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Borders, Citizenship and Immigration Bill [HL]

Volume 708: debated on Wednesday 4 March 2009

Committee (Third Day)

Amendment 92

Moved by

92: After Clause 41, insert the following new Clause—

“The Ilois: citizenship

In section 6 of the British Overseas Territories Act 2002 (c. 8) (The Ilois: citizenship) omit subsection (2).”

In moving Amendment 92 and speaking to Amendment 101A, I want to make it clear from the outset that they are not intended as a substitute for the right of the Chagos Islanders to return to their homeland, from which they were evicted by the decision of the Prime Minister, Harold Wilson, in April 1969. I declare an interest as vice-chair of the Chagos Islands APPG, whose objective is to help resolve the issues concerning the future of the islands and of the Chagossian people. The all-party group is, in fact, holding an important meeting with the Minister, Gillian Merron, as we speak. I am sorry not to be able to be there to hear her remarks, which could have a bearing on these amendments.

As the Committee will be aware, the plight of the dispossessed Chagos Islanders has been considered by the courts, and what the noble and learned Lord, Lord Hoffmann, called “the whole sad story” of how,

“the removal and resettlement of the Chagossians was accomplished with a callous disregard of their interests”

is related in the judgment of the Judicial Committee in the case of Bancoult. It is also being considered by the Foreign Affairs Select Committee in another place as part of its report of July 2008 on the overseas territories. In response to that report, the Government said that they regretted,

“the way the resettlement of the Chagossians was carried out and the hardship that resulted for some of them. We do not seek to justify the actions taken in the 1960s and 1970s. These regrets have been repeated on many occasions”.

Those pious sentiments have not been any benefit to the children of the Islanders born in exile. Although some of the 1,000 who are resident in the UK have become full UK citizens, they have to pass the habitual residence test and, even then, many cannot afford the enormous fees that are payable for full citizenship.

The Home Office does not seem to be properly aware of these problems, although they were highlighted by the Foreign Affairs Committee. I wonder whether the Minister could at least tell us how many of the 1,000 people in the UK have managed to get full British citizenship.

We are asking your Lordships now to consider the rights of the Chagos Islanders and their descendants to full British citizenship. Under Section 6 of the British Overseas Territories Act 2002, a person who was born after 26 April 1969 and before 1 January 1983 to a woman who was a citizen of the United Kingdom colonies by virtue of her birth in the British Indian Ocean Territory, and who was neither a British citizen nor a BOTC immediately before commencement of Section 6, became a British citizen by descent. The omission of subsection (2) would mean that they became a full citizen and thus able to pass on their citizenship to their own children.

Amendment 101A would delete the requirement in Section 6(1)(a) that a person be born after 26 April 1969 to be eligible for British citizenship. That was the date when the removal of the population from the islands was authorised. It appeared in Section 6 without consultation with the Chagossians or their advisers. I believe that the idea was that, before that date, anyone who left the islands was free to return. In that scenario—for example, if they went to Mauritius—they were voluntarily absent and any mother who wished to do so could have returned to give birth and thus to confer citizenship on her child.

That was not in fact the case. It has now been made clear that difficulties of return arose much earlier. The planning for the evacuation of the islands was started in August 1964; the Exchange of Notes with the USA on Diego Garcia was at the end of 1966; and the shipping link between Mauritius and the Chagos Islands was severed when Mauritius became independent in March 1968. In the 1950s and in the 1960s up to that date, people came and went, almost entirely to Mauritius, and had no way of being aware that giving birth outside the islands would seriously handicap their child 40 years down the line.

In response to the Select Committee, the Government said that there was no precedent elsewhere in nationality law for citizenship to be extended to a third generation born outside the UK or in an overseas territory. But that is not correct. They concede that, until 1914, there were exceptions, but even under the British Nationality Act 1981 a person serving in the Armed Forces or in a community institution who was a British citizen by descent could transmit his or her citizenship to a child. Even if there were no precedents at all, equally there is none that I am aware of for the expulsion from the dependent territory of the whole population. That was a shabby and disreputable episode. It becomes even more despicable if we now prevent the children of the victims regaining rights that they would have had if their parents had been able to remain in their ancestral lands. I beg to move.

I warmly support these two amendments. It is generally held that the Chagos Islands have had an extremely raw deal. Many people have been sent into hardship and exile against all natural justice, and the right solution is certainly to find a way for them to return to their home. We hope that the deliberations of the all-party group with the Minister this afternoon will be a step in that process. However, this amendment at least will deliver something by way of a small quantum of justice in the interim. I hope that the Minister can entertain both amendments.

I apologise in advance if the length of the debate prevents my hearing the Minister’s answer, because I have an appointment, but I shall certainly read it with great care in Hansard.

I, too, support the noble Lord, Lord Avebury, in these amendments, and declare a similar interest, holding a similar position in the Chagos Islands all-party group. My interest was heightened when, three years ago, I was invited by the Mauritius Government to inspect their prison system and was made aware of the situation regarding the Chagos Islanders, which was represented to me as being rather a blot on the UK’s human rights record. At that time it was mentioned that the Foreign Office had carried out a feasibility study on the return in 2002, but it had been turned down for, among other things, being too expensive. I suggest that that feasibility study of 2002 is now totally out of date. It may be of interest to the Committee to know that the Chagos Islands all-party group brought this situation to the personal attention of the new President of the United States, because not only is Diego Garcia a United States base but the agreement with the United States is due for renewal in 2016. It is extremely appropriate to press ahead with what is required; while it may seem strange to attach the issue to this Bill, in the whole context of nationality and our records in this area it is an extremely appropriate vehicle. I hope that the Government will listen to what is being said.

I rise to respond to the very powerful arguments made by the noble Lord, Lord Avebury and my noble friend Lady Whitaker, and with regard to the enormous respect that we all have for the noble Lord, Lord Ramsbotham, and the powerful case that he puts yet again.

I have several pages of Civil Service prose to read out and, indeed, for the remainder of the amendments to this part of the Bill I have copious pages of Civil Service prose. However, I should like to suggest a different approach. In responding to Amendment 90—it seems a long time ago, but it was on Monday—I gave an undertaking that the Government would consider amendments from the noble Lord. I suggest that we should consider Amendments 92 and 101A, along with the remaining amendments to clauses in Part 2, with the exception of Amendment 105A which, to my embarrassment I must return to, having failed to deal with it on Monday.

The purpose of my suggesting that I discuss those amendments not in the form of a considered debate today, which would take a very long time, but in the form of a discussion, is to look at the cases that have caused noble Lords to table the amendments, to consider the decisions taken in respect of those cases and the principles behind those decisions, and to see whether policy and other practical measures can be found to resolve them. The noble Lord will, of course, be perfectly able to bring back any or all of his amendments at Report, but I hope that we can at least make some progress on some of them in the intervening period. That would be the most practical way in which I can offer the House urgent attention to the points raised, with the opportunity for a fuller debate at Report.

A few days ago, I did not expect to get such a favourable answer from the Minister on either this amendment or all the other amendments that will affect Part 2, so we seem to be making good progress. I accept with alacrity his offer of further discussions on these matters before Report, and particularly on the one currently under discussion, on the situation of the Chagos Islanders. I am sure that my colleagues who are meeting Gillian Merron in Portcullis House at this very moment will be delighted to hear what the Minister has said. I hope that Gillian Merron will have been on message and will have told the special meeting of the Chagos Islands APPG about the Minister’s kind offer to your Lordships this afternoon. For the time being, I am happy to withdraw this amendment. We will no doubt be able to dispose of the subsequent amendment on Part 2 in good time so that we can finish by 10 pm. I beg leave to withdraw this amendment.

Amendment 92 withdrawn.

Amendment 93

Moved by

93: After Clause 41, insert the following new Clause—

“Stateless children of British nationals

(1) Schedule 4 to the British Nationality Act 1981 (c. 61) (amendments to Immigration Act 1971) is amended as follows.

(2) In paragraph 4, omit sub-paragraph (1)(c).

(3) In paragraph 4, for sub-paragraphs (2)(a) and (2)(b) substitute—“shall be registered under it as a—

(a) British citizen, or(b) in the case of a child whose mother or father is, or would have been but for their death, a British overseas territories citizen, as a British overseas territories citizen.”(4) In sub-paragraph (4) of paragraph 4, for “sub-paragraphs (1) to (3)” substitute “sub-paragraph (1)”.”

The purpose of this amendment is to insert into the Bill a new clause dealing with the stateless children of British nationals. This amendment ensures that those stateless children born after 1 January 1983 to British nationals of any type, wherever in the world, are entitled to be registered as British citizens; and that the children of British Overseas Territories citizens can be registered as both British citizens and British Overseas Territories citizens.

A British citizen born outside the UK and British Overseas Territories will be a British citizen by descent. That is, he or she will not be able automatically to transmit citizenship to his or her children. In addition, a British Overseas Territories citizen born outside the overseas territories will be a British Overseas Territories citizen by descent. That is, he or she will not be able automatically to transmit citizenship. It is not always possible for the children of British citizens to satisfy existing provisions for registration to obtain citizenship for want of compliance with residence requirements in the UK or in the British Overseas Territories. In certain circumstances, where the state of residence prohibits the acquisition of its nationality, often on racially discriminatory grounds, the children of such persons are left stateless.

There is a problem here. Bearing in mind what the noble Lord has said about discussions in between times, I will not go through all the cases that I have before me, save to say that it would be interesting to learn from the Minister whether this applies to many people. In the briefings that I have received, we have been talking about, perhaps, a few dozen here or there, as in, for example, the case of children in Zambia, where it is conservatively estimated that about 20 children of Asian descent are affected by statelessness. We are not talking about hundreds or thousands in such cases. I want to put the scale of the problem on record.

The current provisions, as the Minister will know, are found in the British Nationality Act 1981 and are very restrictive. They demand three years’ residence in the UK, with up to 270 days’ absence, in circumstances where the stateless child has no passport with which to be lawfully admitted to the UK or thereafter reside. They also provide for the registration of the child in a category of British nationality—meaning British overseas citizenship or British subject status—that is little better than statelessness. That is one of the categories of British nationality that carries with it no right of abode in the UK or any other country.

This is important at this moment because, with the removal of the UK’s reservation on the UN Convention on the Rights of the Child—and I am sure that we will talk further about that this afternoon—this situation should no longer be tolerated by the Government. As drafted, the amendment would remove the requirement for the person born outside the UK and British Overseas Territories to be in the UK or an overseas territory for three years ending on the date of application. It would further ensure that the person is entitled to be registered in a category of British nationality that carries with it the right of abode so as to be entitled to live and work here—that is to say, to be registered as a British citizen and, as the case may be, as a British Overseas Territories citizen.

The amendment would bring rights to stateless children of British nationals born outside the UK and British Overseas Territories. That is an important matter to address, particularly in light of the UN Convention on the Rights of the Child. I beg to move.

I am grateful to the noble Baroness for setting out the reasoning behind the amendment for our illumination and understanding and for my officials to note the point that she makes. This issue will be a good starting point for the discussions that I am suggesting.

Amendment 93 withdrawn.

Amendment 94 had been withdrawn from the Marshalled List.

Amendment 95

Moved by

95: After Clause 41, insert the following new Clause—

“Acquisition by registration: minors

(1) Section 3 of the British Nationality Act 1981 (c. 61) (acquisition by registration: minors) is amended as follows.

(2) In subsection (2), omit the words “made within the period of twelve months from the date of birth”.

(3) In subsection (3), omit paragraphs (b) and (c).”

In contrast, this amendment is designed to probe the Government on the different requirements for registration of the children of British citizens. The amendment would remove the requirement to have to be registered within 12 months of birth, the status of their grandparents set out in paragraph (b) and the requirements relating to their parents’ residence in the UK and absences of no more than 270 days set out in paragraph (c). This gives us an opportunity to probe why these requirements individually as well as collectively are held to be necessary. Not all British citizens realise that children born outside the UK or a qualifying territory will not be British citizens. Many people fail or have failed to register their children through lack of knowledge of the provisions. This is an equally crucial area to address when it comes to looking at the rights of children and to ensure that we have not left any of these issues unexamined. I beg to move.

I have seven pages of text with which I can regale noble Lords, but in practice it would be more sensible for me to pass an urgent note to the noble Baroness. It will be fodder for our discussions on problems in this area about which we are hoping to find some solutions.

I thank the Minister for his reply. Given the brevity of his answer, which is a precursor to everything he will discuss with us, I hope that he will appreciate that I did not speak to Amendment 101, which deals with the same subject, to which we would also like an answer. In the mean time, I beg leave to withdraw the amendment.

Amendment 95 withdrawn.

Amendment 96 not moved.

Amendment 97

Moved by

97: After Clause 41, insert the following new Clause—

“British citizenship: registration of certain persons without other citizenship

In section 4B of the British Nationality Act 1981 (c. 61) (acquisition by registration: certain persons without other citizenship) omit subsection (2)(b) and (c).”

This amendment seeks to obtain clarification of the way that the Secretary of State gets to be satisfied that a British overseas citizen, British subject or British protected person applying to register as a British citizen does not have any other citizenship or nationality now or did not have at any time since 4 July 2002. This means that where an applicant is deemed to have or to have had some other nationality, he has to obtain a certificate from the authorities of the state in question showing that in fact he is not its citizen. The Minister will no doubt say that the requirement has operated reasonably in the sense that the UKBA will not demand proof of non-citizenship of countries with which the applicant manifestly has no connection. However, where the applicant is connected with a country by reason of his ethnicity, they do ask for proof, which can be difficult or sometimes impossible to obtain. It is alleged that there are instances where individuals with no other citizenship who are unable to extract a letter by normal means from their consulates have obtained one by giving a present to the appropriate official. Whether or not that is true, it is an obvious risk.

Amendment 98 provides noble Lords with an opportunity to debate the proposals in the review of the noble and learned Lord, Lord Goldsmith, entitled Citizenship: Our Common Bond. It was commissioned by the Government, but studiously ignored by them since it was published a year ago. In their response to the Path to Citizenship consultation last July, all the Government said was:

“We have carefully studied Lord Goldsmith’s report into citizenship”.

Now is the time for the Minister to provide a little more information to noble Lords about the Government’s thinking on the recommendations.

In almost every other country of the world, the idea that a person could have a nationality but not a right of abode would be treated as nonsense. The most fundamental right of a national is to enter, and reside in, the country of his nationality. All other rights and entitlements stem from the right of abode. We in this country are unique in that British citizens derive their right of abode from an Act of Parliament—the Immigration Act 1971—rather than intrinsically from their nationality. We have been unable to ratify Protocol 4 of the European Convention on Human Rights, to which 42 out of the 46 member states of the Council of Europe adhere, because Article 3(2) of the convention requires that:

“No one should be deprived of the right to enter the territory of the State of which he is a national”.

The noble and learned Lord, Lord Goldsmith, recommended that applicants in all the residual categories of citizenship, except BOTC and BNO—the latter has already been discussed—should be given access to full British citizenship. We would add BNOs, but stipulate—although I acknowledge that the necessary words are not in the amendment—that applicants from these groups should have no other citizenship. I beg to move.

Again, I am grateful to the noble Lord for setting out the reasoning behind the amendment. I am afraid that I have nothing to add to previous statements made about the report of the noble and learned Lord, Lord Goldsmith, which the Government are studying. Many points that have been made in relation to these amendments are pertinent to discussions that we will have on Amendment 90. It would be useful for us to put this matter into that package and discuss it at that time.

I am happy to accept the noble Lord’s kind offer that we should include this amendment in the package. I beg leave to withdraw the amendment.

Amendment 97 withdrawn.

Amendment 98 not moved.

Amendment 99

Moved by

99: After Clause 41, insert the following new Clause—


(1) The British Nationality Act 1981 (c. 61) is amended as follows.

(2) After section 4C insert—

“4D Acquisition by registration: legitimacy

(1) A person is entitled to be registered as a British citizen if—

(a) he applies for registration under this section; and(b) he satisfies each of the following conditions.(2) The first condition is that the person was born before 1st July 2006.

(3) The second condition is that the person is not already a British citizen.

(4) The third condition is that the father of the child satisfies any requirements as to proof of paternity prescribed under section 50(9B) of this Act.

(5) The fourth condition is that the person would have been a British citizen had his father been married to his mother at the time of his birth.””

The purpose of the amendment is to allow those born to fathers not married to their mothers to register as British citizens. In the Nationality, Immigration and Asylum Act 2002, the law was changed so that children born to British fathers who were not married to their non-British and not-settled mothers were born British if their fathers could prove paternity. This only assisted those born after 1 July 2006, when the provisions were finally given full effect, under Section 162(5) of the 2002 Act. The person can be registered by discretion, while still a child, under Section 3(1) of the British Nationality Act 1981, but the Home Office does not always agree to register these children, and not everyone who was born out of wedlock to a British father is capable of being registered.

The fourth condition is designed to cover two situations; first, that of children born in the UK or a qualifying territory after 1 January 1983. If they had been born prior to that date in the UK, that would have sufficed to make them British. It will also cover children born to a British father otherwise than by descent; in other words, someone who can pass on his nationality to his children born overseas, outside the UK or in a qualifying territory. It really fills an anomaly in a period of time for which these children do not have rights because their mothers were not registered. We hope that the Minister will cover it as he has covered other amendments to this clause. I beg to move.

My brief indicates that the Government believe that this proposal is unnecessary in practice. Again, however, the noble Baroness undoubtedly has examples of cases that have given rise to concern requiring this amendment to be tabled. As she has rightly suggested, it would seem to be a useful part of the comprehensive discussion that we will have on these issues. I therefore suggest that she withdraw her amendment.

Amendment 99 withdrawn.

Amendment 100

Moved by

100: After Clause 41, insert the following new Clause—

“Acquisition by birth of adoption: British nationals

(1) The British Nationality Act 1981 (c. 61) is amended as follows.

(2) In section 1(1), omit the words “on or after the appointed day”.

(3) In section 1(1), after paragraph (b) insert—

“(c) a British Overseas Citizen,(d) a British subject under this Act,(e) a British Protected Person,(f) a British National (Overseas).””

I imagine that this will be another amendment that we can bundle up in the discussion. The first part will assist the small number of children born overseas to parents who were British citizens by descent, and were thus, as my noble friend has explained, unable to transmit their nationality to their children born overseas where those children were born in a qualifying territory in which the parents were not settled. “The qualifying territory” means the British Overseas Territories other than the sovereign base areas of Akrotiri and Dhekelia.

The amendment would not affect the children born to BDTCs before 2002, because they derive their British citizenship from the British Overseas Territories Act 2002. Nor does it affect whether the child has the citizenship of the overseas territory. It is thus about the situation only of British citizens who live overseas, rather than those who are also British Overseas Territories citizens in their particular territory.

If that sounds complicated, and if some of the things that my noble friend said sounded complicated, I agree. I had an e-mail this morning from a lady who said that she had three law degrees and, looking at what we said on Monday, could not make head nor tail of it. She has asked me to suggest to the Government, and I do so most gladly, that they should produce a wall chart showing each path to citizenship contained in the law. That would make them a great deal easier to follow for members of the public and those who have to advise them, compared to trying to thread their way through the British Nationality Act 1981—particularly as the BNA 1981 does not include the amendments that we are considering in this Committee, although the Minister was kind enough to let us have the Keeling schedule showing how that Act will appear as amended by the Bill. I leave that with the Minister as a helpful suggestion from a member of the public who has been trying to follow our proceedings.

The second part of the amendment would amend Section 1 of the British Nationality Act 1981 so that the children of British passport holders, other than British citizens born in the UK or a qualifying territory, are British citizens. British nationals other than British citizens have no right of abode by virtue of their British nationality alone. They are in a weaker position than third-country nationals settled in the UK or an overseas territory, and so are their children. The child of a person who is settled in the UK or an overseas territory is born a British citizen. It is a remarkable consequence of this Bill that, because probationary citizens will have limited, not indefinite, leave to remain, the children born to people on probationary citizenship will not be British citizens at birth and will have none of the rights and entitlements of citizenship. Thinking about that should help Members of the Committee to understand the position of British nationals other than British citizens, whose British passports give them no right of abode in any country.

Taking a quick canter through the international treaties that are relevant to this issue, there is, first, the European Convention on Human Rights, which the UK has signed but not ratified, because of the application of Protocol 4 to British nationals who are not British citizens, including BN(O)s. Article 3 provides that:

“No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national … No one shall be deprived of the right to enter the territory of the state of which he is a national”.

Then there is the UN Convention on the Rights of the Child, which says that the child shall have the right to acquire a nationality. As we know, some children are born stateless and many are born without the right to enter the territory of the state to which they are supposed to belong.

Thirdly, there is the European Convention on Nationality, with its provisions on the transmission of citizenship to children. The UK withdrew its reservation to this convention in 2008 and we invite the Minister to say—perhaps not now but in the course of the discussions that we are looking forward to—what changes in the law, particularly on the transmission of citizenship to children, enabled us to do this. Are British nationals other than British citizens our nationals or not? If they are, do the obligations that we have undertaken in international law have relevance? If they are not, what are they, and when and by whom is that determined? The noble and learned Lord, Lord Goldsmith, said in his review, Citizenship: Our Common Bond, which I have already mentioned:

“If citizenship should be seen as the package of rights and responsibilities which demonstrate the tie between a person and a country, the present scheme falls short of that ideal”.

I hope that in the course of discussions with the noble Lord, we will approach a little more closely to the ideal. I beg to move.

Again, I am grateful to the noble Lord for setting out the reasoning behind his proposed new clause. When trying to get my head round this area—on Monday I manifestly demonstrated that I had failed to do that in some ways—I tried to do my own wall chart. I would not recommend my draughtsmanship to anybody, but if that were possible, it would be excellent; it might not be for wider dissemination but it would help at least those of us struggling with discussions over the next few weeks. It fits well for the discussions that are coming and I endorse the route.

I have not been involved in these amendments but I am a little puzzled about the procedure, if they are all now taken away for further discussion. I understand that some of the cases raised by the noble Lord, Lord Avebury, and the noble Baroness, Lady Miller, may require clarification. But most of the issues that have been raised are matters of principle, and they have been raised as amendments to the Bill. After the discussions, what is the procedure for then deciding, first, whether these come within the ambit of the Bill; secondly, whether Parliament is going to agree to the changes—if any—that will be made; and thirdly, how to dispose of the amendments that are now before us. I am always happy to see the Government talk to the Opposition, but I am a little concerned that the procedure now seems to be extremely unclear.

The purpose behind the proposal for discussions is that in each of the cases where we have amendments to the proposed law, they derive in the main from known cases that could not be dealt with successfully under the law as it stands because the law was deficient or because of lack of discretion, misunderstanding or whatever. I am attempting to resolve those issues. In technical terms the amendments have been and withdrawn, and all can be resubmitted, along with any other amendment, at the next stage, which of course is Report stage. Having had our discussions, I would be happy to ensure that the noble Baroness is aware of how far they have gone and what we have been able to achieve, in order that she may then be able to come back and put forward such amendments as she may feel are necessary, notwithstanding the fact that amendments in the name of the noble Lord and other members of the Liberal Democrat Front Bench have been withdrawn.

I should be grateful for that. It would be helpful to distinguish between cases that need to be clarified and which may have been sitting around for a long time and principles. There are one or two principles here. I should be grateful to have that enlightenment.

I emphasise the points that have just been made. I have quite purposefully not entered into discussion on these clauses, because I understand that they are all going to be looked at very sympathetically. I should like to be reassured that if some of these are going to come back because they have not been settled satisfactorily, rather more leeway will be given to the discussion—more like a Committee stage type of discussion—on Report.

It is not for me, but as I understand procedure, Report stage does not allow for the reopening of debates that have taken place in Committee. I reiterate that it is for any Member of the House to table such other amendments for Report stage as they so wish. The point is that there is a genuine attempt to move to resolve a number of difficulties that the noble Lord and the noble Baroness have instigated and which, as they have said on a number of occasions, in many cases involve only a small number of people who are seen by many to have been badly treated. That is what they want to see investigated and resolved.

I am sure that we all appreciate the Government’s good will in trying to resolve certain questions affecting a small number of people. I am also sure that the Government know that it is possible to recommit certain clauses in a Bill and deal with them pretty well at the same time as Report stage is taken.

That is perfectly correct. At this stage, I just want to avoid jumping too far ahead. We have not even commenced the discussions that all sides of the Committee think would be very useful to have.

I am most grateful to other noble Lords for those interventions. They highlight the fact that, although we are considering a small number of cases, we have not conceded the proposition that they can all be dealt with on a discretionary basis. From the experience that we have had with Section 27(1) on the Hong Kong issue, where discretion was not exercised in favour of a particular small group, we think that as a result of the discussions that we will have with the Minister we will end up with certain amendments to the statutes that will bring in the small number of persons involved in each case.

We are not talking about the exercise of an individual ministerial discretion in any of the amendments that we have moved. We are talking about trying to persuade the Government that these are matters that have to be dealt with by primary legislation or by order, although there may be one or two cases—I am not conceding that; I am just speaking off the top of my head—where the exercise of discretion would be adequate. We think that in nearly every case we are going to have to persuade the Government that some modification of the BNA will be necessary to give effect to the proposals that we have made, even though they relate to a very small number of persons. For the time being, I beg leave to withdraw the amendment.

Amendment 100 withdrawn.

Amendments 101 to 101B not moved.

Clause 42 : Children born outside UK etc. to members of the armed forces

Amendment 102

Moved by

102: Clause 42, page 34, line 28, leave out from beginning to end of line 8 on page 35 and insert—

“(1) Section 2 of the British Nationality Act 1981 (c. 61) (acquisition by descent) is amended as follows.

(2) In subsection (1)(c) after “Communities” insert “; or

(d) is a member of the armed forces.””

I am sure that we are all having some difficulty in getting our heads around the proposals that the Government are putting forward, but I am also sure that when it comes to the Armed Forces, the Government have good will towards members of the Armed Forces and are anxious that they should be properly treated. I am pleased to see the noble Lord, Lord West, in his place. As I pointed out on Monday night, those eligible to serve in the British Armed Forces are British citizens, British nationals other than British citizens, Commonwealth citizens and Irish citizens. A person who is a member of the Armed Forces should know that children born to him or her will be entitled to British citizenship. Amendment 102 is a very simple amendment to the British Nationality Act.

Clause 40, which we debated on Monday, was concerned with children born in the United Kingdom to members of the Armed Forces. Clause 42 is concerned with children born outside the United Kingdom or the qualifying countries to members of the Armed Forces. For some reason that I do not understand, a distinction is drawn between them. Clause 42 does not take the same approach as Clause 40 to children born outside the United Kingdom.

Members of the Armed Forces, who are the people most affected by these provisions, are posted where they are required—and that may not be within one of the qualifying countries. Since they have to go when they are ordered, they have no choice. Families who wish to be together at the time of their child’s birth may be posted in some place that does not come within the definition of the United Kingdom or the qualifying countries. Given these circumstances, on what basis have the Government decided to draw a distinction? If service in the Armed Forces of this country, which is a very worthy undertaking, entitles children to become British citizens in one instance, why should they not become so in the other? Why should citizenship depend on where the family has been posted at a particular time? I cannot see the reason for that principle and I await with interest what the Minister will say. I beg to move.

It was proposed to put all the amendments in this area into the conversation and that is still a way forward, but I should do two things beforehand. First, in discussing the previous amendment, the noble Lord indicated that he would allow no conditions to what he would commit to in discussions of that amendment. The Government are not committing themselves either ahead of that to make changes in the law. However, it does need an understanding of why those conditions were sought so as to allow a more sensible, temperate and—in the eyes of some—more sympathetic decision to be made. It might be useful to read into the record my response to the noble Lord and questions and answers can be taken afterwards in a more general discussion.

The Government would resist the amendment as it appears in the Marshalled List. The proposed amendment would remove in its entirety the proposed Section 4D. The amendment proposes that British citizenship otherwise than by descent be acquired automatically at birth by any child born outside the UK to a parent serving in the Armed Forces at the time of birth. The proposed amendment would therefore deal with children born to British citizens serving in the Armed Forces. However, this class of persons is already provided for by Section 2(1)(b) of the Act which deals with British citizens serving outside the UK in Crown Service as Crown servants, including those in the Armed Forces. The proposed amendment would therefore in part replicate the effect of existing statutory provisions.

However, I also understand that the purpose of the amendment may be to enable those born overseas to foreign and Commonwealth service personnel to acquire British citizenship automatically rather than by registration. We have elected to provide that citizenship be acquired by registration under the proposed Section 4D because we believe that it is right to enable foreign and Commonwealth nationals who are not themselves British citizens to determine whether they wish their child to acquire British citizenship where that child is born outside the UK. This will enable those parents to consider, first, for example, whether acquisition of British citizenship would lead to the loss of another citizenship that they feel is more important for their child to acquire. Secondly, even if there is no conflict in regard to dual nationality and the domestic law of another state, it is still possible that the parents may nevertheless not wish their child to acquire British citizenship. As a result, it is right that the parents of those born overseas decide what citizenship their child acquires.

The second and third amendments in this group would allow a person to register as a British citizen under the proposed Section 4D if born in the relevant circumstances before commencement of the provision—that is, those born outside the UK and qualifying territories where, at the time of the birth, at least one parent was a member of the Armed Forces. Children born in such circumstances are currently able to register as a British citizen at the discretion of the Secretary of State under Section 3(1) of the British Nationality Act 1981 following, in the main, their return to the UK with the family unit on conclusion of an overseas posting. Alternatively, those individuals who return to the UK, do not register as a British citizen while a minor and remain resident in the UK, can naturalise as a British citizen under Section 6(1) of the British Nationality Act 1981 when they are an adult.

It is also right to remember that the proposed Section 4D, which Clause 42 inserts, is based on a desire to remove obstacles to the acquisition of British citizenship for those born overseas to foreign and Commonwealth service personnel on active posting at the time of birth. This is a government commitment made clear in the Command Paper presented to Parliament in 2008, The Nation's Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans. This is principally to ensure that, as has historically been the case, the mother of the child does not need to travel to the UK when heavily pregnant in order to ensure that the child acquires British citizenship automatically at birth as a child born to a parent who is settled for nationality purposes in the UK or qualifying territories. Such a mother will instead be able to give birth to her child overseas and the child can be registered as a British citizen from abroad. This is what our foreign and Commonwealth service personnel want and it will encourage ongoing service in our Armed Forces by removing current obstacles faced by the family unit.

Persons born outside the UK to foreign and Commonwealth service personnel since commencement of the British Nationality Act 1981 have been able either to register as a British citizen when a minor on their return to the UK or to naturalise as a British citizen as a result of ongoing residence in the UK when an adult. For those who are still children but have not yet been registered, Section 1(3) remains open as an avenue to registration as a British citizen. This means that no one is currently losing out. The proposed Section 4D is designed to facilitate the acquisition of citizenship by those yet to be born overseas in the relevant circumstances. Children born before commencement already have routes to citizenship.

For those reasons, the Government are confident that there is no strong argument for accepting the amendments. Further, when considering this matter, it is important to be conscious of the fact that the majority of those posted overseas in the UK Armed Forces are single men, the majority being in the Army, and that they travel alone and are without a spouse or civil partner. We estimate that currently fewer than 200 children a year are born to a parent serving overseas at the time of birth. Most of these have in any case been born in the UK and have acquired British citizenship automatically at birth.

That is the reasoning behind the Government’s resistance to these amendments. However, as I said previously, were the amendment to be withdrawn, we think that it would be useful, if the noble Lord wishes, to continue the discussion on this and other matters.

I am afraid that I shall have to pursue the matter a little further because the Minister speaks at a pace, which makes it very difficult to follow. I want to take a simple situation. Let us imagine that I am a Fijian member of the Armed Forces of this country, playing rugby for a Scottish regiment, as many of them do, and that I am posted to Edinburgh. My wife has a child in Edinburgh and under Clause 40, that “person”,

“shall be a British citizen”.

There is no question of applying to register. The suggestion that there is some conflict with dual nationality and that another country may not allow them to do that does not arise in Clause 40. As that same Fijian soldier, I may be sent to guard the embassy in Australia. I am not on active service but as part of my responsibilities I am sent there. The Government allow my wife to go as well and we have a child. That child does not become a British citizen by reason of membership of the Armed Forces. The child has to apply for registration, and if over the age of 10, has to pass the good character test.

It is exactly the same situation. The soldier has been sent to serve abroad, so what is the difference? In the five or 10 minutes that the Minister was talking I was hoping that he would elucidate the principle behind that. I cannot find one. I welcome the possibility of future talks and I will read in Hansard what the Minister said and try to understand it, but I still do not know the principle. If we are to reward Commonwealth citizens—if British citizenship is regarded as a reward—for serving in the British Armed Forces by giving citizenship as of right to their children born in this country, why do they not have the same reward if they are posted abroad? It is very simple: what is the difference?

I apologise for the speed of my delivery. It is partly a cultural inheritance of coming from the north—we speak quicker—partly nervousness on my part, and partly because I have a cold. However, those reasons are no excuse for not making myself clear to the Committee and I apologise for that.

The noble Lord set out an example and posed a question that I cannot answer with confidence in detail now, but I will of course write to him on the matter. If it is written it can be clearly understood.

What can I say? I will not take it to the vote but if the principle is not clearly stated on Report and we have not come to an accommodation we will pursue the matter. For the moment I beg leave to withdraw the amendment.

Amendment 102 withdrawn.

Amendments 103 and 104 not moved.

Clause 42 agreed.

Clause 43: Good character requirement

Amendment 105

Moved by

105: Clause 43, page 35, line 29, leave out subsection (2)

The amendment would remove Hong Kong war wives and widows from the list of those who must satisfy a good character requirement to register as British. The registration route to British citizenship is designed for certain minors of a British parent born outside the UK, people already holding a lesser form of British nationality and others with family connections to the UK whose circumstances are treated as justifying a less rigorous path to citizenship than naturalisation. In the BNA 1981 the people in these groups are also classified according to whether their members were to be registered by entitlement solely on production of evidence that the prescribed criteria were satisfied or by discretion, with a good character requirement added to the test by Section 58 of the IAN Act 2006. It was only in 2006 that we began to insist on the good character test for any of these groups.

Initially the Government applied the test to everybody who was granted citizenship by registration under the Immigration, Asylum and Nationality Bill of 2006 but we persuaded them to remove some groups from the list, such as the de facto stateless, British overseas citizens with no other citizenship and minors under the age of 10. However, we know from Monday’s debate that some of the first of these categories are still out in the cold. Unfortunately, the Government still left the Hong Kong war wives and widows in the list, although when the then Home Secretary, David Blunkett, introduced registration for this group he said:

“We are talking here about righting an historic wrong”.—[Official Report, Commons, 5/11/02; col. 147.]

We considered the groups that were entitled to register as of right in an amendment to the 2007 Bill, and in her reply, the then Minister, the noble Baroness, Lady Ashton of Upholland, told us that,

“when we consider groups such as the wives and widows of those who fought in the defence of Hong Kong, we believe that we have brought them all into the system in one way or another”.—[Official Report, 6/2/07; col. 621.]

They were women who had received a UK settlement letter from the Secretary of State confirming that, in recognition of their husband’s or late husband’s service in defence of Hong Kong during the Second World War, they could enter the United Kingdom for settlement at any time. In an Act sponsored by the noble Lord, Lord Willoughby de Broke, in 1996, these wives and widows had been given the right to register as British citizens. There was no requirement then, or for the next 10 years, that they would have to pass a character test. Today, the UKBA says that, at most, there are some 53 of them still alive. They were not brought into the system, nor was any explanation given by the Minister about why these very elderly ladies should be subjected to the indignity of the test. I hope noble Lords will agree to take them off the list.

I support this amendment. This seems to be the most curious inclusion in the BNA of a very small number of people. However, we are not talking about individual decisions, but about the principle. The principle here is wrong, and I am therefore glad to support the noble Lord.

I strongly support my noble friend in this amendment. It seems disgraceful that this Government should ever have brought this provision forward.

I shall tell noble Lords a little bit about Jack Edwards. He came from Cardiff and served as a sergeant in the Army during the Second World War. He was captured by the Japanese in Singapore and was held in Japanese camps for a long time. When he was released, he made it his business to seek out war criminals. It was as a result of his efforts that he discovered the only surviving copy of a Japanese order to massacre all prisoners of war if the allies landed on the Japanese home islands. Jack Edwards then moved to Hong Kong, where he was chairman of the British Legion and much involved in tireless efforts to obtain monthly pension awards from the British Government for ethnic Chinese veterans and their widows. In 1996, he fought for and won the granting of British citizenship to the wives and widows of those veterans. We are told that there are about 53 of them left. I met Jack Edwards; indeed, he was patron of the Hong Kong Welsh Male Voice Choir. I declare an interest as I followed him as its patron and have sung with it in the Sydney Opera House and the Royal Albert Hall. I therefore have a personal interest in Jack Edwards, who unhappily died in 2006. He was married to a delightful Chinese lady—Polly—whom I met at the Armistice service the year before last.

Why should these 53 widows be asked to pass a good character test? They must be in their 80s and 90s, and there are probably far fewer than 53 of them. I regard it as an insult that a clause of this sort should be put into the Bill, presumably as a result of a desire for bureaucratic tidying-up of the legislation relating to the good character test. I am sure the Government will, on reflection, remove it from the Bill.

I shall keep my response short, if not slow. A powerful case has been made. I have the brief. The sensible thing is for the Government to reconsider the issue, and I give that commitment.

Amendment 105 withdrawn.

Clause 43 agreed.

Amendment 105A not moved.

Clause 44: Meaning of references to being in breach of immigration laws

Amendments 106 and 107

Moved by

106: Clause 44, page 37, line 10, at end insert—

“(ca) does not have a qualifying CTA entitlement;”

107: Clause 44, page 37, line 21, at end insert—

“( ) For the purposes of subsection (4)(ca), a person has a qualifying CTA entitlement if the person—

(a) is a citizen of the Republic of Ireland,(b) last arrived in the United Kingdom on a local journey (within the meaning of the Immigration Act 1971) from the Republic of Ireland, and(c) on that arrival, was a citizen of the Republic of Ireland and was entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971 (entry from the common travel area).”

Amendments 106 and 107 agreed.

Clause 44, as amended, agreed.

Clause 45: Other interpretation etc.

Amendment 108

Moved by

108: Clause 45, page 39, line 2, at end insert—

“( ) A person has a qualifying CTA entitlement if the person—

(a) is a citizen of the Republic of Ireland,(b) last arrived in the United Kingdom on a local journey (within the meaning of the Immigration Act 1971) from the Republic of Ireland, and(c) on that arrival, was a citizen of the Republic of Ireland and was entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971 (entry from the common travel area).”

Amendment 108 agreed.

Clause 45, as amended, agreed.

Clause 46 : Common Travel Area

Amendment 108ZA

Moved by

108ZA: Clause 46, page 39, line 20, at end insert—

“( ) In section 1 of the Immigration Act 1971 (c. 77) (general principles: the common travel area) after subsection (2) insert—

“(2A) Arrivals by land from the Republic of Ireland to the United Kingdom shall not be subject to immigration control under this Act.””

I am making an unexpected guest appearance in Committee on the Bill. I ask noble Lords to bear with me, as I was given the brief at the last minute. Both my colleagues on the Northern Ireland team were hoping to speak to the amendment but cannot do so.

The common travel area has been very much part of my life. In 1946, I was taken as a child to the Isle of Man. I have been there in most years since, and 20 years ago my wife and I bought a cottage in the Republic of Ireland, so I am very much aware of the common travel area as it affects these isles.

In effect, the clause abolishes the common travel area by removing the provision that means that persons departing from or arriving in the UK from within the common travel area are not subject to immigration controls. Since its advent, the common travel area has been suspended only during World War II. Even at the height of the Troubles in Northern Ireland in the 1970s and 1980s, the common travel area was maintained. The rationale given by the Government for these changes is set out in the impact assessment of the recent consultation on strengthening the common travel area. However, little empirical evidence is provided to support or explain the need for the changes, which seem to be unconnected to the reality of the situation on the border between the UK and the Republic of Ireland.

There is also an expressed intention to increase the number of intelligence-led ad hoc immigration checks on the land border. In practical terms, Clause 46 means that immigration officials can challenge an individual whom they suspect of not being in compliance with immigration rules to prove their nationality. This will apply not only to those travelling by sea and air but to those stopped by an ad hoc immigration check near the land border. As this power can be applied to any individual, including British and Irish nationals, it will mean that those living in the border area could be subject to frequent immigration checks on any journey near the border and could therefore feel compelled to carry identity with them on all journeys.

Given our concerns about the basis for the intelligence-led operations, we are concerned that this pressure may be felt most strongly among the ethnic communities living on or near the border and by individuals from these communities contemplating travel between Northern Ireland and the Republic of Ireland. This amendment aims to prohibit explicitly the practice of immigration checks on land crossings of the border between the UK and the Republic of Ireland.

We are extremely concerned at references to mobile checks being made on a risk-led basis. The CTA consultation proposed the introduction of,

“ad hoc immigration checks on vehicles … to target non-CTA nationals”.

The Home Office has subsequently stated that such checks would be intelligence-led on persons both arriving in and leaving Northern Ireland. The Government have not set out what criteria will be used as the basis for these operations or set out transparent monitoring to ensure that they are not relying on racial profiling.

While the Government have stated that no fixed passport or identity document will be required for British and Irish citizens to cross the land border, clearly those stopped under enforcement operations will be expected to satisfy UK Border Agency officers that they are British or Irish citizens by producing passports, national ID cards or otherwise, as will non-CTA nationals. The clear question, in the context of ethnic diversity, is: will those policing the land border be able to tell who is a British or Irish citizen and who is not? Who, on indicating that they are not carrying particular travel documents, will be allowed to proceed and who will be subject to further examination and even detention until identity is verified?

Experience of these actions, in the form of Operation Gull, has been that immigration officers have carried out investigations on a discriminatory basis. On a number of occasions, the High Court has criticised the practices of immigration officers in cases involving Operation Gull which have come before it. The speed and secrecy under which Operation Gull is carried out results in individuals being unable to access independent legal advice that would be able to determine whether they have been detained lawfully. One of the chief concerns is that individuals could be questioned under Operation Gull on grounds of ethnicity or nationality, irrespective of their intentions.

The proposed powers in the CTA consultation will only increase the likelihood of Operation Gull-type operations. It is essential that the circumstances in which such checks may be made are carefully defined, to avoid establishing a broad power of internal immigration control. We are concerned that these measures could have a disproportionate impact on ethnic minority persons crossing or even just living and working near the land border. The potential outcomes of these circumstances would mean that an ethnic minority person would constantly have to carry identity papers or face frequent questioning regarding their status.

A number of cases came before the Northern Ireland High Court, the most recent of which was an application for judicial review by Jamiu Olanrewaju Omikunle, a Nigerian student who had obtained a proper student visa and was unlawfully detained by immigration officers at Belfast International Airport on a local journey. The court held that he was detained unlawfully. He had recently been awarded a significant amount of money in compensation for his unlawful detention and the appalling treatment to which he was subjected while in detention.

Approving this provision will endorse such discriminatory policies where ethnic and racial profiling is at the core of their rationale. The significant number of people being adversely affected by Operation Gull prompted the Northern Ireland Human Rights Commission to conduct an investigation into the implementation and conduct of this operation. We understand that the Human Rights Commission is soon to report its findings in relation to its investigation. The Government’s attempt to introduce this provision at this stage is to neutralise its findings.

We would also like a reassurance from the Government that they do not intend to make checks on those travelling between Northern Ireland and the rest of the United Kingdom. The measures proposed in the Bill mean that UK citizens in Northern Ireland will be subject to travel controls that are not imposed on UK citizens travelling from one region of Britain to another, as journeys across the border from Northern Ireland into the Republic are as common as journeys from England into either Scotland or Wales for those living along the Welsh or Scottish borders. It would be completely unacceptable for the Government to place controls on British citizens travelling from Belfast to the rest of the UK.

Moreover, the powers of examination detailed in Schedule 2 to the Immigration Act 1971 refer to and are understood as usually applying to aircraft and ships, and air and sea ports respectively. The Government, through regulation, can determine otherwise. However, in relation to the CTA, they have not indicated an intention to do so and such a move would contradict the stated objective of not introducing fixed control requirements on the land border. This contradiction would also emerge if the Government pursued the extension of examination powers to international railway stations and trains, and even in-country, without exempting CTA routes.

Presently in Northern Ireland, international railway stations would include Newry, Portadown, Lurgan, Lisburn and Belfast Central, all of which are served by the Enterprise express between Belfast and Dublin, which crosses the land border, as well as being used for journeys within Northern Ireland. If the Government’s intention to effectively extend the definition of a port to international rail did not exempt the CTA, this could introduce passport control, control areas and e-Borders to these stations. None of this is referenced as planned in the present CTA reforms. We would like the Government to assure the Committee that they are not planning to operate such checks. The Home Office has given clear indications that there will be no passport control on the land border for CTA nationals, despite stating its intention for CTA passport control to be introduced only on air and sea routes. That is not explicit in the Bill and is what we hope to achieve with this amendment. I beg to move.

I support the amendment in the name of the noble Lord, Lord Shutt. The Government’s utterances on identity checks at the border between Northern Ireland and the Republic have been unclear. In truth, that reflects either muddled thinking by the Government or a reluctance to come clean about what they are planning. The Government have said that there will be no question of establishing full-scale checks on the border, which reflects the practical and political impossibility of doing so. Instead, we will see ad hoc checks, which we have been assured will be intelligence-led and carefully targeted, a point made by the noble Lord, Lord Shutt.

I do not consider that very reassuring at all. How will this work in practice? If people travelling across the border are to be stopped at random, how will they prove that they are British or Irish citizens, or otherwise have a right to be in the country? If the checks are entirely ad hoc, they will not know when these checks might take place. In other words, the Government are requiring British citizens to carry identity documents at all times in case they stray over the border to go shopping, buy petrol or countless other legitimate everyday purposes in order to prove who they are. That is a very unsatisfactory way to sneak in ID checks on British citizens by their own Government. What will happen, for instance, to those people who are stopped but have not remembered to put their identity papers in the glove box of their car or their pocket? Will they be detained on the spot, followed home, made to report to a police station later or simply waved on their way?

If we swallow the argument that these stops will be carefully targeted, we must ask how that will be done. I have also seen the briefing from the Northern Ireland Human Rights Commission, referred to by the noble Lord, Lord Shutt, and I agree with the point that it makes. There is a great danger that the targeted checks will focus on people who look a bit different or foreign. Is that compatible with the noble Lord’s statement on the front of this Bill that this is,

“compatible with the Convention rights”?

If the security and intelligence services have a genuine suspicion that someone is up to no good, they have ample powers at their disposal already for dealing with them. The Government have utterly failed to explain this measure, which will inconvenience thousands of people going about their lawful business and will not make the borders any more secure.

That raises another point. Why are the Government proposing border checks into Northern Ireland on an ad hoc basis, but making those into Great Britain mandatory? What, exactly, is the threat posed to the people of the British mainland from which they must be protected, and why are British citizens in Northern Ireland to be deemed less at risk from that threat? Why would Northern Ireland need only ad hoc border protection if Great Britain needs stronger protection? If, as my noble friend Lord Glentoran suggested at Second Reading, this Bill is to protect the Great Britain border and not the United Kingdom border, why will the Government not at least be open about it?

Bearing that in mind, will the Minister please spell out the future position of British citizens seeking to travel from Northern Ireland to Great Britain on an entirely domestic journey? Will they be subject to immigration controls to compensate for the ad hoc or non-existent controls on the land border? These government proposals are likely to be so ineffective in their stated aim that either they have not been thought through or are paving the way for an entirely different and more far-reaching measure. I will be most interested to hear the Minister defend this clause, but at this stage I support the amendment from the noble Lord, Lord Shutt.

I have not been much involved in this Bill, but I take a great interest in freedom of movement, within Europe and the common travel area, and this provision quite astounded me. Many British citizens take the common travel area for granted, in some ways—when they go to Dublin, perhaps, or when British citizens within Northern Ireland travel within the island of Ireland—but it does not generally receive a great profile. The common travel area is, however, extremely precious. It has a long historic base and reflects a close relationship between the Republic of Ireland and the United Kingdom.

The group of amendments following this one might go more profoundly into Clause 46, but when starting to read about this I took out the Immigration Act 1971 from the Printed Paper Office, to try and understand what this clause does in relation to it. I found great difficulty in following it through, but although I could not understand this entirely from the legislation, I noted that the Explanatory Notes produced for the Bill say, in referring to Clause 46(1), that:

“This amendment will enable the routine control of all persons arriving in or departing from the UK via the CTA by aircraft or ship”.

Perhaps this amendment is not necessary, because if the notes are true it is somehow suggested that the new provision does not include travel over land, but only “by aircraft or ship”. That seems entirely illogical if it is true, so I will be interested in the Minister’s explanation of the Explanatory Notes.

Clearly, it makes no sense at all to control access to the United Kingdom by aircraft or ship if we do not control it by the land border as well. Anybody wanting to enter Great Britain who we would not want here but who is already in, say, the Republic of Ireland—although I understand that this would also include the Channel Islands and the Isle of Man—will clearly just travel by land to Northern Ireland, and thereafter by air or ship on an intra-United Kingdom journey. I do not understand this to be giving any extra security or control to us as British citizens, let alone to those of other jurisdictions within the CTA.

I will be interested to understand from the Minister exactly what benefit this provision has, at the expense of starting to erode strongly something that we should view as precious: the right of all citizens within the CTA to travel freely and without hindrance. As my noble friend Lord Shutt said, that was never seen as something that should be restricted during the Troubles, and I see no reason why it should be the case now.

I should make it clear at the outset that there is absolutely no intention to abolish the CTA. Indeed, we do not believe that anything in the Bill goes anywhere near to doing that. The CTA has been important and valuable to us in the past and will be in the future.

As the noble Lord, Lord Teverson, mentioned, we are coming on to a series of other amendments on this clause, so I might not go into as much detail on this amendment as on them. There is also a clause stand part question as well.

The Bill looks at the common travel area because we have found that a large number of people are slipping through the hoop, with some very real risks and problems. Therefore, when I was asked after the attacks on Tiger Tiger and Glasgow Airport in 2007 to look at a number of issues, I flagged up elements of border control. We were able to draw on work that had gone on in dealing with loopholes in the arrangements with the Republic of Ireland whereby some unpleasant and nasty people had been moving backwards and forwards, and problems relating to crime, trafficking, immigration and terrorism had arisen. That is why we have come up with various amendments to the 1971 Act.

Amendment 108ZA would restrict the power to control persons travelling across the land border, which would undermine the purpose of the CTA reforms—as I said, we have gone to great length to discuss that with the Republic of Ireland—and prevent the UK Border Agency carrying out effective controls on this route. That would prevent important improvements in our ability and flexibility to combat illegal immigration, terrorism and wider crime.

As has been stated by noble Lords, political and practical considerations—we all know this—mean that fixed controls on the land border are not a viable option. It is clear that they are impractical. I have been on patrol there enough times. It is quite easy to get lost and end up drinking in a pub in the Republic of Ireland rather than Northern Ireland because it is such a difficult border. We have made it clear that we will not introduce routine border controls on the land border between the Republic of Ireland and Northern Ireland. We have also made it clear that we will not require persons to carry a passport or national identity document on this route—I shall come back to that shortly—but we may want to check that a person is entitled to enter the United Kingdom without leave where we have intelligence that they might be entering unlawfully. We will not collect e-Borders data on those who cross the land border, although we will do so for those who travel on aircraft or ships, as e-Borders will spread to all aspects of ship and aircraft travel. We have made it clear that Clause 46 is only part of a process of reform of the CTA and that we will consider further the approach to intelligence-led, risk-based operations to tackle illegal movement over the land border as part of the wider simplification of immigration law. However, we are committed to retaining the CTA. It is an incremental process. It is the first step in making us safer and resolving some of the loopholes.

I was asked by the noble Lord, Lord Shutt, and the noble Viscount, Lord Bridgeman, about the intelligence operations. The controls will not be fixed. We shall not ask every passenger arriving to present their passport to an immigration officer. We will target those who have no entitlement to enter the UK who we think pose a threat. We will use information obtained on the air-sea routes between the Republic of Ireland and the UK through our e-Borders system and other available intelligence.

The noble Lord, Lord Shutt, asked about ethnic-minority communities, which are clearly an issue. Passengers are selected very much on the basis of direct intelligence and risk, drawn from a number of sources—to which I shall come. No passengers will be selected on the basis of race, and we are developing operating procedures, intelligence audit trails and ethnicity impact assessments to ensure no negative impact. We do not employ racial profiling. Under the land border operation on the quieter roads, we often stop a whole number of vehicles. That is not possible on the main Dublin-Belfast road, so we target the odd bus, minibus or taxi, because our experience has shown that those are much more likely to be a threat.

The noble Lord, Lord Shutt, mentioned Operation Gull, which has highlighted to us the huge number of problems and difficult cases that we have. In the operation, we asked passengers for identification. Ninety per cent carry passports, even though they do not need to. We asked the remaining 10 per cent questions about their nationality and their UK immigration status. We verified that by checks with CID, WICU, CRS, Irish records, and fingerprint checks on the QuickCheck, re-interviewing the people concerned as appropriate when there were discrepancies. We found that a skilled immigration officer can weigh up a person’s nationality and status very quickly through a mixture of good interviewing, IT and mobile databases, and a bit of common sense—which is sadly lacking, very often—both on the border and in Operation Gull. The Irish, of course, do exactly the same in reverse when they are checking persons entering Ireland who have no passport, so it is not an unusual thing to be done.

It is worth mentioning that we have included refugee travel documents, because we are aware that there might be a number of Tanzanian refugees living along some of the border areas. We have done that to ensure that that is covered.

The noble Viscount, Lord Bridgeman, asked about checks made on those travelling by air and sea from Northern Ireland to Great Britain. This is not covered in the CTA reforms, as it is a domestic journey, like a journey from, say, London to Liverpool. Persons are, therefore, not subject to immigration control. Section 14 of the Police and Justice Act 2006, to which the noble Lord rightly referred as enabling us to do certain things, introduced a new power that would allow the police to capture passenger, crew and service information on air and sea journeys. That is exactly the same sort of data that we are getting for our e-Borders. We will launch a separate consultation on domestic travel requirements in due course to cover that.

On the travel documents needed to travel between the Republic of Ireland and the UK by air and sea, we will require all persons, including those who are British and Irish, to prove their identity and nationality with a passport or national identity card. Interestingly, I flew into Dublin about 10 days ago to have some talks with people and for other reasons, and I had to produce a passport on that occasion. That seemed to go against the grain of what has been said here—but it is hardly surprising, when there are so many nasty and unpleasant people around, that one sometimes has to prove one’s identity.

On the land border, we will not introduce fixed or routine controls, or a document requirement, as a matter of policy. The noble Viscount, Lord Bridgeman, asked on that specific point.

What are we doing to secure Northern Ireland? All passengers travelling internationally to and from Northern Ireland will be subject to the same requirements to provide data as the rest of the United Kingdom. That means that on air and sea routes between the Republic of Ireland and Northern Ireland, they have to carry a passport and identity card. We will introduce phased intelligence-led immigration controls on this route, in the same way as we do on other routes, tying in with e-Borders. Practical and political considerations mean that routine immigration controls and/or the collection of e-Borders data is not a viable option.

I hope that that answers the bulk of the questions that were asked. We are committed to retaining the CTA, and I hope that on that basis the noble Lord will agree that the amendment is unnecessary and will feel able to withdraw it.

I thank the Minister for his response. I was slightly worried about the word “incremental”. As a Yorkshireman I thought, good heavens, is Lancashire next? I worry about that word “incremental” in all forms of legislation. It is also slightly worrying that the noble Lord, Lord West, in going to Dublin, was challenged. If those very clever people, in looking for those who might be up to ill will, spotted the Minister, it seems very strange indeed. I always thought that the whole business of passports and aeroplanes was more to do with the proprietors of the airlines, such as Ryanair. They want a simple life so they just say, “Bring a passport—bus passes won’t do”. As the Minister said, it goes against the grain, as so much of this does. However, for the moment I withdraw the amendment, and colleagues and I shall look carefully at his response to consider matters for the next stage.

Amendment 108ZA withdrawn.

Amendment 108A

Moved by

108A: Clause 46, page 39, line 23, after “in” insert “or departs from”

I apologise again because my noble friend Lord Glentoran is unable to be here and my noble friend Viscount Bridgeman has to leave for a short time. I move Amendment 108A and speak to Amendments 108B, 108BA, 108C, 108D and Clause 46 stand part, all of which belong together. I will speak to Clause 46 stand part with other noble Lords because, unless the Government can persuade us of its merits, we see no justification for Clause 46 standing part of the Bill. There are many reasons for this. It is partly because of the very high cost, with benefits unknown but probably negligible; the practicality of implementation; the lack of consultation; and the Government’s confused thinking in this area, which does not seem to warrant the endorsement of your Lordships’ House or inclusion in the Bill.

The amendments that we have tabled to this clause would have, I hope, the effect of reversing the Government’s perceived proposals to abolish the common travel area, although the Minister says that this is not the Government’s intention. The Official Opposition are in favour of retaining and strengthening a travel arrangement that has served the people of the British Isles very well for almost a century. The clause would end passport-free travel between the United Kingdom and the Republic of Ireland, the United Kingdom and the Isle of Man, and the United Kingdom and the Channel Islands. There was some discussion of this on the previous amendment.

I turn first to the Isle of Man and the Channel Islands. These three self-governing dependencies are referred to as the Islands. They are sometimes referred to as the British Islands for the very good reason that they are dependencies of the Crown and are inhabited, for the most part, by British nationals. As my noble friend Lord Glentoran asked at Second Reading, in what possible way will putting up a barrier between the United Kingdom and these islands help to protect our borders? It really is not enough for the Government to give an assurance that any checks will be on an ad hoc basis, as indeed the Minister just has again. If the power is there, it is there to be used.

We have seen correspondence from the Isle of Man Government and the States of Jersey that makes clear their opposition to this clause. There is a long-established protocol that the Islands will be consulted on changes to UK immigration laws. To my knowledge, they have always adapted corresponding provisions. Perhaps the Minister will be kind enough to tell the Committee why the Government did not bother to consult the Islands about the changes proposed in this Bill. There are constitutional issues here, which the Government appear to have failed to address. The Bill makes no distinction whatever between the constitutional relationship between the Islands and the relationship with the Republic of Ireland, which is, of course, entirely different. Was this was just a simple difficulty in the drafting, or a failure by the Government to think through this proposal?

The main thrust of this clause is, I suspect, aimed at the border between the United Kingdom and the Republic of Ireland. We would not be able to guess at the reasons, although the Minister has outlined some of those in dealing with the previous amendment. What will the Government gain from intervening in the common travel area, which has survived the Second World War and the Northern Ireland Troubles? The CTA is an internal immigration arrangement and nothing more. By messing around with it the Government will not magically shut down the flow of illegal goods or change the face of illegal immigration to the UK. They will simply hinder the free travel of British and Irish citizens.

The impact assessment produced by the Government explains in Section 2.6:

“Notwithstanding the principle of free travel within the CTA, it is not lawful for a person who is not a British Citizen to enter the UK (including the Crown dependencies) where their presence was unlawful in another part of the CTA, unless they are given leave to enter. The practical effect of this is that if someone with valid leave in the UK or Islands travels to another part of the CTA, and their leave subsequently expires, and that person then returns to the United Kingdom or Islands without obtaining further leave, that person becomes an illegal entrant. This enables enforcement action to be taken when appropriate and reduces the risk of abuse within the CTA”.

In other words, the lack of an internal border has no magic effect on the rights and entitlements of those under immigration control. The most dramatic effect of the reimposition of controls will be on those not subject to immigration control, and the cost of that can be seen both in the Government’s impact statement and in the correspondence that I have received along with other noble Lords.

The cost of implementation, according to the impact statement, could be as much as £75 million and that will mainly fall on the tourism industry. Is it clever in any circumstances, particularly in the current economic climate, to affect the tourism industry in that island? Thousands of people will presumably find that they need a passport to visit friends, family and colleagues where before they did not. Have the Government considered the knock-on costs on hauliers, ports and the countless businesses that rely on them?

Again, the impact assessment rather damningly cannot put any figure at all on the benefits to be accrued under this clause. That speaks for itself. Any claims that this clause will improve the United Kingdom’s security sounds rather unlikely given that this measure was not deemed necessary even in the security crisis of the 1970s and 1980s. If the Government are serious about wishing to protect our borders, our citizens’ way of life and our good relations with our only land neighbour, they would engage constructively with the Republic of Ireland and with the Islands to construct a secure e-Border system that would encompass the whole of the British Isles and allow free travel therein without unwarranted and costly intrusion from the state. We do not believe that this clause is justified and we believe that its removal would make this a better Bill. I beg to move.

It must be clear to the Government by now that there is widespread concern about Clause 46 and the details of it. However, I should like to mention my experience of the last time that I flew to Belfast from London in November last year. I was asked to produce photo identity. Was this under some power or legislative authority or was it just overzealousness on the part of the airline?

To ensure that Northern Ireland is not being discriminated against, what is the position—last year and this year—with regard to flights or trains to and from Scotland? Is photo identity required for such journeys?

I will speak to the two amendments in this group in the name of my noble friend Lord Smith. Amendment 108CA deals with visas. Given the benefits that the common travel area has brought to the UK and the Republic of Ireland, we would be in favour of legislation that formalised the increase of transparency in the common travel area. For that reason, we support moves to introduce a common visa system or a system of mutual recognition of visas between common travel area members. For that to be effective and just, it should apply to those in the common travel area on long-term visas and be easily affordable for those applying.

Such a system should include not only short-term visas but the right to rely on a residence permit issued in one state in order to travel to the other. That would be of use to many including those on long-term study visas or who work within the border regions. Furthermore, if a system of mutually recognised visas or a common visa were in place, there would be no need for the leave to be endorsed.

The Republic is currently working on its own e-Borders programme. In the light of this, we feel that it would be more appropriate for the Government to work closely with the Irish Government effectively to draw a line around our two islands and allow the free flow of movement between them. To that end, will the checks be relaxed if a complementary system of e-Borders and visa checks is developed between Ireland and the UK?

Amendment 108CB concerns various forms of identity. Clause 46 will allow immigration officials to challenge an individual whom they suspect of not being in compliance with immigration rules to prove their nationality. This will apply not only to those travelling by sea and air, but to those stopped by an ad hoc immigration check near the land border. This power can be applied to any individual, including British and Irish nationals. Clearly, there will be a considerable socio-economic impact on CTA nationals who travel between the UK and Ireland and who do not have passports or identity cards, because they will now have to purchase them.

A friend of mine recently decided to leave home and get married. He was of mature years, but because he lived at home, he did not have gas bills in his name. He has never driven a car and he has never been abroad. He had great difficulty in getting a mortgage. The whole business of identity is important. One can see how this can be replicated, with people having to understand their identity and prove it.

Communities on the border will be affected, especially those near sea crossings and where tourism is a cross-border pursuit by virtue of the proximity between the north and south of Ireland. The lakes of Fermanagh straddle the two jurisdictions and are major tourism destinations both in the Republic and Northern Ireland. It would be severely inconvenient for people there to have to carry identification. There could be a particularly significant impact on ethnic minority communities in these locales. The impact of these measures will be disproportionately felt in Northern Ireland. It is our belief that they will impact negatively on levels of trade and tourism.

I turn now to the clause standing part. The UK Border Agency’s figures suggest that implementing these measures would lead to an economic cost from loss of tourism revenues of up to £12 million in the first year. However, it is not clear where the figures come from, or to whom they apply. Is the Minister able to elaborate? Does this cost apply to tourism in the UK, Northern Ireland, England, Scotland, Wales, the Isle of Man or the Channel Islands? Have the Government had any discussions with the Irish Government about the potential impact on tourism? The tourism industry is one of the most important sectors of the Northern Ireland economy, and to introduce a measure that could damage it in current economic circumstances is quite irresponsible. One effect of the downturn in the economy is that people may holiday at home or in the common travel area, and not go to more exotic places. This measure would put a dampener on that.

I will deal with one other area. Reference has been made to the Isle of Man. As I indicated, I have had a love affair with the Isle of Man since 1946. The Isle of Man received the draft Bill on 18 December, with the First Reading due on 14 January. It seems that there was very little notice. I do not understand that, because under the Belfast agreement there was to be something called the Council of the Isles. The Channel Islands, the Isle of Man, the Republic of Ireland, Northern Ireland, Scotland, Wales and England would all be represented in the Council of the Isles. Has this subject been taken to the Council of the Isles? I cannot think of anything more suitable for a discussion there than this. If it has not been discussed by the council, the Government should frankly withdraw it and have proper discussions, and then consider these matters.

I admit that I favour the proposition to remove the clause altogether, although I agree with my noble friend’s suggestion of a common visa policy. In a broader context, the Bill clearly says that the UK Government look upon the Irish Government as incapable of properly managing their own borders. The common travel area should revolve around both those jurisdictions being able to sensibly and effectively keep out people who are not supposed to be there. Instead, we seem to have an attitude of, “Well, that’s not going to work properly. We don’t trust that system and must therefore bring in something else”. But that something else clearly cannot work effectively; it is incapable of doing so.

I agree entirely with a common visa system between those different jurisdictions in the common travel area. But let us be plain about it. Even though I am sceptical about how effective we can make all our borders, if we feel that the Republic of Ireland cannot come up to what we require for e-Borders, perhaps we should say so. However, this is not an answer to that.

Without destroying my own argument, my solution would be for both Ireland and the United Kingdom to join the Schengen acquis. That would be far more effective. Although a government Minister has recently said that that is not on the agenda at the moment—I was interested to hear “at the moment”—I understand that that will by no means be a practical solution within the timescale of the Bill; it is not currently a politically feasible solution. However, I see this as throwing something valuable away and replacing it with something that just cannot work.

I should first make it clear that, in speaking to this group of amendments, I do not regard the decision whether Clause 46 should stand part of the Bill to be consequential on any decision on Amendments 108A, 108B, 108C, 108CA, 108CB or 108CD. I am sure, however, that this has been a helpful opportunity to have a wide ranging debate on the issue raised by Clause 46.

I begin by outlining why we are making these changes. We do not go and make changes for no reason, just to rock things up for everyone and be a bloody nuisance. We do them for reasons. We have made clear the value that we attach to the political, economic and social benefits of the common travel area. We are committed to maintaining the common travel area, and preserving those benefits. However we know that the current CTA arrangements are being abused. So do the Irish, because we have had long talks with them. So do the people in Northern Ireland, because we have talked with the Administration there as well.

Part of the reason that I said that we need to do something when I looked at this in 2007 is that we have become more aware that serious organised criminals are using the CTA to facilitate their criminal activity, illegal migration and trafficking. We were aware, from the clear evidence of Operation Gull, of immigration abuse between the Republic of Ireland and the United Kingdom. The sorts of numbers that we are talking about are just under 4,000 immigration offenders. This is possibly just the tip of an iceberg.

There is also clear evidence of abuse of both the United Kingdom’s and Ireland’s asylum system, where persons who have lodged a claim for asylum in one country then travel to the other and make a further claim.

Surely the Eurodac computer system would prevent that. Everybody has to have their fingerprints recorded in the first country of asylum. When they go to the second country and their fingerprints are compared with the Eurodac database, it is found that they have already applied in another country. It cannot happen.

I am afraid that that does not stop it from happening. As I say, we have found that there are cases of this, which is why we have discussed it with the Irish. The noble Lord looks puzzled by that, so I will get back to him in writing on that point. He would be amazed how people get around the little systems in place. We are clear that there is abuse of the system.

I will come to costs in a little more detail later. I am not sure how accurate those costs are, as the figure I had quoted was about £7 million for tourism costs. The noble Baroness and a number of others raised that. The key thing is that we are doing these things because a lot of rules are being broken and a lot of dangerous people are involved in it, which causes a lot of harm to innocent people and puts us at risk. The noble Baroness, Lady Hanham, mentioned that in the 1970s and 1980s, when some terrible things were going on in relation to Northern Ireland and the Troubles, there were an awful lot of other provisions in place at that stage. I was involved in some of those, and they helped us a little more. A lot of those things have been dismantled, for various reasons.

Amendment 108BA would remove the islands—that is, the Crown dependencies—from Clause 46. That would mean that a person coming from the islands would, unlike now, require leave to enter. This would treat the Crown dependencies differently from the Republic of Ireland; they would be treated less favourably. I think the intention is to ask why the islands are subject to Clause 46, and that is the point I will address.

We accept that there is not the same need for heightened supervision of routes from the Crown dependencies to the UK as there is on routes from the Republic of Ireland. We have no intention to introduce routine controls on routes from the Crown dependencies, but we want to continue to treat the CTA as a single entity and to maintain a secure platform for the range of intelligence-led activities which will be necessary at different times and in different places within it. We do not think we can readily differentiate provision for the Crown dependencies without prejudicing those aims—in other words, without prejudicing the status of the CTA. Clause 46 leaves intact the broad framework for the CTA contained in the Immigration Act 1971, including the general provision that those arriving on local journeys do not require leave to enter.

The Crown dependencies were consulted at length. Part of the problem is that, after all the consultations, they were a little surprised when they saw the legislation as it stood. We will have to talk to them a little more about exactly why we have done this, because we believe it is important to keep the CTA as it stands.

Amendments 108A to 108D would provide that persons both arriving and departing from another part of the common travel area are not subject to control. Amendment 108CB would widen the forms of acceptable documentation for travel on air and sea routes between the Republic of Ireland and the United Kingdom. A passport or national identity document provides the most secure way of establishing nationality and identity, and it ensures that carriers may discharge their legal responsibility to transmit valid passenger data. The requirement to carry a passport or national identity card is consistent with practice on all other international routes, and we think that accepting less secure forms of documentation will threaten our border security. The noble Lord, Lord Shutt, gave a very good argument as to why identity was so important—it was also a very good argument for why we should have identity cards, so I thank him very much for that.

Amendment 108CA would allow those who have been issued visas in the Republic of Ireland to enter the UK without leave. We do not think that this is the correct approach. Instead, we will continue to work closely with the Government of the Republic of Ireland, and the Crown dependencies, to secure the external CTA border and explore the merits of a common visa with the Republic of Ireland.

All of these amendments would undermine the clause and prevent the UK Border Agency from carrying out effective border controls on air and sea routes between the Republic of Ireland and the United Kingdom, preventing important improvements in our ability to flexibly combat illegal immigration, trafficking, terrorism and other wider crime.

I will now deal with the Question whether the clause should stand part. The UK already has some of the toughest borders in the world. The e-Borders programme has tracked 80 million passenger movements, leading to 34,000 alerts and almost 3,000 arrests, and we have brought forward the timetable for the full roll-out of e-Borders, including to the CTA.

The UK will continue to work closely with the Irish—as we have done—to tackle the major issues that face us today, from trafficking and terrorism to illegal immigration and drug smuggling. As I say, these are real worries because there is a chink there that is being exploited by the bad guys. As I have said before, we want to continue to treat the common travel area as a single entity, and Clause 46 leaves intact the broad framework for the common travel area that has existed since its inception in the 1920s.

We have made clear the value that we attach to the political, economic and social benefits which the CTA brings. We are committed to maintaining the CTA and preserving those benefits. But we have reviewed, and we will keep under review, the practical operation of the CTA, to ensure that we maximise protections within it and that our arrangements remain fit for purpose. We committed to review the arrangements of the CTA in the 2007 “Securing the UK Border” strategy and the Security in a Global Hub report from the Cabinet Office, and this stemmed from my reviews in 2007.

I have listened quite carefully. If the Minister gets his legislation, what is special about the common travel area? What does it mean any more?

There will still be considerably greater freedom of movement than there is in moving from nation to nation outside the common travel area. The border will effectively be that around the CTA, which is the bit that we are really strengthening greatly; so there will be a difference. It will be different from flying to and from the US.

I do not understand what the difference is between flying from London to Dublin and flying from London to Brussels.

You will carry exactly the same things with you on the plane, because you have to have a way of identifying yourself. It is based on the principle that, once a person has been granted leave to enter one part, they will not normally require leave to enter another part of it while that leave is extant, and provided they do not leave the CTA, this will not change. That will still stand when they are inside the CTA.

We have now reviewed the arrangements of the CTA and committed to implement a number of key reforms. Clause 46 of the Borders, Citizenship and Immigration Bill is the first step in taking these reforms forward. We have been talking with the Republic of Ireland about these things.

We are clear that we are not abolishing the CTA. The CTA is based on the principle that once a person has been granted leave to enter one part, they will not normally require leave to enter the UK while that leave is extant and provided they do not leave the CTA. This will not change.

Since 1997, the Republic of Ireland has maintained an immigration control on third country nationals arriving directly from the UK, including flights between Northern Ireland and the Republic of Ireland. British and Irish passengers are obliged to satisfy an immigration officer that they are CTA nationals. These changes will align our immigration procedures on intra-CTA routes more closely with those of the Republic of Ireland. Similarly, these reforms will align the UK’s CTA immigration controls more closely with its customs controls. UK customs controls already operate on routes between the Republic of Ireland and the UK and the Crown dependencies and the UK, with the exception of routes from the Isle of Man to the UK.

The modest change in the Bill will allow important improvements in our ability to combat illegal immigration, terrorism and wider crime. It should be considered as one aspect of the wider reform of the CTA which will preserve its special nature. Those aims of improving security while preserving the benefits will guide our consideration of any further reforms. We must also recognise the facts of geography. The practical challenges of introducing routine border controls on the land border would entail costs that outweigh any theoretical gain. As with a lot of counterterrorism, you could expend our national wealth on it, and it has to be risk-based. That is not on the agenda.

Some have tried to argue that there is no point in having the new controls on air and sea routes between the Republic and the UK which we propose if they are not replicated at the land border or on journeys from Northern Ireland to Great Britain. But our aim is not uniform and impregnable defences, which are of course unachievable. Our aim is to change the odds and make life significantly more difficult for people who are trafficking, illegal immigrants, other criminals and terrorists. Variable, selective and intelligence-led action can be particularly effective in doing that; we know that historically. CTA reform needs to be considered together with all the other things we are doing to strengthen our border and immigration systems both now and in the next few years.

The e-Borders programme is particularly relevant as it will be the platform used to collect data. The platform will collect and analyse passenger, service and crew data provided by air, sea and rail carriers in respect of all international journeys to and from the United Kingdom in advance of travel. That will allow resources to be targeted on those intending harm to the UK or to deceive the UK authorities, while enabling the majority of bona fide passengers to continue their journey with minimal disruption. The e-Borders platform will receive and process travel document information for 100 per cent of passenger and crew movements by March 2014. Under e-Borders, it is the responsibility of carriers to submit passenger information via pre-defined interfaces to the operations centre in advance of travel.

The legislation will mean that passengers on air and sea journeys from the Republic of Ireland to the UK will need to hold travel documents that satisfactorily establish identity and nationality so that carriers may discharge their legal responsibility to transmit valid passenger data, regardless of whether an immigration control is being exercised on that particular route at that time.

Outside the CTA reforms we are also considering other changes. Under Section 14 of the Police and Justice Act 2006, the police have the power to require carriers to provide passenger data on specified domestic air and sea routes. That power could be extended to cover routes between Great Britain and Northern Ireland. Those routes offer the most suitable screening and intervention opportunities to address vulnerabilities from those crossing the land border between the Republic of Ireland and Northern Ireland but we are not proposing setting up immigration controls on this route or requiring passengers to carry a passport or national identity document.

The Police Service of Northern Ireland and other UK police forces would then be able to use data collected to support intelligence-led interventions to counter terrorism and tackle serious and organised crime such as trafficking.

The Government have yet to complete consideration of when the 2006 power to capture data on Northern Ireland-Great Britain routes would be introduced. We intend to consult in the spring, with the consequent secondary legislation—for affirmative action—being taken forward in autumn 2009.

I was asked many questions and will address some of them now. The Irish are fully supportive of our reform plans. The noble Lord, Lord Teverson, asked whether that means that we do not trust them. I would put it the other way, because the Irish are very keen on receiving the data from us: on that basis, perhaps they do not trust us. Let us put it differently: we both want to be absolutely certain what movement is happening because some of the bad guys are coming from us, from Northern Ireland to the Republic. The programme is there to obtain a handle on how bad they are and what they are doing.

The noble Lord, Lord Shutt, asked whether the plans had been discussed with the Council of the Isles. My right honourable friend Phil Woolas has written to the British-Irish Inter-Parliamentary Body and the British-Irish Council about our proposals.

I think I have covered why we were operating a different policy on the Republic of Ireland and Crown dependencies routes. The Republic of Ireland operates its own separate immigration control and the Crown dependencies are in practice very closely aligned and operationally integrated with those of the UK. Of course, international routes into the Crown dependencies are very limited.

On the Crown dependency-to-UK route, we will increase the frequency of intelligence-led controls and we will not introduce fixed or routine controls or a document requirement to come from there. We have been in negotiation with the Crown dependencies. All I can assume is that this was not quite what they had expected to come out of the prolonged negotiations and we must have more discussions with them.

On consistency with Ireland’s approach, I have already mentioned that since 1997 the Republic has maintained immigration control on third-country nationals.

In response to the noble Baroness, Lady Hanham, the impact statement considers all impacts of public, private and third sectors. I have a very comprehensive breakdown of the costs and so on, and perhaps I may write to her and others who are interested in seeing them.

There will be an impact on terrorism—I mean tourism. I certainly hope that there is an impact on terrorism because that is the whole point of doing the bloody thing—please excuse my unparliamentary language. The point of doing it is to get at the criminals and the terrorists, but there will also be an impact on tourism, although exactly what that impact will be is not quite so clear-cut. Perhaps I may write with the details because the figures are not very precise, but it is appropriate that we should look at that. A balance has to be struck. If the cost is £7 million, for example, we have to ask whether the extra safety that we will get as a result of the measures that we are taking is worth that £7 million.

If there are any questions that I have not covered, perhaps noble Lords will get back to me and I shall try to respond to them in writing on the specific points. The noble Lord, Lord Teverson, raised the question of Schengen. As I said, there is no intention of our being part of that or of going in that direction at the moment. I think that we have more effective and secure borders because we are not part of it, and that is a good thing, bearing in mind some of the risks that there have been in the past.

As I said, I do not regard the decisions on Clause 46 to be consequential on a decision on the amendments, and I should be very grateful if the noble Baroness would withdraw the amendment.

Perhaps I may make a brief intervention. I have taken an interest in the subject of security amid these islands and have alluded to it during this Committee stage. I did not speak to the amendments moved by my noble friend Lady Hanham because I realised the Government’s motivation behind this clause and therefore gave them the benefit of the doubt until I had heard their case.

However, I make one small warning on a matter which the noble Lord mentioned in his concluding remarks, and that relates to the British-Irish Inter-Parliamentary Body. It was founded in 1990, arising out of the Anglo-Irish agreement, and the unionists were not prepared to join it because that was its origin. My noble friend Lord King of Bridgwater, who had been Secretary of State in Northern Ireland at the time that the agreement was signed in 1985, served on the body from 1992 to 1997, when I took his place and served until 2007.

The body has been an outstanding success in improving relations and reducing suspicions between Members of this Parliament and Members of the Dáil. After the Belfast agreement, we were joined by elected representatives from the Isle of Man and the Channel Islands, the Scottish Parliament and the Welsh Assembly. I understand that the unionists are now to join the body, which is a good index of improved relations within Northern Ireland, but ironically it occurs at the very moment when the body is wondering what its purpose will be from now on. At least in the short term, I congratulate the Government on having given a raison d’être to the body, which is shortly to meet for one of its semi-annual plenary sessions in County Donegal—a meeting which may well occur before this Bill concludes its passage through this House. The body meets alternately between the Republic and Great Britain.

The one cautionary word that I utter is that, if this Parliament has had difficulty in knowing what the Government are about, it may well be that, when the group that I have described comes together in County Donegal within the next month or so, it will have the same degree of ignorance of exactly what is happening. I mention quietly—the noble Lord will already have realised this—that, because it is on Irish soil, it will be Irish Ministers who answer the questions.

I thank my noble friend for that helpful intervention. I feel very inadequate as he has a great deal more experience of Northern Ireland than probably many of us here today, except those who live there. I am grateful to him.

I have two questions. I tell the Minister now that I shall withdraw the amendment but I shall come back to it on Report because I think that there are still too many issues outstanding here. At least two of those concern the amount of consultation that has taken place. The Minister says that there has been a great deal of consultation with the Government of the Republic of Ireland, who are in favour of it, and I have nothing that gainsays that. However, I am a little perturbed when he says that he feels that they should probably talk to the Council of the Isles to try to reassure it about what is being proposed. It ought to have been reassured before the measure was put forward—it is too late. Our information is that the consultation process with the islands was not adequate. I hope that by indicating now that I will come back to this, perhaps by the time we get to Report the Minister will have been able to ensure that at least proper discussions have been undertaken with the island authorities so that they are clear and support what is being done in their name.

I am also interested that the British-Irish Inter-Parliamentary Body will be discussing this in a month’s time. Presumably the group has not discussed it before. Again, one would have thought it to be a major body to give consideration to the issue.

There is concern about the Government’s proposals. The Minister said that the common travel area is not being dismantled but it depends how you define the common travel area. If it is to give unfettered movement between one country or countries and another, clearly that is being put in jeopardy by these proposals. The Minister has said a great deal about the bad guys; there have always been problems within Ireland and elsewhere and difficulties with people coming into this country. Indeed, I remember the Troubles very well and the problems there, but at that time there was still pretty much freedom of movement. I am not convinced that the measures are justified. It would be helpful to have a little more idea of how deep the consultations have been, particularly with the islands, and perhaps for us to have some idea of what the Irish Government feel, although the Minister said that they were in favour. For today’s purposes, I beg leave to withdraw the amendment.

Amendment 108A withdrawn.

Amendments 108B to 108D not moved.

Clause 46 agreed.

Clause 47: Restriction on studies

Amendment 108E

Moved by

108E: Clause 47, page 39, line 32, at beginning insert “where leave is granted for the purpose of studies in the United Kingdom,”

We now move to the other “stray” clause in the Bill. I shall also be speaking to Amendments 109 to 110A, and Clause 47 stand part is included in the group so that we can have a wider discussion on what is proposed.

I oppose the clause as it stands as there are not enough safeguards on what the Government are doing, so I shall give a brief outline of each amendment. Amendment 108E would restrict the power to impose a condition regarding studies so that it could be imposed only on migrants who had been given leave for the purposes of study rather than anyone with limited leave to enter or remain. Amendment 109, which is a probing amendment, would limit the condition on studies that could be imposed on someone with limited leave to enter or remain, thereby allowing the imposition of a condition that tied the person to study at a particular institute. Amendment 110 would require the Secretary of State to consider immediately any application to vary a condition regarding studies, and Amendment 110A would ensure that these conditions could not be imposed retrospectively.

The amendments would improve the clause and assist with the intention by ensuring that the scope of the power properly matched its stated intention. In other words, it would allow the permission granted to overseas students to be linked to the particular institution that sponsors them under the points system.

When the Minister replies, will he confirm that if a student wishes to change a course within his sponsored institution, he will be able to do so without having to appeal again or make a new application to the UK Border Agency? Clause 47 appears to allow for any condition to be imposed restricting the studies of anyone with limited leave to enter or remain in the United Kingdom. This could include restrictions that would tie a foreign student to a particular institution and require it to inform the UK Border Agency of a wish to change institution for the purposes of sponsorship and regulation of the points-based system. It could also include restrictions on any migrant with limited leave to remain or enter, including those who are undertaking, or wish to undertake, studies, who are not here as foreign students under the point-based system, migrant workers, those joining partners or other family members and refugees.

I should like to see Clause 47 work effectively and to its purpose. For that, students must be sure of where they stand—hence our amendment on retrospectivity. They must be sure that in any dealings they have with the Home Office if they wish to change their studies within an institution—I hope the Minister will tell me that that is not necessary—or to change institution, it will deal with those applications speedily and efficiently. I have previously raised concerns that a student can get stuck on a course that is wrong for him because he cannot get a decision from the Home Office that would enable him to change his course or institution and he would require sponsorship by the new institution. Can the Minister give me assurances about how those applications will be handled and that they will be done with some speed?

The Minister will recognise, as we do, that the huge majority of overseas students come here to study and, by doing so, to enhance their own learning, skills and abilities and that the reputation of this country relies, to some extent, on their view of what happens when they come here. Many of them bring with them, as they have to, financial assistance to those institutions in the form of substantial fees. We must get right the balance between the need to ensure that people coming to this country to study are bona fide and making it impossible for them to change their course if they are here. If someone suddenly finds that he does not want to be a consultant engineer but a doctor, we must make clear that that can happen, the process by which it can happen and the fact that it can be done in a timescale which will enable him to move from one course or position to another within the ambit of time that would enable him not to get left behind for too long.

I declare an interest as a retired academic, although I still have a number of PhD students, some of whom have not completed their PhDs in the requisite preferred three-year period. Happily, at the moment, I have none from outside the European Union, but several of my colleagues at the London School of Economics do. I recognise this clause as an old friend. We have been through this over many years, and my first question has to be whether the Government have fully consulted Universities UK and whether Universities UK has expressed itself happy with this. On previous occasions over at least the past 10 years, we have had problems when those in Government concerned with higher education have taken one view and those in the Home Office concerned with stopping overstayers have taken an entirely different view, and it has been clear that there has not been a coherent government position. I hope that that is not the case now.

We recognise that there is a problem with overstayers. Nevertheless, we also recognise that, given the nature of research degrees and the quality of research in this country, it is very difficult to tell people that they will spend only three years examining a particular problem. Very often, when you start out on a research degree, it is very difficult to say how long it will take. Over the years, we have seen limitations on how long people are allowed to enter for and rising costs for renewing their visas when the time comes. We are putting obstacles in front of bright young people who want to study in Britain.

Many of us have argued that the answer had to be in the registration of institutions since, as I have understood on several occasions, the problem has been most acute with fly-by-night colleges or second-floor colleges setting themselves up as the London college of whatever it is that attracts people in from obscure parts of the world. It would have been, and remains, relatively easy to sort out which are genuine institutions of further and higher education and which are fly-by-night operations. I am conscious, however, that it is not always as easy as that. I was lobbied on my way home the other night by a woman who used to be my Alexander technique teacher and who is currently training Alexander technique students from Latin America. It takes two to three years to train them through an apprenticeship, and one of her immediate concerns is precisely Clause 47.

I therefore register the unhappiness throughout the higher education sector at this whole process and would like reassurance that there has been very full consultation in government with what I think we are now supposed to call DIUS—no doubt it will have a different name in a couple of months—and effective consultation with Universities UK.

I declare an interest on behalf of Cardiff University and its courses and as a co-opted member of the Medical Schools Council. I apologise to the Committee for not contributing at Second Reading; there was a clash of timing with other legislation.

The amendment raises very important points and highlights concerns that have been expressed about the clause. I will confine my remarks to medicine. Students entering to study medicine at Oxford, Cambridge or St Andrews have no idea when they enter where they will do their clinical studies after their first three years. In fact, where they go depends on how they perform in those first three years, so it is completely unpredictable.

The other difficulty is that the courses are for six years. At the end of the six years, the students have to enter a pre-registration year. Although they are paid and employed, they still fall under the supervision of the undergraduate dean. At the end of the pre-registration year, the Medical Act requires the undergraduate dean to state that the student is fit to be fully registered. The length of the undergraduate course alone does not determine the completion and registration of a medical degree. Without being registered—they are registered with the GMC—their degree has very little currency. The other problem is often that they do undergraduate studies and then wish to progress on to postgraduate studies. Indeed, they come to this country in the first place because that type of training is simply not available in the country in which they have been, because the places are so restricted or because there have been restrictions against the ethnic group to which they belong in their country of origin.

As the noble Baroness, Lady Warwick of Undercliffe, outlined at Second Reading, the amount of money that is brought into this country is not inconsiderable. She estimated that it was more than £100 million. I think that that is probably an underestimate, because postgraduate students come over as well. Those who come over as postgraduate students present a different set of problems. We now have an increasing number of distance-learning courses. The students come across for study days but do a lot of study in their own country on their own clinical base. They then come back for their exams and to graduate. They may be on such a course, which is a part-time course, for up to six years. The length of time will depend to some extent on how quickly they progress through the course and to some extent, as they are adult learners, on what other life events intervene that cause them to require an interruption of study. When they are the lead in their specialty in their own country and they want to undertake postgraduate study abroad, it takes very little to make the workload insurmountable, leading to them having to take a temporary leave of absence from their course.

One difficulty for students on a distance learning course is how much they have to guarantee the maintenance. Perhaps I may refer to the course that I run which takes students up to MSc level. If they come across for a study week, will they have to guarantee that they have maintenance funding for that week when they have already enrolled in a course of study?

During this debate, we have heard much about those of mal-intent, but I do not think that we should underestimate the economic, cultural and scientific advantage to this country of many of the students who come here. We are in very stiff competition for those students with other parts of the world, particularly the USA and Australasia, but increasingly with other countries, particularly in the Far East. The current economic climate means that any students have to be very careful about the fees that they pay and the obstacles which are in their way to coming here.

In summing up, I ask the Minister to confirm that all these points have been considered in discussions that he has had with Universities UK, to inform the Committee how extensive his discussions have been with the Medical Schools Council and to say how postgraduate students on distance learning courses in particular would be affected by this clause.

Once a year, when I was in the private sector, I used to attend one of the remarkable futurology courses put on by the great Herman Kahn, who was a remarkable polymath. On one such occasion, I recall him saying that he thought that the United Kingdom did not need to have great concern about the post-industrial society because there were areas of skills and learning in which we were deeply impressive on a world scale and one of those was education.

For a long time, I have been conscious of the campaign to get students to come to this country. I was directly involved as higher education Minister between 1983 and 1985 when full-cost fees for overseas students were introduced. The legislation for full-cost fees was deliberately ambiguously defined, but not quite enough use was made of that ambiguous definition by some of the higher education establishments.

I also attended the Commonwealth education Ministers' conference in Nicosia in 1984, which frankly was a rerun of the Battle of Rorke’s Drift, as far as the British Minister was concerned. Mr Ramphal, who was then the secretary-general of the Commonwealth Secretariat, saw an opportunity. Normally the Commonwealth education Ministers met every four years, but UNESCO was meeting in Sofia the following year. Mr Ramphal reckoned that most of the Commonwealth education Ministers would be there so he suggested that we should have a one-day follow-up and I was exposed to the problem in an extremely vivid way.

I understand Governments’ 20-year balancing act between ensuring that recruitment to our higher education institutions was reinforced and their concern about individual controls. Hence, I understand the logic of the amendments which my noble friend Lady Hanham has tabled. However, for 24 years, I was a central London MP, in a constituency which had a large number of language schools. Are students in language schools, but not in higher education, covered by this legislation? I assume that they are because I see no wording to suggest that they are not, but it would be helpful to have that confirmed.

In that regard, over that quarter of a century, I had a huge postbag of immigration cases. I was conscious how often Lunar House and the Home Office, on the one hand, and the language schools, on the other, totally lost track of students who had arrived at a language school and might well have disappeared into the larger community. I am sympathetic towards, and supportive of, what the Government seek to do. I also wholly understand the questions raised by my noble friend.

First, I declare an interest: I am chancellor of a university. It is interesting to see how many Members of the Committee are involved in education, which, in many ways, I find reassuring.

I thank the noble Lord for that warning before I say anything else.

In speaking to this group of amendments, I do not regard the Question that the clause stand part to be consequential on any decision on Amendments 108E, 109, 110 and 110A. I have listened very carefully to a wide range of points made in the debate on the amendments and more generally on the clause. I must resist the amendments, but I want to go into the reasons very carefully. I do not apologise for going into detail in this longish script. I went through it in great detail with my team to ensure that it answered most of the questions. I think that is useful for Hansard and the Committee.

Members of the Committee may be aware that we have reconsidered the proposed policy for tier 2 with regard to the maximum length of leave. We have changed our policy and will now grant a tier 4 general student studying a course at degree level or above leave to enter or remain for the duration of their course, as under the current system. I think this is a significant change and one which makes a lot of sense. I am grateful for the conversations I have had with a number of Members of this Committee in reaching this decision. I am sure noble Lords will appreciate that the change is intended to ensure that international students wishing to study comparatively longer courses, such as medicine, are not deterred from coming to the United Kingdom to undertake their studies.

Thus, I hope I have provided the House with reassurance that flexibility in the rules allows the Government to make very rapid decisions such as this. This is a fundamental part of the points-based system but, for understandable reasons, primary legislation is needed to underpin certain aspects of the system. Clause 47 is thus essential to the operation of tier 4 as it allows for the control of foreign students once they have entered the United Kingdom to study at a licensed institution.

It is the Government’s intention that the restriction on studies would be placed on those migrants granted leave to enter or remain as tier 4 migrants; that is, students. Furthermore, such a restriction will restrict a migrant to studying at a specified institution, rather than restricting their chosen course of study. I say to the noble Baroness, Lady Hanham, that I can provide an absolutely clear and unequivocal reassurance to the Committee that the Government do not intend to use this provision to prevent students from moving courses within the same sponsoring institution. By imposing a restriction on a migrant, so that he can study only at a specified institution, he would have to apply to the UK Border Agency to vary the conditions of his leave should he wish to change institution. This will allow the UK Border Agency to check that the institution to which the migrant wishes to move is a bona fide education provider, with a sponsor licence. Having the ability to link a student to a particular licensed institution is integral to the successful operation of tier 4, the student tier of the points-based system.

I note that these amendments seek to probe why the Government believe the clause should provide a broad power to restrict a person’s studies. I understand why Members of the Committee may wish to restrict this power further so that, on the face of the Bill, we are very specific about what this restriction means and on whom it may be imposed.

However, it is usual practice for the overall architecture of the immigration system to be set out in primary legislation, with the Immigration Rules containing the detail of how the power will apply. While I appreciate that noble Lords may have their reservations about this approach, the ability to amend the Immigration Rules, rather than having to amend primary legislation, is an essential tool which is vital to ensure that necessary legislative changes can be implemented quickly and effectively, as shown with the point I mentioned about the maximum length of stay for people doing a study.

As Members of the Committee will be aware, we take seriously our duty to consult widely before making changes to the Immigration Rules and, more often than not, our rules have been prayed against to allow the opportunity for debate in the House. With that in mind, Clause 47 was deliberately drafted in this way in order to achieve consistency with the wording used in relation to the imposition of other conditions under Section 3 of the Immigration Act 1971—in particular, the condition restricting a migrant’s employment or occupation.

Under the skilled-worker tier, tier 2, of the points-based system, the Immigration Rules set out the conditions on a migrant’s employment, including a restriction on taking any employment other than with his licensed sponsor, supplementary employment that is outside of his normal working hours and voluntary work. We envisage that the condition this clause will allow us to impose on a migrant in relation to his studies will operate in much the same way, with the Immigration Rules specifying where these restrictions will apply, clearly stating that the restriction will be in relation to where the migrant studies and will be imposed on those granted leave to enter or remain under tier 4.

As I explained earlier, a student applying for leave to enter or remain under tier 4—the general student category of the points-based system—will be granted leave for the duration of their course. With such potentially long grants of leave that will cover a student’s entire course, it will be of even greater importance that we make clear the procedures a student will need to follow should he wish to change to a new institution.

I must resist Amendment 110 because I am confident that the revised guidance, which I will address shortly, that will be published when we make changes to the Immigration Rules in order to impose this condition on tier 4 students, will specify exactly what a student will need to do if he or she wishes to change institution, in terms of the requirement for him to submit a new application to the UK Border Agency. The revised guidance will also make clear the likely timeframes for consideration of an application, so that a student is able to submit his application to allow him to take up his studies at the new institution in good time.

I also think it would be inappropriate to specify in primary legislation that this type of application merits more prompt consideration than any other type of application for leave to remain as Amendment 110 suggests. Other applications for leave to remain may have equally or more compelling reasons for immediate consideration, and for which a migrant is paying a fee and expecting similar high standards of customer service.

Provided a student meets the points requirement for tier 4, which he will be able to do by having a valid visa letter from a UK Border Agency-licensed sponsor and by meeting the maintenance requirement for extension applications, the application to change institution should be relatively straightforward and therefore considered within our published service standard timescales for postal and in-person applications.

The border force aims to decide 70 per cent of postal applications within 4 weeks, 20 working days, and 90 per cent within 70 working days. In addition, albeit subject to higher application fees for a premium service, the border force aims to decide 90 per cent of applications made in person at a public inquiry office within 24 hours.

Turning to Amendment 110A, we believe that amending the clause in this way will seriously undermine one of the key parts of tier 4 of the points-based system, essentially creating two distinct categories of student; namely, those granted leave to enter or remain under tier 4 before enactment of this clause and those granted leave under tier 4 after enactment. Let me first make clear to Members of the Committee that the provisions of subsection (2) are not retrospective. While we wish to be able to add the condition to all those who have been granted leave as a tier 4 student, if such a student changed institution between the launch of tier 4 and Royal Assent, without notifying the UK Border Agency of this change, he would not be subject to prosecution under Section 3(1)(c) of the Immigration Act 1971, nor would he be subject to removal under Section 10(1)(a) of the Immigration and Asylum Act 1999 for breaching his conditions of stay.

Furthermore, there is no intention to impose this condition on any of the students already in the United Kingdom under the terms of the current student rules that will be deleted on the introduction of tier 4. Only those students that UK Border Agency-licensed education providers bring to the UK under tier 4 from the end of March, or those existing students who will need to apply to extend their leave to remain under tier 4 after its launch in March, will be subject to this condition.

It may be helpful to the Committee if I explain how we will implement this condition. As soon as we have secured Royal Assent, it is our intention to amend the Immigration Rules, specifying that in addition to the conditions restricting a student’s employment, we will also add a further condition restricting the student to studying at the educational institution that is acting as the student’s sponsor under tier 4. As is usual practice, the Immigration Rules will be laid before Parliament for 21 days before coming into force, and we will look to publish revised guidance for tier 4 students around what this change will mean for them when we lay the rules.

Once the rules are in force, the UK Border Agency will write to all migrants who had been granted leave to enter or remain under tier 4, informing them that they will, from the date of the letter, be subject to this condition. Hence, the condition will apply only from when the student is notified. At the same time, we will also inform these students of the potential consequences of any subsequent breach. Once subject to this condition, a tier 4 student would need to apply to the UK Border Agency to vary the conditions on their stay before moving to a new institution.

If we were not able to apply this condition to those granted leave between the launch of tier 4 at the end of March and enactment of the clause, there would be a pool of students who could move institution without our approval throughout the duration of their stay. We have revisited the policy on the maximum length of leave a student may be granted so that he may be granted leave for the full duration of his course, which could be five, six or even seven years in some instances. It is vital that the conditions of stay are applied equally to all students in the United Kingdom under the new system. If this were not the case, genuine students would risk being duped by bogus colleges which may charge high fees for non-existent courses. These colleges damage the UK’s excellent reputation for education provision abroad, which has been referred to by a number of speakers, not least the noble Baroness, Lady Finlay. The noble Baroness referred to value. These students are of great value to the United Kingdom, both culturally, as has been said, and financially, to the sum of £2.5 billion in tuition fees alone last year. That is a very significant amount of money and it is very important for this nation.

Applying this condition to all those granted leave under tier 4 will make it much simpler for all such students to understand what is required of them when changing institution. It will be easier for the education providers that advise their students on what they will need to do when seeking to change institution. Applying the condition across the board to all tier 4 students will mean there is just one process for all. I do not apologise for going through that background because it is important to understand where we are coming from.

The noble Baroness, Lady Hanham, asked how applications will be considered. Provided the student meets the points’ requirement for tier 4, an application to change institutions should be very straightforward and will be considered within our standard service timescales, which are clearly laid out, and I touched on them earlier. The noble Lord, Lord Wallace, asked whether we have fully consulted with Universities UK. Yes, we have consulted it on this provision. Officials at the Home Office and the UK border force have regular meetings with Universities UK to consult on tier 4 of the points-based system.

The noble Lord, Lord Wallace, and the noble Baroness, Lady Finlay, asked about PhD students. As now, we will grant leave for the duration of the student’s course, as specified by the sponsoring education institutions. If a PhD student does not complete his course within this time period—I know that happens because, goodness me, they really go on sometimes—he will be able to apply for an extension of his leave. The revised maintenance requirement for extension applications recognises the progress that a student has made to date without recourse to public funds.

The noble Baroness, Lady Finlay, mentioned distance learning. Students who come to the UK for short periods of study and do not intend to work will be able to come as student visitors. That route sits outside the points-based system and does not require the same sponsorship and maintenance requirements as under tier 4 because they may only stay for up to six months and cannot work. The tier 4 requirements do not apply. The noble Lord, Lord Brooke, asked whether students in language schools were in higher education. The answer is yes; students who intend to study are counted within this category.

I hope that that covers most of the extra points. Perhaps Members of the Committee will come back to me if there is anything that I have not covered and I will get back to them in writing. I hope that this response deals with the Question that Clause 47 should stand part of the Bill and I would be grateful if the noble Baroness would withdraw her amendment.

I am most grateful to the Minister for having addressed those points. One outstanding point on which I would appreciate clarification is that of foundation year 1, which comes after sitting finals but before going onto the medical register. I feel it would be appropriate to give notice that I have tabled a Question relating to this for tomorrow, and I will pursue this further then.

I thank the Minister for that extremely helpful and constructive response. I would be certainly be willing to withdraw my opposition to Clause 47 standing part, subject to the noble Baroness, Lady Hanham, doing so, but I wish to stress a few issues further. The bogus college issue has been with us a long time; in this House, we have been round it for 10 years or more. There have to be other ways to get at it. It is relatively easy, when our missions abroad consider visas, to tell them which are the reliable further and higher education colleges and which are not. That is always raised by the Home Office in this context, and it is not half such a difficult problem as some others.

We all wish to emphasise that effective co-ordination between the Home Office and the Department for Innovation, Universities and Skills is an important part of this process. One cannot stress too much that at the top end of our education market, dealing with visiting students sympathetically is important in a host of ways. In the scientific and medical fields, there is the contribution that makes to British scientific and medical excellence, and the extent to which that maintains an international scientific community. In the social sciences, we are talking about soft power and cultural diplomacy.

I was sitting here thinking that among my own former students I now have only two Commissioners of the European Union, one head of state and a couple of deputy foreign ministers, but if I were to add the other members of my old department at the LSE we could come to a moderately decent number of politically influential people. It is important to maintain them as friends of the United Kingdom as they pass from one generation to another, so it matters how we treat them. Part of what we need to get across is that we will deal with them sympathetically and not treat them all as potential criminals and, while we all know the Home Office of old, we hope that in this respect the Home Office recognises that one has to keep some doors open as well as having one or two closed.

I, too, thank the Minister for an illuminating and extremely helpful reply, because he has made clear a process that was not at all clear before. As long as I heard the Minister correctly, his reply demonstrated a sort of sympathy and pragmatism toward students. First, those who may want to change their course within the institution that sponsors them will, as I understand it, be able to do so without coming back to the UK Border Agency. Secondly, for those who need or want to change institutions, there should be a reasonably rapid turnover from the agency as long as that institution is licensed to sponsor and they have the sponsoring letter. That was really what the amendment was all about, and we have had a clear explanation from the Minister. Unless I choke when I read Hansard afterwards, I may not need to return to this issue. I shall not say that I definitely will not, but for today I beg leave to withdraw the amendment.

Amendment 108E withdrawn.

Amendments 109 to 110A not moved.

Clause 47 agreed.

Clause 48 agreed.

Amendment 111

Moved by

111: After Clause 48, insert the following new Clause—

“Fingerprints and samples taken under port and border controls powers

(1) The Terrorism Act 2000 (c. 11) is amended as follows.

(2) In paragraph 14(2) of Schedule 8, for “The fingerprints” substitute “Subject to sub-paragraph (2B), the fingerprints”.

(3) In paragraph 14 of Schedule 8, after sub-paragraph (2A) insert—

“(2B) Fingerprints or samples taken from a person detained under Schedule 7 must be destroyed within one month after the date on which the fingerprints or samples were taken, unless the person has given his or her written consent to retain the fingerprints or samples beyond this period.

(2C) Sub-paragraph (2B) does not apply to fingerprints or non-intimate samples taken under paragraph 10(4)(b).””

On Friday 31 October, I had a telephone call from Mr Yousif al-Khoei, the distinguished head of the al-Khoei Foundation, which is a Shia charitable and religious organisation in north London, about the detention of a British imam who had arrived earlier that day at Heathrow Terminal 1 on a flight from Damascus. I spoke to immigration officials at Terminal 1 three times—the third time, to the chief immigration officer—and was told on each occasion that no British citizen was being detained, although on the third occasion I was asked whether I might have been talking about somebody with a slightly different name.

Finally, the helpful immigration duty officer to whom I spoke at about 20.30 told me that the imam had been arrested on the landed side of immigration control, and was under investigation by the Special Branch. She got the senior Special Branch officer on duty at Terminal 1 to ring me at my request, and he confirmed that the imam, Mr A, had indeed been detained for questioning, that he had been fingerprinted and had a saliva DNA sample taken, and that he had then been released after something like two hours. A minicab sent by his wife to fetch him from the airport was waiting all that time. The numerous questions asked during the interview, I subsequently discovered from Mr A, mainly concerned the reasons for his frequent visits to places such as Syria and Kuwait, and he answered that he attended religious conferences and meetings in those countries.

Later, Mr A sent me a copy of the notice that was served on him under the Terrorism Act 2000, a copy of which I have passed to the Minister, explaining that the requirement to be questioned did not necessarily mean that the examining officer suspected him of being concerned with acts of terrorism, but was in order to enable the officer to discover whether he was such a person. The notice required him to give the officer any documents of a kind specified and said that the officer had the power to examine his luggage and to detain anything, including a document which the search revealed. The notice said nothing at all about Mr A’s duty to give biometric samples; so, as my first question, is an examining officer supposed to notify the person separately of the intended taking of samples? If he is not, why is that not referred to in the main notice of examination served on a person at the airport under the 2000 Act?

Following that incident, I looked up Schedule 7 to the Terrorism Act 2000, which quite properly gives the examining officer power to stop a person at a port in the border area, to question the passenger, to search him and his luggage and to detain any item of his property, while Schedule 8 provides that an “authorised person” may detain the passenger being examined. However, the taking of fingerprints and biometric samples is regulated by a different statute, the Police and Criminal Evidence Act 1984. It appears that the power to demand these samples does not even require that the examining officer suspects that the person has committed a criminal offence. In the case of Mr A, he was being examined not as a suspect but, as I explained, to determine whether he was a suspect. Nothing said in the course of the interview would have given the officer reason to suspect that he had committed any terrorist offence. Can the Minister confirm that the power to demand samples from a person being interviewed for this reason under the 2000 Act does not rely on any evidence that the person has committed such an offence?

It appears, further, that under Section 64 of the 1984 Act as amended, fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken. In the case of Mr A, the Special Branch told me that the samples were to be retained indefinitely. Although I got no elucidation of the purposes, I imagine that the idea is to build up a vast database of samples, which can be compared at later dates with biometric information obtained from crime scenes, whether terrorist or of any other kind. As of four months ago, I understand that there were 5 million samples on the National DNA Database, of which something like 850,000 related to persons either subsequently acquitted or not charged with any offence at all.

On December 4 the European Court of Human Rights, in the case of S and Marper, ruled that the indefinite retention of biometric samples from innocent persons was a violation of Article 8 of the ECHR, on the right to respect for personal and family life. I wrote to the Secretary of State the following day, referring to the case of Mr A, drawing attention to the judgment and asking her to make a statement that she intended to destroy the samples of persons who were acquitted or not charged with any offence. In a reply dated 14 January, Mr Vernon Coaker, the Minister of State, said that the Government were considering the implications of the judgment and would agree with the Council of Ministers on how to implement it. For the time being, the law on the taking and retention of DNA samples and fingerprints would remain in place. I noted from an Answer that the Secretary of State gave to my honourable friend Mr Chris Huhne on January 14 that among the profiles on the database were 137,000 relating to children under 16 and that she had taken steps to have removed those that related to children who were under 10.

The Government have now had three months to consider the S and Marper judgment and consult the European Council of Ministers. Can they give us an update on the number of profiles now held and on how many of them are of people either acquitted or not subsequently charged? Or are they continuing to collect and retain samples, and how many have been taken since the date of the judgment, 4 December? Will they now say what consultation they have had with the Council of Ministers and issue a detailed statement on the steps that they are taking to bring us back into compliance with Article 8? Have they suggested any other means of achieving this than the destruction of innocent people’s samples?

Everybody accepts and recognises the importance of combating terrorism, but if the Government think that it is necessary to sacrifice human rights for this purpose, we have to disagree. It is our human rights and the rule of law that we are defending against the terrorists. A society in which everyone’s personal data are kept on record just in case they may commit a crime in the future is not our vision of the future of this country. I beg to move.

The new clause gives us an opportunity to open up the question of the retention of biometric substances, fingerprinting falling within that, and I share the concerns of the noble Lord, Lord Avebury, about the fact that we have not yet responded to the European directive. I think that an order is coming up in the very near future, which I hope will indicate that we are about to take some suitable action.

This clause relates to the fingerprinting of foreign criminals liable to automatic deportation. I want to ask the Minister, first, the reason for taking those fingerprints. I presume that it has something to do with stopping them coming back in. Secondly, how long is automatic deportation taking? We all know that a number of criminals are waiting to go. We are foxed at every turn, it seems, by the legal system. If their fingerprints have been taken and are still within our purview and control, I am not sure about the relevance of the fingerprinting to which the clause refers. Perhaps the Minister would be kind enough to tell us what is going on.

I had the great privilege yesterday to visit the National DNA Database at Hendon and spent a very informative morning. I learnt that there are instances when it is extremely useful to have on file the DNA records of people convicted of a criminal offence. Some detail was gone into about exactly how they were used. However, in the instance that my noble friend talked about, where an innocent person’s records were taken and stored—it could apply to anybody coming through immigration—what provision have the Government made in the design of the database and the way that it operates for the deletion of innocent people’s material? We know that it is very difficult: you have to go to the chief constable and get special agreement from him, which almost never happens. Is the database in any way designed so that deletion can take place without it being an incredibly time-consuming and expensive process? In the light of the European ruling, should not the Government be thinking about that urgently?

While I appreciate the thrust of the inquiry of the noble Lord, Lord Avebury, about the status of Schedule 8 to the Terrorism Act following the judgment in the case of S and Marper, I should be clear that I believe that the amendment would compromise the UK’s security.

As the noble Lord noted, my honourable friend the Minister for Policing has written to him explaining the Government’s view on the case of Mr A. I believe that that reply still stands in this case. If it might be helpful to the noble Baroness, Lady Hanham, I would be very happy for her to see a copy of that letter, which explains the detail behind that case.

As noble Lords may be aware, in the light of the judgment of the European Court of Human Rights on 4 December 2008 in the case of S and Marper, we are now considering how to implement it in a way which recognises the value of fingerprints and DNA data in protecting the public. A key part of the implementation process will be to engage in a public consultation on how best to bring the judgment into effect. Progress on implementation of the judgment is subject to review by the Council of Europe’s Committee of Ministers, and the Government have submitted a report for the committee’s next meeting on 19 March. The judgment recognises that other jurisdictions do not apply a blanket destruction policy to biometric data of those arrested and not convicted, but indicates that there is a need for a retention policy to reflect the fact that they were not ultimately convicted.

As the Home Secretary explained in her speech to the Intellect trade association on 16 December, the Government will publish a forensics White Paper later this year. Included in it will be the Government’s proposed response to the S and Marper judgment. There are clauses in the Policing and Crime Bill which are intended to allow for regulations to be made which set out the detailed provisions on the retention of fingerprint and DNA data. The contents of the consultation paper and the outcome of that process will inform the content of the regulations to be submitted to Parliament. 

The ability for police Special Branch officers to take fingerprints and samples at ports of entry has become an increasingly important tool in countering the activities of known or suspected terrorists. We would not wish to undermine the thrust of policy in relation to the strengthening of border controls—through, for example, biometric visas—by weakening this specifically counterterrorism measure. It would not send the right message to those who pose a threat to the UK or reassure the public at large.

In 2006, the independent reviewer of terrorism legislation, the noble Lord, Lord Carlile, wrote to the then Home Secretary following a meeting with operational counterterrorism police officers. The noble Lord endorsed the use of fingerprints taken at ports, under Schedules 7 and 8 to the Terrorism Act, and considered them to be of potentially considerable value in the investigation and intelligence-gathering work of the police at ports.

In the context of international travel, it is not unusual for individuals to enter or leave the United Kingdom for periods exceeding one month. It is obvious that the value of the police checking and capturing fingerprints at a port and holding them for a month in the context of a long-term visit or period of study is limited for counterterrorism purposes while the suspect remains in the UK beyond one month. Furthermore, should information be received from, for example, abroad, the police’s efforts to identify a suspect who may be involved in terrorism, or perhaps locate how he left and entered the country, would be undermined dramatically if fingerprints had to be removed from records.

Without wishing to prejudge the outcome of the Marper consultation, our view is that restricting the retention period to the extent that the amendment proposes would severely hinder the authorities’ efforts to counter and investigate terrorism and the movements of suspected terrorists, and, potentially, remove a hindrance on terrorist activity provided by the examination powers in Schedules 7 and 8. However, we will of course revisit all those issues as part of our consultation.

The noble Baroness, Lady Hanham, asked about the reasons for taking fingerprints. The proposed power to take fingerprints allows us to fix the identity of the individual whom we have put in prison for crimes in the UK and whom we wish to remove from the UK. Then we have a record when he tries to come back into the country. That is the reason for the specific measure in the Bill. Those individuals whom we seek to remove are those who have been sentenced to up to 12 months in prison and are eligible for automatic deportation under the UK BordersAct 2007.

The amendment in Clause 48 is a very minor amendment to the UK Border Agency’s existing powers. I hope that that provides an answer to why we are taking fingerprints.

On the specific amendment—and bearing in mind that a consultation is ongoing—I hope the noble Lord will await the Government’s wider response to S and Marper, as committed to by the Home Secretary. I ask the noble Lord to withdraw his amendment.

Consultations, consultations, consultations—but it depends who you consult. Will we at some stage be able to know who is being consulted? The people who tend to get left out of consultation are those who live in this country—the inhabitants. There is always consultation with lots of organisations, but it looks as though the ordinary man in the street, who at the moment, if you tested him, would think that the whole thing of DNA and fingerprints was totally alien, may not get consulted. Will the Minister assure us that he will be?

Perhaps I can get back in writing on exactly who will be consulted. I do not necessarily share the noble Baroness’s view; the average man in the street often sees DNA as rather important, particularly in a case such as the one the other day when someone was found guilty of rape and killing a girl some years ago. The matter is not as clear-cut as might be said. DNA is an extremely useful tool and I do not think that the average man in the street necessarily is against it. However, this is a highly complex area, which merits much further debate. I have been told by my Box that there will be public consultation.

We are not arguing here about whether it is right to take fingerprints or DNA samples; that is taken for granted nowadays, but people are concerned about the extent to which these samples are stored on the national database. I believe that our system has more personal profiles on it than any other country in Europe, but that may be effective in enabling us to catch criminals. It is not the principle of taking samples in the first instance that we are discussing here but the indefinite retention of samples from innocent persons. I am most grateful to the noble Baroness, Lady Hanham, and my noble friend Lady Miller for their support for that principle.

With respect, the letter from Vernon Coaker did not explain the detail. He went into the question only of how a person could be detained under Schedule 7 to the Terrorism Act; he did not explain how Section 64 of the 1984 Act allows the samples to be taken and retained indefinitely. That is the point of the amendment.

I am very glad to hear that the Government are considering how to implement the S and Marper judgment. Is there any time limit for that process in the ECHR? It was on 4 December last that the judgment was issued, and I am certain that the Council of Ministers would not be happy about an indefinite extension of the time within which the Government must comply with the judgment. They say that they are exploring this by means of a public consultation. I was not aware of that, to be quite honest, and I would be grateful if the Minister could place details of the public consultation either on the Home Office website or in the Library of your Lordships' House so that we can all engage in the discussion.

I shall certainly ensure that we put those details on the website. I hope that we can put some sensible timescales to it as well. I shall see if that can be done.

I am most grateful for that. Could the report that was submitted to the Council of Ministers—this month, I think the Minister said—also be placed in the Library? We want to know what the Government’s interim thinking is. I take it that the consultation and the report to the Council of Ministers are not being undertaken in a vacuum and that Ministers have certain ideas on what should be done to implement the S and Marper judgment. I am just curious to know, if the Minister can tell us this afternoon, what conceivable way there can be of implementing the judgment other than by the destruction of the samples.

Obviously, one realises that in the first instance, when the samples are taken, you do not know whether the individual will be charged with an offence. But since the purpose of the Schedule 7 interrogation at the airport is to ascertain whether a person is a suspect or not, one would think that the information then obtained would enable the police—and, in particular, Special Branch—to determine that, and thereupon either to destroy the samples or to pass them to the prosecuting authorities, which will issue a summons for the offence in question. If neither of those things happens and, after two years, let us say, the samples have not been used to incriminate the person on any other offence that may have been committed in the mean time, by a comparison of the DNA or fingerprint samples, surely it would be time to destroy them. Could the Minister give some assurance at least that he is not intending to maintain the indefinite retention of the samples? That would be a step in the right direction.

The position on timing is that there will be a paper before the summer with draft regulations, which will go before Parliament by the end of this year, and this stuff will be put on the website. I see no reason why the response to the European Court should not be seen as well. I will probably get into trouble for saying that, but I see no reason at all why it cannot be made available, so I shall ensure that that is done.

The issue is not as straightforward as one might think. The judgment was complex in some ways, and I do not think really that it would do much good for me to go into some of the detail of it now, although I have a huge page of speaking notes with all the complexities of it. We are looking at this matter, and there will be consultation. We are going back to the court about this. Clearly, we will have to recognise the judgment of the court, which we do, and implement its findings. It indicated that our blanket policy of retaining fingerprints and DNA of people who had been arrested but not convicted, or of those against whom there was no further action, was in breach of Article 8. However, then there are a lot of complexities. Clearly, we will absolutely take notice of that and not do that, but the complexities mean that we have to go into this in some detail.

The bottom line was that we cannot retain the samples indefinitely without being in breach of Article 8. I am very glad to note the Minister’s assurances that the public consultation documents will be placed in the Library and that we shall also see the submission to the Council of Ministers this month. On the basis of those assurances, I beg leave to withdraw the amendment.

Amendment 111 withdrawn.

Clause 49: Extension of sections 1 to 4 of the UK Borders Act 2007 to Scotland

Debate on whether Clause 49 should stand part of the Bill.

I do not oppose the principle of Clause 49, although the word “thinks” occurs in the drafting, which might well be replaced by “reasonably suspects” or “is satisfied”. However, I am greatly concerned about detention in England and in Scotland. Therefore, I tried to table a modest probing amendment as a new clause before or after Clause 51. The Public Bill Office told me that that had already been tabled by my noble friend Lord Ramsbotham. I therefore asked to add my name but, later, the amendment was disallowed and did not appear in the first Marshalled List. This was hard to understand, since other amendments containing new clauses were accepted.

My noble friend’s amendment would have stated that,

“detention shall be for the shortest possible time”—

and only—

“where there are no alternative ways to ensure compliance”.

Such words would enshrine the language of Chapter 38 of the Home Office operational enforcement manual. Will the Government produce their own amendment along these lines or, better still, set statutory time limits for detention prior to deportation or more generally? Such limits exist in several European Union states, often specifying six months or less. Can the Minister tell the Committee what use is being made of bail, tagging and reporting as alternatives to detention? Why were the automatic bail hearings, provided in 1999, abolished by the 2002 Act? The numbers involved are not large, yet the cost to taxpayers is high. It has cost £96 million this year and will cost £107 million next year. I am sure that your Lordships will agree that it is wrong in principle that people should be held indefinitely, often without legal advice and usually without any judicial hearing at all.

In January, the London Detainee Support Group published a useful report called Detained Lives. It shows that up to 3,000 people are detained under immigration powers at any one time. It studied 188 cases of individuals who were held for one year or longer in prison-like conditions. The report is particularly good on the human consequences of indefinite detention. A significant number of detainees develop mental health problems or attempt suicide or self-harm. Riots and destruction of property are other bad consequences.

I will now quote two particular cases. The first is that of Mr Ahmed Abu Bakar Hassan, aged 24. He comes from the Massaleit ethnic group in Darfur. In Sudan he was a political activist, opposing the persecution of his people. He was forced to flee the country and arrived in Britain in October 2004. His asylum was refused. When he was told to leave his government-funded accommodation, he slept rough in parks for a while. He eventually claimed asylum again in another name, not knowing that it was a crime to do so, and hoping that he would be given somewhere to live. He served four months in prison and was then detained. He has agreed to return to Sudan, but the Sudanese embassy has refused to admit him. He has been detained for 28 months since finishing his sentence in October 2006.

The second case is that of Mr Ali Saifi. He is aged 27 and lived in Birmingham when he arrived in this country in 2002. He received no benefits or support from the Government, since he was never advised that he may be entitled to asylum support. As an asylum seeker, he did not have the right to work. However, he worked informally on building sites for a while, but lost his job because he did not have any papers. He moved to London and ended up on the street. He stole food from a market to eat and was arrested and convicted of theft. Early in his sentence he applied for early deportation, signing to forgo his right of appeal. However, the Home Office—not, perhaps, for the first time—had lost his passport and the Algerian embassy refused to give him a travel document. He has been detained for 22 months since April 2007.

The men in the two cases quoted were de facto stateless, but according to the Home Office there were only 25 stateless people held at a recent date. Statelessness is therefore not the main cause of detention. I conclude by asking if the Government are studying the report that I mentioned, and whether they will respond to its recommendations at least by Written Statement. Will they take full account of the criticisms by the Council of Europe’s Commissioner for Human Rights? In April 2008 he urged the Government drastically to limit administrative detention of migrants, and to introduce a maximum time limit. Will the Government also examine methods used in Sweden and Australia to achieve high rates of voluntary return for unsuccessful asylum applicants? The issue of detention has come up regularly over the last 20 years, and its improvement is long overdue. I look forward to the Government’s response.

I greatly respect the interest of the noble Lord, Lord Hylton, and what he has done in this particular area. I have listened with great interest to what he has said, but the issues that he raises are not within the purposes of the Bill. Rather than detain the Committee, I commit to writing to him about the very important issues that he raises.

While we are considering Clause 49, I ask the noble Lord why this clause is in the Bill at all. When the UK Borders Act 2007 went through your Lordships’ House there was great discussion, in which I took part, about why Scotland was not included in the provision that enabled a designated immigration officer to arrest somebody whom they suspected. We were told that it was quite unnecessary because the police would always be present at a port in Scotland. I remember arguing that this was not the case and that the Scottish border would leak like a sieve. Can the Minister tell the Committee why the Government have changed their mind on this matter? I think it is excellent that they have done so, but I wonder what their reason is. I am sorry that I did not give the noble Lord notice of my query, but as the clause is being considered, I wonder if I might ask.

I understand that it was because we had quite a dialogue with the Scottish legal system about how the police can be used in a port. This was related to the holding of someone for three hours before anyone came. It is quite right that that provision has not been required in Scotland in the past. As a result of that discussion, we had to make some changes because immigration is not a devolved issue. It was related to those relationships. That is exactly as I understand it. I can go into more detail in a Written Answer if the noble Baroness would like.

I thank the Minister but I do not need any more detail; I just wondered what had happened. Clearly, the Government have decided that they were wrong last time and have changed their mind. That is very good news.

Clause 49 agreed.

Clause 50: Transfer of immigration or nationality judicial review applications

Amendments 111A and 111B had been withdrawn from the Marshalled List.

Amendment 111BA

Moved by

111BA: Clause 50, page 41, line 1, at end insert—

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

(a) the British Nationality Act 1981 (c. 61);(b) any instrument having effect within paragraph (a); or(c) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas Citizenship.”

Clause 50 is concerned with judicial review in Part 4 of the Bill. The Tribunals, Courts and Enforcement Act 2007 set up a new system of tribunals, but the transfer of immigration and nationality judicial reviews was excluded. What was the purpose of, and reason for, that? The noble Baroness, Lady Ashton of Upholland, told us in Grand Committee that judicial reviews in immigration cases were particularly sensitive, as indeed they are. They engage absolute rights against torture and inhuman and degrading treatment, and involve complex issues under the Human Rights Act. The noble Baroness also said that there was no question of removing the statutory bar on the transfer of judicial reviews at that time because it would be necessary to review how the transfer to the Upper Tribunal of all the other tribunals had worked in other less sensitive cases.

In Grand Committee, the noble and learned Baroness, Lady Butler-Sloss, supported the noble and learned Lord, Lord Lloyd of Berwick, in relation to the requirement to have someone of the level of a High Court judge to hear a judicial review in the tribunal. She said it would be invidious for there not to be a judge of that rank dealing with it. Your Lordships will recall at Second Reading that the noble Baroness, Lady Ashton, was inclined to support this clause, not for any reason other than the pressure on the judiciary in the administrative court by the number of judicial reviews that are brought in immigration cases. However, after arguments in all directions, eventually a compromise was struck in which the Government accepted that, if they sought to remove the exclusion of these types of cases, it would be only by way of primary legislation, which is no doubt why this clause appears in the Bill.

The noble Baroness, Lady Ashton, also accepted that the removal of the exclusion should not be contemplated prior to there being an opportunity to review how the Upper Tribunal worked. That was the position only some 18 months ago. The Upper Tribunal commenced its work in November 2008, only two or three months ago, but the consultation on the inclusion of the Asylum and Immigration Tribunal in the two-tier tribunal service was started in August of 2008, before the Upper Tribunal ever came into existence. It was a Home Office-led consultation. The working group included representatives of the judiciary and the Home Office, but no other body was involved in that working group.

The consultation set out two primary aims, which are interesting. The first was to reduce the immigration workload of the High Court and the Court of Appeal judiciary. The second was to assist the Home Office in its immigration work, particularly in relation to the speed with which asylum claims are dealt. Relieving the load on the one hand was of interest to the judiciary and getting immigration business through was of interest to the Home Office. All the previous assurances that this House received that it would not happen until the Upper Tribunal was up and running and we were able to assess how it worked fell by the board.

As was recognised when we were discussing the Tribunals, Courts and Enforcement Bill, immigration judicial reviews may be especially contentious because of the failure by the Home Office as a litigant—as a party—to show proper respect for the procedure in the court and for the rule of law. Your Lordships will be aware that the Home Office has been taken to task by the courts on many occasions.

The risk now in allowing the transfer of these judicial reviews without any opportunity to assess the capacity and the competency of the Upper Tribunal to deal with them is threefold. First, there is an immediate risk of injustice to the individual litigant in relation to his fundamental rights, including rights to liberty, life and so forth. That was not one of the aims of the Home Office-led consultation I outlined. Secondly, there is a risk that inadequate handling of these judicial reviews by an untested tribunal will result in an increase in the workload of the supervising court—the Court of Appeal. If judicial reviews go to the Upper Tribunal, which has only just started, that will result in a greater workload for the Court of Appeal. Thirdly, there is the risk of reduced supervision of the Home Office resulting in it taking greater liberties, leading to more instances of injustice and increased litigation.

The introduction of Clause 50 to this Bill is completely premature and contrary to the assurances given to this House when we were discussing the Tribunals, Courts and Enforcement Bill only a very short time ago. That is why this clause should not stand part of the Bill. I now move to the particular amendments which raise other important issues in any event. We will press these amendments if your Lordships agree this clause.

Amendment 111BA deals with nationality decisions. Immigration issues are concerned with administrative decisions. The granting of certain rights to people who come to this country is an administrative decision taken by government officials. Nationality issues, on the other hand, are concerned with status. They are concerned with the declaration of whether an individual is or is not a British citizen. Immigration issues and nationality issues are two completely different things. Under the present proposals in Clause 50, both immigration and nationality claims are to be transferred. The judicial reviews of administrative systems are presently heard in the administrative court of the Queen's Bench Division of the High Court by High Court judges. The judicial review in that context is frequent and there is a great deal of expertise in the administrative court in that regard. But nationality judicial reviews are very few. In 2007, only three cases concerning nationality law were heard in the High Court and in the Court of Appeal that led to final judgment after a substantive hearing. In 2008 there were just two.

Unlike immigration claims, some nationality law claims can also be brought in private law proceedings as well as by public law claims for judicial review. Nationality law claims concern challenges to the refusal to register or naturalise a person as a British national of a particular description. Those are public law claims. Nationality law claims can also be an issue for declarations about whether a person has automatically acquired a form of British nationality at birth, for example. It is a completely different sort of animal from the immigration judicial reviews that are part of the subject of Clause 50. We would like to probe why the two types of issues are lumped together in Clause 50. I look forward to hearing the noble Lord on that topic.

The other issue raised is that of Scottish claims. The Scottish Court of Session would be allowed to retain the jurisdiction to hear asylum and immigration appeals under the terms of the Tribunals, Courts and Enforcement Act 2007, at least until full and proper consideration is given to removing that jurisdiction. The clause transfers asylum and immigration appeals from the Court of Session to the Upper Tribunal. The clause proceeds on the basis of the publication Consultation: Immigration Appeals. Fair Decisions, Faster Justice. However, there has been no separate consideration of the Scottish issues in the consultation, when the issues are very different. The proposal in Clause 50 relating to Scotland pre-empts the civil justice review currently being conducted by Lord Gill, although the Minister, Vera Baird MP, told the Public Bill Committee when the 2007 Act was being debated, that,

“we concluded that the judicially led review of the Scottish civil courts announced by the Minister for Justice in the Scottish Executive in March 2006 would be best placed to consider the detail of possible application for second appeals in Scotland”.—[Official Report, Commons, Tribunals, Courts and Enforcement Bill Committee, 20/6/07; col. 36.]

It also pre-empts the Scottish Administrative Justice Steering Group’s final report. The group’s first report left open the question of whether proposals made in the consultation paper are a preferable option.

There is no obvious demand in Scotland for transfer from the Court of Session to the Upper Tribunal. In June 2008, in its submission to the civil justice review, the border agency suggested this proposal as one of a range of possibilities. However, it did not receive a great deal of favour. Thus, for separate reasons, the Law Society of Scotland, which put forward this amendment, says that the clause is premature. I beg to move.

I also gave notice of my intention to oppose the Question that Clause 50 stand part of the Bill. I am puzzled by the fact that the clause is being promoted by the Home Office. The Tribunals, Courts and Enforcement Act 2007, to which it relates, was promoted by a department that is now part of the Department of Justice. The Home Office is a party to all immigration and asylum proceedings and therefore, for reasons that do not need elucidating, should not be, or even be perceived to be, an advocate for one form of procedure over another.

The Tribunals, Courts and Enforcement Act allows for the transfer of certain judicial review applications from the High Court to the Upper Tribunal. However, as we have heard from the noble Lord, Lord Thomas of Gresford, primary legislation is necessary before immigration and asylum matters can be so transferred. Noble Lords may recall that this was a concession made to your Lordships by the noble Baroness, Lady Ashton, in the course of the proceedings on the Bill. The reason is clear; it is principally because disputes in that area raise issues such as the right to liberty, and the right not to be put in danger of torture, cruel and unusual punishment or capital punishment, which are distinct from those rights that are dealt with under the new integrated tribunal regime.

When the 2007 Act became law, the Government were not confident that the transfer of applications for judicial review in this area to the Upper Tribunal was appropriate. The noble Baroness, Lady Ashton, stated in your Lordships’ House that she wanted to see how the new regime worked before making changes. The new Upper Tribunal, as we have also heard from the noble Lord, Lord Thomas of Gresford, began its work as recently as November 2008, leaving hardly enough time to come to a mature conclusion about its appropriateness as a vehicle for judicial review cases in immigration and asylum matters. Moreover, as the noble Lord, Lord Thomas of Gresford, has also pointed out, in August 2008 the Home Office launched a consultation on the merits of moving immigration and asylum matters to the new integrated institutions. The response to this consultation may be complete, but it has not yet been published. I find astonishing the timing of the consultation. What was the point of initiating it at a time when no one could possibly have had any experience of how the Upper Tribunal would fare? There was no evidence to submit to it, and upon which to opine. I regard Clause 50 as a straightforward breach of faith with your Lordships’ House.

I suspect that pressure for premature change is being generated mainly by members of the administrative court. It is no exaggeration to say that High Court judges, there, are inundated by applications to judicially review immigration and asylum decisions. Statistics suggest that 70 per cent of that court’s resources are absorbed by such matters. However, the only consequence of passing these matters to the Upper Tribunal would be to create a similar problem there.

The colossal growth in such applications is the symptom of a deeper malaise: the failure of the existing Asylum and Immigration Tribunal to make fair and timely decisions. This in turn is a function of two features. The first is the structure of the immigration and asylum tribunal system, following the move by the then Home Secretary, the right honourable gentleman David Blunkett, to change from a two-tier to a single-tier system. As was widely predicted, this has proved a disaster.

The second feature is that the procedure of the tribunals is determined not, as one might expect, by a tribunal service responsible to the Department of Justice, but by the Home Office. As I have stated, the Home Office is invariably a party to a dispute. So unsatisfactory are these procedures that it is often impossible for an appellant to know what the case against him is. The procedures also often lead to lengthy delays, so that many applications for judicial review are made, for example, in the field of deportation orders, on the grounds that circumstances have changed since the initial decision to deport was handed down.

The Home Office has indicated that the Government intend to publish a draft immigration simplification Bill in the autumn. If that is so, it would provide us with an opportunity to address the issues that underlie the explosion of judicial review applications. Until those questions are addressed and answered, there is little point in proceeding to the measure outlined by Clause 50.

I, too, was surprised to find Clause 50 tucked away in the Bill so soon after the Tribunals, Courts and Enforcement Bill received Royal Assent in 2007. A key feature of the Act was that asylum and immigration cases were excluded from the operation of Section 19, so that High Court judges sitting in the administrative court are not obliged to transfer such cases to the Upper Tribunal, and indeed are prohibited from doing so. The purpose of Clause 50, as has been pointed out by both noble Lords who have spoken, is to remove that prohibition. So there are two related questions for the Minister. First, why were asylum cases excluded from the operation of Section 19 as recently as 2007? Secondly, why is he seeking now to reverse that exclusion?

The answer to the first question is relatively easy and has already been given by both noble Lords who have spoken. Asylum cases have always given rise to sensitive issues, and they often give rise to difficult questions of fact and law, some of which end up in the House of Lords, as I know from my personal experience. As the late Lord Bridge said of one such case, R v the Secretary of State for the Home Department Ex parte Bugdaycay, decisions in asylum cases may, and sometimes do, put the applicant’s very life at risk. They therefore call, as Lord Bridge pointed out, for the most anxious scrutiny. That must be right, and is one good reason why such cases should be dealt with by judges of the standing of High Court judges in the administrative court.

However, there is a second reason. The current workload of the AIT is very heavy. It may have been thought that the judges of the new Upper Tribunal should gain experience in other, less sensitive and less pressurised, areas before being swamped with asylum and immigration cases. It is not only the difficulty of such cases, but their number, which is of concern.

A third possible reason for excluding immigration cases in 2007 is that immigration law and practice seem to be in a constant state of flux. We are at this moment anxiously awaiting the so-called simplification Bill that the Minister has promised for this Session. It may have been thought that it would be more sensible to keep immigration cases where they are, at least until the law has settled down a bit. Indeed, I think that I am right in saying that there is an important immigration case currently being heard in the House of Lords at this moment, but I may be wrong about that.

Each of those three reasons is a good reason—there may be others—why immigration cases were left out of Section 19 when the 2007 Act was given Royal Assent. I suggest that they are still good reasons why we should not act too quickly now.

That brings me to the second question that I hope the Minister will answer: why are we changing direction now, so soon after the 2007 Act was passed? Why are we having second thoughts when we have as yet, as has been pointed out, so little experience of how the Upper Tribunal is working? It has only been in operation for three or four months.

The answer can only be the enormous pressure under which the administrative court is currently operating. There can be no other explanation. It is important to draw a distinction between the ordinary work of the AIT and applications for judicial review. I see no reason why the ordinary work of the AIT should not be transferred to the First-tier and Upper Tribunals as soon as the judges have sufficient experience. That would be the logic behind the 2007 Act, and I hope that we will follow it through. I also hope that such cases will, when transferred, be dealt with in a separate chamber, of which the president should be a High Court judge.

However, applications for judicial review in such cases stand on an entirely different footing. These are the sensitive cases that raise the difficult questions of fact and law, and should be dealt with by judges of the status of a High Court judge. It is for that reason that it is so important that the applications for judicial review in asylum cases should continue to start in the administrative court as they always have. However, the problem, as has been pointed out, is that there are just too many of them. Applications for judicial review are currently running at a rate of about 4,000 a year. What is needed is some way of sifting out those cases that must be dealt with by High Court judges in the administrative court as they always have been, and as, I think, everybody agreed that they should be, from those cases that could be transferred by the administrative court to the Upper Tribunal. If the Minister could find a way of doing that, then he should by all means let us have a look at it. However, as I said on Second Reading, it is to my mind essential that we should know from him what exactly is proposed before we are asked to agree to Clause 50.

Lastly, I have spoken of the high status of High Court judges. The High Court judge is the key figure in the whole judicial hierarchy. The quality of the present High Court judges is very high indeed, and it is vital that that quality should be maintained. There is at least a risk that we will not get enough High Court judges of the right calibre to serve in the administrative court if the burden we place on them is too heavy, or if too much of the work that they are required to do could be done as well by others. That may be a question for the Lord Chancellor rather than the Home Secretary, but I thought it worth making that point in this context.

I speak only to Amendment 111DA, which affects the Court of Session. Section 20 of the Tribunals, Courts and Enforcement Act 2007 provided for the transfer of judicial review applications from that court to the Upper Tribunal subject to four conditions.

Under the Act, transfer was statutorily barred in two cases. The first is if the subject matter of an application to the supervisory jurisdiction of the Court of Session was a devolved Scottish matter. As the Minister has already pointed out, immigration is not a devolved matter. The second statutory bar related to judicial review applications relating to immigration or nationality decisions. This was constituted by Section 20(5) of the 2007 Act as condition 4. Clause 50(3) would remove that bar.

It is important to have in mind how Section 20 operates. It contemplated two situations: first, where there was mandatory transfer, the court must transfer an application to its supervisory jurisdiction if certain conditions are fulfilled; and secondly, where transfer could be made at the discretion of the judge of the Court of Session hearing the application. In either case, transfer could only take place if the application did not seek anything other than an exercise of the supervisory jurisdiction of the Court of Session. That was condition 1.

Condition 2 made provision for the Court of Session to specify classes of case apt for transfer by passing an Act of Sederunt made with the consent of the Lord Chancellor, an Act of Sederunt being the instrument by which the Court of Session exercises its statutory power to regulate its jurisdiction and procedures. Thus, unless and until the Court of Session exercised its power to determine which, if any, specific class of applications to its supervisory jurisdiction is to be transferred to the Upper Tribunal, and the Lord Chancellor consents, there can be no mandatory transfer to the Upper Tribunal of any class of applications.

In the absence of any act of sederunt, there remains a discretion in a particular case for the judge hearing the application to determine that the application be transferred to the Upper Tribunal, even though the Court of Session has not specified the class of case into which the application falls as being one for mandatory transfer. That discretion would extend to immigration and nationality appeals, with the removal of the statutory bar created by condition 4. At Second Reading, the Minister referred to the judiciary’s responses to the consultation paper Fair Decision, Faster Justice, which has already been mentioned. Can the Minister confirm that in their response to the paper, the judges of the Court of Session indicated that they were not able to express firm views on the proposal to amend Section 20 until Lord Gill, the Lord Justice Clerk, had reported on his review of the civil courts in Scotland? In paragraph 39 of its consultation paper, the UK Border Agency acknowledged that the process for judicial review in Scotland was,

“currently subject to any changes that may or may not be introduced following the review … currently being undertaken under the chairmanship of Lord Gill”.

Lord Gill has not yet reported. It might be thought premature at this stage to remove the statutory bars so far as they affect the Court of Session, pending publication of that report. This factor is fortified by a further consideration, which has already been mentioned—as I understand it, further primary legislation would be required to enable the Asylum and Immigration Tribunal to be replaced by the two-tier system which has been established by the 2007 Act. Perhaps the Minister would confirm that this is the case.

As a footnote to that observation, I draw attention to the provision in Section 21(3) of the 2007 Act. This section gives the Upper Tribunal the function of deciding applications transferred to it by the Court of Session under Section 20. Subsection (3) states:

“In deciding an application by virtue of subsection (1), the Upper Tribunal must apply principles that the Court of Session would apply in deciding an application to the supervisory jurisdiction of that Court”.

Can the Minister provide any assurance to the Committee as to how that provision is to be secured? At first blush it would suggest that the judge presiding at the hearing of the application should be a judge of the Court of Session. I refer in passing to the provisions of the 2007 Act, including Section 18(8), which contemplate a judge of the Court of Session being a member of the Upper Tribunal.

A question may arise whether there is likely to be any saving of time or expense in the transfer of applications to the Upper Tribunal from the Court of Session. That is not a question, I suggest, which can be answered until Lord Gill has reported. Indeed, in the consultation paper the agency stated:

“The Upper Tribunal would need to be well-established before any such a provision on transferring judicial review applications would be commenced and any transfers could be made. First, it would be important to ensure the Upper Tier had the capacity to deal with the additional workload quickly and efficiently. It would also be necessary to consider the best use of judicial time, the desirability of allocating cases to the appropriate level of judiciary, and the impact on judicial resources within the higher courts and the Upper Tribunal”.

While I remain open to the view that perhaps at this stage the Court of Session could make sure that there was no mandatory transfer of applications, and using its discretion judges would have to be persuaded that any application should be transferred, I suggest the better course at the moment is to defer consideration of the type of matters under review in Clause 50.

I find this matter much more difficult than noble Lords who have spoken so far on this amendment. The reason is that a very large proportion of the immigration cases that are heard currently in the High Court raise issues of no great difficulty, based on the particular facts and circumstances of the individual applicant. For that reason, many of these cases at present are heard in the High Court not by High Court judges but by deputy High Court judges—circuit judges sitting as High Court judges, a reflection of the lack of complexity of these cases. Yet these cases do constitute a very substantial proportion of the workload of the High Court, taking up a very large proportion of the resources of the court. I can see good reason why many of these cases should be heard by the Upper Tribunal, especially as there will be a right of appeal to the Court of Appeal—if permission is granted—on any point of law.

However, I have two concerns about Clause 50. First, is it really the Government’s intention to transfer all immigration judicial reviews to the Upper Tribunal? Do the Government recognise and accept that although many of these cases could be heard in the Upper Tribunal, there are undoubtedly some judicial reviews in this context which by reason of the complexity of the case, or by reason of the significance of the issues either generally or for the individual applicant, should indeed be heard by a High Court judge? If that is right, surely it is open to the Minister to think again about this matter and to come back to the Committee with a power that is more appropriately circumscribed.

My second concern has already been expressed by the noble Lord, Lord Thomas of Gresford. I simply do not understand why nationality cases should be sent to the tribunal. These cases always, in my experience, involve complex issues of law and there are very few of them.

I make it clear at the outset that in speaking to this group I do not regard the decision that Clause 50 stand part of this Bill to be consequential on any decision on Amendments 111BA and 111DA. We have had a very useful discussion and very useful input. The noble Lord, Lord Kingsland, asked why this clause is being promoted by the Home Office. This is a Government Bill on which the Home Office is leading. We have worked very closely with the Ministry of Justice on Clause 50. It fully supports and is pushing this, as are quite a large number of judges. As always when it comes to issues like this I feel rather like Daniel in the lion’s den, surrounded by some many experts in this field.

I am not sure I agree with that.

Amendment 111BA retains the general effect of the clause, allowing immigration judicial reviews to be dealt with in the Upper Tribunal. However, this amendment would remove the power of the relevant senior judiciary to direct that cases relating to nationality decisions must be transferred. It has been suggested that as some nationality claims may be brought before the High Court in private law proceedings, judicial review cases should also remain before the High Court.

Clause 50 allows the judiciary to ensure that public law judicial review cases are handled in the most efficient way, including transferring them into the Upper Tribunal if that is appropriate; not necessarily to do it, but if it is appropriate. It is true that Clause 50 does not address the issue of private law cases being brought before the High Court. The fact that it is possible to bring a private law case before the High Court does not justify restricting the ability of our most senior judiciary to decide how public law cases should be heard.

Nationality decisions do not currently attract a right of appeal, except a decision to deprive a person of British citizenship, which has rarely been used to date. This means that senior immigration judges, who would become judges of the Upper Tribunal under the unified system, do not currently have the same level of expertise in handling nationality cases as they do in immigration and asylum cases.

It is worth being clear, however, that the Tribunals, Courts and Enforcement Act 2007 specifies that judicial review applications in the Upper Tribunal can be heard by judges of the High Court, Court of Appeal or Court of Session, and indeed these are the only judges with an automatic right to hear the applications by virtue of that Act. Other judges, including senior immigration judges, can hear applications only where the relevant Lord Chief Justice or Lord President has agreed for them to do this with the Senior President of Tribunals, who is already required to consider the need for judges to be experts in the subject matter or law relating the types of cases that they hear.

We believe that the decision as to whether particular judges outside those specified in the TCE Act are suitable to hear applications should rest with the relevant Lord Chief Justices and Lord President. As an example, decisions to deprive people of British citizenship carry a right of appeal. If tribunal judges hear a significant number of these appeals, the chief justices and the Senior President of Tribunals may take the view that they have acquired sufficient expertise to hear judicial review cases relating to other nationality decisions. This amendment would limit their ability to make that decision and therefore to manage cases in the best interests of justice.

Amendment 111DA retains the full powers of the clause for England, Wales and Northern Ireland, but excludes Scotland. I am aware of the concern that we should not pre-empt the ongoing reviews in Scotland and, of course, I recognise that the Scottish legal system is different from that in the rest of the United Kingdom. It is worth pointing out, however, that the power to transfer most judicial review cases into the Upper Tribunal is already in place in Scotland, and the Lord President has already made an Act of Sederunt designating a class of cases which must be transferred. All that Clause 50 does is extend existing powers to immigration and nationality cases.

We should be clear that the powers contained in Clause 50 are permissive powers only; that is important. The Lord President is not required to designate a class of cases which must be transferred, and the judges of the Court of Session do not have to transfer specific cases if they do not believe that it is right to do so.

If we give judges in the rest of the United Kingdom the power to transfer cases, it seems right that we should ensure that judges in Scotland have the same powers and let the Scottish judiciary decide whether to use them. The chief justices exercise their powers with the responsibility that is expected of them and fully consider all arguments as to whether a class of case is suitable for transfer before they issue any directions. We should not restrict the ability of our most senior judiciary to manage judicial review cases as they see fit, and I therefore urge the Committee to resist both these amendments.

I will now deal with the Question that Clause 50 stand part of the Bill. Clause 50 allows immigration judicial review cases to be transferred into the Upper Tribunal on a case-by-case basis. The clause also allows the Lord Chief Justice, the Lord President and the Lord Chief Justice of Northern Ireland, with the agreement of the Lord Chancellor, to specify a class of case which must be transferred into the Upper Tribunal. These powers are already available for non-immigration cases.

This clause does not remove access to the remedy of judicial review. The Upper Tribunal has exactly the same jurisdiction in judicial review matters as the higher courts and may grant the same kinds of relief. It is important to make the context of this clause clear. We are hopeful that we will be able to transfer the Asylum and Immigration Tribunal—I will refer to this using its usual abbreviation, AIT—into the unified tribunals system. The unified tribunals system has been operating for other jurisdictions since November last year.

The AIT is a single-tier appeals system, and there is a statutory right to apply to the High Court for an order for the AIT to reconsider its decision. There are clear benefits to transferring into the unified system—which is a two-tier system—in terms of removing the burden of those immigration reconsideration applications from the higher courts. That burden has been referred to by a number of noble Lords. The noble and learned Lord, Lord Lloyd, pointed out the huge pressure that there is at the moment. There is no need for a reconsideration process in the unified tribunals system, as there is a right of appeal against a First-tier Tribunal decision to the Upper Tribunal.

Before we can make the decision to transfer the AIT, however, we must be sure that the new system will be faster, final and respected. Officials in the UK border force and the Tribunals Service are finalising work on this at the moment, and we hope to make an announcement very shortly. Other, non-immigration judicial review cases can already be transferred into the Upper Tribunal and, if we transfer the AIT, it makes sense to remove the existing bar to transferring immigration judicial reviews.

Noble Lords have referred to the fact that the matter of transferring immigration judicial reviews into the Upper Tribunal was debated during the passage of the Tribunals, Courts and Enforcement Act, and agreed that the timing of such a measure was not right. I, too, was surprised at how rapidly after the decision was made this was being looked at. There was quite a lot of pressure, not least from the judiciary. Two years on, the large volume of immigration judicial reviews is creating a huge, significant and increasing burden on the higher courts. Last year, the Government published a consultation setting out proposals for reforming the way in which immigration appeals are heard.

One of the aims of those proposals was to reduce the existing burden of immigration matters in the higher courts. As a result, we are deciding whether to transfer the AIT into the unified tribunals system. We are still working with colleagues in the Ministry of Justice to ensure that if we bring the AIT into the unified tribunals structure, it will result in a system which is faster, final and respected, delivering the benefits that were set out in the consultation paper last year. This clause forms part of that package of reforms. I am pleased to report that the senior judiciary supported this provision in their response to the consultation.

We will not commence this provision unless and until the AIT has been transferred into the unified tribunals system, which may be done under existing powers. Although existing powers also enable certain members of the AIT to sit in the Upper Tribunal, we do not think that it makes sense for immigration judicial reviews to be considered in the Upper Tribunal unless and until the AIT is fully integrated within that system. This provision is needed to give the higher courts greater flexibility in dealing with immigration matters, and it is a significant part of the wider reform of immigration appeals currently under consideration. If it is considered right to transfer the AIT, we wish to be in a position to implement this clause to complete that package.

Concerns were expressed on Second Reading that the Government intended to retain existing arrangements for the making of procedure rules in respect of immigration cases. I have written to noble Lords to advise that this is not the case, and that if we do transfer the AIT into the unified system, the procedure rules will be made by the Tribunal Procedure Committee in the same way as for other cases in the Upper Tribunal.

A number of specific questions were asked. The noble Lord, Lord Kingsland, asked about procedure rules made by the Home Office. This is incorrect. The procedure rules for the Asylum and Immigration Tribunal—AIT—have been made by the Lord Chancellor since at least 2002. We have indicated that if the AIT transfers, the rules will be made by the Tribunal Procedure Committee. The noble and learned Lord, Lord Cameron, was absolutely correct in what he said about the response made by the judges of the Court of Session. However, the important point is that this is a permissive power; the judges in the Court of Session do not have to use it if they feel that it is too soon. That point was made also by the noble Lord, Lord Pannick. The noble and learned Lord, Lord Cameron, also asked about the primary legislation required to transfer the AIT. That is not necessary. A statutory instrument to transfer the functions is what is required, and that will be subject to affirmative resolution.

The noble Lord, Lord Pannick, asked whether there was an intention to transfer all judicial reviews to the Upper Tribunal. The answer is no. It is a matter for the judiciary which case should be transferred. That is the point: they will be able to judge it themselves and they are the people who really understand those issues. It is not for the Government to dictate because they are very sensitive issues and the judges are the right people to make those decisions.

The noble Lord, Lord Pannick, also raised questions about nationality decisions. We recognise that nationality cases often raise very complex issues, but if we exclude them they will be almost the only judicial reviews that cannot be transferred. Again, we think that it is better to leave it to the judiciary to do that on a case-by-case basis.

I know that this has been a rather long-winded response but I hope that it has covered most of the points and removes the remaining reservations on the matter. As I have said, I do not regard the decisions on Clause 50 to be consequential on decisions on the amendments, but I would be grateful to noble Lords if they would withdraw their amendments.

The noble Lord, Lord Kingsland, put his finger on the problem which was created by Mr Blunkett’s abolition of appeals in immigration cases and the creation of a single tier. I am sure that when he did so—although I have not had the opportunity of checking Hansard—he said that it would be a faster and more efficient way of dealing with immigration cases, which is almost exactly the language that the Minister has used in his response. He is looking for efficiency and speed. What we are looking for is justice. When you are concerned with people’s lives, as all these issues are, efficiency and speed are all very well from the Home Office’s point of view but it may not be the proper approach at all from the individual’s point of view.

Just as an illustration of how the problem has been created, I have been instructed while the Minister was responding that Government inaction over Zimbabwe in the last two years has led in the High Court to 150 applications for judicial review for fresh claims but 500 applications for reconsideration. It is the abolition of the second tier that used to exist that has created all the pressure on the administrative court. As the Minister has admitted, it has also caused the matter to be brought back to us prior to all the procedures that we were assured would happen and before we have the opportunity to consider how the tribunal system is going to work.

I detected in the contributions of the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Pannick, suggestions that we should be looking to some proper way of sifting these applications and determining which should go to the Upper Tribunal and which should be retained in the High Court. The Minister refers to a case-by-case approach but this particular clause does not refer to such an approach. The clause would permit all cases of this of type judicial review to be transferred to the Upper Tribunal without there being any sifting process as to which are more important and complex and which should be heard in the High Court.

Perhaps a way forward is that between now and Report stage for us consider whether applications for judicial review should remain in the High Court, which is the traditional role of that court over centuries in supervising inferior tribunals. The judge who considers applications for judicial review should have the power to direct that the individual case could go to the Upper Tribunal. As the noble Lord, Lord Pannick, has pointed out, many of these cases are concerned with factual rather than with complex, legal issues. An expertise would no doubt develop eventually so that a proper sifting process should occur. However, that is not in the Bill now and I believe that we can put our heads together and come forward with something that is far more satisfactory and in accord with what we were discussing when the 2007 Act went through this House. For the moment, in the hope that the Minister will respond to further consultation, I beg leave to withdraw the amendment.

Amendment 111BA withdrawn.

Amendments 111C and 111D had been withdrawn from the Marshalled List.

Amendment 111DA not moved.

Amendments 111E and 111F had been withdrawn from the Marshalled List.

Clause 50 agreed.

House resumed. Committee to begin again not before 8.55 pm