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Lords Chamber

Volume 708: debated on Monday 2 March 2009

House of Lords

Monday, 2 March 2009.

Prayers—read by the Lord Bishop of Norwich.

Railways: Network Rail

Question

Asked By

To ask Her Majesty’s Government whether they advise Network Rail on the strategic impact of its engineering works programme.

My Lords, the Government do not provide such advice. This is an operational matter for Network Rail, overseen by the independent Office of Rail Regulation. As part of the Periodic Review 2008 final determinations accepted by Network Rail on 5 February, the Office of Rail Regulation has set targets and provided funding for Network Rail to reduce the impact of its engineering works on users of the railway.

My Lords, is the noble Lord aware that the weekend after next both the east coast and the west coast main lines will have severe delays due to engineering works and that it is not uncommon for two of the three routes into East Anglia also to be subject to delays? Who speaks on behalf of passengers when the overall network delays are simply unacceptable?

My Lords, I understand the noble Baroness’s point about inconvenience to passengers. It is precisely for that reason that the Office of Rail Regulation, which is the body responsible for ensuring that the voice of passengers is conveyed loud and clear to Network Rail, has agreed with Network Rail that over the next five years there will be a reduction of more than one-third in the disruption caused to passengers by engineering work. Of course, it is not possible to maintain the railway without engineering work, which will cause some disruption to passengers, but we expect that the target of a one-third reduction in that disruption will make a big difference to the experience of members of the travelling public.

My Lords, the Government should think again. The noble Lord referred to the Office of Rail Regulation. We have the Office of Rail Regulation, we have the operators, we have Network Rail and we have the passengers. There needs to be more connect between that lot. The passenger loses out all the time. Will the Government think more about how those four bodies can co-operate more fully?

My Lords, I hesitate to point out who privatised the railways in the first place, which caused a lot of the disconnections to which the noble Lord referred. However, there is no absence of responsibility in this matter. The Office of Rail Regulation is clearly charged with ensuring that the passenger voice is heard loud and clear and it establishes the regime within which Network Rail works. As I say, it has set a target for a substantial reduction over the next five years in the disruption caused to passengers by engineering work.

My Lords, does my noble friend agree that the Network Rail report on corporate governance presented to Network Rail members last week was suppressed and not publicly published, to the detriment of taxpayers and railway travellers alike, and that that entirely justifies the criticisms made by the People’s Rail campaign?

My Lords, I do not believe that it has been suppressed; a decision has not yet been taken to publish it. However, my noble friend will be aware that there are more than 100 members of Network Rail. In my experience in this game, the prospects of keeping that document private for long are not great.

My Lords, is my noble friend aware that last week there was a lot of publicity about Network Rail directors’ bonuses? I declare an interest as chairman of the Rail Freight Group and as one of the 100 members of Network Rail. Does he believe that the proposed level of bonus is satisfactory and do the Government agree with it, on the basis of either Network Rail’s performance or the current economic climate?

My Lords, the setting of bonuses is entirely a matter for Network Rail, not the Government. However, I am sure that that House would expect Network Rail’s remuneration committee to be mindful of the public mood on bonuses and not to award bonuses that the travelling public would consider unjustified by their own experience of Network Rail’s performance. This includes the hundreds of thousands of the travelling public on the west coast main line whose services were cancelled or massively disrupted in the new year by poor maintenance of the overhead wires.

My Lords, standard railway practice is that first you plan your engineering work and then you plan your timetable, with engineering work planned so that one strategic route between all points is kept open. How will the present shambles of an organisation that runs our railway system get back to the established practice?

My Lords, the performance of Network Rail has been improving substantially in recent years after, as the noble Lord put it, the shambles that it inherited from the privatised Railtrack. In addition to the near-30 per cent improvements in efficiency that Network Rail has achieved over the past five years, the Office of Rail Regulation is requiring Network Rail to make a further 25 per cent improvement in efficiency over the next five years. That will be achieved only if it plans its engineering work much more effectively.

My Lords, I hope that the Minister can at least confirm to me that he has overall responsibility for the railways, instead of having someone doing this, someone doing that and someone doing the other. Does he know of any attempt to find out what happens with engineering works in other countries that seem to run efficient railways? For example, is there any night working? Let me just explain this. We live on what is known as the misery line—Southern railway—which is usually closed for two weekends a month. That means that it will never increase passenger numbers at weekends because no one knows whether the trains are running or not.

My Lords, the Office of Rail Regulation has looked at the practice of other countries, some of which, as the noble Baroness rightly says, are more efficient in the way in which they conduct their engineering works than is Network Rail, to see what lessons can be learnt. Partly as a result of that benchmarking exercise, new targets have been set for Network Rail’s overall efficiency and for the reduction expected in the disruption caused to passengers by engineering work.

My Lords, the Minister rightly criticised the Conservatives for privatising the railways, but he must be aware that the present Government have had 12 years to renationalise the railways, as some of us suggested and demanded in the early years of the Government. There is, of course, still time between now and next June for a nationalisation Bill to come forward.

My Lords, we created Network Rail in order to improve on the performance of the privatised Railtrack. Performance has been substantially improving and I do not believe that it is in the public interest that there should be further big changes to the organisation of the railway industry at present. It is important that those who are responsible get on with the job and do it properly. Network Rail’s performance has been improving substantially in recent years, but it needs to continue improving.

Manufacturing: Job Losses

Question

Asked By

To ask Her Majesty’s Government what assessments they have made of job losses in small and medium-sized manufacturing companies in the first three months of 2009.

My Lords, data on employment in small and medium-sized manufacturing companies in the first quarter of 2009 are not yet available. However, the Government are acutely aware of the impact that the global economic downturn is having on manufacturers. That is why we have acted to stabilise the banking system and preserve the flow of credit in the economy. Where jobs have been lost, we are providing targeted support, together with regional agencies and Jobcentre Plus.

My Lords, I thank my noble friend for that reply. We have been among the largest employers in manufacturing, but the situation has now changed quite considerably and the problem is in maintaining skills at a time of rising unemployment, particularly in the engineering and motor car industries, which are particularly prominent here. There is of course the question of the depreciation of sterling. That should have been a considerable advantage to us but we do not seem to have seen it so far. We shall need to watch that carefully. What action should we now take to retain our skilled employees over the difficult time that lies ahead?

My Lords, my noble friend makes an extremely good point about skills. It is very important that we do all that we can as a Government to support manufacturing companies through this recession so that they do not, as a result of a temporary loss of demand, cut out capacity capability, be it a plant or skilled employees, as that would leave them at a disadvantage when the upturn comes. That is why we are providing the support for skills that is essential for UK manufacturing both to compete globally and, in particular, to get through the recession. This includes a significant expansion of the Train to Gain service, which will provide more than £1 billion of funding for employer-focused skills during the coming years, and other customised packages, which the Department for Innovation, Universities and Skills is discussing with the key manufacturing employers, most recently Corus and Nissan.

My Lords, instead of spending £12.5 billion cutting VAT, would the Government not have been better advised to cut national insurance—a tax on jobs—which they have increased? Is it any surprise that people are being laid off from work when the Government have made the costs of employment higher?

My Lords, I do not agree with the noble Lord on his original point. The aim of cutting VAT was to get as substantial and quick a stimulus as possible for demand into the economy. I do not believe that alternative measures, notably changes in tax, would have had the same effect and certainly not as quick an effect as the reduction in VAT, which kicked in a week later.

My Lords, does the Minister accept that I am second to none in my admiration for his efforts to get the banks lending again, let alone in my admiration for the Prime Minister in, as he would put it, saving the world? However, does he not accept that what SMEs now require is not exhortation and policy from this Government but results?

My Lords, I agree with the noble Lord, which is why I am pleased to say that the enterprise finance guarantee, which is a 75 per cent guarantee provided by the Government for lending made to small and medium-sized enterprises by banks operating the scheme, has shown considerable success since it went live on 14 January. More than 400 loans have been offered under the scheme, amounting to in the region of £40 million. At that rate, there will be no shortage of applications or offers for the £1 billion scheme as a whole.

My Lords, as someone who has, as have others on these Benches, worked in manufacturing in the steel industry, I can tell my noble friend, who mentioned Corus, that there is great concern among trade union representatives in that company because the redundancy figures are increasing week on week. From the 2,500 originally mentioned, as I understand it, the figure has risen by a further 1,500. I remind my noble friend that there was a time when many in this country thought that there was no future for manufacturing. Indeed, some argued that we were in a post-industrial society. I am sure that he does not agree with that.

My Lords, my noble friend is absolutely right: I do not agree with that sentiment one jot. Indeed, I say in every speech I make that, far from being a post-industrial economy, as some people like to describe our country, we are nothing short of being still the sixth largest manufacturing economy in the world.

I have not been informed of the figures that my noble friend refers to in relation to Corus. I know that the management of Corus decided to make changes both to secure the company's position when the upturn comes and to bring about necessary restructuring, which would have had to have taken place regardless of the recession. However, I will make inquiries because I am concerned that a greater number of redundancies may be made than those of which I was originally informed.

My Lords, the Secretary of State says that the Government are doing all they can to get help to businesses as quickly as possible, yet, despite his department having said in January that the business lending guarantee scheme, which is so urgently needed by so many small and medium-sized enterprises, would be operational by 1 March, it is not. The department now cannot even give a date by which it will be. Indeed, the Government are only now starting discussions with lenders over guaranteed pricing. Given that performance, how can small businesses have any confidence in anything that the Government say?

My Lords, they would have more confidence if the noble Lord were to get his facts slightly straighter than he did in his question. I think that he must be referring not to the business lending guarantee, but to the working capital scheme, which is not a scheme for making direct loans under government guarantee to individual businesses. None the less, we are expecting, as I announced in January, to reach agreement with banks to boost business lending through the scheme. We are currently working with three major banks on their potential loan portfolios. We are awaiting state aid clearance by the European Commission, and I expect that to be forthcoming in the next couple of weeks or so. That is not much beyond what I originally said in January.

Media: Ownership

Question

Asked By

To ask Her Majesty’s Government whether they will ask Ofcom to investigate any sale of major United Kingdom media companies to assess the suitability of potential future owners.

My Lords, as Secretary of State I have the power to intervene in any media or newspaper merger which I believe gives rise to specific public interest issues, such as concerns about accurate presentation of news or free expression of opinion in newspapers. Where such an intervention is made, Ofcom must provide a report on the impact of the merger. This provision exists alongside other statutory rules governing ownership of media enterprises and on accurate reporting and impartiality in broadcasting.

My Lords, I thank the Minister for his detailed Answer. Have the Government received any information from Ofcom or any other sources that would lead them to give credence to the recent rumours that Al-Jazeera is interested in purchasing ITV or Channel 4? Furthermore, can the Minister tell us whether the Government are concerned about the possibility of those major media outlets and others in the print media disappearing further and further from British hands?

My Lords, I have not heard any information about such an exotic proposal as Al-Jazeera taking over ITV, and I will be keeping my ears open. I assure the noble Baroness that I will be eternally vigilant in pursuit of the powers that I have, but they are necessarily limited powers. They do not extend to any member of the Government being able to act on personal whim or prejudice. We have to have a clear public interest case made to us as the basis for any intervention, but of course I would be open to receiving such concerns in the public interest, should they arise.

My Lords, will the Minister allow me to slightly widen the Question from the noble Baroness away from the return of Sir David Frost to our television screens to the wider question of the structure of broadcasting generally? Will he accept that we cannot open any Sunday paper without reading speculation about the future of ITV, Channel 4, or what the Government are going to do about preserving public service broadcasting outside the BBC? I had not actually seen the Al-Jazeera story. When does he feel that the Government can give a clear statement of their policy in this area?

My Lords, the Government offered an initial and provisional outline of their views when my noble friend Lord Carter published the Digital Britain report. That is an interim report: the Government will give further consideration after consultation to what conclusions we eventually reach. In the mean time, all options relating to the future ownership of the media outside the BBC remain on the table, but I assure noble Lords that at the heart of the Government’s consideration of those matters will be our determination to maintain a strong sense and basis of public service at the heart of our broadcasting, whatever future ownership structure emerges.

My Lords, the situation is rarely as serene as the Minister implies. Does he recall that when the Times and satellite broadcasting were under threat, the Administration of the day waived the protection in legislation at the time to allow those deals to go through? If one of our major broadcasters or newspapers were in similar crisis, he would be under similar pressure simply to save the broadcaster or newspaper under threat.

My Lords, I can imagine the pressure that would be brought to bear on the Secretary of State in such circumstances, but the noble Lord can be assured that I would be neither serene nor complacent.

My Lords, before alarm bells ring in the ear of my noble friend on the prospect of Al-Jazeera having an interest in taking over ITV, will he bear it in mind that Al-Jazeera was the only thoroughly objective news-gathering service during the course of the recent dispute in Gaza?

My Lords, I described the possibility as exotic, not objectionable. I hear what my noble friend says and will take that into account should any eventuality arise concerning that broadcasting organisation in the future.

My Lords, were the Government consulted about the recent takeover of the Evening Standard by the Russian?

My Lords, the Government were not consulted as such. The circumstances of Mr Lebedev’s purchase of the London Evening Standard are, I gather, that after making considerable profits on the paper, the previous owners made it clear that they would close it if the transfer was not made. Mr Lebedev seems to have been the only option for keeping the paper alive. I think that we would all agree that maintaining the London Evening Standard in existence is in the public interest and that of journalism in this country. It is perhaps not ideal but what is ideal these days in the newspaper world? We can only wonder what Vere Rothermere would have made of it, but that is now a matter only for speculation.

My Lords, are the powers vested in the Enterprise Act sufficient for the Secretary of State in cases of this kind?

My Lords, I think that the powers are sufficient. But remember that the powers to which the noble Lord refers in the Enterprise Act are not the only ones open to the Government; there are also powers concerning competition and dominance in the media market, something which we have to keep under review as cross-ownership between local and regional newspapers and radio and television might arise, because the commercial and market circumstances for this sector are not what they were in the past and we may need to keep an open mind to certain adjustments. But, yes, I think that the powers we have are sufficient.

Iraq: Ashraf City

Question

Asked By

To ask Her Majesty’s Government what representations they have made to the Government of the United States about the safety of Iranian residents at Camp Ashraf in Iraq to prevent them being forcibly removed.

My Lords, responsibility for Camp Ashraf passed to the Iraqi authorities on 1 January. We remain concerned that the rights of the residents are fully respected. The Iraqi Ministry of Human Rights visits the camp on a regular basis and has delivered verbal assurances to a representative body of residents about continued observance of their rights. We have also discussed our concerns with the US, which is satisfied that the Iraqi authorities are aware of their responsibilities.

My Lords, I am most grateful to the Minister for that response. However, is he aware that the Iranian national security adviser has recently stated:

“Over 3,000 inhabitants of Camp Ashraf have to leave Iraq and the camp will be part of history within two months”,

even though all the residents in Camp Ashraf are considered under the Fourth Geneva Convention as protected persons? Who will oversee their safety?

My Lords, I am not sure whether the noble Baroness meant the Iranian national security adviser or the Iraqi one.

My Lords, the Iraqi one certainly made a statement to the effect that Camp Ashraf would not stay open indefinitely and that third-country settlement or voluntary repatriation might become necessary. In a sense, it is the Iraqis who have authority over this group, not the Iranians, and therefore it is their position that we should continue to monitor. At the moment, we believe that they understand their responsibilities. They are allowing the ICRC access and it is reassured that, at the moment, the treatment is appropriate.

My Lords, is the Minister aware of demands by the Iraqi Prime Minister and the Iraqi President, alongside the Iraqi national security adviser’s threat, that PMOI members should be removed from the base at Ashraf, which would be a direct breach of their human rights? Will he confirm—I think that he did in his Answer to the noble Baroness—that we still have a residual responsibility in this matter?

My Lords, let me be clear that this was a US responsibility handed over the Iraqi authorities on the basis of assurances sought and received from the Iraqis that the rights of this group would be fully respected. We have certainly gone out of our way to get confirmation from the US and indeed from the Iraqis that this is the case.

My Lords, surely the noble Lord will agree that Ashraf City has throughout been the responsibility of every party to the coalition and it simply cannot be right to say that it was an American responsibility alone to see that the rights of the citizens of Ashraf under international law were respected. Surely the British Government have a joint responsibility for everything that has happened since 2003 and a duty to see that the rights of the people in Ashraf under international law are respected. Finally, is he aware that the Iranian Government have boasted recently of an agreement with the Iraqi Government to expel the people of Ashraf from Iraq? Can I have an assurance that Britain will not simply wash its hands of the whole of this matter and will try to prevent this happening?

My Lords, we have rehearsed in this Chamber the reasons why we consider this principally a US responsibility. We have equally accepted that of course it is of concern to us, and we shall press the Iraqi authorities, the US and the ICRC to continue to ensure that the rights of this group are respected and any closure of the camp would take place in a way that respected those rights.

My Lords, can my noble friend confirm that Iraq was invaded by a multinational force of which the United Kingdom contingent formed an integral part and that therefore the United Kingdom assumed the responsibility of an occupying power to protect people who were within that area? Is it suggested that the UK could divest itself of that responsibility simply by announcing that it passed that responsibility to someone else?

My Lords, the point to my noble and learned friend is rather simple. The area where these individuals were located was under US control. As part of the coalition we accept a concern and a responsibility but it was always clear that the primary responsibility was held by the US, which provided security for this group and satisfied itself that it could hand over those responsibilities to the Iraqi authorities.

My Lords, the Minister did not mention the role the United Nations could play in this matter and, more importantly, the concern that has been expressed by PMOI, which has now been removed from the proscribed list of organisations. Would he not consider it wise to invite Mrs Rajavi to meet the Foreign Office and brief it about issues and also to note its concern about what the British Government can do?

My Lords, as I have frequently assured this House, we are fully respectful of the decision of the courts and we are delighted that at the end of January this group was de-listed. That does not mean necessarily that Her Majesty’s Government accept that this group is committed to democratic means of seeking power or that necessarily individuals would be able to win the right to visas and be able to visit the country.

Business of the House

Motion on Standing Orders

Moved By

That Standing Order 41 (Arrangement of the Order Paper) be dispensed with on Thursday 5 March to allow the two Motions in the name of Lord West of Spithead to be taken before the debate in the name of the Earl of Sandwich.

My Lords, I beg to move the Motion standing in my name on the Order Paper. In moving this Motion, I should say a few words so that the House is fully aware why I am proposing it. The Motion would set aside Standing Order 41, which gives general debates precedence on a Thursday. This would allow the two Motions to approve Home Office instruments this Thursday to be taken before the balloted debates. This change is being proposed following discussions through the usual channels, which concluded that in this case such a change to the business might be for the general convenience of the House. I understand that the noble Earl, Lord Sandwich, and the noble Baroness, Lady Greengross, in whose names the balloted debates stand, have consented to the proposals subject to the agreement of the House. I am grateful to them for their understanding.

Motion agreed.

Unit Trusts (Electronic Communications) Order 2009

Open-Ended Investment Companies (Amendment) Regulations 2009

Mutual Societies (Transfers) Order 2009

Government Resources and Accounts Act 2000 (Audit of Non-profit-making Companies) Order 2009

Child Trust Funds (Amendment) Regulations 2009

Social Security (Contributions) (Re-rating) Order 2009

Social Security (Contributions) (Amendment No. 2) Regulations 2009

Motions to Approve

Moved By

That the draft orders and regulations laid before the House on 8 and 16 December 2008 and on 19, 26, 27 and 28 January 2009 be approved.

Relevant Documents: 2nd, 3rd, 4th, 5th and 6th Reports from the Joint Committee on Statutory Instruments, Considered in Grand Committee on 25 February.

Motions agreed.

Contracting Out (Highway Functions) Order 2009

Road Safety (Financial Penalty Deposit) (Appropriate Amount) Order 2009

Motions to Approve

Moved By

That the draft orders laid before the House on 21 and 26 January be approved.

Relevant Documents: 4th and 5th Report from the Joint Committee on Statutory Instruments, Considered in Grand Committee on 25 February.

Motions agreed.

Geneva Conventions and United Nations Personnel (Protocols) Bill [HL]

Third Reading

Bill passed and sent to the Commons.

Borders, Citizenship and Immigration Bill [HL]

Committee (Second Day)

Amendment 45

Moved by

45: Before Clause 37, insert the following new Clause—

“Probationary citizenship leave

(1) A person with probationary citizenship leave shall be treated as a person settled in the United Kingdom for the purposes of all regulations made under—

(a) the Health Services and Public Health Act 1968 (c. 46);(b) the Education (Fees and Awards) Act 1983 (c. 40);(c) the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3));(d) the National Health Service (Charges to Overseas Visitors), Regulations 1989 (S.I. 1989/306);(e) the Teaching and Higher Education Act 1998 (c. 30);(f) the Education (Student Support) Regulations (Northern Ireland) 1998;(g) the Learning Skills Act 2000 (c. 21);(h) the Higher Education Act 2004 (c. 8); and(i) the Higher Education (Northern Ireland) Order 2005 (S.I. 2005/1116 (N.I. 5));(2) In section 115 of the Immigration and Asylum Act 1999 (c. 33) (exclusion from benefits), in subsection (9) after “EEA state” insert “or a person with probationary citizenship leave”.”

In moving Amendment 45 in my name and that of my noble friend, I shall speak also to Amendment 105A. As the Minister is aware, we do not like the term “probationary citizenship” because the status that it covers is in reality an extension of temporary residence leave, prolonging the time that it takes to get to applying for actual citizenship by a year and in the meanwhile imposing certain restrictions on access to services that did not previously apply to those who were on indefinite leave to remain.

We are grateful to the Minister for providing us with a list of the benefits that may not be accessed by a person who is given probationary citizenship leave, or PCL as I shall call it from now onwards, which those on indefinite leave to remain, ILR, have been able to access in the past. As the note accompanying the list makes clear, making a holder of PCL a person “subject to immigration control”—the first of many terms of art used in this Bill—within the meaning of the Immigration and Asylum Act 1999 means that he is subject to the condition that he should not have recourse to public funds. In practice, that means that he is ineligible for any of 15 different types of benefit that are available to those on ILR.

Apart from that, the overseas rate of fees in further and higher education will apply to holders of PCL who are over the age of 18 except in the one case of English for the speakers of other languages, which is to be charged at the home rate on the sensible ground that it will help migrants to acquire the skills that they will need to support their progress towards citizenship. Logically, precisely the same argument applies to every other course of further and higher education, and I invite the Minister to tell us why a course in, say, English history or on local authority management would not equally assist the probationary citizen to make himself useful.

Amendment 105A deals with the case of a person who becomes homeless through no fault of his own during his passage through the probationary citizenship phase. Under the Bill he is given none of the assistance that is normally extended to persons who become homeless. We ask the Minister why this should be so. If someone who is in the middle of a probationary citizenship phase becomes homeless—let us say that a spouse who is attacked by a violent partner becomes homeless during that part of her stay—why is she ineligible for any assistance? That should be added to the list of exceptions in the Bill. I beg to move.

I am afraid that I must resist this amendment. It is a fundamental tenet of our proposed reform of the path to citizenship that the rights and benefits of citizenship are reserved for those who have earned the right to them. Migrants earn those rights and benefits by completing both the temporary residence and the probationary citizenship path.

We recognise that migrants make a significant contribution to this country both economically and in social terms. Nevertheless, it has been a long-standing policy that those entering the United Kingdom on the work or family routes should be expected to support themselves without access to benefits. This supports a clearly held public view that migrants should make an economic contribution and should not be a burden on the state. This policy should be strengthened and clarified so that everyone is clear that full access will be withheld until a migrant completes the path to citizenship.

Of course, this does not apply to migrants who are on the protection route. It is right, given the special circumstances that led people on this route to come to the UK, that they should be able to access all benefits immediately. The restrictions on access to benefits and services at the probationary citizenship stage will apply only to migrants on the work route—that is, those highly skilled and skilled workers under tiers 1 and 2 of the points-based system—and the family route, for family members of British citizens and permanent residents.

Further, all migrants, including those on the family and work routes, will have full access to national insurance contribution-based benefits on the same basis as British workers. These benefits are contribution-based jobseeker’s allowance, incapacity benefit, contributory employment and support allowance, retirement pension, maternity allowance and bereavement benefit. This applies equally during the probationary period of citizenship. We continue to believe that full access to benefits should normally be withheld until a migrant has earned the right to British citizenship or permanent residence.

The amendment is also seriously flawed. While it would give probationary citizens access to social housing and homelessness assistance in Scotland and Northern Ireland, it would not do so in England or Wales. Nor is it sufficient to address the different positions that exist in respect of education and healthcare in England, Scotland, Wales and Northern Ireland. For example, the amendment cites NHS regulations that apply in England and Wales only.

The noble Lord raised two points, one in relation to higher education and the second in relation to homelessness. In both cases the answers are simple but I would prefer to put them in writing to explain more clearly to him why what he suggests is not considered appropriate. If the noble Lord is content with that, I ask him to withdraw the amendment.

I turn to Amendment 105A. I hope that noble Lords will forgive me; my paper-juggling skills are not great. I beg your Lordships’ pardon. I must admit to a certain degree of defeat.

If it will assist the House, it is possible to return to Amendment 105A in its place on the Marshalled List later in the debate if it is not possible to cover it now.

I am sure that we can do that. It is an important point. While I entirely accept the noble Lord’s contention that it has always been the case that a person who is on these routes should be expected to support himself without access to public funds, there must surely be the occasional exception to that. Anybody with a spark of humanity would say that someone who is in the middle of this phase, and who becomes unintentionally homeless through no fault of his own, would look to the public purse for some sort of help. That was the point that I was trying to make. However, I can see that I am not going to get anywhere with the main argument.

I ask the Minister only one further question: what is the real reason for the change in policy? A person was, for the first five years, a worker, or for two years a family member. These periods have suddenly changed. In every case, the time that it takes to become a citizen has become longer. Why do the Government think that that is a better way of getting people to settle in the community?

I have frequently said that the Government believe that we need to have greater integration of citizens and provide both a strengthening of the route and an incentive to accelerate it. In terms of strengthening, we are now bringing conformity to the two separate groups of those who choose not to take active citizenship, and therefore wait the additional time, and those who take active citizenship and gain the advantages thereto.

For the time being, I can see that we are not going to get very far with these amendments. I beg leave to withdraw Amendment 45.

Amendment 45 withdrawn.

Clause 37: Application requirements: general

Amendment 46

Moved by

46: Clause 37, page 27, line 6, after first “the” insert “average”

The first amendment in the group maintains the current position whereby the maximum permitted absences from the UK during the qualifying period for naturalisation have calculated as an average over the total of the qualifying period. This will ensure that a person who is absent in a particular year for more than 90 days for legitimate reasons of business, family crisis or illness abroad does not have to restart the clock on the qualifying period upon his return. It addresses one aspect of the problem that was identified by the noble Baroness, Lady Hanham, when she spoke of migrants who,

“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”.—[Official Report, 11/2/09; col. 1135.]

The current rules, which are set out in chapter 18 of the nationality instructions, allow for an exceptional absence for business or family reasons to be offset by shorter periods of absence in other years, but the Bill requires that the 90-day limit be rigidly observed in each year of the qualifying period. For example, a tier 1 migrant employed by a financial services company travelled overseas extensively to secure business, clocking up 150 days in the first year of his stay in this country. This was not a problem if the average for the whole of the qualifying period did not exceed 90 days, but he will no longer be able to do that.

We understand that the Government are against the amendment because they think that a fixed 90-day limit will promote integration. As far as we are aware, there is no research to show that migrants who relied on averaging over the many years that it has been in force are less integrated than others who had kept within the 90-day limit for each individual year. If the Minister has any research on the matter, perhaps he will enlighten us. Conversely, as the effect of the Government’s proposal is that a person who is unavoidably absent for more than 90 days has to start the qualifying period again from zero, that person will take much longer to become integrated.

Our second amendment provides that where a person spends two periods of time in the UK with a qualifying immigration status separated by a period of lawful but not qualifying immigration status, then the two qualifying periods can be aggregated for the purposes of the calculation. An example of how this might operate is that of a worker who, after 18 months in a job, takes a year off to do a full-time MBA degree and then returns to his former or to another employment. Without the amendment, that first 18 months would not count towards the qualifying period because the time spent on the MBA, although it is a lawful immigration status, is not a qualifying immigration status within the meaning of Clause 37(11).

The Immigration Law Practitioners’ Association cites the case of a person who studied in the UK for three years and then worked for a single employer for a month short of five years, when at that point she was made redundant. Because she had a three-month notice period, the employer wrote in support of her ILR application and it was successful. But if the studies, instead of being at the start of the time she was spending in the UK had been in between two periods of work adding up to the same total, she could not have succeeded if this Bill had been then in force.

Amendment 58 makes the same point about averaging in Clause 38 but deals with family members. It is even more likely that a spouse or civil partner would have a family emergency in his country of origin which requires him to be absent for a period of more than 90 days than a worker whose job could be at stake as a result of the long break, but the arguments are much the same. I beg to move.

I want to say one or two words about refugees in this context, although my noble friend Lord Hylton will speak about them later on. At Second Reading I mentioned the concern expressed by the United Nations High Commissioner for Refugees and others that the new qualifying period, which is to be extended to three years, should not apply to genuine refugees. In their case, the period ought to start from the first application for entry. An additional probationary citizenship period prior to qualification for naturalisation would leave many of them in a state of unresolved nationality for well beyond 10 years. As a matter of best practice, these delays appear unsatisfactory for those people deemed in need of international protection.

I do not like the term “probationary citizenship” since it creates a second-class category from which migrants and refugees, tripped up by these regulations, may never escape. In the case of migrants, I hope that the Minister will agree with the noble Lord, Lord Avebury, that the clause allowing leave up to three months in the year is unnecessarily restrictive. Migrants, by their nature, may have good reasons to return to their first home for long periods even though they have established strong ties with the UK. There is also a potential conflict with the ECHR and the 1997 European Convention on Nationality. What will happen to existing migrants approaching the end of their limited leave who are ready and entitled to apply for indefinite leave? Will their rights be safeguarded or will they have to go backwards to probationary citizenship?

The special category of recognised refugees resettled under the Gateway Protection Programme will surely not have to spend more than five years. The Minister will be aware that the majority of people in this category will already have been recognised by the United Nations for at least five years before their resettlement. The programme provides for this special category of people selected outside the UK by our embassy staff from the group of UN-registered refugees now in third countries. The UK has only recently joined this programme. I have had some experience of this and know how rigorous the selection process is, so I would be grateful for the reassurance. I recognise that this group of refugees comes up in later amendments but I wanted to put this on the record now.

I support this amendment. It is not hard to understand why those who wish to reside here permanently should have to show that they are committed to the United Kingdom, but that is surely demonstrated by a wholehearted commitment to its values and culture. The travel restrictions in Clause 37 could conflict with this. A lot of charitable and relief organisations employ migrants seeking indefinite leave to remain. Those migrants often have the linguistic or specialist skills needed by agencies engaged in international development or relief. Church Communities UK gave a good example in its briefing of a Korean member who speaks Thai and was sent to Thailand for nine months to assist in a school that had been destroyed by the tsunami. She did this while seeking indefinite leave to remain. Her commitment to the culture and values of this country seems self-evident and is embraced by the self-giving action that she undertook as a result of the work of that agency. A law of unintended consequences seems to be at work here, which is why this amendment is so valuable.

I support the amendment as well. I will not go into the details of some of the other issues that I also support, because, as my noble friend Lord Sandwich said, they are coming up at a later stage. But the points that he and the noble Lord, Lord Avebury, made deserve serious consideration and change.

Our principal aim is to reform the path to citizenship by creating three clear routes to achieving it, and to ensure that it is earned. The three routes are clear: work, family and the protection route. We require migrants to pass through successive stages on their journey to citizenship, and at each stage they will need to demonstrate that they have earned the right to progress. That supports the key principle that rights are matched by responsibilities.

With regard to the noble Lord’s first amendment, I cannot support the notion of an average calculation of absences over the qualifying period, but I can advise that we will not examine that requirement too closely where the absences are in the earlier part of the probationary period. However, as I have said, we require British citizens to demonstrate clearly that they have a close connection and a continuing relationship with the UK and intend to regard the UK as their home. We believe that that can be demonstrated by migrants spending the overwhelming majority of their time in the UK during their qualifying period. We consider that that encourages integration more than an individual spending a large part of their time abroad. If we applied an average of absences over a six-year period, that could in theory allow someone to be absent for up to 540 days in one go, yet still qualify for naturalisation. We do not consider that this is the best way for a migrant to demonstrate a close connection.

Under our proposals, migrants will be able to spend one-quarter of each year of their qualifying period outside the UK and still qualify for British citizenship. We feel that that is a more than adequate provision. As I said, we will not examine the requirement too closely where the absences take place in the early part of the qualifying period—that is, in the entry into the probationary citizenship stage, which has already been examined. We are not concerned about absences from the UK before the start of the qualifying period.

We want—I think this meets the point made by several noble Lords—to avoid a system that penalises those who we want to stay here from being able to because they have exceeded the set limit by a few days, or who may have justifiable reasons to explain their absence. The Bill therefore provides a discretion to allow the Secretary of State to overlook periods of absence that exceed 90 days in a year in the special circumstances of a particular case. Cases cited in the discussion of this clause would provide some of the basis for that kind of discretion.

We will continue to expect migrants to justify large absences. In such cases we would expect the applicant to demonstrate close links with the UK in terms of length of residence and the presence of home, family and estate in the UK. We would also look at the reasons for absences.

I have listened carefully to the Minister. As he knows, my name is also attached to the amendment. I wonder if I understood him correctly when he said that the Secretary of State will have discretion to overlook the requirement for no more than 90 days’ absence per year. I note what he says about integration, along with his calculation that it could end up being 540 days. He is implying a level of flexibility. In the interests of transparency, will he explain whether the ability of the Secretary of State to divert from the rules that are laid down will be set out in guidance? How will people who might be affected by that, particularly in humanitarian cases or in emergencies, know that they have the right to use exceptional circumstances as a basis for using that right?

As I said, the Bill provides a discretion to allow the Secretary of State to overlook periods of absences exceeding 90 days in the special circumstances of a particular case. The noble Baroness makes a good point: how will people know what those would be? I suspect that the answer is in terms of her question and that it will be in guidance, but I shall confirm that and come back to her.

I turn to Amendment 47. We do not support the view on the aggregation of two periods with qualifying immigration status, where they are separated by a period in which people have held a non-qualifying immigration status but, again, we have the power to apply discretion to the requirement for continuous employment. We recognise that there may be circumstances where economically productive migrants, through no fault of their own, cease to be in employment for short periods: Clause 37(7) gives us the discretion to waive the requirement in compelling circumstances. That will, however, only assist those who have spent the whole of their qualifying period continuously with a qualifying sort of immigration status.

The noble Earl, Lord Sandwich, and the right reverend Prelate the Bishop of Norwich made points that will become clearer and more relevant in our later debates. I will take note of them, and hope to respond to them in that context. In the mean time, I hope that the noble Lord will feel able to withdraw the amendment.

I am grateful to the noble Earl, Lord Sandwich, for his intervention. Could we have a response at some point to his comments on the gateway programme? I am not sure whether those who come in under that programme are treated as being in the protection route or as coming in for work. As I understand the gateway programme, they get into employment once they arrive here, so one would have thought they were counted in the work route. Since the Minister has given us no enlightenment on that, perhaps we could ask for a written note.

On the question of the gateway refugees, those which are recognised by the UNHCR before they come to the UK will continue to be granted permanent residence when they first arrive in this country. On the second point, which I was unable to confirm a moment ago in the context of the question from the noble Baroness, Lady Falkner, information on how we will see the discretion of the Secretary of State being used will be published in guidance on the UKBA website.

That is certainly helpful, and I hope that the noble Earl, Lord Sandwich, is satisfied with that reply. Regarding the intervention from the right reverend Prelate, I, too, read what was said by Church Communities UK, and he quoted an extremely valid example. That individual, who came into the United Kingdom to assist them with overseas programmes, had specialist knowledge of the Thai language and customs and spent a good deal of the first year, as I remember it, outside the country. He was all right, however, because his average was still less than the 90 days. The rigidity of the 90 days will discourage that sort of activity, and although I heard the Minister’s answer to my noble friend, I would like him to assure me that that discretion can be found in the Bill. I did not notice it, and neither did my noble friend, so it would also be extremely helpful if the Minister can point us toward the clause that confers the discretion he has mentioned on the Secretary of State.

Until we see the guidance that the Minister said would be forthcoming, we really do not know whether his answer is satisfactory. The reasons why people may have to take advantage of the discretion are manifold; we hope that it will be sufficiently flexible to cover every circumstance that we, from previous experience, know that people may invoke. It is frequently the case with this Bill that we are told guidance is coming along later, but we have no means of really getting our teeth into what is proposed because there is no idea of the nature of that guidance, or of how it will operate in practice.

I am disappointed by what the Minister said in answer to Amendment 47, because there are circumstances—I quoted an example—where a person’s qualifying residence would be interrupted by a perfectly legal stay in the country which was not qualifying. I do not see why that should be excluded by the calculation and why somebody should have to start again from scratch. By definition, if it is a lawful stay in the country, it is contributing to that person’s integration. We were asking not that it should be counted, but only that the periods before and after should be aggregated in a calculation. That seemed a very modest demand which I am surprised the Minister has had to reject.

However, I confess again that we are not hopeful of getting any further at this stage, so perhaps we shall defer our pleasure until Report and see whether we can get any further advance out of the Minister. In the mean time, I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Amendment 48

Moved by

48: Clause 37, page 27, leave out lines 11 to 14

The amendments in this group were designed to highlight the fact that, as the Minister said in winding up on Second Reading, probationary citizenship is a further period of temporary leave. We hope also to get the Government to explain what is added to the process of getting a permanent migrant to the point of applying for citizenship by having two stages of temporary leave, one after the other, called by different names but in practical terms adding nothing but a layer of bureaucracy and complexity to the process.

The first amendment would omit the requirement that an applicant for naturalisation have a particular kind of leave at the point when the application is made. The second amendment, which is an alternative, provides that the applicant should have,

““limited leave to enter or remain”

at that point. All the other conditions, including length of stay, knowledge of English and active citizenship would remain the same under our proposals.

In the Government’s response to the consultation on the Path to Citizenship Green Paper, no statistics were given, but it was pretty clear that most of the respondents had been highly critical of the probationary citizenship stage. Some felt it was unnecessary because the temporary leave stage was already probationary, while others felt that it would lead to more confusion, which I am sure it will. The new stage would discourage integration, and there is no need to lengthen the timescale. There is no argument in the document to demonstrate how changing the name of temporary leave part of the way through the period of waiting to become a citizen would contribute towards integration, to British society or to clarity, which are said to be the three main aims of the legislation. Requiring the migrant to learn English, to have some knowledge of British society and contribute a recorded amount of voluntary work are all conditions which could equally well be imposed without creating an additional stage in which they have to embedded. Equally, lengthening the time before an application for citizenship can be submitted for people who break the law or who do not satisfy the language or active citizenship tests is not dependent on the name of the status occupied by the person to whom these criteria are applied.

The Government say that they are prepared to consider changing the title “probationary citizenship”, which not only carries with it overtones of the criminal justice system but is also misleading since many who are given that status are citizens of other countries which forbid dual nationality and are therefore on the way to becoming permanent residents rather than citizens. No amount of tinkering with the name should be allowed to obscure the fact that we are dealing with arbitrarily different names for two stages that are the same for the migrant, adding nothing but unnecessary complexity and bureaucracy to the process of becoming either a citizen or a permanent resident. I beg to move.

I would like the Minister to be very clear about the difference between these two nominations. The noble Lord, Lord West, explained at Second Reading that probationary citizenship was intended to demonstrate that probationary citizens were on a journey. However, interim leave to remain suggests precisely the same: it is the same process, whereby migrants are on a journey to citizenship. I agree with the noble Lord, Lord Avebury, that “probation” is an unfortunate term here. It sounds as if everything is against the person trying to get their citizenship. Probation means that you have to be on your best behaviour all the time, whereas, as the correspondence that we have received shows, everybody understands “interim leave to remain”. Will the Minister tell us what the differences are, apart from the name? Is there anything in probationary citizenship that is different from interim leave to remain? If there is not, please could we stick to the name that we have?

The central point is that the Government see probationary citizenship as a key part of their vision for a new path to citizenship. We believe that citizenship should be earned. The second stage will enable migrants to demonstrate their continued commitment to the UK and it will support their integration; it will encourage migrants to continue their journey towards securing British citizenship. The objective of paragraph (d), which the amendment would omit, is to ensure that migrants cannot apply for naturalisation as British citizens until they have substantially progressed on the path and met the associated requirements. The amendments would allow a migrant to apply for naturalisation without having passed through the probationary citizenship scheme, which we see as a key part of the path and the journey. They would also mean that an EEA national could apply for naturalisation without first holding a permanent EEA entitlement, which would not be appropriate. It is therefore crucial that migrants are required to pass through the probationary citizenship stage before they can be naturalised as British citizens. It would not be appropriate to have EEA nationals apply for naturalisation without first gaining a permanent EEA entitlement.

The connotations of the word “probation” depend entirely where you come from. Much of my life has been spent in employee relations. To me, “probation” meant the time that you served after joining an organisation, company or the Civil Service before you qualified to be a permanent member of staff, or an established civil servant, whatever the term was at the time. Of course, another connotation has been suggested by the noble Lord, who said that probation in criminal law is seen as something that precedes something more serious. We are not wedded to the word “probation”. We think that it is the clearest way to describe how people should take on board active citizenship activities on the way to naturalisation but, if alternatives were put forward, the Government would be delighted to consider them. If anything clearer and more acceptable were put forward, there would not be great resistance from the Government to accepting it. In the mean time, I hope that the noble Lord will feel able to withdraw the amendment.

The path that we set out has both terms. We want to ensure that people coming to this country understand the need of the Government and the people of this country, who overwhelmingly support the concept of active citizenship and the roles that are required by it. We want these to be understood by migrants and for as many as possible of them to play their part and participate in the scheme. Therefore, although it is not mandatory, we want to encourage it.

The Minister has misunderstood my point. He said that the Government would consider an alternative term to “probationary”. I asked whether the Government would accept “interim leave to remain”.

With respect to the noble Baroness, I do not believe that that actually explains clearly to the would-be citizen why active citizenship is a key part of the path. Therefore, it would not have the desired effect of the encouragement that we want to give. I suspect that it is one of those things that was there at the start of the consideration of names and was rejected for that reason.

I understand, I think, where the Minister is coming from in attaching a normative value to the word “citizenship”. I take a view, as someone who naturalised to citizenship in this country, that there is something privileged and special about being a citizen of the United Kingdom. The Minister said that he has some flexibility. This may not be the time to put various suggestions to him, and I shall do so in writing, but would he think of “qualifying citizenship” as a solution?

I am prepared to take on board any suggestions that people have for the name. Those of our colleagues in the Home Office who have considered many names already will be delighted to have those suggestions added. I am sure that, if we can find a name that satisfies a greater majority than the current name does, we will be happy to adopt it.

Perhaps I may come in on this, please, as a former probationary Methodist minister. In probation, if you do not do something, you are out; in qualifying, you are building blocks and moving forward. You have various things—volunteering, learning a language and so on. If you do not do them, you are in trouble. Would it not be better to do this in a more positive manner, by building up? Then, at last, you achieve the citizenship that you desire.

The noble Lord makes a very good point. If we could have a word that demonstrates that this is positive, that would be helpful. I am more than happy to repeat the assertion that I made that any suggestion for names given in writing or orally will be taken on board and considered.

The discussion on to which we have been diverted, which I hoped would not happen, was whether there should be some better name for the second phase, whereas what the noble Baroness was asking initially was what the difference was between the two phases. I ventured to suggest in my remarks that, although we did not particularly like the term “probationary citizenship leave”, that was not the gravamen of our criticism of the whole scheme.

When the Minister first replied to the noble Baroness, he made three points. When she asked him what the essential difference was between the two parts of the scheme, I carefully took down what he said. First, he said that it was a key part of the Government’s vision. What the hell does that mean? It is totally meaningless. He then said that citizenship should be earned. Nobody is arguing about that; what we are saying is that you do not need two stages in which that earning process can take place. It could be continuous, from the person’s arrival in the country to the date on which he is eligible to apply for citizenship. Having an arbitrary cut-off point halfway through, allowing you to christen the second phase by a different name, is totally meaningless.

The third point that the Minister made was that the second phase enables the migrant to demonstrate his commitment. Well, he has to demonstrate his commitment; there are certain rules that he has to comply with. He has to go through the earned citizenship process; he has to learn English; he has to avoid committing any criminal offence; and all the rest of it. We are not arguing about that. All we are saying—and I do not know how many times one has to repeat this—is that the imposition of a change in the title halfway through does not get us anywhere but simply adds complexity and bureaucracy to the process. I would prefer to call these phases “temporary leave to remain, one and two”; if we have to have two phases, let us make it clear that they are actually the same by calling them by the same name. Then, if we want to have them as different phases, we can attach “one” and “two” to them.

I would prefer a much simpler solution, with a single stage starting from the date of the person’s entry to the United Kingdom. It would have all the hoops that he had to jump through but it would get to a point at the end at which he could apply for citizenship. I wish that I could convince the Minister of that, but I dare say that that is not going to be possible this afternoon. At this stage, I beg leave to withdraw the amendment.

Amendment 48 withdrawn.

Amendment 49 not moved.

Amendment 50

Moved by

50: Clause 37, page 27, line 12, after second “leave,” insert “a qualifying CTA entitlement,”

These amendments, tabled in the name of my noble friend Lord West, make changes to Clauses 37, 38, 44 and 45. The Government regret the omission of these clauses in the earlier published Bill. Amendments 50 and 53 amend Clause 37 to provide that, on the date of the application for naturalisation, one of the acceptable forms of status is for an applicant to have a qualifying common travel area entitlement. We are amending Clause 37 to provide that a qualifying immigration status includes a qualifying CTA entitlement. Amendments 50 and 53 are designed only to ensure that Clause 37 corresponds with the common travel area arrangements for Irish nationals, not to expand the rights given to Irish nationals more generally. This amendment therefore covers only Irish nationals arriving on local journeys from within the common travel area and not those arriving from outside the common travel area.

Amendments 58, 60 and 64 to 76 amend Clause 38 so that, where Irish nationals arrive in the UK pursuant to a CTA entitlement, or Commonwealth nationals enter the UK with a right of abode, they should be able, unlike other migrants, to qualify for naturalisation under Section 6(2) of the British Nationality Act 1981 even where their status in the UK is not based on a relevant family association. Relevant persons who enter the UK with a CTA entitlement or a Commonwealth right of abode will be able to qualify for the shorter period for naturalisation where they are in a relevant family association for the whole of the qualifying period.

Amendment 107 provides that an Irish national who is in the UK, having arrived on a local journey from Ireland or the islands under Section 1(3) of the Immigration Act 1971, is not considered to be in breach of the immigration laws. The amendment will be limited to Irish nationals exercising rights to arrive in the UK without obtaining leave under Section 1(3), which will exclude Irish nationals who are not entitled to enter the UK under Section 1(3), as well as Irish nationals who do not arrive in the UK on a local journey from Ireland or the islands. The requested amendment is designed only to ensure that Clause 44 corresponds with the common travel area arrangements for Irish nationals, not to expand the rights given to Irish nationals more generally.

Amendment 108 to Clause 45 is necessary to provide a definition of what we mean by a qualifying CTA entitlement. I beg to move.

We appreciate that these arrangements are necessary so that people who enter the UK from the common travel area and persons with a Commonwealth right of abode can access the new citizenship process or have permanent leave to remain.

Amendments 50 and 53 concern an Irish national who enters the UK but would cease to have a right to reside here under the EEA regulations 2006 if she were no longer a qualifying person; for example, if she entered as a worker, became pregnant and stopped working on medical advice. Will the Minister explain how an Irish citizen, apart from ceasing to be a qualifying person under paragraph 6(1) of the EEA regulations, could otherwise forfeit the right to reside in the UK? As he explained, the amendments give any such person a qualifying CTA entitlement, which is defined in Amendments 107 and 108.

Then we have a person with a Commonwealth right of abode, which is also to count as a qualifying immigration status for naturalisation as a British citizen under Section 6(2) of the British Nationality Act 1981 if he has a right of abode under Section 2(1)(b) of that Act. However, when I looked that up, I discovered that it referred to a Commonwealth citizen who had a right of abode in the UK immediately before the commencement of the 1981 Act by virtue of Sections 2(1)(d) and 2(2) of the Act as then in force. However, those sections have been repealed and it is, therefore, no longer possible to tell who is entitled just from reading the Act or even by going to the otherwise wonderful website www.statutelaw.gov.uk. The definition therefore fails the test of being prescribed by law and I suggest to the Minister that, at Report, if he agrees, he should repeal Section 2(1)(b) and re-enact in this Bill whatever was in Sections 2(1)(d) and 2(2). I should be grateful if he could think about that and perhaps not give me an answer off the cuff, but discuss it with me before Report.

Amendments 57, 60 and 64 to 76 broaden the range of persons who can benefit from the shorter route to naturalisation on the basis of a family relationship. The amendments accept part of the proposal in our Amendment 61 in this group that a person with a Commonwealth right of abode and a relevant family association should be able to be naturalised without the former having to be based on the latter, but not that the same principle applies to the permanent EEA entitlement, which was also covered in our Amendment 61. Can the Minister explain this distinction? We protest that this is an example of the complexity of the scheme, which seems to be required by the splitting of the shorter family route to naturalisation into two groups—those with a permanent EEA entitlement whose leave must depend on the relationship throughout the whole of the path to citizenship and those where this is not required through a Commonwealth right of abode or the new CTA entitlement. If I may say so, this is the very opposite of the Home Secretary’s claim in her foreword to The Path to Citizenship Green Paper, in which she says:

“We want to make the journey to citizenship clearer, simpler and easier for the public and migrants to understand”.

I defy even Gail Trimble to find her way through the constantly changing maze of rights, entitlements and exceptions in the Bill.

We have to express concern about the proliferation of types of probationary citizenship leave and to ask the Government why they made the system so complicated, instead of requiring everyone on the path to permanent citizenship or permanent leave to remain to spend the whole of the qualifying period in their existing temporary leave status. I know that we will not get anywhere with that, but I have to keep drumming it in, because it is a simple point that needs to be understood by the Government if they want to know where we are coming from in our criticisms of the whole Bill.

Finally, we have a question about Amendment 60. I thank the Minister for most kindly providing the Keeling schedule, although it incorporates only the amendments to Schedule 1 to the BNA made by the Bill in its original form and does not include the amendments that we are considering. The qualifying CTA entitlement requires the holder to have arrived in the UK on a local journey, as the Minister explained, which is defined in Section 11 of the Immigration Act 1971 as a journey that begins and ends in the common travel area consisting of the UK, the Republic of Ireland, the Channel Islands and the Isle of Man. For instance, an Irish citizen who comes here on a flight from Dublin acquires a qualifying CTA entitlement, but if he then goes to Paris for a weekend by Eurostar or Ryanair, his return is not a local journey within the meaning of Section 11. Amendments 107 and 108 say unambiguously that he must have,

“last arrived … on a local journey”.

So, by going to Paris for the weekend, this person has forfeited his qualifying CTA entitlement, which has to begin again from the time of his arrival back at Waterloo. Was that really the intention behind these amendments?

When I read my notes and attempted to study the background to these amendments, I gave my officials forewarning that, when questioned, I would certainly offer the facility of writing in greater detail to expand on what is relatively clear in meaning but seems incredibly complicated in writing. We do not want to repeal, for example, the 1971 Act. However, we will cover all those issues separately as part of the consolidated Bill, which is due to be announced before the end of this year.

The noble Lord asked to whom the amendments would apply, apart from Irish nationals who have ceased to qualify under the EEA regulations. That is the purpose; it is to fill the gap for those Irish nationals. Because I thought that some of the questions on this issue would delve back into the 1981 Act, and because I have had difficulty reading the wonderful website to which the noble Lord referred, I should be grateful if he would allow me to write to him on these matters.

However, I should say that the Government resist Amendment 61. In addition to the right of abode of Commonwealth nationals, the amendment would also allow persons with a permanent EEA entitlement to qualify under Section 6(2) and they would therefore benefit from the shorter qualification period. At the same time, the amendment does not extend to persons exercising CTA entitlement.

The government amendments recognise the close and special bond between the UK and countries in the CTA and the Commonwealth. It is right that we continue to recognise that special relationship through our nationality legislation, helping to reinforce the unique bond that exists between the United Kingdom and the people of the Commonwealth. However, it is not clear to me why EEA nationals should be given favourable treatment in this regard compared with everyone else and be able to nationalise via the quicker route. EEA nationals already benefit from being able to qualify for permanent residence, with all the advantages that that bestows, after five years in the UK, whereas, under our proposals, everyone else must wait up to 10 years to attain this status.

I should again make it clear that EEA nationals in a relationship with a British citizen or a permanent resident are perfectly able to qualify for the shorter time periods that apply to the “family” route. They simply have to choose to obtain leave to enter or remain on the basis of their relationship and qualify under Section 6(2) rather than rely on treaty rights. As such, I do not consider that this is in any way discriminatory against EEA nationals.

Our amendments also maintain the current position. At the moment, Irish nationals entering the UK from France do not have a CTA entitlement to re-enter this country. In most cases, however, they will have a right to enter under European law, and that situation will remain unchanged. I hope that the proposals set out in the Government’s amendments commend themselves to the Committee.

We did not say that the person who comes back on Eurostar does not have a right of re-entry at Waterloo—my noble friend says that it has now changed to St Pancras; I had forgotten that. We said that his qualifying CTA entitlement begins again from scratch the moment that he comes back to St Pancras, and that is incongruous. If this person has already spent a year in the United Kingdom, having entered from Dublin, the short holiday that he spends in Paris means that he has to begin the clock again from zero, and we find that result of the amendments bizarre. If the noble Lord would like to do so, I am perfectly happy for him to take this away and think about it a little further if he does not have the answer off the cuff.

On the point that the Minister made about the Commonwealth having special consideration, we are not talking about anything very special. We are talking about whether the person who has the right of abode here depends entirely on the relevant family association, which is a comparatively small point. For the sake of making the Bill slightly simpler, I should have thought that the Government would have leapt at Amendment 61, so that people with a permanent EEA entitlement would be treated the same as those with a Commonwealth right of abode.

I am beginning to see that whatever we say, and whatever the merits of our arguments, we are not going to get very far this afternoon. That is a great pity because, normally, the point of Committee is to try to improve the Bill. That is what we are doing; we are trying to assist the Secretary of State in her aim of making the journey to citizenship clearer, simpler and easier for the public and migrants to understand, instead of all the time making it more difficult.

The point that the noble Lord raises about weekends in Paris, as he seductively suggests, should be considered further. I will so do, and I therefore hope that Amendment 61, which the Government are at this stage resisting, will not be moved and that the government amendment commends itself to the Committee. I will write to the noble Lord on points outstanding.

Amendment 50 agreed.

Amendment 51

Moved by

51: Clause 37, page 27, leave out lines 15 to 19

Amendments 51 and 52 are intended as an opportunity for the Minister to explain what is meant by “continuous employment” and why the condition is thought to be necessary. The first amendment deletes the requirement in Clause 37 that a person must remain in continuous employment throughout the whole of the probationary citizenship stage. Again, we are grateful to the Minister for the Keeling schedule, which enables us to see where that fits into the BNA 1981. The expression “continuous employment” is not defined. If the Minister says that that will be done in future in guidance, that would mean that Parliament has no say in the detail of the requirement now or at any future time when the Executive may amend the guidance at their absolute discretion.

The second amendment provides that the person must not have been in breach of the conditions of that leave; there are already conditions attached to employment under the points-based system. For example, where the sponsor of a skilled worker under tier 2 of the PBS loses the sponsor licence, the worker has his leave curtailed if he is out of work for more than 60 days after that, unless he has less than six months of his leave remaining, in which case the leave will not be curtailed. If the worker finds a new sponsor to employ him within the 60 days, is he to be treated as having been in continuous employment, or is the period of his probationary citizenship to start again from the day he begins the new job, even though his temporary unemployment was through no fault of his own? If so, why do the Government consider it necessary to apply more onerous conditions to the worker on the path to citizenship than are already laid down by UKBA in the sponsor policy guidance manual?

There are already inconsistencies between the treatment of tier 2 migrants and that of migrants from the access states of the EEA in 2004 and 2007. To take the case of a migrant from Bulgaria or Romania, the UKBA’s European case work instructions provide:

“Employment is to be considered to be continuous if the applicant was legally working at the beginning and end of that period and any intervening period in which the applicant was not legally working did not exceed 30 days”.

We consider, therefore, that introducing a new and as yet undefined continuous employment requirement will create confusion and is unnecessary when there are already strict conditions that apply to workers changing jobs. We also fear that unknown conditions are likely to cause especial difficulty for domestic workers, whose ability to change employers is specifically restricted to another job of the same kind. The domestic worker who has to leave an abusive employer and will not therefore have a reference may be unable to obtain another job as a domestic servant and special arrangements should be made for people in those circumstances. Your Lordships have debated these problems many times over the past few years, but since the meaning of continuous employment is to be defined in guidance, from now on we are to have no say in the means of protecting this vulnerable group of workers. I beg to move.

I, too, have been wondering what is meant by “continuous employment”. A restrictive interpretation of it would be continuous employment with one employer. That in my view would be far too restrictive. In the present economic conditions people may be made redundant, lose their jobs or the firm may go bankrupt. Therefore, they should be given a reasonable period in which to find alternative employment. I would also like to endorse thoroughly what the noble Lord, Lord Avebury, said about domestic workers.

I, too, support both the amendments for the reasons given by the noble Lords, Lord Avebury and Lord Hylton. I am concerned that employees, particularly domestic employees, whose employer may behave improperly towards them, may have considerable problems. The Minister may say that Clause 37(7) applies, but one does not know whether that is to be flexible and broad or to be inflexible and used only in exceptional circumstances. In the period in which we are now living, when people may have come in under an entitlement to stay here in a particular form of employment but in the present economic climate may lose their job, as the noble Lord, Lord Hylton, said, they are in real danger under the wording of Clause 37 of finding themselves put back to the end of the queue and having to start over again. It seems potentially unjust, and if it is not unjust because subsection (7) applies, why is it there anyway?

UNISON, in its useful briefing on the issue, raises a number of concerns such as those outlined by my noble friend. It also points out that “continuous employment” is a specific legal term that means that in the majority of cases an employee must be working for the same employer in order to qualify. Is the phrase in the Bill intended to carry that specific legal term?

The present economic situation has been mentioned. I was recently in Poland, which is in the European Union and totally different from this country. Some Poles coming here had a job and had been told that they would be all right, but after two weeks their construction firm collapsed. They had already paid their worker registration fee, although are not talking about that. There is now such difficulty in obtaining employment that it would be totally unfair to insist on someone being in continuous employment before going on to citizenship.

I thank Members of the Committee for that contribution. I am afraid that I am going to disappoint the noble Lord, Lord Avebury. As I said, we are changing the way that migrants progress to citizenship. We are creating a clearer journey towards becoming a British citizen by putting in place three clear routes to citizenship, with clear requirements for progression on each route. To qualify for citizenship, those here on work routes must show that they are still working and paying taxes. If they do not meet that requirement they will not qualify for citizenship and will be required to leave the United Kingdom. This is wholly appropriate: those here on the “work routes” are here to do exactly that. If they cease to be in employment, they have ceased to meet the key requirement of their route and therefore should not be allowed to progress to citizenship. If these amendments were to be made, migrants who have come here to work would be allowed to qualify for citizenship despite being completely economically inactive for, in some cases, long periods. That is wholly unacceptable.

Furthermore, the amendment specifically proposes a requirement that the applicant has not breached conditions. However, under the existing proposals this is already achieved by virtue of the good character requirement. Under this requirement a breach of condition will normally lead to the refusal of a naturalisation application. As such, in practice, this part of the amendment is unnecessary.

At the same time, however, we recognise that there may be circumstances, especially in the current economic climate, where economically productive migrants cease to be in employment for short periods and through no fault of their own. That is why Clause 37(7) gives us the discretion to waive this requirement in compelling circumstances. However, this is quite different from removing the requirement for a person who has come here to work to remain in employment continuously, which this amendment would allow and which would be completely inappropriate. I therefore hope that the noble Lord will feel sufficiently convinced not to press the amendments.

Individuals can change employer. This condition is intended to ensure that an individual continually contributes to the United Kingdom economy while they are here, not that they have to be in the continuous employment of one employer. Domestic servants are not required to stay with the same employer but I take the point about references not being given. I also take the point that there are abusive employers of domestic servants. I am happy to take on board the point and, at the appropriate stage, at least explain in greater detail how this area will be dealt with. In principle, however, we do not consider that the Bill requires these amendments.

Is the Minister saying that continuous employment does not mean continuous employment with one employer? I think that that needs to be very clear. Continuous employment—not in domestic employment but generally—has been seen in many cases in the courts as involving one employer. That point has been made by UNISON in particular, as the noble Baroness, Lady Miller, said. The Government need to be clear about it. Do they want the courts to find that this is one employer? The word continuous is not same as continual; there is a real difference and I am not sure that the Government have taken it on board.

I note the noble and learned Baroness’s comments with interest and respect for her knowledge on these issues. If I had to give an example, I would cite someone working for a company that goes bankrupt. If the person came in with skills and could soon obtain employment with another company that had not gone bankrupt and required those skills then that would not, as I understand it, be in breach of the proposed conditions. However, it might be wiser to put this in writing to ensure that the courts will accept that interpretation. As I understand it, the Government’s intention is simply to ensure that we have continued employment and economic contributions from would-be migrants.

We are very grateful to the noble Lord for taking part in this debate and to the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Hylton, and my noble friends Lady Miller and Lord Roberts. I think that they have put their finger on a number of really important issues which have not been fully resolved in the discussion.

When the Minister stood up and started talking about a clearer journey and clear requirements, I wondered whether he had been listening to us. This is totally unclear. We have no idea what the rules will be for determining whether a person has been in continuous employment or of how the discretion in subsection (7) that the noble and learned Baroness, Lady Butler-Sloss, has drawn our attention to is to be exercised. The Minister has thrown no light whatever on the Government’s intentions. Before we get to Report, we must have more information about what is continuous employment within the meaning of the British Nationality Act 1981 and how the discretion to disregard it in subsection (7) is to be exercised.

If the Minister really wants to be helpful, he ought to look at parallels such as the EEA regulations which contain definitions of continuous employment. The noble and learned Baroness, Lady Butler-Sloss, has referred to cases in the courts. If we had common definitions of what is meant by continuous employment throughout the legislation, that simplification would be of great help to the lawyers, to those involved in casework and to the workers themselves. However, I suppose that that is a little too much to hope for.

The Minister referred to the private domestic workers issue and I am grateful to him for promising to come back to us on that. However, under the Bill the migrant domestic worker has to remain in domestic service. They cannot leave domestic service and go into some other type of employment. When they are unfortunate enough to have an abusive employer, therefore, and do not get a reference, it will become virtually impossible for them to get another job in the same domestic sector. That is a fact of life. I hope, therefore, that we can find some means of allowing them to escape from this dilemma.

With regard to long periods of inactivity mentioned by the Minister, I need to know what he means. “Long” could mean 30 days, as in the EEA regulations, or it could mean 60 days. We do not have the faintest idea. No light has been thrown on the subject this afternoon. We look forward to communications from the Minister later on, certainly before we get to Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment 51 withdrawn.

Amendment 52 not moved.

Amendment 52ZA

Moved by

52ZA: Clause 37, page 27, leave out lines 20 and 21

I should explain that the two amendments in this group have been renumbered and possibly also regrouped since they were first put down. Amendment 52ZA is concerned with the language requirement for citizenship. It has been drafted by the London office of the United Nations High Commissioner for Refugees. Its purpose is to ensure that refugees and those with humanitarian protection or their family members are not disadvantaged by an inability to meet the language requirements because of the special circumstances of their situation and past history.

The UNHCR points out that, before arriving in Britain, many refugees and protected persons will have fled from communities torn apart by conflict or persecution. They may have spent years in makeshift camps. They may have lived in remote areas with little available education, let alone access to English language training. I would add that some have suffered torture or other brutality, while others have a range of mental and physical needs, including dyslexia, speech problems and depression, all of which may make learning a new language difficult or impossible. We are considering a uniquely vulnerable group of people who differ markedly from young, healthy students or economic migrants. The group includes some full-time and part-time carers.

The Minister will notice that this is essentially a permissive amendment. It gives the Secretary of State discretion to waive the requirement if, and only if, it would be unreasonable for it to be met. I therefore ask the Minister to accept this very modest amendment as it stands, or at the very least to say that he will take away the principle behind it.

Amendment 61B also comes with the approval of the UNHCR. The high commission is concerned about the successful integration of refugees in the countries where they are recognised and accepted. The final solutions should not therefore be unnecessarily delayed. In particular, refugees should not be required to show that they were not in Britain in breach of the immigration laws at any time during the qualifying period for citizenship. The reason for this is simple. Article 31 of the 1951 convention prohibits states from imposing penalties on refugees on account of illegal entry or presence,

“provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

I have quoted directly from the convention. Delaying the start of the qualifying period is a good example of a penalty. Britain helped to draft the convention and has ratified it, and is not entitled to opt out or make a reservation by means of one line in a very miscellaneous Bill.

If his memory is exceptionally good, the noble Lord, Lord West, may recall that I wrote to him on 24 October last following a Written Question. I stated then that many genuine refugees fleeing persecution have no option but to travel on someone else’s passport or on a forged document. Others may have entered illegally by stowing away or by some other desperate expedient. All will have committed technical breaches of immigration law or rules, but provided that they subsequently comply with the convention, they should not be penalised. I therefore commend this amendment to your Lordships and urge the Minister to accept it. If he wishes to argue that the paragraph in question applies to the totality of applicants for naturalisation, will he please arrange for a redraft which would specifically exempt recognised refugees? Any perfected amendment should probably also take account of Clause 37(2)(f), which is similar. I beg to move.

I adopt entirely the arguments of the noble Lord, Lord Hylton. I cannot understand why the burden of proof should shift on to refugees to satisfy the requirement that they were not at any time during the qualifying immigration period in the UK in breach of immigration laws. I also adopt the argument he adduced that it is impossible for the Government to opt out of their international obligations, which they are seeking to do by virtue of what is in the Bill. I ask the Minister to think again about the provisions in question. That would partially satisfy both my noble friend Lord Hylton and me. I hope he will not object to this issue. I ask the noble Lord who will reply to this debate to be reasonable.

I, too, support the amendment moved by the noble Lord, Lord Hylton, and supported by the noble Lord, Lord Clinton-Davis. We have to go back to the 1951 UN Convention relating to the Status of Refugees. Article 34 states:

“Contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings”.

That is the declaration in the convention, which we are proud of supporting over so many years. As has already been stated, we should not try to opt out. We need to clarify some points, such as “in special circumstances”. What are these circumstances? When the new simplification Bill comes before us, there will possibly be some elaboration on this so that we know exactly what it is. Which circumstances does the Minister consider to be special? We have sometimes heard the answer that every case is considered on its own merits. However, it is sad that so often we have to battle to get a certain case across. We need an overview of this and to think about it in some depth. What are these special circumstances?

I was saddened to hear as recently as last week that deportation to the Congo had resumed and that people in desperate situations had been sent back there. This Bill does not deal with that, but it deals with special circumstances. Let us support this amendment, look again at what special circumstances are and have a situation where people know where they stand, so that people who are despairing and who do not know the language can at least feel confidence in the Untied Kingdom as a haven for those in real distress.

This is the nearest sitting day to St David’s Day. I am delighted that not only are English and Scottish Gaelic included in the Bill, but so is the Welsh language. We will possibly discuss this on another occasion. Certainly, we support the amendment moved by the noble Lord, Lord Hylton.

I do not in any way resile from the amendments that have just been moved and are being discussed, but I want to utter the briefest cautionary word so that we are not too patronising. It is frequently suggested, in arguments of this sort, that there is no possibility of the individual concerned being able to understand our language or the circumstances. I am reading Africa by Mr Richard Dowden, director of the Royal African Society, in which he remarks that there are plenty of Africans who, because of the number of languages that are spoken in Africa, are the masters of at least five languages. That statistic is somewhat embarrassing in the context of these islands. We should not be unduly derogatory about Africans’ capacity to pick up languages. That said, I understand what underlies these amendments.

I agree with my noble friend. His amendment is very modest, as were the remarks of the noble Lord, Lord Clinton-Davis. Sub-paragraph (2)(f) is mean and unnecessary in the light of legislation passed over the 14 years that I have been a Member of this House, which has progressively excluded refugees at the point of entry and made life more difficult for them. The noble Lord has international experience and will appreciate the situation of many of these individuals. The subsection penalises not only migrants but also genuine refugees who have been forced to enter the country illegally. We have quarrelled again and again about passports and the necessity for destroying documents, and there are many genuine people in this country who have had to go through those hurdles.

As the noble Lord, Lord Roberts, said, the Government are on dangerous legal ground because states are obliged under Article 31 of the convention not to impose penalties on account of illegal entry. That is fairly straightforward. He also told us that Article 34 requires states to make every effort to expedite naturalisation. Having been stripped of their own citizenship, refugees surely have a strong moral claim to adoption by another state. The Bill as it stands takes them further away from the path of citizenship that the Government intend to lay for them and which we have heard so much about.

I shall be brief because nearly everything has been said. Having listened to the arguments that have been made about the near, if not total, illegality of what is proposed, I agree that it must make sense for the Minister and the Government to reconsider this issue. I agree with the noble Lord, Lord Clinton-Davis: why on earth should it be on the back of the individual to prove that they were not in breach of any of the immigration laws? That is an absurd requirement and must be seen as such. The point has been made again and again about the awful plight of refugees and the way in which they have been persecuted over long periods of time. I hope that the Government will look at the whole issue and find a way that will extend flexibility.

I support all noble Lords who have spoken. At Second Reading, I asked the noble Lord, Lord West, to assure the House that the comments by the United Nations High Commissioner for Refugees on the Bill would be taken seriously by the Government and I asked him whether he would look again at the points raised to see what could be done to improve the Bill and make it more in accordance with the refugee convention. There was understandably no reply at Second Reading because the Minister had too many questions to reply to, but I hope that in his reply to these amendments the noble Lord will give a positive response.

The UNHCR is a UN body and its comments should be taken seriously. These amendments have its support. In particular, the UNHCR briefing states that refugees should not be penalised for illegal entry and that any such penalty should not affect the qualifying period for naturalisation. We are talking here about refugees—people who have fled from appalling circumstances—and, as the noble Lord, Lord West, said in the Second Reading debate,

“each case, no matter who they are, is a personal tragedy”.—[Official Report, 11/2/09; col. 1209.]

I hope that we will get a favourable response to the amendments.

The broadness of the amendment is in contrast to the narrowness of the debate and the contributions made, which have been, to a large degree, about the issue of refugees, to which I shall return.

One of the key principles of our proposals is that anyone who wishes to remain here permanently and become a British citizen must obey the laws, and those are not limited to those who commit criminal acts. We also say that such people should have relevant leave or entitlement to be here; those who do not should not be allowed to become a British citizen. This reinforces the fact that, as well as from the public, we have a right to demand the highest of standards from those who wish to remain here. It has been a long-standing requirement that a person must not be in breach of immigration laws. This is contained in existing criteria for naturalisation.

It is worth mentioning here what it means to be in breach of immigration law. It applies to people who do not have a right of abode, do not have leave to enter or remain, do not have an entitlement to reside under the 2006 EEA regulations, do not fall under Section 8(1) of the Immigration Act 1971 for crew members and do not benefit from an exemption under Sections 8(2) to 8(4) of the same Act. We retain the discretion in Schedule 1 to the British Nationality Act 1981 to treat an applicant for naturalisation as fulfilling the requirement to not have been at any time in breach of immigration law, even though they may have been.

I turn now to the narrower points covered also in Amendment 61B. On the question of language, the amendment would not add anything to the situation that exists. There is already an ability in paragraph 2(e) of Schedule 1 to waive the English language requirement if, because of the applicant’s age or physical or mental condition, it would be unreasonable to expect him or her to meet the requirements.

Does the Minister confine that to the English language or does he include the three languages mentioned in the Bill?

Under the existing law it is the languages expressed in existing legislation. In future it will be the languages described in the legislation to come.

Additionally, the requirement does not apply to those aged over 65 or under 18. I take the point made by the noble Lord, Lord Brooke, that many of the people who come here have skills in several languages and that it is wrong to suggest that they will have great difficulty with the English language. However, it would be clearly an advantage for them to have the English language if they are to integrate and to be successful in our society.

I am grateful for the points made forcefully and eloquently by a number of noble Lords on the question of refugees. The Government will consider the points that have been raised. We note the special situation of refugees.

The UNHCR has taken the trouble to write to a number of noble Lords about this issue. It is all very well for the Minister to say that the Government will listen carefully to what has been said but we need something more positive. The Government ought to take into account what the UNHCR is arguing, which is much more positive than what he has just said.

The views of the UNHCR on international protocols do not necessarily accord with those of member states, including, in this case, the United Kingdom. Therefore consideration is the road that we should go down and we should think about a further discretion to cover the time periods taken for the consideration of protection cases. I hope that that is sufficiently helpful.

As I said before, the UNHCR considers this issue to be of paramount importance and many Members of this Committee share that view. What I would like the Minister to say is not that the Government will consider the issue but that the Government will be in touch with the UNHCR to derive from it the conditions that they are setting. We should be in absolute obeisance to what it has to say.

The Home Office is in daily contact with the UNHCR. I say that from the experience of my previous role in international affairs within the United Nations. We are clear on many of the views of the UNHCR and there will be dialogue between our colleagues and the UNHCR. Of this I am sure. I am also sure that we will take on board the strongly held views of my noble friend and others to ensure that we are in a position when we come back to this on Report to be helpful and informative in respect of the UNHCR.

I am extremely grateful to all noble Lords who have spoken in support of these two amendments. I notice that no one in any part of the Committee seemed to oppose them. I thank the Minister for what he has said. If I may attempt to summarise the reply, it was that the amendment about language is not strictly necessary. In that case, why can we not have it in the Bill? It would give an extra degree of clarity. With regard to the second amendment, on illegality and the qualifying period, it is encouraging that we are to have consideration and dialogue, but we need a little more than that.

Regarding language, we need an assurance that discretion will normally be applied so as to disregard any such restriction as is mentioned in paragraph 1(1)(c) of Schedule 1 to the British Nationality Act 1981, in the special case of refugees with humanitarian protection and their families due to the circumstances of their situation. With regard to the second amendment, it would be helpful to have an assurance that penalisation for illegal entry in the case of refugees would not operate to reflect the qualifying immigration status period. Would the Minister like to say anything further on those two points?

We need to await the discussion and the subsequent debate that will ensue on Report regarding the UNHCR. As I have said, we will continue to have discussions ahead of Report. With regard to the noble Lord’s second amendment on the question of penalties for refugees, the Bill does not penalise them in that way. Their qualifying period does not start until they are granted leave as a refugee. Therefore, the requirement not to be in breach of immigration laws does not become relevant for naturalisation until later, when that period has begun—in other words, beyond the point at which the status has been given. Furthermore, the requirement regarding breach of immigration law is about having the rights or the status to be in the UK, not about offences committed. I hope that that is helpful and that we can continue this discussion on Report. I urge that the amendment be withdrawn.

I am not at all reassured by what has just been said about non-penalisation. However, so that we can have further dialogue between now and Report, I beg leave to withdraw the amendment.

Amendment 52ZA withdrawn.

Amendment 52ZB

Moved by

52ZB: Clause 37, page 28, leave out lines 5 to 10

I hope that this will be easier for the Minister, because it is just a probing amendment. Since one of the routes to citizenship is through performing an exceptional Crown service and the Secretary of State is going to consider whether the applicant’s performance is so special that they can have citizenship, will the Minister kindly tell us exactly what an exceptional Crown service case will be, how it will be defined, how it will be known if it is seen and what the Secretary of State will take into account regarding an applicant’s performance for the service to be exceptional?

I will attempt to meet the noble Baroness’s aspirations, and if I fail I will be happy to extend that in greater detail in writing. The effect of the amendment would be to widen the circumstances in which the Secretary of State could exercise discretion to weigh the need to fulfil particular requirements in respect of exceptional Crown services. In particular, it would remove the need for a person to be serving outside the United Kingdom at the time of the application in order to qualify for the discretion. As the discretion is specifically designed to be applied to Crown servants who are serving overseas, we do not consider that to be appropriate.

At the same time, by defining the broad parameters of the discretion as we propose, we provide for greater transparency, which we think will help Parliament. Further, I can advise the Committee—and I hope that this starts to meet the points raised by the noble Baroness, Lady Hanham—that we would be likely to use the discretion when a Crown servant had demonstrated exceptional service by, for example, representing Her Majesty’s Government in a senior position such as vice-consul, or by demonstrating service significantly above and beyond the call of duty that has directly benefited the United Kingdom and its interests.

As I say, we intend to define the broad parameters of the discretion. I hope that we can, meanwhile, move along on that basis. Regarding the greater definition, that will be forthcoming but if, in the mean time, I can help the noble Baroness by giving more examples in writing, I will do so.

It would be helpful, but we are packing up an enormous amount for the Report stage here simply because we are not getting the clarity that we would hope for in the answers. The naturalisation here is either through an Armed Forces case or one of exceptional Crown service: so far, we have had someone who might have been a vice-consul quoted. It would be very helpful—before the Report stage, or as soon as possible—if we could know exactly who it might encompass. Someone in the armed services who is not, by definition, part of this country might be exceptional. We have had the Gurkhas, for example; there must be others who, it is anticipated, could be in that category. I wonder who they are. Are these people who are serving, or who have been here for some reason and are now serving in the forces? What would they particularly need to have done in order for the Secretary of State to consider them for naturalisation?

On the Crown service case, if it is only a vice-consul or an honorary consul then I am sure that they will have done a great job, but there must be someone better than, or as good as, that who might be considered. Could the Minister write to let me have the definition and the ideas of who might be included? I am sure it is perfectly all right as a paragraph, but in the interests of transparent legislation we might like to know what it means.

I confirm once again that I will write to the noble Baroness. However, this is doing nothing but maintaining the current position, so we are suggesting no change.

Amendment 52ZB withdrawn.

Amendment 52A not moved.

Amendment 53

Moved by

53: Clause 37, page 28, line 19, at end insert—

“( ) a qualifying CTA entitlement;”

Amendment 53 agreed.

Amendment 54

Moved by

54: Clause 37, page 28, line 21, at end insert “; or

(f) detention, temporary admission or release within the meaning of section 11 of, and Schedules 2 and 3 to, the Immigration Act 1971 if immediately following that detention, temporary admission or release the person had a status listed in paragraphs (a) to (e) above.””

In this amendment, we are trying to ensure that periods of temporary admission, temporary release or detention can count toward the qualifying period if they are immediately followed by a grant of a qualifying immigration status. Amendment 55 is an alternative to the first, which would ensure that those who have made a claim for asylum or who are here on human rights grounds, and those claiming entitlement to exercise rights of free movement under European Community law, can count time spent in the UK prior to the determination of their application as part of the qualifying period, and that

“exceptional leave to remain outside the immigration rules”,

also counts toward it.

Some migrants may have their path to citizenship interrupted by the UK Border Agency for reasons that turn out to be unnecessary, or sometimes where there might have been misinformation and a wrong decision has been taken. These amendments seek to further the Government’s aim of promoting integration of those migrants who are anticipated to make the UK their home by ensuring that delays in processing their claims, or unnecessary interruptions in their temporary leave, do not delay their progress toward citizenship.

Amendment 54 would mean that someone who was awaiting the UK Border Agency to resolve their application for leave to enter the UK would not be prejudiced by that delay, contributing to an overall delay in their progress to citizenship. Under Schedule 2 to the Immigration Act 1971, a person who arrives in the UK may be granted temporary admission while the UK Border Agency considers his or her entitlement to be granted temporary leave. This generally applies to refugees and others who may qualify for humanitarian protection or discretionary leave on the basis of a human rights claim.

Amendment 54 would also mean that someone who was wrongly detained while on temporary leave or otherwise had his leave wrongly curtailed would not be prejudiced by having to start the path to citizenship all over again once this unnecessary or perhaps misinformed interruption was resolved.

Let us think of a person who arrived in the UK, claimed asylum and was then granted temporary admission. However, their asylum claim was not dealt with for several months and was then refused on incorrect grounds. Although the person successfully appealed against the decision, they were not recognised as a refugee until several years had passed since their arrival. All the time that they had been in the UK, up to the point at which their refugee status was granted, they were on temporary admission, had complied with all the conditions of it and had not been in any breach of immigration laws. Nevertheless, under Clause 37 as it is currently drafted, their time in the UK awaiting the decision to recognise them as a refugee would not be allowed to be counted towards their qualifying period of citizenship.

I would have thought that the Minister, having heard the debate on the previous amendment, of the noble Lord, Lord Hylton, to which many other noble Lords contributed, would have got the drift of the feeling of the Committee by now; namely, that that would be seen by us to be rather unfair. On that basis, I hope that he will consider this amendment favourably as it enhances the agenda of integration. I beg to move.

I support the noble Baroness’s recommendation, particularly with regard to the specific rights for refugees. Without repeating too much what has been said on previous amendments, I say that the country’s support for the 1951 Geneva Convention certainly requires us to expedite the naturalisation process for refugees. Lengthening qualification periods for them in any way is surely a direct violation. It is vital, for example, that pending claims for asylum count towards the qualifying immigration status, so that refugees can begin to rebuild their lives as soon as they are granted asylum here. Although the amendment is yet another in this same sort of grouping, as the noble Baroness said, I hope that the Minister has picked up the general feeling around the Chamber that there is great unfairness, to put it mildly, in what is going on in this Bill.

The speaker from this Dispatch Box is aware of the possibility of being clobbered several times with questions and statements. I am pleased to be able to say on this important issue not only that the points are recognised—I thank noble Lords for raising them—but also that I agree that the suggested amendments warrant further consideration. L Committee’s agreement has been sought and obtained to table amendments which will partly cover these proposals, which we intend to move on Report.

The amendments that I propose to table will ensure that the clauses give discretion to waive the requirement for qualifying immigration status for the whole of the qualifying period in relation to Section 6(1) and (2) of the British Nationality Act. Although it is not possible at this stage to give specific examples of where that discretion may be used, the expectation is that it would be used only in a limited number of cases, but would give the necessary flexibility to the system that we are creating.

The Government remain fully committed to meeting their international obligations in respect of those fleeing persecution. However, we do not propose to go as far as permitting any time spent in detention, or on temporary admission, or temporary release where that is followed by a grant of qualifying leave, or any time spent pending an application for leave to remain in connection with an asylum, human rights or humanitarian protection claim, to count towards the qualifying period. This is in part because, in asylum cases, a decision is based on the prevailing circumstances at the time the case is considered—some 60 per cent of cases are now dealt with in a six-month period—in addition to taking into account the facts of the claim when originally made. For example, the fact that a person is recognised as a refugee does not always mean that he was so from the start. Events in the country of origin, fresh evidence or case law, or a finding on appeal could justify recognition after the initial application was made.

I would advise noble Lords that leave granted outside the immigration rules will fall under the definition of temporary residence leave where it leads to a grant of probationary citizenship. As such, it would be unnecessary to make specific provision in the legislation for exceptional leave to remain to count towards qualifying immigration status.

I hope that noble Lords will agree that a fuller debate on these amendments would be more appropriate. I look forward to bringing amendments to your Lordships’ attention on Report and hope that this amendment will be withdrawn.

The Minister said that not every period of detention will be counted. I will ask about one group of detentions that I think he will agree would have to be counted in whatever system he devises. I refer to cases where it is found that a person was detained unlawfully. I recall the case of a refugee from Cote d’Ivoire who was detained for something like six months. I wrote to Beverley Hughes, who was then the Minister who dealt with immigration, no less than nine times, without getting a reply. In the end, when this person was released, she brought proceedings against the Government in the High Court and won damages of £60,000. In a case of that kind, where the Government are plainly wrong and have had it drawn to their attention that they are detaining a person unlawfully, surely it would be unfair not to count the period that the person spends in unlawful detention towards the qualifying period.

The noble Lord is very experienced and will recognise that I cannot comment on individual cases. He makes a powerful argument that has been brought to the attention of the responsible authorities, and we will put forward amendments that I hope will meet with the consent of many noble Lords. I hope that this amendment can now be withdrawn.

I am grateful to noble Lords who have supported these amendments. I am also encouraged by the Minister’s reply. In order to facilitate the decision-making of those of us who support these amendments, when the Government are tabling their amendments, could they either give sufficient time for us to see them and respond through amendments if they need improvement, or write to us and tell us the contents of the amendments in good time for us to respond before Report?

Another point that was not made entirely clear to me concerns a case where the Border Agency has made a mistake, perhaps on the basis of misinformation. Someone could come as a skilled worker and then have their temporary leave curtailed because it is thought that they have not abided by the conditions. If they are then detained to be removed, but can prove that it was the agency’s mistake rather than anything they had done, they might have their leave reinstated: we understand that. However, under Clause 37, they would be required to begin their path to citizenship all over again, because of the insistence that the qualifying immigration status has to apply throughout the qualifying period.

In that case, the period of detention would not count as qualifying status, even though it would have been no fault of the person himself, and would in fact have been the fault of an agent of the Government. The Minister did not really cover that part of it; would he also address that anomaly in future amendments?

I am delighted to give the assurance that we will write to noble Lords and do so either with the amendments or with an explanation of what they will contain in sufficient time for their digestion and responses. I shall also undertake to include in that response the important point that the noble Baroness raised with me.

Amendment 54 withdrawn.

Amendment 55 not moved.

Amendment 56

Moved by

56: Clause 37, page 28, line 25, at end insert—

“( ) Nothing in this section shall affect the application for British citizenship made by an applicant prior to the commencement of this Part.”

This amendment would ensure that the new provisions in the Bill could not be applied to applicants whose applications were pending when Part 2 commenced. The amendment also provides an opportunity to probe what will happen to those with limited leave to remain, or those yet to qualify for limited leave to remain, when the new provisions come into force.

The trouble is that the Government have a bit of form on this. In 2006, they changed the highly skilled migrant programme and then applied it retrospectively, catching quite a number of people within those provisions, for some of them extending the time that they had to wait from four to five years and causing quite a lot of hardship as a result. It is important that this is made clear now. I go back to my comment at Second Reading that, if we are not clear about this and this is not done, many people who are in this country and are progressing on their way forward to citizenship, following all the rules that have been put before them, will be in that position of snakes and ladders. They will think that they are progressing at a good rate and doing the right things but will suddenly find themselves down at the bottom of the pile again and having to start all over.

This just needs a simple agreement from the Government that the provisions will be applied only as and when Royal Assent is achieved. That would make it very clear to anybody else in the process at the moment that they will proceed under the rules that pertain at the moment. I beg to move.

The amendment provides that an application lodged before the commencement of Part 2 would be dealt with under the law as it stands today. It also provides us with a very useful opportunity to ask the Government on their intentions regarding people with limited leave to remain at that point. Those people will have planned their future lives on the basis of current legislation, which allows them to apply for indefinite leave to remain at the end of their period on temporary leave. If there are no fair transitional arrangements, they will be obliged to apply for probationary citizenship leave, extending the time that they have to spend on temporary leave and persuading many to defer the major life commitments that people undertake, such as starting a family or buying a house, and thus delaying the integration that is claimed to be one of the Government’s main objectives.

I refer to a High Court case heard last year, dealing with changes to the scheme known as the highly skilled migrant programme, in which Judge Sir George Newman referred to the adoption of legitimate expectations. He said in conclusion that he was,

“satisfied that the terms of the original scheme should be honoured and that there is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to them”.

That was the case involving HSMP Forum Ltd. If the Minister needs to look it up, its neutral citation number is 2008 EWHC 664. That judgment seems to me highly relevant to the amendment moved by the noble Baroness because the High Court found that the legitimate expectations of these highly skilled migrants under the previous scheme should have been honoured. As I understand it, the amendment would ensure that people who have entered with legitimate expectations should not be denied the privilege of remaining in that course of action.

I hope that I can be more helpful on this amendment than I appear to have been on earlier ones, judging from the Committee’s reaction. Members of the Committee have referred to the transitional arrangements that we intend to put in place when the provisions of Part 2 become law.

I reassure the Committee that any application for naturalisation that is received by the UKBA before the earned citizenship provisions are implemented, and which remains undecided, will be considered under existing arrangements set out in the British Nationality Act 1981; that is, the earned citizenship provisions will not be applied when the application is considered.

I also advise the Committee that officials are examining what transitional arrangements will be put in place for those who are currently in the immigration system but who have yet to submit an application for indefinite leave to remain or for naturalisation. We intend to set out details of these transitional arrangements in the commencement order that gives effect to Part 2.

On the point made by the noble Lord, Lord Avebury, migrants who are in the UK and have existing limited leave to enter or remain will be able, under the new system of qualifying immigration status, to count that time towards a qualifying period for naturalisation as a British citizen. I hope that with that reassurance the noble Baroness will feel able to withdraw the amendment.

I do not understand the position with regard to the transitional arrangements. I understood the noble Lord to state clearly that anybody who is in the system at the moment will carry on as the system is at the moment and that, after Part 2 has commenced, any new applicants will come in under the earned citizenship arrangements. I am afraid that I do not understand where the transitional arrangements come into this. If they mean something different from “not starting until the commencement of Part 2”, I am not sure what the noble Lord is suggesting will happen. Will he amplify that?

Having said that we propose to change the way in which people will be covered by these systems, I should add that a number of areas requiring further development remain. The existing arrangements for naturalisation will continue until those proposals are put before Parliament. We have yet to make a final decision on how our proposals will impact on people who are already in the immigration system. We are continuing our work in this area and hope to make a further announcement in the summer. So it is a matter not of those who have not yet made an application but of those who are in the system at present but will not necessarily be affected by the new proposals coming in as they are already being considered.

I was slightly confused by all the negatives there. I take it that it is intended that those who are in the system will go on in the system unchanged and that those who come in later will be taken through the transitional system. Is that right?

Not quite. Those who apply before the new system comes into operation will be dealt with entirely under the present arrangements. There will have to be transitional arrangements for those other persons who are in the system and have already applied but whose cases will not necessarily have been dealt with. I think that it would be better if I set out in a note how the transitional arrangements will apply. We have not devised precisely how they will apply—we are still working on that—but I can certainly send an interim note setting out why we think that we need to have transitional arrangements and to whom they will apply.

It is important to avoid any kind of retrospection in this legislation. I hope that the noble Lord will take that into account.

Indeed, that is why I shall explain in a note not necessarily what the transitional arrangements are but why we need to apply them. The note will cover those who have already applied, who are therefore covered by the present arrangements, and those to whom the transitional arrangements will apply. Such an explanatory note might be helpful. I take noble Lords’ points on board.

We will need a note, because I have a huge concern to ensure that the people whom we were trying to cover under the amendment—the people who are at various stages of the current naturalisation process—will not be caught by this. We want to ensure that they can proceed as they have been proceeding under the previous legislation. They should get their naturalisation and their citizenship under the rules that apply at the moment. I think that the Minister has said that transitional arrangements might apply to those people. I do not understand that, because it does not seem to make sense. I can understand that some people will apply between today and the commencement of Part 2 and may need transitional arrangements, but I am much more concerned that the people who are already in the system and are progressing their way through it should not be left in a situation where they have to start looking at Part 2 and finding that they cannot comply because they cannot do an activity, cannot speak Scottish and Welsh or cannot comply with other rules and are, therefore, trapped in a system that is changing in front of their eyes.

It is important that retrospection does not get caught up in this. The noble Lord, Lord Avebury, cited a case that I have before me but did not worry the Committee with. That case left the Government looking not very clever, although I gather that they have been clever enough to manage not to implement the judgment. If this issue needs further clarity, I should be grateful for it, but I hope that I have been as clear as I can be about my concerns regarding those currently in the system and those who will apply before Part 2 commences and whether a different system will apply there. If there are to be transitional arrangement for the people currently in the system, I shall certainly return to this matter on Report.

The noble Baroness makes her position absolutely clear, which is why a note of explanation, fairly urgently delivered, will be useful. We are prepared to respond further on that basis. The point on retrospection was taken and well understood.

I am still not at all clear what is happening, but for today’s purposes I beg leave to withdraw the amendment.

Amendment 56 withdrawn.

Clause 37, as amended, agreed.

Clause 38: Application requirements: family members etc.

Amendment 56A

Moved by

56A: Clause 38, page 28, line 39, at end insert—

“(5) Notwithstanding the power of the Secretary of State to exercise his discretion under subsection (4), he shall, in addition, for the purposes of subsection (3) prescribe circumstances in which A shall be treated as having a relevant family association on the date of the application although the relevant family association ceased to exist before that date.”

Our amendment concerns the discretion mentioned in the Bill. It probes the Government’s intention as to the circumstances in which the Secretary of State would exercise his discretion and treat the person’s relationship as subsisting. In addition, we wish to provide for the power to make regulations to lay down criteria as to when a person’s relationship shall be treated as subsisting. Clear-cut cases are not subject to arbitrary discretion; however, it may be helpful if the Secretary of State retained some discretion to enable him to step in to help in exceptional cases.

Our concern in tabling these amendments is to protect the welfare of children and spouses where there is violence, neglect or abuse. The Committee may recall that we had a substantial debate on domestic violence the week before last. The House recognised at that time that domestic violence was widespread and we are concerned to cover in the Bill the unfortunate circumstances of people who might be caught up in that cycle of violence. It is, therefore, important that the adult from abroad without settled status is in a position to leave the other settled or British partner and, if appropriate, have responsibility for caring for the children, whatever their status. This means that the adult without settled status must not be treated as a person subject to immigration control and should, therefore, be able to access social security and tax credits.

I realise that we will go into more detail on the status and rights of children when we get to Clause 51, but would the Minister like to comment in particular on the implementation of the UN Convention on the Rights of the Child? The Children’s Rights Alliance for England published a useful critique, which the Minister may have had a chance to look at, making a number of points about immigration and children. The circumstances of this amendment are pretty tight in that it would not, I hope, apply to many individuals, but it would mean that the Secretary of State had the discretion that we mentioned. I beg to move.

There is no intimation of a clause stand part debate on Clause 38, so, if I may, I shall take the opportunity of this amendment to Clause 38(2) to revert to the observation of the Delegated Powers Committee on this subsection.

When we debated Clause 9 last week, I referred backwards to Clause 8, and especially Clause 8(2), which had also prompted comments by the Delegated Powers Committee. Those comments had embraced Clauses 9 and 10, as well as Clause 8. I was obviously not seeking to go backwards then but I indicated that, if the Government had not yet responded, I would return to the matter on Report. The noble Lord who responded for the Government on that occasion said that he was not aware of any reply and accepted the notice, but he later let us know that the Government had replied. I of course accept that my reference was taken from the third report of the Delegated Powers Committee, and the fourth report, which has not yet been published, will presumably contain the reply, but I cannot know whether that reply will resolve the matter. Exactly the same thing has happened with regard to Clause 38(2), which the Delegated Powers Committee has drawn to the attention of the House. I do not want to unsight the Government, so I shall return to this matter again—in this case, on Report—unless the Government’s reply, which presumably by then will have been published, has resolved the matter satisfactorily.

Perhaps I may, first, assure the noble Lord, Lord Brooke, that the response has been dispatched and I have knowledge of it, but it may be easier for the matter to be dealt with on Report, when we have had sight of the reply.

Our position on Amendment 56A is that it is not necessary to specify in the Bill the circumstances in which a person will be treated as having a relevant family association on the date of application for naturalisation, even though the association had ceased to exist before that date. Clause 38 contains a power for the Secretary of State to apply discretion in cases where a relevant family association may have ceased before the date of the application and nevertheless allow a person to be naturalised, despite them not being able to meet this requirement. The Secretary of State is provided with the power to use this discretion flexibly in exceptional circumstances and in respect of the specific circumstances of a case.

We do not wish to set down in regulations particular classes of cases where the discretion will normally be used, as the expectation is that discretion will be applied only in exceptional circumstances. We will, however, set down in advance, and make publicly available, guidance regarding the circumstances in which this discretion may be applied.

The noble Baroness raised a question concerning the rights of the child, but I have to confess that I am not currently in a position to provide the information that she wants. As she rightly said, that matter will be part of the debate on a later amendment and later clause. I hope that the noble Baroness will feel able to withdraw the amendment.

I rise only to draw attention to the fact that this is yet another case where guidance is expected to be published on how discretion is to be exercised, and quite an important one, because, in this case, the Secretary of State is taking power to deem that a relevant family association continues to exist although it has in fact broken down since the date of the application. It is crucial, if we get to the end of the period and a relationship has broken down for whatever reason, to know how that discretion will be exercised. We are completely in the dark, as so often with the Bill.

I have lost count of the number of times when the Minister has assured us that guidance will be published and that we will get it in good time, no doubt before Report. Your Lordships are supposed to be discussing the matter in Committee. If we have to wait until Report, it is a bit late to make any alterations or suggest ways in which the Government could improve the guidance, assuming that we have seen it by then. This is a very unsatisfactory way of discussing a Bill of any kind, but especially one that affects the human rights of vulnerable people, as this Bill does. I regret that the Minister has had to keep on getting up to tell us that guidance will be published and that we will see it sooner or later.

I recognise the noble Lord’s frustration and, to some extent, I share it in having to deliver that unpalatable message. On this occasion, perhaps I may say that we are clear that a person who wants to be naturalised under Section 6(2) should demonstrate that they have a relevant family association. However, we recognise that in some cases, limited cases, that connection may have ended, and it would be wrong to refuse an application for citizenship because of that. As I said, we expect that that discretion will be used only in exceptional cases. However, an example where we might apply it—this is the obvious one—would be where a person is bereaved shortly before the qualifying period was due to be completed.

I am sorry that I cannot go further than that, but I take the admonishment to heart and will seek to provide the information at the earliest possible opportunity.

The Minister said in reply to me that he would be bringing forward guidance “in advance”. Now he has just used a different phrase: “at the earliest possible opportunity”. Will that be before Report? That has a huge bearing on how much we need to think about further amendments, and so on. My noble friend has aired the frustration on these Benches, which I am sure is shared by the Conservative Front Bench—the noble Baroness, Lady Hanham, is nodding.

I gave the specific example of domestic violence. That is a very serious case. It would be very helpful if the Government, even if they do not have the final guidance, could give us a list of what would constitute exceptional cases, for example. I shall give the Minister a chance to elucidate a bit further.

First, I have an explanation. “In advance” meant that and “as soon as possible” was an attempt to take on board the urgency and frustration expressed from the Liberal Front Bench and elsewhere that we are asking people to make decisions and to discuss matters without total information.

It is unlikely that we will be able to produce the guidance by Report, but the noble Baroness makes the valid point that we should try as far as possible to produce those cases—I have used the case of bereavement; she has used the case of domestic violence—that would clearly be relevant. Those are but two examples that might be added to. I hope that officials will take note of the Committee’s concern and that we will have that available as soon as we can.

I thank the Minister for his reply. In withdrawing the amendment, I should say that we will therefore be minded at least to table an amendment listing things that we would see as exceptional so that the Government can confirm or otherwise whether they would be. If something more comes from the Minister in writing before Report, we will obviously think about it. In the mean time, I beg leave to withdraw the amendment.

Amendment 56A withdrawn.

Amendment 57

Moved by

57: Clause 38, page 29, leave out lines 16 to 18 and insert—

“(c) that, subject to sub-paragraph (5)—(i) A had a relevant family association for the whole of the qualifying period, and(ii) A had a qualifying immigration status for the whole of that period;”

Amendment 57 agreed.

Amendment 58 not moved.

Amendment 59

Moved by

59: Clause 38, page 29, leave out lines 16 to 18

Currently, a migrant in the UK with temporary leave who has entered on the basis of marriage or civil partnership with a British citizen can apply for citizenship when he has been in the UK for three years without absences of more than 270 days during that period and no more than 90 days in the last of the three years. Under the Bill, an additional provision is added that he must have spent the whole of that period in a relevant family association, the definition of which is again to be prescribed in regulations that we have not yet seen under Section 41 of the BNA and, therefore, as I understand it, not subject to parliamentary scrutiny. The Minister will correct me if I am wrong, but I think that the power under Section 41 does not provide for either negative or affirmative resolution of Parliament but is at the absolute discretion of the Secretary of State.

Presumably, the Government are concerned with people who use the marriage or civil partnership route as a device to gain entry into the United Kingdom without having a genuine relationship. There have been many allegations in the past about bogus enforced marriages for precisely that purpose. According to the Home Affairs Select Committee in another place, the Government’s Forced Marriage Unit deals with 5,000 inquiries and 300 cases of forced marriage each year. To quote from the summary of the committee's report,

“marriage visas are still being granted in cases where the visa sponsor has been forced into marriage and compelled to sponsor the visa. Victims are being failed by the lack of a mechanism consistently to refuse entry to the UK in cases where an individual has been forced into marriage, and this failure is compounded by the absence of a mechanism by which the Government can accept information from third parties on reluctant sponsors. We recommend that visa sponsors are interviewed where there is suspicion of a forced marriage, including where suspicion is raised through information provided by third parties. We also recommend that the Government attach a power of refusal without the need for an evidential statement to visa applications in the case of reluctant sponsors”.

It seems to us that far more should have been done in the past to check the bona fides of applicants for marriage or partnership visas. To wait for three years to see whether the relationship has continued, as we will do under the Bill, is entirely the wrong approach. The resources intended to be used to check that partners are still together at the end of the three years would be far better deployed in improving checks on sponsors in the first place.

In their response to the Select Committee, the Government increased the age at which someone can sponsor or be sponsored as a spouse from 18 to 21. They agreed to improve their current system for investigating allegations of abuse of the marriage route and to ensure that information and advice is available to sponsors, including awareness of the Forced Marriage Unit, by December 2008, and they promised to set out their approach to selective interviewing of sponsors. Can the Minister give us an update on those developments and tell us whether they have made any difference to the 40,000 marriage visas awarded in 2007? It is probably a bit early, but if he can tell us the number of marriage visas awarded in 2008, that will be interesting. What difference do the Government expect the new conditions to make at the end of the three years to the number who will apply for citizenship?

On Amendment 63, the definition of relevant family association appears not to include dependent relatives. Are they to be covered under the Section 41 regulations? If so, why were they not mentioned in the Explanatory Notes, which lift the curtain only a little by giving the example of a partner? Will the Minister say why the dependent relative, having put in an appearance in Clause 31 of the draft partial Bill, has now disappeared without trace? Amendment 63 ensures that the migrants whose UK partners have a right of abode in the UK or have acquired a permanent entitlement to reside in the UK under European law can apply for citizenship on the same basis as if the UK partner was a British citizen or had permanent residence.

We need to ask the Minister about the Government’s intentions regarding the right of abode, which the partial Bill proposed to remove altogether. I recognise that we have a Commonwealth right of abode under Clause 45(5), but since the definition is unclear, we are not certain whether every person with an existing right of abode is covered by the new status. I would be grateful if the Minister would elucidate that point. I beg to move.

The noble Lord asked a series of questions about marriage visas and so on, about which, frankly, I do not have the information in my brief, so, yet again, I have to fall back on the proposal that I write to the noble Lord and let him have the information. I offer the list that comprises the relevant family associations that count. I have to say that the exact content of the regulations is yet to be determined, but we are considering whether to include the following groups: unmarried and same-sex partnerships of British citizens and permanent residents; bereaved spouses and civil partners; unmarried and same-sex partners of British citizens and permanent residents; victims of domestic violence of British citizens and permanent residents; dependent relatives of British citizens and permanent residents; and persons exercising access to rights to a child’s residency in the UK.

The regulations are likely to include other conditions recognising unmarried partners if they have been in a relationship for two years, which is the normal term—we do not intend to change it. When the regulations are presented they will be subject to the negative resolution procedure. We are clear that forced marriage is an abhorrent crime and that the Government will do everything we can to stamp it out and support victims. Guidance on the whole immigration system is being prepared for publication as a result of the public consultation next year.

The principles behind the Bill’s proposals are to provide three separate routes and therefore we require people to pass through these stages as I have indicated. These are the key principles that underline it. We have said that migrants who come here have to work, but we also want to take care of the exceptions in those circumstances we expect in terms of discretion. I regret to say that I have to fall back again on writing to the noble Lord. As I have said, the consultation continues on what will be the guidance subject to the negative procedures.

I suppose that one has to be content with small mercies. I have to thank the Minister for correcting me on the subject of regulations made under Section 41 of the British Nationality Act 1981. At least they are subject to negative resolution and we will have an opportunity to discuss them on the Floor of the House, which is better than I was thinking in the first instance: that it was being left to the discretion of the Secretary of State.

The Government have been giving serious consideration to further measures following the sixth report of the Select Committee in another place on forced marriages. We are grateful for what they have done so far and I was glad to hear what the noble Lord said about the seriousness with which the Government take the question of forced marriages. It would be useful, however, to know whether the steps that they already took, which I recapitulated a little earlier, had begun to make any difference. I refer to raising the age from 18 to 21; the improvement of the current system for investigating allegations of the marriage route; and, particularly, ensuring that advice and information is available to sponsors, including awareness of the Forced Marriage Unit. The Select Committee promised that it would respond by December 2008. The noble Lord might have had some news on the matter, but if further measures are being contemplated that would reduce the number of forced marriages, I would be glad to hear about them. However, it does not prevent me insisting that the real solution to forced marriages is to have more thorough vetting of the applications and, in particular, of the knowledge of them by sponsors.

I was flabbergasted to learn that because of the number of visa applications—they amounted to 40,000 in 2007—no regular interviewing of sponsors was carried out to find out whether they were genuine and intending to marry the person concerned. There has been considerable abuse of this route and there have been repeated assurances by Secretaries of State going back to Mr David Blunkett some years ago that there was to be a clampdown and all measures that could be taken to avoid forced marriages had been accomplished, yet every time we have a new Bill, fresh measures are announced.

This is an important issue to which we probably have to return on Report. For the time being, I beg leave to withdraw the amendment.

Amendment 59 withdrawn.

Amendment 60

Moved by

60: Clause 38, page 29, line 19, leave out from “application” to “and” in line 22 and insert “—

(i) A has probationary citizenship leave, or permanent residence leave, based on A’s having the relevant family association referred to in section 6(2), or(ii) A has a qualifying CTA entitlement or a Commonwealth right of abode;”

Amendment 60 agreed.

Amendment 61 not moved.

Amendment 61A not moved.

Amendments 61B to 63 not moved.

Amendment 64

Moved by

64: Clause 38, page 30, line 1, leave out from “leave” to end of line 3 and insert “—

(a) the requirement specified in sub-paragraph (2)(c)(i) is fulfilled only if A was that person’s partner for the whole of the qualifying period, and(b) for the purposes of sub-paragraph (2)(c)(ii), A can rely upon having a qualifying immigration status falling within paragraph 4A(1)(a), (b) or (c) only if that partnership is the relevant family association upon which the leave to which the status relates is based.”

Amendment 64 agreed.

Amendment 65

Moved by

65: Clause 38, page 30, line 9, at end insert—

“(7) For the purposes of sub-paragraph (5), the relationship by reference to which A and the other person are partners need not be of the same description for the whole of the qualifying period.””

Amendment 65 agreed.

Amendments 66 to 76

Moved by

66: Clause 38, page 30, leave out lines 21 to 25 and insert—

“( ) treat A as fulfilling the requirement specified in paragraph 3(2)(c)(i) (including where it can be fulfilled only as set out in paragraph 3(5)) where a relevant family association of A’s has ceased to exist;”

67: Clause 38, page 30, line 27, leave out first “3(2)(c)” insert “3(2)(c)(ii)”

68: Clause 38, page 30, line 27, leave out second “3(2)(c)” insert “3(2)(c)(ii)”

69: Clause 38, page 31, line 2, leave out “A” and insert “Subject to paragraph 3(5), a”

70: Clause 38, page 31, line 4, at end insert “based on a relevant family association”

71: Clause 38, page 31, line 5, leave out “; or” and insert “based on a relevant family association;”

72: Clause 38, page 31, line 6, at end insert “based on a relevant family association;

( ) a qualifying CTA entitlement; or( ) a Commonwealth right of abode.”

73: Clause 38, page 31, leave out lines 7 to 9 and insert—

“( ) For the purposes of paragraph 3 and this paragraph, the leave mentioned in sub-paragraph (1)(a), (b) or (c) is based on a relevant family association if it was granted on the basis of the person having a relevant family association.”

74: Clause 38, page 31, line 12, leave out “based on” and insert “and”

75: Clause 38, page 31, line 15, leave out “rely on” and insert “have”

76: Clause 38, page 31, leave out lines 17 to 21 and insert—

“( ) Where, by virtue of sub-paragraph (3)(a), a person relies upon having more than one qualifying immigration status falling within sub-paragraph (1)(a), (b) or (c)—

(a) subject to paragraph 3(5), it is not necessary that the leave to which each status relates is based on the same relevant family association, and (b) in a case where paragraph 3(5) applies, the relationship by reference to which the persons referred to in paragraph 3(5) are partners need not be of the same description in respect of each grant of leave.””

Amendments 66 to 76 agreed.

Clause 38, as amended, agreed.

Clause 39 : The qualifying period

Amendment 77

Moved by

77: Clause 39, page 31, line 28, leave out from “period” to end of line 29 and insert “is—

(a) 6 years in a case within paragraph 1;(b) 3 years in a case within paragraph 3.”

I am moving the amendment to try to find out what the Government mean when they include the activity section in Clause 39. May I at the outset declare my interest as chair of the England Volunteering Development Council, which is part of Volunteering England? I have been briefed by Volunteering England and also by the Joint Council for the Welfare of Immigrants.

There are considerable concerns about the requirement, some of which have been expressed in the House this afternoon. Volunteering England is a member of the design group. We are not going to do anything about the design group this afternoon, but it is apparently drawing up the regulations which will govern this aspect. We do not have the regulations before us and therefore we have no idea how the design group is designing what it means by “activity”. I know that Volunteering England has taken a major part in this, but it has also put forward some of its concerns to the meetings. However, the legislation is here and now and we need to deal with some of the anxieties that have been raised, otherwise opportunities to do so will fade away.

Volunteering is by definition an undertaking that individuals want to do: they want to do it to help others. It is not usual—in fact, I think it is probably unheard of—for it to be a statutory requirement, or one that affects people's future, but that is what it would be under Clause 39. It is there to expedite the route to citizenship. It is blackmail, to some extent, in that by undertaking a voluntary activity you get citizenship somewhat quicker. However, to do that, individuals will have to undertake either community or voluntary work. It begs a number of questions that might have been answered if the design group had completed its work; but it has not.

In 2007, according to Home Office figures, there were 160,980 applications for British citizenship. There were 164,635 grants of British citizenship in that year. If we extrapolate those figures, we can presume that even if the regulations for citizenship are tightened up, there will be about 160,000 people wandering around trying to do voluntary work. There are 190,000 registered charities and probably just as many small unregistered ones which may or may not have to be licensed to undertake or help with this voluntary activity.

People coming into this country and wanting citizenship all have a very firm view of why they want to be here. But how many of them will know or understand about voluntary service? How many of them will know or understand what they should be doing? How many of them will know or understand how to go about it? And how will they then find those volunteering opportunities? Aspiring citizens may not have any idea where to look for volunteering opportunities in an area.

What will be the mechanism by which they are guided or advised on how to undertake this requirement? How much leeway will be given in the amount of time they have to do this work when they are working to keep themselves in this country? They are actually working. They may have a family to support and manage, and they may well have very limited hours to spend outside their home. Many are already working all the hours God gave them to ensure that they meet other citizenship requirements.

What is the time commitment they will have to give to this activity requirement in order to qualify for and justify their expedited citizenship? What about those who simply cannot undertake it, such as those working for a very substantial part of the day and those with families? Will there be an exemption for certain categories? If so, who will give it?

Who will monitor the voluntary work that is carried out, and how will it be assessed and proved? I understand that part of the system which the design group is working out is that there will be a referee to complete the applicant’s paperwork. But who is that to be, and how can there be confidence that such a referee will have proper and regular direct contact with a volunteer to be able to judge whether they have in fact carried out the activity to the proper, required level? Where will the referees come from, and will they have to have a certain seniority level? These questions will continue. They should have been answered before we started on this legislation.

We have reason to believe that a nationality checking service will play a role in signing off the volunteer and sending those signed-off papers to the UK Border Agency. But where does this come from? It is not in the legislation—we do not know anything about it. Perhaps we could be told at some stage what it is. Have the Government made any attempt to assess what extra burdens carrying out the responsibility for these migrants will place on the voluntary sector and on local authorities, which I understand are also to be involved in supporting the nationality checking service?

Can the Minister give any assurances about the stage at which this activity is likely to be undertaken during the citizenship process? Can it be at any time? Does it have to be part of the probationary period? Can it be undertaken for a short time, or a long time? For how many hours should it be undertaken? What is the expectation? Will childcare be paid for? What about travel and all the other costs associated with volunteering requirements, and will that be funded by the UK Border Agency? Given that employees are statutorily entitled to a minimum of 24 days off a year, how can the Government be sure that that requirement for this activity will not have to be taken out of those 24 and therefore not breach this legal entitlement? Will employers be required to give these employees time off to undertake this voluntary activity without jeopardising their employment?

These questions are only the tip of the iceberg—there are many more. Presumably the design group will try to answer them. We can brief the Minister on any other aspect he wishes. This enormous proposal is dealt with in just two short lines of legislation, with nothing to back it up.

The Minister must understand that this would be the first national scheme in which the state directly rewarded people for volunteering. The design group is clearly important in ensuring that all the problems which I have outlined are overcome. However, when will we have sight of its work? I am advised that it might not be until the summer, but by then this legislation will be on the books and it will be way past Parliament's ability to deal with it. Ideally, we should be able to see what the design group is doing before Report so that we can consider it. This is another area where a letter might be almost too little to explain all that is going on. I hope the Minister can make a good fist of trying to explain it. I beg to move.

In speaking to this group of amendments I wish to raise many of the questions that the noble Baroness, Lady Hanham, has raised. I spent the past two Sundays taking part in voluntary activities: delivering leaflets for the Liberal Democrats in Huddersfield on the first Sunday and delivering leaflets for the Liberal Democrats in Streatham on the second Sunday. I am not sure whether that is the sort of voluntary activity that counts under this provision. I can assure noble Lords that we are a non-profit organisation; we are usually loss-making. I raise the point simply to illustrate the problem of defining voluntary activities.

The provision raises a huge number of issues. I have been involved in other discussions, for example on whether we can resolve the issue of students overstaying in Britain by licensing educational institutions so that we have a clearer sense of where students applying to study in Britain are going. We have consistently been told that it is far too complicated to license educational institutions, so controls on each student have to be imposed. We are talking now about licensing a huge number of charities, with full CRB checks on people on a truly vast scale. I am a trustee of two charities and, as both deal with teaching music to children, CRB checks are a major preoccupation for both. Despite the fact that as a trustee I do not usually meet the children, I had to be CRB-checked as well.

This provision has a huge number of implications. We on these Benches have some sympathy with the government citizenship agenda, although we are not sure we would go all the way down the road as far as Jack Straw’s rights and responsibilities agenda. We recognise this is all part of that. We are highly doubtful, however, whether it is right to introduce one bit of this in one Bill before we have seen the entire discussion. The citizenship agenda needs active discussion across the parties on how we are going to re-define British citizenship for current citizens as well as for applicants for citizenship. It needs to be taken slowly and gently. We on these Benches, therefore, are not at all sure that this is the right place to introduce one small part of a very large number of issues.

Citizenship is something we want people to engage in. References and recommendations are part of it. I have been to citizenship ceremonies. I recognise the importance of encouraging people to have a sense of identification with the United Kingdom. The danger is that a highly bureaucratic process in which compulsory volunteering, so to speak, is built in, all checked by the central state, will be a very complicated road to go down. We need to see much more than we have yet seen about how it might be implemented, how much it might cost, and how many difficulties and costs it will impose upon voluntary organisations and charities which will be engaged in this before we are happy with the direction in which it is going.

I understand and sympathise with the spirit that lies behind the Government’s proposal for activities, but I respectfully agree with the noble Baroness, Lady Hanham, that it is impossible to know at the moment, with no definition and no interpretation clause, what is meant by “activities”. UNISON, in its briefing, understandably asks whether trade union activities are part of voluntary activities. I would expect this Government to say yes, but it is interesting that UNISON feels that it needs to ask that question.

The point about the CRB is extremely valid. CRB checks take up a vast amount of time. Some of the most important work done currently in the voluntary sector is not only with children but also with vulnerable adults. You have to be CRB checked to work with vulnerable adults. If you do not have a CRB check, that cuts out a huge part of voluntary activities. How on earth is the Government going to monitor them? Are they going to list those that are acceptable and those that are not? This seems an interesting and in some ways rather charming idea, but one that is almost impossible effectively to implement.

I totally understand the difficulty that noble Lords have in visualising how the whole of Clause 39 might work in practice, but let us not throw out the baby with the bathwater at this stage. Surely, at this stage, we want to discuss some of the principles of activities, which are to be applauded, to integrate people into society. In a few moments, I will be moving Amendment 83 specifically concerning trade unions. I will not, therefore, make that speech now. Noble Lords who have spoken, such as the noble Baroness, Lady Hanham, the noble Lord, Lord Wallace of Saltaire, and the distinguished noble and learned Baroness, Lady Butler-Sloss, are asking questions that will surely have to be clarified at some stage, but the idea that we should remove the whole thing lock, stock and barrel at this stage seems wrong.

UNISON has been mentioned. My noble friend Lord Morris of Handsworth will correct me if I am wrong, but the Transport and General Workers’ Union several years ago started a group. I do not think that it was called “Group for Illegal Immigrants”—it could hardly have been called that—but that was close to what it meant. It had a lot of activities that helped people to integrate into the community.

The principle here is very challenging. It is certainly absolutely relevant to some of the nightmares that people are always describing for the future, whether it is Islamicisation or some horror story that some people want to attach to that, or any such worries. How will they be addressed? They will be addressed by activities that integrate people into one society. That surely is not a principle that we can run away from and throw out of the window the first time that it is mentioned. More work needs to be done. I will be opposing this amendment if, as I suspect, it is designed to get rid of the whole idea.

I entirely agree with the noble Lord, Lord Lea of Crondall, in as much as anything that helps people to integrate into our country from wherever they come is a good thing. We would all agree with that. Having said that, I would like to strongly support what my noble friend Baroness Hanham said in her introductory remarks. I just about restrain myself from wishing to return to the meat on the bone of the nonsense in terms of formal logic of anything that is compulsory, or semi-compulsory, or quasi-compulsory or opt-in being in any sense voluntary. I am sorry to use such an indelicate word as “nonsense” in your Lordships’ House—I know that it offends the ears of many of your Lordships—but I do recognise a nonsense, particularly a nonsense on stilts, when I see one.

I would like to expand on one point that my noble friend Lady Hanham raised, which is the burden on voluntary charitable organisations, the third sector or call them what you will, at a time when many such organisations are suffering from a host of problems. Some have made unwise investments and have found their investment income, because of Icelandic adventures and so on, falling like a stone. Still more are seeing their charitable income falling. Understandably, some would say, because of the plight of the unemployed and others who feel that they are threatened by the prospect of unemployment, people may no longer be able to meet those standing orders that they have been giving so willingly. It is the hope of all us, however, that we will be able to continue to help voluntary organisations. We know that some voluntary organisations are laying off staff or failing to fulfil employment beyond a certain period under employment legislation. As my noble friend Lady Hanham said, should the Government have their way, a considerable burden will fall on voluntary organisations.

I have a straightforward question for the Minister. It will cost money to these voluntary organisations and charities to carry out some of this monitoring. That goes without saying. Some people who may have been dragooned into volunteering may be disinclined to do it seriously. We see this with community service from time to time. Will each volunteer, whether wholehearted or semi-wholehearted, be carrying with them in the pursuit of citizenship a sum of money that will be a subvention to voluntary or charitable organisations—the third sector—to allow them to meet this burden that is suddenly going to be laid on them by statute without any recompense?

The questions for the criteria of acceptance of citizenship include knowledge of background. I have seen some of the questions. They are the equivalent of “How high is Mount Snowdon?”. These are questions about things that some people know about and others do not. We have to make sure that, when we test a person’s background knowledge, it is relevant to the lives that they are going to lead here in the United Kingdom.

We also talked about language a little while ago. If people want to settle in Scotland, Wales or Northern Ireland—places other than England—the background must be about the localities in which they actually want to live. I am sure that the people of Llandudno would love to know more about Oxfordshire or somewhere like that, but it is more important that they know a wee bit about their own area. This is my first point: people need to know the background of the place in which they will be living and not be made to answer questions of the type found in Trivial Pursuit.

Secondly, on the question of volunteering, I agree that this must be thought through fully. It needs to be taken back to the drawing board. Who is going to volunteer, or is it going to be like one organisation that I know of—it shall remain nameless—part of which is moving to another area of the United Kingdom? The organisation wants its people to integrate into the local community. For two weeks each year, people are going to be encouraged to volunteer. But that organisation is going about that by asking local groups what help is needed in the particular area. Instead of someone volunteering, information about requirements is put forward by local organisations and the organisation responds to that information.

We are asking a lot of the migrants who are seeking to come here. They must do what 80 per cent of the people of the United Kingdom do not do. We are asking them to know about things that most of the people of the UK do not know about. What I am saying, therefore, is this: yes, it is a nice dream—someone said that it is a charming idea, and it is—but it needs to be thoroughly worked out so that people know exactly where they are. We do not want something that is a dream for the immigration authorities becoming a nightmare for those applying for status here.

The issues that underpin Clause 39 need to be explored in terms of whether they will be an incentive to those moving towards citizenship or a deterrent. I am not sure that the explanation given at Second Reading and in the debate so far is all that clear. I start from the position that we ought all to want to be volunteers in our communities—they are our communities and we have ownership of them, so we should make a contribution. It is about enhancing an individual’s contribution and building up what I would describe as social capital in our communities. However, we need to dissect the principles of volunteering, building social capital and making opportunities for those who want to settle well in their local communities.

However, I question why there has to be a penalty for those who do not volunteer or take advantage of the opportunities offered by this form of fast-tracking to full citizenship. If criteria involving penalties are set, an assessment has to be made. Someone has to determine whether the quantitative and qualitative value has been sufficiently met. Again, there is an eerie silence around some of these fundamental questions.

There are also issues around responsibility, whether fiduciary or otherwise. What happens if there is an accident on a volunteering project or expectations for a proposal are not met in qualitative terms? These matters require consideration, but more important is that they require consultation. At this point I am not satisfied that the proposition as a principle is worthy of support and consideration because it has not been sufficiently thought through in the detail of its application. I would certainly want to seek to persuade the Minister to look again not just at the principle but at the detail and some of the inherent problems for which solutions to the satisfaction of your Lordships’ House have not yet been found.

I should like to follow the noble Lord, Lord Morris, in asking for consultation and postponement. The concept of taking part in social activities as an aid to integration is clearly a good one, but there is such a fog of uncertainty surrounding it at present that we need time to think it through and see if it can be done. Will we be able to include trades union activities, party-political work and so on? We need to be able to get the right exemptions for the disabled, for example, or for those caring for disabled people. I agree strongly with the noble Lord, Lord Patten, about the problems facing voluntary organisations, so I urge the Government to postpone the whole idea at least until after the simplification Bill that we have been promised. If that could be done, I think that we will get much better results from it.

“Volunteering” is a very attractive word today, but I have to say that I go back to the days when, if you were caught volunteering, as I was quite a number of years ago, it was called scab labour. Thankfully, volunteering has become much more respected in terms of how we view offering mutual help to other citizens. However, I go back to the question that I raised at Second Reading. This amendment raises many questions, several of which have been rehearsed already. How costly will the scheme be and what financial provision is to be made available for it?

I am worried about what could be regarded as the reward of a reduction in the qualifying period for citizenship, or indeed the penalty, whichever way you want to look at it. If, as someone suggested, we are returning to a period when many people are out of work, it may be that the answer is compulsory volunteering in the form of national service, as it used to be called. That could be on the agenda for everyone. If that was the case, I would be much keener on supporting this, as it would not create two distinct classes of citizenship. Until we reach the point where we think that this is essential to our understanding of what it is to be a British citizen—about rights and responsibilities, both terms with which I agree—I remain unenthusiastic. On top of that, we have to consider how little we know about the scheme beyond the fact that the design group is going to be spelt out, presumably at a later date.

What I am really saying is that I query whether it is even remotely the right route to go down for those who are trying to acquire citizenship. Of course, this is particularly tough on those, particularly refugees, who have already been waiting for a long period and will either have to wait even longer or go down this route. I am thoroughly behind these amendments and would love to think that the Government will rethink.

I wonder how we can penetrate the “fog of uncertainty”, as the noble Lord, Lord Hylton, described it, from the point of view of the migrant, who arrives here and has to undertake certain voluntary activity. As was explained to us when we had one of our helpful discussions with the Minister, many of the activities would be purely local so that local churches and voluntary organisations would be enlisted to provide the occupations. How will the individual migrant access those bodies?

To take my own area of Camberwell, there are millions—or certainly dozens—of voluntary groups operating in the area. It would be difficult enough for even a well-disposed local person who knew the ropes to discover which particular voluntary organisation fitted his own aptitudes and talents, let alone somebody from the Democratic Republic of Congo who is unfamiliar with our environment. How does he begin to discover which voluntary activities would be acceptable for qualifying? Will there be a central organisation with a list of them? What advice will be available to the individual migrant, so that he does something that is within his own aptitudes and talents? I ask the Minister a specific question: will this simply be left to the existing organisations—in, say, Camberwell—or will there be a central point to which the migrant has access, which will offer him useful advice on the sort of work that would fit his aptitudes and take him on the path to being an integral part of the community?

I join the chorus of support for the amendment moved by the noble Baroness, Lady Hanham. If there is one issue that really fires up this House, it is volunteering. If the Government get it wrong, they will find themselves in a very small minority in the Lobby. They have to take great care over this. I admire the noble Lord, Lord Lea, for batting in support of his Front Bench, but the noble Lord, Lord Morris, has hit the nail much more firmly on the head. The only new thought that I can offer—because everything has been said—is that the Minister could just consider that what is on somebody’s curriculum vitae is surely much more reliable. This could be translated into legislation, but volunteering will never work if it is required.

I fear that I may be descending from the general to the particular, but I have just alluded, on Clause 38(2), to the second Delegated Powers Committee reference. Clause 39 provides the third and final comment about the Delegated Powers Committee in this Bill. I could wait until we get to Clause 39(3), where there is an amendment to be debated, but it may be easier if I mention it now, after the general reference by my noble friend Lady Hanham to activity.

I need to read the comment of the Delegated Powers Committee on Clause 39(3), to provide the background. It said:

“The new power in paragraph (bc)”—

which, I interpolate, is at the top of page 32 of the Bill—

“inserted in Section 41(1) of the 1981 Act by clause 39(2), confers power to substitute different qualifying periods in new paragraph 4B(3) and (4), again by affirmative regulations; and the new subsection (1B) (clause 39(3)) enables that power to be exercised so as to substitute the same qualifying period, irrespective of whether or not ‘the activity condition’ is satisfied. Paragraphs 46 to 49 of the department’s memorandum”—

which is reprinted in the third report of the Delegated Powers Committee—

“do not provide any explanation of the purpose of this power, the exercise of which would leave paragraph 4B making separate but identical provision for persons who had, and for persons who had not, satisfied ‘the activity provision’, without any advantage conferred on the former over the latter in terms of the qualifying period. While the delegated power in clause 39(3) might not necessarily be inappropriate on that ground, its exercise would seem to produce a somewhat odd result which is not explained in either the Notes or the memorandum. We”—

that is, obviously, the Delegated Powers Committee—

“therefore draw attention to this aspect of the power, so that the House might press the Minister for more details of the circumstances in which it might be used”.

I am not seeking tonight to unsight the Minister on this Delegated Powers Committee reference, but he said on Clause 38(2) that he had the government reply with him then. It might be helpful, if he has a response to their comment on Clause 39(3) about his person now, for him to give it to the Committee this evening, rather than wait for Report, when we have plenty in store anyway.

I think the Minister will have a very clear idea of the views of the Chamber on this amendment. The Second Reading debate on this activity requirement was also most interesting. I apologise to the Chamber for not having been here to speak at Second Reading. I am more sympathetic to what the Government are trying to achieve than most speakers today. It boils down to three central matters. First, there are those who oppose incentives for volunteering per se, and who feel that any kind of incentive obviates the very nature of the deed. I would call them the volunteering purists. The Minister must make clear in his reply that we are talking about an incentive, and not compulsion. Many noble Lords have talked about volunteering as if it were a compulsion or requirement. It would be helpful if the Minister could confirm my reading, which is that there is just an incentive to get you there slightly faster than if you did not volunteer.

Secondly, there are those who believe, as my noble friend Lord Roberts does, that it is quite unfair for us to ask others to do what British people do not do themselves. My answer, as someone who has been on both sides of that fence, is very clear. Those who, through an accident of birth, end up with the privilege of British citizenship are indeed lucky. It is true that we do not question their ability to integrate. One of the reasons that we do not question that ability is because we suspect that—over a lifetime of living in certain communities, speaking a certain language and understanding certain cultural norms and mores—they probably imbibe some of the values of that society.

Thirdly, the noble Lord, Lord Morris, spoke of social capital and trust. I have a lot of sympathy with much that he said, as long as what the Government aim to do is not seen as a means of affirming a certain patriotism, which I would also oppose. The Putnam report clearly shows that the more diverse a society is, the more trust seems to break down. This is a contested area, but no doubt the less we know about each other, the less we speak each other’s languages and the less we value each other’s values, the less we are able to trust each other. The building of networks that volunteering promotes is valuable social capital. However, British people do not have to go down that route and we are setting a higher bar for non-British people. I have said to the noble Lord, Lord West, under different circumstances and on other Bills about youth justice, that young people need to have more of an ethos anyway to do what is right by society and to understand the society in which they are living. Intergenerational issues could be much resolved if young people were to do a little more volunteering, frankly. I would like to see the expansion of this process to British people.

The most serious point is that there are many who believe that the practicalities of this will be difficult to achieve and that we really have not thought it through. I am most sympathetic to those arguments. Incidentally, I do not agree that just because no other country does it Britain should not do it. Perhaps I am a radical liberal for that reason. It is quite interesting that there is good, serious thinking around some of the challenges of diversity that we face. We have become more diverse in the past 15 to 20 years than many other similarly sized European countries. I take pride in the fact that we are not responding with sledgehammers in the way that some of those other countries have responded, at least not in the challenges facing my community. It is good that we have been careful and thoughtful about what we have done there. Irrespective of how I feel about terrorism legislation, on the whole we have a good track record.

Perhaps I can persuade the Minister, in all good will and in appreciating what the Government are trying to achieve on integration, to perhaps take away the wise words of the noble Lord, Lord Hylton, and the noble Earl, Lord Sandwich, and perhaps think about bringing back pilot schemes. I accept the difficulties of a pilot scheme in which there is no real incentive to give, but perhaps we could see how a couple of pilots work and then come back with another Bill containing a more carefully thought through and considered approach as to how we might achieve this objective.

I thank all noble Lords who have contributed to the debate. Several words have been used, which I hope I can confound, such as “dragoon”, “compulsion” and “burden”. I am inclined to agree with “fog” because at the moment we know what we want to see but we are not quite sure what shape it will finally take. I shall deal also with the issue of volunteering.

I start from the premise that we have described to people why we are doing what we are doing and then deal with the battery of questions about whether it is practical, how are we going to do it and whether we have thought it through. First, we are doing it because we want to integrate migrants fully into society. The advantage of what we are seeking to do is that it will bring contact between migrants and the wider community; it will show British citizens that those who seek to join them are earning their citizenships by participating in British life; and it will encourage those who want to become citizens by opening up to them new experiences and life-long rules. Active citizenship is a positive process: it is a way for migrants to earn citizenship more quickly and it will assist their integration into British society. Its purpose is to incentivise a positive attitude towards Britain. My noble friend Lord Morris feels it will do the opposite. I am pleased to note that the noble and learned Lord, Lord Goldsmith, concurs with that view. As he said in his contribution at Second Reading:

“A credit-based system for acquiring citizenship is in principle a good thing, because it makes 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”.—[Official Report, 11/2/09; col. 1146.]

I think there will be a large degree of support for the things I have said so far. However, the questions that came forward were very much in relation to where we go from here.

Let me be absolutely clear: there is no mandatory requirement for any migrant to undertake active citizenship; migrants who are unwilling to undertake any form of active citizenship can simply choose not to do so. They are not prevented from qualifying for citizenship but it will take two years longer than for those who choose to undertake citizenship activities. We have been careful in developing the citizenship activities proposals in such a way that they do not discriminate against any person or group.

It is essential that the activities that count are separate from those that migrants undertake as part of their day-to-day employment. Therefore we propose that participation in prescribed activities will count only when it is unpaid, which answers a number of noble Lords’ questions about what they see as potential problems. We clearly want as many migrants as possible to undertake active citizenship. However, we recognise that in certain circumstances—for example, in the case of the severely disabled—a migrant may simply be unable to undertake any of the citizenship activities. That is why the Bill allows regulations to be made which treat specific types of persons as having fulfilled the activity conditions even though they have not. Therefore Amendment 83A is not necessary.

It is essential that the activities that count as active citizenship represent an extra effort to get involved in the community and are additional to those activities that migrants undertake as part of their day-to-day employment. Hence the prescribed activities will count only where they are unpaid. At the same time, we have made it clear that active citizenship must be designed so that migrants, even where they have significant commitments—for example, work or family-related activities, which were a concern mentioned in the debate—will be able to fulfil the requirements. That is why it is right that people should be able to demonstrate their willingness to participate at any point from the start of the journey—not from the start as a probationary citizen but from the start of the qualifying period; in other words, from the five years preceding it.

We have permitted a wide range of activities to ensure that migrants can utilise their particular skills and interests—that is why Amendment 82 is not appropriate—and we have established a design group. This involves local authority and voluntary sector representatives advising us on the practical operation of active citizenship. This is because we want to avoid some of the words used in the debate to describe it, such as “bureaucratic” and “dragooning”. We want to see a level of commitment that we should expect migrants to demonstrate and we will work with the design group to ensure that active citizenship proposals are implemented in a fair and non-discriminatory way.

All the questions asked have been perfectly fair. In responding to some of them, it would be quite helpful to recognise that this is still work in progress. To reassure the noble Baroness, Lady Hanham, I should say that when the design group has completed its work and we have a formal picture of what it has designed for active participation, that will be subject to an affirmative resolution of the House. So it is not that the House will not have a clear sight of it and an ability to object.

I placed a document in the Library last week which I hope the Committee will find helpful—I know that the spokesmen on the Opposition Front Benches have seen it—which outlines the emerging findings of the design group. Again, it covers and meets, at least partially, many of the questions noble Lords have been asking about the type of activities involved and the type of organisations that will be required to be both the referee and the monitor. The list is not yet exhaustive; it can be added to. Any suggestions that people have will be referred to the design group for its consideration, but it already covers volunteering at local museums, conservation work, local environment protection and improvement projects, lunch clubs for the elderly—there is a whole series of examples of what might be suitable.

We have also set out in that document a Q&A, which I recommend people should digest because it goes some way to answering the questions that have been posed today. It is not complete but, when it is, it will outline the work of those closely associated with the organisation of the volunteering to which we are looking forward. I take the point made by a number of noble Lords. The noble Lord, Lord Patten, imagined that we would be walking round with bagfuls of money. I will have to disabuse him of that.

We are working closely through the design group with the voluntary organisations that will be impacted on by active citizenship to ensure that we implement a system that does not place undue burdens on them. So far those organisations have been supportive of our proposals and have not raised major concerns about the cost schemes would incur. A plus for those organisations would be the work done by volunteers. Those who are closest to the problem, who we are listening to for advice and who will be the people designing a scheme to monitor this do not seem to have concerns to the degree that your Lordships have.

The list set out in the document in the Library goes a long way to answering a number of other questions. The noble Lord, Lord Wallace of Saltaire, asked if migrants can count activities they were doing before the commencement of citizenship provisions towards active citizenship requirements. The answer is yes. Other noble Lords who raised questions about particular aspects of that can be answered in the affirmative. Greater detail can be read in that document.

We also had a number of questions relating to dragooning. Neither the volunteer seeking to enhance and speed through citizenship nor the organisations taking volunteers are being dragooned in any way. I suspect most Members of your Lordships’ House are volunteers in one form or another. Why should we expect our migrant community on entry to be less willing to be volunteers than we are ourselves? It is true that a lot of our fellow citizens choose not to be and rely on those who do volunteer but that is no reason for not moving forward.

The noble Lord, Lord Wallace of Saltaire, asked about checking active citizenship, including the role of the National Checking Service. Again, we want to avoid a heavy-handed approach. To ensure that the organisation where active citizenship was undertaken was bona fide, while not excluding small or community-based organisations as volunteering groups, we would accept registered charities at face value. For non-registered charities and other voluntary organisations we would require an additional reference from the local authority or the CSV. Alternatively, a larger organisation could act as an umbrella monitor for smaller organisations. Again, in the discussions emerging from the design group there has not been the degree of opposition or concern that has been elucidated in this debate. That is understandable because we are talking about people who are very familiar with the concept and management of volunteering.

The National Checking Service, for those who are not aware, is a discretionary service available in 87 local authorities. It checks applications for British citizenship, completes corrected copies and certifies all passports before returning them to the applicant straightaway. It then forwards the relevant documents the to UKBA case workers. It is an organisation with a track record. We recognise that extra bureaucracy could form a burden for organisations so it could be mitigated by partnership agreements for 12 months allowing a larger organisation to enter into agreement with a smaller organisation to measure the degree of burden.

The noble Lord, Lord Avebury, and other noble Lords asked how applicants will find out about volunteering opportunities. Many migrants already volunteer so will not need to be signposted. For those who chose to take up active citizenship we envisage volunteer centres being able to signpost migrants to organisations looking for volunteers. ESOL teachers who signpost students to volunteering organisations are likely to continue to do so. Internet websites are a rich source of voluntary organisations. UKBA already funds the Refugee Integration and Employment Service which actively promotes volunteering for refugees. The noble Lord, Lord Avebury, made a valid point in relation to localities and I am sure more work can and will be done by the design group. It is important to emphasise that volunteering is not mandatory and therefore we reject any accusation that it could be seen as blackmail. We believe, rather, that it will encourage the path to citizenship.

I hope in answering those questions and drawing attention to the questions asked which have been covered so far in the Q&A—that work is still emerging—that we can reassure your Lordships that the matter is not ill thought out. It is not necessarily fully thought through but the people seeing it through on our behalf are the very people you have confidence in to run our charities and our volunteering services. We will come back to further debate on this undoubtedly at Report. Any information that becomes available between now and then will be made available to the Committee. I have unfortunately not got a response to give to the noble Lord, Lord Brooke, on this occasion. That will have to wait until a slightly later date. The Government appreciate all the contributions made. They have been positive in the sense of wanting to see something we all want, which is the greater integration of our migrant communities. I hope the Government, as we go forward, can continue to confound those who think we have taken up something that we cannot do and to encourage, support and gain the confidence who feel we might not have done so. I hope, therefore, that noble Lords can withdraw the amendments.