Minister will know that my noble friend Lord Marlesford has been beavering away though Questions about his concerns over the citizens of this country who have dual nationalities and more than one passport, and he will raise this matter again today. My noble friend Lord Kingsland, who cannot be present today, will take part in Committee on the transfer of immigration judicial review applications. My noble friend Lord Bridgeman, who will wind up, will speak on our intention to have inserted into the Bill the provisions outlined in the draft Bill on expulsion orders. On Part 3—I think that he will have been overtaken by several other speakers by that stage—he will speak on the common travel area and also will address issues within Part 4.
I should say now that we are in favour of the duty to have regard to the welfare of children. We were successful—I underline the “we” quite heavily—through amendments to previous legislation moved in this House, in having this duty accepted and put into two Bills for all those who come into contact with children in the immigration system, whether they are employed by the Government directly or work under contract. However, we want to assure ourselves that the provisions remain sufficient to prevent children being detained under unsatisfactory circumstances, and that they are all encompassing. A suggestion has been put forward by the Immigration Law Practitioners’ Association that there is, in particular, difficulty in preventing babies being trafficked.
For all its brevity, the details of this Bill must be scrutinised with care. My noble friends Lord Bridgeman and Lord Kingsland and I look forward to doing just that during the later stages.
My Lords, the challenge posed for the Minister by the noble Baroness about the use of the expression, “the greatest shake-up of immigration for a generation”, is fully justified when we see that the shortcomings of this Bill have as much to do with what is missing from it as with its actual content. It was a great disappointment to us that the draft Bill, which was published in July and involves a long-delayed attempt at consolidation, has been postponed yet again ostensibly until October, but perhaps for a great deal longer if an election is held in the mean time and a weak incoming Tory Government have different priorities. This Bill makes no attempt to clear up the citizenship anomalies identified in the Goldsmith review, which was requested by the Government. They asked the noble and learned Lord to undertake the work and have now shelved action on his recommendations for eliminating the residual categories of citizenship, particularly for rescuing those whom we have effectively rendered stateless. We shall be tabling an amendment to bring otherwise stateless British nationals overseas within Section 4B of the British Nationality Act 1981.
No provision has been made to deal with the appalling hardship faced by tens of thousands of destitute people who are described as “legacy cases”, as highlighted in the Observer the Sunday before last. Some 200,000 people are still awaiting examination by UKBA, two and a half years after the former Home Secretary, John Reid, promised that they would be dealt with inside five years; I want to know whether that target is being held. There are also the Zimbabweans who cannot be removed but who are prevented from acquiring the experience that would be so valuable in rebuilding their country when it finally becomes safe for them to return. It was intended to select for priority those individuals who pose a risk to the public, those who could be removed quickly, individuals receiving support, and those where a quick decision to grant status was likely. We need to know whether that process was completed, and how the remaining applications from those 200,000 people are being prioritised.
The Government have no policy at all for dealing with the estimated 430,000 undocumented illegal immigrants living here in the penumbra of the black economy, and from the Tories there has been only Boris Johnson’s suggestion of an amnesty along the lines, as I understand it, of those in southern Europe which have led to a vast increase in the number of people attempting to enter those countries. Our solution, which we will attempt to insert into the Bill, is that when a person has lived in this country for many years without committing any offence apart from the original entry, he or she ought to be eligible for upgrading on a path to citizenship, subject to conditions like anyone else.
More recently, the NAO has commented on the loss of 17,000 case files and the Information Commissioner is contacting UKBA to find out how this happened. It is also asking whether back-up copies were held, but surely the key question is why the physical papers had to be transferred from one office to another within UKBA instead of scanned copies being sent by email.
The final item in the list of provisions that are not in the Bill but which should have been involves the people who are currently in the queue for citizenship, which has now risen to 35,830, according to the snapshot given after our meeting with the noble Lord, Lord West, on 23 January. It is claimed that in the year to date, 93 per cent of the applications have been dealt with inside six months, but we know of applications where the persons have been waiting for far longer than that—in one case for almost two years—and no explanation has ever been given for the delays.
As to what is in the Bill, the reasons for a partially integrated border force are not explained. We accept that there may be a chance for greater working efficiency, although personal data security questions need to be explored. What reduction does the Minister expect in the aggregate number of UKBA and HMRC officials at the borders? What discussions have been held with their representatives? The president of the trade union for senior staff in HMRC, Mr Trevor Cook, wrote in last Thursday’s Guardian of the low morale of his members, which had been noted previously by the Treasury Select Committee and the NAO. We should be careful not to place additional burdens on officials whose work is so vitally important to the economy, particularly, as we have seen lately, in cracking down on tax avoidance. The same goes for the immigration officials who are protecting our borders. The Minister needs to assure us that both groups have been properly consulted and agree with these proposals.
In Clause 22 there is an order-making power to apply PACE provisions to the police-like functions of customs officials, as there has been in five previous immigration Acts since 1999. We shall seek ways of making that into an obligation, particularly in relation to the powers of detention in the 2007 Act.
In Part 2, seven years after we first tried to equalise the rights of a child born abroad to a British mother with those having only a British father, the Government have finally eliminated this discrimination whenever the child was born. We are also pleased that children born to British Armed Forces personnel will be entitled to British citizenship.
There are some children of British mothers living abroad who are content to remain with the right of abode that they have always enjoyed. Under Clause 8 of the draft Bill, an order was to be made granting them temporary permission to enter, subject to the conditions made by the Secretary of State. Instead, Clause 45(3) of this Bill transforms the right of abode into a Commonwealth right of abode and gives the holder the right to apply for naturalisation under Clause 37(2). What happens to the right to enter of those who decide not to naturalise? Are any further changes in their situation contemplated for the simplification Bill, or are we looking at the end of the process here?
We have concerns about the arrangements for naturalisation, which make it harder for a migrant to become settled. After a time on temporary leave to remain, which is unchanged, the long-term immigrant can apply for what is called probationary citizenship. But, as the noble Baroness, Lady Hanham, rightly implied, this is merely an extension of temporary leave during which the migrant is excluded from welfare and services to an extent that needs to be clarified. This stage varies in length according to a person’s ability to satisfy the authorities that he has engaged in voluntary activities, the nature and extent of which, like so much else in the Bill, is left to secondary legislation. In Committee, the Minister has promised information about the approved activities but, for the time being, we have to take the scheme on trust. In a note that the noble Lord, Lord Brett, handed to me just before we came into the Chamber, I see that this is one of the key issues being discussed with the design group. We look at the Bill and we ask, “What are these arrangements?”, and we are told that we have got to wait until the design group comes back to the departments.
Are applicants for probationary citizenship going to be charged £750, as with ILR now? I am grateful to the noble Lord, Lord Brett, for the table giving details of the charges made under the present arrangements, but, noticeably, there is no corresponding figure of what is to be charged under this legislation. Those who are already on ILR, as I understand it, will get permanent residence leave, or PRL, free of charge, I assume, but the details will be in the commencement order. It would be useful if an assurance could be given that no charge will be made when they are automatically transferred on commencement. At the moment there must be tens of thousands who remain on ILR permanently because they prefer not to incur the hassle and expense of applying, or because they came from countries that do not allow dual citizenship, as was also mentioned by the noble Baroness, Lady Hanham. Under the Bill a person who does not want citizenship or cannot satisfy the conditions spends an extra two years in the so-called probationary citizenship before graduating to permanent residence leave. It is unfair that he should be deprived of the benefits of welfare and other services for that length of time, and we hope to rectify that in Committee.
Does the Minister accept that many people decide not to apply for citizenship for perfectly valid reasons, and that in future there will be people who stay on PRL because they cannot afford the fees or cannot pass the tests of English or knowledge of life in the UK? A mother of small children, for instance, may not be able to jump through the hoops, and for those who are not earning the requirement that most learners of English for Speakers of Other Languages are expected to pay half the cost from next year may be an additional deterrent. Is it fair to deny all these people benefits? What consultations have there been on exemptions?
The duty to safeguard the welfare of children in Clause 51 is welcome, but Ministers in both Houses have given undertakings that the UKBA would be placed under an obligation equivalent to Section 11 of the Children Act 2004, as are all other statutory bodies working with children. The Government must now move towards ending the detention of children, as we have argued on previous Bills. The chief inspector, in her latest report on Yarl’s Wood, said:
“Any period of detention can be detrimental to children and their families, but the impact of lengthy detention is particularly extreme”.
The Section 11 obligation, which needs to be spelt out in Clause 51, needs to cover not only the UK but the juxtaposed controls and posts abroad where officials have functions that relate to children. We shall also need to put an upper time limit on the coming into force of that clause, recalling how the Government have dragged their feet on compliance with the Convention on the Rights of the Child.
We share the concern expressed by the refugee councils on the Government’s intentions with regard to age determination and the proposal to reintroduce the use of X-rays for that purpose, which was abolished in 1981 following a report on the subject by Ted White of my office. After the criticism by the Children’s Commissioner, the Chief Medical Officer, the BDA and others and the Court of Appeal ruling a year ago that the courts have the final say in age-disputed cases, there has been no public debate. I ask for an assurance by the Minister that the use of X-rays for non-clinical purposes has been definitively shelved.
The refugee councils and others have expressed concern, which we share, about the provision that the qualifying period on temporary leave begins only when an applicant has been granted asylum—in some cases, many years down the line from their original application. Refugees already have to wait for four years if granted exceptional leave to remain, or six on discretionary leave, and it would be unreasonable to make them hang around for several more years before they can even graduate to probationary citizenship. We will seek to amend the Bill so that a successful asylum application is treated as a qualifying status.
My noble friend Lord Thomas of Gresford will deal with the proposal in Clause 50 that the judicial review applications should be transferred from the High Court to the proposed upper tribunal, for which no argument is given in the Explanatory Memorandum. I wonder whether this can be the Government’s response to defeats in the High Court, which they hope to avoid in future by writing the procedure rules for the upper tribunal themselves.
My noble friend Lord Smith of Clifton will deal with the common travel area and the advantages of counting people in and out, except over the boundary with the Republic of Ireland, while my noble friend Lord Kirkwood will be dealing with the Scottish issues in the Bill.
My noble friend Lord Wallace of Saltaire will discuss the need for the unlimited powers to restrict the education of overseas students. We fully understand the need to deal with bogus educational providers, but we thought that had been settled in 2004 with compulsory registration. If there are reasons for tightening up the criteria for registration we would certainly be prepared to look at them, but there are perfectly legitimate educational reasons why a student may wish to transfer from one course to another or even to another university.
The idea of publishing draft legislation for discussion is excellent, but in this case it was followed by a completely different set of proposals of which no warning had been given, with most of the detail left to unamendable orders. This is not the way to get the best out of Parliament, especially in an area as complex and fraught with human rights implications as citizenship and immigration.
My Lords, I am unable to make any contribution to Parts 1, 2 and 3 of the Bill; my only reason for seeking to speak at Second Reading is my concern about Clause 50. I therefore concede at once that I do not deserve such a high place as I have achieved in the batting order.
I am afraid that explaining my concern means going back over a little recent history. My trouble is that it is difficult to do that without having in front of us the text of the Tribunals, Courts and Enforcement Act 2007, but I shall do my best. Clause 50 on its face seeks to amend the Supreme Court Act 1981, but in reality it amends the tribunals Act—which I shall call it for short—passed less than two years ago.
When the Bill that became the Act had its Second Reading on 29 November 2006, a number of your Lordships, including me, had considerable concerns about the transfer of judicial review appeals from the High Court to the Upper Tribunal, where they might be heard by judges other than High Court judges. The reason for our concern was that judicial review cases often involve high-profile issues and, very often, difficult questions of law. I therefore put down an amendment either in Committee or on Report—I am not quite sure which—to ensure that when judicial review cases were transferred to the Upper Tribunal, as to which I certainly had no objection, they should be heard, as they always had been, by a High Court judge.
That amendment was supported by the Conservatives and the Liberals, but it did not have the support of the Lord Chief Justice. He was concerned by the very heavy burden then resting on the administrative court; he was concerned at the need that he felt to deploy judges in the most suitable way; and he pointed out that judicial review cases do not all involve consideration of matters of great importance. He set out all of that in a letter of 7 February 2007 and it was fully accepted by everybody and understood. The noble Baroness, Lady Ashton, then suggested that there might be further discussions to resolve the problem. Those discussions indeed took place and, as a result, I put down an amendment at Third Reading which provided for judicial review to be heard in the Upper Tribunal by a High Court judge or such other person as might be agreed by the Lord Chief Justice and the Senior President. Everybody was satisfied with that solution, which is now to be found in Section 18(8) of the Act. However, all that was against the background that transfer of judicial review in immigration cases was excluded altogether, which was the effect of condition 4 set out in Section 19(1). That condition will be repealed if Clause 50 is accepted as it stands.
I need not dwell on the reasons why judicial review in immigration cases was excluded; I am sure they will be familiar to most of your Lordships. The problem, as I saw it then, was that judicial review in immigration cases was not excluded altogether because the Bill as first presented in this House contained a power conferred on the Lord Chancellor to override condition 4 if he should think fit; that condition was included in Section 31A(7)(b).
It so happened that the Lord Chancellor moved the Second Reading of the Bill. During the course of that debate I asked him what the Government's intentions were in relation to that power conferred on him under the Bill as it stood. He replied that,
“the intention of the Bill is not to revisit the territory to which I think the noble and learned Lord is implicitly referring. The intention is to refer to the upper tier of the tribunal issues that are currently dealt with by the High Court; for example, specific tax questions or vires questions about, say, social security, and some immigration questions that, with the agreement of the Chief Justice and the Lord Chancellor, would be better dealt with by tribunals”.—[Official Report, 29/11/06; col. 762.]
He carried on in the same vein.
My understanding of that was clear; that the Government did not at that stage intend to interfere largely with the view that had always been taken in immigration cases. That was confirmed when paragraph (b), to which I referred earlier, was deleted on Report in this House. Therefore, at that stage, only two years ago, the Government seemed to be content that immigration cases should remain where they had always been.
I turn to Clause 50 in the Bill. If the effect of repealing condition 4, which is what the clause purports to do, is that the administrative court would be bound to transfer judicial review applications in all immigration cases, I would be strongly opposed to it. Nobody wants that. It is not what the Government want, as one can see from paragraph 38 of their consultation paper, and it is not what the President of the Queen's Bench Division wants, as one can see from paragraph 10 of his response to the consultation paper. Yet, transfer of immigration cases would be mandatory if there were to be a direction by the Lord Chancellor and the Lord Chief Justice under Part 1 of Schedule 2 to the Constitutional Reform Act 2005 to satisfy condition 3 in Section 19. I accept that this is a complicated question, but perhaps the Minister will confirm that the Government do not intend to make a direction under Part 1 of Schedule 2 to the Constitutional Reform Act in relation to immigration cases.
Assuming that that is right, it would appear that the High Court will have a discretion to transfer judicial review in immigration cases. Perhaps the Minister will confirm that my understanding in that case is correct. If so, it is a solution which we should all like to see. However, we need to have some clarification of how the discretion will be exercised, whether in accordance with rules or with guidance given by the Lord Chief Justice, or how. Before the next stage of the Bill in this House, can we be given some indication of how the discretion is intended to be exercised? The essential thing in my view is that, to save judicial time, all applications for judicial review in immigration cases, either on an individual basis or as a class, should start in the administrative court and only then transfer to the Upper Tribunal. However, we need to know how this will be done before we reach the next stage of the Bill.
My Lords, after the very detailed scrutiny of a particular clause by the noble and learned Lord, Lord Lloyd, I wish to dwell a little on some of the fundamental principles that will pertain to any debate around such issues as borders, citizenship and immigration. After all, what is a border? Is it a barrier or is it a meeting place? I imagine that most of us want to believe that a border can be a meeting place. Therefore, I imagine that most of us would rather not be debating a Bill which is predicated on a pathology of suspicion and a predetermination towards exclusion rather than welcome. I guess that most of us would rather be discussing a Bill driven by a spirit of hospitality rather than hostility towards those who wish to settle in this country, equipped, as many of them are, with very necessary aptitudes, energy and skills such as the Prime Minister has indicated will be absolutely vital if this country is to be able to respond to an upturn in the economy when it comes. But this is the Bill we have and we need to examine some of the underlying principles that seem to inform it.
Of course, as we have heard, there are aspects of this Bill which I am sure all sides of the House will wish to endorse, not least Clause 41 regarding descent through the female line, and especially Clauses 32 and 51 relating to the welfare of children. However, as the noble Lord, Lord Avebury, pointed out, the Bill is distinguished as much by what it does not address as by what it does. It does not take the opportunity to address the continued detention of children and families or to rectify the scandal of families rendered destitute with children taken into care under Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It has to be said that “welcome” is a difficult word to associate with the Bill, which aims to strengthen our borders as barriers, thereby weakening them as meeting places. Of course, the key word is “security”. We can secure our borders in the same way as we can secure our houses against unwelcome intruders. However, it is ironic that every measure we take to secure ourselves simply testifies to our increasing sense of insecurity. That, in its turn, leaves us feeling less at ease with friend and stranger alike.
Earned citizenship is an interesting idea and has set me thinking about my own citizenship of this country. For all that the noble and learned Lord, Lord Goldsmith, has helped us to understand the richness of citizenship, there is a sense that all I had to do to earn my citizenship was to take the trouble to be born; in other words, it is mine by grace rather than merit. Therefore, I simply pose the question whether it is legitimate for me to ask others to earn what is mine by accident of birth but, above all, I believe, by the grace of God. If we are to conjure with such notions, we would be unwise to allow the Bill to go very much further before we are clear about what is meant by “being of good character”. I am grateful to the Minister for giving further explanation of what is intended by that phrase. We also need to understand a little more about what is intended by the phrase “prescribed activities” in Clause 39, which is, apparently, awaiting definition in subsequent regulations. Will, for example, active involvement in political activities qualify? Will involvement in faith-based activities qualify? Will trade union activities qualify? We know that only voluntary activities will qualify, and as the noble Baroness, Lady Hanham, indicated, if such activities are being undertaken as a pre-condition for gaining citizenship, can they be genuinely described as voluntary? How much surveillance will be involved in monitoring such activities? Who will be ticking the boxes to make sure that every criterion has been met?
This could be a brilliant idea for furthering and enhancing participation in local or community life; or it could be a cynical abuse of the voluntary sector, with an emphasis placed on passing a test rather than making a difference. The trouble is that as the Bill stands, we do not know which it is. Such a key question should be dealt with in primary legislation rather than in subsequent regulations.
Furthermore, and a little more subtly, am I alone in detecting a culture of conformity, a conformism that is in conflict with a culture of cosmopolitanism, which I believe we should be seeking to encourage rather than deter? Note that I use the word “cosmopolitanism” rather than “multiculturalism”; the latter can tend towards a separation of different cultural communities one from another, while cosmopolitanism is about mutual enrichment consequent on citizens of different backgrounds interacting with one another as part of the ebb and flow of human life. To achieve that, we do not need to encourage new arrivals to be clones of the majority population. They need to be able to engage constructively and creatively with their fellow citizens. The proposed regulations, and the Bill itself, may be directed to that end, but until we see the regulations, we cannot be sure.
By no means least, the Bill offers no protection for large numbers of people currently settled in the UK, some of whom may have lived here for most or even all of their lives. Because the possibility of their becoming permanent residents has been, as we have heard, left for future secondary legislation, they are left in no man’s land when it comes to entitlement to services. More importantly, they continue to live beneath the cloud of uncertainty which is of no benefit to them and reflects little credit on us.
I know a little about no man’s land. Several years ago, I crossed over from Israel into Egyptian Sinai. Between the two border controls, we were told to disembark from our coaches and stand for some hours under the baking midday sun while officials haggled over whether to let us in or send us back. This was just a taste of no man’s land, when I grasped a little of what it means to be stripped of one’s identity, devalued and dehumanised. This border was a barrier, when I was on a mission to meet those whose initial instinct was to be hostile. We can do better than that, but the Bill as it stands will not help us so to do.
Further questions could be asked about exactly what probationary citizenship amounts to or why it is necessary, as the noble Lord, Lord Avebury, has said. Fees of approximately £700 hardly send out a positive signal to those whose gifts, talents, experience and expertise we will continue to need, even during the period of economic downturn.
If the Minister can convince us that these measures are absolutely necessary—I believe that in the present state of our troubled world he may well be able so to do—let us take no pleasure in supporting them. Perhaps they do strengthen our borders, but at great cost to our sense of a shared humanity with those who live alongside us in the global village but against whom we erect barriers which make it all the more difficult for us to meet them and so be mutually enriched.
Recently, the Prime Minister wrote:
“This is the modern definition of social justice: not just social protection but real opportunity for everyone to make the most of their potential in a Britain where what counts is not where you come from but what you aspire to become”.
Fine words; and we all look forward to their being given legislative effect as the Bill enters Committee stage.
My Lords, in my remarks I want to focus on the part of the Bill that is described as “citizenship”, not because other parts of the Bill are not important—I believe, for example, that the questions raised by the noble and learned Lord, Lord Lloyd of Berwick, and those which I suspect will be raised by other Members of the House are important—but because, as the Minister has stated, the issue is one which the Prime Minister asked me to examine. That resulted in the report that was produced last year entitled Citizenship: Our Common Bond.
Speaking in this Second Reading debate gives me the opportunity to say something about that and to express publicly my thanks, not only to the non-governmental organisations that participated—there were many, some of which have been mentioned today—but to the many other people, individual citizens, people seeking to be citizens and refugees whom I met up and down the country and with whom I was fortunate to debate these questions.
It has already been said that perhaps this Bill is simply the tip of the iceberg; I am not sure how happy a phrase that may be. I am not a seafarer, but I have always understood icebergs to be rather lurking, forbidding and dangerous things beneath the surface, and I hope that citizenship is not that. Certainly, as other Members of the House have said already, this Bill is only a very partial picture of what is to come; perhaps dots of paint on a canvas or pieces of a jigsaw where it is not yet possible to see what the full picture will be. That makes it more difficult to judge what the totality of the approach of the Government is going to be.
One issue that came across very clearly in the course of my review was the two meanings of the term “citizenship”—citizenship as nationality, which is what this Bill deals with when it touches on citizenship, and citizenship as membership of a society, sharing a sense of belonging and sharing a sense of aspirations. It seemed to me that these were different concepts, but concepts that had grown too far apart. There were people who were legal citizens who did not feel that they belonged to our society and, equally, there were people who had not attained the status of citizen legally as nationals, but who played an active, valuable part in it and who shared absolutely the same aspirations and concerns as the people living next door to them.
Some of the difference between those two concepts is difficult to deal with. We cannot and should not feel that we can compel people to feel that they belong, but we could do more to bring those two concepts together. The right reverend Prelate the Bishop of Lincoln questioned the concept of earned citizenship—I support that and want to say something about the detail of it at some stage during the passage of the Bill—by saying that for many of us, we do not earn citizenship but acquire it simply as a result of birth. In my view, and in the thrust of my report, that should not stop us from looking at ways in which people, although they have acquired that legal status, can be encouraged to a much greater sense of what being a citizen means and, if not earned citizenship for British-born nationals, at least learnt citizenship. A number of the recommendations made in my report, not just about education and schools, but about whether we do enough to have a national narrative of citizenship and whether there is perhaps more ritual that we could engage in that would encourage that, seemed to me to be important.
A credit-based system for acquiring citizenship is in principle a good thing, because it makes it clearer that becoming a citizen carries with it responsibilities, not just the ability to stand in a shorter queue at Heathrow. For those reasons, it seems right to be able to change the length of that journey through participating in the community in a stronger and more active way and demonstrating language proficiency. The details, I know from looking at this issue, are enormously difficult, and it is right that noble Lords have asked the Minister to say more about how they are to be dealt with.
The main point that I had wanted to make was to express my hope that during the passage of the Bill, or perhaps alongside it, we may learn more about the Government’s approach to these wider, complex, interlocking, but important, questions. I do not for a moment pretend that any of my recommendations are the right answers; I would like to think that at least I have identified some of the questions. They are difficult questions, but they need to be dealt with.
Citizenship is a highly important topic in an era when shared cultural and historical links often no longer seem enough to bind us together; the nature of our society has changed. Citizenship is more than rules on nationality. It is not about Britishness, at least when it is seen as a political gimmick in the devolution debate. It is about how one creates a society in which its members feel that they belong and, therefore, share the same concerns, hopes and aspirations as their fellow citizens.
Issues such as the name given to people who have the right to be here is important in that context. Noble Lords have asked why it would help to call someone a probationary citizen, rather than someone who has leave to remain or leave to enter. To my mind, there is merit in making it clear that the person should participate in the concept and the responsibilities of citizenship, but we lose him if he does not obey what is expected of him by his fellow citizens.
Time for debate is limited, and I am hoping that we will hear the Minister’s remarks and finish by the time indicated by the Chief Whip before the final business of the day, as I have a part-heard case in a foreign country which requires that I leave on a very late plane tonight. I hope to be able to hear the Minister’s final words. If I do not, I apologise to him and the House. I end by inviting him to find an opportunity to say why this Bill will advance these broader concepts. He said that this Bill was the Home Office’s contribution.
Finally, as expressed in one of the final comments in my report, I regret the fact that citizenship is dealt with in a piecemeal way across government and recommend that we perhaps should look to something like—not another department; heaven forefend that—an office of citizenship that would look at the different considerations and see how they fit together, so that we do not have a Home Office Bill on citizenship, but a government approach to citizenship.
My Lords, I begin by strongly agreeing with my noble friend Lady Hanham’s general comments concerning the overall standing and status of the Bill, and where it ranks in the importance of Bills. Whatever else it is, it is not a great Bill. I also strongly agree with her suggestion that we should press the concept of a borders police force. She has my strongest support for that.
This is a question of what people do, rather than what they wear. The Minister in his engaging opening speech referred with excitement to the forthcoming London Fashion Week, with border guards sashaying down the runway in their doubtless glamorous new outfits. That is all very well, but it is what they do, not what they wear, which is of importance to this House.
Some of the pressures at the borders of the UK may be mitigated by the unforeseen consequences of the present global economic malaise. Economic migrants—a term much and rightly used by my noble friend Lord Hurd of Westwell when he was Home Secretary back in the 1980s; I do not know whether he coined it, but he certainly popularised it at the time—may be less willing to move to better themselves, whatever the pressures that face them at home, if they perceive that the economic conditions within the United Kingdom have turned sour, thanks largely to the policies of this Government over the past 11 years, I am bound to say. If I was one of those multihanded economists—we all know them—I would doubtless go on to say that, on the other hand, poor global conditions might encourage more of the disadvantaged, the criminal and the money-launderers to travel and perhaps to try our borders. However, in these matters I have only the one hand and I stick to my prior sense of what is going on globally in economic terms.
The fact that some pressures may abate for a bit must not allow us to relax our attempts to ever backfill our permeable borders against threats old and new, including terrorist incursions. Any self-styled borders and immigration provisions—I shall briefly mention just one citizenship matter when I conclude my remarks—should pass at least three tests. The first test is whether the legislation will keep us safer. The second test is whether it will promote community cohesion between settled and newcomer; on this, I very much understand what the right reverend Prelate the Bishop of Lincoln said about the need to be welcoming. Finally, the third test is whether it will help to promote economic welfare and growth.
Looking at each of these in turn, I think that the legislation tightens to some extent matters at frontiers, which on the face of it may be helpful in public safety terms. However, can the Minister reassure me on three points? First, will the new powers to be applied at borders be in all respects identical in their effect in the six territories mentioned in the Bill, which are England, Scotland, Wales, Northern Ireland, the Isle of Man and the Channel Islands, whatever legislative route, of which we have various here—new provisions, amendments and doubtless orders—is used in relation to the Bill?
Secondly, will there be improvements in manning and surveillance to follow what seem to me welcome provisions in Clause 46 to control all persons arriving in the UK by whatever means from the Republic of Ireland, the Isle of Man and the Channel Islands? If there are no improvements in surveillance and manning, there will be no point to this provision, with its apparent defence against illegal immigration, persons subject to an arrest warrant, money-launderers or, indeed, potential terrorists. Without a commitment to such additional provision, the words in the Bill would be quite meaningless on the statute book. Hitherto, anyone travelling by, for example, an overnight boat from Guernsey or Jersey to our southern ports will have been struck by the usual absence of any form of obvious customs or police presence in the early morning disembarkations. There may be surveillance by remote means, but of obvious policing there seems to be none at all.
Thirdly, will the Minister assure me that he and his colleagues have taken advice to ensure that the golden and timely opportunity presented by the Bill to include any necessary emergency provisions to guard our borders against particular and peculiar terrorist threats of an extraordinary sort has not been overlooked? I declare my interest, as I should do, as a member of the advisory board—this may surprise your Lordships—of the British Olympic Association, for which I am uncompensated and unexpensed and which mercifully makes no demands on me physically or athletically. The Minister told me in a helpful Written Answer on 22 January that organisations such as the security services and the Serious Organised Crime Agency have a job to co-ordinate with the UK Border Agency in relation to the 2012 Olympics. However, do they have all the emergency powers that they need under the provisions before your Lordships? There is time for government amendments if not. However, in the context of this Bill and of preparations for 2012, I remain alarmed that, shamefully, there is no security plan yet for the Olympics—Ministers said only last week that it will be two or three months before there is a plan—because border security is a vital component of such planning.
My second test is whether the Bill helps to promote social cohesion between the settled and the incomer. Again—a point made by the right reverend Prelate the Bishop of Lincoln—there seem to be few specific provisions in the Bill.
My third test concerns the need for our borders and immigration legislation to do nothing that prevents economic well-being and growth. It strikes me as vital that all these provisions are applied in a way that does not give in to economic nationalism or protectionism, let alone the near return to 16th or 17th century mercantilism, all three of which are currently stalking the economic globe. We need orderly movement of labour as well as of capital, and we need orderly movement of talented people as much as liquidity of capital. We need openness, because ultimately that is important not only in trade but to the people whom we need here, whether they are economic migrants, to whom I have already referred, or talented as well as needy refugees—the sort of people to whom the noble Lord, Lord Avebury, referred in his introductory remarks. These people may help us to power recovery from our present economic discontents after the past 11 years.
I end, mindful of wanting to get the noble and learned Lord, Lord Goldsmith, to his plane, on one citizenship point. I remind the Minister that Protocol 4 to the European Convention on Human Rights and Article 12 of the International Covenant on Civil and Political Rights both guarantee the right of nationals to enter their country of nationality. The Minister has stated on the face of the Bill that in his view the legislation is compatible with convention rights. Yet, despite our being a signatory to these and other human rights instruments, British nationals, as defined, who are not full British citizens do not currently have the right to enter the UK, unlike under EU laws that already allow some millions of EU citizens—I happen to welcome them—to live and work here. I woke one morning to hear the Minister on the media describe himself self-deprecatingly as a simple sailor. In that spirit, I should like to ask him whether he can give a very simple answer to my question, “Why is that?”, in a way that a simple Peer such as myself might be able to understand.
My Lords, I was much struck by the invocation of the right reverend Prelate the Bishop of Lincoln of a spirit of hospitality rather than hostility when he addressed his remarks to your Lordships. As the noble Lord, Lord Patten, pointed out a moment ago, over the centuries we have gained very greatly from immigration to this country, and over the centuries we have a proud record of granting safe refuge to those who flee persecution. Refugees, too, have enriched the United Kingdom’s culture and wealth immeasurably. We differentiate between asylum and migration but only because the one is essentially a human rights issue and the other essentially a social, economic and political issue.
One major problem in this area is that the original decision-making in asylum cases is very poor. The Home Office is slow at making decisions; it loses track of people; and, while nine out of 10 applications are initially refused, 20 per cent of the cases that go to appeal are successful and 40 per cent of refugees from certain countries succeed in their appeals. That indicates a very high error rate in initial decisions and poor training of caseworkers and interview staff. There may be political pressures on caseworkers to refuse applications, which amounts to what refugee support organisations have called a “culture of rejection”. The Refugee Legal Centre, which is one of those organisations, made a series of freedom of information requests and discovered that publicly funded appeals were 22 per cent, but when people were not represented on their judicial reviews the success rate was as low as 3 per cent.
That indicates that when there is proper legal representation and proper submissions are made, applications for judicial review can be successful. I refer to judicial review because I am confining myself to Clause 50. As the noble and learned Lord, Lord Lloyd, said when referring to the letter from the Lord Chief Justice, the judiciary has a desire to reduce the pressure on judicial time and the courts. On the other hand the Home Office appears to have a desire to get rid of as many people as quickly as it can, and decisions are taken in highly sensitive cases accordingly.
Asylum cases in particular involve life and death decisions, but all these immigration appeals, as the noble Lord, Lord Avebury, said, are fraught with human rights implications. Whereas the transfer of judicial review applications to the Upper Tribunal may be carried out with proper safeguards, such safeguards are not contained in this Bill. The High Court judges are used to dealing not merely with the areas of asylum and immigration but with constitutional and administrative law and have a much broader way of looking at things. The Abdi case recently against the Home Secretary showed that the Home Office had been operating a secret and illegal system of dealing with asylum seekers. Such matters make it important that cases should be dealt with at an appropriate level.
The history of judicial review in this area stretches over a number of years. In the Immigration and Asylum Bill of 2003, your Lordships will recall that the Government proposed to abolish judicial review in immigration cases altogether. That was resoundingly defeated in this House. The noble and learned Lord, Lord Lloyd, referred to the Tribunals, Courts and Enforcement Act 2007, in which he played an important part when it was initially proposed that the Upper Tribunal should hear judicial review cases. As a result of his efforts, an undertaking was given by the noble Baroness, Lady Ashton, on behalf of the Government that these types of cases would be excluded from being transferred for hearing in the Upper Tribunal until there had been some experience of how that tribunal worked.
The Upper Tribunal has been in place for only a month or two—I think it started in October or November of last year—and there is no experience as yet of how it works. Nor is it clear which judges will preside at hearings of application review that are made to them. The noble and learned Lord, Lord Lloyd, referred to the fact that, through Section 19(7), he had ensured that an application for judicial review could not be heard if it called into question any decision that was made under legislation dealing with immigration, British nationality, and so on. Why then, so soon after the Tribunals, Courts and Enforcement Act was passed, do we now have these proposals before us?
It seems that the matter has been transferred from the Ministry of Justice to the Home Office. One would have thought that the appropriate government department to deal with where cases of judicial review should be heard and for laying down the rules on that, or controlling how the rules are made, should be the Ministry of Justice. That has not happened. For some reason, the Home Office has stepped in. With the recently created UK Border Agency, it published a consultation document last August that set out the proposals now before us. That document was prepared by a working party of the judiciary and Home Office officials, but there was not a single representative from the agencies who assist asylum seekers and refugees. As consultees, they have submitted their views, but the Bill has been brought forward before any response to their views has been published by the Home Office.
Clause 50 removes the limitation in an Act of Parliament that is only 18 months or so old, and the rules under which applications are to be heard in the Upper Tribunal are to be created not by the Tribunal Procedure Committee, which will govern all other rules made about procedures in the Upper Tribunal and is an independently constituted body, but by the Lord Chancellor, who appears to have devolved his powers to the Home Office. So it is possible that judicial review will be brought to the Upper Tribunal under rules made by one party to the proceedings. That is completely inappropriate. I should be obliged if in his reply the Minister could tell us why, if the proposals pass and judicial review proceedings are to be held in the Upper Tribunal, the procedure rules are not to be made by the committee that makes the rules for everyone else. Why has the power effectively been retained by the Home Office, which will be a party in almost all the proceedings brought there?
Many issues arise as a result of the Government proposing Clause 50 before their consultation document has been properly considered and reviewed and in such a hurry, with such speed, after the Act passed only in 2007. We will be examining Clause 50 with considerable particularity.
My Lords, there are good things in the Bill, there are bad things and there are things that have been left out. It is not the Bill that we were expecting, but we continue to look forward to the comprehensive simplification Bill, which has long been promised.
First, through the Minister, I thank the UK Border Agency for its co-operation with the Independent Asylum Commission, of which my noble friends Lord Ramsbotham, Lady Mar and I were members, last year. The Minister will recall that our findings not only drew on evidence from the UKBA but were put to it before we listed our final recommendations so that government responses could be clearly seen alongside our proposals. That did not necessarily mean that the policy could often be reconciled with our findings, and there is still work to be done through our parent body, the Citizen Organising Foundation, but I recognise that under some headings, the Government have been listening and clearly taken up positive suggestions from NGOs and agencies—the Solihull model was one of them and another was the improvement of initial decisions and the new role of caseworkers under the new asylum model. In other cases, the work of the commission has helped to improve public understanding of the process.
In our third report, Deserving Dignity, the UKBA admitted on page 30 that, particularly during 2005-06,
“unacceptable delays occurred in the provision of support under section 4 of the Immigration and Asylum Act 1999”.
It is extremely important for asylum seekers and others that the Government admit these past mistakes and the possibility that other mistakes are still being made, which must be the case. I shall talk later about our recommendations on Section 4 and destitution.
Before I talk about the Bill, I shall say a brief word about removals. I also declare an interest as a patron of the Haslar Visitors Group in Portsmouth. The Minister recently replied to a Written Question from me about the cost of removing Kurdish asylum seekers to Iraq twice in one week last December, and I have just received a letter from Phil Woolas, the Minister in the other place, explaining that this double removal occurred because of fog at Arbil airport. He denies that there were any serious examples of self-harm. I accept that there have to be forced removals, but this story is indicative of the rough and ready nature of many of these subcontracted removals, and there is a lot of evidence of the harm caused to asylum seekers while being escorted during their detention and removal. Here, I commend the latest report of the London Detainee Support Group. Will the Minister assure us that more care will be taken with these escorts and removals?
Will the Minister say whether the five-year qualifying period in Part 2, on citizenship, has been designed for illegal immigrants or for genuine refugees? The UNHCR says that it would be quite inappropriate to require recognised refugees, including those who have been resettled under the Gateway Protection Programme, to spend more than five years here before being able to apply for naturalisation.
Will the Minister comment on the special case of resettled refugees and whether community activity is really appropriate for certain groups of refugees who may have suffered torture or other severe forms of persecution? I share the concern of the noble Baroness, Lady Hanham, the right reverend Prelate the Bishop of Lincoln, and the noble Lord, Lord Judd, who could not be here today, that voluntary activity should never be allowed to become a condition of asylum, less still a form of coercion in the course of earning citizenship. I listened carefully to the noble and learned Lord, Lord Goldsmith, who said that asylum seekers should obey what is expected by their fellow citizens. That is pause for thought. As the noble Lord, Lord Avebury, asked, would it not be more consistent with the refugee convention to count the years that asylum seekers have already spent in the UK—in other words, the time since they first claimed asylum? Several of us will support amendments on this to Clause 38(5) and Clause 37(11).
I am also very concerned about the restrictions in Clause 47 on some students: for example, those who may wish to change their institution. I will certainly support amendments to this clause, and I expect that we will hear from the noble Baroness, Lady Warwick, on this in a minute.
In Clause 50, Her Majesty’s Government are clearly doubling back on their earlier decision not to transfer judicial reviews to the Upper Tribunal. They seem to have ignored the consultation process, as has been said, and now want to limit oversight by the Court of Appeal and yet avoid parliamentary scrutiny. I certainly agree with the noble Lord, Lord Thomas, that investing in the quality of Home Office decision-making, and therefore in better representation in the early stages, would be a far more desirable course of action.
On children, the Government have responded positively, but I agree with the Refugee Children’s Consortium that the best interests of the child must be a primary consideration in all immigration legislation and should be expressed as such in Clause 51.
Now for what is left out. One thing that the Bill does not address is the acute situation of destitute, so-called failed, asylum seekers, many of whom have been in the UK for years, barely surviving on Section 4 support. Noble Lords may remember that the noble Baroness, Lady Warsi, and the Joseph Rowntree Charitable Trust did valuable work on this in West Yorkshire in 2007. Of course the Government deny that there is destitution. But if a destitute person is one who cannot meet essential living needs, that describes many people now on Section 4 provision: vouchers of £35 a week—£5 a day, my Lords—no access to secondary healthcare beyond accident and emergency; HIV screening but no treatment; no medicines, even paracetamol; and no clothing, nor enough to cover the cost of washing clothes.
As the noble Lord, Lord Kirkwood, said during the debate tabled by the noble Lord, Lord Roberts of Llandudno, last week, Section 4 is not working. I think the Government know that. It was meant to be temporary, but some families have to live on Section 4 provision for long periods, with consequences for their health, particularly that of children. It is expensive because of accommodation, administration costs and the costs of review.
An alternative would be to remove Section 4 and allow others besides families, as at present, to stay on Section 95, saving the costs of assessing the voucher scheme and accommodation, which is not necessary for those who already have family and friends to stay with. I therefore ask the Government whether they will consider retaining all asylum seekers on Section 95 until they are removed, they voluntarily return to their country of origin, or they are given some form of status in the UK.
On the issue of Zimbabweans in this country, I refer the Minister to the Prime Minister’s promise to Members of Parliament last July that,
“we are actively looking at what we can do to support … Zimbabweans who are failed asylum seekers … and we will report back to the House in due course”.—[Official Report, Commons, 10/7/08; col. 1556.]
We have not yet heard back from the Prime Minister on this proposal.
I was recently among those who called at No. 10 to hand over the CVs of 500 Zimbabweans who are ready to work now and pay taxes. Last week I met one of them, Luka Phiri, a young Zimbabwean trade unionist who was tortured and forced to flee because he was using a false Malawian passport. The noble Lord, Lord Joffe, will describe the case in more detail. I have heard of other cases of Zimbabweans suspected of coming from other countries because their Zimbabwean passport was out of date.
Another one, Joshua, from Bulawayo, is an MDC activist who was detained and tortured and applied for asylum in 2003. He lost his appeal, was cut off and became destitute two years ago. He has been living on a cousin’s charity ever since. Why should he be so deprived?
Chipo, an accountant, aged 32, had to leave two young children behind because of threats from ZANU-PF. Her asylum application was turned down and she has been destitute for many years. She says, “I would have stayed in Zimbabwe and died in Zimbabwe rather than waste my life here. For people in the first world to treat people who are fleeing persecution, to be treated like this, that’s very harsh”.
In our report Safe Return we recommended that refused asylum seekers who cannot be returned to their country after six months, who are effectively in a limbo through no fault of their own, should be eligible for a time-limited, revocable permit to work in the UK. For obvious reasons, there is enormous public sympathy for this group of people. At the very least, will the Minister confirm that the UKBA is looking at the issue very seriously, that the Prime Minister’s promise is going to be kept and that an announcement will be made very soon?
My Lords, I am pleased to be able to speak at Second Reading of the Borders, Citizenship and Immigration Bill. As many noble Lords will know, higher education institutions will be the biggest users of the new points-based system which this Bill enables and universities take their responsibilities in this area very seriously. Indeed, the Minister will know from his experience as chancellor of Southampton Solent University how important international students are to this country in terms of cultural exchange and the diversity of our institutions.
Universities UK, in which I must declare my interest as chief executive, has been very appreciative of the efforts of the Minister in this House and Phil Woolas, the immigration Minister in the other place, for their continuing dialogue over international student issues and immigration. Universities UK has valued its extensive engagement with the Home Office throughout this process. We have certainly learnt a great deal about the pressures and complexities of the immigration system.
I should like to focus my remarks on Clause 47 and make some wider points about the new immigration system and its impact on higher education. Higher education institutions support the new provision that student visas will be linked to particular institutions. I understand from briefings I have received that other organisations have concerns about this, but for the universities it will enable institutions to have greater predictability about the international students they can expect to join them.
Currently, students may change their minds after obtaining their visa and decide to study at another institution, rather than the one whose documentation they used to obtain their visa. The new system will ask students to decide on a particular institution at an earlier stage; that is, when they make their visa application. That institution will appear on their visa or in future on their ID card. That will bring the student route in line with the employment route, as employees will be linked to employers in the visa. I hope that the Minister will note that I do not support the provisions of this clause being applied retrospectively to any students already studying in the UK under the current immigration arrangements.
However, for the new provision to work effectively, it is necessary for Clause 47 to be accompanied by a quick, low-cost mechanism to enable students to move institutions if they decide that they have made the wrong choice, as the noble Lord, Lord Avebury, suggested, or if their circumstances change—for example, if their PhD supervisor moves institution. I am sure that the Minister will agree that these are legitimate reasons.
At the moment, the Home Office has not set out the process for how students can move institution quickly. Any delays in the Home Office paperwork will mean that such students will not be able to join their new programme or to continue their studies. There is also a cost issue in relation to this. The only information on costs suggests that it would cost either £295 for a postal application or £500, in person, for a new visa application to change institution. Surely, if a student wants to move between institutions of the same type to do a programme at the same level, such as a post-graduate research degree, it should be a quicker administrative process and, therefore, a lower cost than is required for a new visa. Will the Minister explain the rationale for such a potentially high cost for a simple administrative process? Does he not agree that by adding further costs this might act as a deterrent for international students entering this country?
I should also like to take this opportunity to make a few further comments about the new immigration arrangements and their impact on universities. Despite the continuing and positive relationship that we have had with the Home Office, there are still a number of concerns in the higher education sector that the Home Office appears not to have recognised. For example, universities are already half way through the application cycle for the 2009-10 entry. Students have already been applying since September 2008. Under the new system, universities have to provide new documents from the end of March. Universities still do not have the final information from the UK Border Agency to enable them to do that. Any large organisation needs a suitable timescale to implement a new system. Probably, even the Home Office would not welcome being given less than one month to implement a new system, but that is what is being required of universities. Will the Minister explain why they have been given such a compressed timescale?
A further issue of concern is the length of the new visas. Currently, students are granted visas for the entire length of their programme, but under the new system they will only be granted a maximum of four years’ leave to remain. This step will mean that students on programmes such as medicine, dentistry, pharmacy, veterinary medicine, architecture and some others, will not have any certainty that after four years of studying in the UK, they will be able to get a visa to complete their programme. There are over 3,000 international medical students in England alone, paying over £100 million in fees. They will be affected by such a measure. Considering the investment of time and resources made by these students in the UK, it seems unjust for them not to be granted visas for the entire length of their programme. Indeed, it may mean that they do not come to the UK in the first place, to the obvious detriment of our health and other professions. I urge my noble friend and his department to reconsider this part of the system.
Let me move on to another key change. The new system will require students to provide evidence of maintenance of £800 a month in London or £600 outside. A number of students, including many on overseas government scholarships or those nearing completion of their PhDs, will not have access to this level of funding and could face being refused a visa to complete their programmes. What will happen to them? Do their home countries know this? Has the Home Office discussed the position of these students with high commissions and embassies in the UK? I am not aware that it has.
I feel that I have been rather negative about the new system, but let me now be positive. I welcome the decision of the Home Office not to attempt to introduce the new IT system for student visas before it is ready. Students, as I have said, will form the largest group of users for the new system, and the timing of their courses will mean that there are significant peaks and troughs in usage. For instance, it would be disastrous if the IT system did not work for universities and students in July, August and September when we have the highest volume of entrants. Having said that, let me assure the House that universities are doing their best to make sure that the new system works, and it would be a great help if the new system could be communicated extensively through Home Office and FCO networks overseas to prospective students, their advisers and overseas Governments. So far, this necessary information has been somewhat sparse.
To conclude, universities have been and continue to be willing partners with the Government and the Home Office to implement the new immigration system. There are over 230,000 non-EU students in our higher education institutions, and over 30,000 non-EU academic staff. Their work makes a major contribution to the continued success of the UK’s higher education sector and to our reputation abroad. I hope that my noble friend will join me and other noble Lords who have already spoken in urging the Home Office to encourage rather than discourage them.
My Lords, the way in which this Government have persistently treated the fight against terrorism and the control of our borders as separate and unconnected issues is a failure of duty to the British people. This is the seventh piece of primary legislation since 1997 and, frankly, it is a ragbag. It will of course have to be replaced by the next Conservative Government with a much better-thought-out and comprehensive Bill, and I would urge the leadership of my party to start work on the provisions of such a Bill now. None the less, this Bill gives us the opportunity, within its scope, to put in place by amendment further urgent and important safeguards.
I shall focus my remarks on one subject only: the use and abuse of passports. It is an issue which I have followed for several years, and indeed my noble friend Lady Anelay took a particular interest in it too when she spoke on home affairs matters from the Front Bench. I have given the Minister notice of a question I should like to put to him: what are the arguments for and against putting the Identity and Passport Service into the UK Border Agency? I am grateful to the Minister for his prompt responses to a number of Questions for Written Answer I have tabled recently which have given me ex-cathedra facts with which to support my case.
I start from the simple premise that the Government have constantly told us that we are at war with terrorism and that our troops are fighting in Afghanistan to prevent terrorism coming to Britain. It is hugely more costly, in lives and in pounds, to fight terrorism by military means abroad than by efficient border control at home. From this it follows that the Government have an obligation to ensure that our troops abroad are backed by measures at home that minimise the risks of such terrorism entering this country. Indeed, this is an obligation similar to that which they have to ensure that our troops are properly equipped overseas, but that is a matter for debate on another day.
Special risks arise from the opportunities for unmonitored travel by certain UK passport holders who may have been groomed as terrorists in Britain and then sent abroad for terrorist training. I am, of course, thinking of dual passport holders, would-be jihadists, who might then use their dual passports to travel to madrassahs and training camps in countries such as Pakistan. This matter was vividly referred to by the noble Baroness, Lady Falkner, on 15 December. As I shall demonstrate, her concerns and mine are not dealt with by reference to the e-borders system, which will not cover even 60 per cent of passenger and crew movements by the end of this year and will not reach 95 per cent until December 2010—and that assumes no glitches in the installation of this large computer project.
There is something wildly disproportionate in the massive resources which have been directed to ID cards for all when the long-standing passport control system remains so inadequate.
In a letter to me on 22 January, the Leader of the House explained:
“There is nothing in the British Nationality Act 1981 or any of its predecessors to prevent a person with British nationality holding another nationality”.
I do not believe that, even in a situation where the Government remind us on the screen each day that terrorism is at a severe level, it is necessary or desirable to ban dual nationality. But I do believe that it is essential that the Government as a whole should be fully aware of every detail of the holding and use of dual passports, and, indeed, of dual nationality.
The first fact that astonished me was that the Government do not know how many UK passport holders hold the passport of another country. They should at once establish a database so that they do know. The Minister told me:
“Although applicants for British passports are asked for details of any other passport held at the time of application, any system of recording passports obtained or renewed during the validity of a UK passport would be costly and difficult to enforce where a person with dual nationality chose not to notify the acquisition of a passport in their other nationality”.—[Official Report, 9/2/09; col. WA167.]
We should amend this Bill to make it compulsory that any applicant for a UK passport discloses the possession or subsequent acquisition of a foreign passport. A failure to comply would have a simple penalty: the immediate cancellation and withdrawal of the UK passport.
As the noble Baroness, Lady Royall, explained in her letter:
“British passports are issued at the discretion of the Secretary of State under the Royal Prerogative”.
Are there any limitations on the use of the prerogative in relation to passports? We all remember that Queen Elizabeth I said, “My dogs wear my collars”. She was, of course, referring to decorations, but I am sure that she would have taken the same view of passports if they had existed.
At present, the electronic reading of passports at border points does not reveal the details of other passports held, even when they are known to the passport service. It should. I propose, therefore, that details of any other non-British passport held should be entered in the UK passport of the holder. I also propose that all immigration and other appropriate authorities be authorised to demand sight of any other passport held. That would help them to check the movements of dual passport holders.
There are other matters relating to passports that need attention. At present there is no enforceable obligation on the executors of a deceased person to return a UK passport to the authorities for cancellation. The result is that the street value of an unexpired dead person’s passport is higher than that of a stolen passport because there is no record at the passport agency of the death. We need to ensure that all deaths are notified by the Registrar General to the Passport Agency. Similarly, those serving custodial sentences should be notified to the Passport Agency so that a temporary stop can be put on the validity of any passport that they may hold while they are in prison.
There should be a realistic fee to cover the total cost of the very careful checks that should be made on the application of someone for the replacement of a lost or stolen passport. I have raised this in the past, and the Home Office reply has been that it would be unfair on those of limited means. That, of course, is nonsense; the loss of a passport is an insurable risk like any other property, and I doubt whether it would even mean an increase in the premiums. The replacement fee should be even higher for a second or subsequent loss of a passport.
Another important aspect of dual nationality is the obligation to, or indeed the possibility of, a British citizen serving in, and indeed fighting as a member of, or for, the Armed Forces of another state. It is interesting that this was raised in the House as recently as 26 January by the noble Lord, Lord Ahmed, in relation to service in the Israel Defence Forces. The noble Lord, Lord Malloch-Brown, declared,
“This has raised important issues, and we need to look at them”.—[Official Report, 26/1/09; col. 9.]
What progress are the Government making with that “look”?
The Minister told me this week:
“There are no restrictions in law in the United Kingdom to prevent British nationals serving in the Armed Forces of other countries”.—[Official Report, 9/2/09; col. WA 168.]
There should be, and this issue should be debated.
One point should be corrected at once. To my surprise, the noble Baroness, Lady Taylor, told me this week, in relation to serving members of the Armed Forces:
“Personnel have an obligation at the recruitment stage to inform the recruiting office that they hold dual nationality status, but if they hold a British passport they are not normally required to reveal the country of origin of their non-British passport”.—[Official Report, 9/2/09; col. WA 167.]
I find this incredible. Not only should they be required to do so but they should make available for inspection any other passport that they hold. There may be other matters in connection with passports that I shall seek to raise in Committee.
I am aware that the Home Office is not receptive to outside advice; however, I know that the Minister does not share that view, and I hope that I may be able to assist the Government in improving the Bill. The first obligation on any Government is to protect the realm, and border control is a central part of that obligation. Let the noble—and, in my book, gallant—Lord, Lord West, focus all his efforts on it in the months that remain for this Government.
My Lords, I must start by apologising for running in and out of the Chamber during the early stages of this debate. I was rather more concerned with the more immediate citizenship question, looking at the European Community’s citizenship directive as it related to Dutch citizens and their right to come into the United Kingdom. Having consulted a number of British and Dutch colleagues, I am satisfied that Article 27 of the EC citizenship directive and the Home Office letter to Geert Wilders stand up. It is a delicate and difficult question, but we all need to take on board that the charge that he is under in the Netherlands, the incitement of religious hatred, is something that the British Government, rightly, take seriously. That is also an apology for not being here for all the opening speeches.
I support, and have done for some time, the creation of a British borders agency. I have very little to say about Part 1 of the Bill, not being sufficiently expert in it; I wish merely to point out that when one creates a borders agency, we are heavily into co-operation with our neighbours. I think I am right in saying that the number of Border Agency staff currently stationed in France is already approaching 1,000. The only way that one protects one’s borders, as the Finns and others have told us in EU co-operation, is by co-operating very closely with those on the other side. That also means that one cannot protect Britain’s borders without thinking actively about how one protects other borders. The United Kingdom Government are in some delicate relations now with Frontex, the EU borders agency, but it is clear, as Tony Blair said when Prime Minister some years ago, that for many purposes Britain’s frontiers are now in the Mediterranean. Defending Britain’s borders therefore requires active co-operation with our friends and neighbours in other border agencies across the European Union.
On Part 1 I will merely add that I have puzzled for many years, and asked in this House, why the Government have made no plans to separate those passengers arriving at British airports from within the European Union from those arriving from outside it. In border management terms, in the medium term and even more in the long term, that is a highly desirable development that we should have been planning into the building of terminals but have failed to do so, most clearly with Terminal Five.
I want to talk mainly about Parts 2 and 4. The noble and learned Lord, Lord Goldsmith, made a useful—and, I felt, in some ways despairing—speech about the important concept of citizenship and the way that the Bill slides piecemeal into a bit of it without tackling it all head-on. We learn here about earned citizenship and about active citizenship; the noble and learned Lord also talked about learnt citizenship.
I agree strongly with the noble Lord, Lord Marlesford: we need also to take on board the whole issue of dual citizenship, not just at the bottom end but also at the top. Among my family and my close relations there are people who hold British and Irish passports; British and American passports; British and South African passports; British and Dutch passports; and British and German passports. That is likely to extend further in the coming years. If we are talking about citizenship, it is not just a question of requiring the arriving Somali or Bangladeshi to demonstrate their active commitment to Britain; we probably also need to talk about some of those at the top end of British life and community who think that they live here non-domiciled and do not pay tax—the ultimate inactive citizenship. There are a large number of issues that are not really covered in the Bill but to which the whole citizenship debate needs to extend.
This morning, with reference to Sri Lankan residents in this country, I was looking up where the largest numbers of foreign residents in this country are drawn from. Of the top 10 countries, five are rich: the United States, Ireland, Poland, France and the Netherlands. It is not just a question of migrants and asylum seekers; we have some very large questions about the dispersal of our sense of a single national community across the developed, as well as the developing, world.
The criteria by which one earns citizenship and the degree to which Part 2 allows a great deal of flexibility for administrative judgment are something that we will need to explore more in Committee. The concept of “exceptional service” in Clause 37, for example, is very unclear. Would we say that interpreters working for the British Army in Iraq and Afghanistan had performed exceptional service that entitled them to British citizenship? I would, but Her Majesty’s Government have not behaved so far, in their attitude to people who work as interpreters with the British armed services in Iraq, as if that was in any way exceptional. We are going to want to hear rather more about what the content of such criteria might be. The meaning of “good character”, in Clause 43, is even less clear.
The noble Lord, Lord Marlesford, talked about British nationals serving in other armed forces; this Bill is about the very large number of non-British nationals serving in the British Armed Forces, which is not that far short of 10 per cent of our Army if one includes the Gurkhas. The Bill assumes that the figure is a constant, or perhaps will even increase further. It is on the fringes of the Bill, but it is an issue of public policy of some importance.
On students, I declare an interest as a member of the largest lobby in this House, which the press oddly failed to pick up: the academic lobby. We are not paid specifically for our lobbying in the House, but we are very active, assertive and even on occasions self-righteous. I am puzzled by the problems with which Clause 47 exists to deal. We have worked for some years on how to get rid of bogus colleges. Compulsory registration seemed to be a relatively straightforward way of resolving the problem. The lack of co-ordination between the Home Office and what is now DIUS is clearly very much at fault. The costs to students as they go through—I declare an interest as a PhD supervisor, having a number of students who have spent more than three years here—are high. Given that the British higher education sector is a major contributor of high-value international services, there are some major issues here that we need to explore further. However, as a former holder of an F-1 student visa in the United States, I recognise that these things are acceptable; it is just a question of how they have to be managed.
In Committee I shall explore Clause 53(5), on the extent to which the Bill will apply to the Crown dependencies. It states:
“Her Majesty may by Order in Council provide for any of the provisions of this Act … to extend, with or without modifications, to any of the Channel Islands or the Isle of Man”.
Such a clause comes up in a very large number of Bills and enables the Crown dependencies to cherry-pick. Given that there are major issues here of border management and of tax evasion—with which HMRC and those parts of it which will go into the border agency are concerned; for example, value added tax evasion for the Channel Islands—as well as issues of freedom of residence in both directions, I give notice that in Committee I shall want to explore the clause further.
My Lords, my four years’ membership of the Joint Committee on Human Rights gave me the opportunity to find out quite a lot about the immigration and asylum system. That experience forms the basis of the points that I shall make today.
Some of your Lordships may remember the debate on another immigration Bill, the UK Borders Bill, on 13 June 2007. Eighteen months later, the words of the right reverend Prelate the Bishop of Winchester in that debate have not become out of date. He said:
“Words such as unjust, inhumane, ignorant and thoughtless are constantly in my and others’ minds as we find ourselves working with people at the sharp end of these systems, whether they are asylum seekers or those who, in a range of ways, have been tasked or have volunteered to work with asylum seekers. I find that the system … puts at risk the well-being and lives of vulnerable people and those who should be treated better”.—[Official Report, 13/6/07; col. 1720.]
There have undoubtedly been some changes since June 2007, the lifting of the reservation on the Convention on the Rights of the Child being one notable and most welcome example, but, overall, nothing has happened that could lead one to conclude that those words of the right reverend Prelate are no longer accurate. They were echoed in the thought-provoking remarks of the right reverend Prelate the Bishop of Lincoln earlier today.
Since I first came into contact with the current asylum system, visited detention centres and read many reports, I have been struck by the range of individuals and organisations working in campaigns and committees to get protection for those fleeing persecution and to right the wrongs of the asylum system. It is a great British tradition of which we can be very proud—I mention that great reformer, Eleanor Rathbone, who instigated the Parliamentary Committee on Refugees in 1939, and Sir Nicholas Winton, who rescued many unaccompanied asylum-seeking children from Czechoslovakia. In that tradition, we have today Still Human Still Here, which is a coalition of 29 organisations, the Strangers into Citizens campaign and the Refugee Children’s Consortium. Their work and that of many like them is a manifestation of our very human sense of responsibility to alleviate the suffering of others and to save life where we can.
So these are not technical matters; first and foremost, they are matters of life and death for many human beings, as the noble Lord, Lord Thomas of Gresford, pointed out. If the Minister has formed the opinion that I am being a bit hard on the Government, perhaps I may remind him of the case of the gay student, Mehdi Kazemi, who was to be returned by the Government to Iran, where his boyfriend had been hanged for homosexual activity, until there was a spirited intervention by many, including some who are speaking in this debate, and the Government changed their mind.
It is sad that not much of this spirit and sense of urgency have found their way into the rather unsatisfactory Bill before us. On destitution, I remind the Minister that the Joint Committee on Human Rights said:
“We have been persuaded by the evidence that the Government has indeed been practising a deliberate policy of destitution of this highly vulnerable group”.
The Minister heard the noble Earl, Lord Sandwich, explain most eloquently what this means. Why have the Government not included in the Bill a change so that all refused asylum seekers can be given cash support under Section 95 of the Immigration and Asylum Act 1999 until they return to their country of origin or are given status in the UK? That would save the Government substantial resources. It would save money, because there would be no need to assess entitlement to Section 4 support to see who would get vouchers and who would not. There would be no need to administer a voucher scheme at all, in which there must be considerable administration costs. There would be no need to use the asylum support adjudicators appeals process for those refused Section 4 support. I hope that we shall see amendments in Committee to deal with this.
Perhaps I may turn briefly to what is in the Bill. Clauses 37 to 39, on acquisition of British citizenship by naturalisation, present a range of problems for those fleeing persecution and seeking sanctuary, because of the barriers that the proposals will put in the way of their becoming lawfully resettled and building a new life. The United Nations High Commissioner for Refugees has particular concern about these clauses. The UNHCR makes the point that,
“the acquisition of British citizenship proposed by Clauses 37-39 complicates the naturalisation process”,
and in particular that,
“the naturalisation requirements, as presently outlined in the Bill, may prove too difficult for refugees or those with humanitarian protection to meet and may in fact impair integration and access to a durable solution”.
The lack of clarity in the Bill on what situations will count as a “qualifying immigration period” is of concern. The Refugee Legal Centre argues that a refugee must be able,
“to count the time they spent in the UK making a well-founded claim for asylum as part of their qualifying period for naturalisation”.
An asylum seeker does not become a refugee because the Home Office decides to grant him refugee status. The decision to grant status is a declaration that the person already was a refugee.
The UNHCR is concerned at the length of time it will take under these provisions to become a citizen and maintains that best practice suggests no longer than five years, which should include those whom the Government have accepted under the Gateway Protection Programme.
In its comment on the Bill, the UNHCR has reiterated its view that those seeking asylum should not be penalised for illegal entry. It is regrettable that once again this UN agency has to remind the Government of that. It is quite hard for an ordinary person to understand how someone fleeing persecution is going to go to all the offices of the Government persecuting them and collect passports and visas to flee lawfully. Perhaps when the Minister replies he can give the House a convincing explanation as to how that can be done. I hope also that the noble Lord can make it clear that, despite Clause 37(2)(f), refugees will not be penalised for illegal entry by having to wait longer before they can apply for naturalisation.
The Government are a committed supporter of the work of the United Nations and one of the key players in its activities. I hope that the Minister can assure the House that the UNHCR comments on the Bill will be taken seriously by the Government, and that he will look again at the points it has raised to see what can be done to improve the Bill to make it accord more with the refugee convention to which this country is a signatory.
My Lords, I begin by welcoming some of the provisions in the Bill—my noble friend referred to them in his opening remarks. In particular, I welcome the measures to tackle criminal activities and thereby to protect the public, the improved procedures in some of the practices that currently exist, the anti-discrimination measures and the important commitment in Clause 51 to the safeguarding of children. I also pick up the point made by the right reverend Prelate, the Bishop of Lincoln, who sought to instil a more positive atmosphere into the consideration of these issues by saying that we should have a presumption of hospitality, given the undoubted benefits that immigration has brought to our country over a long period.
The Government have a long-standing commitment to what it has described at various times as a fairer, faster and firmer approach to dealing with these issues. In theory, it would be difficult to quarrel with that. However, we know in practice that the challenge of delivering such a system is not easy and has proved difficult over the years. I shall comment on some aspects of that approach. First, I support a more streamlined approach, but only if the procedure is reliable. The available information needs to be accurate. Occasionally that is not the case. I remember, when I was in the other place, an instance where officials dealing with a particular case were not as well informed as they should have been about the situation in the country from which the asylum seeker came, and, in particular, about the situation facing particular minorities in that country. Accordingly, they were not sympathetic to the asylum seeker’s case. It took a long time to ensure that the correct facts were properly appreciated and understood. I was always worried in that circumstance that if the system had been quicker we would not have managed to establish the facts in time before that asylum seeker was in danger of being returned.
Secondly, I came across an example where the medical evidence in relation to an asylum seeker, which was relevant to the person's case, dealing with the after-effects of torture, was not accurately recorded and where, indeed, his records were in danger of being confused with those of another individual. The point I seek to make is that, to streamline the system, information must be accurate and officials need to have the highest quality training and be able to be informed about the conditions in the countries from which would-be citizens of this country are coming.
The noble Earl, Lord Sandwich, talked movingly about the situation that faces many failed asylum seekers. I was very struck by the information that I assume has been sent to us all of us by the London Detainee Support Group. It makes the point that certain countries—Sweden and Australia were mentioned—seem to have a better system in place for dealing with such asylum seekers. Have these examples been looked at? Are there examples of good practice that we can take on board and incorporate in the measures that we are planning to introduce?
Not surprisingly, the plight of asylum seekers from Zimbabwe has been mentioned. At Question Time today, a number of noble Lords referred to the situation in Zimbabwe. Given the uncertainty in that country, I should like to be assured that there is no question of forced returns to Zimbabwe until the situation becomes a great deal clearer and the long-term future is clearer.
Noble Lords have referred to the provision about the desirability of volunteering by people hoping to become citizens and the fact that that would be one way of demonstrating active citizenship. Obviously, we are all aware of the great contribution that volunteering makes, and the real satisfaction that it gives to volunteers. However, I was struck by some of the comments made in the Refugee Council’s submission that for some people, who might be very good citizens of our country, volunteering would be difficult—for example, single parents, people suffering from an illness or those who are subject to other circumstances. That needs to be taken into account.
I encourage the Government to work with the voluntary sector on these issues. Many voluntary groups around the country have great experience of working with immigrants and asylum seekers and bring great experience as a result. Government and local government working in partnership with such organisations would be very valuable indeed.
I should particularly like to refer to the section in the Bill regarding the safeguarding of children and to bring to the attention of the House what I believe is a pioneering initiative in the north-east of England—a partnership between the different communities and the NSPCC, aimed at raising the profile of child-safeguarding issues across all communities in our part of the country. That has led to a general approach to raising the profile and to some specific initiatives; for example, two primary schools in Newcastle that have a number of newly arrived families and where some 42 languages are spoken have been contacted by the BME and the NSPCC partnership. Events have been held in which a large number of parents have become involved, at which issues of child safeguarding have been dealt with as have those relating to citizenship. The point was made that whether people are here for two months, two years, or for life, they can make a very real contribution to society and the future of our country.
I conclude by again highlighting what other speakers have said about the contribution that immigration has made to our country. I fully believe that the Government are aware of the benefits of immigration but I encourage them to make the arguments as loudly as possible to counter some of the prejudice which, all too sadly, still exists.
My Lords, in my remarks this evening I will specifically address Clause 46, which deals with the common travel area between the United Kingdom, the Republic of Ireland and the Crown dependencies. I am particularly concerned at its impact on Northern Ireland.
The common travel area recognises the close social, economic and cultural ties and the special relationship and shared history between the Republic of Ireland and the UK. The history of the north and south of the island of Ireland is shared in terms of language, culture, economics and close family relationships, as do, to a lesser degree, the Republic of Ireland and the UK as a whole. Rather than strengthen an agreement that has made travel across the island of Ireland and between the Republic of Ireland and the UK easier for nearly a century, the proposals before us effectively abolish the common travel area, particularly with respect to air and sea travel. They do this by removing the provision that means that persons departing from or arriving in the UK from within the common travel area are not subject to immigration control. The clause effectively introduces immigration controls on all sea and air routes between the UK and the Republic of Ireland. This appears to have been developed with limited understanding of the needs of the particular circumstances of Northern Ireland. The proposals on tightening the regulation of cross-border travel are, on the island of Ireland and particularly in Northern Ireland, very sensitive.
We on these Benches do not think that the Government have made their case for any change to the common travel area. It is our understanding that the main reasons for these proposals are the e-borders initiative which will require proof of identity for all passengers travelling between the Republic of Ireland and the UK, and the need to bring the UK system into line with the developments in the Republic of Ireland. The UK Border Agency has also made much of the changed security concerns and intimated that these are in part behind these proposals. For two reasons we find this unconvincing. First, the proposals do not provide for policing of the land border, which is very porous. Secondly, the measures now sought were not deemed necessary between Northern Ireland and the Republic of Ireland during the 1970s and 1980s when the Troubles in Northern Ireland were at their height. The consultation document mentioned the risk of abuse of the common travel area but gave no evidence of such abuse.
Clause 46 means that immigration officials can challenge an individual they suspect of not being in compliance with immigration rules to prove their nationality. This will apply not only to those travelling by sea and air but to those stopped by an ad hoc immigration check near the land border. This power can be applied to any individual, including British and Irish nationals. There will clearly be a considerable socio-economic impact on CTA nationals who travel between the UK and Ireland and who do not have a passport or UK identity card but will now have to purchase them.
Those communities along the border, especially near the sea crossings and areas where tourism is a cross-border pursuit by virtue of the proximity between the north and south of Ireland, will be severely inconvenienced by having to carry ID cards; for example, those living by the lakes of Fermanagh which straddle the two jurisdictions and which are a major tourism destination in both the Republic of Ireland and Northern Ireland. There could be a particularly significant impact on the ethnic minority communities in these locales. The impact of these measures will be significantly disproportionately felt in Northern Ireland. It is our belief that they will impact negatively on levels of trade and tourism.
The UK Border Agency's own figures suggest that implementing these measures would lead to an economic cost from loss in tourism revenue of up to £12 million in the first year. However, it is not clear where this figure comes from or to whom it applies. Could the Minister please elaborate? Where does this figure come from? Does it relate to tourism in the UK as a whole, to Northern Ireland, or to England, Scotland or Wales? Have the Government had any discussions with the Irish Government about the potential impact on tourism there? The tourism industry is one of the most important sectors of the Northern Irish economy and to introduce a measure which could damage that industry during the current economic difficulties is frankly irresponsible. One of the great innovations in recent years is a common tourism effort, north and south, to attract tourists from abroad to both parts of the island. This seems to me to be clearly endangered by these proposals.
If a list of travel documents is to be imposed, surely it should not be such a restrictive list as is currently envisaged; namely, only a passport or a UK ID card. Currently, airlines flying between Ireland and the UK, and indeed airlines with routes within the UK, require proof of identity to board a flight and will accept many forms of official identification such as a driver’s licence, an Armed Forces identity card or a Northern Ireland electoral identity card. I once tried using a House of Lords pass but it did not pass muster. As many individuals have family and personal relationships as well as job commitments across the two states, surely it would make sense to adopt a broad approach to facilitate travel. Failure to provide a particular document should not be a reason for refusal of permission to travel, or a potential criminal offence.
We welcome the Government's pledge in the consultation and in their response that they will not reintroduce permanent, fixed checkpoints on the land border, which frankly never worked anyway. The Bill should make this explicit to prevent an interpretation to the contrary or changes by subsequent regulation. As I noted before, the Government's stated objective is to strengthen and increase the security of the UK's CTA borders. However, no empirical evidence relating to the CTA border has been provided by the Government regarding the necessity of these reforms, nor has there been much information about how the proposed border controls will work in practice, particularly if there are no controls on the land border. Are the Government suggesting that they will make checks on those travelling between Northern Ireland and the rest of the UK? The measures proposed in the Bill mean that UK citizens in Northern Ireland are subject to travel controls that are not imposed on UK citizens travelling from one region of Britain to another, yet crossing from Northern Ireland to the Republic is as common an experience for those living in Newry, Enniskillen and Derry as is the journey from Chester into Wales or from Berwick-upon-Tweed into Scotland. Any moves towards isolating Northern Ireland within the British Isles is a regrettable step backwards that should be avoided.
Can the Minister inform the House of the costs and implications for infrastructure that these measures will entail? Is there currently the physical space for full immigration checks at some of the smaller ports and airports within the UK? Will the changes provide good value for money? Would it not make more sense to work closely with the Irish Government effectively to draw a line around the two islands and allow the free flow of movement between them? Will the checks be relaxed if there is the development of a complementary system of e-borders and visa checks between Ireland and the UK? I understand that the Irish Government are bringing in their own e-borders system. Or are the Government using a sledgehammer to crack a fairly small nut?
These Benches are extremely concerned at references to mobile checks being made on a “risk-led” basis. The CTA consultation proposed the introduction of,
“ad hoc immigration checks on vehicles to target non-CTA nationals”.
The Home Office has subsequently stated that such checks would be “intelligence led” on persons both arriving in and leaving Northern Ireland. The Government have not set out what criteria will be used as the basis for these operations or set out transparent monitoring to ensure that they are not relying on racial profiling.
The proposed powers in the CTA consultation will only increase the likelihood of operations such as Operation Gull. It is essential that the circumstances in which such checks may be made are carefully defined to avoid establishing a broad power of internal immigration control. We are concerned that these measures could have a disproportionate impact on ethnic minority persons crossing, or even just living and working near, the land border. The potential outcome of these circumstances would mean that ethnic minority persons would have to constantly carry identity papers or face frequent questioning regarding their status. Let us consider, for example, the plans of the UK and Ireland to resettle groups of refugees from camps in Tanzania. These refugees have been selected on the basis of their vulnerability. The group will be resettled in a cross-border project in the Republic of Ireland and Northern Ireland. Its members are likely to want to visit fellow community members across the border. Could they be more likely to be checked in the planned “intelligence-led” operations at the land border? Further, as they will be travelling on refugee travel documents which are not provided for in the list of acceptable identification documents, they may encounter problems as a result, as I did with my House of Lords pass.
Genuinely intelligence-led operations should apply evidence thresholds and practices concurrent with the norms of a democratic society outside an emergency situation. There are, for example, existing provisions in the Immigration Act 1971 for search and arrest by immigration officers through a warrant granted by a magistrate to an immigration officer when the magistrate is satisfied that there are reasonable grounds for suspicion. There is no indication to date that UKBA intends to restrict intelligence-led operations to these circumstances.
As well as immigration control, the CTA impact assessment makes some passing references to the reforms also being aimed at reducing organised crime and counterterrorism risks. We have raised concerns in the past at powers that are properly the role of police officers being delegated to civilians. Noble Lords from all sides of the House will be aware that there is a particular policing context within Northern Ireland, including contexts for human rights compliance and different structures for oversight and accountability. We are concerned that powers and actions more appropriately vested in police officers are being taken up by UKBA officers, without the same standard, training and accountability as the PSNI officers possess.
There is a range of wide discretionary powers vested in immigration officers. This includes provisions relating to the removal in Section 10 of the Immigration and Asylum Act 1999. Actions pertaining to the ability to flag down and stop vehicles on the land border and the potential to detain their occupants are reminiscent of emergency-type powers which could act contrary to the normalisation of security arrangements committed to in the Good Friday agreement.
The common travel area arrangements would benefit from being clarified and formally established. It is our belief, however, that the common travel area would be best strengthened by making travel between the two countries easier and clarifying the details of that freedom of travel, in the form of the mutually recognised visa system or the jointly issued common visa.
My Lords, I remind the House that the advisory time for speeches is eight minutes. We have business following this debate and will be very pressed indeed to finish at the appropriate time unless people keep their speeches pretty close to eight minutes.
My Lords, I will focus on a single issue which does not relate to the specific provisions of the Bill but falls among the issues that the noble Lord, Lord Avebury, referred to as missing from the Bill. I refer to the position of Zimbabwean refugees, who are prohibited from working.
Having arrived in this country in 1965 as a refugee with no passport, I have a special and deep empathy with the Zimbabwean refugees and understand only too well their despair and desolation. There are 11,000 of these refugees, surviving on handouts and the charity of others, without a home or even a place of their own, with nothing to do all day but wait and wait for Mugabe and his henchmen to be replaced. They all desperately want to work, not only to earn sufficient to live on but also to remit part of their earnings to their families in Zimbabwe, the majority of whom are starving. Most of them have the skills to make a contribution to the economy of the country. Among their numbers, 15 per cent are teachers, 10 per cent are accountants and a further 10 per cent are health and social care workers. But the Home Office does not allow them to work. Because of this, they are deprived of the right to live with dignity and respect in this country, and they suffer terribly.
In government—I do not mean only this Government—there is from time to time a lack of alignment between the policies of differing departments. The Home Office does not allow these 11,000 Zimbabwean refugees to work even though they are permitted to remain here until it is safe for them to return to Zimbabwe. At the same time, the Government, through DfID, are committed to making a significant contribution to the reconstruction of Zimbabwe when Mugabe and his henchmen are deposed. A key part of this contribution will be the training and upgrading of the skills of the population. If the 11,000 Zimbabwean refugees were allowed to gain experience and skills, upgraded where appropriate, by a scheme such as the one I will now describe, it would make a valuable contribution to DfID’s future work.
The Southern African advanced education project was set up in 1986 to train South African exiles who, it was anticipated, would play an important role in building a new South Africa when apartheid was defeated. In addition to formal training, the trainees were placed in industry and central and local government, where they gained invaluable experience. Of the exiles who went through the programme, many became leading figures in politics, the public sector and business in South Africa when the African National Congress took over the government.
Such an approach, aligning the policies of the Home Office with the future commitments of DfID, would be a constructive way of solving the inhuman plight of the 11,000 refugees who are obliged by government policies to sit around destitute all day, doing nothing. At the same time, they would be making a contribution to DfID’s future task. The noble Earl, Lord Sandwich, included in his eloquent speech a quotation from the Prime Minister. This approach is one which the Prime Minister might consider, together with the other solutions that he is looking for.
On the world stage, the Government loudly condemn Mugabe, much to their credit, while often ignoring his victims on our doorstep. Luka Phiri is one of these victims. I met him last week; he is a Zimbabwean trade unionist and opposition activist, who was tortured by Mugabe’s henchmen and fled Zimbabwe. He had to resort to using a false Malawian passport in order to escape, and he came to the UK where he thought he would find sanctuary. The Home Office turned down Luka’s claim for refugee status, and he then faced a choice—to return to Zimbabwe and risk torture or even death, or stay here and face destitution. Like thousands of other Zimbabweans, Luka felt that he had no choice. Since that time, he has relied on the support of friends, the community and charities to survive. His story is like that of so many other Zimbabweans in this country—a story of destitution, not of dignity and respect.
In early January, Luka was working with the Citizens for Sanctuary campaign, collecting some 500 CVs demonstrating the skills and experience that the Zimbabwean refugees could contribute if only they were allowed to work. Two days before the CVs were to be handed in at 10 Downing Street, Luka was detained. The Home Office tried to remove him to Malawi, despite clear evidence that he is a Zimbabwean and that the Malawian authorities would send him straight back to Zimbabwe. Thankfully, the intervention of lawyers, campaigners, two Labour MPs and some exposure in the Observer halted his removal. Will the Minister comment on the practice of removing Zimbabweans to Malawi, knowing that they will be sent to Zimbabwe?
It is heartening to learn that more than 50 organisations—schools, universities, faith institutions and charities, as well as MPs and the media—have already pledged to join the Citizens for Sanctuary strategic internship scheme. It will give Zimbabweans additional skills and work experience, so that when democracy comes to Zimbabwe they will be equipped to return and rebuild their country. It is dependent for its success on the Government allowing Zimbabweans to work. Will the Government consider supporting the scheme and making provision for the issue of temporary work training permits enabling refugees to participate in it?
My Lords, at the outset, I would like to make some general comments regarding immigration. This country, over a period of many years, has welcomed people from overseas who have in the course of time been assimilated into the community and are now part of the British population. I believe that the British, for all their faults, are tolerant. This country is a land of opportunity, and it provides the environment and facilities whereby hard work and initiative lead to success. My own family, with a number of other Asians, were expelled from Uganda in 1972, and we were welcomed here by a Conservative Government. We came here penniless, and we have been able to flourish and attain prosperity. I come from a small provisional town in Uganda, and the fact that I am sitting in your Lordships’ House says a lot for this country.
I am convinced that we will have our own equivalent to Barack Obama who will one day be the Prime Minister of this country. It took over 45 years for Martin Luther King’s dream to be realised, but I hope that our own dream will be fulfilled in a shorter period.
People who have come here from abroad have contributed to the well-being and advancement of the United Kingdom, and their children have had the benefit of a British education and are doing extremely well in every walk of life. Regarding assimilation, I should like to refer to the mosque in Brick Lane. It was originally a Huguenot church, it became a synagogue and it is now a mosque. Brick Lane is now a buoyant area, and most of the people living there are of Bangladeshi origin.
Having said that, I do not feel that we can allow free access to everyone who wants to come here. I am a supporter of a system of proper immigration controls in this country. Immigration brings with it a large number of possible benefits to our society, and we should celebrate the contribution that is made to our national life by those who have chosen to settle here. These benefits include the importation of vital skills and dynamism, as well as adding to a rich mix of culture.
In recent years, we have witnessed a significant increase in the number of immigrants coming to this country. There has been a five-fold increase in the numbers coming here since 1997, and that takes no account of those who come here illegally. The increase in immigration is not per se something that we should worry about, but we need to examine the ability of our infrastructure to cope with the demands that are placed on it by rising numbers.
Looking at all the circumstances, we need to put in force a system whereby the number of immigrants should be calculated after an annual consultation with a variety of bodies, including local authorities, housing providers and public service organisations.
There has been pressure on the delivery of public services, and there has not been an adequate provision of resources to those charged with delivery. The chief constable of Cambridgeshire Constabulary has expressed her frustration at the pressure that she was facing, which has not been met with appropriate resources. In certain areas, schools are encountering difficulties in coping with the needs of children of immigrant communities because of their inability to speak the English language. It is therefore important that we apply an annual limit as a firm and fair immigration policy, which will improve community relations and ease the pressure on our public services.
I also express my concern at the number of illegal immigrants, which is estimated to be about 600,000. This number is very high, and some of these illegal immigrants have been and are being exploited by other persons. They may have been trafficked by unscrupulous persons, and they may be badly treated. I have spoken previously in your Lordships’ House on people trafficking.
We therefore need to look carefully at the provisions of this Bill and examine them in detail during its passage. The Government’s measures do little to engage with the police and they do little to provide the appropriate powers; in essence, it is hard to see what will happen beyond the issue of a new uniform. We need a dedicated border police force, charged with regaining control of our porous borders and supplied with the necessary powers to undertake this task. We need to ensure that this new integrated border force combines the work of the police with immigration and customs officers. Officers should be trained and empowered to concentrate on those who overstay their welcome and to address the backlog of those who work here illegally.
This fits into a wider debate about demographics, population levels and the distribution of the population, but I am disappointed by the Government’s lacklustre approach, which is incorporated in this Bill.
Part 2 of the Bill relates to citizenship. I am in principle in agreement with the proposals concerning the acquisition of British citizenship by naturalisation. I am broadly in favour of the six requirements set out in Clause 37. I also agree that legal immigrants need to meet criteria, which include knowledge of the English language, payment of taxes, becoming self-sufficient and joining in the British way of life. All these points will help integration and assimilation into the British community.
I would now like to turn to Part 3, relating to the common travel area, as referred to in Clause 46. I welcome the proposed provisions to apply powers to control people arriving in the United Kingdom from other parts of the common travel area. We may, however, consider having tighter border controls between Northern Ireland and the Republic of Ireland, as there are a number of tiny lanes with no visible borders.
I would also like to express concern at the behaviour of some students who come here to study and after a while stop their studies and become economic migrants. In principle, I welcome the provisions of Clause 47, but of course we need to look at this aspect in greater detail in Committee. Clause 48 relates to the fingerprinting of foreigners liable to automatic deportation. I concur with the proposals to fingerprint those foreigners, but it is very important that the deportation takes place as soon as possible. Unfortunately, this has not been done adequately, and criminals have been able to stay in the country, presenting a danger to our community.
I now want to talk very briefly about Clause 51, in Part 4. I do not feel that there are adequate provisions and that enough will be done for the safety and well-being of children. I am very much concerned about the plight of children who have been trafficked. Furthermore, there are cases where the age of a child may be in dispute, they may be housed in unsafe accommodation and their case may not be dealt with properly in the asylum system. Therefore, we will need to examine the provisions of the Bill carefully.
I look forward to contributing further during the Bill’s passage through your Lordships’ House and to correct, improve and strengthen the measures for the benefit of our country and all who live and work here.
My Lords, I share the concern of the noble Baroness, Lady Warwick of Undercliffe, and the noble Lord, Lord Wallace of Saltaire, about Clause 47. I should declare an interest as Chancellor of the University of the West of England. I do not propose to say anything about Clause 47 today, although I hope to say something in Committee.
I wish to speak briefly about Part 4 and two rather disparate clauses—Clauses 50 and 51. I am afraid that I take a different view from the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Thomas of Gresford, in relation to Clause 50, on the transfer of judicial review from the administrative court to the Upper Tribunal. None the less, I have a number of reservations about how this should be done.
I am very well aware of the huge burden on the administrative court and the Court of Appeal. Immigration judicial review cases to the administrative court are running at more than 4,000 a year. Reconsiderations of decisions of senior immigration judges also go to the administrative court. The result of both factors is that two-thirds of the time of the administrative court is taken up, creating considerable delays there, and there are considerable delays in the Court of Appeal, where not every application for permission or appeal has much importance. There is delay in all these courts. The former Lord Chief Justice, who is now the senior Law Lord, drew attention to these problems in March 2008 in his review of the administration of justice in the courts, which was presented to Parliament. Quite simply, there are not enough High Court judges to cope with all the work going to the administrative court. Something has to be done.
The noble and learned Lord, Lord Lloyd of Berwick, referred to the response of the senior judiciary to the consultation paper of last autumn. It would appear that senior judges very much support the implementation of Clause 50 for very practical reasons. As I understand it, the hearings in the Upper Tribunal would be by senior immigration judges who are all very experienced in immigration, and also by High Court judges where appropriate when the cases are difficult or high profile. A High Court judge would preside over the chamber.
The noble and learned Lord, Lord Lloyd, is concerned that every case should start in the administrative court and be transferred if it were not of sufficient importance to the Upper Tribunal. It seems to me that the point is not which court, but which judge, should deal with the case. Therefore there will be cases that are appropriate to be tried by senior immigration judges in the Upper Tribunal who could not try them in the administrative court. I hope that the judge in charge of that chamber, a High Court judge, would ensure that High Court judges tried cases that were of sufficient importance and sufficiently high profile.
The noble Lord, Lord Thomas of Gresford, asked for safeguards in relation to such a transfer to the Upper Tribunal. I entirely agree. I understand that Clause 50 is almost certainly part of a wider process which will transfer all immigration work and appeals to the Upper Tribunal, including in due course the Asylum and Immigration Tribunal. My understanding is that all that can be done by statutory instrument. The transfer across will undoubtedly relieve the overburdened Court of Appeal as well as the administrative court. The Court of Appeal will continue to hear appeals on points of law, which is its function, with the leave of the Upper Tribunal.
My first reservation for the Minister is that I hope that any important point of principle, practice or other compelling reason would find its way to the Court of Appeal under Section 13(6) of the Tribunals, Courts and Enforcement Act 2007, and that this provision will not be narrowly construed. I have other reservations on which I shall seek assurances in due course from the Minister. The judges who try this work—those who are not High Court judges—should be carefully selected. I assume that Section 18(8) of the 2007 Act will apply and that the judges appointed to the Upper Tribunal for immigration cases will be subject to the agreement of the Lord Chief Justice in England, the Lord President in Scotland and the Lord Chief Justice in Northern Ireland. As I have said, high-profile and difficult cases should continue to be tried by High Court judges. I also hope that the Judicial Studies Board will provide suitable and very good training for all who sit on the Upper Tribunal who have not done immigration work previously, to make certain that they have that instruction before they sit.
My final reservation regarding Clause 50 is one about which I have extremely strong feelings, and I very much support what has been said by the noble Lord, Lord Thomas of Gresford. The rule-making body for the immigration hearings should be the Tribunal Procedure Committee of the tribunal structure and they should not be delegated to the Home Office which is, of course, a party to the proceedings. There will be a very real danger of a perception, at the very least, of a lack of impartiality if there is Home Office input. I would be very concerned about, and would vote against, Clause 50 if I were not assured that the Home Office would play no part in the rule procedures of a judicial court.
I welcome Clause 51 as far as it goes, although I share the concerns of the noble Lord, Lord Sheikh, about it. It deals with the welfare of children. I declare an interest as a vice-chairman of the All-Party Parliamentary Group on the Trafficking of Women and Children. I understand that the UK Border Agency code of practice for keeping children safe from harm will be withdrawn when Clause 51 is passed, as it is dependant on Section 21 of the UK Borders Act 2007. The current code of practice is, in my view, good except in relation to trafficking. I hope that an even better code of practice will be put in its place. There is only one reference to trafficking in the present code. As the Government ratified the European Convention on trafficking last December, I assume that there must be guidance to Border Agency personnel, among others. I have been unable to find it. I asked the Minister in the other place if I could have a copy, and I have not yet received one. Will guidance be given under Clause 51, or, if not, where will it be found?
The UK is a receiving country for victims of traffickers and trafficking gangs work here at this moment. One has only to ask the Metropolitan police. We are also a transit point from and to other countries, and there is internal trafficking through this country. I agree with the points made by the noble Lord, Lord Sheikh. We need clear guidance for the Border Agency personnel at airports in particular, for the police and to all other agencies including social services which have to manage the children and young people who are victims. Training is extremely important. We need to provide children who are trafficked here with identification cards, because nearly all of them are instructed either to flush their documents down the lavatory in the plane, or to eat them before they arrive in this country.
There is a real doubt, which has already been raised, as to whether the current law is sufficiently clear or strong to deal with certain types of trafficking, particularly the trafficking of babies and young children who are too young to know what is going on, or to have a say in their movements. Section 4(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 requires that a person is said to be exploited, if, and only if, requested or induced to undertake an activity such as begging. For goodness’ sake, how are babies or young children able to comply with that requirement in the legislation? The victims are immigrant children and so part of Clause 51. I should like the Minister to look at this very real problem with a view to dealing more effectively with some of the trafficking gangs. It might interest the House to know that, in this deplorable and immensely lucrative trade in our country, more than 1,000 Roma children from Romania are being managed by a gang from Romania, mostly in London, and that each of those children is worth £100,000 to the traffickers.
My Lords, it goes without saying that the first and, indeed, the last duty of the state is the protection of its citizens. It is the responsibility of the state to determine who comes and who goes and what obligations have to be met. However, in the exercise of that duty, the state must have due regard to its national and international obligations. I am not sure that this Bill meets that test. I say that because the underlying culture of the Bill heralds a move from human rights to citizens’ rights; in other words, it flies in the face of some of our national anti-discrimination and international human rights obligations.
I understood the Minister to say in his introduction that the Bill is human rights compliant. Perhaps he can explain how the differential benefits will apply to probationary citizens. As I understand it, the denial of certain emergency benefits on grounds of nationality requires justification as provided for in Article 14 of the European Convention on Human Rights.
The Bill creates two classes of citizens for the United Kingdom: on the one hand, the citizen with full legal, social and economic rights and, on the other, a probationary citizen with restricted legal and social rights. It is my experience that people do not mind a tough, firm immigration policy, but what people need is a fair immigration policy. For instance, can the Minister tell the House whether the denial of social rights to probationary citizens includes the denial of medical treatment? Will he go a step further and agree to the publication of the list of those rights that would be denied to probationary citizens?
The intention of the draft Bill was to consolidate existing legislation on immigration and to simplify our current immigration laws in the UK. We now have a Bill that is narrower in scope than was envisaged in the Government’s draft legislative programme. Perhaps what we now have is, in a description used in other areas of discussion, a coat-hanger Bill, on which the opportunity is provided to hang large swathes of regulations in the longer term.
Others have commented on some of the details of the Bill and it was my intention, too, to look at the motives and some of the language used. However, having heard the right reverend Prelate the Bishop of Lincoln, who is not in his place, I do not intend even to try to do so, as he summarised well the culture of what immigration policy should be about. I will say this, though: it is my view that some of the language is calculated to deter others from making a home in the United Kingdom. I will not repeat the stories told many times in this House of the benefits that immigrants have brought to this country. There is a consensus that migration is essential to our economy. Placing disincentives on immigrants to plug the gap and take jobs that Britons will not perform will harm an already damaged economy. It is a matter of concern that some of the language used does not inspire but deters.
Here, I declare an interest, like others in this debate. I arrived here many years ago—in 1954—as a 16 year-old. I did my national service and I hope that I have made some contribution. I had an interesting experience on my return from Kingston, Jamaica, just yesterday. In 1954, I arrived at immigration and customs control; yesterday, I arrived at border control. When I indicated that I had travelled in from Jamaica, at one point in the conversation I thought that the result from the cricket match over the weekend would be a reason to deny entry. However, when I convinced the officer that we were on the same side, as I was in fact in the Caribbean as a representative of the England and Wales Cricket Board, we smiled at each other and agreed that we would win next time. Oh yes we can.
In a number of areas, the Bill implies that immigrants are less deserving or less worthy than those born as British citizens. I ask myself whether I would have come to the UK if I was among those who had to prove their worth. Do British citizens have to prove their worth to live here? The cardinal test for this Bill will be the test of fairness. Will it protect the liberty of all of us who live in the United Kingdom?
The Bill should introduce a policy that is firm but fair. However, it is not seen to be built on the policy of fairness; it is seen to be driven by fear—fear of public opinion, fear of those who do not look like the majority and fear of extreme political parties. It was that same fear that led us down the path of the abortive 42-day pre-charge detention. To some degree, this Bill throws tolerance and respect out of the window. Its language, its proposals and its very motivation are about fear. The debate on the Bill should not be about quotas, numbers or systems. That is not the starting point. The starting point must be about the principle. As a nation, we must be governed by principle, not by fear.
My Lords, I feel very much in tune with the noble Lord, Lord Morris, but luckily I was not asked for the rugby score when I crossed the border from Wales to England on Monday morning; I do not think that I would have been let in, either.
Often when we debate these issues, we go for the minutiae—the clauses, the subsections and so on—and avoid looking at the tenor, direction and spirit of the legislation. This Bill and the immigration Bills that we have had in recent years cause me some concern. In the past, we had a great reputation and a fairly noble place in history. However, what will the verdict of history be on us and our times when we propose legislation that is restrictive and negative? Will we remember this time with pride? Will history remember us as people whose contribution would be best forgotten?
Each generation and each one of us personally is judged by our attitude to the most vulnerable in our society. Britain has a mixed reputation. We have had our golden moments of humanity and compassion. Just two years ago, we celebrated the work of Thomas Clarkson and William Wilberforce which brought the slave trade to an end, and we said what a wonderful contribution to history that was. Since then, a great deal of legislation has strengthened the weakest and most vulnerable in our society. However, has this new century seen a change in our emphasis and an inability to respond in a caring fashion to changing global circumstances?
Sadly, many who need our help feel rejected and condemned to destitution. Sometimes we seem to take the easy route, as if the only way to penalise people is to make them even more vulnerable. Others have spoken of the destitution arising as a consequence of our legislation, such as Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act, which enables us to withdraw all benefits from failed asylum seekers, or Section 4, which in certain circumstances gives a family only a £35 voucher.
Only the other day, I realised how our slowness in dealing with asylum applications can lead to total destitution. Last week, I spoke to someone from Afghanistan who showed me the original letter responding to his claim. It was dated 2002, which is six years ago, and there are many other people in the very long queue of applicants. I understand that 230,000 people are still waiting. That is not just a number; they are human beings—children, fathers and mothers. They are ordinary people like us, part of the same human family.
Now we are adding to that number. Only a few days ago, we were told that 17,500 applicants’ files had been lost. What are the implications of that? Do those 17,500 people have to go to the end of the queue? What is the process here? I spoke to a colleague who is better at maths than I am and discovered that if those 17,500 files were each three inches thick, they would be higher than Snowdon when piled up. The number of people involved is nearly as many as live in my native town of Llandudno. These people are in a serious situation.
There are delays in responding and, unless the outcomes are positive, they lead to real stress. I sympathise not only with the applicants but with those at Lunar House in Croydon who have to deal with them. The stress for them must be tremendous. Months and years pass and people do their best to settle down and bring up their children. They even find ways to pay their bills, but they then find that they are faced with a heartbreaking scenario: in the end, they are denied the asylum status that they seek.
Only yesterday, a lady from the south coast wrote to me on the subject of indefinite detention for asylum seekers and foreign national ex-prisoners. She said:
“I am a member of the Dover Detainee Visitors Group, which visits Dover Immigration Detention Centre. At present I am not visiting since my last detainee, an asylum seeker from Iran, went on hunger strike, sewing his lips together in protest at his detention”.
We have also heard about the situation facing people from Zimbabwe. Again, I quote from a report:
“We are told that the measures in this Bill are urgent and cannot wait until the Simplification Bill. If this Bill is about urgency, then it is a shame that the Government have not taken the opportunity to deal with one truly urgent issue—the destitution of 11,000 Zimbabweans in the UK. The Government says that it does not remove Zimbabweans. It says that all Zimbabweans here are treated with dignity and respect and are not left destitute.
Yet less than a month ago several hundred Zimbabweans demonstrated outside 10 Downing St. Most were people whose asylum claims have been turned down and who are now destitute in the UK. They certainly would not agree that they are treated with dignity and respect”.
That report, which goes on, has already been referred to by the noble Lord, Lord Joffe, and those mentioned in it are people; they are human just like us.
The queue is even longer than I have said. The National Audit Office estimates that something like 430,000 unregistered asylum seekers are in the United Kingdom. People say that we must remove them, but how long would it take to remove nearly half a million people, and at what cost? It is said that £11,000 is required to remove each unwelcome asylum seeker in the UK, which would amount to £5 billion in total. I suggest that the Liberal Democrat policy of letting those who have spent, say, 10 years in this country apply to have their status regularised is a much more sensible approach to this situation.
The Bill says little about those questions. Many amendments will be tabled and we are told that there will be another Bill in the autumn. However, these numbers are not just cold statistics; they relate to living people, and we should ask what contribution they could make to society if only they were allowed to take part in our cultural and other activities.
I end by mentioning Watoto, a village in Kampala for 1,600 orphans whose parents have died from AIDS. I was grateful for the Minister’s intervention when the Watoto children came here, and some will come again. Some of them were literally rescued from the rubbish heaps of Kampala. When they were asked what they would like to be, their answers included a pilot, a teacher, an accountant, a singer and a lawyer. They all had their dreams. I ask this House whether we are going to have a golden moment in our history or whether it will be a time that we regret. Are children to be allowed to dream and enhance their skills? This Bill, and the one that will follow, could do much to let that happen. There could be new opportunities, not only opening doors for the most vulnerable but enhancing our own position in history.
My Lords, this Bill is not set in Utopia, which I think in Greek means “nowhere”, although someone will correct me if I am wrong. Many of us are very uneasy about this subject, perhaps because we would prefer to live in Utopia.
I remember from some years ago a catchphrase that went, “Stop the world, I want to get off”, but nowadays some people might say, “Stop the world, I want to get on”. We are talking against a background of growing world inequality and horrible pressures across the Sahara. The income gap between sub-Saharan Africa, in particular, and the rest of the world is growing bigger. Therefore, we are in a world where reality presents insoluble dilemmas. I do not like the word “insoluble” but in our lifetime it is hard to think that those dilemmas will be soluble in any full sense. It is an imperfect world, but many theologians have been saying things about imperfection for a long time.
We know that this is not an immigration Bill but an amelioration Bill in some ways. Some of us who feel unhappy about the world we live in have to bite the bullet and be objective. The noble and right reverend Lord, Lord Eames, has been doing a noble job in recent weeks, for which he has not been getting many brownie points, about the realities across the Irish Sea. I commend him for that and hope that he will be rewarded in heaven; I do not think that it will be any time sooner. I mention the Irish Sea because I understand that for the first time, depending on how you travel, the regime there will be affected by this Bill. I have not heard much discussion on that but I think that Ireland and Britain are doing the same thing because we are not in Schengen. However, we have to deal with some of the realities confronting us, however painful.
I listened carefully to my noble friend Lord Morris of Handsworth, and one wants to agree 100 per cent with everything that he said. When we get to the detail of the Bill we shall have to see what can be done. This is not the Bill that was envisaged six or nine months ago. It is a Bill that is beginning in the House of Lords, but which has come between one we had last year and one that we will have next year. I think that is where it fits in. Some of the issues that it confronts will not go away. My noble friend Lord Morris mentioned cricket, and this is a variation on the cricket test.
The European Union is a different animal from the rest of the world. It now includes the best part of 500 million people and it is a great preoccupation There are about four different categories of timetable, including a timetable for the eight countries of eastern Europe—the Baltics and the others. There is a timetable involving different questions on Romania and Bulgaria, and there are longer timetables and question marks for Turkey and Ukraine. In all that lot we have the west Balkans and have to consider whether there are different sheep and goats there. That is a huge project which has worked well in some respects, but it raises the question of relations between this area and the rest of the world.
Some thought must be given to the problems of a two-tier society if there are people with vulnerable employment status for long periods—say five years or whatever. One does not need to talk of unscrupulous employers to recognise that many people will be affected by the Bill and will be looking for new ways of being assisted. I am thinking of the Gangmasters Licensing Authority after that terrible tragedy in Morecambe Bay. There is scope in the Bill to think about a new resource reference for people to make sure that they are not second-class citizens with regard to employment. If too many people have a vulnerable status there will definitely be a two-tier employment market. There is no way round that. Both UNISON and the PCS have been making points along those lines.
I draw attention to the wonderful job that the TUC commission, chaired by Brendan Barber, has done on vulnerable employment. I know that my noble friend will be aware of the tremendous amount of work in Whitehall on the implementation of the commission’s recommendations. We have to do what we can to ensure that the second tier of the labour market gets a fair crack of the whip and does not become a sort of vicious circle. There is a period of five years, which is quite a long time, and we need to make sure that people do not become further disadvantaged. I am sure that we can consider in committee the issues of vulnerable groups and industries.
My noble friends in the Government have no alternative but to try to grasp the nettle on many of the issues in the Bill, and I hope that they will keep a relatively open mind on the amendments that might be tabled in Committee when we have had time to look at these questions in more detail.
My Lords, I should declare two interests in any Bill with this title. First, as my noble friend Lord Sandwich has already said, he, I and my noble friend Lady Mar had the privilege of being commissioners on the Independent Asylum Commission which, last year, completed the most comprehensive review of the asylum system ever undertaken. We were gratified that the UK Border Agency responded publicly and, on the whole, positively to our reports because their recommendations were designed to make positive improvements in a system that has been subjected to so much criticism from so many quarters over so many years.
Secondly, on behalf of Medical Justice and the National Coalition of Anti-Deportation Campaigns, I forwarded, last July, a dossier to the Home Secretary containing details of 48 alleged assaults on asylum seekers by security guards. Subsequently she appointed Dame Nuala O’Loan to investigate these allegations, which is still ongoing. In my foreword to the dossier I wrote that,
“if even one of the cases is substantiated, that amounts to something of a preventable national disgrace”.
With that background I suspect that I was not alone in being pleased to receive on 14 July the Government’s consultation document on a draft—partial—immigration and citizenship Bill which was intended to consolidate and simplify nearly four decades of immigration Acts. I noted that the Government intended to add further measures when the Bill was eventually published. Many noble Lords have already confirmed that I was not alone in being disappointed when I saw the content of the Bill now before the House because so much that was telegraphed in both draft and intention is missing. When I questioned the Minister about that, he said that this was merely an interim Bill, designed to sweep up the measures it contains in advance of a simplification Bill to be published later in the year.
My disappointment is that, although some aspects of the asylum system are better than they were, there is still a great deal to be done to make it fit for purpose. The Government cannot claim not to know what is urgently required, because they have been told in detail for many years in countless reports from inspectors, the Complaints Commissioner and numerous interested bodies, including the Independent Asylum Commission.
Other noble Lords have spoken about what is in the Bill, but I make no excuse for concentrating on what is not in it, because some of that was signposted in the partial draft. I begin by introducing another word alongside the word “hospitality”, introduced by the right reverend Prelate the Bishop of Lincoln. It is unfortunate that people view asylum as a negative term. They associate it with mental illness, oppressive and disordered institutions, criminality, terrorism, benefit fraud and “bogus” foreigners. By contrast, “sanctuary” is viewed as a positive word, describing a safe, secure place in which someone can take refuge and access to which can be gained only through a fair and transparent system.
On sanctuary, the commission felt that there were four separate questions that a satisfactory system needed to answer. I should like to say a brief word about each. How do we maintain public confidence in sanctuary? How do we decide who needs sanctuary? How do we treat people seeking sanctuary? What happens when we refuse people sanctuary?
At present, public confidence in the system is low; that is not helped by media publicity, remarks about it made by John Reid when he was Home Secretary and frequent exposure of inefficiencies and worse. As the right reverend Prelate reminded us, it is unfortunate that the whole system is choked at present by more than 500,000 people whose presence in the country has not yet been regularised. Many of them have been here for many years and have families and businesses. A Citizens for Sanctuary campaign proposes an amnesty for those who satisfy certain conditions, such as length of stay. It is disappointing that there is no provision in the Bill to resolve the issue.
The system is also distorted by the tipping point introduced by Mr Blair, requiring more people to be refused than granted entry in any one year. That has given rise to what the commission called the culture of disbelief, which appears to colour too much of the process. Refusal to listen to those who have suffered torture, for example, cannot be acceptable in any civilised society.
The treatment of some of those seeking sanctuary is something of which we should be ashamed. The recent report by the London Detainee Support Group, to which the noble Baroness, Lady Quin, referred, reveals the disgraceful hidden practice of indefinite detention. During the past 20 months, the group has supported 188 people who have been detained for more than a year, 46 who had been detained for more than two years and nine for more than three years—none has been charged with any offence. Contrast that with the fate of the proposal that suspected terrorists should be detained for a mere 42 days when that was brought before this House.
Urgent remedial action on current procedures is also needed for those whose applications are refused. Other noble Lords have spoken about those who cannot be deported for safety reasons and the unattractive assertion that enforced destitution following removal of the right to work and access to healthcare and the benefit system is justified on the ground that applications are entirely voluntary and voluntary return to the country of origin should be accepted as the logical outcome of failure.
I never thought that I would see Red Cross food parcels handed out in 2008 in Manchester to destitute asylum seekers who had been denied the opportunity to earn their means of survival. Again, there is no acceptance of the need to rectify that in the Bill by measures such as revokable rights.
The commission proposed five key attributes of a fair, transparent and humane asylum system, which I believe should be at the heart of a proper Bill, when it eventually appears. People fleeing persecution should be able to find sanctuary in safe countries such as the United Kingdom. The United Kingdom should have an effective system to control our borders that lets people seeking sanctuary in, as well as keeping irregular migrants out. The United Kingdom should have a fair and effective decision-making body that takes pride in giving sanctuary to those who need it and denying it to those who do not. People seeking sanctuary should be treated fairly and humanely, have access to essential support and public services and should make a contribution to the United Kingdom if they are able. Finally, once a decision has been made, the United Kingdom should act swiftly, efficiently and in a controlled way either to assist integration or to effect a swift and sustainable return for those who have had a fair hearing and have been refused sanctuary.
Although I knowledge that the bare bones of that are in place, much long-needed improvement is being delayed further by introducing yet another part-Bill. I welcome phrases such as,
“having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”,
but I note that there is no direction as to how that is to be achieved. The Bill is silent on the plight of families. In sum, the Bill fails to tackle far too many known problems. Let us hope that the next one really is of substance.
My Lords, I shall speak specifically to Clause 46. It is tucked away in the back of the Bill and at first glance it appears to be quite innocuous, but it abolishes the common travel area. We heard a strong speech from the noble Lord, Lord Smith of Clifton, who speaks on Northern Ireland affairs for the Liberal Democrats, as I do for the Conservatives. That arrangement has survived the Great Depression, the Second World War and the Northern Ireland Troubles.
We are now being told that not only is it vital to abolish the common travel area for the security of the United Kingdom, but that it is apparently one of the most pressing border issues that the Government face and therefore merits inclusion in the Bill, rather than wait for the long awaited simplification and consolidation which the Government promise is on its way. Listening to speeches tonight, an awful lot of things are left out of the Bill that should be in it, and it is pretty poor in total. I take issue with those claims. I believe that there are wider ramifications which the Government have either decided to ignore or are trying to bury.
The common travel area applies not just to the United Kingdom and the Republic of Ireland, but also to the Isle of Man and the Channel Islands. Given that the Isle of Man, Jersey and Guernsey are dependent territories of the United Kingdom, which holds ultimate responsibility for their relations with third countries and for their defence, I find it astonishing that the Minister claims that the security of the United Kingdom’s borders will be enhanced by putting up an internal barrier. It seems to me that those Crown dependencies are being smashed by the same sledgehammer being used to crack the nut of the UK-Ireland border.
It is on the matter of the British-Irish border where I take particular exception to Clause 46. When the Minister was explaining the clause to your Lordships' House, I fear that I could not quite follow his logic. The first point was that there would be no imposition of border checks on the land border between the United Kingdom and the Republic of Ireland. That should be obvious: there is no practical way to police the Northern Ireland border in toto. Even throughout the worst of the Troubles, smuggling continued through the tracks and through the nights. Rather, checks on people crossing the land border will be on an ad hoc basis, targeting people who are not British or Irish citizens. That does not seem to me very British. Unless the Government expect people to carry their passports either in their motor car glove boxes or, in the case of farmers, in their pockets or tractor tool boxes, when driving across the Border, how exactly will checks be targeted effectively?
It appears that the land border will continue to be a weak spot in the United Kingdom border. Yet the Minister has held up this proposal as a great boon to UK border security. How can that be, if the checks on air and sea travel between the UK and the Republic of Ireland can be circumvented by the land border? I fear that the answer is that, as a result of this legislation, it will become necessary to impose immigration controls on those travelling between Northern Ireland and the rest of the United Kingdom.
The Minister will recall that in a debate in November my noble friend Lord Trimble and I drew attention to his apparent trouble in distinguishing between the United Kingdom and Great Britain. I fear that he is making the same mistake again. This measure is not designed to enhance the United Kingdom’s security; it is designed for Great Britain. We on these Benches do not find that artificial distinction acceptable. I need not go on at length to point out why, having at long last settled the constitutional position of Northern Ireland securely with the consent of the majority of her population as part of the United Kingdom, it might be unwise for the Government to be seen to be unravelling that settlement with a measure that will bring no real benefits.
I have looked at the Government’s own impact assessment of Clause 46. The costs are estimated at almost £70 million, of which the tourist industry alone may expect to see a loss of more than £43 million. I have seen material from ports associations and carriers’ organisations in which they say that they will be subject to increased regulations, red tape and costs, perhaps to the tune of multimillions. The Government’s own impact assessment cannot quantify any benefit at all, except perhaps catching some of the 0.0064 per cent of arrivals into the United Kingdom who do not have proper documentation—or perhaps not; what they are trying to achieve is all very unclear.
The only sensible way forward is to drop these proposals and adopt the Opposition’s proposals to put in place an upgraded electronic border around the whole of the British Isles in close collaboration with the Republic of Ireland, which in fact should be called Ireland and not the Republic of Ireland. I suggest that in the worst economic downturn in 100 years—in the words of a senior government Member, Mr Balls, no less—the Government might find other more pressing matters to deal with than disrupting 90 years of free travel around the British Isles and alienating an integral part of the United Kingdom, several Crown dependencies and a close and important neighbour, while costing millions in the process. I hope that the Minister will take on board the concerns that Clause 46 has raised. I assure him that we will look very closely at it in later stages of the Bill.
Clause 46 will do considerable damage to the tourist industry in Wales, Northern Ireland, the Isle of Man and the Channel Islands. Much more than that, however, the Government, perhaps with the exception of the Northern Ireland Office, do not have a clue about the scale of major transportation in and out of Ireland, with heavy goods vehicles carrying imports and exports that keep the economies of those two countries going. This will cause another major hiccup. In the border territories recently, because of the weakness of the euro, there have been queues several miles long from the Republic, as its citizens come up to shop in Newry and South Armagh. I invite noble Lords to imagine customs’ posts, searches and all the paraphernalia of immigration that will destroy those local economies. On top of the extra taxes going into ports, the clause will cause extra problems for port authorities, shippers, tourism and the economy, and it is quite wrong that it is in the Bill.
My Lords, there is much in the Bill other than the asylum issues on which so many Members of your Lordships’ House have perhaps rightly concentrated. It is important to tell the Minister that he has a fairly substantial communications job on his hands to try to persuade the Members of this House that there are all those other things, many of which are quite admirable.
I propose to speak partly on the educational aspects of the Bill, so I declare an interest as chairman of the advisory board of the London School of Commerce and of the Association of Independent Higher Education Providers. In that capacity, I serve on the Home Office joint education task force, and I must contradict the noble Lord, Lord Marlesford, who is not in his place, who spoke about the Home Office not being receptive to outside advice. The joint education task force has now been sitting for almost three years, systematically going through everything that needs to be done to stop higher education being a conduit for illegal immigration into this country. The existing position, if we do not change to the points-based system, is that when a student from overseas gets their visa and arrives here, they can go anywhere or nowhere.
Reference was made to the cockle pickers. However, the cockle pickers came on visas supplied for education, and because those visas were not specific to an institution the cockle pickers could disappear. If I were overseas and wanted to be an illegal migrant into this country, I would come here under the present system as a student, get my visa and then disappear. I would do it with dignity through the front door, rather than with the indignity of getting into the back of a tomato lorry and running the risk, as many of them did, of dying in the process. There is something fundamentally wrong with systems at the moment, and I commend the part of the Bill that deals with the introduction of the points-based system, tier 4 of which is the application to higher education.
In the private sector, the only people who will be able to receive overseas students are accredited institutions and licensed institutions. Anyone who does not have the accreditation or the sponsorship licence cannot be the recipient of an overseas student. This is of fundamental importance. It cleans up the system, and it gives certainty to students whom we want to make an important contribution not only to education in this country but to the development of their own countries when they return. The college that I chair has students from 130 different countries pursuing undergraduate, postgraduate and doctoral studies. All of them will go back to their countries of origin and make an important contribution to their development.
The Home Office has done an important job in producing ideas that clamp down on immigration abuse, but it has not got it all right yet. As my noble friend Lady Warwick said, some of the decisions that are being imposed are quite arbitrary and will be a disincentive, not least the sudden decision that you must show that you have maintenance support of £800 a month if you are in London, or £600 a month anywhere else, and you must give evidence of that support before you arrive. The Home Office is even trying to apply that to existing students who have fulfilled all their requirements in this country for the past three years and who are applying for a one-year extension. They are being treated as if they were new people arriving in the system. An enormous amount of good is being done in the education system under tier 4, and tiers 1, 2, 3 and 5 are making similar improvements to immigration arrangements in other parts of the system. In the present economic climate, we should do nothing to obstruct the arrival of people who are making real and meaningful contributions to our economic development.
In the remaining couple of minutes at my disposal, I have more general points to make. For far too long, we have created a false dichotomy when discussing the question of migrants to this country. There have been arguments over the years between those who talk about integration and those who talk about multicultural development, and we have posed the issues as though they were alternatives. There are imperative levels of integration for anybody who is going to settle in this country: language, obedience to the law and willingness to work are all parts of that process. That is why I welcome the idea that those are the pathways towards citizenship, the things that are real and necessary. But they are not an alternative to multiculturalism.
My wife came to this country at the age of 15. I value her regard for, respect of and following of Jamaican culture. It is very important but not an alternative to the role that she has had to take on of integrating into British society and playing a meaningful part in it. Citizenship for most of us is acquired; for other people it must be earned. There is nothing wrong in specifying the rights that people can acquire and the duties that they will assume in counterbalance. I do not believe that we ever get rights without a parallel responsibility. That is an important part of the Bill as regards citizenship for people from overseas, and I welcome it. The efforts of Phil Woolas and his ministerial predecessor, Liam Byrne, in the area that we are examining in this Bill have been very useful and are to be welcomed.
My final point, bearing in mind the request by the noble Lord, Lord Bassam, that nobody goes over eight minutes, is that the Bill refers to combined customs and immigration powers. In discussions around the Bill, some of the questions about smuggling have been too restricted to arms and drugs, but there are much bigger smuggling issues to be addressed, particularly those arising from the abuse of the European Union transit system, which allows for the suspension of taxation as goods cover borders. Because of the inadequacy of the examination of some cross-border traffic, levels of fraud from smuggling are very high. I hope that my noble friend will look at that in the context of the Bill. If he wants some very good advice to follow, he can have the reports—they are about 10 inches thick—from the commission of inquiry that I chaired when I was a Member of the European Parliament, and on which we are still awaiting action from the British Government.
My Lords, it is a pleasure to follow the noble Lord, Lord Tomlinson, who gave a timely reminder about the importance of some aspects of this Bill. I will return to his powerful point about education.
Although the debate has been very interesting, as the noble Lord, Lord Tomlinson, pointed out there has been a preponderance of concentration on asylum issues, which technically are not a substantive feature of the Bill. Further to what the noble Lord, Lord Marlesford, said, this is the seventh such piece of legislation in recent times, and we have just been told that there is at least one simplification measure in the pipeline. I think Parliament is entitled to ask what is going on at the Home Office. It seems to be bringing forward legislation willy-nilly, in a way bordering on incoherence. If it is difficult for policy-makers and legislators, how much more so is it for practitioners who try to keep up with such measures?
Based on the discussion so far today, I think this Bill gets about four out of 10. The noble Lord, Lord Tomlinson, is right: the Minister has work to do to persuade us that it is worth the candle. There are good bits but it will need substantial improvement if it is to meet the high standards that some noble Lords rightly referred to.
I wish to make a few remarks about Scotland. The Scottish Parliament is not the only devolved legislature that must be taken into account but it should be considered that Scotland has a separate, free-standing and well established legal system, quite different from the Anglo-American system in other parts of the United Kingdom.
I have a different perspective on borders, citizenship and immigration. It draws on some of the powerful points made by the right reverend Prelate about hospitality, which is a concept we must cling to, and by the noble Lord, Lord Morris, and other noble Lords about the importance of sanctuary. Looking at the demographics and fertility rates for the mid to long term, I foresee a real problem in getting a working-age population in this country that will create wealth. Somebody said to me the other day that one in every four children born in Britain today can expect to live to age 100. That creates a completely different perspective. I can understand the noble Lord, Lord Marlesford, and people of his ilk saying that security, security, security is the order of the day, and perhaps we may have to pay careful attention to that in the short term, but in the long term, as the noble Lord, Lord Morris, said, we must encourage people to come and live here, and welcome, support and nurture them. That longer-term perspective is a much more positive way of looking at this important policy area.
I hope that the noble Lord, Lord Tomlinson, will continue to bring his valuable experience in education into the consideration of this Bill. It is important to understand that loopholes are being used, but I want to argue it the other way round. I do a little work for the Foreign and Commonwealth Office regarding UK universities’ attempt to get scholarships for Iraq—it is a registered interest, which I declare. It is very important work. Iraq needs our help, and when the service men and women come back from Basra, where they have done a wonderful job, they will leave a situation where as a country we can really start to help Iraq. One of the best ways of doing that is through scholarships promoted by the United Kingdom. The noble Baroness, Lady Warwick, made a very powerful plea in that direction too; she is right. It is not just Iraq, but there are peculiar circumstances there. I hope that we can persuade the noble Lord, Lord Tomlinson, where there are scholarships attached to bona fide institutions, to give his support to promote these important programmes.
From a Scottish point of view, £600 a month is a tall order, as is a four-year limit. Medical schools in Scotland are very concerned about some of the rather arbitrary conditions laid down. The noble Baroness, Lady Warwick, has rightly identified that there is a problem, and I hope that we can count on the support of the noble Lord, Lord Tomlinson, to redress other problems in that regard.
I wish to make two points derived directly from my experience in Scotland. For the Scottish legislative establishment, Clause 50 landed out of the blue. Worse than that, I do not know who was consulted in Scotland but certainly the Law Society of Scotland was not. I would have thought that it would be one of the first consultees on the list. I concur with everything said about Clause 50 and understand the tension that the noble and learned Baroness, Lady Butler-Sloss, recognised whereby there are some real problems in English courts. There are pressure points in Scotland but they are quite different north of the border. Mr Brian Gill is right now doing a review of civil justice in relation to the Court of Session in Edinburgh—he is yet to report—and we are awaiting the important recommendations of the report of the Administrative Justice Steering Group chaired by Lord Philip; therefore, it causes offence in Scotland to introduce Clause 50 out of the blue. If the Minister is not careful he will get another border established in the United Kingdom—it will be drawn by the Scots, between Carlisle and Newcastle—and that is in absolutely no one’s interests. The tone of the consultative paper was studiedly English; it is just gratuitous. I do not know who does these things but somebody in the department must be tapped on the shoulder and told that proper consultation wins friends and influences people in a much better way than has been done in the past.
The noble Baroness, Lady Hanham, made an important point about training. Training in Scotland is essentially important because there is not only a separate legal system but, as the noble Baroness rightly said, a separate taxation system. I know the difference in the powers of current immigration officers and customs officers but, when that is overlaid with the Criminal Justice (Scotland) Act, a lot of training will have to be done. The regulations will have to spell out what training is necessary to give people comfort north of the border that this will all be done in a sensible, grown-up and reasonable way.
In my final minute, I should like to endorse everything that the noble Earl, Lord Sandwich, said about Section 4 of the 1999 Act and Clause 51 of this Bill. Talking about safeguarding and promoting the interests of children in families who are living on vouchers introduced under Section 4 of the 1999 Act is a contradiction in terms. Something has to be done about that. If the Government do not come up with something in Committee, I think that there will be cross-party support for pressure being brought to bear on an extension of Section 95, as the noble Earl rightly suggested, as the way forward. It can be done in a way that saves money as well as saves destitution, which is in everyone’s interests. I hope that the Government will give that active consideration.
My Lords, I am afraid that I am another of your Lordships who is concerned that this Bill is increasing, without adequate justification, the complexity of a system which is already of questionable effectiveness. Of course, these areas of law are by their very nature complex and must reflect a wide range of interests, not least the security of the UK citizen. However, I do not believe that we can continue to add legislation in this area—in this case, legislation that is narrow, restrictive and most of it seemingly of little urgency—without a concurrent attempt to consolidate and integrate the mass of legislation that we already have and that has been referred to.
With the partial draft immigration and citizenship Bill, there was some hope of creating a comprehensive legal framework for these issues. I am thankful that some of the more contentious provisions from that draft have been dropped and one must hope that that remains so. But the Government now propose the current Bill as one half of a two-step approach. I hope that the next Bill, which, unfortunately, will not be introduced until the end of this parliamentary Session, will do more to consolidate all existing legislation into one immigration simplification Bill. But, alas, we will not even know that until we see that Bill.
In the mean time, this Bill presents a wide range of issues and concerns. I intend to concentrate my remarks on two issues—namely, citizenship and the protection of women and children. The judicial review has been well aired and there will be a lot of discussion at the next stage.
On citizenship, in Part 2, I join other noble Lords in welcoming Clause 41, which removes the sex discrimination that prevented mothers passing on citizenship in the same way as fathers could to children born abroad prior to 1961. I also welcome the opportunity that Clauses 40 and 42 introduce for children born to British Armed Forces personnel, regardless of their parents’ nationality, to register as British citizens. As the Immigration Law Practitioners’ Association, which does so much excellent work in this area, makes clear, this should apply to children born both before and after the clauses come into force. I hope that the Minister will be able to reassure me on that.
However, like other noble Lords, I am concerned about Clauses 37 to 39 and 45, which amend rules on naturalisation and enact proposals from the UK Border Agency consultation, The Path to Citizenship. This is surely a case where the increasing complexity of our immigration and nationality laws undermines their efficacy. The addition of a probationary citizenship period, which can be lengthened or shortened according to behaviour, makes the naturalisation process even longer, costlier and more confusing for migrants.
Furthermore, stipulating that British citizenship can be earned through good behaviour and voluntary activities during the additional probationary period makes me increasingly uneasy. I share the concerns mentioned by the right reverend Prelate the Bishop of Lincoln. We are being far from welcoming to those who join us and more often than not prove to be of immense value to this country, as noble Lords have already demonstrated. Requiring potential citizens to do more for our country than actual citizens, while many are receiving less in terms of benefits and services, is more likely to undermine social cohesion and impede, rather than foster, integration.
More generally, this Bill seems to leave a lot—far too much—to secondary legislation or at least to some clarification or interpretation by the Government. Does someone’s prospect for citizenship change because he or she loses a job during the probationary period? How can we be sure that the system for determining good behaviour during the probationary period will not become too subjective?
Another serious concern is how these changes to citizenship requirements will specifically affect refugees. According to the 1951 Refugee Convention and the European Convention on Human Rights, refugees have a right to seek asylum in our country and should be given permanent residence as soon as possible so they can rebuild their lives. Most refugees have, as we all know, left horrifying conditions in their home countries, only to arrive in the UK to have their hopes for successful and, at the very least, safe futures put on hold for what seems like an indefinite period.
The UN Refugee Agency suggests that in the case of refugees the full period of qualification before being eligible for naturalisation should not exceed five years. With this Bill’s addition of probationary citizenship to the qualifying period, refugees could now face six years before they become eligible if they engage in “community activity” and up to eight years if they do not. What is worse is that starting the qualifying period for citizenship only after asylum has been granted will leave many refugees waiting for much longer than six or eight years. It should go without saying that refugees should not be, as of now, prevented from working to support themselves during the entirety of this period.
Surely, given the Government’s commitment to the 1951 Refugee Convention, to then require refugees to “earn” the right to stay in the UK by engaging in voluntary activity is contradictory and discriminatory. Many are ill or have suffered persecution that leaves them unable to engage in these activities, while others are single parents who simply will not have the time. As the Refugee Council suggests, refugees should be granted permanent residence or citizenship as soon as possible without engaging in voluntary activity and without the probationary citizenship period.
A recent report by the Refugee Council shows that three-quarters of refugee women have been the victims of rape in their home countries and, shamefully, back here in the UK. Rape is used against these women as a weapon of war in conflict situations, so it is surely deplorable that they continue to be vulnerable in this country, where we have a duty to protect them. Many women whose asylum applications have been denied either turn to prostitution to provide for themselves or, at the very least, are forced to live in unsafe conditions where they are equally vulnerable to exploitation.
Closely related to that, the Bill lacks specific protection for children that should by now be guaranteed. While we all welcome the Government’s inclusion of Clause 51, which imposes a duty on the UK Border Agency to safeguard the welfare of children in its work, much more can and should be done. The Government must ensure that that includes immigration officials working within and outside the UK and that these officials are adequately trained and of suitable character to handle sensitive cases involving children. Again, I hope that the Minister will be able to confirm that this will happen.
Most significantly, as the ILPA has said, we should take this opportunity to address a problem that previous legislation has proven inadequate to capture: the trafficking of babies and small children. In 2004, many noble Lords were concerned that the wording of the Asylum and Immigration Act was not sufficient to protect these most vulnerable children, those who are too young to be fully aware of their situation. Last May we saw in a court case involving benefit fraud that this legislation is inadequate to prosecute the traffickers of young children. With this Bill surely we have a clear responsibility to address the gap.
The Minister has not yet convinced me that what this Bill contains will be sufficient to protect children. It is not even comprehensive enough to cover several vital additional issues such as ending the continued detention of children and their families, the vulnerability of children whose age is in dispute, resulting in their being detained and inadequately considered in the asylum-seeking process, and those children facing destitution. But perhaps noble Lords will be able to persuade the Government to make these and other necessary changes during the latter stages of the Bill. I certainly hope so.
My Lords, I am rather uneasy about certain aspects of the Bill, although some parts of it are fine and deserve our support. I pity immigration practitioners because they have to deal with so many laws, and at present the situation is rather imperfect. Let us take, for example, the conferring of too much power, as I believe, on immigration officials. They are able to determine the linguistic abilities of potential British citizens. In Clause 38(3) which substitutes paragraph (1) of Schedule 1 to the 1981 Act, what does a,
“sufficient knowledge of the English, Welsh or Scottish Gaelic language”,
mean? Similarly, what is the meaning of,
“sufficient knowledge about life in the United Kingdom”?
It is important that the Government are able to offer guidelines on these, and perhaps they will, but the noble Lord who is to reply to the debate did not mention them in his opening address. It is vital that those expressions are defined. At the beginning of her speech, the noble Baroness, Lady Hanham—I regret that she is not here—talked about the importance of training. That is absolutely vital, and I would hope that my noble friend will say something about it when he comes to wind up.
There needs to be the utmost clarity about these provisions. It is all too easy for injustices to arise. Decisions will also extend to benefits and social housing, issues which are of undoubted significance to immigrants. Again, it is for the Minister to justify this to the hilt, and so far I regret that he has not done so. There may well be a case for strengthening the powers of immigration officials in a coherent way, but equally there must be speedy redress, although at present that has not always proved to be the case. I look forward to some clarification of this in his winding-up speech.
The Conservative Opposition have been somewhat mealy-mouthed on a number of salient points. For example, on immigration law, they oppose the imposition of fines on hauliers attempting to smuggle in illegal immigrants. Do they still stand by that? They have uttered not one word about it in this debate. The Conservatives have opposed the refusal of asylum to convicted criminals serving two years’ imprisonment. What justification do they pray in aid of that point? They have refused to support the provision in the Immigration, Asylum and Nationality Act 2006 which introduced a two-year custodial sentence for knowingly employing illegal workers. Why do they remain silent about that provision, which is very important? There are other measures where they have also fallen short. All this is somewhat academic because they are a long way from power, but there are certain other features of the Bill which concern me.
I turn to Clause 47. What sort of conditions are envisaged here? What does the clause really mean? Again, it is incumbent on my noble friend to spell it out, either here or later in our consideration of the Bill. Does it simply enable the UK Border Agency to restrict students to study in particular institutions, or does it go further? Can a student effectively be prevented from pursuing his studies altogether? In my submission, clarification of what is meant is vitally significant. Students or potential students are entitled to know, but at present the whole thing is terribly vague.
As the grandchild of immigrants myself, I know that initially they suffered enormous indignities. But they lived through those dark days—and there were better days, despite what I have said, than the time they spent in Russia and elsewhere.
I continue to feel that our immigration laws have to bear up to reasonable scrutiny in the quest to be absolutely fair. “Tough but fair” was what was proposed by the noble and learned Baroness, Lady Butler-Sloss, and tough but fair ought to be the signal of the Bill we are now considering. In some respects, it is not fair at all.
My Lords, this Bill seems unsatisfactory if only because it legislates by reference to some 17 other statutes, if I counted correctly. The Government may say that it is only interim and will be consolidated, but that does not make it easier for us to understand and consider now. Just over two years ago, on 14 December 2006, I had the honour to introduce into your Lordships’ House a debate on the human consequences of immigration and asylum law and practice. I have said many times before and I say again now that the following factors are necessary if the asylum system is to work well. First, first-class interpreters must be available to all applicants who cannot understand and then express themselves in English. Secondly, interviewers must be able to gain the confidence of applicants. Thirdly, legal advice can make the difference between the success or failure of an application. Yet we find that legal aid has been drastically cut. Many solicitors no longer take asylum or immigration cases, and in a survey of 125 cases in 2006, 78 per cent complained about legal representation and 50 per cent complained about interpreters. Has the situation improved to any considerable degree since then?
Under the new asylum model, the single, continuous caseworker should mean that applicants receive a good explanation of how the system is intended to work. Is this happening in practice? Is there personal communication between the applicant and the case owner? I was encouraged to hear of the Solihull pilot project providing legal advice at an early stage to applicants. This apparently explains the key criteria in the refugee convention and how humanitarian protection differs from full refugee status. Unless such explanations are given, it is foolish to expect applicants to fill in multi-page application forms without, in doing so, prejudicing their own cases. How is this pilot project progressing? Are there already savings from fewer appeals and judicial reviews? How long will the project last? When will this method, or similar ones, be extended to the whole country?
On the backlog of old asylum cases, in 2006 these were variously estimated at any number between 150,000 and 450,000 cases. The noble Lord, Lord Avebury, who is usually very well informed, put the current figure at 200,000. With how many cases is the UK Border Agency now in contact? How many old cases have been resolved in each year since the 2006 report by Asylum Aid and Amnesty?
Destitution among both unsuccessful asylum seekers and jobless economic migrants was another agonising subject discussed in my debate and that of the noble Lord, Lord Roberts of Llandudno, on 3 February. What is the current take-up of assistance under Section 4 of the 1999 Act? Have the authorities stopped insisting that applicants agree to voluntary return to their countries, even in cases where this is either not possible or extremely dangerous? What is the situation with Section 95 support, as mentioned by my noble friend Lord Sandwich?
It is well known that refusal of employment, social isolation and destitution often lead to mental illness. This is all too common among failed asylum seekers, those detained and the backlog cases. What is being done to promote early diagnosis of mental illness, community care and admission to secondary care whenever this is necessary? Early care will usually save later costs, as well as preventing the spread of diseases into the wider population.
As has been mentioned, detention without trial, whether on arrival or prior to removal, is another most unsatisfactory feature of asylum and immigration policy. The London Detainee Support Group last month concluded that detention is inefficient and ineffective. It is also extremely expensive. Are the Government studying the report Detained Lives? Will they set a maximum length for immigration detention? This is the practice in several EU states. Will they agree never to detain women responsible for young and school-age children? These two improvements could surely be made very quickly.
Attention should also be focused on how private contractors used to carry out deportations go about their work. I urge the Government to ensure that they are properly trained, as has already been asked for, and supervised and that they respect the humanity of all deportees.
I have deliberately concentrated on the inhuman consequences of asylum and immigration policy. In doing so, I commend to your Lordships and the Government the campaign “Strangers into Citizens” and, in particular, its work on regularisation of those who have been here for many years. I trust that the labours of the Independent Asylum Commission, of which we have heard already, will be rewarded with major improvements in casework, which is so much more important than the dry bones of legislation. But I hope that even these bones can be improved by amendments during the passage of the Bill.
My Lords, I stand in the fifth year of my membership of your Lordships’ House and I am astonished that five Bills have been debated here on this or related subjects in that time. Ought I therefore to take comfort that, as I look forward to my sixth year, I shall have another Bill on the same subject in which to take part? I have begun to think that this has fed an addiction in me and will create a predisposition towards expecting such legislation every parliamentary year.
I take the point made by the noble Lord, Lord Hylton, that such a plethora of legislative proposals makes it a nightmare for those interpreting the law at the critical points of application. I am intrigued to see that the prospective law we had expected now to be debating is to be called a simplification law. What we need—and what we were promised, I thought—is consolidating legislation to provide a comprehensive legal framework. I look forward to having that.
I want to concentrate on one aspect of the matter in general before us. I make no apologies for the fact that I want to speak about what was not referred to either in the opening remarks of my noble friend the Minister or, indeed, in my reading of the Bill or the notes upon the Bill. When the 2008 White Paper, The Path to Citizenship, was published, it was recognised that there were concerns about how those already in the system would be affected by the proposals and about how any transitional arrangements would work. Also, it was recognised that it was important to understand the effects of current proposals on those who may already be in the system. “We will continue”, the pledge was made, “to examine this in advance of making the changes”. So I want to hold those who offered the recognition and promised to address those concerns to their word.
Several of your Lordships have expressed an interest in terms of occupying key places in the administration of education, welfare or the law. If I have to declare an interest, as I have said many times when I have stood to speak here as a Methodist minister, it is the day-by-day, shoulder-by-shoulder contact with the people who we are talking about in general terms. It is therefore from that angle that I want to speak. It is a subluminary world, a world of shadows where all kinds of alternative lifestyles exist, where people set their targets in ways that are unconventional—indeed, their targets are often related to survival rather than to making good in the climate we create for them. There are people with multiple identities and papers to match.
There was a soldier from Fiji who because he was court-martialled no longer had the rights and entitlements of being a member of Her Majesty’s Armed Forces. My reading of the papers suggested that there was at least prima facie evidence that due process had not been observed in terms of his being dismissed from his post in the Army. He had a fiancée of German nationality from well before the incidents that led to the court martial and, because she could afford the right kind of lawyers, justice was eventually won for that man—but I can think of others for whom those advantages do not exist and who live by disappearing into the woodwork.
I deal with a number of deportees. Some of them are taken to Heathrow Airport again and again. One dear lady was taken for the second time, locked in a room while the attendant went for a cup of tea and was forgotten about until found by the cleaner the next day. It is truly astonishing to think of this. She went a third time, incidentally, but now has been given permanent leave to remain. Is it not an extraordinary world that we live in?
How does such administrative chaos exist? I shall tell your Lordships about another extraordinary case. Another deportee came to me six years ago. “Reverend,” she said, “they’re going to kick me out”. I looked at her letter and indeed that is what it said. We fought a battle, I wrote endless letters and I telephoned either numbers that were not answered or answerphones that did not work. The situation we had to deal with was Byzantine. In the mean time, her little girl had grown old enough to go to school. We took a photograph of all of us standing with the little girl and sent it to the Home Office, hoping that someone would see it. The next thing we knew was that this lady was given the Volunteer of the Year award for Islington; a star of “EastEnders” presented her with her certificate, all the flashbulbs went off and she was in all the local papers. To cap it all, the same lady came to me with another letter; “Reverend,” she said, “what shall I do about this?”. What did it say? “You are required to do jury service.” This lady, who had no benefits and no right to employment, for whom we scratched around to find the money to keep her and her little girl in existence—“What shall I do?” she said. I said, “Do the jury service”, and she did. She is still waiting for an answer to her case for admission to this country.
Some of the people would not qualify under the proposals in the Bill because at some stage in the process they made silly mistakes—they told lies. Wouldn’t you? When I was in Montreal and an amnesty was granted for Haitian immigrants, a Haitian immigrant faced with the prospect of Canadian citizenship, when asked by a person in uniform, “Can you handle a simple machine?” and then asked to show that he could, said yes, although he could not. That was because in Haiti a person in uniform is an oppressive person, and you say yes because you think you are placating them. The cultural connotations of helping people to understand the process they are involved in are considerable. I have stood in courts to give character references; I have stood in courts and been denied the chance to give character references. Again and again, this speaks of chaos.
I do not ask for indiscriminate support for all the undocumented people in our society. There are shysters, liars and criminals out there, and there is a parasitical industry that feeds on them—lawyers, who have offered me quite a lot of money on occasion to tell lies in court, I can tell you. It is an extraordinary world, but it needs to be treated with due deference. There are Augean stables that need cleaning out, some of them at Lunar House: the number of passports that have been lost and the number of papers mislaid, and the fact that we cannot get access to the document upon which a judgment will ultimately be made.
The noble Lord, Lord Hylton, has mentioned “Strangers into Citizens”, so I will not repeat that point. The noble Lord has also mentioned the London Detainee Support Group’s recommendations. There are simple things that can be done to clear up a lot of the mess that we are in at this moment. I will retain from this debate the precious memory of the word used by the right reverend Prelate, “hospitality”, which was given a different nuance by the word used by the noble Lord, Lord Ramsbotham, “sanctuary”, while my noble friend Lord Morris added “principle” and “fairness”. To all of those concepts I would add: “people”. It is human beings who we are dealing with.
My Lords, it is a great privilege to follow the noble Lord, Lord Griffiths, with his vast experience in this area. It is an education to hear of his practical work with people in the immigration system. It leads me to ask the Minister whether he can comment on morale within the immigration service and whether he considers that enough support is given to immigration officers working with such complex and difficult cases as we have heard about today.
I shall comment briefly on the Bill. I think that my noble friend Lady Howe of Idlicote made most of the points that I wished to make. Unfortunately, I was not present when she spoke, which I much regret, so I shall perhaps look to her for prompts to move on. I welcome particularly Clause 51, with the additional protection that it provides for children. Will the Government go still further in safeguarding children within the immigration system?
It is encouraging to learn that the Bill will be followed shortly by a simplifying Bill. Having been a Member of your Lordships' House for the past 10 years, I am as much aware as anyone of the number of Bills that we have had in this area, so that is welcome.
Since the advent of the Children Act 2004, there has been long-standing concern that children in the immigration system enjoy less protection than all other children in this country. The Act created no duty similar to that for all other children—that is, for agencies to work together to protect and promote the well-being of unaccompanied, asylum-seeking children and children in asylum-seeking families. The Government’s strap-line was “every child matters”, yet some children appeared to matter more than others.
I take this opportunity to praise the Government for their huge investment in the welfare of children during the past 10 years, in particular the support that they have given to the teaching profession. The difference that that has made in terms of the pay and raised status of teachers is well recognised. While many members of the public may be critical of some of the things that the Government have done, they recognise that the teaching profession is in a far better state.
The opposition Front Benches took a vigorous line in supporting inclusion of all children in the Children Act 2004. The noble Earl, Lord Howe, divided the House on the matter; the noble Baroness, Lady Anelay, raised her concerns; and the noble Baronesses, Lady Morris of Bolton and Lady Walmsley, eventually won your Lordships’ agreement to a change in legislation.
The Government were always prepared to listen to concerns about these children. I remember that the noble Baroness, Lady Ashton, appointed a senior civil servant with a strong track record of success, Mr Jeremy Oppenheim, who also had experience as a director of social services, to be the children’s champion within the immigration department. The Government have subsequently produced a helpful code for the protection of children.
Following their defeat in the Children Act that I have just described, the Government are responding to the wishes of your Lordships' House with Clause 51. I welcome their intention to discharge this commitment and look forward to scrutinising the clause in Committee to make sure that it brings those children up to a level of protection similar to that of the rest of our children in this country.
However, children in the immigration system will still be at risk. Governments will face a tension between delivering an effective and rigorous immigration service, in which the public have confidence, and always acting to promote the welfare of children. In her previous report on the immigration removal centre at Yarl’s Wood, the Chief Inspector of Prisons highlighted that the length of stay of children had increased and that stays were sometimes incorrectly reported. My noble friend Lady Howe indicates that she has not quoted from that inspection report, so perhaps I may briefly do so. The chief inspector wrote:
“We were concerned about ineffective and inaccurate monitoring of length of detention in this extremely important area. Any period of detention can be detrimental to children and their families, but the impact of lengthy detention is particularly extreme”.
“A number of children had experienced longer cumulative periods of detention, which was worrying given the adverse effects that extended detention almost inevitably has on children and their families. However, the monitoring figures that were provided to the team to show length of cumulative detention were found to be wholly inaccurate. For example, children who we were confidentially told had been in detention for 275 days were later said to have been in detention for 14 and 17 days”.
I have twice visited Yarl’s Wood. That is the detention centre for families. I spoke to a 16 year-old girl on the second occasion. She had spent at least five months in that institution. She introduced me to her eight year-old sister who had been confined for a similar period. Confinement of children for such enormous lengths of time cannot be condoned or considered acceptable, especially when they have committed no offence and put no one else at risk. The pain it caused this 16 year-old could easily be judged by her distrust of adults and her conviction that the visiting Members of your Lordships’ House could not and would not do anything about her position. Perhaps I might ask your Lordships to reflect for one moment on the experience of that 16 year-old confined in this way for five months.
I was also introduced to a three year-old, who was serving her second stint in detention. I have already mentioned problems with the figures on the lengths of stay. Yarl’s Wood has greatly improved since it opened, and I pay tribute to the Government, the management and the staff of the centre for their parts in that. Every effort should be made to avoid confining children wherever possible. Where unavoidable, it should be for the shortest time possible. I think that we all agree on that.
What progress has been made in reducing lengths of stay? Will the Minister examine what improvements might be made to the keeping of statistics about lengths of stay to ensure that maximum transparency is maintained? What progress has been made in improving immigration officers’ case management, including end-to-end style case management? Good relationships between families and case officers may be helpful in ensuring more voluntary returns. Does the Minister find that that is the case? Are strong enough incentives for voluntary return being deployed? Are they proving effective? I have not notified the Minister of these questions. Therefore, I would welcome a written response if an oral response is not possible this evening.
I share the concern of many about the continuing power of the immigration service to make families destitute. The results of the pilot were truly distressing and disturbing, with two children being taken into care and a number of families simply disappearing from any social network. I would welcome the Minister’s thoughts on the need and safety of it continuing to have this power. If your Lordships express interest, perhaps we might meet Jeremy Oppenheim, the children’s champion within the immigration service, to hear what progress he has made in the past two or three years since he became their champion.
No one can deny that this is a most challenging area for any Government. Governments are never likely to win any bouquets for success, but they can be confident of brickbats for failure. I welcome the opportunity to work on the Bill. I hope that the Minister can offer reassurance on these matters relating to children. I am grateful, as always, for the pains the Government take to consider the welfare needs of children.
My Lords, noble Lords all round the House are disappointed that this is not a simplification Bill. That disappointment is certainly felt keenly on these Benches and was eloquently expressed by my noble friend Lord Avebury and the noble Lord, Lord Ramsbotham.
The difficulties that will arise from the lack of a simplification Bill will affect UK citizens, potential citizens and staff working in this area. Although there have been some 11 immigration Bills since this Government came to power, none of them has succeeded in properly disentangling the issues of asylum seekers from those of economic migrants. Even when opening the debate, the Minister still seemed to me to confuse the issue by talking about those who wanted to come here, whereas there are two categories: those who want to come here and those who need to do so. The definition provided by my noble friend Lord Thomas of Gresford is well worth studying as it addresses that very issue. The result of this failure is that with each Bill asylum seekers are disproportionately targeted by new measures. That is happening again in this Bill, which fails to recognise their issues. The noble Lord, Lord Morris of Handsworth, rightly said that too much of this legislation is driven by a fear of public opinion rather than by a consideration of what will actually work.
The Government have failed to address the issue of the estimated 430,000—that is the National Audit Office’s figure; it could well be higher—undocumented people residing in the UK, some of whom work. The fundamental failure to confront this issue has led to a very difficult situation for everybody. Local authority services are under pressure but they get no additional funding as the “illegals” do not appear on local authority records. The people themselves live in the shadows, or, as the right reverend Prelate the Bishop of Lincoln said, in no man’s land. His speech showed us why we should not accept that as being in any way reasonable. It is shocking that this situation has continued for so long. These people’s lives in no man’s land or in the shadows may not be so bad until things start to go wrong and illness, death, or falling victim to crime leaves them in a difficult situation. The failure to address this very large group makes them vulnerable. It means that the taxes they would pay are lost to the country and it encourages a black economy. It also ignores the contribution that many of them make to many aspects of UK life. The noble Lord, Lord Griffiths of Burry Port, gave us some graphic illustrations of that, for which I am grateful.
The Liberal Democrats do not call for the unconditional amnesty that some leading Conservatives, such as Boris Johnson, are suggesting. We believe that creating a path to citizenship is the way to deal with this situation. We say to the Government that it is pointless to rearrange border staff and to talk of earned citizenship for a few while leaving this massive number unaddressed.
Noble Lords spoke movingly about asylum seekers. The Bill does not take the opportunity to clear up long-standing problems that the immigration process poses for them. Noble Lords mentioned the destitution suffered by those asylum seekers who receive no support. The noble Lord, Lord Joffe, the noble Earl, Lord Sandwich, and the noble Baronesses, Lady Stern and Lady Quin, concentrated on this section of the population, who deserve better from this country. We are very disappointed that the Bill does nothing to address those issues.
The Minister should bear in mind that the failure to address these issues is particularly dangerous at a time of economic downturn. I commend the unions—the noble Lord, Lord Lea of Crondall, spoke about them—which have acted responsibly. During the Lindsey strike, Unite quickly sent the BNP packing when it turned up to try to capitalise on a very unfortunate situation, and in its briefing UNISON said:
“We and our members know and value the significant contribution that migrant workers … make to the UK’s public services. However, we have strong concerns that the measures proposed in this Bill … will make the lives of these migrants even harder”.
I think that the unions have a very realistic view of the situation.
In introducing the Bill, the Minister talked about the combined border force and what it will do. My noble friend Lord Wallace of Saltaire commended the work with FRONTEX that underpins so much of what is practical. I shall not chide the noble Lord, Lord West, for his light-hearted comment about uniforms, but will say that we will examine very carefully whether the powers being created by these proposals are reasonable. After all, the powers will be given to a new force that will be in many ways greater than the police but is under political control. Groups such as NO2ID feel that those powers are excessive. They include arrest, search, seizure, fingerprinting and DNA swabbing. We in this House should not lightly give powers to a new, unaccountable group of people without questioning them very closely.
I turn now to Part 2. I was very interested in the speech of the noble and learned Lord, Lord Goldsmith, about the piecemeal nature of the approach to citizenship. I am very sorry that my noble friend Lady Falkner of Margravine cannot be with us tonight because of a family bereavement—
Oh, she’s back, my Lords. I had not spotted her walk in, but I missed her contribution this evening very much. I am so glad that she is back and we look forward to hearing her speak when the Bill goes into Committee. I think that she will make many constructive contributions.
The noble Baroness, Lady Howe of Idlicote, said how unfair it was to ask potential citizens to do more for their country than actual citizens. Many noble Lords said how hard it will be to check on what exactly is a voluntary activity. I hope that the Government will dwell on that; we do not want to have a whole new bureaucratic system dealing with voluntary activities when, by their very nature, those activities should be voluntary. Although there were some good concepts in the citizenship provisions, we will be asking many questions about exactly how they will work and whether they are proportionate.
My noble friend Lord Smith of Clifton made a forensic examination of the common travel area, covered in Clause 46. He laid out all our concerns, which were echoed by the noble Lord, Lord Glentoran. Those provisions will bear quite a lot of examination. Similarly, my noble friend Lord Wallace of Saltaire and the noble Baroness, Lady Warwick of Undercliffe, had a number of reservations about Clause 47, which we shall be looking at carefully, and my noble friend Lord Thomas of Gresford explained very well our concerns about Clause 50 on judicial review.
The part dealing with the welfare of children looks very attractive, and we are glad that a move is being made in the right direction, but there are a lot of concerns here, some of which have been laid out in a briefing note from the Refugee Children’s Consortium. It questions whether any discrimination is reasonable when it comes to children. It contends that under the UN convention children should be treated in a way that exceeds that proposed by the Bill. That worry was compounded when we read the note from the noble Lord, Lord Brett. It is helpful in spelling out some of the detail in the Bill, and it says that the guidance will follow as much as possible the statutory guidance on making arrangements under Section 11 of the Children Act 2004. We will examine when that will not be possible. There is a very basic concern, as the Bill talks about children within the UK. We will want to know what constitutes being not within the UK. Does being at an airport, for example, count as the UK? Does a detention centre count as within the UK? There are a number of concerns.
Given the amount of energy and good will that there is in the House to improve the situation, we feel that big improvements can be made—there will be big amendments that would improve this Bill in a really substantial way. From these Benches, we will work with others here who clearly share our views, as we share theirs, to seek to shift the Bill from a small, bureaucratic Bill to something considerably more suited to addressing the really critical issues faced by the UK and its potential citizens.
My Lords, this has been a long and interesting debate, and it is a privilege to speak at the end of it. It should come as no surprise to the Minister that we have had such a wide-ranging debate, for noble Lords who have spoken today bring impressive expertise to bear on the matter.
If, as the Minister has promised us, we can look for a simplification Bill towards the end of this Session, I suggest that this Bill represents the darkness before the dawn. As noble Lords have pointed out, the Bill is a curious collection of measures bundled up together. Like my noble friend Lady Hanham, I am not sure whether I quite understand the Government’s claims that these provisions represent the most pressing and urgent of all the matters which they could have put into such a Bill. That seems to be the explanation for mixing Immigration Rules with citizenship provisions, and student visas with the common travel area. The noble and learned Lord, Lord Goldsmith—I am sorry that we were not able to be in time before the departure of his plane—said, in connection with citizenship, that this was piecemeal legislation. I suggest to your Lordships that this applies to the whole of the Bill.
My noble friend Lady Hanham and other noble Lords have already puzzled over Part 1, which transfers powers from here to there, delegates from there to here and falls short of anything satisfactory. That is all the more reason to echo my noble friend’s plea for training, which was taken up by the noble Lords, Lord Kirkwood and Lord Hylton, and the noble Baroness, Lady Howe.
I suggest that the very inadequacy of the scope of the Bill has encouraged some of your Lordships to make some excellent points on the whole subject of immigration, which in some cases were not strictly within the scope of the Bill. It has a rushed feeling to it, as if the powers in the Home Office had simply put together a few provisions to satisfy the Government’s constant need to legislate. I am not the first to remark that the Bill that we are debating today is but a shadow of the mammoth draft Bill that was published last year. Very many provisions from that draft Bill appear to have been pushed into the long grass. Presumably, they were not urgent enough to merit inclusion in this Bill. However, I cannot say that I am dismayed to see the back of the provision at Clause 30 in the draft Bill which would have landed British citizens in prison if they failed to tell the Secretary of State that they had stayed in a hotel.
We on these Benches consider that Part 4 of the draft Bill, which contained enhanced powers to issue expulsion orders, and the power to remove foreign criminals from within our borders, is a pressing area. One of the most egregious failures of this Government’s immigration policy, so far as they have one, has been their apparent inability to deal with people who should not be here. In the face of this Government’s failure to enforce their own laws, we must look at the possibility that new powers are necessary to expel with efficiency and propriety individuals who have been found to have no legitimate reasons to remain in the United Kingdom.
I was most interested to hear my noble friend Lord Marlesford on the subject of passports. I hope that the Minister will give careful consideration to the many points he made on that issue, one of which is worth repeating. Why do the Government continue to proceed with their ID cards legislation when the passport control mechanism is in such a mess? I also pay tribute to my noble friend Lord Patten, who made an eloquent case for the free movement of people throughout the world, which must, of course, be our ultimate aim.
I should be most interested to hear why the Minister did not think that expulsion orders were important enough to merit inclusion in the Bill, but should wait for a later immigration Bill, if it comes at all. I can reassure the noble Lord that we will look closely at the merits of such orders and we may very well provide your Lordships’ House with the opportunity to debate them fully at a later stage.
One category of persons whom the Government have evidently decided to get tough on is students. Clause 47 places new restrictions or conditions on temporary leave to study. Many noble Lords have spoken about that. As to quite why this is an urgent matter I look forward to hearing from the Minister. Without knowing what those conditions are, we must wait for answers from the Government. Will this mean that a student has to reapply for a visa, with all the costs and inevitable time that will have to be allowed for such a procedure to take place? What will become of students whose course lasts longer than their visas? In the midst of end-of-year exams and other pressures, it would be cruel indeed if they were also expected to cope with an expensive, unresponsive and tardy reapplication process. What assurances can the Minister give us on that point? I pay tribute to the noble Lord, Lord Tomlinson, who made as good a case as he could for the Government on this.
I realise that there is a real problem with some students, who simply drop out of studies and disappear from view, but, equally, many more overseas students are a great asset to the educational fabric of this country, and their international connections play a vital role in many ways to the benefit of this country. We will look closely at these provisions to make sure that legitimate students are not disadvantaged.
I am even less ambiguous about the abolition of the common travel area. We on these Benches are opposed to Clause 46. This point has been made very well by my noble friend Lord Glentoran. As your Lordships will be aware, he speaks for the Opposition on Northern Ireland. Therefore, I shall not repeat what he said, except to say that we would like the Government, as Governments of both parties have done for nearly a century, to co-operate with the Irish Government to enhance the external security of both countries, which will allow free travel across and around all the British Isles, a freedom which has brought us countless benefits—in other words, to create, in effect, a mini-Schengen area.
I welcome Clause 51, which extends to the immigration and asylum sphere a duty to protect the welfare of children. The noble Earl, Lord Listowel, was eloquent on this issue, and I am grateful for his generous remarks about my party’s contribution. This builds on the hard work that my noble friends on these Benches and my honourable friends in another place have done in this area. The clause as drafted in the Bill owes much to the efforts of my noble friend Lady Morris of Bolton, whose amendment to the then Children and Young Persons Bill finally convinced the Government to concede the point. I thank the Minister for introducing the clause so graciously. Indeed, I was beginning to think that the Bill was justified for the children’s clause alone, but that supposition was punctured by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Howe. It is clear to me that we shall need further measures on this point, either in separate legislation or in the simplification Bill.
I have gone quickly through the various points of the Bill. I assure the Minister that we will devote our time carefully to scrutinising it fully at the next stages; I am sure that he would expect nothing else. We do not particularly object to some provisions and we welcome others. However, there are serious deficiencies in this piece of legislation, both what is there and what is not. I am sure that the Minister will welcome the contribution of all noble Lords who have participated in this debate, as our aim, as always, is to help the Government to improve legislation.
I must just add that the noble Lord, Lord Clinton-Davis, has drawn attention to the alleged record of my party on immigration. Do I detect a diversionary tactic? I invite him to await our contribution to this Bill as it passes through your Lordships’ House in its later stages. I look forward to the Minister’s reply.
My Lords, before I begin, I should like to express my sympathy, and I am sure that of the House, to the noble Baroness, Lady Falkner, on the loss of her brother. We quite understand why she would not want to speak tonight.
I am grateful for the contributions of all noble Lords who took part in this debate. I can only assume that none of us present is getting a Channel 4 award, so there is no rush to move on. More than 300 questions were asked. It was 328, I think; I was trying to keep a total. If I gave each one a couple of minutes, that would, as your Lordships can quickly work out, last about 11 and a half hours. I am sure that no one would like that.
My Lords, I was a watch-keeping officer, so I can manage to go on for 11 and a half hours. Your Lordships should be careful.
Some of the questions will be addressed in Committee. On those questions that I do not come to, I will write with the answers for those noble Lords who particularly want me to. However, an awful lot of the questions were about what is not in the Bill rather than what is in it. I think that there has been some confusion on the part of the noble Baroness, Lady Hanham, the noble Lords, Lord Avebury and Lord Patten, and others about what I referred to as,
“the biggest shake-up of our border control and immigration system for a generation”.
I was not talking about this specific Bill, which is very small and constrained.
Over the past decades, before I came into the House, I, like a lot of people, watched with some amazement while politicians and Governments of different hues totally failed to grasp the issues of border control and immigration and left the playing field open to racists and extremists, which was very unfortunate. I think that we are now trying to get to grip with these things. By “the biggest shake-up”, I am referring not to this small Bill, although it is part of it, as I shall explain, but to the whole points-based system, e-borders, which is a major initiative, ID cards for foreign nationals and so on. We have a border force already. The UKBA consists of the visas section, what was the UKBIA and HMRC officers who were working on the borders. They are already working closely together, but we need Part 1 of the Bill so that they can get ahead and do all the things that they need to do as a combined and composite group.
The noble Lord, Lord Marlesford, mentioned the phrase “war against terrorism”. I hate that expression. Indeed, when I first came to this job, in July 2007, I appeared in the media to say that I did not like the expression. I see that other Ministers have now said that, too. I assure the noble Lord that what we have done in border control and in our counterterrorism strategy, with CONTEST 2, which is refreshed, has very definitely made us safer. The fact that by 2010 we will be getting 95 per cent of PNR data and that we count people out and in makes a gigantic and fantastic difference. Therefore, in answer to the question, “Does this make us safer?”, posed by the noble Lord, Lord Patten, the answer is yes. This legislation, along with the other measures, will make us safer, but this is a very precisely focused and small Bill.
These changes are essential. As I said, we have 4,500 officers who are depending on the Bill and waiting to receive training. That training was mentioned as being important and I absolutely agree. We have already trained some officers but they need the authority to conduct the necessary actions as part of this uniformed force. It does not mean that every one of them will automatically become all-purpose customs, revenue and immigration officers. We will still maintain appropriate specialisations and operational tasking but, once the border force is trained and designated—and I repeat that the training is very important—we will be able to increase dramatically its flexibility and efficiency in combating the different activities and threats at all our borders and ports. For the first time, the officers of our border force will be trained and designated with the necessary powers to examine people and goods as they cross our frontiers. Customs and immigration officers need not now be different individuals. As I said, the training is very important, and that package of training will unroll if we manage to get Part 1 of the Bill through.
The noble Earl, Lord Sandwich, and the noble Lord, Lord Ramsbotham, referred to working with the UKBA, and I thank them for that. I hope that we are always willing to try to improve our processes and work with people. The work of the Independent Asylum Commission has been splendid and I was glad that it was mentioned. I thank the noble Lord, Lord Wallace, for his support for the UKBA. I have felt that perhaps sometimes it has not received as much support as it should have done. I quite understand the issue of the Dutch MP to which the noble Lord referred and why the noble Lord could not be present at the beginning of the debate.
The noble Baroness, Lady Hanham, said that she intended to bring forward an amendment concerning one single border police force. I am afraid that at the moment I think that that is wrong. The police are working very closely with the new UK Border Agency, but under the noble Baroness’s proposal we could face all sorts of administrative problems. ACPO is not at all clear on this. The head of ACPO likes it but other parts of ACPO and other parts of the police do not. It would involve big costs and I absolutely do not think that now is the time to do this. As I said in my opening speech, which noble Lords will be able to read in Hansard, we have taken some measures which make the police work even more closely with the new UK Border Agency, and I believe that that is the best way to do things.
The noble Lord, Lord Avebury, asked whether the integration of the customs and immigration functions would lead to a reduction in the number of staff. That is absolutely not the aim. The aim is effectively to have more staff because one man can do a number of things. That is important in small ports in particular, where there are no extra people and one man can do several things. A watch system can be set up and more places can be covered. Therefore, the proposals will allow for a better deployment of staff. I believe that the Bill will improve the breadth of our protection, and the extra flexibility will mean that over time the staff can be deployed to new areas very quickly. Noble Lords will know of the threats and so on that we sometimes see at small airports, and the new arrangements will allow much more flexibility to deal with that sort of thing.
The unions have been very much engaged throughout this process, which has been positive and productive. Of course, it is always difficult when one makes such changes, but the unions have been consulted regularly and they are broadly supportive—in fact, very supportive—of our objectives. Clearly, there are issues relating to how the pay scales will work and regarding reward in the future. These things are still being negotiated and, in order to get them right, that formal negotiation will continue over time.
I have been very impressed by how good morale is in the UKBA. It is a very large organisation and morale fluctuates at times but overall it is good. The HMRC part of it—the new bit—is pleased to be part of the border function. HMRC is much bigger and covers the whole of the United Kingdom. The 4,500 officers will be aimed specifically at the border, and generally they are very pleased to be part of that border force.
I light-heartedly talked about uniforms but they are important. The uniform that the officers wore last year for the first time made a difference, as a number of noble Lords noted and as people have commented on. These things may seem very small but they make a difference. A uniform gives people the feeling that they are part of a group and makes them function better. Leadership and so on within some areas of the UKBA is very good. It is easy to point at areas where things go wrong, but often that is not the fault of the legislation; things happen in huge organisations. One has to work at getting them right and one does that by good leadership, getting people to do the right thing and punishing people when they get it wrong. We have to keep doing that until we get it right.
The noble Baroness, Lady Hanham, mentioned PACE powers. They are not new. Customs officers already use them to arrest and detain smugglers, and the proposed legislation will enable them to retain these powers when they become part of the UKBA, so there will not be a mass of new things. In terms of charges being laid without the police, under current arrangements customs and immigration officers can arrest people and investigate offences, but only the police can charge them. That will not change. In practice, a decision on the charge is one for the CPS or indeed, the Revenue and Customs Prosecutions Office.
We talked about a piecemeal approach to the simplification Bill, on which I shall say more in a minute. The Borders, Citizenship and Immigration Bill makes specific changes to customs legislation and nationality law. The simplification Bill, which is heading rapidly towards 400 clauses—this is a complex and serious Bill on which people are working very hard all the time, so it cannot be rushed forward—will cover all immigration legislation since 1971 and will not cover the ground again on citizenship.
I have mentioned the importance of training, which was raised by a number of noble Lords. I know that the noble Lord, Lord Clinton-Davis, mentioned it. It is very important and is very much part of our package. A number of noble Lords understandably felt strongly about citizenship. I reiterate that we have consulted widely on our proposals on earned citizenship, which are generally supported by the public. It is important to reiterate that migration has given and still does give huge benefits to our nation. It is a very positive thing. Having talked to the public, including first generation immigrants and everyone else, 70 per cent think that newcomers should earn the right to stay here, 83 per cent think that they should be made to learn English, and 70 per cent agree that they should be penalised on the path to citizenship if they do not follow the rules. There is clear support for what we are doing.
I appreciate the intellectual weight and attention to detail that has gone into many of the points raised. We need a balanced response to the needs of migrants who want to make their home in this country, and the needs of the community in which they wish to settle. That balance is extremely difficult to achieve all the time. The Government believe in a firm but fair system. I know that some people come here because they cannot avoid it, but many choose to do so. We should be proud of the fact that most people choose to stay here. We are firm but fair in this country, and it is only through debate in places such as this that we have achieved that, and it is extremely healthy to do such things.
The system of earned citizenship encourages people with the right values to become citizens. We all know that rights come with responsibilities, and the benefits of British citizenship should be earned. I do not like the expression that people are “compelled” to undertake voluntary service, but I understand why noble Lords feel that that is the case, as people will feel that that is how to get through the system quicker. I think that it is quite a noble objective to get people to be involved. It is a question of how to achieve that. Looking at the design group that has been set up I agree that we need to talk closely, think and maybe articulate better what are the precise requirements. That is right and we will have to do a little better to achieve that. It will be a fairly long negotiation to identify what are recognised as the important things. I know that my noble friend, Lady Quin, the noble Lord, Lord Wallace, and the noble Baroness, Lady Hanham, all picked up on that point.
My noble and learned friend Lord Goldsmith talked eloquently on citizenship. I understand exactly where he is coming from. Again, this is a very small Bill and we have gone for one small piece in it. I think that it is a good piece and something worth doing. It reminds me of how Wellington used to talk about Napoleon. He said that Napoleon's campaigns were like a great team of horses with a marvellous leather harness that fitted beautifully, but when it broke, that was it. Mine, he said, was bits of rope tied together, and when something went wrong, I knotted it and tied another bit of rope in, and that is why I always beat him.
Sometimes, it makes sense to go for a small chunk of something. Great, grand schemes sometimes do not work. That is certainly my experience in life. They do not always work; they can do; but they do not always; and they are very complicated and it takes a long time to set them up. This small focused piece is worth doing.
Dual nationality and passports were mentioned. The noble Lord, Lord Marlesford, has written to me several times on passports. I am listening. There are some difficult areas there. I think that overall the UK Passport Agency does well, but some issues need to be looked at closely. The issue of dual nationality and non-British citizens in our Armed Forces and our people fighting other armed forces must be addressed, but not in this Bill. As a sailor, if we had fought Trafalgar without people of other nationalities, including French, on our side, the outcome might have been rather different, so that is not new but something that we should perhaps look at a little more closely.
I thank the noble Baroness, Lady Stern, for her valuable input. I have been very impressed by the quality, diligence and care of the people in detention centres, for example—our people from our agencies—who try really hard to get things right. Those are not easy jobs; they are horrible jobs. Not everyone who is held is a little sweetheart; some of them are very much not that. However, each case, no matter who they are, is a personal tragedy. When you are dealing with personal tragedies, it is extremely difficult. It is only fair that we should remember that the people who work there are ordinary British people working jolly hard and trying to do their best and, generally, they are and they do very well.
We must have rules and we must have a system. The immigration simplification Bill, which, as I said, is already moving towards 400 clauses, is where that needs to be addressed. I could not agree more that it would be really nice if it was here now, but there are some things, especially in Part 1, that we need done as quickly as possible. It would be very nice to have that now, but people are working on it very hard and it is not that easy to do. There has been too much legislation. There are other areas where we should rationalise legislation. That is what we intend to do and are trying to get at.
The noble Lord, Lord Avebury, asked about leave to remain and probationary citizenship. As I said, there is strong public support for the idea of requiring newcomers to pass through a period of provisional and probationary citizenship. My noble and learned friend Lord Goldsmith spoke eloquently on that and said that the word probationary was quite attractive in that sense.
My Lords, is the noble Lord going to say anything about the points raised on all sides concerning support given to people on probationary citizenship and the fact that they will not be eligible for certain services?
My Lords, I was not going to go into any great detail on that. Perhaps I may get back to be noble Lord in writing on that one, because I am trying to whisk through rather quickly. I probably have something written here, but I have been rather sifting through.
Is it discriminatory to require newcomers to support themselves while they have limited leave to remain here? They need to spend only one year as a probationary citizen before becoming eligible for citizenship. I emphasise again that those granted refugee status will be eligible for benefits as soon as they are granted that status.
The noble Baroness, Lady Hanham, and the noble Lord, Lord Avebury, talked about active citizenship and the impact on volunteering. We are very aware of the need to talk to volunteer groups—I touched on that before. That is an important area that we need to clarify a little more.
I think it was the noble Lord, Lord Morris, who asked about free healthcare. The proposals do not affect migrants’ access to healthcare. Access to free healthcare is not directly linked to particular immigration categories; it is based on ordinary residence in the UK, so they will get it.
The noble Baroness, Lady Hanham, asked about earned citizenship and the impact of the new system on access to benefits for migrants who are already here with leave. Under our proposals, the earliest that a person on the work route to citizenship will be able to qualify for full access to benefits will be six years. For those on the family route, it will be three years. We believe that it is right that full access to benefits should be withheld until a migrant has earned the right to British citizenship, which is what our proposals achieve.
I will clarify the position on probationary citizenship. It is a further period of temporary leave, and it is right that someone should have full access to benefits only once they have completed the journey to citizenship, but I should make it clear that refugees will continue to have access as soon as they are granted that status. We believe that that is reasonable.
The noble Lord, Lord Clinton-Davis, mentioned English and asked what the requirement means. Migrants meet the English requirement by completing an ESOL—English for Speakers of Other Languages—course and demonstrating progression from one ESOL level to the next. Those on ESOL entry level 3 or above take the life-in-the-UK test.
I welcome the House’s quiet assent to the Bill’s provisions on the nationality aspect of British servicemen and their children. Indeed, it is a bit of a pleasure to get support from the whole House, if only on one of the clauses.
A number of noble Lords, including the noble Lords, Lord Smith of Clifton, Lord Patten and Lord Sheikh, spoke very eloquently about the common travel area. I think that the noble Lord, Lord Sheikh, supports this. All I would say is that we are not abolishing it. We have made clear the value that we attach to the political, economic and social benefits of the common travel area. The noble Lord, Lord Smith of Clifton, felt that we were abolishing it, but we are definitely not doing so. We have reviewed, and we will keep under review, the practical operation of the common travel area to ensure that we maximise the protections there. We have had long debates with Ireland, or the Republic of Ireland; clearly, I have to be careful what I call it. I might once have referred to Great Britain rather than the United Kingdom, but as I have actually served on the border in that part of the United Kingdom I am very well aware of how it is part of our nation.
There was mention of the difficulty of showing a Lords’ pass to get across the border and the fact that it did not work. When I visited a prison to look at extremism and radicalisation in prisons, I found that a Lords’ pass would not get me in there either. One of the warders said, “I think we’ve got a few of you in here, however, my Lord”, so I discovered that they had recognised it. Someone mentioned that there is a difference between being in Schengen and out of Schengen. There is no doubt at all—indeed, it is quite clear to us—that Ireland is being used, particularly in serious crime and trafficking, as an access route into the rest of the United Kingdom. We cannot aim to have an impregnable defence. I go back to that harness made of ropes and knots; we have to do this a bit at a time, and we have to do what is achievable. This is achievable, and we are doing it. We are well aware of the sensitivities. When people travel from Northern Ireland to this country, a lot of airlines already ask for some form of visual ID. It is a question of exactly what that is. We have for years used the intelligence base to look for things when people and traffic come from Northern Ireland. Indeed, we used it extremely successfully in the 1980s, so it is not new to us. It can make all of us, including those in Ireland, safer because people will not try to come in through that route.
A number of noble Lords were very interested in the restriction on studies. The provision in the Bill is a relatively limited measure. It ensures that a student who has been sponsored by one institution when they enter to study must seek permission if they wish to change their institution and sponsor. The noble Lord, Lord Tomlinson, pointed out very clearly that education has been used by a lot of people as a way of getting into this country. It is not too much to ask the university, other educational establishments and the people involved to do this.
I am aware that there are other, smaller issues. We should perhaps deal with them in Committee. For example, clearly if someone comes to study architecture or medicine, the course will last longer than the maximum four years’ leave granted. We are committed to keeping the performance of sponsoring education bodies under review. We will do that as it goes on. If the system is working well and we feel that there needs to be a change, something can be done. Certainly it is a change that I would have hoped would be made in the future. We can talk later in more detail on other issues relating to studies. I was grateful for the very balanced remarks of the noble Baroness, Lady Warwick. Again, we should perhaps discuss costs in Committee.
Clause 50 relates to judicial review. I am always wary of calling myself a simple sailor but not when it comes to raising my head above the parapet among all the judges on this. I was taught by the noble and learned Lord, Lord Lloyd, that there are superior and inferior judges but as far as I am concerned, if you are in court and there is a judge there, he is a judge. Clearly there is a lot of difference between all these. There are a lot of implications that need to be looked at in detail. What is quite clear is that the senior judiciary are very supportive of the clause and the supporting legislation. The responses of the president of the Queen’s Bench, the Master of the Rolls, the Senior President of Tribunals and others to the consultation on immigration appeals are available on the UK Border Agency’s website. We believe that this provision will assist, if an Asylum and Immigration Tribunal case is transferred, but I understand the complexities of the other questions asked not just by the noble and learned Lord, Lord Lloyd, but also the noble Lord, Lord Thomas of Gresford, and the noble and learned Baroness, Lady Butler-Sloss. I am glad to say that the noble and learned Baroness had a slightly different view; it was nice to feel that there was a bit of support for it. The complexities will have to be addressed in Committee and there will need to be further discussion on the key points mentioned.
I have pages and pages of briefing on Clause 50 but I will not deal with it now as I think we ought to do that in Committee.
Many noble Lords were very interested in Clause 51, on children. I was very grateful to the noble Viscount, Lord Bridgeman, for thanking us for getting this clause into the Bill. I am rather proud that we did. The noble Baroness, Lady Hanham, pointed out that a lot of it was the work of the party opposite; even so, it is right and good that it should be in there. I am very aware that a number of good questions still need to be answered. We need very clear guidance and training for all our people. I hope that everyone in the House agrees that it is a huge step forward.
I thank the noble Earl, Lord Listowel, for his very fulsome praise of what we have invested in children over the past few years. I think it is impressive. We would be very happy to facilitate a meeting between the UKBA’s children’s champion and the noble Earl or anyone else. My officials will seek to arrange that before Clause 51 is discussed in Committee, if it would help.
Trafficking of children is a most appalling thing, and we are very committed to ensuring that we become a hostile environment for it. During the passage of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 the criminalisation of trafficking for non-sexual exploitation, including of children, was discussed and legislated for. I believe that this is an area where we can have even more focus; it is very important. We have tried very hard, but there are still things that can be done, and that will merit further discussion in Committee.
On Clause 53, the noble Lords, Lord Wallace and Lord Patten, asked whether the Bill covers all six parts of the United Kingdom. Clause 53, on extent, sets out that, as reserved matters, immigration, customs and nationality will apply to England, Scotland, Wales and Northern Ireland, and that the same provisions may be applied to the Crown dependencies—the Isle of Man and the Channel Islands—by Order in Council. I hope that that answers that specific question.
The noble Lord, Lord Kirkwood, asked about training officers in Scotland. HMRC and immigration officers in Scotland are well used to working with Scots law and receive appropriate training on the workings of the Scottish legal system. I was appalled to hear that we have not done proper consultation. I apologise for that and I will go and kick someone later on. Having been—well, not the victim—luckily part of the Scottish education system and having received the tawse for the first time at the age of five for my mother’s inappropriate doing of the cross-stitch on some sewing done at home, which was spotted, I know exactly how harsh things can be up there at times.
There was a lot of mention of Zimbabwe, which, clearly, is very important, although not really, I feel, a part of what we are discussing now. It is well worthy of discussion and it is a great worry. The Prime Minister will come back soon with the answer that he said he would, which is all I can say on that matter.
The noble Lord, Lord Patten, mentioned the Olympics. There has been a lot of talk about the Olympics. We have done a huge amount of work and now have a fully costed plan, which will go to the NSID Cabinet committee in the next few weeks. We are well ahead of any other nation at this stage, half way between getting the bid and doing the event. It fits in and slots in well with our CONTEST strategy. We are still within the £600 million, which will be hard work but we will manage it. We are well placed on that. It is not really a part of this Bill, but I throw that in as an aside.
I thank all noble Lords for their contributions at this Second Reading.
My Lords, will the Minister consider writing to those who have taken part in this debate with a copy placed in the Library on the human rights compliance issues?
Absolutely, my Lords. We will look at Hansard and will try to write on all of those issues. If there is anything that we do not manage to cover, perhaps noble Lords will let us know. That will be helpful because it will give a good run-in for my team before Committee stage.
This has provided an important opportunity to consider the main themes and issues of the Borders, Citizenship and Immigration Bill. As I have said, it is a very small focused Bill with about 50 clauses, but it includes some important things. We need to get going and crack on with Part 1 especially and some other areas are important as well. I very much look forward to working with your Lordships and to taking advantage of all your knowledge and experience, which has been shown today, as we look at the detail of all this in Committee.
My Lords, does the Minister recognise the commitment to taking a look at how this Bill will impact on those undocumented people who are already here, especially in terms of earning citizenship, probationary citizenship and all the rest of it?
My Lords, my noble friend raises a good and important point, which I mentioned to the Whip on the Front Bench. I will make a commitment to do that.
Bill read a second time and committed to a Committee of the Whole House.